Full opinion text
OPINION WILLIAM J. BOYCE, Justice. This consolidated matter encompasses three appeals, multiple parties, and a multitude of appellate issues in connection with a fight that occurred during an attempt to tow a pickup truck from an apartment complex parking lot. We affirm the trial court’s judgment in part, and reverse and render in part. OVERVIEW Wrecker driver Brock Keith Dion and his helper, Samuel Lee Thompson, attempted to tow Feliciano Alvarado’s pickup truck from the Charleston Court Apartments parking lot on August 28, 2005. Feliciano and his brother, Juvenal Alvarado, fought with Dion and Thompson during the attempt. Juvenal lived with his wife and children at Charleston Court. Feliciano was visiting Juvenal when Dion and Thompson attempted to tow Feliciano’s pickup truck. Juvenal was arrested after the fight and charged with a felony, aggravated assault with a deadly weapon. After Juvenal spent seven months in jail, the case against him was re-filed as a misdemeanor criminal mischief charge. Two days after the misdemeanor charge was filed, the initial felony charge was dismissed. Juvenal then agreed to a plea bargain on the misdemeanor charge and was released from jail on March 24, 2006. Juvenal and Feliciano subsequently filed a civil suit asserting various tort claims. The litigation spawned by the 2005 fight in the Charleston Court parking lot involves nearly a dozen individuals and entities. Arrow Towing owned the wrecker and had a contract to tow improperly parked vehicles from the Charleston Court parking lot. Arrow’s sole owner is Robert Groce Dill. Charleston Court Apartments is owned by Soon Phat, L.P. In turn, Soon Phat, L.P. has four partners: Yin Soon Choi, Mei Lian Choi, Paul Seto, and Sue Oi. These partners also are officers of Dersing Inc., a separate entity that wrote checks to Charleston Court employees. Mei Lian Choi worked as Charleston Court’s office manager. Mesha Boyles was a security guard at Charleston Court and was on duty at the time of the fight. Juvenal and Feliciano sued Dion; Thompson; Dill, individually and d/b/a Arrow Towing; Soon Phat, L.P., individually and d/b/a Charleston Court Apartments; Yin Soon Choi; Mei Lian Choi; Dersing, Inc.; and Boyles. Juvenal and Feliciano asserted multiple causes of action includ-mg assault, false imprisonment, negligent hiring and retention, and malicious prosecution. The claims were tried to a jury in 2010. The jury returned a unanimous verdict in favor of Juvenal and Feliciano on all claims submitted in the jury charge. The trial court granted the defendants’ motion to disregard the jury’s findings as to liability and damages for malicious prosecution; it signed a final judgment awarding damages in favor of Juvenal and Feliciano on their remaining claims. All parties appealed from the trial court’s final judgment except Boyles. In cause number 14-10-00555-CV, Soon Phat, L.P., individually and d/b/a Charleston Court Apartments, Yin Soon Choi, Mei Lian Choi, and Dersing, Inc. (collectively, the “Charleston Court Appellants”) appeal the trial court’s judgment raising 14 issues; Juvenal and Feliciano Alvarado raise one cross-point. In cause number 14-10-00603-CV, Juvenal and Feliciano Alvarado appeal the trial court’s judgment raising four issues; the Charleston Court Appellants raise one cross-point. In cause number 14-11-00033-CV, Dion, Thompson, and Dill, individually and d/b/a Arrow Towing, appeal the trial court’s judgment raising three issues; Juvenal and Feliciano Alvarado raise one cross-point. All three appeals were consolidated. Factual Background The parties vigorously dispute many facts surrounding the fight. The jury saw a video recorded by four cameras mounted inside the tow truck, which captured some of what happened. Juvenal and his wife hosted a birthday party for their daughter at their Charleston Court apartment on August 28, 2005, attended by about 30 friends and family members. Feliciano arrived in the evening to attend the party. Feliciano parked his pickup truck in a handicapped parking spot in the apartment parking lot. Shortly thereafter, an Arrow Towing wrecker towed Feliciano’s truck and took it to a nearby impound. Juvenal, Feliciano, Juvenal’s son-in-law Juan Pin-era, and a friend rode in Juvenal’s truck to the impound to retrieve Feliciano’s truck. Pinera drove Feliciano’s truck back to Charleston Court; Feliciano rode back with Juvenal in Juvenal’s truck. No parking spaces were available when they arrived back at Charleston Court. Dion and Thompson already were at Charleston Court because security guard Boyles had asked for a wrecker to come to the property. Feliciano testified that Pin-era was still sitting in Feliciano’s truck with the engine running when Dion backed up his wrecker to hook onto Feliciano’s truck. Feliciano and Juvenal exited Juvenal’s truck and walked toward the wrecker to talk to Dion. Feliciano testified that the wrecker was lifting Feliciano’s truck, so Feliciano yelled at Pinera to drive off with the truck to prevent Dion from towing it. Pinera and Feliciano testified that Pinera managed to drive off with Feliciano’s truck. Dion testified that he could not remember whether he hooked up Feliciano’s truck. However, Dion denied that anyone was sitting in Feliciano’s truck and stated that he never would hook up a vehicle with its engine running and a person inside. Feliciano testified that, after Pinera drove off with his truck, he went to Dion to question him about why he wanted to tow his truck. He testified that he was not angry when he went to talk to Dion; another party guest, Javier Cardenas, testified that Feliciano was “mad,” and Pinera testified that Feliciano and Juvenal both were angry because Feliciano’s truck had been towed. Feliciano stated that he did not argue with Dion and never put his hands on him or pushed him. According to Feliciano, Thompson immediately pepper-sprayed his face and chest and then hit him in the head. Felici-ano’s friend, Moisés de la Torre, testified that Thompson hit Feliciano in the head with a flashlight Boyles had given Thompson. Feliciano testified that Juvenal’s daughter pulled him away; washed his face because he could not see and was bleeding; and took him up to the apartment until an ambulance arrived. Felici-ano stated that he received 14 staples on his head and could not woi'k for one week because of his head injury. Juvenal testified that when Pinera drove off in Feliciano’s truck, Juvenal parked his truck and Feliciano walked over to Dion to show him paperwork demonstrating that Feliciano’s truck already had been towed once that evening. According to Juvenal, Thompson then “came up” to Feliciano and struck him with a flashlight on the head. Juvenal testified that he wanted to take Feliciano up to his apartment because Fel-iciano could not see anything, but Thompson also struck Juvenal on the forehead with a flashlight and he started bleeding. Juvenal stated that he was afraid and wanted to drive away in his truck. He tried to back up in his truck but instead put the truck into neutral; he did not know what happened, but the “truck went into the wrecker.” Juvenal testified that after his pickup truck “went into the wrecker,” he heard Thompson hit and break the truck’s passenger window with a flashlight. Juvenal testified that Thompson got into his truck and beat him, breaking his nose; during the struggle, Thompson broke the pickup truck’s gear shift. According to Juvenal, Thompson dragged Juvenal out of his truck to a nearby dumpster and sat on him until the police arrived; Juvenal denied trying to run away. Juvenal denied touching Dion or Thompson that night. He also denied that his truck struck or touched the wrecker. However, Cardenas testified that Juvenal “slammed” into the wrecker with his pickup truck. Dion testified that he did not remember the confrontation with Feliciano specifically, but he did remember that Feliciano was angry when he approached him. According to Dion, Feliciano either pushed or hit him; Dion pepper-sprayed Feliciano in response. Dion testified that he saw Juvenal’s pickup truck coming at him as he was walking back to the wrecker. According to Dion, Juvenal’s pickup truck hit the driver’s side door of the wrecker after Dion jumped in the driver’s seat and closed the door. Dion then jumped out of the wrecker’s window onto the hood of Juvenal’s truck and kicked the truck’s windshield. Dion testified that he saw Thompson and Juvenal struggling inside Juvenal’s pickup truck. He testified that Thompson kicked Juvenal to the ground because Juvenal tried to run away, and kept Juvenal on the ground until the police arrived. Dion testified that police officers responding to the incident initially “leaned” toward arresting Dion and Thompson, but then decided against doing so after watching a video of the incident captured by the wrecker’s cameras. Thompson testified that he was checking for parking stickers on vehicles parked in the Charleston Court parking lot when he heard a “commotion” and walked back the wrecker. Thompson did not hear what Dion, Feliciano and Juvenal talked about when they first approached Dion. According to Thompson, Feliciano was hitting, pushing, and shoving Dion; Thompson tried to defuse the situation by getting between Dion and the brothers. Thompson acknowledged pushing or hitting “somebody;” he stated that Dion pepper-sprayed Feliciano and Feliciano ran away. Thompson denied hitting Feliciano with a flashlight and denied that Boyles had given him a flashlight; Thompson stated that Feliciano might have hit his head when he tried to run away after being pepper-sprayed. Thompson testified that Juvenal backed up his pickup truck and drove it into the wrecker. Thompson testified that he was afraid Dion had been pinned between the truck and the wrecker because could not see Dion when he heard the truck hit the wrecker. Thompson stated that he broke the passenger window to enter Juvenal’s truck because Juvenal had locked the doors; he fought with Juvenal over the gear shift because Juvenal continued pushing on the gas pedal. According to Thompson, Juvenal tried running away but Thompson caught up with him, kicked him, and then sat on him until the police arrived. Officer Syed Bukhari of the Houston Police Department testified that he arrived at the scene to relieve officers Caldwell and Villarreal, who had been dispatched to the scene to conduct an investigation. Bukhari testified that Caldwell and Villarreal already had interviewed Feliciano, Juvenal, Dion, Thompson, Boyles and several other witnesses, and had completed their investigation when he arrived. Caldwell and Villarreal informed Bukhari that they had contacted Assistant District Attorney Baker about the incident, and that Baker already had accepted charges against Juvenal for aggravated assault with a deadly weapon. Bukhari testified that he conducted his own investigation, interviewed everyone at the scene again except for Juvenal and Feliciano, who had been taken to the hospital, and completed his police report. As part of the investigation, Bukhari stated that he reviewed the wrecker cameras’ video recordings at the scene; the recordings clearly showed that Juvenal’s truck rammed into the wrecker on the driver’s side door, which caused the camera to shake. Bukhari concluded that “aggravated assault charges were correct.” Bukhari testified that he saw all four angles on the video he reviewed at the scene. In contrast to the video Bukhari viewed at the scene, the video shown at trial was not a continuous video that showed all angles. Rather, it was a stop-frame video of inferi- or quality that showed a partial recording from two camera angles. Dill testified that he believed his wrecker cameras recorded the entire incident, but his employee was unsuccessful in downloading the recording after the incident. Dill claimed that he turned the “entire machine over to the District Attorney’s Office to let them try to retrieve it.” Assistant District Attorney Ian Frazier McNeil, who later was assigned to handle Juvenal’s aggravated assault with a deadly weapon charge, testified that the video was extracted at the District Attorney’s office from the laptop of Dill’s employee, Stacey Holland. McNeil also testified that he decided to re-file the felony case against Juvenal as a misdemeanor case after he investigated the case further because he believed there was sufficient evidence to go forward with a misdemeanor case. McNeil stated that he did not dismiss the case against Juvenal outright because he “felt it was more properly classified as a misdemeanor.” McNeil testified that Juvenal agreed to a plea bargain on the misdemeanor case. Procedural Background The claims were tried to a jury from January 5, 2010 through January 15, 2010. The jury answered all 34 questions in the jury charge favorably for the Alvarados. Because resolution of this case turns in part on how the jury charge questions were formulated, we provide an overview of the questions and the jury’s answers. In Questions 1 through 6, the jury found that Dion and Thompson committed assault against Feliciano and Juvenal; Dion, Thompson, and Boyles assisted or encouraged the assault on Feliciano and Juvenal; and Dion, Thompson, Boyles were part of a conspiracy to commit assault on Felici-ano and Juvenal. In Questions 7 through 9, the jury found that Thompson falsely imprisoned Juvenal; Dion and Boyles assisted and encouraged the false imprisonment of Juvenal; and Dion and Boyles were part of a conspiracy to falsely imprison Juvenal. In Questions 10 through 12, the jury found that Dion, Thompson, Boyles, and Dill maliciously prosecuted Juvenal; Dion, Thompson, Boyles, and Dill assisted and encouraged the malicious prosecution of Juvenal; and Dion, Thompson, Boyles, and Dill were part of a conspiracy to maliciously prosecute Juvenal. In Question 13, the jury found that Dill and Soon Phat, L.P. engaged in a joint enterprise. In Questions 13A and 13B, the jury answered “no” to questions asking whether Dion and Thompson were justified in then-use of force against Juvenal and Feliciano. The jury awarded actual damages for assault in Questions 14 and 15; for false imprisonment in Question 16; and for malicious prosecution in Question 17. In Questions 18 through 23, the jury assessed exemplary damages in favor of Juvenal and Feliciano against Dion, Thompson, and Boyles in connection with the claims for assault, false imprisonment, and malicious prosecution. In Question 24, the jury assessed exemplary damages in favor of Juvenal against Dill in connection with the malicious prosecution claim. In Question 25, the jury found that Dill was negligent in hiring, training, supervising, or retaining Thompson. In Question 26, the jury found that Soon Phat, L.P. was negligent in hiring, training, supervising, or retaining Boyles. In Questions 27 and 28, the jury found by clear and convincing evidence that the harm Juvenal and Feliciano suffered in this case resulted from Dill’s gross negligence. In Questions 29 and 30, the jury found by clear and convincing evidence that the harm Juvenal and Feliciano suffered in this case resulted from Soon Phat, L.P.’s gross negligence. In Questions 31 and 32, the jury found that Thompson committed an aggravated assault on Juvenal and Feliciano. In Question 33, the jury found that, at the time Thompson committed the aggravated assault on Juvenal and Feliciano, (1) Thompson was “unfit” and Dill acted maliciously in employing or retaining him; or (2) Dill ratified or approved Thompson’s aggravated assault. In Question 34, the jury found that, at the time Thompson committed the aggravated assault on Juvenal and Feliciano (1) Boyles was “unfit” and Soon Phat, L.P. acted maliciously in employing or retaining Boyles; (2) Boyles was employed in a managerial capacity and was acting in the scope of employment; or (3) Soon Phat, L.P. ratified or approved Boyles’ actions. The Charleston Court Appellants filed a combined motion for judgment notwithstanding the verdict, motion to disregard jury findings, and motion for new trial on March 4, 2010. Dion, Thompson, and Dill also filed a combined motion for judgment notwithstanding the verdict, motion to disregard jury findings, and motion for new trial on April 9, 2010. The trial court held a hearing on the defendants’ respective motions on April 30, 2010. Upon the trial court’s request, the parties submitted letter briefs addressing whether Juvenal is “entitled to sustain an action against the Defendants for malicious [ ] prosecution of the felony charge of aggravated assault notwithstanding the fact that [Juvenal] ultimately pled guilty to a misdemeanor charge of criminal mischief’ after the assistant district attorney dismissed the aggravated assault charge against Juvenal. This argument was raised by the Alvarados at the hearing. After considering the parties’ motions, responses, and letter briefs, the trial court signed an order on June 8, 2010 “specifically” granting “both motions to disregard and for judgment notwithstanding the verdict as to Plaintiffs claims for malicious prosecution and all damages arising from those claims.” The trial court’s order also stated that the “parties agree that this matter presents a question of first impression and, having considered the law and the policy underlying a claim for malicious prosecution, the Court concludes that Plaintiffs malicious prosecution claims are foreclosed as a matter of law.” The trial court signed a final judgment assigning liability in light of the jury’s verdict and the court’s June 8 order. Accordingly, with regard to Feliciano’s assault claim, the trial court ordered that (1) Dill, Thompson, Dion, Soon Phat, L.P., and Boyles, jointly and severally, pay Feliciano $86,920 in actual damages; (2) Thompson pay $10,000, Dion pay $7,500, and Boyles pay $5,000 in exemplary damages to Felici-ano; (3) Dill, Thompson, Dion, Soon Phat, L.P., and Boyles, jointly and severally, pay Feliciano pre-judgment interest at a rate of five percent on the sum of $61,920; (4) Dill, Thompson, Dion, Soon Phat, L.P., and Boyles, jointly and severally, pay Feliciano post-judgment interest at a rate of five percent on the sum of $86,920; and (5) Feliciano recover post-judgment interest at a rate of five percent from Thompson on the sum of $10,000, from Dion on the sum of $7,500, and from Boyles on the sum of $5,000. The trial court also ordered that Juvenal recover from (1) Dill, Thompson, Dion, Soon Phat, L.P., and Boyles, jointly and severally, $67,000 in actual damages for assault and $1,000 in actual damages for false imprisonment; (2) Thompson $10,000, Dion $7,500, and Boyles $5,000 in exemplary damages; (3) Dill, Thompson, Dion, Soon Phat, L.P., and Boyles, jointly and severally, pre-judgment interest at a rate of five percent on the sum of $52,000 for assault and on the sum of $1,000 for false imprisonment; (4) Dill, Thompson, Dion, Soon Phat, L.P., and Boyles, jointly and severally, post-judgment interest at a rate of five percent on the sum of $67,000 for assault and on the sum of $1,000 for false imprisonment; and (5) post-judgment interest at a rate of five percent from Thompson on the sum of $10,000, from Dion on the sum of $7,500, and from Boyles on the sum of $5,000. Standards of Review A jury finding can be disregarded under Texas Rule of Civil Procedure 301 when it has no support in the evidence, or when the issue is immaterial. C. & R. Tramp., Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966). A jury finding is immaterial when (1) it should not have been submitted; or (2) although properly submitted, it has been rendered immaterial by other findings. Id.; see also Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.1994) (same); City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex.1995) (“A jury question is considered immaterial when its answer can be found elsewhere in the verdict, or when its answer cannot alter the effect of the verdict”). Legal insufficiency challenges may be sustained only when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005) (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence" Points of EiTor, 38 Tex. L.Rev. 361, 362-63 (1960)). We must consider evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. City of Keller, 168 S.W.3d at 822. If the evidence allows only one inference, neither jurors nor the reviewing court may disregard that evidence. Id. “The traditional scope of review does not disregard contrary evidence in every no evidence review if there is no favorable evidence (situation (a) above), or if contrary evidence renders supporting evidence incompetent (situation (b) above) or conclusively establishes the opposite (situation (d) above).” Id. at 810-11. If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. Id. at 822. Accordingly, the ultimate test for legal sufficiency always must focus on whether the evidence would enable reasonable and fair-minded jurors to reach the verdict under review. Id. at 827. Legal sufficiency review in the proper light must credit favorable evidence if reasonable jurors could do so, and must disregard contrary evidence unless reasonable jurors could not do so. Id. The reviewing court cannot substitute its judgment for that of the trier of fact if the evidence falls within this zone of reasonable disagreement. Id. at 822. When the parties have not objected at trial to the substance of the law set forth in the jury charge, we review sufficiency of the evidence in light of legal standards contained in the unobjected-to charge. See, e.g., Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000) (“[I]t is the court’s charge, not some other unidentified law, that measures the sufficiency of the evidence when the opposing party fails to object to the charge.”). In reviewing factual sufficiency, we must consider and weigh all the evidence. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003). We can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Id. Issues Presented I. Issues Raised by the Alvarados in No. 14-10-00603-CV In their first three issues, the Alvarados argue that the trial court erred by disregarding the jury findings as to Juvenal’s malicious prosecution claim and all damages arising from that claim. The Alvara-dos assert in their fourth issue that the trial court erroneously excluded evidence that Boyles carried a firearm without authorization because this evidence was necessary for the submission of a jury question requesting punitive damages against Soon Phat, L.P. II. Issues Raised by Charleston Court in No. 14-10-00555-CV In their first, third, fifth, sixth, eighth, and twelfth issues, the Charleston Court Appellants argue that the trial court erred by awarding damages jointly and severally against Soon Phat, L.P. on the Alvarados’ assault and false imprisonment claims because (1) Soon Phat, L.P. was not mentioned in any questions addressing Juvenal and Feliciano’s assaults and Juvenal’s false imprisonment; (2) the jury did not find Soon Phat, L.P. vicariously liable for Boyles’ actions relating to the assaults and false imprisonment; (8) the jury charge was defective and did not allow the jury to apportion responsibility among the plaintiffs and defendants as required by Section 38.003 of the Texas Civil Practice and Remedies Code; (4) the Alvarados’ pleadings at trial did not assert any basis to hold Soon Phat, L.P. vicariously liable for the actions of Thompson and Dion; and (5) there was insufficient evidence to prove any element of a joint enterprise and support vicarious liability of Soon Phat, L.P. In their second, fourth, eleventh, and thirteenth issues, the Charleston Court Appellants argue that the exemplary damages awards against Boyles are improper because (1) there was no jury finding of fraud, malice, or gross negligence attributable to Boyles; (2) there is insufficient evidence that Boyles acted fraudulently, maliciously, or was grossly negligent; and (3) “a court may not award exemplary damages against a defendant because of the criminal act of another.” In their seventh and ninth issues, the Charleston Court Appellants argue that the evidence is legally and factually insufficient to support a damages award against Boyles for the assault of Juvenal and Feli-ciano and the false imprisonment of Juvenal. In their tenth issue, the Charleston Court Appellants claim that submission of Questions 2, 3, 5, 6, 8 and 9 constituted an impermissible comment on the evidence requiring reversal. In their fourteenth issue, the Charleston Court Appellants assert that the evidence is legally and factually insufficient to support the jury’s “no” answers to Questions 13A and 13B, which asked whether Thompson and Dion were justified in using force against the Alvara-dos. III. Issues Raised by Dion, Thompson, and Dill in No. 14-11-00033-CV In their first and third issues, Dion, Thompson, and Dill “adopt the arguments and authorities presented by” the Charleston Court Appellants in their brief, They further argue that the trial court erroneously awarded Feliciano damages for assault and Juvenal damages for assault and false imprisonment “from all defendants, jointly and severally,” because (1) the jury charge did not require the jury to assign a numerical percentage of fault as required by Section 33.013 of the Civil Practice and Remedies Code; and (2) there is no evidence that Dill was individually or vicariously liable for the assaults or the false imprisonment. In their second issue, Dion, Thompson, and Dill argue that the trial court erroneously entered an exemplary damages award against Thompson and Dion in favor of Feliciano because (1) the jury charge was defective; (2) there is no evidence of Dill, Dion and Thompson’s net worth; and (3) alternatively, there is legally insufficient evidence that Thompson and Dion “acted with the requisite intent — ie., with fraud, malice, or gross negligence.” Analysis We begin by addressing the issues raised by Juvenal and Feliciano. We then address the issues raised by the Charleston Court Appellants. Finally, we address the issues raised by Dion, Thompson, and Dill. 1. Juvenal and Feliciano Alvarado A. Malicious Prosecution The Alvarados argue that the trial court erred by disregarding the jury findings as to Juvenal’s malicious prosecution claim and all damages arising from that claim because Juvenal proved each element of the malicious prosecution claim as a matter of law. The Charleston Court Appellants contend that the trial court properly disregarded these jury findings in light of Juvenal’s subsequent plea bargain in connection with a misdemeanor criminal mischief charge arising from the same circumstances that gave rise to the initial felony charge of aggravated assault with a deadly weapon. Dill, Dion and Thompson adopt the Charleston Court Appellants’ briefing with respect to the malicious prosecution claim. “Malicious prosecution actions involve a delicate balance between society’s interest in the efficient enforcement of the criminal law and the individual’s interest in freedom from unjustifiable and oppressive criminal prosecution.” Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex.1997); see also Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 290-91 (Tex.1994). To prevail on a malicious prosecution claim, a plaintiff must establish (1) the commencement of a criminal prosecution against the plaintiff; (2) causation (initiation or procurement) of the action by the defendant; (3) termination of the prosecution in the plaintiffs favor; (4) the plaintiffs innocence; (5) the absence of probable cause for the proceedings; (6) malice in filing the charge; and (7) damage to the plaintiff. Id.; Davis v. Prosperity Bank, 383 S.W.3d 795, 802 (Tex.App.Houston [14th Dist.] 2012, no pet.). The parties do not dispute that a criminal prosecution for a felony charge of aggravated assault with a deadly weapon was commenced against Juvenal. The disposi-tive issue here focuses on whether the prosecution terminated in Juvenal’s favor given that (1) Juvenal initially was charged with a felony in district court on August 29, 2005; (2) the prosecutor filed a criminal information on March 22, 2006 under a new cause number in county criminal court charging Juvenal with criminal mischief, a misdemeanor; (3) the prosecutor filed an unconditional motion to dismiss the felony aggravated assault with a deadly weapon charge in district court on March 24, 2006; and (4) Juvenal subsequently pled guilty to the misdemeanor in exchange for the prosecutor’s recommendation of three days in jail with credit for two, no fine, and no restitution. The Alvarados stress that the time served in Juvenal’s plea bargain related only to the misdemeanor offense because the felony charge had been dismissed before the plea bargain agreement was made. They also contend that criminal mischief is not a lesser included offense of aggravated assault with a deadly weapon. Additionally, they emphasize that Dion was the complainant in the aggravated assault case because Juvenal was charged with unlawfully, intentionally, and knowingly threatening Dion with imminent bodily injury by using his pickup truck as a deadly weapon. In contrast, Dill was the complainant in the criminal mischief case based upon damage of more than $500 but less than $1,500 to Dill’s tow truck caused when Juvenal hit the tow truck with his pickup truck. Termination of a prosecution in the plaintiffs favor does not require “a termination on the merits, e.g., a verdict of ‘not guilty,’ as a necessary element of a cause of action for malicious prosecution.” Davis v. City of San Antonio, 752 S.W.2d 518, 528 (Tex.1988). “Even when the termination is indecisive as to the accused’s guilt, it is nevertheless favorable if the prosecution cannot be revived.” Id. In keeping with this precept, courts hold that “a prosecution has been terminated in the accused’s favor where the prosecutor has dismissed the charges” and no additional charges have been filed. Izen v. Catalina, 256 F.3d 324, 328 (5th Cir.2001); see also Thrift v. Hubbard, 974 S.W.2d 70, 78 (Tex. App.-San Antonio 1998, pet. denied); Leal v. Am. Nat’l Ins. Co., 928 S.W.2d 592, 597 (Tex.App.-Corpus Christi 1996, writ denied). In this case, however, the prosecutor did not simply dismiss the felony charge. Instead, he filed an additional misdemeanor charge arising out of the same incident before dismissing the felony charge. McNeil testified that he decided to file a misdemeanor case after he investigated further because he believed there was sufficient evidence to go forward with a misdemeanor case. McNeil did not dismiss the case against Juvenal outright because he “felt it was more properly classified as a misdemeanor.” McNeil testified that the filing of misdemeanor charges against Juvenal “wasn’t intended to be” a finding of innocence. Juvenal’s subsequent plea bargain with respect to misdemeanor charges arising from the same incident brings this case within the rule that “a dismissal of a prosecution brought about by the procurement or compromise of the person therein accused is not such an end of the prosecution as will warrant an action of damages for malicious prosecution.” Sullivan v. O’Brien, 85 S.W.2d 1106, 1115 (Tex.Civ.App.-San Antonio 1935, writ refd); see also Martinez v. English, 267 S.W.3d 521, 528 (Tex.App.-Austin 2008, pet. denied); Ellis v. Sinton Sav. Ass’n, 455 S.W.2d 834, 842 (Tex.Civ.App.-Corpus Christi 1970, writ ref'd n.r.e.); Restatement (Second) of Torts § 660(a) (1977); cf. Bertuca v. Martinez, No. 04-04-00926-CV, 2006 WL 397904, *3 (Tex.App.-San Antonio Feb. 22, 2006, no pet.) (dismissal of case based on prosecutor’s determination that “sufficient punishment” already had been administered to malicious prosecution plaintiff was not a termination in plaintiffs favor). We believe this resolution strikes an appropriate balance among the competing interests implicated in a malicious prosecution claim and recognizes that “ ‘[h]aving bought peace the accused may not thereafter assert that the proceedings have terminated in his favor.’ ” Martinez, 267 S.W.3d at 528 (quoting Restatement (Second) of Torts § 660 cmt. c (1977)). In light of Juvenal’s plea agreement, we conclude that the malicious prosecution claim was foreclosed as a matter of law because the prosecution did not terminate in Juvenal’s favor. The trial court did not err by granting the motions for judgment notwithstanding the verdict and to disregard immaterial jury findings as to Juvenal’s malicious prosecution claim. Accordingly, we overrule the Alvarados’ first issue. B. Assisting and Encouraging The Alvarados contend that the trial court erred by disregarding “Jury Question 11, in which the jury found that Dion, Thompson, Boyles and Dill assisted or encouraged each other in the malicious prosecution of Juvenal” because there is sufficient evidence to support the jury’s finding. The Alvarados argue that “[w]hen a defendant gives assistance or encouragement to a person committing a tort, and the assistance or encouragement is a substantial factor in causing the tort, the defendant is considered a tortfeasor and is responsible for the consequences of the tort.” Jury Question 11 was predicated on a “yes” answer to Question 10 and asked the jury, “Did any of the following persons [Dion, Thompson, Boyles, Dill] assist or encourage the malicious prosecution of Juvenal Alvarado that you found in answer to Question 10?” The jury was instructed that to “‘assist or encourage’ an action” requires that “[t]he primary actor committed a wrongful act.” As stated in the jury charge and acknowledged by the Alvarados in their brief, to “assist or encourage” requires that a tort — malicious prosecution — was committed. Without a “primary actor” committing the tort of malicious prosecution, liability for assisting and encouraging a malicious prosecution cannot be imposed. As we have discussed in connection with issue one, a malicious prosecution claim is foreclosed here as a matter of law in light of the plea agreement. Therefore, Dion, Thompson, Boyles, or Dill could not have assisted or encouraged the malicious prosecution of Juvenal. The trial court did not err by disregarding Question 11 and granting the motions for judgment notwithstanding the verdict and to disregard jury findings. Accordingly, we overrule the Al-varados’ second issue. C. Conspiracy The Alvarados contend that the trial court erred by disregarding “Question 12, in which the jury found that Dion, Thompson, Boyles and Dill conspired to prosecute Juvenal” because there is sufficient evidence to support the jury’s finding. Jury Question 12 was predicated on a “yes” answer to Question 10 and asked the jury, “Were any of the following persons [Dion, Thompson, Boyles, Dill] part of a conspiracy to maliciously prosecute Juvenal Alvarado that you found in answer to Question 10?” The jury was instructed: “To be a part of a conspiracy, a person and another person or persons must have had knowledge of, agreed to, and intended a common objective or course of action that resulted in the malicious prosecution of Juvenal Alvarado.” Based on the jury charge, to be a part of a conspiracy to malicious prosecution, the course of action taken must have resulted in the tort of malicious prosecution. Further, “conspiracy, generally defined as a combination of two or more persons to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means, might be called a derivative tort” because the “defendant’s liability for conspiracy depends on participation in some underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable.” Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996). The underlying tort is malicious prosecution. We already have concluded that a malicious prosecution claim is foreclosed as a matter of law in this case; without an underlying tort for malicious prosecution, there is no claim for conspiracy. See id.; Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 448 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (op. on reh’g). Therefore, Dion, Thompson, Boyles, or Dill could not have been “part of a conspiracy” to malicious. prosecution of Juvenal. The trial court did not err by disregarding Question 12 and granting the motions for judgment notwithstanding the verdict and to disregard jury findings. Accordingly, we overrule the Alvarados’ third issue. D. Exclusion of Evidence The Alvarados assert that the trial court erred by excluding evidence that “Boyles was routinely armed on the premises of the Charleston Court Apartments, that she threatened the residents with her weapon, that on the night in question she gave Thompson her flashlight and her gun, but that the gun flew out of Thompson’s hand, and that she pointed the gun at the residents in a threatening manner as she fled to her apartment to hide the weapon when the police arrived.” They contend this evidence was admissible and pertinent to the submission of a jury question seeking punitive damages against Soon Phat, L.P. Based on this complaint, the Alvarados request a new trial limited solely to the issue of punitive damages. We reject this contention and the Alvarados’ appellate complaint without regard to the claimed admissibility of this evidence because this court cannot remand for a new trial solely on punitive damages. See Nowzaradan v. Ryans, 347 S.W.3d 734, 739 (TexApp.-Houston [14th Dist.] 2011, no pet.). “In 2000, the supreme court held that in order to achieve proportionality between actual and punitive damage awards, ‘under Moñel, a jury must decide the amount of punitive damages based on the totality of the evidence from the liability phase as well as the punitive damages stage.’” Id. (quoting Sw. Ref. Co. v. Bernal, 22 S.W.3d 425, 433 (Tex. 2000)); see also Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 30 (Tex.1994). “It would be impossible to give effect to this language and remand only for a new trial regarding punitive damages.” Nowzaradan, 347 S.W.3d at 739. Accordingly, we overrule the Alvarados’ fourth issue. II. The Charleston Court Appellants A. No Waiver of Right to Appeal As a threshold matter, we address the Alvarados’ cross-point urging this court to dismiss the Charleston Court Appellants’ appeal because they “unreservedly invited the trial to enter the judgment it entered.” Relying on First Nat’l Bank of Beeville v. Fojtik, 775 S.W.2d 632, 633 (Tex.1989) (per curiam), the Alvarados contend that the Charleston Court Appellants waived an appeal because the “request to the trial court that it enter judgment [wa]s unqualified.” The Texas Supreme Court recognized in Fojtik that there must be “a method by which a party who desires to initiate the appellate process may move the trial court to render judgment without being bound by its terms.” Id. at 633. The court held that the following statement was a proper reservation of a party’s right to appeal: “While Plaintiffs disagree with the findings of the jury and feel there is a fatal defect which will support a new trial, in the event the Court is not inclined to grant a new trial prior to the entry of judgment, Plaintiffs pray the Court enter the following judgment. Plaintiffs agree only as to the form of the judgment but disagree and should not be construed as concurring with the content and result.” Id. Following Fojtik, we reject the Alvara-dos’ assertion that the Charleston Court Appellants did not “express any disagreement with the content or result of the judgment [it] asked the trial court to enter.” The response to the Alvarados’ motion for entry of an amended judgment states as follows: “Although Defendants contend Plaintiffs are not entitled to any award, as outlined in Defendants’ post-trial motions, they now file this response to Plaintiffs[’] motion requesting the entry of the proposed amended Final Judgment. ... Defendants ask this court to enter the attached proposed amended Final Judgment, incorporating the notations and changes this Court made.” The attached proposed judgment stated that it was “Approved As To Form Only.” We conclude that the Charleston Court Appellants sufficiently reserved their right to appeal the trial court judgment. We deny the Alvar-ados’ motion to dismiss the Charleston Court Appellants’ appeal and overrule the Alvarados’ cross-point. B. Soon Phat, L.P.’s Joint and Several Liability for Actual Damages The final judgment assigns joint and several liability to Soon Phat, L.P. as the owner of the Charleston Court Apartments for actual damages awarded to Feliciano and Juvenal in connection with their assault claims, and for actual damages awarded to Juvenal in connection with his false imprisonment claim. The jury found that Dion and Thompson assaulted Juvenal and Feliciano, and that Thompson falsely imprisoned Juvenal. The jury also found that Dion, Thompson, and Boyles assisted or encouraged the assaults, and conspired to commit the assaults. The jury further found that Dion and Boyles assisted or encouraged the false imprisonment of Juvenal, and conspired to commit false imprisonment. On appeal, the Charleston Court Appellants challenge Soon Phat, L.P.’s joint and several liability for actual damages on these claims under the trial court’s final judgment. The Charleston Court Appellants stress that the jury answered “yes” to Questions 1-9 addressing whether Dion, Thompson, and Boyles engaged in tortious conduct, assisted or encouraged such conduct, or conspired to commit such conduct. These questions did not ask whether Soon Phat, L.P. itself committed this conduct. The Charleston Court Appellants contend there is no legal basis for imposing joint and several liability upon Soon Phat, L.P. arising from the individual tortious conduct of Dion, Thompson, or Boyles. These appellants also contend the jury charge was “fatally defective” because no proportionate responsibility question was submitted under Chapter 33 of the Civil Practices and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 33.001 et seq. (Vernon 2008 & Supp.2012). But the Charleston Court Appellants neither objected to the omission of a proportionate responsibility question from the jury charge nor tendered a proposed proportionate responsibility question for submission. Therefore, the analysis on appeal does not focus on whether the trial court committed charge error by omitting a submission under Chapter 33 or whether such an omission necessitates a new trial. Instead, the appellate analysis focuses on whether the evidence viewed in light of the charge as submitted provides a route by which Soon Phat, L.P. can be held jointly and severally liable in the final judgment for the individual tortious conduct of Boyles, Dion, or Thompson. The Charleston Court Appellants contend that joint and several liability under the final judgment must rest on vicarious liability. Broadly speaking, vicarious liability principles impute liability arising from the conduct of an active tort-feasor to another party based upon a relationship between them. See, e.g., Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 481 (Tex.2005) (citing Wingfoot Enters, v. Alvarado, 111 S.W.3d 134, 146 (Tex.2003)); see also St. Joseph Hosp. v. Wolff 94 S.W.3d 513, 540 (Tex.2002) (plurality) (“The common law has long recognized that liability for one person’s fault may be imputed to another who is himself entirely without fault solely because of the relationship between them.”). Vicarious liability can arise under common law principles and by statute. See, e.g., Garza, 161 S.W.3d at 481. The Alvarados contend that Soon Phat, L.P. is directly liable based upon its own conduct, and vicariously liable based upon conduct by other defendants with whom Soon Phat, L.P. has relationships. The Alvarados’ arguments on appeal and the jury charge indicate that the effort to impose liability upon Soon Phat, L.P. rests at least in part on one particular form of vicarious liability — the doctrine of respondeat superior. This doctrine “holds the master liable for the torts of his servant committed in the course of his employment” and is “essentially a policy doctrine .... ” Newspapers, Inc. v. Love, 380 S.W.2d 582, 589 (Tex.1964). “[EJxcept for acts personally directed by the principal, the liability of the master is founded upon the contractual arrangement with the servant, either expressed or implied which vests in him the right to control the details of the work.” Id.; see also Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex.1984) (employer and employee were jointly and severally liable for tort committed by employee in the course and scope of his employment). “The theories of vicarious and joint and several liability are judicially created vehicles for enforcing remedies for wrongs committed.” Dutcher v. Owens, 647 S.W.2d 948, 950-51 (Tex. 1983). “Justified on public policy grounds, they represent a deliberate allocation of risk.” Id.; see also Wolff, 94 S.W.3d at 541. “The typical respondeat superior claim involves an allegation of negligence on the part of the employee” occurring within the course and scope of the employee’s employment. Buck v. Blum, 130 S.W.3d 285, 288 (Tex.App.-Houston [14th Dist.] 2004, no pet.). “It is not ordinarily within the scope of a servant’s authority to commit an assault on a third person.” Tex. & Pac. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236, 239 (1952). However, an assault can be considered to be “in the course and scope of employment when the nature of the employment necessitated the use of force (such as the duty to guard property) so that the use of force may be in furtherance of the employer’s business even if more force than necessary is applied.” Buck, 130 S.W.3d at 289 n. 2 (citing Hagenloh, 247 S.W.2d at 239); see also Durand v. Moore, 879 S.W.2d 196, 199 (Tex.App.-Houston [14th Dist.] 1994, no writ) (“When an employee commits an assault, it is for the trier of fact to determine whether the employee ceased to act as an employee and acted instead upon his own responsibility.”); Tierra Drilling Corp. v. Detmar, 666 S.W.2d 661, 662-63 (Tex. App.-Corpus Christi 1984, no writ) (no evidence supported finding that employee was acting within the course of his employment, in pursuit of his duties, or in the furtherance of Tierra’s business when he assaulted co-worker). As submitted, the jury charge provided three routes by which the conduct of Dion, Thompson and Boyles potentially could give rise to tort liability on the part of Soon Phat, L.P. The first route is Question 34, which states as follows: QUESTION 34 At the time of the aggravated assault found by you in answer to Question 31 or 32 was Mesha Boyles: (1) unfit and did Soon Phat, L.P. d/b/a Charleston Court Apartments act with malice in employing or retaining her? OR (2) employed in a managerial capacity and was acting in the scope of the employment; OR (3) did Soon Phat, L.P. d/b/a Charleston Court Apartments ratify or approve the act. “Malice” means a specific intent to by the defendant to cause substantial injury or harm to the claimant. Answer ‘Tes” or “No” Answer: Yes The predicating instruction directed the jury not to answer Question 34 unless it first answered “yes” to Questions 31 or 32, which asked whether Thompson committed an aggravated assault against Juvenal and Feliciano. In turn, Question 31 was predicated on a “yes” answer to Juvenal’s assault claim submitted in Question 1, and Question 32 was predicated a “yes” answer to Feliciano’s assault claim submitted in Question 4. Question 34 also was predicated on “yes” answers to Questions 2, 3, 5, 6, 8, 9, 10, 11 or 12. The Alvarados contend that security guard Boyles’ individual liability for assisting or encouraging Dion and Thompson in committing assault, and for conspiring with them to do so, is attributed to Soon Phat, L.P. in light of the jury’s “yes” answer to Question 34. The second route is Question 26, which states as follows: QUESTION 26 Did the negligence if any, of Soon Phat, L.P. in hiring, training, supervising, or retaining Mesha Boyles proximately cause the occurrence in question? An employer has a nondelegable and absolute duty to exercise ordinary eare to select careful and competent employees. An employer is negligent if the employer hires an incompetent or unfit employee whom the employer knows, or by the exercise of reasonable care should know, was incompetent or unfit. Answer ‘Tes” or “No” with respect to the following: Juvenal Alvarado Yes Feliciano Alvarado Yes The Alvarados argue that Boyles’ individual liability for assisting or encouraging in the commission of assault and false imprisonment, and for conspiring to commit these torts, is attributed to Soon Phat, L.P. in light of the jury’s “yes” answers to Question 26. The third route is Question 13, which states as follows: QUESTION 13 On the occasion in question were Robert Groce Dill d/b/a Arrow Towing Company and Soon Phat, L.P. d/b/a Charleston Court Apartments engaged in a joint enterprise? A “joint enterprise” exists if the persons concerned have (1) an agreement, either express or implied, with respect to the enterprise or endeavor; (2) a common purpose; (3) a common business or pecuniary interest; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control. Answer ‘Yes” or “No” Answer: Yes The Alvarados contend that Dill is liable for the individual tortious conduct of wrecker driver Dion and helper Thompson. For purposes of addressing the Charleston Court Appellants’ challenges to the final judgment, we assume this is true. In turn, according to the Alvarados, the existence of a joint enterprise between Dill and Soon Phat, L.P. means that Dill’s liability for the individual conduct of Dion and Thompson also is attributed to Soon Phat, L.P. With this backdrop, we examine the Charleston Court Appellants’ challenges to the trial court’s final judgment making Soon Phat, L.P. jointly and severally liable for the actual damages awarded to Felici-ano and Juvenal in connection with claims for assault and false imprisonment. 1. Soon Phat, LJP.’s liability for assault The Charleston Court Appellants contend that Soon Phat, L.P. cannot properly be subjected to joint and several liability for the assault damages awarded to Felici-ano and Juvenal. We address this contention in light of the three potential routes to recovery against Soon Phat, L.P. provided under the jury charge. a. Question 34 The Charleston Court Appellants contend that Question 34 cannot serve as a basis for joint and several liability because the jury’s “yes” answer to this question is immaterial, and because the answer is not supported by legally sufficient evidence. We agree that Question 34 does not provide a vehicle for imposing joint and several liability on Soon Phat, L.P. based on respondeat superior or other theories of liability when the sufficiency of the evidence is examined in light of the charge as given. There is no evidence of “malice” as defined in Question 34(1). This question asks whether, at the time Thompson committed aggravated assault upon the Alvar-ados, Boyles was unfit and Soon Phat, L.P. acted with malice in employing or retaining Boyles. Malice is defined in the jury charge as “a specific intent to [sic] by the defendant to cause substantial injury or harm to the claimant.” The Alvarados do not point to any evidence and we have found no evidence in the record that Soon Phat, L.P. had any intent to cause harm or injury to the Alvarados; therefore, there is no evidence Soon Phat, L.P. acted with malice. Question 34(2) requires a finding that Boyles was employed in a managerial capacity and acted in the scope of the employment at the time Thompson committed the aggravated assaults. Boyles was employed as a security guard to patrol the apartment complex at night and “call 911” in the event of an emergency. This is no evidence that Boyles was employed in a “managerial capacity” as required under Question 34(2). See U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 138 (Tex.2012) (no evidence was proffered to establish that individual acted in a “managerial capacity” in absence of evidence that individual was a company officer; had authority to employ, direct, and discharge company employees; or managed a department or division of company). Question 34(3) asks whether Soon Phat, L.P. ratified or approved “the act.” Regardless of whether “the act” refers to assault, aggravated assault, aiding and abetting, or conspiracy, there is no evidence in the record that Soon Phat, L.P. ratified or approved any act. The Alvara-dos do not point to any evidence that could support a finding of ratification or approval with respect to Soon Phat, L.P. Accordingly, Question 34 cannot serve as a basis to subject Soon Phat, L.P. to joint and several liability for the assault damages awarded to the Alvarados. Further, in light of this resolution, we need not address the Charleston Court Appellants’ complaint that Question 34 and the references to aggravated assault were not supported by the Alvarados’ pleadings. b. Question 26 The Charleston Court Appellants argue that “[t]here is no basis in the jury’s verdict for an award of damages for assault from Charleston Court.” They further argue that (1) “there was no finding by the jury that Charleston Court committed the assault;” (2) “any liability attributable to Charleston Court must be vicarious;” and (3) “there was no question submitted to the jury as to whether Boyles was the agent of Charleston Court.” In response, the Alvarados point to the negligent hiring submission in Question 26 as a basis for joint and several liability based on direct liability. We conclude that Question 26 cannot bear the weight that the Alvarados would have it carry. Question 26 submits a negligent hiring claim. A claim of negligent hiring, supervision, or retention is not dependent upon a finding that the employee was acting in the course and scope of his employment when the tortious act occurred. Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 496 (Tex.App.-Fort Worth 2002, no pet.); Verinakis v. Med. Profiles, Inc., 987 S.W.2d 90, 97 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). An employer who negligently hires, retains, or supervises an incompetent or unfit individual may be directly liable to a third party whose injury was proximately caused by the employee’s negligent or intentional act. Wrenn, 73 S.W.3d at 496; Verinakis, 987 S.W.2d at 97. A negligent hiring claim is based on an employer’s direct negligence rather than the employer’s vicarious liability for the torts of its employees. Wrenn, 73 S.W.3d at 496; Verinakis, 987 S.W.2d at 97. The Texas Supreme Court has not “ruled definitively on the existence, elements, and scope” of negligent retention, supervision, training, and hiring claims. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 n. 27 (Tex.2010). The supreme court has stated as follows: “In a negligent-hiring or negligent-entrustment claim, a plaintiff must show that the risk that caused the entrustment or hiring to be negligent also proximately caused plaintiffs injuries.” TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 240 (Tex.2010) (citing Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 796 (Tex.2006), Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995), and Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596-97 (Tex.1987)). The jury answered “yes” to Question 26 asking whether Soon Phat, L.P.’s negligence in hiring, training, supervising, or retaining Boyles proximately caused “the occurrence in question.” It is unclear whether “the occurrence in question” refers to the towing, the assaults, the false imprisonment, the conspiracy or some combination of events and actions. In any event, Question 26 does not ask if Soon Phat, L.P.’s negligent hiring proximately caused the Alvarados’ injuries. There also was no damage question submitted in connection with Question 26. A direct liability theory predicated on negligent hiring, training, supervising, or retention — for which the jury found proximate cause of an unspecified “occurrence” rather than the Alvarados’ injuries, and for which the jury was not asked to find damages or determine proportionate responsibility— does not support the trial court’s final judgment making Soon Phat, L.P. jointly and severally liable for damages from assaults committed by others. Cf. Lovelace v. Sabine Consol., Inc., 733 S.W.2d 648, 655 (TexApp.-Houston [14th Dist.] 1987, writ denied) (judgment awarding punitive damages could not be affirmed in absence of separate finding of actual damages in tort). Even if damage findings were to be deemed in support of the trial court’s judgment under Texas Rule of Civil Procedure 279, the trial court’s judgment imposing joint and several liability on Soon Phat, L.P. nonetheless could not be affirmed on the basis of the jury’s “yes” answer to Question 26. Such deemed findings would not serve as a basis for joint and several liability. Any damages in connection with negligent hiring would be attributed to Soon Phat, L.P. as direct liability based on upon its own negligent conduct — not based upon a relationship between Soon Phat, L.P. and Boyles that allows Boyles’ tor-tious conduct and the consequences thereof to be attributed to Soon Phat, L.P. by way of joint and several liability. See Wrenn, 73 S.W.3d at 496; Verinakis, 987 S.W.2d at 97. Therefore, Question 26 does not provide a permissible route to the joint and several damages assigned against Soon Phat, L.P. in the trial court’s final judgment. c. Question 13 The jury’s finding in Question 13 that Dill d/b/a Arrow Towing and Soon Phat, L.P. were engaged in a joint enterprise cannot serve as basis for vicarious liability on the part of Soon Phat, L.P. The supreme court has stated that “ ‘the theory of joint enterprise is to make each party thereto the agent of the other and thereby to hold each responsible for the negligent act of the other.’ ” Tex. Dept. of Transp. v. Able, 35 S.W.3d 608, 613 (Tex.2000) (quoting Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 14 (Tex.1974)); cf. Seureau v. Exxonmobil Corp., 274 S.W.3d 206, 218 n. 9 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (“For the purposes of this appeal, we will assume, without deciding, that the theory of joint enterprise extends beyond negligence claims to include ... fraud and contract allegations.”). The only negligence question submitted against Soon Phat, L.P. is Question 26 predicated on negligent hiring. For the reasons discussed above, the jury’s “yes” answer to Question 26 cannot support the trial court’s judgment making Soon Phat, L.P. jointly and severally liable for the Alvarados’ damages. The same obstacles arise in connection with Question 25, the negligent hiring question addressing Dill; that question is worded in identical fashion to Question 26. Like Question 26, the jury’s “yes” answer to Question 25 also cannot support the judgment as signed. No other negligence questions were submitted in the jury charge as