Bennett v. Grant (460 S.W.3d 220, 2015)

ON MOTION FOR REHEARING

OPINION

Scott K. Field, Justice

We withdraw the opinion dated August 13, 2014, and the supplemental opinion and judgment dated September 26, 2014,' and substitute the following opinion and judgment in their place. We deny the Appellants’ motion for rehearing.

This suit arises from a now infamous feud between neighboring cattle ranchers in San Saba, the details of which have been thoroughly relayed in prior opinions of this Court and the Texas Supreme Court. See Bennett v. Reynolds, 242 S.W.3d 866 (Tex.App.-Austin 2007), rev’d & remanded in paid by 315 S.W.3d 867 (Tex.2010) (Bennett I). The feud between cattle ranchers Thomas O. Bennett and Randy Reynolds has many turbulent twists and turns, see id., but the gist of the dispute and subject of prior appeals involved allegations that thirteen head of cattle belonging to Reynolds had wandered onto Bennett’s ranch, and that instead of returning them in a neighborly fashion, Bennett ordered his ranch hand — Larry Grant — to round up the cattle and sell them at auction. Grant testified that he raised concerns with Bennett that the cattle did not belong to him, but Bennett ignored his concerns. Worried that he could be implicated in cattle theft, Grant purchased a disposable camera and took several photos of the cattle loaded on Bennett’s trailer prior to the sale. Within two months of the sale, Grant left his employment with Bennett but kept the secret photos stashed away in a box in his home where they were seemingly forgotten and left undisturbed for almost a year. Reynolds, however, eventually learned of the secret photos after a chance encounter with Grant’s brother-in-law and demanded that Grant turn the photos over to the authorities. What happens next is hotly disputed and the subject of litigation between Bennett and his former ranch hand, Grant, which gave rise to this appeal.

After Reynolds attempted to obtain the photos, Grant testified that he was distressed and began drinking beer and smoking marijuana to relieve tension. He then made a series of phone calls to Bennett and Bennett’s friend and employee, Don “Ex” Rogers. Grant testified that the purpose of the calls-was to inform Bennett of the pictures and give him an opportunity to “make it right” with Reynolds. Bennett and Rogers’ version, however, depicts Grant as calling to try and sell the photographs to Bennett. Grant acknowledged he had some discussion with Rogers about selling the photos to Bennett but testified that they only “joked about it.” It was no joke, however, when Grant turned the photos over to law enforcement about a month after these conversations and triggered an extraordinary series of events. First, Bennett was indicted for cattle theft based in part on Grant’s testimony and photos. Although ultimately acquitted of the criminal charges, Bennett and his cattle company, the James B. Bonham Corporation, were found liable for conversion in a civil suit brought by Reynolds resulting in a judgment of $5,327.11 in actual damages. The actual damages, however, paled in comparison to the combined exemplary damages of $1.25 million awarded amidst allegations that Bennett had willfully sold his neighbor’s cattle to settle a score in a long-standing feud and then attempted to cover his. actions by — among other allegations — threatening and bribing witnesses, tampering with the photographs Grant had taken to alter the images of the brands on the cattle to look like his own brand, and even attempting to register his neighbor’s brand as his own with the district clerk of San Saba County. Such allegations and such a large exemplary damages award are extraordinary by themselves, but it is only half of the story and less than half of the total liability adjudged against Bennett and the Bonham Corporation from these events.

The other half is the subject of this appeal — a $2.28 million judgment awarded to Grant for a successful malicious prosecution claim brought against Bennett and the Bonham Corporation. This claim arose from Bennett’s admitted, yet ultimately unsuccessful, campaign to have Grant imprisoned after he turned the photos over to authorities. In this appeal, Bennett and the Bonham Corporation (collectively, Appellants) contest the judgment in Grant’s malicious prosecution suit, contending: (1) legally insufficient evidence supported the malicious prosecution claim; (2) legally and factually insufficient evidence supported the $10,703 awarded in compensatory damages; (3) legally insufficient evidence supported the jury’s findings allowing for the imposition of exemplary damages over the statutory cap; and (4) the total $2 million exemplary damages award ($1 million against Bennett and $1 million against the Bonham Corporation) violated due process. Individually, the Bonham Corporation raises several arguments challenging its liability in the suit, and Bennett challenges a $269,644.50 sanction. We conclude that the award of exemplary damages failed to comport with due process requirements and required re-mittitur, but otherwise uphold the trial court’s judgment.

MALICIOUS PROSECUTION

A. Background Facts

On the evening of October 4, 2001, telephone records confirm that Grant called and spoke with Bennett for thirteen minutes, but the topic of conversation that evening is hotly disputed by the parties. As previously discussed, Grant testified that he called to inform Bennett about the pictures and to give him an opportunity to “make it right” with Reynolds. Bennett, however, testified that Grant called to try and sell the photos to him for $5,000. What is undisputed, however, is that Bennett waited nearly two years to report his allegations against Grant to the authorities. Indeed, Bennett testified that it was not until after his criminal trial that he decided to report the incident to authorities and acknowledged at trial that his sole “goal” in reporting the incident was to put “Grant in prison ... for what he’s done to me.” In furtherance of his goal, Bennett testified he met with law enforcement authorities in four separate counties in an attempt to get Grant indicted for attempted blackmail. After authorities in San Saba County, Llano County, and Coleman County refused to prosecute Grant, Bennett met with the district attorney in Navarro County and requested he prosecute the case.

According to the district attorney’s testimony, the following events then transpired. After his initial meeting with Bennett, the district attorney believed that if an attempted blackmail had occurred, it was a federal offense and referred the matter to the federal authorities. Unhappy -with this outcome, Bennett again approached the district attorney but this time with a new theory — requesting that Grant be prosecuted for attempted theft. The district attorney informed Bennett he could not bring charges for misdemeanor attempted theft because it was barred by the two-year statute of limitations. Undeterred, Bennett then provided the district attorney with new information, alleging— for the first time — that Grant had attempted to extort money from him a second time within the limitations period. The district attorney testified that he was “skeptical” of this new evidence because it “appeared that there was maybe some tailoring of the facts going on to fit the statute.” Indeed, in his sworn testimony in this case, Bennett made no mention of a second attempted blackmail by Grant. Rather, he unequivocally testified that all the factual accusations against Grant occurred in a single evening on October 4, 2011. The district attorney further testified that, based on his conversations with Bennett about the case, he formed the impression that Bennett’s motive for prosecuting Grant was to gain an advantage in civil litigation arising from the case. Being “suspicious” of Bennett’s new evidence, the district attorney decided to “dig in his heels” and refused to prosecute.

Still undeterred, Bennett met with an attorney who testified that he had represented the Bonham Corporation for over twenty years and that Bennett directed him to research and draft a legal brief advocating that Grant’s alleged actions constituted a criminal offense that should be prosecuted. The district attorney testified that it was this brief or another meeting with Bennett that finally was the “catalyst” that prompted him to bring the case to the grand jury. He further testified that it was “rare” for him to bring misdemeanor cases to the grand jury because he himself had the authority to bring misdemeanor charges without grand jury involvement. But, in this case, he finally yielded to Bennett’s demands because he did not want to appear “draconian” in his refusal to bring charges. The district attorney may have been finally persuaded to present the case, but the grand jury was not as persuaded and refused to indict Grant.

Frustrated that the grand jury had not indicted Grant, Bennett testified he again met with the same attorney who this time advised him to get a special prosecutor appointed in Navarro County to bring the case before the grand jury a second time. After the attorney explained to him the procedure for appointing a special prosecutor, Bennett testified he had the attorney draft a petition alleging the district attorney had a conflict of interest and accusing him of taking no action in the case. The petition further sought the appointment of Robert Dunn — a local attorney and neighbor of Bennett’s — as a special prosecutor for the case. Bennett, who resided and ran a cattle ranch in Navarro County, testified that he then led the effort to circulate and obtain over 250 signatures from Navarro County residents for the petition seeking the appointment of Dunn as special prosecutor for the case. Bennett testified that others helped with the petition but that “it was mostly me ... I think I done most of it.” The district attorney, who was now seeking reelection in a hotly contested race, testified that he was unaware that Bennett was leading this campaign throughout the county until Bennett showed up at his office for a final meeting. Bennett, with the signed petitions in hand, then accused the district attorney of being partial and unfair when he presented Grant’s case to the grand jury and demanded that Dunn be appointed special prosecutor in the case. Feeling that Bennett’s petition campaign “wasn’t helping” his chances of reelection, the district attorney testified that he agreed to the appointment of Dunn as special prosecutor in the case.

Ultimately, Bennett was successful in his goal of getting Grant indicted, as the special prosecutor presented the case for a second time to the grand jury — more than four years after the phone call between Grant and Bennett occurred — but this time obtained indictments for the felony offenses of tampering with a witness and attempted bribery. The special prosecutor testified that in deciding whether to present the case to the grand jury, he interviewed both Bennett and Rogers but exercised independent discretion in ultimately determining whether there was sufficient evidence to prosecute the case. He testified further that he relied on evidence other than Bennett’s and Rogers’ statements in his decision to prosecute. When asked, however, whether Bennett’s and Rogers’ statements were “very material to [his] decision to proceed to the grand jury,” the special prosecutor acknowledged that the statements were “definitely” very material to his decision. Further, he acknowledged testifying during his deposition that he “would not have presented” the case to the grand jury if he had believed Bennett “was making untrue statements.” He also testified that if he believed there had been a “tailoring of the facts” by Bennett — as the Navarro County district attorney believed — that it would have affected his decision to go to the grand jury. Grant maintained throughout trial that both men had lied to the authorities about the alleged blackmail.

Further, some of the evidence Bennett presented to the speciál prosecutor appears from the record to have differed from the initial evidence presented to the district attorney. First, there is no evidence in the record that Bennett reported to the special prosecutor two incidents of alleged extortion occurring on different dates — as he had to the district attorney. Rather, the special prosecutor testified only as to the alleged misconduct occurring during phone conversations on October 4, 2011, and the indictment alleged only one count — not two — of the charged offenses. Second, Bennett added a new detail to his allegations, contending for the first time that Grant had specifically asked him to pay $5,000 for the pictures. In a previous written statement to the authorities, Bennett did not allege a specified amount in his extortion claims. The Navarro County district attorney also did not recall Bennett telling him this detail, and it would have been material to how he presented the case to the grand jury because the amount of money at issue increased the degree of the offense. See Tex. Penal Code § 31.03(e) (value of property involved in theft dictates classification-of offense). Finally, the special prosecutor additionally testified that in deciding to prosecute the case, he relied — in part — on a transcript from Bennett purportedly transcribing secretly-taped “conversations” with Grant that substantiated Bennett’s claim that Grant had sought $5,000 from him. If this transcript was also given to the district attorney, he made no reference to it in his testimony.

Regarding the transcript, the special prosecutor testified that initially Bennett presented him with a tape recording of “conversations” but that he was unable to understand it because it was “awful garbled.” Bennett then gave him a transcript purportedly transcribing the tape. The special prosecutor could not testify as to when the tape was allegedly recorded, but it appears from his testimony that he, believed the tape was a recording of the actual telephone conversations reflected on Grant’s telephone bill or conversations related directly to those phone records. He further testified that the taped conversations substantiated Bennett’s claim that Grant had specifically sought “$5,000” for the pictures. This transcript, however, was destroyed when Grant’s record was later expunged. Besides this information, there is no additional information in the record as to what was reflected in the transcript or the tape. Bennett himself testified at trial that he had secretly recorded a conversation with Grant and had presented this tape to law enforcement, but this tape recorded only a single eon-versation between Grant and Bennett occurring almost a year prior to Grant’s alleged extortion. As such, there is no mention on the tape of the photographs or a demand for $5,000. Indeed, when the special prosecutor was presented with a transcript of the tape Bennett testified to presenting to other law enforcement, the special prosecutor testified that he had never seen it before, and it was “completely different” than the transcript Bennett had given him.

Bennett’s plan to imprison Grant seemed to finally be coming to fruition when the special prosecutor then took this evidence to a second grand jury and succeeded in obtaining two felony indictments, and Grant surrendered himself to authorities. But Bennett’s long and hard-fought quest ended nine months later, when both of Grant’s indictments were quashed because the charges had been filed past the statute of limitations. Further, the trial court granted Grant’s motion to have his arrest and indictments expunged from his record as void. Upon expunetion, Grant— who was already being sued by Bennett for slander — added a counterclaim against Bennett and the Bonham Corporation for malicious criminal prosecution. Upon hearing the preceding evidence, the jury found that Bennett and the Bonham Corporation had indeed maliciously prosecuted Grant. They appeal, contending there is insufficient evidence of a malicious prosecution. Appellants’ claim requires us to first expound upon the law of malicious prosecution.

B. Malicious Prosecution

Malicious prosecution is an unusual tort in that it requires the court to balance society’s interest in protecting private persons who report criminal conduct with the individual citizen’s interest in being protected against unjustifiable and oppressive litigation of criminal charges. Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 290-91 (Tex.1994). In that regard, the Texas Supreme Court has instructed us that the balance between these important interests is maintained by strictly adhering to the defined elements of an action for malicious prosecution and that even a small departure from the exact prerequisites for liability may threaten this delicate balance. Id. But, “as with any other cause of action, if the elements of malicious prosecution are proved, liability is established.” Id. at 291. Those elements are: (1) the commencement of a criminal prosecution against the plaintiff; (2) causation 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 charges; and (7) damages. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex.1997).

Appellants do not dispute the jury’s findings that there was no probable cause to prosecute Grant, that Grant was innocent of the charges, ánd that Bennett acted with malice in pursuing the charges. Rather, they argue only that there is legally insufficient evidence that Bennett’s conduct caused the commencement of a criminal prosecution against Grant. The causation element of malicious prosecution requires evidence that a defendant “initiated” or “procured” a criminal prosecution. Lieck, 881 S.W.2d at 292. A person initiates a criminal prosecution if he makes a formal charge to law enforcement authorities. Id. Here, there is no evidence in the record that Bennett filed any formal charges; Grant, therefore, relies on procurement. A person “procures” a criminal prosecution “if his actions are. enough to cause the prosecution, and but for his actions the prosecution would not have occurred.” Id. Thus, procurement requires that a person’s actions be both a “necessary and a sufficient cause of the criminal prosecution.” Id. Appellants argue there is no evidence Bennett “procured” Grant’s criminal prosecution because the prosecutors involved acted with independent discretion, and their exercise of discretion was a superceding, intervening cause of the prosecution that destroyed his own liability in bringing about the charges. Appellants are correct that generally a person cannot procure a criminal prosecution when the decision whether to prosecute is left to the discretion of another because the independent exercise of discretion destroys the necessary causal link between the defendant and the prosecution. See id. There are, however, two important exceptions to this rule where a defendant may still be liable for malicious prosecution because his actions are such that it makes an intelligent exercise of discretion impossible: (1) when a defendant provides information which he knows is false that causes a criminal prosecution, or (2) when a defendant’s conduct was the determining factor in the prosecutor’s decision to prosecute. See id. at 292-94. We conclude there is legally sufficient evidence to support the jury’s finding of causation under both exceptions.

1. Legally sufficient evidence Bennett procured Grant’s prosecutions by providing false information.

The first exception is when a defendant provides information which he knows is false that causes a criminal prosecution. See id. at 293. For this exception, the plaintiff must prove both that the defendant knowingly furnished false information to authorities, and that but for such false information, the prosecutor would not have decided to prosecute. King v. Graham, 126 S.W.Sd 75, 76 (Tex.2003). The prosecutor’s reliance on the false information makes an intelligent exercise of discretion impossible and establishes the causal link necessary to hold the defendant liable for malicious prosecution. See id. at 78. But, if the decision to prosecute would have been made with or without the false information, the defendant did not cause the prosecution by supplying false information. A single prosecution may, however, be procured by more than one person. Lieck, 881 S.W.2d at 292.

Appellants challenge only the legal sufficiency of the jury’s finding that Bennett procured Grant’s prosecution. A party challenging the legal sufficiency of the evidence supporting an adverse finding on an issue for which the opposing party bears the burden of proof will prevail if there is a complete absence of evidence of a vital fact or if the evidence offered to prove a vital fact is no more than a' scintilla. See Waste Mgmt. of Tex., Inc. v. Texas Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 156-57 (Tex.2014); City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005). More than a scintilla exists when the evidence as a whole rises to a level enabling reasonable and fair-minded people to have different conclusions. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). In conducting a legal-sufficiency review, we consider the evidence in the light most favorable to the judgment, crediting evidence that a reasonable fact finder could have considered favorable and disregarding unfavorable evidence unless the reasonable fact finder could not. City of Keller, 168 S.W.3d at 807. We indulge every reasonable inference that supports the jury’s findings. Id. at 822. Therefore, we must uphold the jury’s verdict unless— after viewing the evidence in the light most favorable to the jury’s verdict and disregarding contrary evidence unless a reasonable jury could not — there is no more than a scintilla of evidence to support the finding of procurement.

Reviewing the evidence in the light most favorable to the jury’s verdict, the Navarro County district attorney believed Bennett’s claims were. barred by limitations and would never have brought this case before the grand jury but for Bennett changing his story to add an additional claim of extortion occurring within the limitations period. As Grant testified this was a false allegation, we will assume — for purposes of our analysis — that the allegation was false, and there is more than sufficient evidence that the false allegation was the but-for cause of the prosecutor presenting the case to the grand jury. Traditionally, however, the tort of malicious prosecution does not arise until process is issued, an indictment is returned, information filed, or the accused is arrested. See Restatement (Second) of Torts § 654 (1977). Here, there is no evidence in the record that any of these events occurred with regard to this first proceeding before the grand jury or that Grant was aware of or suffered damages from this proceeding. Accordingly, the bulk of our analysis must focus on the second presentment of the case to the grand jury by the special prosecutor, which ultimately resulted in two indictments and Grant’s arrest.

Viewing the evidence regarding the second grand jury proceeding in the light most favorable to the verdict, we conclude there was more than a scintilla of evidence to support the jury’s finding that Bennett procured the prosecution. The special prosecutor acknowledged in his testimony that Bennett’s statements were “definitely ... very material” to his decision to proceed to the grand jury. He further acknowledged that if he had believed Bennett’s statements were untruthful, then he “would not have presented” the case to the grand jury. Assuming Bennett’s statements were false, the special prosecutor’s testimony provides more than a scintilla of evidence that Bennett was a necessary and sufficient cause of the prosecution. Compare King, 126 S.W.3d at 79 (holding insufficient evidence of causation where “[n]oth-ing in the record shows that the false information was material to the decision to prosecute”). Further, there was additional evidence that the special prosecutor relied on the transcript that Bennett had given him allegedly transcribing secretly-taped conversations with Grant. From the record, there was sufficient evidence for the jury to infer that Bennett had fabricated this evidence and that it was a material cause of the prosecution, as the special prosecutor testified that the transcript substantiated Bennett’s claim that Grant had sought $5,000 from him.

For legal sufficiency review, we consider the evidence in the light most favorable to the judgment, crediting evidence that a reasonable fact finder could have considered favorable and disregarding unfavorable evidence unless a reasonable fact finder could not. See City of Keller, 168 S.W.3d at 827. We note here the special prosecutor testified that — in addition to the information provided by Bennett — he also relied on Grant’s sworn testimony from Bennett’s prior criminal trial for cattle theft. At that trial, the special prosecutor testified Grant purportedly admitted making a phone call to Rogers seeking money for the pictures but alleged he was only “joking.” The special prosecutor testified that in his opinion Grant “tried to cover himself’ by alleging that it was a joke, and when asked whether he would have prosecuted based solely on this testimony, he responded: “/ think so, because the fact is that he admitted making the calls.” (emphasis added). When a prosecutor relies on evidence independent of the false information provided by the defendant, the defendant “cannot be said to have caused the prosecution if the [false] information was immaterial to the decision to prosecute.” King, 126 S.W.3d at 78. The special prosecutor, however, had previously acknowledged that Bennett’s evidence was definitely very material to his decision to prosecute and that he would not have presented the case if he had thought Bennett was providing false information.

To the extent there is any conflict in the special prosecutor’s testimony as to the cause of the prosecution, causation is generally a question of fact for the jury, see Rodriguez v. Moerbe, 963 S.W.2d 808, 818-19 (Tex.App.-San Antonio 1998, pet. denied), and there is more than a scintilla of evidence to support the jury’s fact flnd-ing that Bennett’s false information was a necessary and sufficient cause of the prosecution. Further, the jury was entitled to resolve any conflicts in the special prosecutor’s testimony and could choose to believe or disbelieve all or part of his testimony. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986) (jury may “resolve inconsistencies in the testimony of any witness”); see also City of Keller, 168 S.W.3d at 819 (“Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony.... Reviewing courts cannot impose their own opinions to the contrary.”). Consequently, we conclude a reasonable jury could find that the false information provided by Bennett was a necessary and sufficient cause of Grant’s prosecution and disregard any contrary evidence. After reviewing the evidence under the appropriate standard, we conclude there is legally sufficient evidence to support the jury’s finding that Bennett procured Grant’s criminal prosecution by providing false information.

2. Legally sufficient evidence Bennett procured Grant’s prosecution by other improper conduct.

The second exception in which a defendant may be liable for malicious prosecution is “when his conduct is the determining factor in the prosecutor’s decision to prosecute.” See Lieck, 881 S.W.2d at 294. For this exception to be applicable, it must “appear that [the defendant’s] desire to have the proceedings initiated, expressed by direction, request or pressure of any kind, was the determining factor in the official’s decision to commence the prosecution.” Id. (quoting Restatement (Second) Torts § 653 (1977)). The Texas Supreme Court in 1994 adopted this exception set out in the Restatement of Torts. See id. We note, however, that the parties have not cited to, and we have not found, any Texas case that has determined what type of conduct would constitute “procurement” under this exception. See Michol O’Connor, O’Connor’s Texas Causes of Action, ch. 19-A, at 572 (2014) (“No Texas court has determined what type of conduct, other than providing false information, would constitute procurement.”). After careful review of the record in this case, we conclude this is the rare case where the defendant engaged in such an intentional and systematic abuse of the justice system that there was sufficient evidence his conduct was the determining factor in the prosecution.

As there are no examples under Texas case law, we will draw upon the Restatement itself for guidance. The Restatement provides the following example as illustration of this exception:

A goes to B, a district attorney and informs him that C has committed a battery upon A. A is a political boss to whom B owes his election. A demands that B prosecute C. The battery is one that has created no public disturbance and is therefore an offense for which a public prosecutor would not ordinarily institute proceedings. In compliance with A’s demand, B files an information against C. A has procured the institution of the proceeding.

Restatement (Second) Torts § 653 (1977). In the example, the defendant procured the prosecution by exerting improper pressure on the district attorney to bring charges that ordinarily would not have been filed. Similarly,' in this case, there is legally sufficient evidence in the record that Grant would not have been prosecuted but for Bennett’s acknowledged and systematic campaign to improperly influence the proceedings. First, the Navarro County district attorney testified emphatically that although he had the authority to file an information charging Grant with misdemeanor attempted theft, he “dug in his heels” and steadfastly refused to press charges against Grant because of the statute of limitations and because he believed Bennett had been tailoring the facts to create a chargeable offense. Only after immense pressure from Bennett and some altering of the facts, did the district attorney finally yield and agree to bring the misdemeanor case before the grand jury. He testified, however, that ordinarily he would not have presented this misdemean- or ease to the grand jury but only did so because of Bennett’s unceasing demands. Like the example in the Restatement, this proceeding before the grand jury would never have occurred but for Bennett exerting such pressure on the district attorney that his desire to have the proceeding commenced was the determining factor in the district attorney’s decision to prosecute.

After the grand jury refused to indict, Bennett — undeterred in his goal of having Grant imprisoned — then organized and led an extraordinary petition campaign to put in place a hand-picked special prosecutor to indict Grant. At a time when the district attorney was facing a heavily-contested election, Bennett then came to the district attorney’s office with the petitions demanding the appointment of his special prosecutor to the case. Feeling Bennett’s petition campaign “wasn’t helping” his chances of reelection, .the district attorney again yielded to Bennett’s demands. Here, like the example in the Restatement, Grant’s second prosecution was a proceeding that would have never occurred but for Bennett’s exertion of untoward pressure on the district attorney. Undoubtedly, there is more than a scintilla of evidence that Bennett’s acknowledged and systematic campaign to improperly influence judicial proceedings was the determining factor in the prosecution.

Accordingly, we conclude there is legally sufficient evidence that Bennett procured Grant’s prosecution by either providing false information to authorities or by engaging in such a systematic and untoward campaign to influence judicial proceedings that his conduct was the determining factor in the prosecution.

CORPORATE LIABILITY

Having found sufficient evidence of Bennett’s liability in this suit, we next address Bonham’s liability. With regard to Bon-ham, the jury made several alternate findings imputing corporate liability on Bon-ham for the malicious prosecution. First, under the malicious prosecution question, the jury found that both Bennett and Bon-ham — through an agent — had maliciously prosecuted Grant. Second, the jury found that Bennett was acting in his capacity as a vice-principal of Bonham when he maliciously prosecuted Grant. Finally, the jury found that Bonham was responsible for Bennett’s conduct under a “reverse-piercing” theory of liability. In two individual issues, Bonham contests its liability, arguing: (1) that it was improperly joined as a party to the suit and (2) there is no evidence to support the jury’s findings of corporate liability.

A. Joinder

In its first individual issue, Bonham contends that it was improperly-joined as a party to this suit. A trial court is given a great deal of discretion in matters of joinder, arid its decision on such procedural issues will not be disturbed on appeal absent an abuse of discretion. Varme v. Gordon, 881 S.W.2d 877, 882 (Tex.App.-Houston [14th Dist.] 1994, writ denied). A trial court abuses its discretion when it has acted in an unreasonable or arbitrary manner, or when it acts without reference to any guiding principle. Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex.App.-Austin 2014, no pet.). A trial court’s decision on the matter of the join-der of an additional party is “generally based on practical considerations with a view to fair, orderly and timely prosecution and disposal of pending litigation.” Fireman’s Fund Ins. Co. v. McDaniel, 327 S.W.2d 358, 373 (Tex.Civ.App.-Beaumont 1959, no writ).

Bonham’s misjoinder claim necessitates a brief review of this case’s procedural history. This suit was originally initiated by Bennett — the plaintiff in this suit — filing an original petition suing Grant for slander. In his original answer, Grant asserted a counterclaim against Bennett for intentional infliction of emotional distress. Later, in an amended pleading, Grant added Bonham as an additional counter-defendant to his intentional infliction of emotional distress claim. Upon request of the trial court, Grant then filed a motion seeking leave to include Bonham in the suit. Grant’s motion for leave sought to add Bonham as a party to the suit on the grounds that Bonham was Bennett’s alter ego, and his claims of intentional infliction of emotional distress against both Bennett and Bonham “arose from the same transaction, occurrence, or series of transactions or occurrences ... and the questions of law and fact in this case are common to both [Bennett and Bonham].” After a hearing, the trial court granted the motion without stating the grounds for the joinder and ordered Grant to serve Bon-ham with process. 'After being served, Bonham answered as a party to the suit without further objection. Later, after Bonham had entered an appearance in the suit, Grant again amended his pleadings to add — after his indictments were expunged — an additional counterclaim against Bennett and Bonham for malicious prosecution. Bonham answered the malicious prosecution claim without objection.

On appeal, however, Bonham contends it was improperly joined in the lawsuit under Texas Rule of Civil Procedure 38. See Tex. R. Civ. P. 38. Rule 38 provides that a defendant may bring in a third party to a suit if that person is or may be liable to him or the plaintiff for all or part of the plaintiffs claim against him. Id. A third-party action under Rule 38 is not an independent cause of action but is derivative of the plaintiffs claim. Id.; see In re Seven-O Corp., 289 S.W.3d 384, 390 (Tex.App.-Waco 2009, orig. proceeding [mand. denied]). Here, we agree with Bonham that Grant’s claim asserting an independent cause of action against it for intentional infliction of emotional distress' was not a third-party claim as contemplated by Rule 38. Grant did not assert — as Rule 38 requires — that Bonham was liable for all or part of Bennett’s slander claim against him. Rather, Grant sought to join Bonham as an additional party to his counterclaim seeking affirmative relief for intentional infliction of emotional distress.

We cannot, however, conclude that Bon-ham has proven the trial court abused its discretion by allowing the joinder because our rules of civil procedure otherwise permit the joinder of a non-party to a previously filed counterclaim. Texas Rule of Civil Procedure 97 provides that additional persons — other than those made parties to the original action — may be made parties to a counterclaim in accordance with the provisions of Rule 39 (“Joinder of Persons Needed for Just Adjudication”) and Rule 40 (“Permissive Joinder of Parties”). See Tex. R. Civ. P. 39, 40, 97(f); see also Tex. R. Civ. P. 37 (“Before a case is called to trial, additional parties necessary or proper parties to the suit, may be brought in, either by the plaintiff or the defendant upon such terms as the court may prescribe”). Thus, non-parties must be joined as additional defendants to a counterclaim if in their absence complete relief cannot be afforded among the parties. See Tex. R. Civ. P. 39, 97(f). In addition, the trial court has the discretion to permit the joinder of additional defendants to a counterclaim under the permissive joinder provisions of Rule 40. See Tex. R. Civ. P. 40 (“All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action”), 97(f) (persons other, than those made parties to the original action may be made parties to a counterclaim in accordance with the provisions of Rule 40).

Further, we note that once Bonham entered an appearance in this suit, Grant was entitled to assert his additional counterclaim against Bonham for malicious prosecution without further service of process. See Tex. R. Civ. P. 97(b), 124. Under these circumstances, we cannot conclude— nor has Bonham proven — that the trial court abused its discretion by permitting the joinder. See Varme, 881 S.W.2d at 883 (“We emphasize that the trial court is given great discretion over joinder questions.”). Accordingly, we overrule Bon-ham’s joinder arguments.

B. Corporate Liability

In its second individual issue, Bonham contends there is no evidence to support the jury’s finding of corporate liability. Corporations can act only through human agents, and when “actions are taken by a vice-principal of a corporation, those acts may be deemed to be the acts of the corporation itself.” See GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex.1999); see also Qwest Int’l Commc’ns, Inc. v. AT & T Corp., 167 S.W.3d 324, 326 (Tex.2005) (corporation is liable for exemplary damages if it acts with malice through the actions of a vice-principal). A corporation, however, cannot be liable for damages “if the vice-principal’s misconduct occurred while he was acting in a personal capacity unrelated to his authority as a corporate vice-principal.” Bennett I, 315 S.W.3d at 884. A vice-principal of a corporation is a person who “represents the corporation in its corporate capacity, and includes persons who have authority to employ, direct, and discharge servants of the master, and those to whom a master has confided the management of the whole or a division of his business.” Id. at 883.

Regarding Bennett’s relationship with Bonham, the Texas Supreme Court in Bennett I concluded that Bennett was “indisputably a vice-principal of the Bonham Corporation, he was most likely the only vice-principal and the only person whose conduct and decisions could subject the corporation to exemplary damages.” Id. at 884. In this case, similar evidence was presented that, although Bonham was putatively owned by Bennett’s daughters, the daughters had no control over the corporation and received no profits, and Bennett himself exclusively controlled and profited from Bonham. Bennett testified that he did not own a home or a vehicle and did not have a bank account but lived rent-free in a home owned by Bonham, drove Bon-ham vehicles, and “did whatever [he] wanted to with the corporation bank account.” On this record, Bonham concedes that Bennett was indisputably a vice-principal of Bonham. Instead, Bonham argues only that there is insufficient evidence to support the jury’s finding that Bennett was acting in his capacity as a vice-principal of Bonham when he maliciously prosecuted Grant.

In its brief, Bonham attempts to distinguish this case from Bennett I, in which the Texas Supreme Court found there was “ample evidence” that Bennett was acting in his corporate capacity when he converted Reynolds’ cattle using “corporate authority over corporate employees, on corporate land, [and] using corporate equipment.” Id. at 885. Bonham argues in its brief that in contrast to Bennett I, “the instant case does not involve the use of corporate property or the exercise of corporate privileges to accomplish the underlying tort.” We conclude, however, that in this case there is, again, more than ample evidence to impart corporate liability on Bonham.

Reviewing the record, Bennett’s malicious prosecution of Grant involved several courses of conduct that implicate Bonham. First, Bennett contacted an attorney who had an ongoing attorney-client relationship with Bonham and directed him to research whether Grant’s alleged actions constituted a criminal offense. The attorney then drafted a brief based on his legal research advocating that Grant be charged with attempted theft. The brief was sent to the Navarro district attorney and described as a “catalyst” in the district attorney’s decision to bring the case before a grand jury. This same attorney was also pivotal in later advising Bennett to seek the appointment of a special prosecutor to the case and then drafted the petition accusing the Navarro County district attorney of bias. The attorney testified at trial that he had an ongoing attorney-client relationship with Bonham since 1982. When asked whether he had ever done any personal work for Bennett, the attorney answered: “I don’t remember ever doing anything for Mr. Bennett except a will one time.”

Bennett’s malicious prosecution of Grant was further accomplished by traveling many miles in a Bonham vehicle to meet with officials in four different counties to have Grant prosecuted. Bennett testified at trial that he did not own a vehicle and acknowledged that he used Bonham vehicles to accomplish this phase of the malicious prosecution. When asked whether he ever used Bonham’s vehicles for personal use, Bennett responded “I don’t have much personal business.” Bennett’s lack of personal business was further exemplified when he testified that he directed a Bonham employee to type a transcript of his alleged secretly-taped conversation with Grant. He then testified that he presented this typed transcript to law enforcement in his attempts to prosecute Grant. The employee who typed the transcript served as Bonham’s corporate representative at trial.”

Viewing the foregoing evidence in the light most favorable to the jury’s verdict, we conclude there is more than a scintilla of evidence to support the jury’s finding that Bennett was acting in his capacity as a vice-principal of Bonham when he maliciously prosecuted Grant. We overrule Bonham’s individual issues on appeal.

DAMAGES

After finding Bennett and the Bonham Corporation maliciously prosecuted Grant, the jury found Grant was entitled to the following damages: $5,000 in mental anguish damages; $60,000 in attorneys’ fees incurred defending the malicious prosecution; $1 million in punitive damages awarded against Bennett; and another $1 million in punitive damages awarded against the Bonham Corporation. The trial court’s final judgment reduced the award of compensatory damages to $10,703 but awarded Grant, in accordance with the jury’s verdict, $2 million in punitive damages. Appellants challenge the entire award. We will begin by reviewing the compensatory damages awarded to Grant, which are comprised of $5,000 for mental anguish damages and $5,703 in attorneys’ fees.

A. Mental Anguish

Appellants first contend there is no evidence to support the trial court’s award of $5,000 in mental anguish damages. Although Grant was indicted and arrested as a result of their malicious prosecution, Appellants challenge the mental anguish damages contending there is insufficient evidence Grant suffered the “high degree of mental pain and distress necessary for compensable mental anguish.” To support an award of mental anguish damages, there must be both evidence of the existence of compensable mental anguish damages and evidence to justify the amount awarded. Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex.2013). Mental anguish is only compensable if it causes a “substantial disruption in daily routine” or “a high degree of mental pain and distress.” Id.; Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995).

Regarding Grant’s mental anguish damages, Grant testified that — long before his indictment — he “knew Bennett would come after [him]” for turning his photos over to the authorities. Fearful “for [his] life and [his] family,” Grant testified he moved four times in an effort to keep his family safe from Bennett. Each time he would move, however, Grant testified that Bennett would show up at depositions with his tape recorder and pencil in hand to record Grant’s new address. At one such deposition taken prior to ■ his indictment, Grant testified that he heard Bennett avow that “he would see me go to the penitentiary.” He farther testified that he was aware' of other instances when Bennett “had seen that people went to prison” and believed Bennett was “fully capable of seeing that [he] went to prison.” After hearing Bennett’s testimony that it was his goal to put him in prison, Grant testified he was fearful to leave home and would lock himself in his house to protect his family. When Grant was finally indicted, his lawyer informed him he had been charged with a felony and was facing prison time. Grant and his mother then drove the three and half hours from Coleman, Texas, where he lived, to Corsicana, Texas, where he had been indicted. Grant surrendered himself to the authorities in Cor-sicana and was released that day on a surety bond posted by his mother. For the next nine months, the charges remained pending against Grant. Grant testified that he worried how his family would be taken .care of if he went to prison and that he was afraid to leave his family alone. He further testified that as a result of worrying about what Bennett was going to do, “I would have bad headaches, weak stomach, couldn’t eat, couldn’t sleep.” Grant additionally testified that the experience affected his mental state as he went from being “a happy-go-lucky” person to feeling like a “completely different person” who struggled with self-esteem and distanced himself from friends and family. Grant’s sister confirmed that she noticed a change in Grant’s demeanor, testifying that her brother “just closed himself and sequestered himself from everyone.”

Based on the foregoing, we conclude there is sufficient evidence to support the jury’s finding that Grant suffered the degree of mental pain and distress that will support an award of mental anguish damages and that the award of $5,000 was well within the range supported by the evidence.

B. Attorneys’ Fees

When a defendant has caused attorneys’ fees to be incurred in defense of a criminal charge which was maliciously prosecuted, attorneys’ fees in defending the prior criminal charge are recoverable in the malicious prosecution suit as damages. See IBP, Inc. v. Klumpe, 101 S.W.3d 461, 478 (Tex.App.-Amarillo 2001, pet. denied). Here, Grant was charged with two felonies: attempted bribery and tampering with a witness. In his pleadings and at trial, however, Grant sued for malicious prosecution based on the attempted bribery charge only. With regard to recovering attorneys’ fees for the malicious prosecution as damages, Grant’s attorney testified at trial that Grant incurred $6,003.19 in attorneys’ fees for defending against both charges, but that 95% of the work — or $5,703 — would have been necessary for defending the attempted bribery charge alone. The jury, however, found Grant incurred $60,000 in reasonable and necessary attorneys’ fees defending against the malicious prosecution. The trial court, in accordance with Grant’s voluntary remittitur, reduced this amount to $5,703 to conform to the evidence at trial. Appellants nevertheless contend there is insufficient evidence to support the amount of attorneys’ fees awarded as damages.

Appellants do not challenge the reasonableness of the fees. Rather, they argue only that a “reasonable fact-finder could not have ... allocated 95 percent of the fees incurred on both charges solely to attempted bribery.” We disagree. Submitting to the jury an attorney’s testimony concerning the percentage of hours relating to specific claims — even a percentage as high as 95% — is sufficient to satisfy a party’s burden to segregate its attorneys’ fees. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex.2006) (“an opinion would have sufficed stating that, for example, 95 percent of their drafting time would have been necessary even if there had been no [non-recoverable] claim”). Further, to the extent attorneys’ fees “would have- been incurred on a recoverable claim alone, they are not disallowed simply because they do double service” with a non-recoverable claim. See id. at 313. Grant’s indictments were based on the same facts and he asserted the same defense of limitations to both charges. His attorney testified that the legal work performed for both charges was essentially the same, as he drafted the same motions, conducted the same discovery, and attended the same hearings and meetings for both charges. As such, the attorney testified “that 95% of the work that was required on those two charges would’ve been necessary on just the attempted bribery charge itself alone.... I would have done the same work on the attempted bribery charge even if there hadn’t been the attempted tampering with a witness charge.” As there was sufficient evidence that Grant would have incurred $5,703 in attorneys’ fees on the bribery charge alone, we conclude there is sufficient evidence to support the damages award. Finding sufficient evidence to support the award of actual damages, we overrule Appellants’ second issue on appeal.

C. Exemplary Damages Cap

The Texas Civil Practice and Remedies Code limits the maximum amount of exemplary damages a trial court can award. See Tex. Civ. Prac. & Rem. Code § 41.008(b). The cap, however, does not apply when a plaintiff seeks recovery of exemplary damages based on certain felony criminal conduct enumerated under the statute, i.e., cap-busting conduct. Id. § 41.008(c). One such felony cap-busting exception — defined under Penal Code § 32.46 — is when a person, with the intent to defraud or harm any person, by deception causes another to sign or execute any document affecting the pecuniary interest of any person in the amount of $1,500 or more. Id. § 41.008(c)(ll); see also Tex. Penal Code § 32.46. Here, the jury made a cap-busting finding that the Appellants, with the intent to harm Grant, caused another by deception to sign or execute his criminal indictment for attempted bribery, and the indictment affected Grant’s pecuniary interest in the amount of $1,500 or more. Appellants contend there is legally insufficient evidence to support this finding because: (1) an indictment is not a document affecting the pecuniary interest of any person; and (2) there is no evidence Bennett caused anyone to sign the indictment.

1. Document Affecting Pecuniary Interest

Appellants first contend that indictments — as a matter of law — are not documents that affect a defendant’s pecuniary interest, and therefore Grant cannot qualify for the cap-busting exception. We are not persuaded by Appellants’ argument. The term “pecuniary interest” is not defined by the statute; therefore, courts have defined the term using its common meaning of having a “financial stake” in a matter. See Briones v. State, 76 S.W.3d 591, 595 (Tex.App.-Corpus Christi 2002, no pet.); Goldstein v. State, 803 S.W.2d 777, 791 (Tex.App.-Dallas 1991, pet. ref'd). Therefore, the narrow question presented is whether there is legally sufficient evidence of Grant having a financial stake in the grand jury’s indictment.

Appellants contend that Grant had no financial stake because indictments as a whole are excluded from the class of documents that affect pecuniary interests because — unlike a “bank draft, a promissory note, [or] a deed” — no monetary interest “flow[s] directly from the document.” The statute, however, does not require the complainant to have a pecuniary interest in the document itself. See Lewis v. State, No. 05-09-60299-CR, 2010 WL 4400515, at *4 (Tex.App.-Dallas Nov. 8, 2010, pet. ref'd) (not designated for publication). Rather, it requires only that the execution of the document affect the pecuniary interest of any person. See Tex. Penal Code § 32.46. Further, a complainant is not required under the statute to prove actual pecuniary loss. See Smith v. State, 681 S.W.2d 71, 75-76 (Tex.App.-Houston [14th Dist.] 1983), aff'd, 722 S.W.2d 408 (Tex.Crim.App.1986) (offense complete when person causes another to execute document with intent to defraud or harm; there is no requirement to prove resulting harm). Therefore, when a person purposely uses deception to cause a court official to execute a document, the executed document may affect pecuniary interests if it subjects a person to potential financial liability. See Fisher v. State, 803 S.W.2d 828, 830 (Tex.App.-Dallas 1991, pet. ref'd) (securing issuance of citation through deception affected pecuniary interests as citation made defendant in suit potentially liable for monetary damages); Woodley v. State, No. 08-00-00470-CR, 2003 WL 550298, at *6 (Tex.App.-El Paso 2003, pet. ref'd) (mem.op.) (securing trial court’s execution of agreed judgment that had been altered to add new defendant and increase amount of award affected pecuniary interests as defendants faced potential liability under altered judgment).

Viewing the evidence in the light most favorable to the jury’s finding, we conclude there is more than a scintilla of evidence that Grant’s pecuniary or financial interests were affected by the indictment, which — on its face — required him to find a means to post a $10,000 bond or face immediate and indefinite imprisonment. He then was required to obtain legal counsel to quash the indictment, incurring an additional $5,703 in attorneys’ fees. Further, if convicted of the offense of attempted bribery, Grant faced further potential liability as the offense carried a monetary penalty of up to $10,000. See Tex. Penal Code §§ 12.34; 15.01; 36.02. Thus, we conclude there is legally sufficient evidence Grant had a financial stake in the indictment, as the execution of the document caused him both immediate financial liability and potential financial liability in the future.

2. Causation

Appellants next contend that Bennett cannot be the legal cause of Grant’s indictment because (1) the causal link between Bennett’s actions and the indictment is too attenuated to satisfy causation requirements under the Penal Code; and (2) it is impossible to prove causation because “grand jury proceedings are secret, so there is no way of knowing which evidence persuaded the grand jury to indict.” Criminal liability is predicated on but-for causation but also requires consideration of the foreseeability of the injurious consequences of the defendant’s conduct. Williams v. State, 235 S.W.3d 742, 764-65 (Tex.Crim.App.2007). Appellants, relying on the Texas Court of Criminal Appeals’ discussion of causation in Williams v. State, argue the chain of causation linking Bennett to the indictment is too attenuated to impose criminal responsibility. In Williams, the Court found that a mother who left her two daughters in a room with a lit candle under another, adult’s supervision was not criminally responsible for the children’s burning deaths because it was not reasonably foreseeable: (1) that the other adult would forget to blow the candle out before falling asleep; (2) that a sheet or clothing would then fall on the burning candle; and (3) that the other adult would not be able to get children out of the house after the fire started. Id. In this excerpt from their brief, Appellants argue the following is the but-for causal chain linking Bennett to Grant’s indictment in this case:

• If Bennett had not asked for a special prosecutor, and

• If Bennett had not given the prosecutor the facts he had gathered, and

• If the prosecutor had not brought the ease to the grand jury, and possibly,

• If the prosecutor had not presented those facts, and, possibly,

• If the grand jury had not relied on those facts, and

• If the prosecutor had not recommended an indictment or the grand jury had not disregarded the prosecutor’s recommendation, and

• If at least nine of the grand jurors had not voted to issue the indictment,

• Then Grant never would have been indicted.

Appellants then argue this causal chain is similar to Williams because it “is too disconnected from the putative cause to support any finding” of causation. What Appellants fail to account for, however, is that the Court in Williams found that causal link insufficient because the events leading to the children’s deaths were “not reasonably foreseeable.” Id. at 765 (emphasis added). The facts of this case are much different. The evidence in this case reflects that Bennett set out on a course of conduct to have Grant indicted and was successful in that endeavor. Indeed, Appellants do not contest the jury’s finding that Bennett intended to harm Grant by causing the grand jury to sign his indictment. It is reasonably foreseeable that if Bennett intended to put Grant in prison, then provided evidence that a reasonable juror could infer was fabricated or manipulated, and then led a campaign to have a special prosecutor appointed in the case— all of which is more than adequately supported by the record — the end result of these efforts would be Grant’s indictment. It is abundantly apparent that Grant’s indictment was the natural, probable and foreseeable consequence of Bennett’s actions.

Appellants next contend that “Grant could not have sustained his burden to prove causation because it is impossible to show that Bennett’s conduct was necessary for the indictment to issue [given that] grand jury proceedings are secret.” First, as we have already discussed, there was sufficient evidence that but for Bennett’s aggressive and untoward efforts to improperly influence the criminal justice system, the case would have never been put before the grand jury, not once, but twice. Further, Bennett does not dispute the jury’s finding that he used deception to cause the grand jury'to execute the indictment. Deception is defined, as “creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe is true.” Tex. Penal Code §§ 31.01(1)(A), 3