Soon Phat, L.P. v. Alvarado

• Decision Date: 17 January 2013
• Docket Number: Nos. 14–10–00555–CV, 14–10–00603–CV, 14–11–00033–CV.,s. 14–10–00555–CV, 14–10–00603–CV, 14–11–00033–CV.
• Parties: SOON PHAT, L.P., individually and d/b/a Charleston Court Apartments, Yin Soon Choi, Mei Lian Choi and Dersing, Inc., Appellants v. Juvenal ALVARADO and Feliciano Alvardo, Appellees. Juvenal Alvarado and Feliciano Alvarado, Appellants v. Robert Groce Dill, individually and d/b/a Arrow Towing, Samuel Lee Thompson, Brock Keith Dion, Mesha Boyles a/k/a Mesha Kyomi Stewart, Soon Phat, L.P. individually and d/b/a Charleston Court Apartments, Yin Soon Choi, Mei Lian Choi, and Dersing, Inc., Appellees. Robert Groce Dill, individually and d/b/a Arrow Towing, Samuel Lee Thompson and Brock Keith Dion, Appellants v. Juvenal Alvarado and Feliciano Alvardo, Appellees.
• Court: Texas Court of Appeals

396 S.W.3d 78

SOON PHAT, L.P., individually and d/b/a Charleston Court Apartments, Yin Soon Choi, Mei Lian Choi and Dersing, Inc., Appellants

v.Juvenal ALVARADO and Feliciano Alvardo, Appellees.

Juvenal Alvarado and Feliciano Alvarado, Appellants

v.Robert Groce Dill, individually and d/b/a Arrow Towing, Samuel Lee Thompson, Brock Keith Dion, Mesha Boyles a/k/a Mesha Kyomi Stewart, Soon Phat, L.P. individually and d/b/a Charleston Court Apartments, Yin Soon Choi, Mei Lian Choi, and Dersing, Inc., Appellees.

Robert Groce Dill, individually and d/b/a Arrow Towing, Samuel Lee Thompson and Brock Keith Dion, Appellants

v.Juvenal Alvarado and Feliciano Alvardo, Appellees.

Nos. 14–10–00555–CV, 14–10–00603–CV, 14–11–00033–CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Jan. 17, 2013.

L. Keith Slade, Steven Everett Day, Houston, for Appellants in No. 14–10–00555–CV.

Armando Lopez, Eric D. Nielsen, John Harold Risley, Houston, for Appellants in No. 14–10–00555–CV.

Armando Lopez, Houston, for Appellants in No. 14–10–00603–CV.

John Harold Risley, Steven Everett Day, L. Keith Slade, Houston, for Appellees in No. 14–10–00603–CV.

John Harold Risley, Houston, for Appellants in No. 14–11–00033–CV.

Armando Lopez, Houston, for Appellees in No. 14–11–00033–CV.

Panel consists of Justices BOYCE, CHRISTOPHER and JAMISON.

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 includingassault, 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.¹

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 Pinera, 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 Pinera 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. Feliciano's friend, Moises 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. Feliciano stated that he received 14 staples on his head and could not work 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 Feliciano 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...