Full opinion text
OPINION Justice YÁÑEZ delivered the opinion of the Court, in which Justices HINOJOSA, CHAVEZ, and RODRIGUEZ joined. Our opinion in this case dated May 6, 1999 was withdrawn by order of this Court on May 27, 1999. We now substitute this opinion in its place. Appellants Bruce Bradford, Simon Property Group (“Simon”), and Golden Ring Mall Company (“Golden”) challenge the legal and factual sufficiency of the evidence in support of a jury verdict in favor of appellees Roell and Debra Vento (“the Ventos”). The jury found (1) Tom Taylor, Bradford, Simon, and Golden hable for civil conspiracy and fraud; (2) Bradford and Taylor hable for tortious interference with prospective contractual relations, intentional infliction of emotional distress, and violations of the Deceptive Trade Practices Act (DTPA); and (3) Taylor liable for breach of fiduciary duty and breach of contract for sale of the business. The judgment awarded appehees $1,274,000 in actual damages and $6,500,000 in exemplary damages. Taylor did not appeal. Appellants also challenge the legal and factual sufficiency of the evidence supporting the damages awarded for lost profits, conversion of property, mental anguish, and exemplary damages. Appellants also argue that appehees waived their right to recover on their claim for tortious interference with prospective business relations, and that the judgment improperly permitted appehees to stack damages elements from different theories of recovery rather than requiring them to elect one theory of recovery. Appellees argue one cross point, that the trial court should have awarded damages based on the DTPA. We affirm in part and reverse in part, rendering judgment that the appehants are jointly and severahy liable to the appellees for $864,000 in actual damages and $2,520,000 in exemplary damages. I. Facts Taylor owned a business in Valle Vista Mall in Harlingen, Texas, selling sports cards and other sports memorabilia. Bradford was the manager of the mall, and Simon Property Group and Golden Ring Mall were the owners of the mall. Vento was a collector of sports memorabilia who became involved with Taylor and the store at Valle Vista Mall. Vento began collecting sports cards when he was eleven years old. His interest in sports cards and other sports memorabilia grew as he became older, until, as a young man living in the Dallas-Fort Worth area, he devoted much of his free time to going to shops and trade shows to enhance his collection. At this time he decided that he wanted to open a store of his own selling sports collectibles. He and his wife frequently traveled to the Rio Grande Valley to visit family, and Vento would finance these trips by selling items he had collected to collectors in the Valley. In this way he became very familiar with the market for sports collectibles in the Valley. While Vento was living in Fort Worth he often traded with Taylor and left items on consignment for sale in Taylor’s store. Vento’s consignment stock at Taylor’s store grew to the point where sixty per cent of the stock in Taylor’s store actually came from Vento. Vento testified that in May or June of 1994 he and Taylor agreed to be partners in the business. Taylor soon began expressing an interest in getting out of the business altogether, and the two discussed Vento purchasing outright ownership. In August Taylor went on a trip to Seattle and left Vento in charge. At this point the stories of the parties begin to diverge significantly. Taylor testified that when he returned from Seattle the store was “a mess” and some expensive items were missing. Taylor also testified that Vento had mismanaged the financial accounts of the business and failed to order new stock. He considered having a “fire sale” to put the store back on firm financial ground, and estimated that it would take five to seven thousand dollars to “get all of this taken care of and everything back to normal so that [the store] can operate properly and function through the Christmas season when [he] was going to be selling the store.” Vento agreed that he would try to get the money, and soon after brought Taylor a check for $7000. Taylor used this money to order stock and buy a computer and security system for the business. Vento testified that the $7000 check was payment for Taylor’s half of the business, and produced a contract, dated September 15, 1994 and signed by both parties, describing a sale of Taylor’s interest to Vento effective upon payment of $7000. Taylor testified that he never agreed to a sale for $7000, and that his signature on the contract was forged. Over the next couple weeks Taylor continued to go to the store and wait on customers, which “seemed pretty odd” to Vento. Vento initially decided that Taylor may have come to the store to “shoot the breeze and hang out or whatever.” On October 4, 1994, Vento went to the mall office with a cashier’s check for $770 to pay the store’s rent for October, and asked to speak with Bradford. Vento and Bradford testified to different accounts of their conversation. According to Vento, he told Bradford that he had bought the store outright and now owned all of it, and showed Bradford the sale contract. Bradford congratulated Vento, and mentioned that he had already known that Vento and Taylor were discussing a sale of the store from previous conversations Bradford had with Taylor. Vento expressed an interest in a long term lease. Bradford consulted some files, and then told Vento that the space the store occupied “should” rent for $2700, and that Taylor had been getting “a decent deal at $770.” Bradford also said that a long-term lease was a bad idea because sports card stores generally do not do well in malls. Vento asked Bradford what would be the longest lease he could get, and Bradford replied “maybe the longest we can do is a three-month or a six-month.” Vento wanted to sign a lease at that point, but Bradford told him “not to worry” with it that month, to come back in January and he would “take care of’ him. Bradford testified that Vento told him he was “in the process” of buying the store from Taylor, not that he had completed the purchase. Bradford told Vento that Taylor had negotiated a lease that lasted through November and December, and that the lease was non-assignable. Bradford testified that he understood Vento to be Taylor’s employee, and was never aware that Vento had actually acquired any ownership interest in the store. Ven-to, however, testified that Bradford knew Vento had been Taylor’s partner. Later on October 4, Vento finally confronted Taylor about his continued presence at the store, and the two argued about who owned the business. According to Vento, Taylor told him the business was worth a lot more than $7000, and that the $7000 should be just a down payment. Vento insisted that the two had executed a binding contract and the sale was completed. Vento testified that he called the police, but Taylor left before the police arrived. Taylor testified that he did not know Vento had called the police, and that he had left to go home and gather some papers to try to prove his ownership. Taylor testified that he went to speak with Bradford on October 5 or 6 to tell him about the disagreement he had with Ven-to. Bradford testified that Taylor approached him the morning of October 6 and briefly told him there might be a confrontation between him and Vento, but did not explain himself any further. Taylor testified that he told Bradford “what was going on” in “a roundabout way.” After his conversation with Taylor, Bradford directed the mall’s security guard to remain near the store. That morning Taylor and Vento did have another confrontation. Taylor testified that he and his wife went to the store before it opened, and, upon discovering that his key no longer worked in the store’s locks, waited for Vento. Taylor testified that when Vento arrived he walked over to confront him, and Taylor’s wife went to call the police. The mall’s security guard, who was nearby as he had been instructed to be, also entered the store. Bradford also appeared on the scene shortly thereafter. Bradford explained in his testimony that he was nearby not for the purpose of intervening in any confrontation that may arise, but rather because he was checking on remodeling work being done at a neighboring store. When the police arrived, they turned to Bradford for guidance in sorting out the argument between Taylor and Vento. According to Bradford, the police'asked him whose name was on the lease, and he informed them that Taylor’s name was on the lease. According to Vento, Bradford told the police “the store belongs to Tom.” According to one of the police officers present, Jose Angel Villarreal, Bradford told him that Taylor owned the shop, and that Bradford did not want Vento inside the mall since he was causing a scene. Officer Villarreal testified that the mall security guard also told him that Taylor was the owner. Another police officer, Charles Manning, testified that Bradford did not exactly state that Taylor was the owner, but rather that Taylor was the one with a lease agreement. Officer Manning testified that Bradford told him he wanted to file criminal trespass charges against Vento. Based on Bradford’s statements and the fact that Vento had no papers to substantiate his claim of ownership, the police told him to leave. Officer Manning testified that Vento said he wanted to retrieve some papers from his home and come back to prove his ownership, but Manning advised him that if he came back, Bradford would charge him with criminal trespass and he would be arrested. Bradford testified that Taylor had asked the police to remove Vento from the store, and that he told the police “Mr. Vento hasn’t done anything wrong in the mall.” Bradford also testified that he never threatened to charge Vento with criminal trespass. On October 17, 1994 Bradford and Taylor entered into a two-month lease to cover November and December. On November 23, 1994, Vento obtained an injunction restoring him as owner of the business. Vento testified that the value of the merchandise on hand in the store was $35,-000 — $40,000 less on November 23, when the business was given back to him, than it had been on October 6, when he was ejected. Vento paid $770 in rent for December, but was informed by the mall office that he still owed $1430, because the rent rose in December to $2200. On January 15, 1995 the mall locked Vento out of the store, charging that he owed $4168.66 in back rent and unpaid electricity bills. Eventually Vento made prospective arrangements for Louis Martin to pay the business’s outstanding debts and buy the business from him. However, before the deal with Martin could be consummated, Martin wanted to see the inventory of the business. Vento testified that he was told that the only way he and Martin could have a key to see the store was if he would sign a statement releasing the mall from all liability. Vento refused to sign such a release, and he and Martin left. Bradford testified that, although he was not in the office when Vento and Martin appeared, his employees phoned him to advise him of the situation and seek his instructions. According to Bradford, Vento was not asked to sign a release, but rather a “receipt” specifying that the money received from Martin would be to satisfy Vento’s debts and not for any other purpose, such as rent on a new lease. Bradford testified that his employees told him that Martin left because he considered the situation too confusing. One week later, Vento was allowed to remove his merchandise without a release. Vento testified that when he entered the store, it was in “total disarray” and not at all as he had left it. He estimated that approximately $500 in merchandise was missing. Vento also attempted to demonstrate a close relationship between Bradford and Taylor. He testified that Taylor sold Christmas trees on the mall parking lot. There was testimony from Bradford and Joyce Plohocky, another mall administrator, that the $770 rent Taylor was paying was far below standard rates. Vento also testified that he told Bradford that Taylor was under-reporting the monthly sales of the business to the mall as a means of lessening the portion he was required to pay to the mall, but Bradford was unconcerned. II. Evidentiary Sufficiency Standards We will begin with the appellants’ challenges to the findings in appellees’ favor on their various theories of liability. In reviewing a legal sufficiency challenge, we consider all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party’s favor. Associated Indem. Corp. v. CAT Contracting, 964 S.W.2d 276, 286 (Tex.1998). Anything more than a scintilla of evidence is sufficient to support the finding. Formosa Plastics Corp. USA v. Presidio Eng’rs and Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). When confronting a factual insufficiency challenge, we overturn findings only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). Most of the evidence in this case came in the form of testimony from interested witnesses. Testimony by an interested witness may establish a fact as a matter of law only if the testimony could be readily contradicted if untrue, and is clear, direct, positive, and there are no circumstances tending to impeach or discredit it. Lofton v. Texas Brine Corp., 777 S.W.2d 384, 386 (Tex.1989). If there is nothing to cast suspicion on the testimony, that is, if reasonable minds could not differ, then the jury must accept the testimony. William Powers, Jr. & Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence”, 69 Tex. L.Rev. 515, 524 (1991). But, if the testimony is impeached, inconsistent, or otherwise suspect (even though not directly controverted), that is, if reasonable minds might or might not accept it, then the jury may reject it. Id. The jury is free to reject an interested witness’s uncorroborated testimony based on its observation of the witness’s demean- or, attitude, and similar factors incapable of reproduction in a written record. Silva v. Enz, 853 S.W.2d 815, 818 (Tex.App.— Corpus Christi 1993, writ denied). In this case, the testimony of the various interested witnesses differs sharply and is in many instances directly contradictory, leaving the jury with no choice but to make decisions regarding which witnesses to believe and which not to believe. III. Fraud We first consider appellants’ challenges to the jury finding on fraud. The jury charge, taken from the Texas Pattern Jury Charges, instructed the jury: Fraud occurs when- a. A party makes a material misrepresentation, b. The misrepresentation is made with knowledge of its falsity or made recklessly without any knowledge of the truth and as a positive assertion, c. The misrepresentation is made with the intention that it should be acted on by the other party, and d. The other party acts in reliance on the misrepresentation and thereby suffers injury. This instruction informed the jury of the elements of common law fraud, which are: (1) a material misrepresentation, (2) the defendant knew the statement was false or made the statement recklessly without any knowledge of its truth, (3) the defendant intended the plaintiff to rely upon the statement, (4) the plaintiff relied upon the statement (5) to his detriment. Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185 (Tex.1977); Harrison v. Bass Enters. Prod. Co., 888 S.W.2d 532, 536 (Tex.App.— Corpus Christi 1994, no writ). The jury was also instructed: Fraud may also occur when- a. A party conceals or fails to disclose a material fact within the knowledge of that party, b. The party knows that the other party is ignorant of the fact and does not have an equal opportunity to discover the truth, c. The party intends to induce the other party to take some action by concealing or failing to disclose the fact, and d. The other party suffers injury as a result of acting without knowledge of the undisclosed fact. This instruction informed the jury of the elements of “fraudulent concealment,” also known as “fraudulent nondisclosure.” Appellants did not challenge the instruction or its submission to the jury at trial, and do not challenge it in this appeal. For there to be actionable nondisclosure fraud, there must be a duty to disclose. Hoggett v. Brown, 971 S.W.2d 472, 487-88 (Tex.App. — Houston [14th Dist.] 1997, no writ). Whether such a duty exists is “entirely a question of law.” Id.; Ralston Purina Co. v. McKendrick, 850 S.W.2d 629, 683 (Tex.App. — San Antonio 1993, writ denied). A duty to disclose may arise in four situations: (1) when there is a fiduciary relationship; (2) when one voluntarily discloses information, the whole truth must be disclosed; (3) when one makes a representation, new information must be disclosed when that new information makes the earlier representation misleading or untrue; and (4) when one makes a partial disclosure and conveys a false impression. Hoggett, 971 S.W.2d at 487 (citing Formosa Plastics Corp. v. Presidio Engineers and Contractors, Inc., 941 S.W.2d 138, 146-47 (Tex.App. — Corpus Christi, 1995), rev’d on other grounds, 960 S.W.2d 41 (1997); Ralston Purina, 850 S.W.2d at 635-36). Appellees point to two incidents of fraud, both arising from a meeting between Vento and Bradford at the mall office on October 4, 1994:(1) Bradford’s misrepresentation that Vento could continue operating the store under the existing lease for $770 per month, and (2) Bradford’s failure to disclose certain requirements Vento would be required to meet prior to his acceptance as a tenant. Vento testified that during the October 4 meeting, he told Bradford that he had purchased the store, showed him a copy of the sales contract, and expressed interest in executing a long-term lease. He further testified Bradford congratulated him on his purchase of the store, checked the mall files on the property, and told Vento the $770 rent Taylor had been paying was “a decent deal.” According to Vento, Bradford accepted the $770 October rent check, told Vento he “probably” could arrange a lease for up to three to six months, and in response to Vento’s expressed interest in a new lease, told him not to worry, to come back in January, at which time he would “take care of’ Vento’s concerns. Although Vento asked specifically about arrangements for a new lease and Bradford reviewed the store’s lease file during the meeting, Bradford failed to advise Vento that additional rent would be due for December and that he would be required to apply for a new lease. The jurors could reasonably have concluded that Bradford knew Vento was the new owner and that he acknowledged Ven-to’s ownership by congratulating him and accepting the October rent payment from him. Bradford admitted that he reviewed the store’s file during his meeting with Vento in response to Vento’s inquiries about a long-term lease. Vento testified that neither Bradford nor Taylor ever showed him a copy of the existing lease, even though he requested a copy from Taylor on several occasions. Vento’s questions to Bradford about the lease were sufficient to show Vento’s ignorance about the lease and Bradford’s knowledge that Vento lacked such information. Vento testified Bradford failed to inform him that the lease was non-assignable and he would be required to reapply as a prospective tenant, and that an additional amount of rent was due for December. The jury could reasonably have concluded Bradford chose not to disclose such information in order to induce Vento to retain the store in its mall location. Moreover, Bradford’s assurance that he would “take care of’ Vento’s long-term lease concerns in January and his failure to disclose pertinent information regarding the procedures for obtaining a new lease constituted a partial disclosure which conveyed a false impression. A duty to disclose information may arise when one makes a partial disclosure and conveys a false impression. See Formosa Plastics, 941 S.W.2d at 147. When Bradford responded to Vento’s inquiries about a new lease by accepting the rent check in the amount of $770 and telling Vento he would “take care of’ him in January, he conveyed the false impression that any rent increase would not occur until January at the earliest, and that executing a new lease was a mere formality. Vento relied on Bradford’s assurances that he would “take care of’ him in January and did not demand a copy of the lease from Bradford. As a result, Vento testified that he lost his inventory and personal collection, which Taylor sold, and for which the mall collected a percentage of the sales revenues. After considering the evidence, we find there is legally and factually sufficient evidence to support the jury’s finding of fraud, and accordingly, overrule appellants’ second point of error. IV. Civil Conspiracy A civil conspiracy is a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex.1995). Civil conspiracy requires specific intent, that is, the parties must be aware of the harm or wrongdoing at the inception of the combination or agreement. Id. Appellees point to three incidents of alleged civil conspiracy. The first was a plan between Bradford and Taylor to oust Vento from his store and sell Vento’s merchandise, with Taylor and the mall gaining the proceeds. The second was the lease signed by Bradford and Taylor on October 17, which authorized Taylor to sell the business’s merchandise in the mall, when both knew that the merchandise now belonged to Vento. The third involves the unjustified refusal of Bradford, Simon, and Golden to accept Louis Martin’s check to pay Vento’s debts unless Vento also agreed to sign a statement releasing the mall from all liability. Adopting the proper approach to the evidence when conducting legal sufficiency review, that is, viewing all of the evidence in the light most favorable to the appel-lees, indulging every reasonable inference in their favor, and remaining mindful that the jury was free to resolve contradictions in the testimony and disbelieve the uncorroborated testimony of any interested witness, the testimony in this case is distilled this way: Vento bought the business from Taylor for $7000. Vento went to Bradford’s office to pay the $770 rent for October, where he told Bradford that he and Taylor were no longer partners but rather that he now owned the business outright. Bradford responded to Vento’s inquiries about a long-term lease by telling him “not to worry” with it that month and that he would “take care of’ Vento in January. Two days later, Taylor and Bradford spoke briefly about a likely confrontation between Vento and Taylor. When the confrontation came and the police turned to Bradford for guidance, he told them that Taylor, not Vento, was the rightful owner of the business, and told them to eject Vento under the threat of criminal trespass charges if he returned. Eleven days after that, Bradford entered into a lease agreement for November and December with Taylor, despite knowing that Taylor had sold out to Vento. When Vento was able to reenter his store under an injunction, $35,000 — $40,-000 worth of merchandise was missing. Although Vento was back in control of the business, he was unable to pay the full December rent or the past due debts of the company, and he was locked out of the business for his failure to pay these debts. When Vento arranged for a buyer to satisfy his debts, Bradford and the other mall office employees initially insisted that Ven-to release the mall from all claims before permitting him to show his merchandise to the potential buyer. The buyer left without completing the sale and did not return until Vento was permitted to show him the store without signing the release form. When Vento was allowed to reenter the store, he found that more merchandise was missing. It is undeniable from these facts that Vento was wronged by these events. However, the weakness in the appellees’ civil conspiracy allegation is the paucity of evidence showing that Bradford and Taylor agreed to work together. Appellees refer us to International Bankers Life Ins. Co. v. Holloway, 368 5.W.2d 567, 581 (Tex.1963), which stated that, in conspiracy cases, the injured party must necessarily have recourse to circumstantial evidence. For it is only by the inferences and deductions which men properly and naturally draw from the acts of others in such cases, that their intentions can be ascertained. They are not likely to proclaim them in the hearing of witnesses. To that end, appellees point to several pieces of circumstantial evidence in support of the jury’s verdict. Appellees argue that the evidence shows a close relationship between Bradford and Taylor, pointing to Taylor’s low rent, Bradford’s apparent lack of concern that Taylor may have been shortchanging the mall on the percentage of his store’s sales owed to the mall, and the Christmas tree deals between the two. Appellees argue that Bradford was motivated by a need to recover money owed to the mall by Taylor, who had proven to be unreliable in meeting his financial obligations. Under this theory, Bradford and Taylor plotted to induce Vento to bring his merchandise into the store and then remove him, leaving Taylor to sell Vento’s merchandise, which would enable Taylor to pay off his debts while also allowing a profit for both of them. Appellees also suggest that Bradford was looking forward to removing the sports memorabilia store from the mall altogether and replacing it with a different kind of store. We will first examine appellees’ pieces of circumstantial evidence one at a time. We first consider whether the rent on Taylor’s store indicates whether Bradford and Taylor had a close relationship wherein Bradford offered special favors to Taylor. Bradford testified that Taylor was part of the mall’s “Retail Development Program” (RDP), a program that offered reduced rental rates for small businesses. Taylor’s acceptance into the RDP and his negotiation for a base rent of $770 both preceded Bradford’s arrival at the mall in March, 1993. At any given time, there were approximately two dozen other RDP tenants in the mall. Bradford also testified that if Taylor were not operating his store in the space, the space would be empty because there were more spaces at the mall than tenants to fill them. This testimony was clear, positive, direct, and could be readily contradicted if untrue. Lofton, 777 S.W.2d at 386. The record evidence does not provide any indication that Taylor received preferential treatment from Bradford regarding his rent. We next consider Bradford’s attitude about Taylor shortchanging the mall on its percentage of the store’s sales. Vento testified that he told Bradford that Taylor had been under-reporting his sales to avoid paying overages, but Bradford “just raised his hands and said ‘what are you going to do about it. You know, what can I do?’ ” Vento also testified that “there was no auditing system” in the mall for checking the sales reported by mall tenants. It appears from Vento’s own testimony that while Bradford may have been somewhat lax about collecting the overages, there was no indication that Bradford showed any special preference for Taylor in this regard. Bradford testified that one to three tenants would be audited each year, and that the mall always selected tenants from whom it was likely to get the most money out of the audit. RDP tenants were never audited because the audits were very expensive and the mall would not recoup the cost of the audit. This testimony was also clear, positive, direct, and could be readily contradicted if untrue. Id. We conclude that Bradford’s attitude regarding the overages from Taylor’s store does not lend any support to appellees’ conspiracy theory. Appellees also questioned Bradford’s practice of continuing to do business with Taylor involving the sale of Christmas trees after Taylor had failed to pay the electricity bills for the store. Taylor and his wife were the local representatives of Sunnyview Christmas Tree Farm, a company that sold Christmas trees and negotiated leases for space to sell the trees in the mall parking lot. Bradford explained that Sunnyview always paid their rent up front, and there had never been any trouble with Sunnyview at the mall. Neither Taylor nor his wife were ever involved in any of the lease negotiations between the mall and Sunnyview. Here again, we fail to see how Bradford’s willingness to continue doing business with Sunnyview provides even circumstantial evidence of a conspiracy between Bradford and Taylor. We next consider Bradford’s possible financial motivations for conspiring to remove Vento and reinsert Taylor. One of the premises of this theory is appellees’ argument that Taylor had become unreliable in meeting his financial obligations. Appellees argue “Taylor couldn’t pay rent without bouncing checks and he hadn’t paid electricity since May.” It is true that Taylor had a history of bouncing rent checks. However, Bradford testified that Taylor always “made up” his payments. The mall had also taken steps to relieve themselves of the inconvenience of bounced checks from Taylor by requiring him to pay his rent by cashier’s check. Regarding the unpaid electricity bills, it is important to note that, according to Vento, he and Taylor became partners in May or June. Therefore, Vento would also be liable for a portion of the unpaid electric bills. We agree with appellees that there is some evidence indicating that Taylor’s bill-paying habits were not very good. Of course, this evidence was presented not merely to show that Taylor’s bill-paying habits were not very good, but to suggest that, by tolerating Taylor’s debt-prone habits, Bradford showed preferential treatment for Taylor, which, in turn, supports the likelihood that the two would later conspire together. However, a chain of inferences can only be stretched so far before it breaks. Vital facts may not be proven by unreasonable inferences or by piling inference upon inference. Bernstein v. Portland Sav. and Loan Assoc., 850 S.W.2d 694, 706 (Tex.App. — Corpus Christi 1993, writ denied). We believe appellees’ argument stretches the evidence past the breaking point. This brings us to the next premise in appellees’ argument, that it served Bradford’s financial interests to have Taylor, not Vento, running the store. Appel-lees’ theory is that Bradford needed Taylor to remain at the mall so he could make enough to pay the money he owed for electricity. However, as mentioned above, Vento was also liable for approximately half of the electricity bills. Appellees also discuss how inducing Vento to move his merchandise into the store and then replacing him with Taylor allowed the mall to profit from the overages that would be made on Vento’s merchandise. Even disregarding the argument made elsewhere by appellees concerning Taylor’s habit of under-reporting his sales to avoid paying overages (which would suggest that Vento was preferable to Taylor as a tenant), it is not apparent why it would be more profitable to the mall to have Taylor selling Vento’s merchandise than it would be to have Vento selling Vento’s merchandise. All Bradford stood to gain by conspiring to reinstall Taylor was an improved chance to recover the portion of the store’s unpaid electric bills that Taylor was individually liable for. Taylor had also indicated several times that he wanted to get out of the business, while Vento was eager for a long-term lease. It appears contrary to Bradford’s long-term interests to permanently sabotage Vento’s business, when all he stood to gain was recovery of a portion of the unpaid electric bills. Although appel-lees suggest that Bradford desired to replace the sports memorabilia store with a different kind of store, the evidence indicates that the mall had vacant spaces for other tenants whether the sports memorabilia store left or not. We hold that the evidence was insufficient to support a finding that Bradford and Taylor conspired to oust Vento from the store during the first week of October and replace him with Taylor. Next, we consider the alleged conspiracy centering around the lease agreement entered into by Bradford and Taylor on October 17, wherein Taylor was given a lease for November and December. The lease was obviously a combination by two or more persons. However, we hold that the evidence was legally insufficient to show that Bradford knew that the lease to Taylor was for an unlawful purpose. If there were evidence that Bradford knew the lease would have the effect of facilitating Taylor’s sale of Ven-to’s merchandise, that would constitute evidence that Bradford knew that the lease was for an unlawful purpose. However, because the evidence shows that Bradford received conflicting information from Taylor and Vento regarding the ownership of the business, the evidence does not establish that Bradford knew conclusively that the business belonged to Vento. Vento testified that on October 4 he told Bradford that he had bought the business from Taylor, and that he showed Bradford the contract. However, on October 6, Bradford encountered a confrontation between Taylor and Vento, with both claiming ownership. Thereafter, Vento left the mall and according to his own testimony, did not return to the mall or have any further contact with Bradford for several weeks. Vento did not file his original petition contesting ownership of the business until November 8, 1994, roughly three weeks after Bradford and Taylor entered the lease. We hold that the evidence was legally insufficient to establish that Bradford knew Vento owned the business and that leasing to Taylor would be unlawful. Regarding the allegation of a conspiracy between Bradford, Simon, and Golden in demanding a release from Vento of his claims against the mall, appellants respond that it is a rule of law that agents and their principals cannot conspire together, citing Fojtik v. First Nat’l Bank, 752 S.W.2d 669, 673 (Tex.App. — Corpus Christi 1988), writ denied per curiam, 775 S.W.2d 632 (Tex.1989). All parties concede that Bradford was the agent of Simon and Golden. Appellees argue, however, that there is no evidence to show that Simon and Golden were the same company, or that one was the subsidiary of the other, citing Atlantic Richfield Co. v. Misty Prod., Inc., 820 S.W.2d 414, 420 (Tex.App. — Houston [14th Dist.] 1991, writ denied) (a corporation can not conspire with itself, no matter how many corporate agents participate in the alleged conspiracy). The record provides scant indication of the relationship between Simon and Golden. There is only passing mention that they are “owners,” with no further explanation provided. However, as the plaintiffs, appellees had the burden of providing adequate evidence to support their conspiracy cause of action. Therefore, they had the burden of proving that Simon and Golden were separate entities (and therefore could conspire together) rather than appellants having the burden of proving otherwise. Appellees failed to meet this burden. Appellants’ first point of error is sustained. V. Tortious Interference with Prospective Contracts We next consider appellants’ challenges to the jury finding that they tortiously interfered with appellees’ prospective contractual relations. Appellants contend that appellees waived their right to recover on this cause of action by failing to secure a finding from the jury that they suffered damages as a result of this tor-tious conduct. We disagree. Appellants’ complaint centers around a typographical error in the jury charge. The jury charge in this case was designed so that first the jury was asked about liability and then an accompanying question asked about damages. For example, question 1 asked “Did any of the defendants commit fraud against Roell Vento?” The jury was instructed that, if they answered question 1 with a ‘Tes,” they should answer question 1A, which asked about damages. Question 8, which asked the jury about the elements of liability for tortious interference, specifically asked “Did any of the defendants listed below wrongfully interfere with plaintiffs prospective contractual relationships with their customers, proximately causing damages?” The jury answered “yes” to defendants Taylor and Bradford, but answered “no” to defendants Simon and Golden Ring. Question 8A was prefaced with the instruction: “If you answered question 8 ‘Tes” then answer this question. Otherwise do not answer the following question.” However, question 8A actually asked “What sum of money, if paid now in cash, would fairly and reasonably compensate the plaintiffs for damages, if any, you attribute to the conduct complained of in question no. 3 ?” (emphasis added). Question 3 asked the jury whether Taylor had breached his fiduciary duty as a partner to Vento. Appellees argue that the reference in question 8A to question 3 rather than question 8 is undoubtedly a typographical error. We agree. Throughout the jury charge, which ran thirty-three pages and included nineteen questions, the charge was consistently organized such that the jury was first asked about liability, and then, if they answered yes, an accompanying question asked about damages. The liability and damages questions shared the same question number for all causes of action except tortious interference with business relations. A jury’s verdict should not be reversed based on a typographical error. See Miller v. State, 846 S.W.2d 513, 515 (Tex.App. — Texarkana 1993, pet. ref'd) (conviction should not be reversed because of typographical error in the jury charge); see also Fain v. State, 688 S.W.2d 235, 238-39 (Tex.App. — El Paso 1985, aff'd 725 S.W.2d 200 (Tex.Crim.App.1986)) (typographical error in jury charge susceptible to lay, common sense correction not grounds for reversal). We hold that the amount of damages listed by the jury in question 8A was properly incorporated into the court’s judgment as damages for tortious interference with prospective contractual relations, and overrule appellants’ third point of error. To establish a cause of action for tortious interference with a prospective business relationship, the plaintiff must show: (1) a reasonable probability that a contractual relationship would have been entered; (2) an intentional, malicious intervention with the formation of that relationship; (3) without privilege or justification; and (4) resulting in actual damage or loss. Hill v. Heritage Resources, Inc., 964 S.W.2d 89, 109 (Tex.App. — El Paso 1997, pet. denied) (citing Gonzalez v. San Jacinto Methodist Hosp., 905 S.W.2d 416, 421 (Tex.App. — El Paso 1995), rev’d on other grounds sub worn., Calvillo v. Gonzalez, 922 S.W.2d 928 (Tex.1996)); see also Garner, 944 S.W.2d at 477. It is not necessary to prove that the contract would have certainly been made but for the interference; it must be reasonably probable, considering all of the facts and circumstances attendant to the transaction. Hill, 964 S.W.2d at 109. The prospective contractual relations identified by appellees were Vento’s prospective contracts with the customers of his store, and later the prospective contract with Louis Martin to sell the business. In the present case, the charge to the jury regarding tortious interference with prospective contractual relations omitted the element of absence of justification, but no objection was raised at trial regarding the omission. A review of the evidentiary basis of a judgment includes both questions asked and questions omitted. Crosbyton Seed Co. v. Mechura Farms, 875 S.W.2d 353, 364 (Tex.App.— Corpus Christi 1994, no writ). When a jury awards damages based on a charge that omits an element necessary to sustain a ground of recovery, the trial court can either file a written finding regarding the missing element or render judgment without one. See Tex.R. Civ. P. 279; State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex.1995). If, as in the present case, the trial court does not file a written finding, the omitted element is deemed found in support of the judgment as long as no objection was made and the evidence supports such a finding. See Tex.R. Civ. P. 279; State Farm, 907 S.W.2d at 437. The deemed findings must be supported by factually sufficient evidence. Mechura Farms, 875 S.W.2d at 364. We first consider the contract to sell the business to Louis Martin. When Vento and Martin went to the mall office wishing to settle Vento’s debts and view the business’s merchandise to reassure Martin before the sale, they were told that they would not be permitted to enter the store until Vento signed a release form releasing the mall from all liability. Martin testified that if he had been permitted to view the store on the day he and Vento went to the mall office, he would have refused to consummate the deal due to the disheveled state of the store’s merchandise. While Vento insinuates that Bradford and/or Taylor are responsible for the “total disarray” and missing merchandise, there is no evidence of who caused this destruction. Most importantly, there is no evidence that the destruction took place during the week between the day Vento and Martin went to the mall office and the day Vento was allowed to remove his merchandise. Without evidence that the destruction occurred that week, we may not presume that the store was in better condition on the first date, and Martin testified that his initial offer was premised on finding the store and its merchandise in good condition. We conclude that there is no evidence that Bradford’s demand for a release interfered with Vento’s contract with Martin. However, legally and factually sufficient evidence does support appellants’ recovery for the prospective contracts with Vento’s customers. The evidence shows a reasonable probability that contractual relations would have been entered into. Vento had considerable experience in selling sports memorabilia, a large collection of merchandise, and an established and expanding customer base. He also testified to the volume of customer sales at the store during his association with Taylor and following his purchase of the store. Appellants contend that appellees have failed to satisfy this element of the cause of action because they failed to identify any specific contract that had been interfered with, citing Robles v. Consolidated Graphics, Inc., 965 S.W.2d 552, 561 (Tex.App. — Houston [14th Dist.] 1997, pet. denied). We do not agree that Robles supports appellants’ position, or that appellants’ position is a correct statement of the law. The actual holding in Robles was to uphold a summary judgment in favor of the defendant on the ground that one prospective contract was illegal and unenforceable as against public policy, and, with regard to the other contract at issue, the defendant’s conduct was justified. Robles, 965 S.W.2d at 561. Although the facts of Robles concern specific contracts, there is no language in the Robles opinion requiring the identification of specific contracts. Rather, all Texas law requires is “a reasonable probability that the parties would have entered into a contractual relationship.” Garner, 944 S.W.2d at 477. There is also sufficient evidence to support the second element, an intentional and malicious intervention with the formation of the contractual relationship. Vento testified he told Bradford that he had purchased the store and showed him the signed sales contract during the October 4 meeting. According to Vento, when the police were called to the store two days later on October 6, in response to the dispute between Vento and Taylor, Bradford failed to tell the police of his knowledge regarding Vento’s claims of ownership or even that it was his understanding that Vento was in the process of purchasing the store; instead, he unequivocally told the police “the store belongs to Tom [Taylor].” Vento also testified that he was forced to leave the store and deprived of any opportunity to conduct business when, at Bradford’s direction, the police advised him to leave the store and threatened to arrest him on charges of criminal trespass if he returned. The evidence similarly supports the deemed finding of the third element, absence of privilege or justification. As manager of the mall, Bradford may have been justified in telling the police that although ownership of the store was in dispute, the mall’s records nonetheless reflected that Taylor was the leaseholder of a non-assignable lease. Bradford was not justified, however, in telling the police that Taylor owned the store, without mentioning that Vento had paid the rent two days earlier and had told him he was the new owner. The jury considered the emotional distress, mental anguish, and lost profits caused by Bradford’s tortious conduct, and found that the Ventos would be fairly and reasonably compensated for such tortious interference by awarding them $20,000 in damages for lost profits and $10,000 in damages for mental anguish. As a result of Bradford’s statements to the police, Vento was denied access to his property and deprived of the opportunity to conduct business from October 6 until November 23, 1994, at which time he returned to the store to find the value of the store’s inventory was approximately $35,000 to $40,000 less than it had been on October 6 when he was ejected from the property. We hold the evidence shows that Vento suffered damages because of Bradford’s tortious conduct, and overrule appellants’ fourth point of error. VI. Intentional Infliction of Emotional Distress Next, we consider appellants’ challenge to the legal and factual sufficiency supporting the jury finding in favor of appellees on their claim for intentional infliction of emotional distress. To recover under this tort, the plaintiff must prove that 1) the defendant acted intentionally or recklessly, 2) the conduct was “extreme and outrageous,” 3) the actions of the defendant caused the plaintiff emotional distress, and 4) the resulting emotional distress was severe. Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.1993). The “intent” element of this tort requires that the actor either intend to cause severe emotional distress, or that severe emotional distress be the primary risk created by the actor’s conduct. Standard Fruit and Vegetable Co., Inc., et. al. v. Johnson, 985 S.W.2d 62, 63 (Tex.1998). Rude behavior does not equate to outrageousness, and behavior is not outrageous simply because it is tortious. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). Rather, the “outrageous” element is meant to require behavior that is “beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993). “Severe emotional distress” means distress so severe that no reasonable person could be expected to endure it without undergoing unreasonable suffering. Benavides v. Moore, 848 S.W.2d 190, 195 (Tex.App.— Corpus Christi 1992, writ denied). Appellees point to six actions taken by Bradford which they argue were extreme and outrageous. They are: (1) misleading Vento into believing he was secure in his status as a tenant; (2) conspiring with Taylor to deprive him of the business and his personal collection, much of which was located in the store; (3) lying to the police about who owned the business and threatening Vento with trespass charges; (4) subsequently entering a lease with Taylor that facilitated Taylor’s sale of Vento’s property; (5) allowing Vento’s property to be ransacked and stolen while Vento was locked out of the store; and (6) demanding that Vento release all claims before releasing a key when Vento and Martin came to pay Vento’s debts and see the store. The evidence supports the jury’s finding of liability for intentional infliction of emotional distress. Bradford’s threatening Vento with criminal trespass charges, his unequivocal statement to the police that Taylor was the owner of the store, and his failure to inform the police of the dispute over ownership are evidence that Bradford’s conduct was extreme and outrageous and caused Vento to suffer severe emotional distress. The jury could reasonably have concluded that Bradford’s conduct was intended or primarily likely to cause Vento severe emotional distress. Vento testified that at Bradford’s direction, he was forced to leave the store on October 6 without being allowed to retrieve any personal belongings, including items from his personal collection. He also testified that following his ejection from the store, he became depressed and physically ill, lost weight, suffered nausea and loss of appetite, and was embarrassed and humiliated by having to explain his plight to former customers. He testified that sports memorabilia collectors and dealers are a “very tight” community, that people heard that “something is going on,” and that his reputation and credibility were irreparably damaged by being “thrown out” of his own store. Appellees also identified Bradford’s refusal, in January 1995, to allow Vento access to the property unless he agreed to execute a release of all claims against the mall. Vento had requested access for the limited purpose of showing the property to Louis Martin, a prospective buyer. Bradford’s conduct was extreme because it was unjustified, unnecessary to protect the mail’s interests, and interfered with Ven-to’s opportunity to sell the property. Moreover, the jury could reasonably have concluded that the “primary risk” created by Bradford’s conduct was severe emotional distress for Vento. We find the evidence legally and factually sufficient to support the jury’s finding of liability for intentional infliction of emotional distress and overrule appellants’ fifth point of error. VII. Single Injury; Joint and Several Liability for Actual Damages; Improper Stacking of Damages Appellants contend that, if we determine that the jury’s finding of a civil conspiracy was not supported by legally sufficient evidence, then there is no basis for making the appellants jointly and severally liable for the damages attributable to Taylor. However, a civil conspiracy is not the only basis for imposing joint and several liability. Joint and several liability is also appropriate when the tortious acts of multiple tortfeasors combine to produce a single, indivisible injury. Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563, 565 (1949); Bristol-Myers Co. v. Gonzales, 548 S.W.2d 416, 427 (Tex.Civ.App. — Corpus Christi 1976, rev’d on other grounds, 561 S.W.2d 801 (Tex.1978)). The term “indivisible injury” means an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers. Amstadt v. United States Brass Corp., 919 S.W.2d 644, 654 (Tex.1996) (citing Landers v. East Tex. Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731, 734 (1952)). This is such a case where the injuries suffered by the Ventos cannot be apportioned with reasonable certainty to the individual wrongdoers. For example, the mental anguish suffered by the appellees that resulted from Taylor’s fraud and breach of fiduciary duty cannot be distinguished from the mental anguish suffered as a result of Bradford’s tortious interference with prospective contractual relations. Similarly, it is not possible to separate the profits lost by the appellees as a result of Taylor’s wrongdoing from the profits lost as a result of Bradford’s wrongdoing. The tortious acts of Bradford and Taylor, although not executed pursuant to any concerted scheme, nevertheless combined in effect to produce singular, indivisible injuries to the appellees that cannot be apportioned among the appellants. It seems most appropriate to us that, in a case such as this, involving multiple defendants and multiple causes of action which nevertheless produce a single injury, the jury should first be asked about liability issues, and then, if they have made findings sufficient to impose liability, the jury should be instructed to answer one set of damages questions that simultaneously pertains to all the causes of action and all of the defendants. However, the jury charge in this case required that the jury assess the damages for each cause of action, and the jury found differing amounts for the various types of damages under the various causes of action. The relevant jury findings are described in this table: Question Number Cause of Action Liable Type of Damages Amount of Defendants Damages 1A fraud Bradford Taylor property lost $ 14,000 Simon & Golden in reliance 1A fraud Bradford Taylor Mental anguish $750,000 Simon & Golden 3A breach of fiduciary duty Taylor lost profits $100,000 3A breach of fiduciary duty Taylor mental anguish $250,000 6B DTPA “laundry list” Bradford and Taylor Lost use of property $100,000 6B DTPA “laundry list” Bradford and Taylor expenses $ 20,000 6C DTPA “laundry list” Bradford and Taylor lost profits $100,000 8A tort, interference with contract Bradford and Taylor lost profits $ 20,000 8A tort, interference with contract Bradford and Taylor mental anguish $ 10,000 10 DTPA “unconscionable” Bradford and Taylor omitted omitted Therefore, we are confronted with mental anguish findings of $750,000, $250,000, and $10,000; lost profits findings of $100,000 and $20,000; and a finding of $14,000 in property lost in reliance on fraud. Texas recognizes the “one satisfaction” rule, which prevents a plaintiff from obtaining more than one recovery for the same injury. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex.1991). This rule applies when defendants commit the same act as well as when defendants commit differing acts which result in a single injury. Id. A jury award of differing amounts for the same type of damages under different causes of action does not prevent the application of the one satisfaction rule if the plaintiffs suffered only one injury. Berry Property Management v. Bliskey, 850 S.W.2d 644, 666 (Tex.App.— Corpus Christi 1993 writ dism’d by agr.). Where the prevailing party has not elected a single recovery from among the jury’s findings, the court should use the findings affording the greater recovery and render judgment accordingly. Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 367 (Tex.1987). Applying this rule to the facts of this case, we hold that the Ventos are limited to electing only $750,000 in mental anguish damages, $100,000 in lost profits, and $14,000 in property lost in rebanee on fraud. Because the wrongful acts of Taylor and Bradford combined to produce these damages and the damages cannot be reasonably apportioned between them, the appellants are jointly and severally liable with Taylor for the full amount of actual damages which survives appellants’ various challenges in this appeal. VIII. DTPA Finally, we consider appellants’ challenge to the jury finding in favor of appel-lees on their DTPA claim and the appel-lees’ cross point which argues that the trial judge erred in requiring them to elect between remedies, which prevented them from recovering the damages awarded by the jury on their DTPA cause of action. The elements of a DTPA “laundry list” cause of action are: (1) the plaintiff is a consumer, (2) the defendant engaged in a false, misleading, or deceptive act or practice, (3) that was relied on by the consumer, and (4) that constituted a producing cause of the consumer’s actual damages. Tex. Bus. & Com.Code Ann. § 17.50(a)(1) (Vernon 1987). Although the appellants argue that there was insufficient evidence that Bradford committed a “laundry fist” DTPA violation, they did not challenge the sufficiency of the evidence supporting a violation by Taylor, and we have determined that the appellants are jointly and severally liable for the actual damages assessed by the jury on all causes of action. Furthermore, the damages found by the jury on the “laundry fist” DTPA claim are no greater than those found by the jury on other causes of action brought by the ap-pellees, which we have already found to be supported by factually and legally sufficient evidence. Therefore, the appellants’ arguments that Bradford did not commit a “laundry list” DTPA violation are moot. The jury also found that Taylor and Bradford had committed DTPA “unconscionable” violations. The elements of a DTPA “unconscionable” cause of action are (1) the plaintiff is a consumer, (2) the defendant engaged in an unconscionable action or course of action, (8) that constituted a producing cause of the consumer’s damages. Tex. Bus. & Com.Code Ann. §§ 17.50(a)(1); 17.50(a)(3) (Vernon Supp. 1987). An “unconscionable action or course of action” is “an act or practice which, to a consumer’s detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree” or “results in a gross disparity between the value received and consideration paid, in a transaction involving transfer of consideration.” Tex. Bus. & Com.Code Ann. § 17.45(5) (Vernon 1987). Proof that a defendant has taken advantage of a consumer’s lack of knowledge, ability or experience to a grossly unfair degree requires proof of “resulting unfairness that was glaringly noticeable, flagrant, complete and unmitigated.” Chastain v. Koonce, 700 S.W.2d 579, 584 (Tex.1985). For determining whether one is a consumer under the DTPA, the Texas Supreme Court has adopted this test: (1) acquiring or seeking to acquire goods or services by purchase or lease and (2) those goods or services must be the basis of the complaint. Id. at 581. However, the jury charge did not ask the jury to assess damages for this cause of action. The appellees urge us to consider the entire actual damages awarded by the trial court, $1,274,000, as a deemed finding on the damages issue under rule 279. The judgment stated that “Defendants Simon Property Group L.P., Golden Ring Mall Company, Bruce Bradford, individually and Tom Taylor individually are jointly and severally hable for damages found by the jury in questions 1A, 3A, 8A, 9A, HA(c) which total $1,274,-000.” The actual total of the amounts the jury awarded in the answers listed by the trial court is $1,393,000. Had the figure in the trial court’s judgment exceeded the total amount the jury awarded for the causes of action the trial court intended to include in the judgment, it might be possible to infer that the trial court intended the excess to reflect a deemed finding of damages for the Ventos’ DTPA cause of action. However, because the trial court awarded less than the jury awarded for the causes of action the trial court apparently intended to include in the judgment, we cannot say that any of the trial court’s award of actual damages was meant to reflect a deemed finding of damages for the Ventos’ DTPA cause of action. Furthermore, the trial court’s delineation of the amounts awarded by the jury for the various causes of action that contributed to the overall actual damages award works against the Ventos’ argument that the judgment contains a deemed finding of damages on their DTPA causes of action. The court did not include the Ventos’ recovery under the DTPA in its itemization. Therefore, it is not possible to conclude that recovery of any amount of damages under the DTPA “support[s] the judgment.” Tex.R. Civ. P. 279. The harm caused to the appellees by the misconduct underlying both DTPA causes of action was the same. Therefore, the appropriate damages on the appellees’ DTPA “unconscionable” cause of action are no m