                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-313-CV


HYDE-WAY, INC. AND CHARLES                                       APPELLANTS
GLEN HYDE

                                        V.

JOHN R. DAVIS                                                       APPELLEE

                                    ------------

           FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                  Introduction

      Appellants Hyde-Way, Inc. (Hyde-Way) and Charles Glen Hyde (Hyde)

appeal from the jury’s verdict and the trial court’s judgment awarding appellee

John R. Davis various types of damages for his assault claim. In eight issues,

appellants argue (among other contentions) that the trial court erred by


      1
          … See Tex. R. App. P. 47.4.
submitting portions of its charge to the jury and that there is no evidence to

support the jury’s answers to some of the questions in the charge. We affirm.

                               Background Facts

      Hyde-Way, a business that Hyde and his wife (Candace) incorporated as

sole shareholders in 1980,2 has operated a portion of the Northwest Regional

Airport (the Airport)3 since at least 1983. Hyde-Way constructed and owns

hangars at the Airport, and it previously owned the Airport’s runway. Hyde is

the president of Hyde-Way and Candace is its secretary-treasurer.

      Hyde and Candace live at the Airport in a hangar. Hyde has a history of

blocking car and aircraft access to the Airport’s taxiways.4




      2
        … At the time of the April 2008 trial, and for six to nine years preceding
the trial, Candace owned all of Hyde-Way’s stock. No one has ever owned
Hyde-Way stock other than Hyde or Candace, and Hyde-Way has never had any
full-time employees other than those two individuals.
      3
       … The Northwest Regional Airport is a small private airstrip that was
previously owned by Hyde-Way and is now owned by Texas Air Classics. The
Airport has several hangars for small aircraft and aircraft-related businesses.
Texas Air Classics owns the runway, the main taxiway, and some land; Hyde
is Texas Air Classics’ director and Candace is its treasurer. The Hydes also
own other various aviation-related corporations.
      4
       … Taxiways are paths that allow aircraft to travel between their hangars
and the runway. Taxiways also act as streets for the Airport that cars can use.
Hangar owners must pay fees to use taxiways. Texas Air Classics owns and
controls the Airport’s taxiways, and it receives the fees paid for the taxiways’
use; however, some individuals make their taxiway payments to Hyde-Way.

                                        2
      Davis bought a hangar at the Airport in 1990 through a foreclosure sale;

he intended to use it as a residence and also for a helicopter maintenance

business.    Davis also bought two 7,500-square-foot lots that adjoined the

6,000-square-foot hangar and a one-acre lot that was not adjacent to the

hangar.     He needed to use a taxiway to give his customers access to his

hangar.     Davis paid taxiway dues of $456 per year from 1990 to at least

1999.5 On two occasions between 1990 and 1996, Hyde offered to sell the

grass taxiway to Davis for one dollar if Davis paid to pave it.

      Hyde and Davis eventually had a dispute about access to the taxiway;

Hyde has not allowed any access from Davis’s hangar to the taxiway since

2000. On April 7, 2004, stemming from their taxiway dispute, Hyde and Davis

exchanged words while they were in their respective vehicles.6

      A week later, on a Sunday evening, Hyde stopped his pickup truck in the

middle of a narrowly paved road near the Airport and Davis’s house, loudly




      5
       … Davis paid Hyde directly in 1990; he then paid annual checks to the
Airport and then to the Airport owners’ association, although he continued to
deliver these checks to Hyde.
      6
       … The specific contents of the April 7, 2004 conversation are included
below in our discussion of the jury’s exemplary damages award. Before the
April 7, 2004 encounter occurred, Hyde and Davis had not spoken since 1998.

                                       3
exchanged angry words with Davis,7 walked about twenty feet quickly toward

Davis as Davis also moved toward him through a grassy area between the road

and his house (located on the one-acre lot he had purchased), and punched

Davis in his face two or three times as Davis tried to retreat.8 Hyde returned

to his truck and drove away; Davis, while holding a tooth in his hand and with

his mouth bloodied from the encounter, walked to strangers in a car who had

witnessed the assault and asked them to stay as he called the police.

The driver of the car left but gave Davis his phone number, and the driver later

gave a statement to law enforcement and testified in the trial of this case.

      Davis then walked into his house, and his wife called 911. When Davis

first spoke to the 911 responder, he said he did not need an ambulance

because he was “trying to be tough.” About fifteen minutes later, Davis called

911 again and asked for an ambulance.




      7
       … Hyde said to Davis, “You got something to say to me?”
Davis responded, “Short of ‘f--- you,’ no.”
      8
       … Davis said that when he said “f--- you” to Hyde, Hyde “just
exploded. . . . And he jumped out of his truck, and he ran through the ditch.
And he’s got his fists up, and he’s going, ‘Come on, come on. Right here.’ . . .
And he sucker punched me with his left [fist].” Davis explained that the assault
occurred inside Davis’s fence line and that Hyde hopped like a boxer before he
hit Davis’s eye and then kicked him in the groin area. Davis also testified that
it was common on Sunday evenings for Hyde to “patrol the [A]irport when he’d
get done at his office.”

                                       4
       As Davis waited for an ambulance, his wife took some pictures of his

injuries.9     The ambulance arrived, and then paramedics placed Davis on a

stretcher and took him to a hospital in Grapevine.          At the hospital, Davis

received advice that he contact his dentist.        Later that night, the hospital

released him, and he gave a statement about Hyde’s assault to the police.

       Davis went to his dentist two days later and learned that two of his teeth

had been fractured.         The dentist made temporary crowns for aesthetic

purposes, and then the dentist referred Davis to a periodontist (a dental

specialist) to restore the teeth through a crown-lengthening procedure.10

Davis had two or three more appointments with the dentist over the course of

several months and three appointments with the periodontist for further work

that took several hours to complete. Davis’s appointments with his dentist cost

over $3,400; his appointments with his periodontist cost approximately $800.11

       In February 2003, Davis and his wife filed an original petition that

contained assault and trespass claims and alleged that Hyde and Hyde-Way

were both responsible to pay exemplary damages and economic and


       9
           … The court admitted these pictures as exhibits at trial.
       10
       … The crown-lengthening procedure involves removing gum tissue to
expose teeth and then suturing gums back around the teeth.
       11
       … The trial court admitted copies of the bills and medical records related
to Davis’s hospital stay and his dental treatment.

                                           5
noneconomic damages related to Davis’s medical expenses, pain and suffering,

loss of consortium, and lost wages. 12 That same year, through a realtor, Davis

listed his three parcels of property near the Airport for sale. He sold the one-

acre lot where his home was located, but he did not sell the other lots because,

among other reasons, access to the taxiways, which were owned by Hyde’s

company, had been blocked by Hyde with several truckloads of trash, asphalt,

and dirt,13 meaning that there was no access to the taxiways except through

an agreement with Hyde. 14 Davis’s realtor placed signs on the property, but

someone repeatedly destroyed or stole the signs, and Davis eventually chose

to take the lots off of the market.



      12
        … Only Davis remained in the case at the time of the trial court’s
judgment because his wife nonsuited her claims on the day of trial. Thus, in
the remainder of this opinion, we will refer only to Davis with regard to portions
of the case in which he and his wife jointly filed documents.
      13
       … Davis testified that he stopped paying access fees for the taxiways
once “the dirt appeared.”
      14
        … Davis explained that his hangar and the two lots around it remained
for sale, “but there’s no point in trying to sell them. There’s no way anyone
will buy them.” He also said that he once had an offer on the property, but
after the potential buyer “went to see Mr. Hyde, . . . when he came back, he
wanted out of the contract.” He stated, “We’ve had two other serious inquiries
to the point where they were going to sign a contract; but they spoke with Mr.
Hyde first, and then they wouldn’t.” Davis asserts that Hyde wants to buy the
property and that Hyde has taken actions to force Davis to sell the property to
him for a low price. Davis said that his trouble with Hyde started when Davis
refused to sell his property to Hyde.

                                        6
      In a related criminal trial, a jury convicted Hyde in March 2006 for the

assault on Davis.    In May 2006, Davis filed a traditional motion for partial

summary judgment, contending that Hyde’s criminal conviction for assault

precluded his ability to prevail on that claim in Davis’s case against him.15 After

Hyde did not respond to the motion, the trial court granted it (as against Hyde

individually) and decreed that Hyde was liable for assaulting Davis.

      The jury trial on the parties’ remaining claims began in April 2008. At

trial, during his opening statement to the jury, Davis’s counsel related that the

basis of Davis’s case was that during Hyde’s assault of Davis, Hyde was acting

in furtherance of Hyde-Way; he also contended that Hyde and Candace are

“professionals . . . at the corporate shell game.” Hyde-Way’s counsel asserted

that Davis was a “liar” and a “perpetrator of a fraud” who “phonied up a deal”

to get money.

      Davis testified that he had not incurred any damages since the time of

Hyde’s criminal trial. He also testified that he could not recall why he sued

Hyde-Way; he stated, “that’s something [Davis’s attorneys] decided after we




      15
        … As summary judgment evidence, Davis included a copy of the verdict
from Hyde’s criminal case and a copy of our opinion affirming Hyde’s
conviction. See Hyde v. State, No. 02-04-00349-CR, 2005 WL 1838980, at
*3 (Tex. App.—Fort Worth Aug. 4, 2005, no pet.) (not designated for
publication).

                                        7
told them what had happened.”       When asked what Hyde-Way does, Davis

responded that he “believe[d] they’re in the real estate business” and that such

information is “[s]ecretive between all [Hyde’s] corporations.” He reiterated his

belief, however, that when Hyde assaulted him, he was on Airport patrol

because “[e]verything that happens on the [A]irport happens through Glen

Hyde,” although he admitted that his belief was speculative.

      Candace testified that although Texas Air Classics collects licensing fees

for use of the Airport’s taxiways, Hyde-Way is the enforcer of the fees. And

she admitted that she typed a letter to law enforcement about Hyde’s assault

of Davis that is signed by Hyde in his capacity as president of Hyde-Way and

that is printed on Hyde-Way letterhead. The letter, dated December 12, 2002,

states,

            Dear Sheriff Lucas,

            On November 14, 2002, at approximately 3:30 P.M., [Davis]
      trespassed on my property. I have advised [Davis] to stay off my
      [A]irport property on numerous occasions, but he continues to
      trespass, as well as antagonize, use profanity, hand signals, etc.
      [Davis] has a long[-]standing history (over eight years) of this type
      of conduct witnessed by numerous people.

            Last April 14th, [Davis] assaulted me while I was in my
      vehicle on a Denton County Road that runs in front of his house.
      In order to defend myself, I exited the truck and a fist fight ensued
      in which [Davis] received a couple of smacks to the head and a
      swift kick to his posterior. After waiting two weeks, [Davis]
      elected to file a complaint with [law enforcement]. . . .

                                       8
            This whole matter took place in the middle of a county road.
      I never went onto [Davis’s] property, which clearly proves [Davis]
      assaulted me. . . . If the Sheriff’s Department ever wants to arrest
      me, all they have to do is come by my office 9 A.M.-5 P.M.,
      Monday-Friday at Northwest Regional Airport, where I’ve worked
      and resided for over twenty years! However, in consideration of
      [Davis’s] and my long[-]standing personality differences[,] I feel it’s
      in our mutual benefit and best interest if [Davis] doesn’t come
      anywhere on my [A]irport property. Please advise [Davis] not to
      come on my property as soon as possible. I’ve enclosed an
      [A]irport map showing [Davis’s] property and the [A]irport property.
      . . . [O]ur office can’t find any written license agreement
      authorizing [Davis] or [his] tenants or guests access to Northwest
      Regional Airport. . . .

               ....

               Sincerely,

               []16

               Glen Hyde, President

      Candace said that it has been “years” since Hyde-Way has paid her or

Hyde any salary. When asked whether Hyde-Way did business in 2002, she

responded, “Not really,” but this conflicts with her testimony that Hyde-Way

had a part-time employee in that same year. She testified that Hyde was not

working for Hyde-Way on the night of the assault. Finally, she stated that (as

asserted in Hyde-Way’s letter to law enforcement) Davis has trespassed on her

property and that Davis is aggressive and a “very scary fellow.”



      16
           … Hyde signed his name here.

                                          9
      After Davis rested his case, Hyde-Way moved for a directed verdict on

Davis’s whole case against it, and Hyde moved for a directed verdict on Davis’s

request for exemplary damages; the trial court denied both motions.

Neither Hyde nor Hyde-Way called any witnesses.

      At the jury charge conference, all parties requested various additions or

made objections. The parties presented their closing arguments, and then the

jury deliberated and returned its verdict for Davis’s assault claim.17 Appellants

jointly filed a motion for judgment notwithstanding the verdict or for a new trial,

contending that there is no evidence to support several of the jury’s answers;

following a hearing, the court denied these motions.

      In its judgment, based on the jury’s verdict, the trial court assessed the

amount of damages plus prejudgment interest at $156,918.72, and it also

assessed postjudgment interest until that amount is paid. Appellants filed this

appeal, asking us to reverse the trial court’s judgment and render a take-nothing

judgment.

                    Hyde-Way’s Liability for Hyde’s Assault

      In their first four of eight issues, appellants assert that Hyde-Way should

not be liable for Hyde’s assault because there is no evidence to support three



      17
       … The jury found against Davis on his trespass claim; it determined that
the assault did not occur on Davis’s property.

                                        10
of the jury’s answers and because the trial court erred by refusing to include a

requested definition in the jury charge. Specifically, they argue that the trial

court erred by not including in the definition of “employee” the phrase “and

who is compensated for his services“ and that there is no evidence to support

the jury’s affirmative responses to (1) question number one, which asked, “Is

[Hyde-Way] responsible for the conduct of [Hyde]?”; (2) question number two,

which asked, “On the occasion in question[,] was [Hyde] acting as an employee

of [Hyde-Way]?”; and (3) question number three, which asked, “On the

occasion in question[,] was [Hyde] acting in the scope of his employment?”

Appellants do not challenge the factual sufficiency of the evidence, and they

do not challenge the wording of the jury questions except for the definition of

“employee,” as described above.

Standard of review

      A challenge that there is no evidence to support a jury’s finding is a

challenge to the legal sufficiency of the evidence. See Exxon Corp. v. Emerald

Oil & Gas Co., No. 05-1076, 2009 WL 795668, at *6 (Tex. Mar. 27, 2009);

Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, 237 S.W.3d 379,

389 n.9 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Hyde-Way and Hyde

acknowledge that they are challenging the legal sufficiency of the evidence to

support the jury’s findings.

                                      11
      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact, (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered

to prove a vital fact, (3) the evidence offered to prove a vital fact is no more

than a mere scintilla, or (4) the evidence establishes conclusively the opposite

of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334

(Tex. 1998), cert. denied, 526 U.S. 1040 (1999); W.L. Lindemann Operating

Co. v. Strange, 256 S.W.3d 766, 774 (Tex. App.—Fort Worth 2008, pet.

denied).

      In determining whether there is legally sufficient evidence to support the

finding under review, we must consider evidence favorable to the finding if a

reasonable factfinder could and disregard evidence contrary to the finding

unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v.

Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d

802, 807, 827 (Tex. 2005).      Anything more than a scintilla of evidence is

legally sufficient to support the finding. Cont’l Coffee Prods. Co. v. Cazarez,

937 S.W.2d 444, 450 (Tex. 1996); Leitch v. Hornsby, 935 S.W.2d 114, 118

(Tex. 1996). More than a scintilla of evidence exists if the evidence furnishes

some reasonable basis for differing conclusions by reasonable minds about the




                                       12
existence of a vital fact.   Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77

S.W.3d 253, 262 (Tex. 2002).

Issue one, concerning jury question number one

      In the first question of the jury charge, the trial court asked the jury, “Is

[Hyde-Way] responsible for the conduct of [Hyde]?” The court then instructed

the jury that Hyde-Way is responsible for Hyde’s conduct if it was

      organized and operated as a mere tool or business conduit of
      [Hyde] and there was such unity between [Hyde-Way and Hyde]
      that the separateness of [Hyde-Way] had ceased and holding only
      [Hyde] responsible would result in injustice.

            In deciding whether there was such unity . . ., you are to
      consider the total dealings of [Hyde-Way and Hyde], including:

            1.    the degree to which [Hyde-Way’s] property had been
                  kept separate from that of [Hyde];

            2.    the amount of financial interest, ownership, and control
                  [Hyde] maintained over [Hyde-Way];

            3.    whether [Hyde-Way] had been used for personal
                  purposes of [Hyde]; and,

            4.    [Hyde] used [Hyde-Way] as a means of evading an
                  existing legal obligation, and holding only [Hyde]
                  responsible would result in injustice.

      The “business conduit” and “unity” terms and the four factors described

in the jury charge relate to the “alter ego” theory of piercing the corporate veil

to justify holding the shareholders of a corporation liable for a corporation’s



                                       13
acts.    See Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex. 1986),

superseded by statute as stated in Willis v. Donnelly, 199 S.W.3d 262, 271–72

& n.12 (Tex. 2006); Seidler v. Morgan, 277 S.W.3d 549, 557 (Tex.

App.—Texarkana 2009, pet. denied); Schlueter v. Carey, 112 S.W.3d 164, 169

(Tex. App.—Fort Worth 2003, pet. denied). The trial court inversely used the

factors to allow the jury to hold a corporation (Hyde-Way) liable for an

individual’s (Hyde’s) actions. Although this portion of the jury charge may

therefore be defective, “it 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.” Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.),

cert. denied, 530 U.S. 1244 (2000); see City of Fort Worth v. Zimlich, 29

S.W.3d 62, 71 (Tex. 2000); Kroger Co. v. Brown, 267 S.W.3d 320, 323 (Tex.

App.—Houston [14th Dist.] 2008, no pet.). Thus, we must use the charge’s

language and its factors to determine Hyde-Way’s liability, even if the language

and the factors would not otherwise be relevant to that determination.

        For similar reasons, we cannot consider the effect of section 21.223 of

the business organizations code, which appellants cite as their principal support

in arguing that the “alter ego” theory that is described in question number one




                                       14
has been negated by the legislature.18      See Tex. Bus. Orgs. Code Ann. §

21.223 (Vernon 2008). Neither Hyde-Way nor Hyde raised section 21.223 in

the trial court or argued in that court that question number one had been

improperly submitted for any reason other than that there was no evidence to

support it.   Thus, even if that section does negate the alter ego theory as

submitted in question number one, we must still measure the sufficiency of the

evidence under the standards submitted in that question. See Osterberg, 12

S.W.3d at 55.

      Almost all of appellants’ first issue focuses on section 21.223; they only

briefly contend that there is “simply no evidence to support the jury’s answer

to Question No. 1 that [Hyde-Way] was responsible for the conduct of Hyde.”

They do not provide any analysis of the record in the briefing on their first

issue, and they do not cite any legal authorities that are unrelated to their

contention regarding section 21.223, but we must still address the legal

sufficiency of the evidence supporting question number one.         See City of

Arlington v. State Farm Lloyds, 145 S.W.3d 165, 167–68 (Tex. 2004).

      We believe that there was at least more than a scintilla of evidence

presented at trial from which the jury could decide that Hyde and Hyde-Way



      18
       … In appellants’ brief, they argue that “the jury [was] given instructions
which under [section 21.223] are prohibited.”

                                       15
were so unified in the events related to the assault that their separate identities

ceased and that holding only Hyde responsible would be unjust. See Uniroyal

Goodrich Tire Co., 977 S.W.2d at 334. As described, Hyde mixed and equated

his dispute with Davis (which he now claims to be only personal) and his then-

pending personal criminal prosecution with his Hyde-Way business operations

by signing a letter on Hyde-Way’s letterhead, as its president, detailing his

version of the assault (which was belied by the evidence at trial). In that letter,

Hyde said that he could be arrested at his office, where he had “worked and

resided for over twenty years[.]” He further entangled his dispute with Davis

with Hyde-Way’s business in the letter by asking the sheriff to advise Davis

“not to come on [his Airport] property as soon as possible,” by stating that his

office could not find any document authorizing Davis to be there, and by

expressing his feeling that it was urgent that the sheriff’s office “support this

request for legal separation and restraint.”

      Next, as is described in more detail below, Hyde’s words to Davis a week

before the assault, when he talked about the taxiway issue and stated that he

was going to run Davis off of the Airport, further connected Hyde-Way’s

functions to Hyde’s personal dispute with Davis. Hyde’s personal life and his

business ventures also merge because he lives in a hangar at the Airport.




                                        16
      Furthermore, the record reflects Hyde-Way’s loose structure, which

creates difficulties in separating Hyde-Way’s actions from Hyde’s actions. In

its more than twenty-eight years of existence, Hyde-Way has never been

owned by anyone other than Hyde or Candace; the corporation has also never

had any other officers or directors. When asked whether Hyde-Way has a vice-

president, Candace testified, “No, sir. Or if we do, then it would probably just

fall to me.”   And although Candace is Hyde-Way’s sole shareholder, she

expressed unfamiliarity with the process of the corporation’s shareholder

meetings, stating, “I think you have to have like shareholders elect directors and

all that kind of stuff. And [Hyde], being one of the directors, I think, has to be

there.” She expressed similar unfamiliarity with how Hyde-Way would pay

salaries.

      Although the evidence related that Hyde does not own Hyde-Way stock

anymore because Candace owns it all,19 there was no testimony indicating that

Hyde does not indirectly financially benefit from Candace’s ownership of the

stock or from the money the corporation makes.         And the jury could have

inferred that Hyde’s finances were tied to Hyde-Way’s finances because they



      19
        … It is unclear whether Hyde’s transfer of   his Hyde-Way stock shares
to Candace occurred before or after the assault.      The trial occurred in April
2008, the assault occurred in April 2002, and        Candace testified that the
transfer occurred “[m]aybe six, seven, eight, nine   years ago.”

                                       17
heard admissions demonstrating that both Hyde’s and Hyde-Way’s net worth

is “in excess of $600,000.”       See City of Keller, 168 S.W.3d at 821–22

(explaining that a jury may draw inferences from the evidence).

      Also, as president, Hyde clearly had control over Hyde-Way’s activities,

as is admitted by Hyde-Way in its brief. Davis expressed his belief that Hyde

controls Hyde-Way, testifying without objection, “All the corporations are Glen

Hyde. There’s no difference in any of them.” The idea that Hyde’s various

corporations exist as an extension of each other and himself has some support

in the record. For instance, Hyde or Candace own a corporation called Dream

Ships that exists only to own an airplane that it purchased through a note from

the Hydes.    Also, Hyde-Way and Texas Air Classics share the same office

space, phone number, and address.

      We conclude and hold that the collective evidence presented at trial,

viewed in the light most favorable to the verdict, would enable a reasonable

jury to at least form differing conclusions about the answer to question number

one, that the evidence was more than a scintilla in that regard, and that it was

therefore legally sufficient to support the jury’s answer.20 See Rocor Int’l, Inc.,



      20
       … We acknowledge that the evidence, while legally sufficient, may not
have preponderated toward holding Hyde-Way liable for Hyde’s assault under
the theory in question number one, as there was no evidence that Hyde used
Hyde-Way to avoid obligations or that he commingled his own property with

                                        18
77 S.W.3d at 262; Uniroyal Goodrich Tire Co., 977 S.W.2d at 334; see also

Dominguez v. Payne, 112 S.W.3d 866, 870 (Tex. App.—Corpus Christi 2003,

no pet.) (explaining that in determining questions based on the alter ego theory,

courts should take “a flexible fact-specific approach”).      Thus, we overrule

appellants’ first issue.

Issues two through four, concerning jury question numbers two and three

      Appellants’ second through fourth issues concern question numbers two

and three of the jury charge, which combined to give the jury an alternate way

of holding Hyde-Way responsible for Hyde’s assault if the jury answered “no”

to question number one of the charge. Because we have held that Hyde-Way’s

liability is sufficiently supported by the evidence related to question number one

of the charge, which directly asked if Hyde-Way should be responsible for

Hyde’s conduct, we will not address whether its liability is supported by the

alternate theories outlined in question numbers two and three of the charge.

See Tex. R. App. P. 47.1; Hawkins v. Walker, 233 S.W.3d 380, 395 n.47

(Tex. App.—Fort Worth 2007, pet. denied).        Thus, we overrule appellants’

second through fourth issues.




Hyde-Way’s property. However, neither Hyde-Way nor Hyde has raised factual
sufficiency as a ground for reversal.

                                       19
                       The Jury’s Findings on Damages

      In their fifth through seventh issues, appellants challenge various aspects

of the jury’s findings on damages that are contained in question numbers six

through eight of the jury charge. Question number six of the charge, which

corresponds to appellants’ fifth issue, asked the jury, “What sum of money, if

paid now in cash, would fairly and reasonably compensate [Davis] for his

injuries, if any, that resulted from the occurrence in question?” It then asked

them to give an amount for six different types of damages:

      C     past physical pain and mental anguish (the jury answered
            $30,000);

      C     future physical pain and mental anguish (the jury answered
            $0);

      C     past loss of earning capacity (the jury answered $3,100);

      C     future loss of earning capacity (the jury answered $5,406);

      C     past medical care expenses (the jury answered $6,764.90);
            and

      C     future medical care expenses (the jury answered $10,000).

      Appellants contend that there is no evidence to support the damages for

past physical pain and mental anguish, past loss of earning capacity, future loss

of earning capacity, and future medical expenses. They also assert that Davis’s

petition does not support damages for future loss of earning capacity or for



                                       20
future medical expenses and that Davis’s recovery for past medical expenses

in this case is barred by the doctrine of collateral estoppel and the one

satisfaction rule because Hyde compensated Davis for his medical expenses as

part of Hyde’s criminal case.     Appellants do not claim that the damages,

although supportable in part, are merely excessive or that they are not

supported by factually sufficient evidence.

Standard of review

      We apply the same no-evidence standard of review to legal sufficiency

challenges to the evidence supporting a jury’s damage awards as we do to a

legal sufficiency challenge on a jury’s liability findings. Gen. Motors Corp. v.

Burry, 203 S.W.3d 514, 549 (Tex. App.—Fort Worth 2006, pet. denied) (op.

on reh’g).

Issue five, concerning jury question number six (on the components of
economic and noneconomic damages)

      Past physical pain and mental anguish

      Appellants in one paragraph argue that Davis “literally offered no

testimony whatsoever as to the dollar value of the physical pain and mental

anguish he had sustained prior to trial” and that because Davis had existing root

canals before the assault, there were no exposed nerves when Hyde broke




                                       21
Davis’s teeth. Appellants do not assert that Davis did not have mental anguish

after the assault. As we have explained,

             The process of awarding damages for amorphous,
      discretionary injuries such as mental anguish or pain and suffering
      is inherently difficult because the alleged injury is a subjective,
      unliquidated, nonpecuniary loss. The presence or absence of pain,
      either physical or mental, is an inherently subjective question. No
      objective measures exist for analyzing pain and suffering damages.
      Once the existence of some pain and suffering has been
      established, however, there is no objective way to measure the
      adequacy of the amount awarded as compensation.

HCRA of Tex., Inc. v. Johnston, 178 S.W.3d 861, 871 (Tex. App.—Fort Worth

2005, no pet.) (citations omitted). Thus, because personal injury damages are

“unliquidated and incapable of measurement by any certain standard, the jury

has broad discretion in fixing the amount of the award.” Marvelli v. Alston,

100 S.W.3d 460, 482 (Tex. App.—Fort Worth 2003, pet. denied). Matters of

“past and future physical pain, mental anguish, and physical impairment are

particularly within the jury’s province. Therefore, as long as sufficient probative

evidence exists to support the jury’s verdict, neither the reviewing court nor the

trial court is entitled to substitute its judgment for that of the jury.” Id. (citation

omitted); see J. Wigglesworth Co. v. Peeples, 985 S.W.2d 659, 665–66 (Tex.

App.—Fort Worth 1999, pet. denied). A plaintiff is not required to testify about

a specific amount of damages in order to obtain a verdict for physical pain and




                                          22
mental anguish.21 See Baylor Med. Plaza Servs. Corp. v. Kidd, 834 S.W.2d 69,

78 (Tex. App.—Texarkana 1992, writ denied); see also Sw. Tex. Coors, Inc.

v. Morales, 948 S.W.2d 948, 952 (Tex. App.—San Antonio 1997, no writ)

(explaining that pain and suffering are “not subject to precise mathematical

calculations”).

      Although appellants are correct that there were no exposed nerves when

Hyde broke Davis’s teeth, the record contains significant testimony and

photographic evidence that substantiates Davis’s physical pain. For instance,

Davis received a black eye from Hyde’s punch to his face, and he testified that

he hurt “like hell” as soon as he was punched; he had broken blood vessels; the

hospital gave him a prescription for a “Vicodin-type pain reliever”; when at the

dentist and periodontist, he was “sore” and “uncomfortable”; and for a few

days after Hyde punched him, he could not chew food.

      Thus, we cannot agree with appellants’ implication that Davis did not

suffer from any pain. Because there is more than a scintilla of evidence to

support the jury’s award for Davis’s past pain and suffering, we overrule that




      21
         … Appellants do not cite any authority that would require Davis to have
testified to a specific dollar amount of pain and mental anguish damages. We
note that Davis did not specify any amount of damages in his petition, and
appellants did not file special exceptions to his petition.

                                      23
portion of appellants’ fifth issue. See Uniroyal Goodrich Tire Co., 977 S.W.2d

at 334.

      Past loss of earning capacity

      Next, appellants contend that there is no evidence to support the jury’s

award to Davis for his past loss of earning capacity and that Davis did not plead

any claim in his petition for that award. Davis asked for recovery for “lost

wages” in his petition. The jury’s verdict awarded $3,100 for “loss of earning

capacity,” but the trial court’s judgment awarded that same amount for “past

lost wages.”   Appellants acknowledge that Davis pleaded a claim for “lost

wages,” but they seem to argue (in one sentence and without citing any

authority) that “earning capacity” must be treated differently than “wages.” 22

      To preserve a complaint for appellate review, a party must have presented

to the trial court a timely request, objection, or motion that states the specific




      22
        … Some Texas courts have equated the loss of past earning capacity to
the loss of wages and have used these terms interchangeably. See McIver v.
Gloria, 140 Tex. 566, 569, 169 S.W.2d 710, 712 (1943) (signaling that the
loss of wages is a component of the loss of earning capacity); Bowler v. Metro.
Transit Auth. of Harris County, No. 01-06-00553-CV, 2007 WL 1299803, at
*3 (Tex. App.—Houston [1st Dist.] May 3, 2007, no pet.) (mem. op.) (equating
lost wages to lost earning capacity); City of San Antonio v. Vela, 762 S.W.2d
314, 320 (Tex. App.—San Antonio 1988, writ denied) (holding that testimony
regarding lost wages supported an award for lost earning capacity); see also
Tex. Civ. Prac. & Rem. Code Ann. § 41.001(10) (Vernon 2008) (including
“wages” as a component of “loss of earnings”).

                                       24
grounds for the desired ruling, if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a). If a party fails to do

this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803

S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). The objecting party must get a

ruling from the trial court. This ruling can be either express or implied. Frazier

v. Yu, 987 S.W.2d 607, 610 (Tex. App.—Fort Worth 1999, pet. denied).

      To the extent that appellants contend that the judgment is defective

because it awards money for lost wages while the jury’s verdict awards money

for loss of earning capacity, appellants have not preserved that contention

because they did not file any motion to amend or modify the judgment, did not

address that alleged error in their motion for new trial (which was filed before

the judgment was signed), and did not otherwise raise the issue in the trial

court. See Tex. R. App. P. 33.1(a); Luna v. S. Pac. Transp. Co., 724 S.W.2d

383, 384 (Tex. 1987) (holding that a challenge on appeal to the apportionment

of damages in a judgment was waived by failing to object to the judgment in

the trial court); Dal-Chrome Co. v. Brenntag Sw., Inc., 183 S.W.3d 133, 145

(Tex. App.—Dallas 2006, no pet.); see also Karenev v. Kareneva, No.

02-06-00269-CV, 2008 WL 755285, at *7 (Tex. App.—Fort Worth Mar. 20,

2008, no pet.) (mem. op.) (holding that the appellant waived any error about

the characterization of child support awards by failing to file a post-judgment

                                       25
motion such as a motion for new trial or a motion to amend or correct the

judgment). And to the extent that appellants argue that a question regarding

“loss of earning capacity” should not have been submitted to the jury because

Davis did not plead for such damages, they waived that argument by failing to

object to the jury charge on that ground at trial. See Tex. R. App. P. 33.1(a);

Tex. R. Civ. P. 274 (explaining that any complaint as to a jury charge question

based on “fault in pleading” is waived unless specifically objected to); Equistar

Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007); see also

McFarland v. Sanders, 932 S.W.2d 640, 647 (Tex. App.—Tyler 1996, no writ)

(holding that error regarding the failure of the jury charge to conform to the

pleadings was waived by the appellant’s failure to object).

      Finally, the record belies appellants’ complaint that Davis “introduced no

evidence whatsoever as to his lost wages in 2002.” Davis testified that his

dental treatment caused him to take ten days’ vacation from work, which cost

him “a little over $3,000.” The jury awarded him $3,100; Davis’s testimony

provides more than a scintilla of evidence to support this award.       Uniroyal

Goodrich Tire Co., 977 S.W.2d at 334. For all of these reasons, we overrule

the past-loss-of-earning-capacity portion of appellants’ fifth issue.




                                       26
      Future loss of earning capacity

      Appellants also assert that the jury charge’s question on future loss of

earning capacity is not supported by Davis’s petition. But again, appellants did

not raise an objection to the question on that basis at trial, so they waived any

related error.   See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 274; Equistar

Chems., L.P., 240 S.W.3d at 868.

      Appellants also argue that there is “absolutely no evidence whatsoever

that [Davis] would sustain any ‘loss of earning capacity’ in the future.”

However, loss of future earning capacity specifically includes the loss of future

wages or income. Tex. Civ. Prac. & Rem. Code Ann. § 41.001(10)(A). Proof

of future loss of earning capacity is uncertain and must be left largely to the

discretion of the jury. Strauss v. Cont’l Airlines, Inc., 67 S.W.3d 428, 435 n.1

(Tex. App.—Houston [14th Dist.] 2002, no pet.).

      Davis’s dentist testified that the treatment Davis received is usually not

a permanent fix and that future treatment involving extractions or implants will

likely be required by both a dentist and periodontist.     The jury could have

reasonably inferred that Davis will be forced to miss at least some more time

from work to attend and recover from additional medical procedures that are

necessary because of Hyde’s assault.         See City of Keller, 168 S.W.3d at

821–22; Lubbock County v. Strube, 953 S.W.2d 847, 856 (Tex. App.—Austin

                                        27
1997, pet. denied) (op. on reh’g) (holding that loss of earning capacity could be

inferred from the evidence); Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d

486, 493–94 (Tex. App.—Houston [14th Dist.] 1989, no writ) (holding that

missed work in the future for further treatment to an injury was compensable

as a loss of earning capacity); Mikell v. La Beth, 344 S.W.2d 702, 707 (Tex.

Civ. App.—Houston 1961, writ ref’d n.r.e.) (allowing recovery for time charged

against sick leave as damages for loss of earning capacity). Appellants have

not challenged the specific sum awarded for loss of future earning capacity by

contending that the jury unreasonably inferred that Davis will be absent from

work for more time that the procedures will actually require; their sole challenge

is that there is no evidence at all to support any of the sum awarded. Thus, we

also overrule the future earning capacity portion of appellants’ fifth issue.

      Past medical expenses

      Appellants next assert that the jury’s $6,764.90 award for past medical

expenses is barred by the one satisfaction rule and collateral estoppel because

Hyde compensated Davis for his medical expenses through restitution in Hyde’s

criminal case. The record indicates that as part of its judgment, the trial court

in Hyde’s criminal case ordered Hyde to pay Davis restitution in the amount of

$2,772.90. Hyde paid the full amount. Davis argues that appellants cannot




                                       28
prevail on this issue because they did not plead or prove the payment of

restitution as an affirmative defense.

      We agree with Davis that appellants’ claim of restitution as a credit

against the judgment is an affirmative defense that appellants were required to

plead in the trial court.   See Tex. R. Civ. P. 94, 95; Sage St. Assocs. v.

Northdale Constr. Co., 863 S.W.2d 438, 443–44 (Tex. 1993) (holding that

indirect payment to a plaintiff as a credit against recovery is an affirmative

defense under rule of civil procedure 95); F-Star Socorro, L.P. v. City of El Paso,

281 S.W.3d 103, 107 (Tex. App.—El Paso 2008, no pet.) (explaining that

payment and offset through payment are affirmative defenses); Columbia Med.

Ctr. of Las Colinas v. Bush, 122 S.W.3d 835, 862 (Tex. App.—Fort Worth

2003, pet. denied) (holding that offset to past medical expenses is an

affirmative defense).   Texas courts have specifically characterized the one

satisfaction rule and the collateral estoppel doctrine as affirmative defenses.

See RenewData Corp. v. eMag Solutions, LLC, No. 03-05-00509-CV, 2009 WL

1255583, at *1 n.1 (Tex. App.—Austin May 6, 2009, pet. filed) (mem. op.);

Domel v. City of Georgetown, 6 S.W.3d 349, 353 (Tex. App.—Austin 1999,

pet. denied). A defendant must plead an affirmative defense in its answer, or

it will waive the defense. See Bush, 122 S.W.3d at 862; Sugar Land Props.,

Inc. v. Becnel, 26 S.W.3d 113, 121 (Tex. App.—Houston [1st Dist.] 2000, no

                                         29
pet.) (holding that under rule 95, the defendant waived its affirmative defense

to reduce a verdict because of payment of medical expenses because it did not

plead payment in its answer).

      Appellants’ combined two-page answer at trial asserted only a general

denial; it did not assert any affirmative defenses. When appellants introduced

evidence regarding Hyde’s payment of restitution, the trial court granted Davis

a running objection on the basis that Hyde did not plead payment of the

restitution. Appellants did not seek any trial amendment to plead payment of

the restitution.   Under these circumstances, considering the authority cited

above, we hold that appellants waived their defenses related to that payment.

Thus, we overrule the challenge in their fifth issue to the jury’s award of past

medical expenses.

      Future medical expenses

      In the last part of their fifth issue, appellants challenge the jury’s $10,000

award for future medical expenses.        They argue that Davis did not plead

recovery for his future medical expenses and that there is no evidence “as to

the nature and extent of [Davis’s] future medical care expenses in reasonable

medical probability.” Appellants did not object at trial to submission of the

future medical expenses question on the basis that Davis did not plead for the

expenses, so they have waived any error associated with that contention. See

                                        30
Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 274; Equistar Chems., L.P., 240

S.W.3d at 868.

      To recover for future medical expenses under Texas law, the plaintiff

must show that there is a “reasonable probability” (not a “reasonable medical

probability”) that such expenses will be incurred.        Bush, 122 S.W.3d at

862–63; Furr’s, Inc. v. Logan, 893 S.W.2d 187, 194 (Tex. App.—El Paso

1995, no writ) (explaining that the jury may make its award “based upon the

nature of plaintiff’s injuries, medical care rendered before trial, and the

plaintiff’s condition at the time of trial”). An award of future medical expenses

lies largely within the jury’s discretion, and no precise evidence is required to

support such an award. Bush, 122 S.W.3d at 863; see also Ibrahim v. Young,

253 S.W.3d 790, 808–09 (Tex. App.—Eastland 2008, pet. denied) (“To

sustain an award of future medical expenses, the claimant must present

evidence to establish that, in all reasonable probability, future medical care will

be required and to establish the reasonable cost of that care.”). Also, because

future medical expenses “are, by their very nature, uncertain, appellate courts

are particularly reluctant to disturb a jury’s award of these damages.” Antonov

v. Walters, 168 S.W.3d 901, 908 (Tex. App.—Fort Worth 2005, pet. denied).

      Here, after appellants stipulated that Davis’s dentist was qualified to

testify, the dentist explained that the treatment that Davis had received was

                                        31
not usually a permanent fix. Instead, the dentist testified that the treatment

Davis had received can be effective anywhere from five to fifteen years

(depending on the age of the patient and the patient’s hygiene), and then the

teeth must be extracted so that an oral surgeon or dentist may place an implant

or fixed bridge.   The dentist explained that if the implants are done, the

procedure would cost “4,000 to 5,000 per tooth,” and he said that Davis

would require the procedure for two teeth. We hold that, under the standards

discussed above, this testimony comprised more than a scintilla of evidence to

support the jury’s $10,000 award for future medical expenses. See Uniroyal

Goodrich Tire Co., 977 S.W.2d at 334. Thus, we overrule the final portion of

appellants’ fifth issue.

Issues six and seven, concerning jury question numbers seven and eight (on
exemplary damages)

      In their sixth and seventh issues, appellants contest the jury’s $92,000

exemplary damage award. They contend in their sixth issue that the evidence

is legally insufficient to establish that Hyde acted with malice while assaulting

Davis, and they assert in their seventh issue that Davis did not present any

evidence about a sum of money that is appropriate for exemplary damages.




                                       32
      Malice

      Question number seven of the jury charge asked, “Do you find by clear

and convincing evidence that the injuries caused by [Hyde] resulted from malice

by Hyde?” See Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a)(2) (Vernon

2008).   The trial court instructed the jury of the definitions of “clear and

convincing” and “malice”:

            “Clear and convincing” means the measure or degree of proof
      that will produce in the mind of the trier of fact a firm belief or
      conviction as to the truth of the allegations sought to be
      established.

            “Malice” means:

            (A) a specific intent by [Hyde] to cause substantial injury to
      [Davis]; or

            (B) an act or omission by [Hyde]:

                  (1) which when viewed objectively from the standpoint
                  of [Hyde] at the time of its occurrence involves an
                  extreme degree of risk, concerning the probability and
                  magnitude of the potential harm to others; and

                  (2) of which [Hyde] has actual, subjective awareness
                  of the risk involved, but nevertheless proceeds with
                  conscious indifference to the rights, safety, or welfare
                  of others.




                                      33
See Tex. Civ. Prac. & Rem. Code Ann. § 41.001(2), (7).23 Appellants contend

in their legal sufficiency challenge that Hyde’s assault was a “childish temper

act where Hyde just exploded and nothing more.” 24

      In reviewing the evidence under a clear and convincing standard for legal

sufficiency, we must determine whether the evidence is such that a factfinder

could reasonably form a firm belief or conviction that its finding was true.

Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248–49,

(Tex. 2008). We must review all the evidence in the light most favorable to the

finding. Id. at 248.

      Exemplary damages are levied against a defendant to punish the

defendant for outrageous, malicious, or otherwise morally culpable conduct.

Transp. Ins. Co. v. Moriel, 879 S.W .2d 10, 16 (Tex. 1994) (op. on reh’g).

Thus, the fact that an act is wrong or unlawful is not of itself a ground for an

award of exemplary damages. Cont’l Coffee Prods. Co., 937 S.W.2d at 454.

In determining the reprehensibility of a defendant’s actions for the purpose of

judging an award of exemplary damages, we consider whether the harm caused


      23
        … The portion of the “malice” definition in subsection (B) of the charge
relates to the statutory standard used before the legislature amended section
41.001(7) in 2003, after this lawsuit was filed, to delete that subsection. See
BIC Pen Corp. v. Carter, 251 S.W.3d 500, 509 & n.6 (Tex. 2008).
      24
        … Appellants do not cite any legal authority in their discussion about the
jury’s malice finding.

                                       34
was physical as opposed to economic, whether the conduct indicates an

indifference to or a reckless disregard for the health or safety of others,

whether the target of the conduct had financial vulnerability, whether the

conduct involved repeated actions or was an isolated incident, and whether the

harm was the result of intentional conduct or was a mere accident. Shear Cuts,

Inc. v. Littlejohn, 141 S.W.3d 264, 272 (Tex. App.—Fort Worth 2004, no

pet.).

         The clear and convincing evidence of malice may be circumstantial. See

Nast v. State Farm Fire & Cas. Co., 82 S.W.3d 114, 125 (Tex. App.—San

Antonio 2002, no pet.). As the Texarkana Court of Appeals has explained,

      Malice requires that the defendant’s conduct involved an objective
      extreme risk of harm and that the defendant had a subjective
      “actual awareness” of an extreme risk created by the conduct.
      An objective extreme degree of risk is a risk “which is not a remote
      possibility of injury or even a probability of minor harm, but rather
      the likelihood of serious injury to the plaintiff.” A subjective “actual
      awareness” requires evidence that the defendant knew about the
      peril, but its acts or omissions demonstrated it did not care.
Kinder Morgan N. Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 447 (Tex.

App.—Texarkana 2006, no pet.) (citations omitted).               The harm to be

anticipated from the conduct must be extraordinary harm such as death,

grievous physical injury, or financial ruin. Id.

         Ill-will, evil motive, or spite between the plaintiff and the defendant may

be relevant as to whether the defendant acted with malice. See ONI, Inc. v.

                                          35
Swift, 990 S.W.2d 500, 503 (Tex. App.—Austin 1999, no pet.); Mo. Pac. R.

Co. v. Lemon, 861 S.W.2d 501, 517 (Tex. App.—Houston [14th Dist.] 1993,

writ dism’d) (op. on reh’g). The criminal nature of the defendant’s act may also

be considered. See C & D Robotics, Inc. v. Mann, 47 S.W.3d 194, 201 (Tex.

App.—Texarkana 2001, no pet.).

      “Substantial” injury is not defined by the exemplary damages statute.

See Tex. Civ. Prac. & Rem. Code Ann. § 41.001.            However, the Texas

Supreme Court (in a case not related to exemplary damages) recently noted that

the word “substantial” “has two basic components: real vs. merely perceived,

and significant vs. trivial.   These limitations leave a broad range of things

covered.” Barr v. City of Sinton, No. 06-0074, 2009 WL 1712798, at *9 (Tex.

June 19, 2009); see also In re C.M.C., 192 S.W.3d 866, 872 (Tex.

App.—Texarkana 2006, no pet.) (defining “substantial” as “of ample or

considerable amount, quantity, size, etc.”).

      The facts surrounding Hyde’s assault on Davis reveal his ill-will and spite

toward Davis. For instance, a week before the assault occurred, Hyde flagged

Davis down in front of Davis’s house to initiate a conversation in which, after

first exchanging some other words with Davis, Hyde said, “I’m sick of you. I’m

sick of that taxiway. I’m going to take everything you’ve got. I’m going to run

your ass off the airport. And when I’m done with you, your wife’s going to be

                                       36
giving blow jobs to n----- on Rosedale.”    And immediately after the assault

occurred, Hyde said, “The next time I see you, I’m going to kill you.”

Finally, appellants admit in their brief that Hyde and Davis had ill-will toward

each other; they state that the assault “is the culmination of approximately

three to four years when [Davis] and Hyde would not speak to one another.”

      Hyde’s act was obviously intentional and criminal in nature; he was

convicted for the assault.25 Appellants did not present any evidence at trial to

attempt to justify Hyde’s act; instead, the witnesses testified that Davis was

trying to retreat when Hyde punched him. Also, the evidence indicated that

Hyde’s violence was not isolated; he had threatened violence at the Airport on

other occasions. For example, in about 1991, while the owner of an aircraft

at the Airport was on a taxiway upon returning from an air show, Hyde

approached the aircraft in his truck and threatened the owner by leaving the

truck with a gun at his side. Hyde left after the aircraft’s owner called the

police.

      Finally, as described above through the evidence of Davis’s condition in

the hours following the assault (including his pain suffered because of his

knocked out teeth and blackened eye) and the medical treatment he required



      25
        … Hyde admits in his brief that he “intentionally, knowingly, struck
[Davis] and caused bodily injury to [Davis].”

                                      37
on the night of the assault and thereafter, Davis’s injury from the assault was

“substantial”; it was “real” and “significant.”

      We hold that under the standards given to the jury in its charge and

extrapolated by the authority cited above, there was at least legally sufficient

evidence to support the jury’s affirmative answer to the trial court’s malice

question because the evidence allowed the jury to form a firm belief that Hyde

specifically intended to cause substantial injury to Davis. See Tex. Civ. Prac.

& Rem. Code Ann. § 41.001(2), (7); Hogue, 271 S.W.3d at 248–49.

Thus, we overrule appellants’ sixth issue.

      Testimony about the amount of exemplary damages

      In their seventh issue, appellants briefly contend that the exemplary

damage award must be reversed because the jury heard “no evidence with

regard to any sum appropriate” for the damages.

      The decision on the amount of exemplary damages is entrusted to the

discretion of the jury. See Tex. Civ. Prac. & Rem. Code Ann. § 41.010(b)

(Vernon 2008); Harris v. Archer, 134 S.W.3d 411, 436 (Tex. App.—Amarillo

2004, pet. denied) (op. on reh’g). The amount is not susceptible to precise

calculation. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex.

2006).




                                       38
      Specific testimony regarding a proper amount of exemplary damages is

not among the six statutory factors that jurors must consider in awarding such

damages. See Tex. Civ. Prac. & Rem. Code Ann. § 41.011(a) (Vernon 2008).

Even among those six factors, the absence of evidence about one of the factors

does not render an exemplary damages award invalid. See Durban v. Guajardo,

79 S.W.3d 198, 210–11 (Tex. App.—Dallas 2002, no pet.) (holding that

evidence of the defendant’s net worth, although a statutory factor for the

recovery of exemplary damages, is not a necessary element for such recovery).

Finally, appellants have not cited any authority that requires a plaintiff to

present evidence regarding a specific amount of exemplary damages, and we

have not located any such authority.

      For these reasons, we hold that Davis was not required to present

evidence about a specific amount of exemplary damages, and we therefore

overrule appellants’ seventh issue.

           The Trial Court’s Ruling on Appellants’ Post-Trial Motion

      In their eighth and final issue, appellants argue that the trial court erred

by failing to grant their post-trial motion for judgment notwithstanding the

verdict. But that motion raised essentially the same issues that appellants have

raised in this appeal, and in the briefing on their eighth issue, appellants merely

reiterate the arguments that they previously made on the issues resolved above.

                                        39
Thus, for the reasons that we overruled appellants’ previous seven issues, we

also overrule their eighth issue.26

                                      Conclusion

      Having overruled all of appellants’ issues, we affirm the trial court’s

judgment.




                                              TERRIE LIVINGSTON
                                              JUSTICE

PANEL: LIVINGSTON, WALKER, and MEIER, JJ.

DELIVERED: August 13, 2009




      26
        … We note that parties must appeal from judgments, not from orders
overruling their post-trial challenges to those judgments. See Puckett v. Frizzell,
402 S.W.2d 148, 151 (Tex. 1966).

                                         40
