Wes Gilbreath, Jr., Stacey Gilbreath Powell, Elliot Gilbreath, and Mark Ritter SignAd, Ltd., SignAd GP, LLC, Ben Nevis West, Ltd., Culcreuch West, LLC, Big Signs & Leasing 1, Ltd., Big Signs & Leasing 2, Ltd., Big Signs & Leasing 3, Ltd. El Al v. Lisa R. Gilbreath Horan, Individually and as Trustee of the Lisa Gilbreath Horan 2001 Irrevocable Trust

Opinion issued April 20, 2023.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-17-00316-CV

———————————

WESLEY GILBREATH, JR., STACEY GILBREATH POWELL, ELLIOT

GILBREATH, AND MARK RITTER; SIGNAD, LTD., SIGNAD GP, LLC,

BEN NEVIS WEST, LTD., CULCREUCH WEST, LLC, BIG SIGNS &

LEASING #1, LTD., BIG SIGNS & LEASING #2, LTD., BIG SIGNS &

LEASING #3, LTD., BIG SIGNS & LEASING #4, LTD., BIG SIGNS &

LEASING #5, LTD., AND BIG SIGNS & LEASING #6, LTD., BIG EASTEX

#1, LTD., REALTY ACQUISITIONS & HOLDINGS, LLC, AND BIG

LEASING, LLC

Appellants

V.

LISA R. GILBREATH HORAN, INDIVIDUALLY AND AS TRUSTEE OF

THE LISA GILBREATH HORAN 2001 IRREVOCABLE TRUST, Appellee

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Case No. 2013-74857

OPINION ON REHEARING

Appellee Lisa Gilbreath Horan, Individually and as Trustee of the Lisa

Gilbreath Horan 2001 Irrevocable Trust, filed a motion for rehearing and a motion

for en banc reconsideration of our July 14, 2022 opinion and judgment.1 Appellants

SignAd, Ltd., SignAd GP, LLC, Ben Nevis West, Ltd., Culcreuch West, LLC, Big

Signs & Leasing #1, Ltd., Big Signs & Leasing #2, Ltd., Big Signs & Leasing #3,

Ltd., Big Signs & Leasing #4, Ltd., Big Signs & Leasing #5, Ltd., Big Signs &

Leasing #6, Ltd., Big Leasing, LLC, Big Eastex #1, Ltd., and Realty Acquisitions &

Holdings, LLC also filed a motion for rehearing.2 We deny the motions for

rehearing, withdraw our opinion and judgment of July 14, 2022, and issue this

opinion and judgment in their stead. Our disposition remains the same.

We dismiss the motion for en banc reconsideration as moot.3

1

See TEX. R. APP. P. 49.1, 49.5.

2

Appellants Wesley Gilbreath, Jr., Stacey Gilbreath Powell, Elliot Gilbreath, and

Mark Ritter also filed a motion for rehearing of our July 14, 2022 opinion and

judgment. We issued an order on October 20, 2022 denying their motion for

rehearing.

3

Because we issue a new opinion, the motion for en banc reconsideration is moot.

In re Wagner, 560 S.W.3d 311, 312 (Tex. App.—Houston [1st Dist.] 2018, orig.

proceeding) (“Because we issue a new opinion in connection with the denial of

rehearing, the motion for en banc reconsideration is rendered moot.”); see also

Poland v. Ott, 278 S.W.3d 39, 41 (Tex. App.—Houston [1st Dist.] 2008, pet.

denied) (stating motion for en banc reconsideration rendered moot by withdrawal

and reissuance of opinion and judgment); Brookshire Bros., Inc. v. Smith, 176

S.W.3d 30, 41 n.4 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (supp. op. on

reh’g) (noting that motion for en banc reconsideration rendered moot when motion

for rehearing granted and new opinion and judgment issue).

2

Wesley Gilbreath, Jr., Stacey Gilbreath Powell, Elliot Gilbreath, and Mark

Ritter (collectively, “Individual Appellants”) and SignAd, Ltd., SignAd GP, LLC,

Ben Nevis West, Ltd., Culcreuch West, LLC, Big Signs & Leasing #1, Ltd., Big

Signs & Leasing #2, Ltd., Big Signs & Leasing #3, Ltd., Big Signs & Leasing #4,

Ltd., Big Signs & Leasing #5, Ltd., Big Signs & Leasing #6, Ltd., Big Leasing, LLC,

Big Eastex #1, Ltd., and Realty Acquisitions & Holdings, LLC (collectively,

“Company Appellants”) appeal the trial court’s amended final judgment rendered

against them on a jury verdict following a four-week trial. The Individual and

Company Appellants collectively raise 25 issues (many with multiple sub-parts)

challenging the judgment rendered against them on a host of claims including

malicious prosecution, defamation, breach of fiduciary duty, and others.

We affirm in part, reverse in part, and remand in part.

Background

In 1964, Wesley Gilbreath, Sr. (“Wes, Sr.”), the patriarch of the Gilbreath

family, founded an advertising company focused on constructing, owning, and

leasing billboards in prime locations throughout Texas and parts of Louisiana.

Although the company was at first a sole proprietorship, it was later incorporated in

1966 as SignAd, Inc., and then converted into a limited partnership known as

SignAd, Ltd. In August 2000, SignAd GP, LLC, a Texas limited liability company,

3

was formed in connection with this corporate conversion to act as the general partner

of SignAd, Ltd.

Over the years, Wes, Sr. transferred his original ownership interests in the

business in equal parts to his children—Lisa Gilbreath Horan (“Lisa”), Wesley

Gilbreath, Jr. (“Wes, Jr.”), Elliott Gilbreath (“Lee”), Stacey Gilbreath Powell

(“Stacey”), and Brett Gilbreath (“Brett”)—through nearly identical irrevocable

trusts. Although he also initially transferred an equal interest in the business to his

daughter Sheree Gilbreath (“Sheree”), he repurchased Sheree’s interest and placed

the proceeds in a trust for her benefit after she was diagnosed with paranoid

schizophrenia in her twenties.4 Wes, Sr. then sold that interest to a separate trust he

established for the benefit of his grandchildren (“Grandchildren’s Trust”). Wes, Jr.,

Lee, Brett, and Mark Ritter (“Mark”) served as trustees of the Grandchildren’s Trust.

Lisa’s daughter, Noelle, has a one-fourteenth interest in the Grandchildren’s Trust.

The Gilbreath family business consists of nine Texas limited partnerships,

each with a general partner organized as a Texas limited liability company. The

limited partnerships are: SignAd, Ltd., Big Signs & Leasing #1 to #6, Ltd. (six

numbered partnerships), Big Eastex #1, Ltd., and Ben Nevis West, Ltd. (collectively,

4

Sheree, who is no longer able to care for herself, lives in a mental health facility.

Wes, Jr. is the trustee of Sheree’s trust.

4

“Limited Partnerships”).5 The general partners are: SignAd GP, LLC (general

partner for SignAd, Ltd.), Culcreach West, LLC (general partner for Ben Nevis

West, Ltd.), Realty Acquisitions & Holdings, LLC (general partner for Big Eastex

#1, Ltd.), and Big Leasing, LLC (general partner for the Big Signs & Leasing

partnerships) (collectively, “General Partners”). The General Partners are managed

by their respective Board of Managers consisting of Wes, Jr., Lee, Lisa, and Stacey,

each serving a lifetime appointment.6 The parties refer to the Limited Partnerships

and General Partners collectively in their briefs as “SignAd Outdoor,” “SignAd

Outdoor Advertising,” or the “SignAd Enterprise.” For purposes of this opinion, we

refer to the entities together as “SignAd Outdoor.”

The Grandchildren’s Trust and Lisa, Wes, Jr., Stacey, Lee, and Brett, as

trustees of their respective irrevocable trusts, are each limited partners in the Limited

Partnerships, with each owning an equal one-sixth interest in the partnerships. The

Limited Partnerships are all taxed as S-Corporations, meaning the limited partners—

Wes, Jr., Lee, Stacey, Lisa, Brett, and the Grandchildren’s Trust—are taxed directly

for the partnerships’ income. Each year, SignAd, Ltd. distributes profits to the

5

According to the Individual Appellants, Big Signs & Leasing #1 to #6, Ltd.

construct billboard signs and Big Eastex #1, Ltd. and Ben Nevis West, Ltd. both

hold real estate interests.

6

Brett and Wes, Sr. formerly served on the Board of Managers as well.

5

limited partners in equal shares at an amount determined in advance by SignAd GP,

LLC’s Board of Managers.

Wes, Sr. expected all his children to be involved with the family business,

even at a young age.7 Wes, Jr. started helping his father at what was then SignAd,

Inc. when he was ten years old. After he attended college, Wes, Jr. returned to the

family business and by the age of 25, he was the president of the company in 1984

or 1985. Wes, Jr. became the President of SignAd GP, LLC in 2000, when the entity

was created, and he has served in that role ever since. Other siblings also served as

corporate officers for the Company Appellants, including Lee, who served as

SignAd GP, LLC’s accountant and controller from the early 1980s until he retired

in 2000, and Brett, who served as the Vice President of real estate until 2011.

Unfortunately, the siblings did not always work well together. Wes, Jr. and

Brett had a contentious working relationship that Lisa described as “very strained.”

In 2004, Brett, who had been the Vice President of real estate, resigned because of

his conflicts with Wes, Jr. According to Brett, Wes, Jr. “likes to be really involved

with every single employee,” and had been giving orders to employees who should

otherwise have been reporting to Brett on real estate matters.

7

According to Wes, Jr., the sons generally started in labor-intensive roles, such as

construction and billboard maintenance, while the daughters performed more

clerical duties. Many of Wes, Sr.’s fourteen grandchildren also worked at SignAd

Outdoor over the years, as well as other extended family members.

6

Lisa hired a corporate psychologist, Dr. George Dempsey (“Dr. Dempsey”),

to consult with the board members, privately and collectively, to mediate their

conflicts and develop a more efficient and positive working environment. With Dr.

Dempsey’s help, Wes, Jr. and Brett were able to resolve some of their disagreements

and establish some ground rules that led Brett to return to the company as the Vice

President of real estate. The brothers’ working relationship, however, began to

deteriorate again and, after a major dispute over a real estate issue in 2011, Brett

decided to resign from the company. Wes, Jr. accused Brett of stealing business

away from the Company Appellants and fired Brett before he could resign. Brett,

who was out of town in August 2011 handling a real estate issue for work, learned

that he had been fired when Lisa called him and told him that someone was cleaning

out his office.

According to Lisa, Wes, Jr. locked Brett out of the building, and at first

refused to return some of Brett’s belongings. Lisa disagreed with Wes, Jr.’s

treatment of Brett and when she tried to intervene to help her younger brother,

“things got very volatile.” Wes, Jr. not only threatened to fire any employee who

talked to Brett but followed through with the threat and fired one of the sales

7

managers who had spoken with Brett. Although he eventually recovered his

belongings, Brett was never allowed back in the business office.8

Although Brett resigned from the Board of Managers of SignAd GP, LLC9 in

September 2011, he remained on the Board of Managers for the real estate entities

until he resigned from those boards in February 2014. According to Lisa, Wes, Sr.

was “devastated” after Brett resigned from SignAd GP, LLC’s Board of Managers.

After Wes, Sr.’s health began to fail in 2012, he, too, resigned from the board. Lisa

explained the negative impact these developments had with respect to her place in

the company:

And as a general rule my father and Brett and I usually agreed and voted

on a lot of issues together, and then it was just me. And so I was aligned

against Wes, Jr., Lee and Stacey. So I kind of lost my voice somewhat.

According to Lisa,

[B]eginning in about 2010, the real estate meetings had become more

abbreviated and they were not discussing specific land purchases and

land sales and allowing me to vote on them or letting me know what

was going on; and it just seemed kind of strange the lack of information

that I was getting in the real estate board meetings. So I started asking

more questions and I was met with hostility and anger and, you know,

controlling by my brothers; and so I then started asking each meeting

for an internal audit, which is a normal course of business, to have a

company audited voluntarily internally to make sure that the books and

8

Brett met with Lisa and Lee in September 2011 and informed them that he was

going to resign from SignAd GP, LLC’s board and build his own sign company.

9

In his letter of resignation, Brett stated that he was resigning from SignAd, Ltd.’s

Board of Managers. At the time, however, Brett was serving on SignAd GP, LLC’s

Board of Managers. SignAd, Ltd. does not have a Board of Managers.

8

records and everything is being run properly. And then I was met with

more hostility and more controlling behavior.

The tension between Lisa and the remaining board members continued to escalate

and became progressively worse after Brett and Wes, Sr. resigned from SignAd GP,

LLC’s Board of Managers in 2011 and 2012, respectively.

Wes, Sr. died on January 13, 2013. Within days, Lisa began asking questions

about her father’s will, the Grandchildren’s Trust, and the business overall. For

example, in a January 24, 2013 email to Wes, Jr., Lee, and Brett, Lisa expressed

concerns that SignAd Outdoor had been paying for personal and nonbusiness

expenses, and stated, “I would like to curtail effective immediately any nonbusiness

related expenditures.” Lisa was concerned particularly about what she considered

to be excessive payments to her stepmother and stepsiblings. Lisa further stated, “I

am requesting and am entitled to see a quarterly report of any expenses being paid

for by SignAd Outdoor Advertising for nonbusiness purposes, including any

expenses related to our stepmother and stepfamily.” According to Lisa, her

stepmother’s children and grandchildren were “kind of getting a lot of benefits and

expenses paid through the company that were not part of the [1989 stock purchase]

contract.”

Lisa also began asking questions about Wes, Sr.’s financial affairs and when

she tried to get a copy of his will from Brett, the executor of Wes, Sr.’s estate, Brett

told her to contact him when she was not “ill anymore.” Lisa testified that although

9

she had received financial reports in the past, she had a problem getting the

information in 2013. She also testified that when she asked for more specific

information about some expenditures, “Wes, Jr. told me that we were going to meet

in 30 days to start setting some controls on excessive spending.”

Lisa also began reaching out to Mark in January and February, and trying to

obtain information about her daughter Noelle’s interests in the Grandchildren’s

Trust. At one point, Mark told her that there was approximately $20,000 in the

Grandchildren’s Trust. Lisa suspected that something was wrong because she had

received “millions of dollars in earnings distributions. Her daughter’s earnings were

significantly less . . . [she] had only gotten about $10,000 a year.” Lisa testified that

when she asked the trustees about the apparent discrepancy, “[t]hey basically told

me it was none of my business and that I was crazy.”

On January 28, 2013, Lisa sent an email message to Wes, Jr., Lee, and Brett

regarding the Grandchildren’s Trust. Lisa repeated her request for information and

stated, “In the kindest, most loving voice I am telling you that I am putting you all

on notice that I will hold you to the highest fiduciary responsibility regarding the

partnerships and trusts. Dad is gone now, so no excuses that he forced you. We

need to strictly adhere to the law.”

On January 30, 2013, at the Board of Managers meeting for Culcreuch West,

LLC, Lisa accused her siblings of taking “millions of dollars.” On February 1, 2013,

10

Lisa also emailed Lee, Wes, Jr., Brett, and Mark and informed them that she believed

they had breached their fiduciary obligations as trustees and co-trustees of the

Grandchildren’s Trust, and she called for their immediate resignations. Lisa

concluded her message by stating that “[f]ailure to do so [would] result in further

investigation of the matter including your burden of proving specifically where the

monies have been dispersed.” Nine copies of the email were sent from Lisa’s email

account in rapid succession. According to Lisa, the duplicative messages had

resulted from a computer glitch.

Lee responded later that morning and told Lisa that he had “no need to receive

9 copies of the same email.” He also told Lisa that “no monies [had] been disbursed

on [their] watch” and she had no basis for her allegations, he questioned her motives

for making the allegations, and he demanded an apology. Lee also warned Lisa that

“[f]urther actions along this line and others you showed at the board meetings may

result in evaluating your fitness to serve in your various capacities––your lifetime

appointment can be voided if it is determined that you are not ‘able to serve.’” Lee,

who had copied Wes, Jr., Stacey, Mark, and Brett on the email, asked them to advise

him on their feelings on the matter and what actions, if any, they believed had to be

taken.

That same day, Brett texted Lisa, “We are worried about you. Is everything

okay?” When Lisa reiterated her request for Brett’s resignation and expressed her

11

concerns about the way the Grandchildren’s Trust had been handled, Brett

responded, “Don’t isolate yourself sis, back off please. I don’t want any harm to

come to you. Just once, listen to me.” Lisa replied, “Is someone threatening to harm

me?” Brett responded, “No, but I’m afraid you might be ousted from the board. I

warned you/Lee in my last meeting before resigning. You are the minority from

here on out!! Me & Dad are out as expected, too late for changes now, so get along,

ok?” The next day, Brett texted Lisa:

If you are called to a fitness test and fail, you will be removed off the

BODs. At this point it may be best for everyone involved. I asked you

to back off and again, you failed to listen to me, the one who has been

patient and loving to you and watched you get more and more inflexible

and hostile. Call me sis, I love you.

Lisa testified that she felt threatened by Lee and Brett’s messages. “[T]hey

were threatening that, in other words, if I kept on asking these questions about

business matters and pressing that, that they were going to have me committed

mentally and I’d be removed from the board; and so it was pretty scary.” Lisa

testified that “the less cooperative and transparent they were, the more concerned”

she became, and she eventually hired a forensic accountant to audit the SignAd

Outdoor business.

On March 1, 2013, Lisa’s attorney, Howard Reiner (“Reiner”), spoke with

Wes, Jr. on the phone. Reiner sent a letter to Wes, Jr. five days later memorializing

their conversation. In his March 6, 2013 letter, Reiner asked Wes, Jr., as President

12

of SignAd GP, LLC, to “provide access to the partnership books and other records

[of SignAd GP, LLC and SignAd Ltd.] for inspecting and copying, during business

hours on or before March 19th.” According to the letter, Wes, Jr. had told Reiner

that he would never provide Lisa with access to the company’s books and records.

Wes, Jr. testified that he passed this information along to Richard Rothfelder

(“Rothfelder”), SignAd Outdoor’s corporate lawyer. Wes, Jr. testified that he was

concerned Lisa would not keep the company’s records confidential, “due to the fact

primarily that Lisa had already begun contacting some vendors at that point,

confidentiality was a huge concern for us. We didn’t want to jeopardize this

information getting out. I didn’t know what she might do, if she might try contacting

our land owners or customers or what might occur. So confidentiality was a

requirement to going further.”

Rothfelder sent a letter to Reiner and informed him that Lisa could come to

his office to look at the books and records. According to Lisa, Rothfelder

subsequently resigned from representing SignAd Outdoor in the matter and “so [she]

never got anything.”

On March 4, 2013, Lisa emailed Terry Denman10 (“Terry”) and asked him to

provide her with certain partnership documents, including stock certificates. Terry

was the secretary of SignAd GP, LLC’s Board of Managers, and he was the President

10

Terry Denman is Patsy Gilbreath’s nephew. Patsy Gilbreath is Wes, Sr.’s widow.

13

of Buyers Investment Group, Inc. Terry told Lisa that he did not have a problem

giving her the documents, but that all requests had to go through Wes, Jr.

On March 4, 2013, Lee emailed a list of proposed agenda items for SignAd

GP, LLC’s March 20, 2013 board meeting to Wes, Jr., Stacey, Lisa, Mark, and Terry.

On March 7, 2013, Reiner sent letters to Wes, Jr., Terry, Mark, and Billy Collins11

requesting access to the partnership books and records of other companies, including

Realty Acquisitions & Holdings, LLC, Big Eastex #1, Ltd., Culcreuch West, LLC,

Ben Nevis West, Ltd., Buyers Investment Group, Inc., and Hang’em High, Ltd.12

On March 8, 2013, Lisa emailed Lee a list of six topics that she wanted

discussed at the upcoming SignAd GP, LLC board meeting. Lee responded to her

later that day and informed her that some of her items were operational and not

appropriate topics for board meetings and that a lot of her concerns would be covered

during the “Old Business” agenda item. On March 19, 2013, Lee sent an email

message to Wes, Jr. and Stacey and copied Lisa, Terry, Dr. Dempsey, and Mark.

Lee asked Wes, Jr. and Stacey if they agreed with his responses to Lisa’s requests

11

Billy Collins was president of Culcreuch West, LLC, one of SignAd Outdoor’s real

estate companies.

12

Buyers Investment Group, Inc.—the former General Partner of Big Signs & Leasing

#1 to #6, Ltd., Big Eastex #1, Ltd., and Hang’em High, Ltd.—was voluntarily

dissolved in April 2013. Hang’em High, Ltd. was voluntarily dissolved in May

2013.

14

and stated that if they agreed with him, the final agenda would be the one he had

originally submitted. Lee further stated:

Also please note that I was not aware of the legal proceedings going on

internally against our companies at the time of my response. And

[Lisa’s] response to me, and I quote, was “My atty and cpa have advised

me that the days of secrecy and back room dealing a[r]e over,” with no

comments either on topic 1 or 7 (or any others). Mark did bring to my

attention since then that the Executive Committee had been tasked by

the Board in a previous meeting with monitoring free bills. Terry . . .

can you put together a summary of any such similar motions that we

tend to make and immediately forget about? Thanks.

Wes, Jr. testified that Lisa changed almost immediately after their father’s

death and he was extremely concerned about Lisa’s behavior. According to Wes,

Jr., “Lisa was just bombarding all of us, anybody, regarding money, where is the

money kind of thing; and it was just—nothing was making sense. Accusatory

toward all of us about stealing her inheritance. There was all—there was just so

many claims going on.”

Wes, Jr. testified that his mother, Ruth, who had been diagnosed with manic

depression and paranoid schizophrenia when he was a toddler, would become “angry

and volatile” and “somewhat combative” and even “physically aggressive” at times.

According to Wes, Jr., there were “a couple of times where I had to physically

restrain her and just wrap her up in a bear hug to help try to calm her.” His mother

would also “talk to herself occasionally and hallucinate and would get somewhat

paranoid at times.” According to Wes, Jr., his parents divorced in the mid-1970s

15

and he and his siblings were left with the responsibility of caring for their mentally

ill mother. The bulk of the responsibility, however, was carried by Wes, Jr., who

eventually had his mother involuntarily committed. Wes, Jr. testified that Lisa

exhibited similar symptoms after their father died in January 2013:

[T]here had been issues going back for quite a while, for years; but it

really took off upon dad’s passing. It really elevated to a totally out-of-

control Lisa. Prior that, Lisa was—you could usually bring her back

down. At that point there was no bringing her back. It was beyond help.

According to Wes, Jr., Lisa’s symptoms became worse over time, and she was

exhibiting her “worst behavior so far” at the SignAd GP, LLC March 21, 2013 board

meeting.

Lisa’s other siblings echoed similar sentiments. Stacey testified that Lisa

became increasingly paranoid and erratic after their father’s death. According to

Stacey, Lisa’s troubling behavior became “more and more and more prevalent” and

her condition “deteriorated rapidly” during this time. Stacey testified that Lisa’s

behavior during the SignAd GP, LLC board meeting was “definitely” comparable to

their mother’s and sister’s behavior.

A. March 21, 2013 Board of Managers Meeting

The Board of Managers for SignAd GP, LLC met on March 21, 2013. Lee,

Wes, Jr., Lisa, Stacey, Mark, Terry, and Dr. Dempsey attended the meeting. Lisa

was accompanied to the meeting by Officer Stevens, an off-duty Houston Police

Department officer. Lisa testified that she brought Officer Stevens with her to the

16

meeting to ensure her safety because she felt threatened by her brothers. Lisa

testified she felt threatened by Wes, Jr., in part because he had a history of bullying

her. She also testified that during one of the board meetings, Wes, Jr. had talked

about his extensive gun collection and she believed Wes, Jr. was trying to frighten

her indirectly.

During the board meeting, there were several outbursts requiring several

breaks, including at least one when Wes, Jr. accused Lisa of being mentally ill.

According to Lisa, the situation quickly escalated. Lisa testified that, “Stacey, who

was sitting next to me, stood up and started screaming at me over my head, like that

she hates me and just totally irate screaming at me.” When the meeting resumed,

Wes, Jr., Lee, and Stacey all voted (over Lisa’s dissent) to reduce the number of

board meetings from six to one meeting per year. Lisa testified that Wes, Jr., Lee,

and Stacey reduced the number of meetings because they did not want to keep her

informed about SignAd Outdoor’s financial affairs and they wanted to push her out

of the family business.

According to Lisa, Wes, Jr., Lee, and Stacey also reestablished a defunct

executive committee that had not met since Brett, one of the committee members,

resigned in 2011. Wes, Jr. and Lee served on the committee and Brett had served

on the committee until he resigned in 2011. During the March 2013 meeting, Wes,

Jr., Lee, and Stacey, in their capacity as SignAd GP, LLC’s managers, voted to

17

appoint Stacey to fill Brett’s former position and serve on the committee along with

Wes, Jr. and Lee. As a result of Stacey’s appointment, Lisa was the only board

member excluded from the committee.

Stacey testified that when Lisa arrived at the March 2013 board meeting, she

was “very tense, agitated, [and] looking for a fight.” According to Stacey, Lisa

became increasingly angry and argumentative during the meeting. Lisa would get

very angry, yell at all the board members, and call the members names each time

one of her motions failed during the meeting. Stacey testified that Lisa was

repetitive, argumentative and “wasn’t really paying attention to what was even being

discussed in the meeting.” Stacey testified that this behavior was not normal for

Lisa.

Stacey also testified that Lisa’s behavior during the meeting was “definitely”

comparable to their mother’s and sister’s behavior. When asked if she believed that

Lisa posed a danger to herself in March 2013, Stacey testified that she believed that

Lisa “could have been” and she felt it was a “possibility.” When asked if she

believed that Lisa posed a danger to others, Stacey answered, “Possibly.”

Wes, Jr. testified that Lisa’s behavior at the meeting “was by far the worst [he

had] seen” and it made him “[e]xtremely concerned.” He testified that:

She was extremely volatile and manic. Her eyes were just not normal,

kind of glazed over with anger. Threatening, you know, similar threats

that she had made. And claims of theft; and some were claims that just

elevated to a whole ‘nother level, even for Lisa.

18

Mark also observed that Lisa was “very agitated,” it was “more than just being

upset,” and it was “scary” because he had never seen her act that way.

Although Lisa left after the board meeting ended, Officer Stevens stayed

behind at the request of the remaining board members. Wes, Jr. testified that right

after the board meeting, Officer Stevens told him she was an expert in mental health

issues, and she advised him that Lisa was mentally ill and that they needed to “take

precautions.” According to Wes, Jr., he was alarmed about Officer Steven’s

statements because although he knew this information, “hearing it from a

professional who’d seen it and dealt with it was totally an eye opener for me.” Wes,

Jr. testified that he took Officer Steven’s statements as a warning about Lisa’s mental

health and that she posed a potential security risk to him, his family, and SignAd

Outdoor employees. Wes, Jr. testified that Officer Steven’s statements prompted

him “to go to the next step” and talk to his siblings about the need “to really take

Lisa seriously” and “do what [they can do] to get her help.” After the board meeting,

Wes, Jr., Lee, and Stacey talked about their concerns for Lisa and her well-being.

Officer Stevens testified that she spoke to Wes, Jr. after the board meeting and

told him she worked in the Houston Police Department’s threat management unit.

Officer Stevens denied telling Wes, Jr. that she had background or expertise in

mental health and could recognize someone with mental health issues. She also

denied telling Wes, Jr. that he had a “potential problem” and needed “to take

19

precautions.” Officer Stevens testified that she did not think it was reasonable for

Wes, Jr. to consider their conversation as “a warning not only about Lisa’s mental

health but about also potential security for [Wes, Jr.], his family, and his co-

workers.”

B. Lisa’s Involuntary Commitment

Several days after the March board meeting, and with Lee’s and Stacey’s

blessing, Wes, Jr. filed an “Application for Temporary Mental Health Services”

(“Commitment Application”) on March 25, 2013, in which he swore that Lisa was

mentally ill, likely to cause serious physical harm to herself and others, suffered from

abnormal mental, emotional, or physical distress, and presented a substantial risk of

serious physical harm if not immediately restrained. Wes, Jr. was already familiar

with the involuntary commitment process because he had filed applications to have

his mother and older sister, Sheree, committed years before.

In the required affidavit that accompanied the Commitment Application, Wes,

Jr. averred that Lisa had “made threats and claims that myself, my accountant, my

employees, brothers and sister had stolen millions of dollars from her.” He also

averred that Lisa had hired an off-duty police officer to accompany her to a board

meeting to “protect her from myself and others.” According to Wes, Jr., the officer

told him that Lisa was mentally ill, and she gave him her card because he might

“need her to help or testify to Lisa’s illness.” Although Wes, Jr. further averred that

20

Lisa was “very volatile and threatening toward[s] [himself] and others,” Wes, Jr.,

did not describe the nature or content of any alleged threats.

On March 26, 2013, based on Wes, Jr.’s Commitment Application and

supporting affidavit, the probate court issued an Emergency Apprehension and

Detention Warrant for Lisa. That afternoon, two Harris County Constables arrived

at Lisa’s home, took her into custody, and brought her to the Harris County

Psychiatric Center (“HCPC”) for an involuntary psychiatric examination.

At the HCPC, Lisa was housed in a small cell-like room with a woman who

talked to imaginary people and repeatedly threatened to kill Lisa. Lisa testified that

she constantly feared the woman would attack her. In the common area of the

facility, a deranged man was running around and screaming in a frightening manner.

Lisa testified the experience horrified her, not only because she feared she would be

assaulted or killed by a mental patient, but also because she feared she would be

locked away in a mental hospital for weeks, with no independence, as her mother

had been. According to Lisa:

These were my partners in business, my siblings that I trusted 1,000

percent and our father had just died. And I really felt like, you know,

my life as it had been was going to change and they were going to throw

me in the State hospital at Rusk or something like they had done to my

mother; and it was very scary. And I have this wonderful daughter who

is my whole world. And it’s like they plotted this whole thing just

because of money.

21

The evening of her arrival at the HCPC, Lisa was taken to an examination

room where Dr. Crispa Aeschbach Jachmann (“Dr. Jachmann”) physically examined

Lisa, including collecting blood and urine samples, and asked her questions. Lisa

testified that the interview lasted only ten or fifteen minutes, but other evidence

suggests it might have been longer. According to Lisa, Dr. Jachmann told her that

she had been talking to Wes, Jr. and he had informed her that Lisa had been mentally

ill her entire life and was “threatening everybody.”13

After examining Lisa, Dr. Jachmann signed a one-page Certificate of Medical

Examination form stating that Lisa was mentally ill and a danger to herself and

others. Dr. Jachmann initially diagnosed Lisa with a psychotic disorder not

otherwise specified. The next day, however, Lisa was released from the facility with

no restrictions, medications, or any recommended follow-ups. The HCPC

multidisciplinary discharge document specifies that at discharge, Lisa was “Normal,

not ill at all,” there had been “[n]o change” in her condition since she was admitted

the day before, and that she had been “[a]dmitted for family dispute possibly inn

[sic] appropriately.”

13

Wes, Jr. denied speaking to Dr. Jachmann and claimed he had never even heard of

her until trial. Dr. Jachmann did not testify at trial.

22

C. Safety Meeting and Comments to Employees

Wes, Jr. testified that he locked Lisa out of the SignAd Outdoor building

before the March board meeting and warned employees not to speak with her. He

explained that he did not want his employees to speak with Lisa or “cross her path”

because he wanted to protect the employees’ safety.

After Lisa was released from the HCPC, Wes, Jr. called an early morning

safety meeting at SignAd Outdoor’s offices. At least five of SignAd Outdoor’s staff

attended the meeting. During the meeting, Wes, Jr. reminded everyone to keep the

doors locked and advised them to be aware of their surroundings.

SignAd Outdoor’s sales and marketing director, Stacey Laycock (“Laycock”),

attended the meeting. When she asked Wes, Jr. afterward what had prompted the

meeting, he explained to her that “they were having issues with [Lisa], that he was

concerned that she was ill and that he just was trying to [take] precautions.” Laycock

did not ask Wes, Jr. what he meant when he stated Lisa was ill. Laycock’s

understanding of Wes, Jr.’s comments about Lisa being ill was only that Lisa was

struggling because their dad had just died. Laycock was left with the understanding

that Wes, Jr. did not want Lisa in the building, but not because Lisa was a physical

threat to anyone.

When asked if she could “recall whether or not [she was] aware in March of

2013 about any commitment proceedings involving” Lisa, Laycock replied, “I

23

recall—I think that’s been discussed, yes.” When asked if Wes, Jr. or anyone else

at SignAd Outdoor made her aware that an attempt had been made to have Lisa

involuntarily committed, Laycock testified:

I know that there was a meeting about safety just to make sure that the

doors were kept secured. I know that Wes was upset because he felt

that his sister was ill, and that he was upset, I mean, tearful when he

and I talked about just safety in general and that he had to have that

meeting at all to secure the building for everyone’s safety.

Laycock testified she did not recall whether her conversation with Wes, Jr. occurred

before or after Wes, Jr. had Lisa committed, but she assumed that it occurred

afterward because she “did not know anything prior to” the commitment.

On another occasion, Mark thought he saw Lisa’s car in SignAd Outdoor’s

parking lot, and he told a small group of two or three people, including Terry, to “be

careful” because Lisa was outside. According to Mark, one employee checked to

see if the office door was locked while the others returned to their offices. Mark

denied telling the group that they were in danger; “I just said be careful . . . That

she’s here.” When asked what he meant by his remarks, Mark replied, “Just to be

careful, make sure the doors are locked. We knew that [Lisa] wasn’t to be in the

building. And sometimes the doors aren’t locked, the roll-up doors could be open.”

When asked if he meant to convey to employees that Lisa “is not welcome at

SignAd” when he told them “to be careful,” Mark replied, “I think they already knew

that.” Mark also testified, “I wanted to make sure that if it was her that we took

24

whatever measures to remain safe and secure in the building so that no one would

be injured or who knows what might happen.”

Mark testified that prior to Wes, Sr.’s death, he had never observed any

employees of SignAd Outdoor be fearful of Lisa. He had also never seen Lisa be

anything but respectful to employees before the March board meeting. According

to Mark, Lisa seemed to get along well with everyone at SignAd Outdoor. Lisa’s

behavior at the March 2013 board meeting was the only basis for Mark’s concern

that Lisa posed a threat to employees. According to Mark, “[i]t would be too

disruptive to the business” if Lisa were allowed in SignAd Outdoor’s offices. “Well,

had you seen how she carried on at the last meetings, I mean, there is just no way of

making sure that everyone would be safe. It’s just too––it’s just not a good idea I

don’t believe in, in the current situation.” Mark added that when he asked Lisa why

she brought an off-duty police officer with her to the board meeting, Lisa told him

that “she didn’t feel safe.” When asked if he perceived Lisa’s statement that she did

not feel safe “as a threat that she might harm somebody within SignAd,” Mark

replied, “You never know.” Mark stated he was not sure if Lisa would harm anyone:

But I felt like she––I didn’t know what she was capable of. Well, she

was very agitated. And I have known her for a long time and I’ve never

seen her act the way that she did . . . . And it was scary. It was more

than just being upset. That’s why I said before I thought well, gee, I

wonder if she’s taking something. It just didn’t quite seem like her.

25

When asked if he feared Lisa “was going to come on the premises and hurt an

employee not Wes, Jr,” Mark replied, “It’s possible, yes.”

D. Accounting Firm and Audit of the Company Appellants

On March 27, 2013, the day Lisa was released from the HCPC, Lisa hired new

lawyers at Strasburger & Price, and she met with and retained a forensic accountant,

Sheila Enriquez (“Enriquez”). Lisa hired Enriquez to conduct a forensic audit of

SignAd, Ltd. and its related entities, Ben Nevis West, Ltd., Big Eastex #1 Ltd.,

Realty Acquisitions and Holdings, LLC, Hang ’Em High, Ltd., Buyers Investment

Group, Inc., Big Signs & Leasing #1–#6 Ltd., and Big Leasing, LLC. Lisa requested

the audit because she had noticed “red flags” that were causing her concern,

including personal expenses being run through the company, excessive charges to

company credit cards, and significant giveaways of billboard space, all without

explanation.

Enriquez identified the records she needed to conduct her audit and worked

with Lisa and Strasburger & Price who made the requests for the accounting

documents. The parties entered into a confidentiality agreement and SignAd

Outdoor began producing some information to Lisa’s attorneys in June 2013. Wes,

Jr. testified that Lisa violated the Confidentiality Agreement.

26

E. The Lawsuit

On December 13, 2013, Lisa sued Wes, Jr., Lee, Stacey, Mark, the Limited

Partnerships, the General Partners, and others for violating her right to access and

copy the books and records of the company and for an accounting, oppression,

breach of fiduciary duty, unjust enrichment, defamation, false imprisonment, and

conspiracy. She sought to recover damages, injunctive relief, and a buyout of her

interests in SignAd Outdoor. Lisa later amended her pleadings to include claims for

breach of contract, declaratory judgment, breach of fiduciary duty (both direct and

derivative), statutory oppression, defamation, malicious prosecution, conspiracy,

dissolution, and constructive trust. The Individual and Company Appellants asserted

counterclaims against Lisa, including claims for equitable or judicial expulsion of

Lisa’s interest from the Limited Partnerships.14

The case was tried to a jury. After a four-week trial on several claims, the

trial court submitted a seventy-six-page jury charge with a total of sixty

interrogatories to the jury.15 The jury returned a unanimous verdict finding that

(1) Wes, Jr. had maliciously prosecuted the involuntary commitment proceeding

against Lisa, (2) Lee and Stacey had conspired in the malicious prosecution of Lisa,

and (3) Wes, Jr. and Mark had defamed Lisa. The jury further found that (4) Wes,

14

See TEX. BUS. ORGS. CODE § 152.501(b)(5)(C) (judicial decree of expulsion).

15

The last two interrogatories are misnumbered.

27

Jr. had breached his fiduciary duties to SignAd, Ltd., (5) SignAd GP, LLC, Wes, Jr.,

Lee, Stacey, and Mark had breached their fiduciary duties to SignAd, Ltd., (6) Wes,

Jr., Lee, and Stacey had breached their fiduciary duties to SignAd GP, LLC, (7) the

General Partners had improperly denied Lisa access to the books and records of the

company, and (8) the governing persons of the Limited Partnerships and two of the

General Partners had engaged in oppressive conduct. The jury also found that

(9) Brett, Lee, and Mark were in a relationship of trust and confidence with Lisa;

and (10) Lee had breached his fiduciary duties to Lisa. Finally, the jury found that

(11) Lisa had engaged in conduct relating to the partnership business of the Limited

Partnerships “that [made] it not reasonably practicable to carry on the business in

partnership” with her; and (12) Wes, Jr., Stacey, Lee, SignAd GP, LLC, Culcreuch

West, LLC, Realty Acquisitions & Holdings, LLC, and Big Leasing, LCC had not

engaged in such conduct.

The jury awarded Lisa actual damages on her claims for malicious

prosecution, defamation, and breach of fiduciary duty. The jury also awarded her

punitive damages on her claims for malicious prosecution and defamation. By

agreement, the parties tried all issues relating to attorney’s fees to the bench through

written submissions.

On November 17, 2016, the trial court signed a final judgment based on the

jury verdict and its own findings on attorney’s fees and in equity. The trial court

28

reduced the punitive damage award against Wes, Jr. for malicious prosecution to

comply with the applicable statutory cap but otherwise awarded judgment in favor

of Lisa for the actual and punitive damages found by the jury. The final judgment

also awarded Lisa declaratory relief, injunctive relief, the appointment of a

rehabilitative receiver, and attorney’s fees. Two months later, based on a timely

filed post-judgment motion, the trial court signed an amended final judgment to

clarify its original judgment and to correct mistakes, omissions, and clerical errors

in the original judgment (“Amended Final Judgment”).

The Individual and Company Appellants assert a litany of issues on appeal.

To the extent the parties’ issues overlap, we address those issues collectively. Unless

otherwise stated, we address the remaining issues separately.

Discussion

The Individual and Company Appellants both challenge Lisa’s standing to

bring derivative claims on behalf of SignAd GP, LLC. Because standing is a

necessary component of subject matter jurisdiction, we address that issue first.

Standing

The Individual and Company Appellants argue that all relief granted in the

Amended Final Judgment based on the derivative claim Lisa asserted on behalf of

SignAd GP, LLC for breach of fiduciary duty against Wes, Jr., Lee, and Stacey

should be reversed. They argue Lisa has no ownership interest in SignAd GP, LLC,

29

and thus she lacks standing to bring derivative claims on its behalf. With respect to

this claim, the jury found that Wes, Jr., Lee, and Stacey breached their fiduciary

duties to SignAd GP, LLC by (a) failing to maintain internal controls on employee

fringe benefits and (b) selling company vehicles for less than fair market value. The

jury awarded a total of $501,193 in damages for this claim. The Amended Final

Judgment awarded Lisa one-sixth of the damage award under Section 153.405 of the

Texas Business Organizations Code (“TBOC”).

Standing is a constitutional prerequisite to maintaining suit. Sneed v. Webre,

465 S.W.3d 169, 179–80 (Tex. 2015); Tex. Ass’n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440, 443–44 (Tex. 1993). Generally, unless standing is conferred by

statute, “a plaintiff must demonstrate that he or she possesses an interest in a conflict

distinct from that of the general public, such that the defendant’s actions have caused

the plaintiff some particular injury.” Sneed, 465 S.W.3d at 180 (quoting Williams v.

Lara, 52 S.W.3d 171, 178–79 (Tex. 2001)). “The issue of standing focuses on

whether a party has a sufficient relationship with the lawsuit so as to have a

justiciable interest in its outcome.” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d

845, 848 (Tex. 2005) (citation omitted). “The general test for standing in Texas

requires that there ‘(a) shall be a real controversy between the parties, which (b) will

be actually determined by the judicial declaration sought.’” Tex. Ass’n of Bus., 852

S.W.2d at 446 (quoting Bd. of Water Eng’rs v. City of San Antonio, 283 S.W.2d 722,

30

724 (Tex. 1955)). A party’s lack of standing deprives a court of subject matter

jurisdiction and renders any trial court action void. Phillips v. Phillips, 244 S.W.3d

433, 434–35 (Tex. App.—Houston [1st. Dist.] 2007, no pet.).

Lisa acknowledges that she does not have an ownership interest in SignAd

GP, LLC. Indeed, SignAd GP, LLC is “a single member limited liability company

owned by [Stacey Gilbreath] Powell.” Despite her lack of an ownership interest in

SignAd GP, LLC, Lisa argues she has standing to file suit on its behalf because she

is a beneficial owner of one-sixth of the entire “SignAd Enterprise,” of which

SignAd GP, LLC is a part, and she is also a permanent member of SignAd GP, LLC’s

Board of Managers.16 Lisa’s argument hinges on her theory that the SignAd entities,

all of which undisputedly are distinct and separate legal entities, constitute a single

“integrated business.” Lisa’s argument is unavailing.

Lisa never pleaded an enterprise theory or obtained findings that would allow

us to disregard the fact that SignAd GP, LLC, on whose behalf Lisa sued, and

SignAd, Ltd., the entity in which Lisa has an ownership interest, are two separate

entities. See Docudata Records Mgmt. Servs., Inc. v. Wieser, 966 S.W.2d 192, 197

(Tex. App.—Houston [1st Dist.] 1998, pet. denied) (stating that under Texas law,

“the separate identity of corporations will be observed by the courts, even in

instances where one may dominate or control the other, or may even treat it as a

16

Lisa has a one-sixth ownership interest in the Limited Partnerships.

31

mere department, instrumentality or agency of the other”) (quoting Pulaski Bank &

Trust Co. v. Tex. Am. Bank, N.A., 759 S.W.2d 723, 731 (Tex. App.—Dallas 1988,

writ denied)).

Moreover, the TBOC, which sets forth the parameters for derivative

proceedings for limited liability companies, states that a “member” of a closely held

limited liability company may bring a derivative suit on behalf of the LLC, and

further identifies when such derivative actions are permitted. See TEX. BUS. ORGS.

CODE §§ 101.452, .463. Under the TBOC, Lisa’s status as a board member of

SignAd GP, LLC does not confer standing on her to bring a derivative suit on behalf

of the entity. Stacey, as the single member of SignAd GP, LLC, is the person who

has standing to assert a derivative claim on behalf of the LLC; Lisa does not.

Lisa argues that because Section 101.463 of the TBOC does not state that

derivative standing is strictly limited to owner-members of an LLC, she can establish

standing. Without argument or explanation, she then cites to Neff v. Brady, 527

S.W.3d 511 (Tex. App.—Houston [1st Dist.] 2017, no pet.) adding a parenthetical

stating that double-derivative standing17 is recognized where the “plaintiff is a

17

A double-derivative suit is based upon the “injury suffered indirectly by the parent

corporation, in which the shareholder does have an interest, as a result of injury to

the subsidiary.” Neff v. Brady, 527 S.W.3d 511, 522 (Tex. App.—Houston [1st

Dist.] 2017, no pet.) (quoting In re Bear Stearns Cos., Inc. Secs., Derivative, &

ERISA Litig., 763 F.Supp.2d 423, 538 (S.D.N.Y. 2011)); see Webre v. Sneed, 358

S.W.3d 322, 334 (Tex. App.—Houston [1st Dist.] 2011), aff’d, 465 S.W.3d 169

(Tex. 2015). A double derivate suit is a “vehicle for bringing a derivate suit across

32

beneficial owner of the entity harmed by [the] breach of fiduciary duty to an

affiliate.” To the extent Lisa argues Neff supports her argument that she has standing

to assert a claim on behalf of SignAd GP, LLC, we reject her argument.

Neff analyzes standing under the laws of Bermuda and Switzerland and does

not address whether Lisa, as a non-member of an LLC, can assert a derivative claim

on behalf of SignAd GP, LLC. Furthermore, Neff confirms that when, as here,

standing has been conferred through statute, “the statute itself serves as the proper

framework for the analysis.” Id. at 522. The “proper analysis is to determine

whether the claimant falls within the category of claimants upon whom the

Legislature conferred standing.” Nephrology Leaders & Assocs. v. Am. Renal

Assocs. LLC, 573 S.W.3d 912, 916 (Tex. App.—Houston [1st Dist.] 2019, no pet.)

(holding that “courts must determine whether a particular plaintiff has established

that he has been injured or wronged within the parameters of the statutory

language”); see also In re Sullivan, 157 S.W.3d 911, 915 (Tex. App.—Houston [14th

Dist.] 2005, orig. proceeding) (“[T]he judge-made criteria regarding standing do not

apply when the Texas Legislature has conferred standing through a statute.”);

Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 851 (Tex. App.—Fort Worth 2005, no

pet.) (“When standing has been statutorily conferred, the statute itself serves as the

a second degree of separation.” Neff, 527 S.W.3d at 534 (citation omitted).

“Typically, this takes the form of a suit brough by shareholders of a parent company

to assert the rights of a subsidiary.” Id.

33

proper framework for a standing analysis.”). Because Lisa is not a member of

SignAd GP, LLC, she does not “fall within the category of claimants upon whom

the Legislature [has] conferred standing” under the TBOC. See Nephrology

Leaders, 573 S.W.3d at 916; TEX. BUS. ORGS. CODE § 101.463.18

We sustain the Individual and Company Appellants’ challenge to Lisa’s

standing, reverse the trial court’s judgment with respect to Lisa’s derivative claim

filed on behalf of SignAd GP, LLC, and render judgment dismissing the claim for

lack of subject matter jurisdiction.19

18

Lisa contends that even if she lacks standing to sue on behalf of SignAd GP, LLC,

the Individual and Company Appellants’ argument “only raises an immaterial defect

in form of the jury question, which mistakenly (but harmlessly) presented the issue

to the jury in terms of a fiduciary obligation to SignAd GP instead of to SignAd,

Ltd.” We reject Lisa’s characterization of the argument. SignAd, Ltd. and SignAd

GP, LLC are distinct legal entities and any duties Wes, Jr., Lee, and Stacey may

owe to SignAd, Ltd. are not necessarily the same as any duties they may owe to

SignAd GP, LLC. See generally Docudata Records Mgmt. Servs., Inc. v. Wieser,

966 S.W.2d 192, 197 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (stating

that under Texas law, “the separate identity of corporations will be observed by the

courts”). Jury Questions 30 through 33 asked the jury to determine whether Wes,

Jr., Lee, and Stacey failed to comply with a duty they owed to SignAd GP, LLC, not

SignAd, Ltd. We cannot simply ignore the question and substitute another entity

for SignAd GP, LLC as Lisa suggests. The question presented is one of standing,

and as explained, Lisa does not have standing to bring a derivative claim on behalf

of SignAd GP, LLC.

19

The Company Appellants also argue the trial court abused its discretion by allowing

Sheila Enriquez, Lisa’s expert, to testify regarding the amount of damages

associated with this claim. Because we have concluded Lisa did not have standing

to bring the derivative claim in the first place, we do not need to address the

Company Appellants’ challenges to the evidence supporting damages for the claim.

Similarly, because we have determined that Lisa lacked standing to assert this

derivative claim, we need not address the Individual Appellants’ argument that the

34

Sufficiency of the Evidence

The test for legal sufficiency is “whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review.” City of Keller

v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). When conducting a legal sufficiency

review, “view the evidence in the light favorable to the verdict, crediting favorable

evidence if reasonable jurors could, and disregarding contrary evidence unless

reasonable jurors could not.” Id. at 807; see also Kroger Texas Ltd. P’ship v. Suberu,

216 S.W.3d 788, 793 (Tex. 2006). So long as the evidence falls within the zone of

reasonable disagreement, we may not substitute our judgment for that of the

factfinder. City of Keller, 168 S.W.3d at 822. Jurors are the sole judges of the

credibility of the witnesses and the weight to give their testimony and may choose

to believe one witness and to disbelieve another. Id. at 819.

A challenge to the legal sufficiency of the evidence by a party who did not

have the burden of proof on that issue will be sustained if, among other things, the

evidence offered to prove a vital fact is no more than a scintilla or the evidence

conclusively establishes the opposite of a vital fact. Id. at 810; see also Kroger Texas

Ltd., 216 S.W.3d at 793. Evidence does not exceed a scintilla if it is so weak as to

do no more than create a mere surmise or suspicion that the fact exists. Kroger Texas

award of “damages to SignAd, Ltd.” based on the jury’s answer to Jury Question 33

is erroneous because it does not conform to the verdict.

35

Ltd., 216 S.W.3d at 793 (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601

(Tex. 2004)).

A party attacking the legal sufficiency of an adverse finding on an issue on

which the party had the burden of proof must demonstrate that the evidence

conclusively establishes all vital facts in support of the issue. Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). A matter is conclusively

established only if reasonable people could not differ as to the conclusions to be

drawn from the evidence. See City of Keller, 168 S.W.3d at 816. If the evidence

shows there was a conflict, then the elements were not conclusively established. See

Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986).

Individual Appellants’ Issues

A. Malicious Prosecution

The jury found that (1) Wes, Jr. maliciously prosecuted Lisa by commencing

an involuntary commitment proceeding against her, (2) Lisa suffered $500,000 in

mental anguish damages, (3) Lee and Stacey conspired to maliciously prosecute

Lisa, (4) the harm to Lisa resulted from malice, and (5) Lisa should recover $875,000

in exemplary damages from Wes, Jr. (reduced to $500,000 in the Amended Final

Judgment), $500,000 from Lee, and $500,000 from Stacey. In their first and second

issues, the Individual Appellants argue that the judgment for Lisa on her malicious

prosecution claim should be reversed because (1) Lisa did not meet her burden to

36

establish that Wes, Jr. lacked probable cause to file the Commitment Application in

which he swore that Lisa was mentally ill and posed an imminent danger of harm to

herself and others, (2) alternatively, the trial court abused its discretion by excluding

evidence of Lisa’s mental health history,20 (3) the actual and punitive damages

awarded to Lisa for malicious prosecution should be eliminated or remitted because

the awards are excessive, and (4) the actual and punitive damages awarded against

Lee and Stacey should be reversed because there is insufficient evidence of malice.21

1. Applicable Law

“To prevail in a suit alleging malicious prosecution of a civil claim, the

plaintiff must establish: (1) the institution or continuation of civil proceedings

against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the

commencement of the proceeding; (4) lack of probable cause for the proceeding; (5)

termination of the proceeding in plaintiff’s favor; and (6) special damages.”

Airgas-Sw., Inc. v. IWS Gas & Supply of Tex., Ltd., 390 S.W.3d 472, 478 (Tex.

App.—Houston [1st Dist.] 2012, pet. denied) (quoting Tex. Beef Cattle Co. v. Green,

921 S.W.2d 203, 207 (Tex. 1996)).

20

The Individual Appellants argue that the court’s evidentiary errors not only explain

the insupportable verdict, but also the excessive damage awards.

21

The Individual Appellants do not appear to challenge the jury’s findings that (1)

Wes, Jr. acted with malice when he initiated the involuntary commitment

proceeding against Lisa (Jury Questions 1 and 4) and (2) Lee and Stacey were part

of a conspiracy to maliciously prosecute Lisa (Jury Question 3).

37

The law presumes that a defendant acted reasonably and had probable cause

to initiate the proceeding at issue in a malicious prosecution case. See Kroger Texas

Ltd., 216 S.W.3d at 794; Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517

(Tex. 1997). Therefore, the plaintiff bears the initial burden of disproving the

existence of probable cause. Kroger Texas Ltd., 216 S.W.3d at 794–95; Richey, 952

S.W.2d at 518. To rebut the presumption, the plaintiff must produce evidence that

the motives, grounds, beliefs, or other information upon which the defendant acted

did not constitute probable cause. Richey, 952 S.W.2d at 518. If the plaintiff rebuts

that presumption, the defendant is then required to carry the burden of proving the

existence of probable cause. Akin v. Dahl, 661 S.W.2d 917, 920 (Tex. 1983).

Probable cause in a malicious prosecution claim is evaluated from the

perspective of the person who initiated the proceeding at the time the proceeding

commenced. See Akin, 661 S.W.2d at 920; see generally Pettit v. Maxwell, 509

S.W.3d 542, 547 (Tex. App.—El Paso 2016, no pet.). Thus, “[i]t is the events prior

to the institution of the proceedings which must be examined, and only those events,

to determine if the defendants had probable cause to act.” Akin, 661 S.W.2d at 920.

“Events subsequent to the action of confinement and legal proceedings may tend to

show whether the action of the [defendant] turned out to be correct or incorrect, but

[they are] not material to the beliefs and motives at the time the proceedings were

instituted.” Id. Generally, whether probable cause existed is a question of law to be

38

decided by the trial court. See Richey, 952 S.W.2d at 518. If, however, the

underlying facts are in dispute, as in this case, this presents a mixed question of law

and fact for the jury. Id.; Akin, 661 S.W.2d at 920.

The civil proceeding on which Lisa premised her malicious prosecution claim

is the involuntary commitment proceedings Wes, Jr. commenced against her when

he filed the Commitment Application under Chapter 573 of the Texas Health and

Safety Code. A Commitment Application, which is referred to by the Health and

Safety Code as an “application for emergency detention,” must state:

(1) that the applicant has reason to believe and does believe that

the person evidences mental illness;

(2) that the applicant has reason to believe and does believe that

the person evidences a substantial risk of serious harm to

himself or others;

(3) a specific description of the risk of harm;

(4) that the applicant has reason to believe and does believe that

the risk of harm is imminent unless the person is

immediately restrained;

(5) that the applicant’s beliefs are derived from specific recent

behavior, overt acts, attempts, or threats;

(6) a detailed description of the specific behavior, acts,

attempts, or threats; and

(7) a detailed description of the applicant’s relationship to the

person whose detention is sought.

TEX. HEALTH & SAFETY CODE § 573.011(b).

39

2. Analysis

In their first issue, the Individual Appellants argue Lisa failed to establish a

lack of probable cause and thus they are entitled to judgment as a matter of law. The

jury was not asked to determine whether Stacey or Lee maliciously prosecuted Lisa

by attempting to have her committed. Instead, the jury was asked whether Wes, Jr.

maliciously prosecuted Lisa and whether Lee and Stacey conspired with Wes, Jr. to

maliciously prosecute her. Accordingly, we understand the Individual Appellants’

argument as a challenge to the sufficiency of the evidence supporting the jury’s

finding that Wes, Jr. initiated an involuntary commitment proceeding against Lisa

“with a lack of probable cause for the proceeding.”

Conspiracy is not an independent tort; it is a means to impose liability on Lee

and Stacey. See Agar Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136,

142 (Tex. 2019). Therefore, if the evidence is legally insufficient to support the

malicious prosecution claim against Wes, Jr., then we must also reverse the claim

against Lee and Stacey for conspiracy to commit malicious prosecution.22

22

The jury was not asked to determine whether Stacey or Lee acted without probable

cause. Instead, the jury was asked whether each was “part of a civil conspiracy to

maliciously prosecute Lisa.” The jury was instructed that to “be part of a

conspiracy,” Stacey or Lee “must have had knowledge of, agreed to, and intended

a common objective or course of action that resulted in the damages to Lisa Horan.”

They were further instructed that “[o]ne or more persons involved in the conspiracy

must have performed some act or acts to further the conspiracy.” The jury

separately answered “yes” as to Lee and Stacey.

40

The jury was instructed that to find Wes, Jr. committed malicious prosecution,

“you must find that” (1) “an involuntary commitment proceeding was instituted

against Lisa,” (2) “by or at the insistence” of Wes, Jr., and (3) “with a lack of

probable cause for the proceeding.”23 Probable cause was defined in the jury charge

as:

[T]he existence of such facts and circumstances as would excite belief

in a reasonable mind, acting on the facts or circumstances within his

knowledge at the time the proceeding was commenced, that the

commencement of the proceeding was proper.

Under the Health and Safety Code, the commencement of an involuntary

commitment proceeding against Lisa would have been proper only if, among other

things, Wes, Jr. had reason to believe and did believe that Lisa (1) “evidence[d]

mental illness,” (2) “evidence[d] a substantial risk of serious harm to [her]self or

others,” and (3) “the risk of harm [was] imminent unless [Lisa was] immediately

restrained.” TEX. HEALTH & SAFETY CODE § 573.011(b)(1)–(2), (4). The law

presumes Wes, Jr. acted reasonably and had probable cause to initiate the

involuntary commitment proceeding against Lisa. See Richey, 952 S.W.2d at 518.

To overcome the presumption, Lisa had to produce evidence that Wes, Jr. filed the

Commitment Application based on motives, grounds, beliefs, or evidence that did

not support a reasonable belief that the commencement of the proceeding was

23

The jury also had to find that the proceeding was instituted with malice, the

proceeding terminated in Lisa’s favor, and Lisa suffered special damages.

41

proper, i.e., a lack of probable cause. See Kroger Texas Ltd., 216 S.W.3d at 794. In

the absence of such evidence, the evidence is legally insufficient to support a finding

of lack of probable cause and, thus, Wes, Jr. is entitled to judgment as a matter of

law on Lisa’s malicious prosecution claim. See id. at 795.

Although disputed, Lisa presented some evidence that Wes, Jr. was motivated

to have her involuntarily committed because he wanted to remove her from the

Board of Managers of the General Partnerships. The record reflects that Lisa, Wes,

Jr., and the other siblings on the Company Appellants’ Boards of Managers had been

fighting for years over the management of the company after Wes, Jr. became

president of what is now SignAd GP, LLC. By the mid-2000s, the animosity among

the siblings, especially Wes, Jr. and Brett, had risen to the point where Lisa felt it

necessary to hire a corporate psychologist, Dr. Dempsey, to help them mediate their

disagreements and run their board meetings more effectively. Some of the siblings’

disputes, however, proved too difficult to overcome.

In 2011, Wes, Jr. accused Brett of stealing business away from the company,

fired Brett, locked him out of the company building, and at first refused to return

some of his belongings. This prompted Brett to resign from SignAd GP, LLC’s24

Board of Managers. According to Lisa, Brett had been one of her closest allies on

24

In his letter of resignation, Brett stated he was resigning from SignAd, Ltd.’s board.

At the time, however, Brett was serving on SignAd GP, LLC’s Board of Managers.

SignAd, Ltd. does not have a board.

42

the board. The other was her father, who resigned in 2012 because of his failing

health. Lisa testified that once her father and Brett were gone, it was just her against

Wes, Jr., Lee, and Stacey.

After their father died in January 2013, Lisa became concerned that Wes, Jr.

and the other trustees had breached their fiduciary duties to the Grandchildren’s

Trust, and she insisted on their resignations. Lisa explained that the repetitive emails

she had sent to her siblings on this topic had resulted from a computer malfunction.

She was also concerned about the way Wes, Jr. and others had been handling the

Company Appellants’ financial affairs and insisted on access to the companies’

books and records. Rather than responding to Lisa’s concerns or providing her with

the information she requested, Wes, Jr. told Lisa’s attorney that he would never

provide Lisa with access to the company’s books and records, and her brothers, Lee

and Brett, told Lisa to stop asking questions or else she could be removed from the

Board of Managers. Lisa, however, continued to ask questions about the

Grandchildren’s Trust and the business, and she demanded documents that Wes, Jr.

refused to provide. Like their brother Brett, Wes, Jr. locked Lisa out of the

company’s office and told employees not to communicate with her.

By most accounts, the siblings’ conflict came to a head during the March 2013

board meeting for SignAd GP, LLC. It is undisputed that Lisa became angry when

Wes, Jr. and others expressed concern about her mental state at the board meeting.

43

Although Wes, Jr. testified that Lisa appeared “volatile,” it is also undisputed that

Lisa never became violent or threatened physical violence against herself or anyone

else at the meeting. Terry Denman, who was present at the meeting, testified that

Lisa was argumentative and figuratively “looking for a fight,” but he “never thought

of Lisa as being physically a threat.” There was also testimony that other board

members, including Stacey, were also angry and yelled at Lisa during the meeting.

According to Terry, “[t]here [were] a lot of hard feelings expressed.”

Lisa, who had been a board member for almost thirty years, testified she was

justifiably angry during the board meeting because Wes, Jr. and the other board

members refused to answer her questions about the Grandchildren’s Trust and the

company’s financial affairs, voted against almost all her motions, voted over her

objection to meet only once a year instead of four to five times a year, and they called

her crazy. Lisa explained that she had to repeat herself at the meeting because the

other board members refused to answer her questions. Lisa also testified that she

brought Officer Stephens to the March 2013 board meeting because of the “hostility

that [she] was feeling and experiencing from [her] brothers,” as well as their

“aggressive attitude and controlling behavior.” According to Lisa, based on her

brothers’ threats and emails suggesting that her “fitness to serve” or lack thereof may

result in her removal from the board, she was concerned they would have her

“committed mentally and . . . removed from the board.”

44

Four days after the Board of Managers’ meeting, during which no further

incidents or further interactions between Lisa and her siblings took place, Wes, Jr.

filed an application to have Lisa involuntarily committed on the basis she was

mentally ill and likely to cause serious harm to herself or others. In the affidavit

Wes, Jr. filed in support of the Commitment Application, which was the sole basis

on which Lisa was committed, Wes, Jr. averred that “Lisa [had] made threats and

claims that myself, my accountant, my employees, brothers and sister had stolen

millions of dollars from her.” He also asserted that Lisa was not only “very repetitive

and asks the same questions over and over,” but she was also “very volatile and

threatening toward[s] myself and others.” He further averred that Lisa was “fixated

on the fact that I somehow have taken all of her money” and she was making

repeated calls to law enforcement.

Wes, Jr. also testified at trial that Lisa was causing problems for “SignAd”25

during this time by harassing employees and contacting the company’s accountants,

bankers, insurance companies, and vendors without proper authority. According to

Wes, Jr., Lisa contacted “SignAd’s” insurance company, and she may have filed a

claim on “SignAd’s” behalf, even though she was not authorized to do so. He

testified Lisa also contacted “SignAd’s” bank which posed a problem for the

25

The company is referred to as “SignAd” in Wes, Jr.’s testimony and it is not clear

if he is referring to SignAd GP, LLC, SignAd, Ltd., or all of the Limited Partnerships

and General Partners, collectively.

45

company and harmed its relationship with the bank because, according to Wes, Jr.,

“I’ve spent . . . a long time establishing some stability with the bank to be able to

borrow money and have a credit line with them.” Wes, Jr. was concerned that Lisa’s

conduct would have a negative impact on “SignAd’s” line of credit at the bank

because her involvement suggested possible instability and insecurity within the

company. Wes, Jr. also testified that Lisa had contacted the Texas Department of

Transportation and “they warned us that she had contacted them; and we were able

to, you know, explain to the best of our ability.”

When asked which employees Lisa had been harassing and threatening, Wes,

Jr. identified Terry Denman and Stacey Laycock. According to Wes, Jr., Lisa had

sent Terry emails that were “somewhat insistent and threatening” before the March

2013 board meeting. She had also demanded that Terry show her copies of her stock

certificates. Wes, Jr. admitted, however, that Lisa “can have the stock certificate

any time she wants. It’s how you go about requesting it.” According to Wes, Jr.,

Lisa was “being a little bit abrasive” and unnecessarily “forceful” in her emails to

Terry. Terry, however, testified that he “never thought of Lisa as being physically

a threat.” Lisa’s emails to Terry were admitted into evidence.

Wes, Jr. also testified that Lisa had been calling Laycock with lists of leads

Wes, Jr. considered useless. Wes, Jr. complained that Lisa was wasting the

company’s time because they “would have to dedicate time and effort and it cost the

46

company money to respond to” Lisa’s requests. According to Wes, Jr., Laycock

wanted to know how to respond to Lisa’s suggestions. He acknowledged that

Laycock never suggested she was scared or felt threatened by Lisa. Laycock

testified she was unaware Wes, Jr. had identified Lisa’s phone calls to her as one of

the reasons he thought Lisa was threatening employees in March 2013. Laycock

confirmed that Lisa never threatened her or made her fear for her physical safety.

Wes, Jr. testified that Lisa also “made it impossible to have an effective board

meeting” and she was “definitely one of the reasons” why the board began meeting

less often. He testified:

Q Assuming [Lisa is] not going to change, do you ever see yourself

getting along with Lisa as a member of the Board of Managers?

A No.

...

Q And so soon if you cannot vote Lisa off as a member of the Board

of Managers and you cannot get along with her, how do you

propose to get rid of her?

A I don’t know. I wish I had the answer to that.

Wes, Jr. denied, however, that his decision to initiate commitment proceedings

against Lisa was “motivated at all by wanting to kick [Lisa] off the board or out of

the company.” According to Wes, Jr., he was “just concerned for my sister’s

welfare. I want my sister back. I’m tired of seeing her like this. You know, I’m

tired of us having to deal with this.”

47

Based on the evidence presented, the jury reasonably could have concluded

that Wes, Jr. initiated the involuntary commitment proceedings against Lisa in

March 2013 because he believed Lisa was a disruptive presence who posed a threat

to the wellbeing of the company, and he needed to prove that Lisa was unfit to serve

to remove her from the Board of Managers. Thus, the record contains some evidence

supporting a finding that Wes, Jr. possessed a private motive to harm Lisa and

therefore acted on something other than a reasonable and honest belief that Lisa was

mentally ill and posed a substantial risk of imminent harm to herself or others unless

she was immediately restrained. See Tranum v. Broadway, 283 S.W.3d 403, 415–

16 (Tex. App.—Waco 2008, pet. denied) (holding there was some evidence

defendant did not have probable cause to bring theft charges against former business

partner, when defendant did not pursue criminal charges until after former business

partner sued defendant for slander and there was evidence defendant had pursued

theft charge against another prior business partner under similar circumstances); cf.

Kroger Texas Ltd., 216 S.W.3d at 795 (holding plaintiff did not rebut presumption

of probable cause and noting that plaintiff did not introduce “evidence of, for

example, prior bad relations . . . or any private motivation to harm her”).

To the extent Wes, Jr. and others testified that Lisa was behaving abnormally,

exhibiting signs of mental illness before her commitment, such as delusions, or

behaving in a threatening manner, it was the jury’s responsibility to resolve these

48

conflicts. See City of Keller, 168 S.W.3d at 819. As the sole judge of the witnesses’

credibility and the weight to be given to their testimony, it was the jury’s province

to determine what the underlying facts were at the time Wes, Jr. initiated the

commitment proceedings and whether the commitment was proper. Id. Based on

the conflicting testimony, the jury reasonably could have credited Lisa’s evidence

over the evidence presented by Wes, Jr. See id. (stating jurors are sole judges of

credibility of witnesses and weight to give their testimony).

Similarly, although Wes, Jr. averred in his Commitment Application affidavit

that Lisa was “very volatile and threatening toward[s] myself and others,” Wes, Jr.

did not identify any specific threats of violence or anything else that would indicate

Lisa posed a risk of substantial harm to herself or anyone else, much less that the

risk of harm “is imminent unless [Lisa] is immediately restrained.” TEX. HEALTH &

SAFETY CODE § 573.011(b)(2)–(6). The fact that Wes, Jr. did not initiate

commitment proceedings against Lisa until four days after the March 2013 board

meeting further supports the jury’s conclusion that Wes, Jr. did not have probable

cause to believe Lisa posed a substantial risk of imminent harm to herself or others.

See City of Keller, 168 S.W.3d at 819 (stating jury is sole judge of witnesses’

credibility and weight to be given their testimony and is responsible for resolving

any evidentiary conflicts).

49

Viewing the evidence and inferences in the light most favorable to the jury’s

finding, we conclude there is more than a scintilla of evidence supporting the jury’s

finding that Wes, Jr. lacked probable cause to initiate involuntary commitment

proceedings against Lisa based on the facts and circumstances known to Wes, Jr.

when he filed the Commitment Application on March 25, 2013. See Kroger Texas

Ltd., 216 S.W.3d at 793; City of Keller, 168 S.W.3d at 827.

To the extent Wes, Jr. attacks the jury’s finding that he did not meet his burden

to prove he acted with probable cause once Lisa rebutted the presumption of

probable cause, this argument is also unavailing. A party attacking the legal

sufficiency of an adverse finding on an issue on which the party had the burden of

proof must demonstrate that the evidence conclusively establishes all vital facts in

support of the issue. Dow Chem. Co., 46 S.W.3d at 241. A matter is conclusively

established only if reasonable people could not differ as to the conclusions to be

drawn from the evidence. See City of Keller, 168 S.W.3d at 816.

Wes, Jr. argues that probable cause was established as a matter of law based

on Dr. Jachmann’s sworn certificate of medical examination where Dr. Jachmann

stated Lisa was mentally ill and an imminent danger to herself and others when she

was first committed. Wes, Jr.’s reliance on Dr. Jachmann’s certificate is misplaced.

The sworn certificate was executed after Wes, Jr. began the commitment

proceedings against Lisa by filing the Commitment Application for emergency

50

detention. Because Dr. Jachmann’s sworn certificate was not created until after

Wes, Jr. initiated the commitment proceeding, it is “not material to [Wes, Jr.’s]

beliefs and motives at the time the proceeding[] [was] instituted,” and therefore, the

sworn certificate does not establish the existence of probable cause as a matter of

law. See Akin, 661 S.W.2d at 920 (“Just as his eventual adjudication as sane and his

subsequent release was not evidence of a lack of probable cause, the initial

determination of a lack of competency made shortly after his confinement was not

evidence of probable cause.”); see also Pettit, 509 S.W.3d at 549 (stating erroneous

admission of subsequently discovered information was harmless because evidence

is immaterial to defendant’s state of mind for purposes of establishing probable

cause in malicious prosecution case).

As previously discussed, there is also conflicting evidence regarding the facts

and circumstances underlying Wes, Jr.’s decision to initiate involuntary commitment

proceedings against Lisa. It was the jury’s province to resolve these conflicts, assess

the credibility of the witnesses, and determine how much weight, if any, to accord

their testimony. See City of Keller, 168 S.W.3d at 819. Given the record before us,

we cannot say that the evidence conclusively establishes the existence of probable

cause. See Hathaway, 711 S.W.2d at 229 (stating element is not conclusively

established when evidence is conflicting).

We overrule the Individual Appellants’ first issue.

51

B. Exclusion of Evidence of Lisa’s Mental Instability

The Individual and Company Appellants argue the trial court abused its

discretion by excluding evidence of Lisa’s past mental instability.

1. Standard of Review and Applicable Law

A trial court’s exclusion of evidence is reviewed for abuse of discretion. JBS

Carriers, Inc. v. Washington, 564 S.W.3d 830, 836 (Tex. 2018). On appeal, the

court must uphold the evidentiary ruling if there are any grounds to support it, even

if those grounds were not asserted or cited in the trial court as the basis for the ruling.

K.J. v. USA Water Polo, Inc., 383 S.W.3d 593, 610 (Tex. App.—Houston [14th

Dist.] 2012, pet. denied).

Relevant evidence is presumed to be admissible. TEX. R. EVID. 402. Evidence

is relevant if “(a) it has any tendency to make a fact more or less probable than it

would be without the evidence; and (b) the fact is of consequence in determining the

action.” TEX. R. EVID. 401. Pursuant to Rule 403, relevant evidence may be

excluded “if its probative value is substantially outweighed by a danger of one or

more of the following: unfair prejudice, confusing the issues, misleading the jury,

undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403.

Even if a trial court abuses its discretion by excluding evidence, the error is

not reversible unless it “probably caused the rendition of an improper judgment.”

TEX. R. APP. P. 44.1(a)(1). In making this determination, we “evaluate the entire

52

case from voir dire to closing argument, considering the evidence, strengths and

weaknesses of the case, and the verdict.” Serv. Corp. Int’l v. Guerra, 348 S.W.3d

221, 236 (Tex. 2011); see also State v. Cent. Expressway Sign Assocs., 302 S.W.3d

866, 870 (Tex. 2009) (stating standard does not require complaining party “to prove

that ‘but for’ the exclusion of evidence, a different judgment would necessarily have

resulted”). “The role that the excluded evidence played in the context of the trial is

important.” Cent. Expressway Sign Assocs., 302 S.W.3d at 870. If the excluded

evidence was crucial to a key issue, the error is likely harmful. Id. In other words,

when assessing harm, we are required to assess whether the excluded evidence is

controlling on a material issue in the case and would not have been cumulative of

other evidence in the case. See Manon v. Solis, 142 S.W.3d 380, 393 (Tex. App.—

Houston [14th Dist.] 2004, pet. denied) (citing Tex. Dep’t of Transp. v. Able, 35

S.W.3d 608, 617 (Tex. 2000)).

2. Analysis—Individual Appellants

The Individual Appellants argue that the excluded evidence detailing Lisa’s

past mental instability was admissible to establish Wes, Jr.’s state of mind. They

argue the evidence contextualized his observations and supported his reasonable

belief that Lisa was mentally ill and posed a substantial risk of serious harm to herself

or others when he initiated the involuntary commitment proceeding.

53

The Individual Appellants argue the trial court abused its discretion by

excluding Wes, Jr.’s testimony that Lisa physically assaulted him with a desk drawer

in 1992 after he discovered entries in her day planner indicating to him that she might

be delusional, and he confronted her about his concerns. Wes, Jr. would have

testified that, 21 years earlier, Lisa had noted in her calendar that she had lunch plans

with President Reagan and dinner plans with the King of Spain.26

The trial court also excluded evidence that Lisa had been claiming for years

that the mafia was harassing her. Wes, Jr. would have testified that Lisa told him

and Stacey in the early to mid-1990s that the mafia was harassing her, and that Lisa

had told Stacey in the 1980s that the mafia had bugged an apartment they shared in

Tulsa, Oklahoma.27 Wes, Jr. also would have testified that he had expressed his

concerns to Lisa “[m]ultiple times over the last several years” over Lisa’s “fixation

with the Mafia.” Stacey would have offered similar testimony about Lisa’s concerns

about the mafia.

26

Lisa disputes Wes, Jr.’s version of events and explains in her sur-reply that: “Wes

Jr. probably read in Lisa’s day planner that she had an appointment involving King

of Prussia, which is a shopping mall in Philadelphia, Pennsylvania. Lisa owned a

fashion design business called Diamondi, Inc. in the King of Prussia mall at that

time. And Wes Jr. may have read in Lisa’s day planner that Lisa, who was a member

of the Republican National Committee Inner Circle at that time, planned to attend a

political luncheon where a former U.S. President was scheduled to speak. Indeed,

the Gilbreath family has been involved in Republican politics for many years. Wes

Gilbreath, Sr. even ran for the U.S. Senate in 1988.”

27

The trial court also excluded similar testimony from Stacey.

54

Brett would have testified at trial about text messages he and Lisa exchanged

in May 2012 that made him concerned about Lisa’s mental health. Lisa wrote to

Brett

I have had so many problems with the Mafia. I don’t want them trying

to take our company. Thus, I don’t want an outsider coming in.

Understand? They finally have quit bothering me for the most part, and

I’m not referring to Lou. It has been a really tough battle.

Brett replied, “Don’t share that with family.” Brett also would have testified that

based on this text exchange, he was worried Lisa was experiencing “a major setback

of mental illness” and he “was just real concerned over her.” According to Brett, he

was aware Lisa had told other family members that she was being harassed by the

mafia. “This had been a recurring thing over the years, and that’s concerning to me.”

Brett also had other “personal experiences with Lisa that caused [him] a significant

concern about her mental condition.” Brett would have testified that, in 2012, he

was worried Lisa “might not be able to pass the fitness test and she might be having

a breakdown that could be more serious than some of the episodes she had before.”

“I was very worried about her being overstressed and that she could be having a

breakdown.”

The trial court also excluded testimony that a physician and family therapist

believed Lisa was suffering from a mental illness in 2011. Specifically, the trial

court excluded excerpts from John Horan’s deposition, Lisa’s ex-husband (“John”),

in which he testified he had received telephone calls from two doctors who were

55

concerned because Lisa had taken Noelle, their daughter, to the emergency room

several times over a two-week period, even though there was nothing apparently

wrong with Noelle. John testified that one of the doctors told him she believed Lisa

was suffering from Munchausen syndrome by proxy.

John mentioned the repeated emergency room visits when he and Lisa

attended family counseling in 2011. The family therapist told John she did not think

Lisa suffered from Munchausen by proxy. Rather, she believed Lisa suffered from

Borderline Personality Disorder and/or Histrionic Personality Disorder and that

Lisa’s behavior “was part of histrionic, where Lisa was doing it to be the center of

attention.” Wes, Jr. would have testified that John told him about the family

therapist’s comments and he was concerned by them because he understood them

“to be a medical diagnosis finding that Lisa suffered from a mental illness.”

Brett and Stacey had also spoken to Lisa about these events, and they would

have provided similar testimony regarding their concerns about Lisa’s behavior.

Brett would have testified that he became very concerned about Lisa and her

daughter, Noelle, in 2011 after speaking with Lisa’s then husband, John. At that

time, Brett called Lisa about John’s allegations

My topic of concern was Lisa had taken Noelle to the hospital

approximately ten times in a two-week period, and we were really

concerned that nothing was wrong with Noelle and that Noelle might

begin thinking something was wrong with her.

56

According to Brett, Lisa did not deny or try to explain John’s allegations and her

silence on the matter caused Brett further concern. Brett believed Lisa was behaving

irrationally and he asked her to stop.

Wes, Jr. would also have testified that Lisa filed several criminal complaints

against him after she was released from the HCPC, none of which were successful.

She had also told a Houston Police Department officer in 2014 that she believed

Wes, Jr. and her ex-husband, John, were trying to intimidate her by deliberately

placing nails in her driveway. Lisa claimed that one of the tires on her car had been

punctured by two nails and she found several similar nails in her driveway and there

was no obvious explanation for them being in her driveway. She also suspected that

Wes, Jr. and John had been trying to intimate Frank Shepard, a Gilbreath relative

who had assisted Lisa with one of the criminal complaints she had initiated against

Wes, Jr. for wrongful psychiatric commitment, because one of the tires on Frank’s

wife’s car blew out while she was driving down the highway a week later.

There is no evidence that Stacey, John, or Brett––the three witnesses who

would have testified about these events––told Wes, Jr. about the repeated medical

visits or concerns that Lisa had Munchausen by Proxy Syndrome before he initiated

the commitment proceedings against Lisa.28 Brett testified that he never told anyone

28

Notably, the record also reflects that Wes, Jr. did not believe Lisa posed a substantial

risk of harm to Noelle when he filed the Commitment Application in March 2013.

57

about the 2012 text message or the two-week period in 2011. Because probable

cause in a malicious prosecution claim is evaluated from the perspective of the

person who initiated the proceeding at the time the proceeding commenced,

information possessed by others, but unknown to Wes, Jr., is not relevant to

determine whether Wes, Jr. acted with probable cause when he initiated the civil

commitment proceeding against Lisa. See generally Akin, 661 S.W.2d at 921 (“It is

proper for the trier of fact to consider all evidence which the prosecutor of the action

knew or should have known relative to the condition of the plaintiff and upon which

evidence the prosecutor based or should have based his action.”).

Similarly, evidence of claims or statements Lisa made after the commitment

proceeding is not relevant to determine whether Wes, Jr. had probable cause when

he filed the Commitment Application in March 2013. See TEX. R. EVID. 401; Akin,

661 S.W.2d at 920 (stating that “it is the events prior to the institution of the

proceedings which must be examined, and only those events, to determine if the

defendants had probable cause to act,” and that subsequent events “are not material

to the beliefs and motives at the time the proceedings were instituted”); see also

Pettit, 509 S.W.3d at 548–49 (stating subsequently discovered information is

immaterial to defendant’s state of mind for purposes of establishing probable cause).

Specifically, Wes, Jr. testified that it was not necessary for him to check on Noelle’s

welfare after Lisa was released from HCPC because he “never expected her to harm

Noelle.”

58

Evidence that Lisa physically assaulted Wes, Jr. on one occasion in 1992, after

he told her he was worried she was mentally unstable is of little probative value with

respect to whether, 21-years later in March 2013, Lisa posed a substantial and

imminent risk of serious harm to Wes, Jr., or anyone else, unless she was

immediately restrained. See TEX. HEALTH & SAFETY CODE § 573.011(b)(1)–(2), (4).

The same is true with respect to the testimony about Lisa’s behavior in the 1980’s

and 1990’s.

While the excluded evidence could have provided additional detail regarding

Wes, Jr.’s claims of Lisa’s past mental instability, the exclusion of this evidence was

not crucial with respect to whether Wes, Jr. had probable cause years or decades

later in March 2013, to initiate commitment proceedings against Lisa. We further

note that the record includes other evidence that, if the jury believed, could have

supported Wes, Jr.’s argument that he had probable cause. For example, there is

evidence Wes, Jr. and other family members had concerns about Lisa’s mental health

for decades, the symptoms of mental illness Lisa allegedly exhibited in the weeks

leading up to the involuntary commitment proceeding, including her behavior during

the March 21, 2013 board meeting, and Wes, Jr.’s past experiences with his mother

and sister Sheree that informed his opinions about the state of Lisa’s mental health

and the threat she allegedly posed to herself or others as a result of her alleged mental

illness. There is also evidence in the record that Lisa was diagnosed with a mental

59

illness in March 2013—the HCPC records reflect that Dr. Jachmann diagnosed Lisa

with “Psychotic Disorder NOS” when she was admitted to the psychiatric facility.

Given the state of the entire record and the testimony about Lisa’s siblings’

past concerns about her mental health, and the comparisons they drew between their

mother’s conduct and Lisa’s behavior during the weeks before she was involuntarily

committed by Wes, Jr., we cannot say that the exclusion of additional evidence of

Lisa’s mental health, especially evidence from the 1980’s and 1990’s, “probably

caused the rendition of an improper judgment” with respect to the malicious

prosecution claim. Cent. Expressway Sign Assocs., 302 S.W.3d at 870; see also TEX.

R. APP. P. 44.1(a)(1).

We overrule the Individual Appellants’ second issue.

3. Analysis—Company Appellants

In their sixth issue, the Company Appellants argue the trial court abused its

discretion by excluding the same evidence because Lisa’s mental capacity was

directly relevant to whether her requests for books and records from the General

Partners were made for a “proper purpose,” and whether the Company Appellants’

actions in requiring a confidentiality agreement, among other restrictions, before

providing the requested records was “just and reasonable.” As previously discussed,

Lisa’s siblings testified that she had a long history of mental instability, and that her

mental health declined dramatically after their father died in January 2013. They

60

also drew comparisons between their mother’s conduct when she was not taking her

psychiatric medication and Lisa’s behavior during the weeks before she was

involuntarily committed.

Therefore, even if the trial court erred by excluding additional evidence about

Lisa’s mental health, as the Company Appellants argue, the exclusion of this

evidence was harmless considering the wealth of similar testimony addressing the

same issue. See Manon, 142 S.W.3d at 393 (citing Able, 35 S.W.3d at 617); see also

TEX. R. APP. P. 44.1(a)(1).

We overrule the Company Appellants’ sixth issue.

C. Actual and Exemplary Damages for Malicious Prosecution

The Individual Appellants argue that the actual and exemplary damage awards

for malicious prosecution should be eliminated or remitted29 because the awards

against Wes, Jr., Lee, and Stacey are excessive and there is insufficient evidence of

malice with respect to Lee and Stacey. (Jury Questions 4 to 7).

1. Amount of Actual Damages

The Individual Appellants challenge the award of actual damages for Lisa’s

malicious prosecution claim in a mere two paragraphs. They argue

29

The remedy for an excessive verdict is to order a remittitur, and remittitur is only

available should we conclude a damage award rests on factually insufficient

evidence. Torrington Co. v. Stutzman, 46 S.W.3d 829, 851 (Tex. 2000). Neither

Lisa nor the Individual Appellants suggest an amount of remittitur, should this Court

determine that remittitur is appropriate.

61

When “it is evident that the jury’s award is the result of passion,

prejudice or other improper motive, or is so excessive as to shock an

appellate court’s sense of justice, . . . the verdict should be overturned.”

Dayton Hudson Corp. v. Altus, 715 S.W.2d 670, 674 (Tex. App.—

Houston [1st Dist.] 1986, writ ref’d n.r.e.).

Here, the legislature has established a maximum recovery of mental-

anguish damages in a health-care case at $500,000. TEX. CIV. PRAC.

& REM. CODE § 74.301(c). Lisa proved no economic loss at all. So,

the jury’s award is identical to the maximum someone could recover in

a medical-malpractice case for the death of a child, lacking economic

losses. To say her one-day commitment deserves to be compensated at

that level insults all the Texas plaintiffs suffering truly egregious and

irreplaceable losses. The $500,000 mental-anguish award should be

vacated, or, alternatively, should be remitted to a small fraction of the

current amount.

Lisa argues that the Individual Appellants have waived this argument based

on inadequate briefing. The Individual Appellants respond that:

. . . it is difficult to cite to evidence about damages when the evidence

does not exist in the record. While no one would be happy with a one-

day commitment, no one should expect $500,000 in actual damages for

it, especially when—according to the records of the admitting and

discharging physicians—it helped. The discharging doctor noted that,

following commitment, Lisa was “very much improved. RR6:92,

RR25C:934. The award is patently excessive and represents a jury

motivated by passion, most likely due to the erroneous exclusion of the

relevant evidence about probable cause.

This is the sum of the Individual Appellants’ argument on this issue. They do

not identify the standard of review, cite to the record, or offer any meaningful

analysis of the issue. While the Individual Appellants arguably have waived their

issue, we nonetheless address the merits of the argument as presented by the

Individual Appellants.

62

(a) Standard of Review and Applicable Law

A claim that an award of actual damages is excessive is a factual-sufficiency

complaint. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998). When

conducting a factual sufficiency review, we consider and weigh all the evidence in

a neutral light and will set aside the finding only if it is “so contrary to the

overwhelming weight of the evidence that the verdict is clearly wrong and unjust.”

Id. at 407. The jury is the sole judge of the witnesses’ credibility, and a reviewing

court may not impose its own opinion to the contrary. See id. When presented with

conflicting testimony, the fact finder may believe one witness and disbelieve others,

and it may resolve inconsistencies in the testimony of any witness. McGalliard v.

Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); see also Mar. Overseas Corp., 971

S.W.2d at 407 (stating “the court of appeals may not pass upon the witnesses’

credibility or substitute its judgment for that of the jury, even if the evidence would

clearly support a different result”). “Only in those cases where it is evident that the

[jury’s] award for damages is the result of passion, prejudice, or other improper

motive or [is] so excessive as to shock” an appellate court’s sense of justice will the

jury’s verdict be overturned. Moore’s, Inc. v. Garcia, 604 S.W.2d 261, 266 (Tex.

App.—Corpus Christi 1980, writ ref’d n.r.e.).

“There is no certain measure of damages for the varying degrees of harm

incurred by a person who has been maliciously prosecuted or falsely imprisoned.”

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Dayton Hudson Corp. v. Altus, 715 S.W.2d 670, 674 (Tex. App.—Houston [1st

Dist.] 1986, writ ref’d n.r.e.). “The measure of damages usually rests in the

composite judgment and conscience of the jury.” Id. Mental anguish is a “relatively

high degree of mental pain and distress” that is “more than mere disappointment,

anger, resentment or embarrassment, although it may include all of these.” Parkway

Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) (quoting Trevino v. Sw. Bell Tel.

Co., 582 S.W.2d 582, 584 (Tex. Civ. App.—Corpus Christi 1979, no writ)). “Even

when an occurrence is of the type for which mental anguish damages are

recoverable, evidence of the nature, duration, and severity of the mental anguish is

required.” Serv. Corp. Int’l, 348 S.W.3d at 231.

“The process of awarding damages for amorphous, discretionary injuries such

as mental anguish or pain and suffering is inherently difficult because the alleged

injury is a subjective, unliquidated, nonpecuniary loss.” Figueroa v. Davis, 318

S.W.3d 53, 62 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (quoting HCRA of

Tex., Inc. v. Johnston, 178 S.W.3d 861, 871 (Tex. App.—Fort Worth 2005, no pet.)).

“Once the existence of some pain, mental anguish and disfigurement has been

established, there is no objective way to measure the adequacy of the amount

awarded as compensation, which is generally left to the discretion of the fact finder.”

Figueroa, 318 S.W.3d at 62 (quoting Pentes Design, Inc. v. Perez, 840 S.W.2d 75,

80 (Tex. App.—Corpus Christi 1992, writ denied)). The fact finder’s discretion in

64

this regard is necessary, in part, because “[i]ndividuals experience mental anguish in

myriad ways, so each case is unique.” Anderson v. Durant, 550 S.W.3d 605, 619

(Tex. 2018).

(b) Analysis

The jury found that Lisa sustained $500,000 in past mental anguish damages

based on her malicious prosecution claim, and the judgment awards that amount

against Wes, Jr., Lee, and Stacey, jointly and severally. The Individual Appellants

do not challenge the sufficiency of the evidence supporting the jury’s award of

damages against Wes, Jr. based on Lisa’s past mental anguish. They only challenge

the excessiveness of the award.

The Individual Appellants argue that the award of $500,000 for past mental

anguish based on “a one-day commitment” is “patently excessive” and “represents

a jury motivated by passion, most likely due to the erroneous exclusion of the

relevant evidence about probable cause.”30 See Dayton Hudson Corp., 715 S.W.2d

at 674 (stating that when “it is evident that the jury’s award is the result of passion,

prejudice or other improper motive, or is so excessive as to shock an appellate court’s

sense of justice, . . . the verdict should be overturned”). They also argue that the

verdict’s size alone establishes prejudice and passion, especially when compared to

30

As previously discussed, we hold the trial court did not abuse its discretion by

excluding the additional evidence of Lisa’s alleged mental instability.

65

medical malpractice cases involving the death of a child because Chapter 74 of the

Civil Practice and Remedies Code caps the recovery of non-economic damages in

such cases at $500,000.

We have already held that the trial court did not abuse its discretion by

excluding the evidence to which the Individual Appellants refer. And as it concerns

the damages cap under Chapter 74, the cap reflects a legislative public policy

decision, not a jury’s evaluation of an amount that “would fairly and reasonably

compensate” someone for their injury. See Saenz v. Fid. Guar. Ins. Underwriters,

925 S.W.2d 607, 614 (Tex. 1996) (requiring evidence that amount of mental anguish

damages awarded to be fair and reasonable compensation). This is particularly

significant given that “[i]ndividuals experience mental anguish in myriad ways, so

each case is unique.” Anderson, 550 S.W.3d at 619.

The Individual Appellants also argue that “[w]hile no one would be happy

with a one-day commitment, no one should expect $500,000 in actual damages for

it, especially when—according to the records of the admitting and discharging

physicians—it helped.” They argue the HCPC’s multidisciplinary discharge

document noted that following commitment, Lisa was “very much improved.” The

same document, however, also indicates that Lisa was “Normal, not ill at all” when

she was discharged, there had been “[n]o change” in her condition since she was

66

admitted the day before, and that she had been admitted for a “family dispute

possibly [in]appropriately.”

Lisa also presented evidence that without any prior notice or knowledge of

the filed Commitment Application, she was removed from her home by law

enforcement officers and taken in the back of a patrol car to a psychiatric facility

where she was involuntarily confined for twenty-four hours. Lisa did not have an

opportunity to contest Wes, Jr.’s affidavit and Commitment Application. At the

HCPC, Lisa was subjected to invasive physical and mental examinations, and

surrounded by what she perceived were dangerous people, including a delusional

roommate who repeatedly threatened to kill her, and a deranged man who ran around

the common area, screaming in a frightening manner. In addition to being in

constant fear that she would be assaulted or killed by another patient while she was

at the HCPC, Lisa testified she had no privacy, she was constantly monitored, and

she was questioned repeatedly by medical staff. Lisa also knew that her mother had

been confined for weeks at a time and sent to the state psychiatric hospital when

Wes, Jr. had her involuntarily committed and Lisa feared the same would happen to

her. She testified she was terrified of losing her independence and being separated

from her daughter, Noelle.

Lisa also testified about her emotional state while she was in the HCPC: “I

really felt like, you know, my life . . . was going to change and they were going to

67

throw me in the State hospital at Rusk or something like they had done to my mother;

and it was very scary. And I have this wonderful daughter who is my whole world.

And it’s like they plotted this whole thing just because of money.” Lisa further

testified she “was heartbroken [and] physically ill from the betrayal of [her] own

siblings” after “dealing with things like” her father’s death and the attempted

commitment. She explained she did not seek counseling because she was afraid her

siblings would use that information against her in their effort to prove she had a

mental illness. Lisa testified she was still scared because Wes, Jr. was still trying to

obtain a guardianship over her because his attempt to have her committed was

unsuccessful.

The jury had the benefit of observing Lisa as she testified about her experience

and could assess her emotional demeanor; this afforded some insight into the

severity of the mental anguish Lisa suffered in the past as a result of the jury’s

finding that she had been maliciously prosecuted by her brother and business partner.

See Plasencia v. Burton, 440 S.W.3d 139, 149 (Tex. App.—Houston [14th Dist.]

2013, no pet.) (holding there was factually sufficient evidence supporting award of

mental anguish damages based on witness testimony and noting fact finder had

opportunity to observe witness testifying and “assess his emotional demeanor” and

this gave fact finder “some insight into the mental anguish” witness had suffered).

As we held, there is sufficient evidence supporting the jury’s finding that Lisa’s

68

brother, Wes, Jr., lacked probable cause to initiate commitment proceedings against

her.

Although Lisa’s daughter, Noelle, testified that Lisa was “normal” after her

release from the HCPC, it was the jury’s responsibility to resolve any conflicts in

the evidence and to pass on the weight or credibility of the witnesses’ testimony.

See Dayton Hudson Corp., 715 S.W.2d at 674 (stating “it is not the prerogative of

the appellate court to substitute its own judgment for that of the jury, even if that

court might have awarded a lesser sum as a fact finder”). We note that the Individual

Appellants have not identified any specific evidence of jury prejudice or bias, only

speculation.

Considering Lisa’s testimony regarding the conditions of her confinement and

the impact that her brother Wes, Jr.’s decision to have her involuntarily committed

to a psychiatric facility had on her, we cannot conclude it is evident the jury’s award

was the result of passion, prejudice or other improper motive or is so excessive as to

shock the conscience of the court. See id. (overruling defendant’s claim that damage

award for malicious prosecution was excessive and finding that although damages

awarded were larger than usual awards in false imprisonment and malicious

prosecution suits, there was sufficient evidence to support jury’s findings and court’s

judgment).

69

After considering and weighing all the evidence in a neutral light, we cannot

say that the evidence supporting the jury’s award of past mental anguish damages is

so weak or so contrary to the overwhelming weight of all the evidence as to make

the award excessive. See Mar. Overseas Corp., 971 S.W.2d at 406.

We overrule the Individual Appellants’ factual sufficiency challenge to the

award of past mental anguish damages based on Lisa’s malicious prosecution claim.

2. Actual Damages Against Lee and Stacey

In one sentence at the end of the section of their brief challenging the

sufficiency of the evidence supporting the jury’s finding that Lee and Stacey acted

with malice for purposes of awarding exemplary damages, the Individual Appellants

add the following conclusory sentence concerning actual damages: “And, because

malice is required for actual damages, too, that award also should be eliminated. See

Kroger Texas Ltd. P’ship v. Suberu, 216 S.W.3d 788, 792 (Tex. 2006).”

Texas Rule of Appellate Procedure 38.1(i) requires an appellant’s brief to

contain a clear and concise argument with appropriate citations to authorities and the

record. See TEX. R. APP. P. 38.1(i). The failure to provide a substantive and

meaningful analysis applying the law to the facts waives a complaint on appeal. See

Encinas v. Jackson, 553 S.W.3d 723, 728 (Tex. App.—El Paso 2018, no pet.)

(holding appellant waived argument by “provid[ing] no citation to authority, nor

appl[ying] applicable law to the facts of the case in support of her second issue”);

70

Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San

Antonio 2011, no pet.) (“A failure to provide substantive analysis of an issue waives

the complaint.”); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex.

App.—Houston [14th Dist.] 2005, no pet.) (“[P]arties asserting error on appeal still

must put forth some specific argument and analysis showing that the record and the

law supports their contentions.”). “An appellate court has no duty—or even right—

to perform an independent review of the record and applicable law to determine

whether there was error.” Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El

Paso 2007, no pet.). “Were we to do so, . . . we would be abandoning our role as

neutral adjudicators and become an advocate for that party.” Id.

Although the Individual Appellants provide record citations in the preceding

paragraphs discussing malice with respect to exemplary damages and a lone legal

citation citing the elements of a malicious prosecution claim, there is no meaningful

analysis with respect to the sufficiency of the evidence supporting the award of

actual damages against Lee and Stacey based on Lisa’s malicious prosecution claim.

Their arguments and analysis with respect to exemplary damages are inapplicable

because, as the Individual Appellants fail to acknowledge, the “malice” element for

a malicious prosecution claim is not the same as a predicate finding of “malice” to

establish liability for exemplary damages.

71

Malice, for purposes of a malicious prosecution claim, is defined as “ill will,

evil motive, gross indifference, or reckless disregard of the rights of others.”

Hernandez v. Mendoza, 406 S.W.3d 351, 357 (Tex. App.—El Paso 2013, no pet.);

French v. French, 385 S.W.3d 61, 69 (Tex. App.—Waco 2012, pet. denied). For

purposes of exemplary damages, however, “malice” is defined as “a specific intent

by the defendant to cause substantial injury or harm to the claimant.” See TEX. CIV.

PRAC. & REM. CODE § 41.001(7). Although a plaintiff must present clear and

convincing proof of malice to recover exemplary damages, the standard of proof for

a malicious prosecution claim is the preponderance of the evidence. See Ellis Cnty.

State Bank v. Keever, 888 S.W.2d 790, 793 (Tex. 1994) (holding malicious

prosecution claim must be proven by preponderance of evidence); Soon Phat, L.P.

v. Alvarado, 396 S.W.3d 78, 109 (Tex. App—Houston [14th Dist.] 2013, pet.

denied) (holding exemplary damages must be proven by clear and convincing

evidence). Thus, to the extent the Individual Appellants attempt to challenge the

awards of actual damages for malicious prosecution against Lee and Stacey on the

basis that there is no evidence Lee and Stacey acted with malice, that argument is

waived. See TEX. R. APP. P. 38.1(i).

We note that even if waiver were not an issue, the Individual Appellants would

not prevail on this issue. The jury found Wes, Jr. maliciously prosecuted Lisa and

that Wes, Jr., Lee, and Stacey conspired to maliciously prosecute Lisa. Once a civil

72

conspiracy is established, each conspirator is responsible for all acts done by any of

the conspirators in furtherance of the conspiracy. Greenberg Traurig of N.Y., P.C.

v. Moody, 161 S.W.3d 56, 90 (Tex. App.—Houston [14th Dist.] 2004, no pet.)

(citing Akin, 661 S.W.2d at 921). A finding of civil conspiracy further imposes joint

and several liability on all conspirators for actual damages resulting from acts in

furtherance of the conspiracy. Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922,

925 (Tex. 1979). “[C]ivil conspiracy ‘came to be used to extend liability in tort . . .

beyond the active wrongdoer to those who have merely planned, assisted, or

encouraged his acts.’” Helping Hands Home Care, Inc. v. Home Health of Tarrant

Cnty., Inc., 393 S.W.3d 492, 506 (Tex. App.—Dallas 2013, pet. denied) (quoting

Carroll, 592 S.W.2d at 925–26)).

As previously discussed, there is legally sufficient evidence supporting the

jury’s finding that Wes, Jr. maliciously prosecuted Lisa and the Individual

Appellants are not challenging the jury’s conspiracy findings. Because the jury

found Lee and Stacey conspired with Wes, Jr. to maliciously prosecute Lisa, Lee

and Stacey are jointly and severally liable for actual damages resulting from acts in

furtherance of the conspiracy. See Helping Hands, 393 S.W.3d at 511 (stating “the

effect of the unchallenged conspiracy finding is to make Delzell and Grice

responsible for any unlawful act committed by Delzell, Duckworth, or Grice”).

73

We overrule the Individual Appellants’ challenge to the awards of actual

damages against Lee and Stacey based on insufficiency of the evidence.

3. Exemplary Damages Awards Against Lee and Stacey

The jury found that Lisa should recover $875,000 in exemplary damages from

Wes, Jr. (reduced to $500,000 in the Amended Final Judgment), $500,000 from Lee,

and $500,000 from Stacey for her malicious prosecution claim. The Individual

Appellants argue (1) there is legally insufficient evidence that Lee and Stacey acted

with malice, and thus the award of exemplary damages against Lee and Stacey must

be reversed, and (2) the awards of exemplary damages against Wes, Jr., Lee, and

Stacey are excessive.31

(a) Evidence of Malice

For an exemplary damage award, “we conduct a legal sufficiency review

under the ‘clear and convincing’ evidence standard.” Soon Phat, L.P., 396 S.W.3d

at 109. We examine all evidence in the light most favorable to the finding to

determine whether a reasonable trier of fact could have formed a firm belief or

conviction that its finding was true. Id. We assume the fact finder resolved any

disputed facts in favor of its finding if a reasonable fact finder could have done so

and we disregard all evidence that a reasonable fact finder could have disbelieved.

31

The Individual Appellants do not challenge the jury’s finding that Wes, Jr. acted

with malice when he initiated the involuntary commitment proceeding against Lisa

(Jury Questions 1 and 4).

74

Diamond Shamrock Ref. Co., L.P. v. Hall, 168 S.W.3d 164, 170 (Tex. 2005) (citing

In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)); see also Jang Won Cho v. Kun Sik

Kim, 572 S.W.3d 783, 809 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

Exemplary damages may be awarded “only if the claimant proves by clear

and convincing evidence that the harm with respect to which the claimant seeks

recovery of exemplary damages results from: (1) fraud; (2) malice; or (3) gross

negligence.” TEX. CIV. PRAC. & REM. CODE § 41.003(a). “‘Malice’ means a specific

intent by the defendant to cause substantial injury or harm to the claimant.” Id.

§ 41.001(7). “‘Clear and convincing’ means the measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established.” Id. § 41.001(2). “Specific intent means

that the actor desires to cause the consequences of his act or that he believes the

consequences are substantially certain to result from it.” Tri-County Elec. Coop.,

Inc. v. GTE Sw. Inc., 490 S.W.3d 530, 556 (Tex. App.—Fort Worth 2016, no pet.)

(citing Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985)).

Lisa argues there is sufficient evidence supporting the jury’s findings that Lee

and Stacey acted with malice because they accused her of being mentally ill at the

March 2013 board meeting even though she was not ill, and they “fanned her anger

and alarm about the Grandchildren’s Trust by refusing to answer questions, refusing

75

to provide books and records (even in response to written demands from her

attorney), and making threats to remove her from the board.”

During the March 2013 meeting, there were several angry outbursts requiring

several breaks, including at least one when Wes, Jr. accused Lisa of being mentally

ill. Lisa testified, “Stacey, who was sitting next to me, stood up and started

screaming at me over my head, like that she hates me and just totally irate screaming

at me.” When the meeting resumed, Wes, Jr., Lee, and Stacey all voted (over Lisa’s

dissent) to reduce the number of board meetings from six to one meeting per year.

Lisa testified that her siblings dramatically reduced the number of meetings because

they did not want to keep her informed about SignAd Outdoor’s financial affairs and

they wanted to push her out of the family business. Wes, Jr., Lee, and Stacey, in

their capacity as SignAd GP, LLC’s managers, also voted to appoint Stacey to fill

Brett’s former position on SignAd GP, LLC’s Executive Committee and serve on

the committee along with Wes, Jr. and Lee. Lisa contends that by doing so, Wes,

Jr., Lee, and Stacey effectively reestablished the defunct committee which had not

met since Brett resigned in 2011, and as a result of Stacey’s appointment, Lisa was

the only board member excluded from the committee.

After the highly contentious board meeting, Lee and Stacey conferred with

Wes, Jr. about Lisa and, four days later, Wes, Jr. filed the Commitment Application

with Lee’s and Stacey’s approval. Prior to initiating the commitment proceeding,

76

both Lee and Wes, Jr. had threatened to have Lisa declared “unfit” to serve and

removed from the Board of Managers. Lisa argues her siblings’ actions in having

her committed were in retaliation “for questioning their actions and making request

for books and records, and an intentional effort to silence and intimidate Lisa and

remove her from the board of managers.”

While there was evidence Wes, Jr., Lee, and Stacey were concerned about

Lisa’s disruptive behavior, they could not identify any potential imminent danger

justifying the need for emergency involuntary commitment. Indeed, Wes, Jr. waited

four days after the March 2013 board meeting before filing the Commitment

Application. Similarly, although Lee and Stacey testified that they had concerns

about Lisa’s mental health after their father died, the record also reflects that neither

Lee nor Stacey reached out to Lisa or otherwise acted on their concerns before they

agreed to have Lisa involuntarily committed and confined to a mental health

facility.32 Lisa testified that after she was released, none of her siblings called her to

see how she was doing or how the process had gone.

Lisa testified that although she and Lee had a good relationship, their

relationship soured after she accused him of stealing from the Grandchildren’s Trust

and demanded that he resign as trustee in February 2013. Lee was noticeably upset

32

Wes, Jr. testified that Lee agreed with him that Lisa needed to be involuntarily

committed. Lee testified that he agreed with Wes, Jr. and Stacey that “something

needed to be done” with regard to Lisa.

77

by Lisa’s allegations that he and the other trustees had breached their fiduciary

obligations to the Grandchildren’s Trust. Lee told Lisa that she had no basis for her

allegations, he questioned her motives for making the allegations, and he demanded

an apology. Lee also told Lisa that “[f]urther actions along this line and others you

showed at the board meetings may result in evaluating your fitness to serve in your

various capacities––your lifetime appointment can be voided if it is determined that

you are not ‘able to serve.’” Lisa testified that she understood Lee was threatening

to have her removed from the board.

Based on the record before us, we conclude that a reasonable jury could have

disregarded Lee’s and Stacey’s testimony that they were only trying to help Lisa

when they agreed to have her involuntarily committed and resolved any disputed

facts in favor of its findings that Lee and Stacey acted with malice. See Jang Won

Cho, 572 S.W.3d at 810–11. Reviewing all the evidence in the light most favorable

to the jury’s findings, disregarding evidence the jury could have disregarded, and

deferring to the jury’s resolution of disputed facts, we conclude that a reasonable

trier of fact could have formed a firm belief or conviction that Lee and Stacey acted

with malice. See Soon Phat, L.P., 396 S.W.3d at 109; Jang Won Cho, 572 S.W.3d

at 810–11. We thus hold that the jury’s findings of malice with respect to Lee and

Stacey are supported by legally sufficient evidence and we overrule the Individual

Appellants’ challenge to the exemplary damage awards against Lee and Stacey.

78

(b) Excessiveness of the Exemplary Damage Awards

The Individual Appellants challenge the award of exemplary damages against

Wes, Jr., Lee, and Stacey for Lisa’s malicious prosecution claim in a mere two

paragraphs. They assert that:

[w]hen reviewing a finding of exemplary damages, courts should

consider three guideposts:

(1) the degree of reprehensibility of the misconduct; (2)

the disparity between the exemplary-damages award and

the actual harm suffered by the plaintiff or the harm likely

to result; and (3) the difference between the exemplary

damages awarded and the civil or criminal penalties that

could be imposed for comparable conduct.

Bennett v. Grant, 525 S.W.3d 642, 650 (Tex. 2017). Here, given the

substantial evidence—admitted and improperly excluded—that Lisa’s

commitment was justified, the family member’s actions to have her

committed were not highly reprehensible. There was a considerable

disparity between the exemplary damages of $1.5 million and the actual

harm proved from the one-night commitment. And there was no

evidence or argument advanced regarding comparable civil or criminal

penalties.

Given the paucity of proof of malice, the identical awards of $500,000

each against Wes, Lee, and Stacey are excessive. Further, if the award

of actual damages is vacated or substantially reduced, the punitive

damages should disappear or be reduced, too.

The Individual Appellants do not identify the appropriate standard of review, state

whether they are challenging the legal or factual sufficiency of the evidence or

provide any record citations.

79

Although the Individual Appellants cite to Bennett v. Grant, 525 S.W.3d 642

(Tex. 2017) (“Bennett II”) and identify the three guideposts courts consider when

evaluating the excessiveness of an exemplary damage award, this is only part of the

analysis. Although courts consider several non-exclusive factors when evaluating

the first guidepost––the degree of reprehensibility of a defendant’s misconduct––the

Individual Appellants do not reference these factors or make any attempt to apply

them in this case. See Bennett II, 525 S.W.3d at 650. Nor do they brief the issue

separately with respect to Wes, Jr., Lee, and Stacey. See TEX. CIV. PRAC. & REM.

CODE § 41.006 (requiring awards of exemplary damages to be specific as to each

defendant in cases with multiple defendants); Horizon Health Corp. v. Acadia

Healthcare Co., Inc., 520 S.W.3d 848, 879 (Tex. 2017) (holding “determining the

basis for a constitutionally permissible amount of exemplary damages, courts must

consider the harm each defendant actually caused and assess the punishment based

on that harm because this approach most closely matches the punishment to each

defendant’s misconduct”). The closest the Individual Appellants come to doing so

is when they state that “[g]iven the paucity of proof of malice, the identical awards

of $500,000 each against Wes, Lee, and Stacey are excessive.”

Although the Individual Appellants arguably waived their complaint due to

inadequate briefing, we reach the merits of the argument as presented. See TEX. R.

80

APP. P. 38.1(i) (requiring appellant’s brief to contain clear and concise argument

with appropriate citations to authorities and record).

(i) Standard of Review and Applicable Law

The exemplary damage awards against Wes, Jr., Lee, and Stacey were

premised on findings of malice. The jury charge defined malice as “a specific intent

. . . to cause substantial injury or harm” to Lisa. The jury was asked, “Do you find

by clear and convincing evidence that the harm to Lisa Horan resulted from malice

with respect to the individuals below?” The jury answered “Yes” separately for

Wes, Jr., Lee, and Stacey. Based on these findings, the jury was asked to determine

the amount of exemplary damages to be assessed separately against Wes, Jr., Stacey,

and Lee. The jury awarded Lisa $500,000 in exemplary damages separately against

Lee and Stacey, and $875,000 in exemplary damages against Wes, Jr. See TEX. CIV.

PRAC. & REM. CODE § 41.006 (requiring awards of exemplary damages to be specific

as to each defendant in cases with multiple defendants). The trial court reduced the

amount of the award against Wes, Jr. to $500,000 to comply with the applicable

statutory cap under Section 41.008(b) of the Texas Civil Practice and Remedies

Code.33 See id. § 41.008(b).

Because Bennet II is the only authority the Individual Appellants rely on in

this section of their opening brief, we will liberally construe their argument as a

33

Lisa is not challenging the reduced award.

81

challenge to the constitutionality of the exemplary damage awards. See Bennett II,

525 S.W.3d at 650 (analyzing whether exemplary damage award is

unconstitutionally excessive).

Appellate courts consider three guideposts when reviewing the

constitutionality of an exemplary damage award: (1) the degree of reprehensibility

of the misconduct, (2) the disparity between the exemplary damage awarded and the

actual harm suffered by the plaintiff or the harm likely to result, and (3) the

difference between the exemplary damages awarded and the civil or criminal

penalties that could be imposed for comparable conduct. Id. (citing State Farm Mut.

Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003)). Whether an exemplary

damage award is unconstitutionally excessive is a question of law that we review de

novo. See Bennett II, 525 S.W.3d at 650 (citing Bunton v. Bentley, 153 S.W.3d 50,

54 (Tex. 2004)).

The first guidepost––the degree of reprehensibility of a defendant’s

misconduct––is the most important of these factors. Horizon Health Corp., 520

S.W.3d at 875 (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996)); see

generally Bennett v. Reynolds, 315 S.W.3d 867, 874 (Tex. 2010) (Bennett I) (quoting

State Farm, 538 U.S. at 419) (stating exemplary damages are permitted if

wrongdoing “is so reprehensible as to warrant the imposition of further sanctions to

achieve punishment or deterrence”). Courts consider several non-exclusive factors

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when evaluating the degree of reprehensibility of a defendant’s misconduct

including whether (1) the harm inflicted was physical rather than economic, (2) the

tortious conduct showed an indifference to or reckless disregard for the health or

safety of others, (3) the target of the conduct had financial vulnerability, (4) the

conduct involved repeated actions, and (5) the harm resulted from intentional malice,

trickery, or deceit. See Bennett II, 525 S.W.3d at 650.

The Individual Appellants do not reference these factors or make any attempt

to apply them in this case, and we will not abandon our role as a neutral adjudicator

and make the argument for them. See Valadez, 238 S.W.3d at 845. Instead, we will

analyze the issue as briefed. We will, however, separately evaluate the

excessiveness of the awards against Wes, Jr., Lee, and Stacey, as required. See TEX.

CIV. PRAC. & REM. CODE § 41.006 (requiring awards of exemplary damages to be

specific as to each defendant); Horizon Health Corp., 520 S.W.3d at 874

(“Constitutional rights are personal in nature, and, therefore, inquiries into the

constitutional excessiveness of an exemplary damages award must be defendant-

specific.”) (citing Gore, 517 U.S. at 574).

(ii) Wes, Jr.

For the first guidepost—the degree of reprehensibility of the misconduct—the

Individual Appellants argue: “[G]iven the substantial evidence—admitted and

improperly excluded—that Lisa’s commitment was justified, the family member’s

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actions to have her committed were not highly reprehensible.” As previously

discussed, there is sufficient evidence supporting the jury’s finding that Wes, Jr. did

not have probable cause to initiate civil commitment proceedings against Lisa, and,

therefore, Lisa’s detention was unjustified. Thus, the first guidepost, as briefed,

weighs against a finding that the award of $500,000 in exemplary damages against

Wes, Jr. is unconstitutionally excessive. See Bennett II, 525 S.W.3d at 650.

With respect to the second guidepost––the disparity between the exemplary

damage award and the actual harm suffered by the plaintiff or the harm likely to

result––the Individual Appellants argue: “There was a considerable disparity

between the exemplary damages of $1.5 million and the actual harm proved from

the one-night commitment.” The $1.5 million in exemplary damages cited by the

Individual Appellants, however, is the total amount of exemplary damages awarded

to Lisa in the Amended Final Judgment for all three defendants: Wes, Jr., Lee, and

Stacey. The amount of actual damages awarded against Wes, Jr., Stacey, and Lee,

jointly and severally ($500,000) is equal to the amount of exemplary damages the

trial court awarded against Wes, Jr. individually ($500,000).34 As we already held,

the jury’s award of $500,000 in actual damages for the mental anguish Lisa

34

Although Lisa asked for $500,000 in exemplary damages against Wes, Jr., the jury

awarded her $875,000. The trial court reduced the amount to $500,000 in

compliance with the statutory cap under Section 41.008(b) of the Texas Civil

Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE § 41.008(b).

84

experienced based on her wrongful involuntary commitment is supported by

sufficient evidence. Thus, this factor also weighs against a finding that the award of

$500,000 in exemplary damages against Wes, Jr. is unconstitutionally excessive.

See Bennett II, 525 S.W.3d at 650.

The third guidepost identified by Bennett II is “the difference between the

exemplary damages awarded and the civil or criminal penalties that could be

imposed for comparable conduct.” See id. In their limited analysis of this issue, the

Individual Appellants note that “there was no evidence or argument advanced

regarding comparable civil or criminal penalties.” The absence of evidence on this

issue does not weigh in favor of or against a finding that the award of $500,000 in

exemplary damages is unconstitutionally excessive. See id.

As briefed, two of the three Bennett II guideposts weigh against a finding that

the award of $500,000 in exemplary damages against Wes, Jr. is unconstitutionally

excessive, and the third factor is neutral. See id. We overrule the Individual

Appellants’ challenges to the excessiveness of the exemplary damages award against

Wes, Jr. See id.

(iii) Lee

For the first guidepost—the degree of reprehensibility of the misconduct—the

Individual Appellants argue: “[G]iven the substantial evidence—admitted and

improperly excluded—that Lisa’s commitment was justified, the family member’s

85

actions to have her committed were not highly reprehensible.” As previously

discussed, there is sufficient evidence supporting the jury’s findings that Wes, Jr. did

not have probable cause to initiate civil commitment proceedings against Lisa and

that Lee acted with malice when he conspired with Wes, Jr. and Stacey to have Lisa

involuntarily committed to a mental health facility. This finding, which is supported

by the evidence, demonstrates that Lee’s decision to have Lisa involuntarily

committed in collaboration with Wes, Jr. and Stacey was not “justified.” The

Individual Appellants further contend, “Given the paucity of proof of malice, the

identical awards of $500,000 each against Wes, Lee, and Stacey are excessive.” The

Individual Appellants appear to suggest the award of $500,000 in exemplary

damages against Lee is excessive because it is the same amount awarded against

Wes, Jr.35 The jury, however, apparently agreed that Wes, Jr.’s conduct was more

egregious because it awarded Lisa $875,000 in exemplary damages against Wes, Jr.

and only $500,000 in exemplary damages against Lee. The jury’s $875,000 award

against Wes, Jr. exceeded the statutory cap, and thus the trial court reduced it to

$500,000. We thus conclude that the first guidepost, as briefed, weighs against a

35

In the section of the Individual Appellants’ brief challenging the sufficiency of the

evidence supporting the jury’s finding that Lee and Stacey acted with malice, the

Individual Appellants argued: “Neither Lee nor Stacey even instituted the

commitment, so to award exemplary damages against them—and in the same

amount awarded against Wes (the signer)—demonstrates a jury swayed by

passions.”

86

finding that the award of $500,000 in exemplary damages against Lee is

unconstitutionally excessive. See id.

With respect to the second guidepost––the disparity between the exemplary

damage award and the actual harm suffered by the plaintiff or the harm likely to

result––the Individual Appellants argue: “There was a considerable disparity

between the exemplary damages of $1.5 million and the actual harm proved from

the one-night commitment.” As previously discussed, the $1.5 million in exemplary

damages cited by the Individual Appellants is the total amount of exemplary

damages awarded to Lisa in the Amended Final Judgment. The jury awarded only

$500,000 in exemplary damages against Lee individually. The $500,000 in

exemplary damages against Lee is equal to the amount of actual damages awarded

against Wes, Jr., Stacey, and Lee, jointly and severally ($500,000). As previously

discussed, the jury’s award of $500,000 in actual damages for the mental anguish

Lisa experienced based on her wrongful involuntary commitment is supported by

sufficient evidence. Thus, the second guidepost also weighs against a finding that

the award of $500,000 in exemplary damages against Lee is unconstitutionally

excessive. See id.

The third guidepost identified by Bennett II is “the difference between the

exemplary damages awarded and the civil or criminal penalties that could be

imposed for comparable conduct.” See id. The Individual Appellants’ analysis of

87

this issue is simply: “And there was no evidence or argument advanced regarding

comparable civil or criminal penalties.” The absence of evidence on this issue does

not weigh in favor of or against a finding that the award of $500,000 in exemplary

damages is unconstitutionally excessive. See id.

As briefed, two of the three Bennett II guideposts weigh against a finding that

the award of $500,000 in exemplary damages against Wes, Jr. is unconstitutionally

excessive, and the third factor is neutral. We overrule the Individual Appellants’

challenges to the excessiveness of the exemplary damages award against Lee. See

id.

(iv) Stacey

With respect to the first guidepost, the Individual Appellants argument that

“the family member’s actions to have [Lisa] committed were not highly

reprehensible” because there is substantial evidence that Lisa’s commitment was

“justified” is not persuasive. As previously discussed, there is sufficient evidence

supporting the jury’s findings that Wes, Jr. did not have probable cause to initiate

civil commitment proceedings against Lisa and that Stacey acted with malice when

she conspired with Wes, Jr. and Lee to have Lisa involuntarily committed to a mental

health facility. This finding, supported by the evidence, demonstrates that Stacey’s

decision to have Lisa involuntarily committed in collaboration with her brothers was

not “justified.” As is the case with Lee, the Individual Appellants appear to suggest

88

the award of $500,000 in exemplary damages against Stacey is excessive because it

is the same amount of exemplary damages awarded against Wes, Jr. The jury,

however, apparently agreed that Wes, Jr.’s conduct was more egregious because it

awarded Lisa $875,000 in exemplary damages against Wes, Jr. and only $500,000

in exemplary damages against Stacey. The jury’s $875,000 award against Wes, Jr.

exceeded the statutory cap, and therefore, the trial court reduced it to $500,000. See

TEX. CIV. PRAC. & REM. CODE § 41.008(b). Therefore, the first guidepost, as briefed,

weighs against a finding that the award of $500,000 in exemplary damages against

Stacey is unconstitutionally excessive. See Bennett II, 525 S.W.3d at 650.

For the second guidepost, the Individual Appellants argue: “There was a

considerable disparity between the exemplary damages of $1.5 million and the actual

harm proved from the one-night commitment.” As previously discussed, the $1.5

million in exemplary damages cited by the Individual Appellants is the total amount

of exemplary damages awarded to Lisa in the Amended Final Judgment. The jury

awarded a third of this amount in exemplary damages against Stacey individually

($500,000). The $500,000 in exemplary damages award against Stacey is equal to

the amount of actual damages awarded against Wes, Jr., Stacey, and Lee, jointly and

severally ($500,000). As previously discussed, the jury’s award to Lisa of $500,000

in actual damages for the mental anguish she experienced based on her wrongful

involuntary commitment is supported by sufficient evidence. Thus, we conclude

89

that this factor also weighs against a finding that the award of $500,000 in exemplary

damages against Stacey is unconstitutionally excessive. See id.

The Individual Appellants’ analysis of the third guidepost is simply, “And

there was no evidence or argument advanced regarding comparable civil or criminal

penalties.” The absence of evidence on this issue does not weigh in favor of or

against a finding that the award of $500,000 in exemplary damages is

unconstitutionally excessive. See id.

As briefed, two of the three Bennett II guideposts weigh against a finding that

the award of $500,000 in exemplary damages against Stacey is unconstitutionally

excessive, and the third factor is neutral. See id.

We overrule the Individual Appellants’ challenges to the excessiveness of the

exemplary damages award against Stacey. See id.

D. Defamation

The jury found that (1) Wes, Jr. and Mark defamed Lisa, (2) Lisa should

recover $50,000 in past mental anguish damages and $500,000 in exemplary

damages against Wes, Jr., and (3) Lisa should recover $25,000 in past mental

anguish damages and $50,000 in exemplary damages against Mark. The Individual

Appellants argue that the awards of actual and exemplary damages against Wes, Jr.

and Mark should be reversed because, among other things, there is no evidence their

90

alleged defamatory statements proximately caused Lisa to suffer any mental

anguish.

1. Standard of Review and Applicable Law

To prevail on a claim for defamation, a plaintiff must establish that (1) the

defendant published a false statement of fact to a third party, (2) that was defamatory

concerning the plaintiff, (3) with the requisite degree of fault, and (4) that

proximately caused damages. Anderson, 550 S.W.3d at 617–18 (citing Bos v. Smith,

556 S.W.3d 293, 307 (Tex. 2018)).36 Proximate cause encompasses both

foreseeability and cause in fact. Anderson, 550 S.W.3d at 618 (citing Del Lago

Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010)). A defendant’s action is

the cause in fact of damages if it was “a substantial factor in causing the injury and

without which the injury would not have occurred.” Anderson, 550 S.W.3d at 618

(quoting Bos, 556 S.W.3d at 307). “[A] jury may not reasonably infer an ultimate

36

There are two types of defamation: defamation per se and defamation per quod. If

a statement is defamatory per se, no independent proof of damage to the plaintiff’s

reputation or mental anguish is required because such statements are “so obviously

hurtful to a plaintiff’s reputation that the jury may presume general damages,

including for loss of reputation and mental anguish.” Hancock v. Variyam, 400

S.W.3d 59, 63–64 (Tex. 2013); see also Bentley v. Bunton, 94 S.W.3d 561, 604

(Tex. 2003). All other allegedly defamatory statements, i.e., statements that are

defamatory per quod, require proof that the defamatory statements proximately

caused all the damages sought, including damages for mental anguish, and the

amount of these damages. See Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 501,

504–05 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). Lisa does not dispute

that Wes, Jr.’s and Mark’s allegedly defamatory statements constitute defamation

per quod or challenge the jury’s finding that Wes, Jr.’s statements were not

defamatory per se.

91

fact from ‘meager circumstantial evidence which could give rise to any number of

inferences, none more probable than another.’” Hancock v. Variyam, 400 S.W.3d

59, 70–71 (Tex. 2013) (quoting Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387,

392 (Tex. 1997)); see also Burbage v. Burbage, 447 S.W.3d 249, 262 (Tex. 2014).

2. Actual Damages for Defamation

The jury found that Wes, Jr. published statements to SignAd Outdoor

employees that Lisa was “mentally ill” and “physically dangerous,” and that $50,000

would compensate Lisa for the past mental anguish she suffered as a proximate cause

of these statements ($25,000 for each statement). The jury also found that Mark

published “[s]tatements to [SignAd Outdoor] employees that Lisa was at the

building and to be careful,” and that $25,000 would compensate Lisa for the past

mental anguish she suffered as a proximate cause of Mark’s statements.37

The record reflects that the testimony Lisa gave about her mental and

emotional state supporting the award of past mental anguish damages was limited to

her father’s death and her involuntary commitment. Lisa points to her testimony

that she was “heartbroken” and “physically ill from the betrayal of [her] own

siblings” as evidence that the defamatory statements caused her to suffer mental

37

The jury was asked what sum of money would compensate Lisa for her injuries “that

were proximately caused by” Wes, Jr.’s and Mark’s alleged defamatory statements.

The jury awarded Lisa $0 damages for past and future injury to her reputation and

future mental anguish with respect to her defamation claims against Wes, Jr. and

Mark. Lisa does not appeal these findings.

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anguish. But the record reflects that this statement was in direct response to a

question about her emotional state after “dealing with things like” her father’s death

and the attempted commitment proceeding:

Q. In January of 2013 after your father’s death, and then after the

failed commitment, what was your emotional state in dealing

with things like that? What was your emotional state?

A. I mean, I was heartbroken. And you know, I was physically ill

from the betrayal of my own siblings. But you know, just like

all of us, we all have to deal with tragedies and you just have to

put one foot in front of the other and take care of what you have

to take care of.

Similarly, Lisa’s testimony that she was afraid Wes, Jr. would try to impose a

guardianship over her or lock her away in a mental hospital for weeks, as her mother

had been, is also related to the involuntary commitment proceeding. Nothing in the

record reveals a causal connection between Lisa’s emotional state and the alleged

defamatory statements Wes, Jr. and Mark made after the March 2013 involuntary

commitment. See Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 505–06 (Tex.

App.—Houston [14th Dist.] 2008, pet. denied) (holding there was legally

insufficient evidence supporting award of noneconomic damages because plaintiffs’

testimony regarding mental anguish and reputational damages related to issues other

than alleged defamatory statements).

Lisa suggests that her testimony regarding the mental anguish she suffered

because of the involuntary commitment proceeding also provides circumstantial

93

evidence that she suffered mental anguish due to the defamatory statements, because

the commitment proceedings and the defamatory statements “both stem from the

false claim that she is mentally ill and physically dangerous.” Lisa’s argument is

unavailing.

Although related, the act of having someone involuntarily committed to a

psychiatric hospital is different than telling mutual co-workers that the person is

mentally ill and dangerous. Moreover, to recover damages on her defamation claim,

Lisa had to establish that the defamatory statements were a “substantial factor in

causing [her] injury and without which [her] injury would not have occurred.” Lisa

has not directed this Court to any testimony or evidence specifically linking her

allegations of mental anguish to Wes, Jr.’s and Mark’s defamatory statements. To

the contrary, the record identifies other causes for Lisa’s mental anguish, including

the involuntary commitment proceeding and her father’s death. As such, the jury

could not have reasonably inferred that Mark’s and Wes, Jr.’s defamatory statements

caused Lisa’s mental anguish. See Burbage, 447 S.W.3d at 262 (holding jury could

not reasonably infer that defamation caused cancellations at funeral home “when the

cancellations could have occurred for any number of reasons”); Exxon Mobil Corp,

252 S.W.3d at 506 (“The fact that the evidence identifies other, distinct causes of

the harm, prevents this evidence from supporting the conclusion that appellees were

noneconomically harmed by publication of the two presentations.”); see generally

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Bos, 556 S.W.3d at 307–08 (holding defamatory statements were not substantial

factor in causing plaintiff’s injuries because plaintiff’s testimony did not link

damages to statements and there was “overwhelming amount of other circumstances

impacting [plaintiff’s] reputation and mental state”).

Because there is no evidence that Wes, Jr.’s and Mark’s alleged defamatory

statements were the proximate cause of Lisa’s past mental anguish, we sustain the

Individual Appellants’ challenge to the jury’s award of damages against Wes, Jr. and

Mark on Lisa’s defamation claims. We reverse the judgment in favor of Lisa and

render judgment that Lisa taken nothing on her defamation claims against Wes, Jr.

and Mark.38

3. Exemplary Damages for Defamation

The jury awarded Lisa $500,000 in exemplary damages against Wes, Jr. and

$50,000 against Mark based on their respective defamatory statements. A party may

not recover exemplary damages unless the plaintiff also establishes actual damages.

38

Lisa also argues there is sufficient evidence supporting the award of mental anguish

damages because she presented evidence that her reputation was injured by Mark’s

and Wes, Jr.’s defamatory statements. But those questions were presented

separately to the jury who found Lisa did not suffer reputational damage.

Specifically, the question on damages for Lisa’s defamation claim expressly

allowed the jury to award Lisa damages for (1) “Injury to reputation sustained in the

past,” (2) “Injury to reputation that, in reasonable probability, Lisa Horan will

sustain in the future,” (3) “Mental anguish sustained in the past,” and (4) “Mental

anguish that, in reasonable probability, Lisa Horan will sustain in the future.” (Jury

Questions 52 and 58). The jury found that Lisa suffered $0 in past and future

reputational damages, $0 in future mental anguish damages, and it awarded Lisa

$25,000 for past mental anguish for each defamatory statement.

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Hancock, 400 S.W.3d at 71 (“Exemplary damages are not available unless a plaintiff

establishes actual damages.”). Because we hold that no evidence supports the jury’s

awards of actual damages against Wes, Jr. and Mark for defamation, we sustain the

Individual Appellants’ challenge to the award of exemplary damages against Wes,

Jr. and Mark for Lisa’s defamation claim.39

E. Derivative Claim for Breach of Fiduciary Duty: Wes, Jr. and ProIce

Lisa asserted a breach of fiduciary duty claim against Wes, Jr. on behalf of

SignAd, Ltd. asserting Wes, Jr. had engaged in certain “self-dealing transactions

with his side business” ProIce Solutions, LLC” (“ProIce”). The jury was instructed

that “[b]ecause Wesley Gilbreath, Jr. was President of SignAd, Ltd., he owed

SignAd, Ltd. a fiduciary duty.” The jury found that Wes, Jr. failed to “comply with

his fiduciary duty to SignAd, Ltd. with regard to the transactions with [ProIce].”40

Wes, Jr. argues that the trial court’s Amended Final Judgment based on the

jury’s finding must be reversed because there is neither evidence he owed a fiduciary

duty to SignAd, Ltd., nor a jury finding that such a fiduciary relationship existed.

39

Because of our disposition, it is not necessary for us to address Wes, Jr.’s and Mark’s

remaining challenges to Lisa’s defamation claims.

40

The jury awarded damages in the amount of (1) $750.00 for the “fair market value

of services provided to [ProIce] in the past, and (2) $300/per month for the “fair

market value of services

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