# 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 > Texas Court of Appeals, 1st District (Houston) · April 20, 2023 URL: https://www.frixlaw.com/law-library/cases/9388987 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** April 20, 2023 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9388987 ## How later opinions describe it (automated extraction) - holding jury could not reasonably infer that defamation caused cancellations at funeral home “when the cancellations could have occurred for any number of reasons” - 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” - noting that under third element of breach of fiduciary claim, plaintiff must establish the breach injured the plaintiff or benefited defendant ## Opinion text 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.” 63 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9388987. Public record. Not legal advice.