author: RICHARD BARAJAS, Chief Justice.

text:
    Juan Manuel TELLEZ, Appellant, v. CITY OF SOCORRO, Appellee.
    No. 08-03-00294-CV.
    Court of Appeals of Texas, El Paso.
    May 19, 2005.
    Rehearing Overruled June 22, 2005.

      Justo Fernandez-Gonzalez, El Paso, for Appellant.
    Richard Contreras, El Paso, for Appel-lee.
    Before Panel No. 5 BARAJAS, C.J., McCLURE, and ABLES , JJ.

       ABLES, J., sitting by assignment.

   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s affirmance of the finding of the Zoning Board of Adjustment of the City of Socorro, Texas, (“ZBA”) denying Appellant’s request to declare property owned by Appellant as legal non-conforming. After receiving a Notice of Violation from the City of Socorro, Texas (“Socorro”), Appellant completed the. administrative appellate process which culminated with a hearing before the ZBA which denied Appellant’s request that his property be declared legal non-conforming for zoning purposes. Appellant filed a Petition for Writ of Cer-tiorari and Declaratory Relief seeking review of the ZBA’s decision. After a non-jury proceeding, the trial court affirmed the ZBA’s decision. Findings of Fact and Conclusions of Law were filed by the trial court. Appellant filed a Notice of Appeal.

We note that Appellant filed his Petition for Writ of Certiorari and Declaratory Relief on July 3, 2002 in response to a hearing held June 27, 2002 by the ZBA. He contends that at that hearing, the ZBA denied his request that it issue a finding that his property be declared legal nonconforming. Significantly, we note that Appellant sued only the City of Socorro as a defendant in this case. By way of response, the City of Socorro filed a general denial.

I. SUBJECT MATTER JURISDICTION

Judicial review of a Zoning Board of Adjustment’s decision is governed by the provisions of Local Government Code Section 211.011. The legislature has expressly provided a means for challenging an action taken by a city’s zoning board of adjustment. See Tex. Loc. Gov’t Code Ann. § 211.011 (Vernon Supp. 2004-05). This statute provides that a person aggrieved by a zoning board’s action may, within ten days after the board’s decision is filed, petition a court of record for a writ of certiorari. The only issue for determination in a writ of certiorari proceeding is the legality of the board’s order. See, e.g., Board of Adjustment of City of Corpus Christi v. Flores, 860 S.W.2d 622, 625 (Tex.App.-Corpus Christi 1993, writ denied). The board’s order carries the presumption of legality, and a party attacking it bears the burden of establishing its illegality. The appropriate standard of review is whether the board of adjustment has abused its discretion, i.e., whether it has acted without reference to guiding rules and principles or whether it has acted arbitrarily and unreasonably. Id. at 626, citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). The decision of a board of adjustment is reversible only if the facts are such that the board could have reached but one decision. Flores, 860 S.W.2d at 626, citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). West Texas Water Refiners, Inc. v. S & B Beverage Co., Inc., 915 S.W.2d 623, 626 (Tex.App.-El Paso 1996, no writ).

We note that the procedure provided for under the Local Government Code is highly technical and very specific as to the procedure which should be followed by the trial court. We also recognize that the purpose of the procedure is review of the decision of the City’s Zoning Board of Adjustment. It is elementary that the Zoning Board of Adjustment must be a party to the proceedings. Because Appellant sued only the City of Socorro as “defendant” below, we raise, sua sponte, the threshold issue of whether Appellant sufficiently invoked subject matter jurisdiction by not naming the ZBA as a party to the proceedings.

Once a party files a petition within ten days of a zoning board decision, the court has subject matter jurisdiction to determine a claim that a board of adjustment acted illegally. Davis v. Zoning Bd. of Adjustment, 865 S.W.2d 941, 942 (Tex.1993) (referring to Tex. Loc. Gov’t Code Ann. § 211.011). Review of a board of adjustment’s decision is governed by Local Government Code Section 211.011, which provides:

(a) Any of the following persons may present to a district court, county court, or county court at law a verified petition stating that the decision of the board of adjustment is illegal in whole or in part and specifying the grounds of the illegality:
(1) a person aggrieved by a decision of the board;
(2) a taxpayer; or
(3) an officer, department, board, or bureau of the municipality.
(b) The petition must be presented within 10 days after the date the decision is filed in the board’s office.

Tex. Loc. Gov’t Code Ann. § 211.011(a)(b) (Vernon Supp.2004-05).

Appellant filed a petition appealing the legality of the ZBA’s decision within the required ten days, but we note that Appellant sued only the City of Socorro. Further, Appellant did not describe the illegality of any decision made by the ZBA. Neither the ordinance nor the statute explicitly requires the board be named as a defendant; both are silent as to whom must be or can be sued. We have found only two cases that discuss the issue of whether the Zoning Board of Adjustment must be named as a necessary party to the lawsuit. Reynolds v. Haws, a case filed under the predecessor to the current Local Government Code, held that the board itself must be named as a defendant. Reynolds v. Haws, 741 S.W.2d 582 (Tex.App.Fort Worth 1987, writ denied). The court in Reynolds affirmed a dismissal where the petition naming the board of adjustment as a party was not timely filed, holding that the predecessor statute to Texas Local Government Code Section 211.011 intended that the board of adjustment be named. Reynolds, 741 S.W.2d at 588. The court explained:

The entire focus of the trial court is upon the action of the Board. It would be unfair for the court to determine its course of action about the Board or its decision, if the Board was not a party-defendant to the action before the court, with the opportunity to participate in the trial. Id.

Pearce v. City of Round Rock, 992 S.W.2d 668, 670-71 (Tex.App.-Austin 1999, pet. denied) also discusses the issue of necessary parties to the action but is distinguishable from our case on the facts. In Pearce, the appellants sued the City of Round Rock in addition to naming the members of the City’s Development Review Board in their official capacities, and the City planning director. At issue was the granting of the defendant’s Plea to the Jurisdiction granted by the trial court for the reason that the City’s Development Review Board had not been named as a party. Recognizing that Pearce had in fact sued all the members of the board in their official capacities, the appellate court held that subject matter jurisdiction had been properly invoked. That is not the case before us.

The Pearce court recognized that critical to its determination that jurisdiction of the court was invoked, was that the plaintiff had sued all the members of the entity by name in their official capacity. The court recognized that a board of adjustment cannot act except through its members acting in their official capacities and has no power independent of its members and can only act through those members’ votes and actions. We agree with the Pearce court that while naming as defendants one or some of the representatives of an entity-may not be equivalent to naming the entity itself, naming all of the members of an entity, in their official capacities, is sufficient to invoke subject matter jurisdiction. In this case, Appellant sued only the City of Socorro and did not sue the ZBA as an entity and did not include any of the members of the ZBA by name. The failure to do so deprives the trial court of jurisdiction to consider the matter, and therefore, we are without jurisdiction as well.

This Court is obligated to determine, sua sponte, its jurisdiction to hear an appeal. Guest v. Dixon, 153 S.W.3d 466, 467 (Tex.App.-Amarillo 2004, pet. filed); Welch v. McDougal, 876 S.W.2d 218, 220 (TexApp.-Amarillo 1994, writ denied).

Subject matter jurisdiction is fundamental error and may be raised for the first time on appeal. Grounds v. Tolar Indep. Sch. Dist., 707 S.W.2d 889, 893 (Tex.1986); see Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 445 (Tex.1993); Dallas County Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex.App.-Dallas 1994, writ denied). We must inquire into our own jurisdiction, even if it is necessary to do so sua sponte. Dallas County Appraisal Dist., 887 S.W.2d at 468; White v. Schiwetz, 793 S.W.2d 278, 281 (Tex.App.-Corpus Christi 1990, no writ). Appellate court jurisdiction of the merits of a case extends no further than that of the court from which the appeal is taken. Pearson v. State, 159 Tex. 66, 315 S.W.2d 935, 938 (1958); Dallas County Appraisal Dist, 887 S.W.2d at 468.

If the trial court lacked jurisdiction, then an appellate court only has jurisdiction to set the judgment aside and dismiss the cause. Dallas County Appraisal Dist., 887 S.W.2d at 468; see State ex rel. Kelly v. Baker, 580 S.W.2d 611, 612-13 (Tex.Civ.App.-Amarillo 1979, no writ); see also Fulton v. Finch, 162 Tex. 351, 356, 346 S.W.2d 823, 827 (1961). Thus, on our own motion, we address the issue of jurisdiction. Our standard for reviewing subject matter jurisdiction requires the pleader to allege facts that affirmatively demonstrate the trial court’s jurisdiction to hear the cause. Dallas County Appraisal Dist., 887 S.W.2d at 469; Texas Ass’n of Business, 852 S.W.2d at 446. When reviewing subject matter jurisdiction sua sponte, we must construe the petition in favor of the pleader, and if necessary, review the entire record to determine if any evidence supports jurisdiction. Dallas County Appraisal Dist., 887 S.W.2d at 469.

II. PROCEEDINGS BELOW

Turning to the record before us, we note that while Appellant attempted to pursue an appeal from the decision of the ZBA pursuant to the provisions of the Local Government Code, via the filing of a Petition for Writ of Certiorari, there the process became deficient. After filing suit naming and serving the City of Socorro with the Petition, the City responded only with a general denial by way of answer. The actual Writ of Certiorari was not issued by the trial court, and. not served upon the Board. Further, no return of the Writ was accomplished.

The parties then engaged in paper discovery and proceeded to participate in a non-jury trial, during which, the trial court heard evidence on the issue of whether the ZBA should have found Appellant’s property to be legal non-conforming. Though neither party clarified the appropriate pro-eedure to be followed, the proceedings in no way complied with the requirements of Local Government Code Section 211.011. The trial court heard evidence from several witnesses and ultimately affirmed the ruling of the ZBA. We hold that the trial court did not have jurisdiction to decide whether the actions of the ZBA should be affirmed because its jurisdiction had not been properly invoked. While we recognize that the trial court applied the appropriate standard of review in reaching its determination on the merits and while the Local Government Code provides that the trial court may conduct an evidentiary hearing or take evidence, the process to be followed is governed by the statute.

We also note, upon review of the Petition for Writ of Certiorari filed by Appellant, that the Petition is deficient on its face in that it wholly fails to state that the decision of the Board of Adjustment was illegal, in whole or in part, and it did not specify the illegality of any decision. The minimal pleading requirements established by Section 211.011 are mandatory and were not met by Appellant. Further, the fact that the board must be a party in order to allow for judicial review of its order requires dismissal of this case for want of jurisdiction.

We recognize that the Local Government Code is unique in providing for review of the administrative determination of a quasi-judicial body such as a zoning board of adjustment by a trial court. In light of its specific conditions, we recognize that the legislature has limited the review available. Judicial review of the Board’s decisions is governed by Section 211.011 of the Texas Local Government Code and the procedure to be followed and the scope of review is delineated therein. See Tex. Loc. Gov’t Code Ann. § 211.011 (Vernon Supp.2004-05). Review under Section 211.011 “differs from the majority of Texas statutes prescribing the procedure for the review of orders of administrative bodies [boards].” Board of Adjustment v. Stovall, 147 Tex. 366, 216 S.W.2d 171, 172 (1949); Pearce v. City of Round Rock, 78 S.W.3d 642, 646 (Tex.App.-Austin 2002, pet. denied).

The review of a board’s decision is accomplished by request for the issuance of a Writ of Certiorari. Tex. Loc. Gov’t Code Ann. § 211.011(a)-(c) (Vernon Supp.2004-05). Certiorari is a procedural mechanism by which a reviewing court can “demand of an inferior court or body that it send up the record of the proceedings in the matter under review in order that the legality thereof might be tested to determine whether the lower court or body had acted within its proper jurisdiction.” City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67, 69 (1945); Pearce, 78 S.W.3d at 646 n. 6. The only question before the trial court is the legality of the board’s order. Boehme Bakery, 190 S.W.2d at 70; Pearce, 78 S.W.3d at 646. Because the legality of the board’s order is a question of law, in reviewing its order, the trial court should not ask whether there is substantial evidence to support the board’s decision; rather, it asks whether, in making its determination, the board abused its discretion. See Nur-Way Emulsions, Inc. v. City of Dalworthington Gardens, 617 S.W.2d 188, 189 (Tex.1981); Boehme Bakery, 190 S.W.2d at 70; Pearce, 78 S.W.3d at 646. To find an abuse of discretion, a reviewing court must conclude that the board acted without reference to any guiding rules or principles of law. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985); Pearce, 78 S.W.3d at 646. The board’s decision is presumed to be legal, and a party attacking it bears the burden of establishing that the board clearly abused its discretion. Pearce, 78 S.W.3d at 646; see Pick-N-Pull Auto Dismantles v. Zoning Bd. of Adjustment, 45 S.W.3d 337, 340 (Tex.App.-Fort Worth 2001, pet. denied).

In determining whether the board abused its discretion, the reviewing court may not put itself in the position of the board and substitute its wisdom, judgment, and discretion for that of the board. Boehme Bakery, 190 S.W.2d at 70; Pearce, 78 S.W.3d at 646. Although this is an appellate review of an agency’s action, we do not employ the substantial evidence standard of review in reviewing decisions by the Board of Adjustment. Pearce, 78 S.W.3d at 646; Texans to Save the Capitol v. Board of Adjustment, 647 S.W.2d 773, 777 (Tex.App.-Austin 1983, writ ref'd n.r.e.). Instead, we ask only whether the board correctly analyzed and applied the ordinance in question. Pearce, 78 S.W.3d at 646. Because a board of adjustment has no discretion to determine the law, a failure to correctly analyze or apply the law constitutes an abuse of discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992); Boehme Bakery, 190 S.W.2d at 70; Pearce, 78 S.W.3d at 646. Thus, appellate review of this quasi-administrative appeal is limited to whether the trial court abused its discretion in its limited review of the legality of the board’s decision. See Pearce, 78 S.W.3d at 646-47.

Because in this case we have found that there is no subject matter jurisdiction with the trial court, we sua sponte dismiss this appeal for lack of subject matter jurisdiction, and further hold that the trial court lacked jurisdiction to issue a decision in the case below. Where the trial court does not have jurisdiction to render a judgment, the proper practice is for the reviewing court to set the judgment aside and dismiss the cause. Dallas County Appraisal Dist., 887 S.W.2d at 470. Accordingly, we set aside the trial court’s judgment and dismiss the cause and do not reach Appellant’s issue on appeal.

      . We note that the City Attorney for the City of Socorro attempted to assert an objection to the proceedings during opening statement of the non-jury trial. He complained that the court had not issued a writ to the City while conceding that he had not noticed the failure earlier because he was a new city attorney. The Court "overruled” the "writ objection.” The trial court continued to conduct a non-juiy trial on the merits.


source: Caselaw Access Project

author: Justice ROSS.

license: Public Domain

text:
    In the Interest of D.R. and H.R., Children.
    No. 06-04-00113-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted March 23, 2005.
    Decided May 26, 2005.

      Joe Shumate, Law Office of Joe Shu-mate, Henderson, for Holli Renfro.
    Chad Dean, Law Office of Chad W. Dean, Henderson, for Keith Renfro.
    Duke E. Hooten, Department of Family & Protective Services, Austin, for appellee.
    Carl H. Barber, for Children D.R. and H.R.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Keith Renfro and Holli Renfro appeal from the termination of their parental rights to D. R., a female child, eight years of age at the time of trial, and H. R., a male child, six years of age at the time of trial. In its judgment, the trial court made identical findings to justify termination for each parent as being in the children’s best interests, finding that the parent:

knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children; and
... engaged in conduct which endangered the physical or emotional well-being of the children.

Keith and Holli contend in separate briefs that the evidence is legally insufficient to support the termination of their parental rights because it does not support a conclusion that it was in the best interest of either child to have his or her relationship with their parents severed, or to support either of the two stated bases for the termination.

The Texas Supreme Court has set out the following review for us to apply in the context of termination with the application of a clear and convincing evidence standard.

In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the fact-finder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.

In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002).

If, after we conduct the legal sufficiency review, we determine no reasonable fact-finder could form a firm belief or conviction the matter that must be proven is true, then we must conclude that the evidence is legally insufficient. Id.

Keith and Holli had been married since 1997, and had a continuing stormy and often violent relationship. There was evidence Holli was a nude dancer, but little evidence about Keith’s employment. Keith testified that Child Protective Services (CPS) became involved with his family in 1997 because of fighting between himself and Holli. The evidence showed that Holli obtained a protective order against Keith and had twice moved into a shelter. The Department of Family and Protective Services (the “Department,” and successor to CPS) presented evidence it had been attempting to assist Keith and Holli with parenting skills since 2001, and that Keith and Holli used the children as pawns in their fights with each other. The children had been removed from the home once, then returned in early 2002 on the recommendation of a clinical psychologist, Robert Jerald Shore, Ph. D., who was providing counseling. The children were removed again in June 2003. The evidence showed that, at that point, both Keith and Holli were using crack cocaine and marihuana. By September 2003, Holli had been arrested on three charges of delivery of methamphetamine.

Shore’s tests of Holli showed that she’s a “dangerous person with whom to have a relationship.” He also testified both parties allowed the children to be in the presence of a known and registered sex offender, Dale Clark (an uncle of the children), and that D.R. exhibited inappropriate sexual behavior and acting out.

Leola Davis, a child protective services specialist, testified that, in May 2003, the family was living with a registered sex offender (Clark) and was using drugs. She testified H.R. had described sexual abuse by Clark. At that point, Keith and Holli voluntarily placed the children with Kendrick Anderson (Keith’s brother) and his wife, Melissa. Melissa told Davis that, while the children were with them, for a period of about a month, Keith and Holli visited them briefly perhaps two or three times.

D.R. testified by videotaped interview she liked living in the Anderson home, but did not like living at her mother’s house. She stated that her parents were supposed to pick her up at school, but that she often had to walk home when they failed to appear, and that she had to prepare her own food because they did not do so. She stated that her brother, H. R., had told her Clark had touched him in a bad place and that she had seen another individual called “Graveyard,” later identified as Albert James Ervin, sexually abuse H.R. She further testified “Graveyard” had also had sex with her vaginally, orally, and anally, and that Holli sat on the floor and watched. D.R. stated she had seen them all “smoke dope” and described the use of crack cocaine in a pipe.

H.R. stated by videotaped testimony he liked living at his mother’s house. He further stated he had seen his mother having sex with Clark. He also stated Clark had touched him with his “titties” and penis.

In addition to the testimony described above, Keith testified H.R. had been cut with a knife by Holli while Keith and Holli were fighting. Keith also admitted allowing his children to live in the house with Clark, knowing he was a registered sex offender. Keith further admitted he allowed Ervin, who is now in prison, to be at Keith’s house, where Ervin had access to the children. Keith blamed Holli for the family’s relationship with those individuals. Keith also admitted he regularly used crack cocaine. He spent thirty days in one drug treatment center, but then did not continue the treatment, as was recommended. The evidence shows that Keith had been arrested a number of times: for matters involved with automobile operation, for forgery, and for domestic violence. At the time of this trial, he was brought before the court from the county jail.

Holli was also in jail at the time of this trial. She testified she had been jailed because of drugs, and she invoked her Fifth Amendment privilege against self-incrimination. She had been arrested a number of times over the years and declined to answer a question about how many times she had been arrested. She admitted physical altercations with Keith, but denied he physically abused her; she said any bruises she suffered were the result of his trying to hold her down and calm her. She denied receiving services from CPS when the children were initially removed (except for very brief visits). The Department introduced records of nineteen separate visits to the home, with extensive explanations of its efforts to assist her. Holli testified that she worked as a stripper, but denied that D.R. knew what she did. She admitted using drugs, but also testified she had lied about using drugs when she was placed in a drug rehabilitation program. She denied failing to go to additional therapy recommended by the program counselors.

Holli also admitted she knew Clark was a registered sex offender, but further testified she knew he did not do the acts resulting in his status as a sex offender. She denied having sex with Clark. Holli acknowledged D.R.’s sexual behavior and stated that her problems were the result of having the same genetic problems as herself. She also testified D.R. lies all the time. Holli denied that the children ever went without food and denied that she and Keith had a chaotic lifestyle. In her view, the children had a stable life before CPS “started butting in my business.”

Kelly Smith, a counselor who provided therapy for D.R. and H.R., testified the children’s play reflected themes of killing, death, and violence, which was consistent with exposure to domestic violence. Smith further testified that D.R. had told her about a great deal of domestic violence, that D.R. had watched sexually explicit material on television with her parents and that D.R. wanted to be a stripper like her mother. Contrary to Holli’s testimony that she did not know Smith, Smith testified she and Holli had talked together about a half dozen times. Smith further stated H.R. was behaving in a violent and aggressive fashion at school and on the school bus.

Gail Gulley, the children’s guardian, testified she had been unable to contact Holli and Keith outside the courtroom because they had moved without providing any information.

All of the Department’s witnesses testified they believed it would be in the best interests of the children to terminate parental rights.

Some of the evidence before the court was in conflict. The question before this Court is whether the evidence, examined in the light most favorable to the finding, is such as to be legally sufficient to support the verdict. The credibility of the witnesses and their testimony is a matter for the fact-finder, and the evidence contrary to the verdict in this case is not such as to be inherently incredible. As set out above, there is evidence the children were knowingly placed in a home with a sex offender and evidence of extensive family violence over a period of years. There is evidence the children were exposed by both parents to sexual activities and pornography far beyond anything appropriate to their age and evidence of sexually charged behavior by both children reflecting the exposure. There is evidence that both parents regularly used drugs and that they did so in the presence of the children. There is evidence of the mental and emotional instability of Holli and of her predilection to behave violently. There is evidence about extensive arrest records for both parents, as was most clearly shown by the fact that both parents were in jail at the time of this trial.

The Texas Supreme Court has set out nine nonexclusive factors that a court may consider in determining whether termination is in a child’s best interest. They include the child’s desires, the child’s emotional and physical needs now and in the future, the emotional and physical danger to the child now and in the future, the parenting abilities of the parties seeking custody, the programs available to assist those persons, the plans for the child by the parties seeking custody, the stability of the home or proposed placement, the acts or omissions committed by the parent that may indicate that the existing parent-child relationship is not proper, and any excuse for the acts or omissions committed by the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976); In re A.B., 125 S.W.3d 769 (Tex.App.-Texarkana 2003, pet. denied).

D.R. stated she wanted to live elsewhere; H.R. stated otherwise. It is clear from the history of the family unit that neither child’s emotional or physical needs were being met, and it is equally clear that both children were being severely emotionally damaged by the behavior of their parents, both in their relationship and the parents’ apparent indifference to the actions toward their children of the adults with whom they kept company. The programs available had been used with little long-term effect. Because of the incarceration of both parents and the possibility of continued imprisonment, long-term plans would not be possible within the family, and no real alternatives were suggested. The evidence shows serious instability, both physically and emotionally, in the home in the past, and a high probability of such instability in the home in the future. The evidence is legally sufficient to allow a reasonable fact-finder to have formed a firm belief or conviction that its finding was true.

We affirm the judgment.


text:
    Ron GABRIEL and Lana Gabriel, Appellants, v. Clyde LOVEWELL, Appellee.
    No. 06-04-00076-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted March 17, 2005.
    Decided May 26, 2005.

      Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, for appellants.
    Kevin P. Riley, Bankston Riley, LLP, Houston, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Ron Gabriel and wife, Lana, horse farm owners, appeal from a judgment on a jury verdict in favor of Clyde Lovewell, horse owner, based on Lovewell’s allegations of negligence and breach of implied warranty in connection with the death of a filly in the Gabriels’ care. The jury awarded damages of $10,075.00 plus prejudgment interest of $4,372.27, court costs of $4,446.22, and attorney’s fees of $40,000.00, totaling $58,893.49 plus postjudgment interest. Although Lovewell also alleged conversion and use of false, misleading, or deceptive trade practices, the jury limited his recovery to the allegations of negligence and breach of implied warranty. On appeal, the Gabriels contend that, because Lovewell failed to present expert testimony, there is legally and factually insufficient evidence to establish the causation element of each cause of action. We conclude the evidence is legally and factually sufficient and affirm the trial court’s judgment.

I. FACTUAL AND PROCEDURAL HISTORY

A. Summary and Background

In 1998, pursuant to contract, Lovewell bred his mare, Shappas Delight, with the Gabriels’ stallion, Clu Hem. The mare gave birth in February 1999 to a filly, whose death is the subject of this appeal.

In March 1999, Lovewell took Shappas Delight to the Gabriel Quarter Horse Farm so she could be bred to Clu Hem again. The filly went with its mother. While there, the filly would be weaned from her mother, and offers would be fielded for the filly’s sale. Although apparently healthy when she arrived at the Gabriels’ farm, she became ill very shortly after she was weaned, displaying symptoms of pneumonia and experiencing an elevated temperature and diarrhea.

On Saturday, July 24, 1999, Ron called William Gilbert, a veterinarian and partner at the Winnsboro Veterinary Clinic, to come to the farm to look at the sick filly. Gilbert went to the farm and ordered medication and fluids be administered to the filly. The parties dispute what instructions Gilbert left with the Gabriels that day. On Monday, July 26, 1999, the filly’s condition worsened and Lana called David Howton, also of the Winnsboro Veterinary Clinic and the primary veterinarian who had been caring for the Gabriels’ horses for ten to twelve years. Howton advised Lana to bring the filly to the clinic, which Lana did at approximately 5:30 p.m. Lana testified this trip to the clinic from their horse farm takes approximately one hour and fifteen minutes. Although the filly was able to walk onto the trailer — with assistance — when she left the Gabriels’ farm, she was unable to stand or walk by the time she arrived at the clinic and was in very poor condition. She died at approximately 8:30 p.m. Renal failure caused by endotoxemia, stemming from colitis, was diagnosed as the cause of the filly’s death.

B. July 19-23 Treatment by the Ga-briels

When the filly began suffering from respiratory problems and diarrhea, and before Gilbert’s visit to the horse farm, the Gabriels administered the following medications to the horse: Rebound, Naxcell, Erythromycin, and Banamine.

1. Rebound

Rebound, according to Ron’s testimony, is a generic form of Probios, apparently an over-the-counter treatment for diarrhea. Neither Gilbert nor Howton were familiar with Rebound. Ron conceded he did not contact a veterinarian regarding this treatment, likening it to a human taking Pepto-Bismol.

2. Naxcell

Naxcell is an antibiotic with which the Gabriels were treating the filly before Gilbert’s visit on Saturday. Neither veterinarian ordered the use of Naxcell. Gilbert did order the Gabriels to continue giving the filly Naxcell, in addition to other medication and fluids. The evidence does not indicate that Naxcell could have caused or contributed to the horse’s symptoms.

3. Erythromycin

Erythromycin is another antibiotic often used by the Gabriels when a horse develops a respiratory infection. Howton testified this drug is “very prone to cause diarrhea.” Gilbert also confirmed this common side effect.

Ron testified he does not give antibiotics to a horse without a doctor’s order to do so. Specifically, he testified he does not give Naxcell or Erythromycin without a veterinarian’s orders. Ron explained that, on this occasion, he must have noted the filly’s elevated temperature and called the clinic and was told to “[p]ut it on Erythro.” Howton testified that clients do not usually need to call about treating respiratory problems with Erythromycin.

Although Ron testified that one of the veterinarians must have prescribed Eryth-romycin for the sick filly, both doctors deny having ordered it. Additionally, all parties deny there was a standing order for the Gabriels to use Erythromycin when a horse experienced respiratory problems. Howton testified, however, that Erythro-mycin is the “standard protocol” on the Gabriel farm to treat a foal with respiratory problems.

Gilbert testified Erythromycin would probably have been appropriate to give to this filly. He also testified that it was good that the filly was taken off Erythro-mycin and that the Gabriels were directed to discontinue its use. Howton agreed that use of Erythromycin was indicated under these circumstances, at least until the filly suffered from diarrhea.

4.Banamine

Banamine is an anti-inflammatory medication given to treat an elevated temperature. Both Gilbert and Howton testified that use of Banamine would have been appropriate here, where the horse was in decent shape overall, but its temperature spiked. Gilbert’s records, however, indicate he did not prescribe Banamine for this filly. Howton testified it is “possible” he (Howton) ordered it. He admitted that Banamine can cause colitis, but further testified, “It’s also the treatment of choice.” He stated that an evaluation of the benefits and side effects of Banamine is a balancing act that a veterinarian must consider before administering it. Veterinarian consultation before use, however, is vital, especially when a horse is dehydrated. This special concern is due to the fact that Banamine is excreted through the kidneys and can, therefore, lead to renal problems. Uremia is one of those complications and is one which this filly suffered.

C. Gilbert’s July 24 Visit and His Instructions to the Gabriels

Gilbert testified the filly was in “pretty good shape” during his visit on Saturday. He directed the Gabriels to discontinue use of Erythromycin. He ordered them to continue giving Naxeell, and he added Gentamycin, another antibiotic, to the horse’s treatment. He also ordered that the horse be given fluids. Finally, he maintains he instructed the Gabriels to contact the clinic if the horse’s condition did not improve.

Both doctors testified it is preferable in many cases to treat a foal at its location as long as the facilities and help are adequate. They added it is stressful for a foal to be transported during the extreme East Texas summer heat. Gilbert testified he instructed the Gabriels to call the clinic if the horse did not improve as far as eating, drinking, responding to medication, and temperature decreasing.

D. July 25 and 26 Before the Filly’s Transport to the Clinic

Ron testified they followed Gilbert’s instructions regarding the horse’s treatment. Gilbert testified he did not give the Ga-briels a choice as to whether the horse should receive the medication ordered. According to the Gabriels’ note cards, however, there is no indication they gave the horse any medication on Sunday, July 25.

E. Transport to Clinic on July 26

Lana called the clinic when the filly’s condition worsened and her breathing became labored and rapid. Howton directed her to bring the horse to the clinic because it sounded as though the filly was in serious condition. He testified that he is able to run laboratory tests at his clinic more efficiently and that he relies on laboratory results to give thorough care in these instances. He further testified that, when the filly arrived at the clinic late that Monday, she was already “trying to die” and, although he administered several fluids and medications, he was unable to save her.

F. Medical Cause of Death

Despite Howton’s efforts, the filly died two to three hours after arriving at the clinic. According to Howton, the horse died from renal failure brought about by complications from endotoxemia resulting from Colitis X. Colitis X is the term used for the rapid onset of colitis, an inflammation of the large intestine.

Howton testified to the many causes of Colitis X. He said that, “[ajccording to the so-called experts,” the cause of colitis can only be determined approximately twenty percent of the time. Antibiotic and anti-inflammatory medication are two of the many causes of Colitis X. Both doctors testified that no act or omission of the Gabriels caused the death of the horse.

G. Events Following the Death of the Filly

The morning following the filly’s death, her body was picked up by a stock removal company, processed, and ground into greyhound food. Lovewell was not notified of this arrangement and did not consent to disposal in such a manner.

H. Lovewell’s Allegations

Lovewell brought suit against the Ga-briels, alleging sixteen specific theories of negligence. He alleged the Gabriels were negligent by the following acts or omissions: 1) failing to have a trailer to transport the sick horse; 2) failing to provide proper supervision and care for the horse; 3) failing to provide care that was represented to be given but, in fact, was not; 4) providing medication to the horse without authorization; 5) administering improper medication to the horse; 6) failing to adequately hydrate the horse; 7) administering medication to the horse without knowledge of its side effects; 8) failing to have proper equipment to care for the horse; 9) fading to properly supervise employees that cared for the horse; 10) allowing the horse to become dehydrated; 11) allowing the horse to become dehydrated and administering medication that had not been prescribed by the Gabriels’ veterinarians; 12) failing to take the horse to a place where proper care could have been given, even though requested to do so by the Gabriels’ own veterinarian; 13) transporting the horse when it was not safe to do so; 14) failing to seek immediate treatment for the horse when it had diarrhea and pneumonia; 15) failing to properly wean the horse; 16) lacking the basic knowledge to allow them to properly care for the horse. Lovewell also alleged breach of an implied warranty to render services in a good and workmanlike manner.

I. Lovewell’s Testimony on Conversation with Howton

1. Previous Attempts To Get Hearsay Testimony into Evidence

On two occasions, Lovewell attempted to introduce testimony regarding statements Howton made to him. First, Lovewell tried to introduce this testimony through his friend, Lee Barton, who was present with Lovewell and Howton at the clinic during the conversation in question. Second, Lovewell tried to introduce his own testimony concerning the conversation between himself and Howton. Both times he argued that the statements were admissible as statements by an agent of a party opponent. See Tex.R. Evid. 801(e)(2)(D). Both times, the trial court disallowed the testimony.

2. The Gabriels Open the Door

The Gabriels then elicited the following testimony on direct examination of How-ton:

Q. Do you remember, Dr. Howton, having any conversations with Mr. Love-well after the filly died?
A. Yes, sir.
Q. What do you remember about those?
A. Very little.
Q. Okay. Do you remember telling Mr. Lovewell that the filly died because it wasn’t brought in soon enough?
A. No.
Q. Do you remember telling Mr. Lovewell the filly died because of something Ron and Lana Gabriel did or did not do?
A. No.

At this point, Lovewell argued the Ga-briels opened the door to the previously-rejected testimony regarding the telephone conversation.

3. Rebuttal Testimony Allowed

Outside the presence of the jury, the trial court agreed the Gabriels’ direct examination of their witness on his memory of conversations with Lovewell opened the door to Lovewell’s testimony about what Howton said to him during that conversation. The Gabriels again urged their objection to the testimony as hearsay. The trial court overruled the objection. The jury was returned, and Lovewell was permitted to testify on rebuttal that Howton attributed the death of the horse to the Gabriels’ failure to bring it to the clinic sooner:

Q. I want to take you back in time to when you went to the clinic and spoke with Dr. Howton. Do you understand what I’m asking you about?
A. Okay.
Q. Did you have a conversation with Dr. Howton—
A. I did.
Q. —at the clinic? Did you talk to him about his opinions and his expressions about your horse that day when you first went up there?
A. Yes, sir.
Q. Did he provide you his opinions and his thoughts about why your horse died?
A. Yes, sir.
Q. What did he tell you?
A. When he walked in, he shook hands with me and he said, “This is a bad, bad deal. This should never have happened.”
Q. Did he say why?
A.He said, ‘We had a vet out
there Saturday. We wanted to bring him to the clinic, gave the fluids, Ron Gabriel said he didn’t have a trailer, so he didn’t bring it.”
Q. Did you ask him whether or not that would have made a difference, in his opinion?
A. Yes, sir.
Q. What did he say?
A. I said, “If he had brought it in there Saturday, would the horse have died,” and he said “No.”
Q. Did you ask him about Sunday?
A. I did.
Q. What did he say?
A. He said, “He would have brought it in Sunday, it would have had a lot better chance.”
Q. Did you ask him about Monday?
A. Yes, sir.
Q. What did he say?
A. “If it had been brought in Monday morning, it would have had a lot better chance.”

4. The Door Was Opened to Hearsay

“Opening the door” or inviting testimony that would otherwise pertain to an inadmissible subject matter does not mean that such testimony is necessarily invited into evidence in any form, including hearsay. However, where such testimony pertains to the same subject matter and is directly contrary to earlier testimony, it is admissible, including hearsay. In the instant case, Lovewell’s testimony pertained to the same subject matter as did How-ton’s testimony and was directly contrary to Howton’s testimony. This evidence was clearly admissible for the limited purpose of impeaching Howton’s earlier testimony. The trial court properly admitted it over the Gabriels’ hearsay objection.

J. Jury’s Findings

Although Lovewell alleged sixteen specific theories of negligence, the jury charge properly included only one broad question on negligence: “Did the negligence, if any, of those persons named below proximately cause the occurrence in question?” The charge went on to define “negligence” and “proximate cause.” The jury answered yes as to both Ron and Lana. The jury also found that the Gabriels failed to comply with a warranty and that such breach was the producing cause of Lovewell’s loss.

II. SUBSTANTIVE LAW

A. Proximate Cause, Producing Cause Compared

Negligence requires a showing of proximate cause, while producing cause is the test when alleging a breach of an implied warranty. Tex. Bus. & Com.Code Ann. § 17.50(a)(2) (Vernon 2002); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 502 (Tex.2001); Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex.1998); Cont’l Dredging, Inc. v. De-Kaizered, Inc., 120 S.W.3d 380, 391 (Tex.App.-Texarkana 2003, pet. denied). Proximate cause and producing cause differ in that foreseeability is an element of proximate cause, but not of producing cause. Read, 990 S.W.2d at 737; Parkway Co. v. Woodruff, 857 S.W.2d 903, 914 (Tex.App.-Houston [1st Dist.] 1993), modified on other grounds & aff'd, 901 S.W.2d 434 (Tex.1995).

B. Proximate Cause

Proximate cause consists of both cause in fact and foreseeability. Read, 990 S.W.2d at 737. Cause in fact means that the defendant’s act or omission was a substantial factor in bringing about the injury which would not otherwise have occurred. Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 936 (Tex.App.-Texarkana 1997, writ denied). The cause-in-fact element of proximate cause is met when there is some evidence that the defendant’s “ ‘act or omission was a substantial factor in bringing about injury’ without which the harm would not have occurred.” Read, 990 S.W.2d at 737.

Foreseeability, in the context of proximate cause, requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Id. Foreseeability in the context of causation asks whether an injury might reasonably have been contemplated because of the defendant’s conduct. Id. Foreseeability does not permit simply viewing the facts in retrospect and theorizing an extraordinary sequence of events by which the defendant’s conduct caused the injury. Id. Rather, the question of foreseeability “involves a practical inquiry based on ‘common experience applied to human conduct.’ ” Id.

Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). When causation facts are disputed, causation may be established by circumstantial or direct evidence. McMillen Feeds, Inc. v. Harlow, 405 S.W.2d 123, 130 (Tex.Civ.App.-Austin 1966, writ ref d n.r.e.). The plaintiff need not exclude every other possibility. Comty. Pub. Serv. Co. v. Dugger, 430 S.W.2d 713, 719 (Tex.Civ.App.-Texarkana 1968, no writ). All that is required is proof of a causal connection beyond the point of conjecture or mere possibility. Lenger v. Physician’s Gen. Hosp., 455 S.W.2d 703, 706 (Tex.1970).

C. Producing Cause

A producing cause is “an efficient, exciting, or contributing cause, which in a natural sequence, produced injuries or damages complained of, if any.” Roberts v. Healey, 991 S.W.2d 873, 878 (Tex.App.Houston [14th Dist.] 1999, pet. denied). Common to both proximate and producing cause is causation in fact, including the requirement that the defendant’s conduct be a substantial factor in bringing about the plaintiffs injuries. Id. However, producing cause requires a lesser burden than proximate cause because it does not require foreseeability.

III. ANALYSIS

The Gabriels contend expert testimony was necessary to aid the jury on the element of causation in this case. They argue that, without such testimony, legally and factually insufficient evidence supports the causation element to support the judgment against the Gabriels for negligence or breach of implied warranty.

A. Necessity of Expert Testimony

A jury may decide the required causal nexus between the event sued upon and the plaintiffs injuries when 1) general experience and common sense will enable a layperson to fairly determine the causal nexus; 2) expert testimony establishes a traceable chain of causation from injuries back to an event; or 3) expert testimony shows a probable cause nexus. Weidner v. Sanchez, 14 S.W.3d 353, 370 (Tex.App.Houston [14th Dist.] 2000, no pet.). In this case, many of the circumstances surrounding the cause of the filly’s death were matters within the jury’s common understanding. The jury was further aided by the Gabriels’ own experts’ testimony in concluding there was a probable cause nexus between the Gabriels’ acts or omissions and the filly’s demise. As Lovewell asserts, this is not a veterinary malpractice case; the veterinarians were not the defendants. The acts and omissions of Ron and Lana must be the focus of our analysis.

B. Scope and Force of Lovewell’s Hearsay Testimony

1. No Limiting Instruction Requested

The Gabriels were entitled to a limiting instruction concerning Lovewell’s hearsay testimony contradicting Howton’s earlier testimony. The Rules of Evidence allow such an instruction to the jury when evidence is admitted for a limited purpose. Tex.R. Evm 105. It is incumbent on the opponent of the evidence to request such an instruction. In the absence of a request by the opponent, the trial court’s failure to instruct the jury cannot be a ground for complaint on appeal. Tex.R. Evid. 105. Here, the Gabriels did not request the trial court give the jury a limiting instruction regarding the purpose of this impeaching testimony by Lovewell, and the trial court did not give one, either at the time the testimony was given or in the court’s charge to the jury. We must now assess the impact of Lovewell’s testimony in light of the absence of a limiting instruction.

2. Without Instruction, Testimony Was Considered for Any and All Purposes

This Court has held that evidence admitted without limitation comes into evidence for any and all purposes. Cigna Ins. Co. v. Evans, 847 S.W.2d 417, 421 (Tex.App.-Texarkana 1993, no writ). In Evans, a document was offered into evidence for a limited purpose. The document was admitted over Cigna’s hearsay objections. The document was then read in its entirety to the jury, but no instruction was requested or given to restrict the jury’s consideration of the document to a limited purpose. Id. On appeal, Cigna claimed the document was admitted only for a limited purpose, but this Court found that assertion was not supported by the record. Id. We noted that the document was read in its entirety to the jury; that the court did not state it was admitting the document for a limited purpose, nor did it so instruct the jury; and that counsel for Cigna did not request such an instruction or object to its absence. Id. at 421. This Court held that, “In the absence of any directive to the fact finder to consider a piece of evidence only for a limited purpose, the fact finder may consider it for any and all purposes.” Id.

The Austin court relied on Evans to reach a similar conclusion when evidence was admitted without a limiting instruction. See Owens-Coming Fiberglas Corp. v. Keeton, 922 S.W.2d 658, 660 (Tex.App.-Austin 1996, writ denied). Most recently, the Amarillo court relied on Evans to reach a similar conclusion. First United Bank v. Panhandle Packing & Gasket, Inc., No. 07-04-0039-CV, —S.W.3d-, -, 2005 WL 607985, *16-16, 2005 Tex.App. LEXIS 1995, at *15-16 (Tex. App.-Amarillo Mar.16, 2005, no pet. h.).

Criminal cases have arrived at similar conclusions with respect to evidence admitted without a limiting instruction. When confronted with impeaching evidence admitted without limitation, the Texas Court of Criminal Appeals plainly held that “once evidence is received without a proper limiting instruction, it becomes part of the general evidence in the case and may be used as proof to the full extent of its rational persuasive power.” See Garcia v. State, 887 S.W.2d 862, 878 (Tex.Crim.App.1994) (citing 1 Edward W. Cleary et ah, McCormick on Evidence 4th Ed. § 54 (1992)); see also Hammock v. State, 46 S.W.3d 889, 892 (Tex.Crim.App.2001). The Fourteenth court, likewise, held that, if impeaching evidence is admitted without a limiting instruction, it becomes part of the general evidence and may be considered for all purposes. See Arana v. State, 1 S.W.3d 824, 829 (TexApp.-Houston [14th Dist.] 1999, pet. ref'd).

The rationale behind this rule is clear: We cannot burden the jury with the task of limiting its consideration of certain items of evidence when, although the evidence may have been intended to have a limited purpose, the limitation was never communicated to the jury. “Jurors cannot be expected to know exactly how to use the evidence unless we tell them, nor can we guarantee that they will ‘remain open-minded until the presentation of all of the evidence and instructions.’” Hammock, 46 S.W.3d at 893-94 (citing Rankin v. State, 974 S.W.2d 707 (Tex.Crim.App.1996)).

3. Hearsay Testimony Can Support Judgment

We also rely on another rule of evidence to arrive at our holding that Lovewell’s testimony was before the jury for any and all purposes. Even as inadmissible hearsay, once into evidence without limitation, then it may support a judgment. Hearsay statements are not “incompetent” evidence and, therefore, may support a judgment, whereas speculative and conclusory expert testimony will not. Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 n. 1 (Tex.2004); Olympic Arms, Inc. v. Green, No. 01-02-00781-CV, 2004 WL 3017037, *6-7, — S.W.3d -, -, 2004 Tex-App. LEXIS 11825, at *20 n. 7 (Tex.App.-Houston [1st Dist.] Dec. 30, 2004, no pet.).

4. Testimony Was Not Conclusory

Coastal Transport’s also brings another issue into our consideration. While hearsay testimony is not incompetent and may support a judgment, speculative and conclusory expert testimony will not. A statement of an expert witness that had no facts to support the expert’s conclusions is insufficient to create a question of fact because it is not credible or susceptible to being readily controverted. McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex.2003); Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996). Coastal Transport stands for the proposition that such evidence is incompetent and cannot support a judgment. The Gabriels rely on Coastal Transport’s holding to argue that Howton’s statements embedded within Lovewell’s testimony are conclusory and, thus, incompetent. They also contend such statements do not constitute expert testimony as defined by Rule of Evidence 702.

Even if Howton’s statements to Love-well do not qualify as expert testimony under Rule 702, such statements included a factual basis and had probative value. The record shows that Gilbert, Howton’s partner at the clinic, had been called to the Gabriels’ farm on Saturday, July 24, to treat the ailing horse. The record further shows that, on that day, Lana had taken the farm’s trailer out of town to a horse show and their trailer was therefore not available to transport the horse to the clinic. Howton testified that he had been a practicing veterinarian for several years and that he provided a great deal of veterinary care for the Gabriels’ quarter horse farm. More specifically, Howton testified he treated the filly on the day it died. He also testified the horse was severely dehydrated on its arrival at the clinic. There is ample factual basis in the record for How-ton’s statements to Lovewell.

C. Sufficiency of the Evidence

We hold that Lovewell’s testimony was before the jury for any and all purposes and now turn to a review of the entire record with this in mind.

1. Standards and Scope of Review

When both legal and factual sufficiency issues are raised, the court should review the legal sufficiency first to determine whether there is any probative evidence to support the jury’s verdict. Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981).

a. Legal Sufficiency Review

We consider all the evidence in the light most favorable to the jury’s verdict, indulging every reasonable inference of the prevailing party. Associated In-dem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998). A point challenging the legal sufficiency of the evidence will be sustained only when 1) there is a complete absence of evidence of a vital fact, 2) the court is barred by rules of law or 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 scintilla, or 4) the evidence conclusively establishes the opposite of a vital fact. Metrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).

b. Factual Sufficiency Review

In a factual sufficiency review, we must consider all the evidence in the case in a neutral light to determine whether the jury’s verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. Lofton v. Tex. Btine Cotp., 720 S.W.2d 804, 805 (Tex. 1986).

2. Legally Sufficient Evidence

Because Lovewell’s hearsay testimony carries full probative force, the jury could rely on that testimony for causation. To support this conclusion, there is also testimony, as noted above, that Lana was out of town at the time and that she had with her the farm’s horse trailer. Therefore, we cannot conclude there is a complete absence of a vital fact. Additionally, as we have discussed in detail, the Rules of Evidence do not prevent us from giving weight to Lovewell’s testimony concerning what Howton told him. Failure to have a trailer to transport the sick horse and failure to take the horse to a place where proper care could be given were specific acts of negligence alleged by Lovewell against the Gabriels, and this evidence specifically supports those allegations.

Likewise, we cannot conclude that this record conclusively establishes the opposite of a vital fact. The opinion testimony of expert witnesses, even though not contradicted by an opposing expert, is generally held not to be binding on the trier of fact if more than one possible conclusion can be drawn from the facts. Gregory v. Texas Employers Ins. Ass’n, 530 S.W.2d 105, 107 (Tex.1975); Exxon Corp. v. West, 543 S.W.2d 667, 672 (Tex. CivApp.-Houston [1st Dist.] 1976, writ refd n.r.e). Even when the subject matter of the expert’s testimony is such that the trier of fact must be guided solely by the opinion of experts, the opinions given by the expert witnesses may be regarded as conclusive only if they are otherwise credible and free from contradiction and inconsistency. Lovewell’s testimony, at a minimum, diminished Howton’s credibility and certainly contradicted both Gilbert’s and Howton’s testimony regarding the cause of the horse’s death. That being said, the jury was free to draw its own conclusion based on the expert testimony before it of the Gabriels’ treatment and care of Lovewell’s horse.

The testimony concerning the medications and the manner in which they were administered is additional evidence the jury was entitled to consider. This evidence included the testimony of the Ga-briels’ own experts that some of these medications have the propensity to cause the very symptoms from which this filly died. Howton testified Erythromycin is “very prone to cause diarrhea.” Ron testified he administered this antibiotic to the filly and, although he further testified he never administered antibiotics without a veterinarian’s prescription, both doctors, Gilbert and Howton, denied ordering this medication. The Gabriels also gave this horse Banamine. Gilbert denied ordering Banamine, and Howton said it is “possible” he ordered it. Howton testified that Bana-mine can cause colitis and that veterinarian consultation before its use is vital, especially when a horse is dehydrated. He said this special concern is due to the fact Banamine is excreted through the kidneys and can, therefore, lead to renal problems. Uremia is one of those complications and is one which this filly suffered.

Further, the Gabriels’ records showed that no medications were administered to this filly on Sunday, July 24, the day before the horse died. The jurors could reasonably infer from this evidence that the Gabriels failed in part to follow Gilbert’s instructions in their treatment of the horse.

Finally, the evidence showed that, even though Howton knew the filly was not owned by the Gabriels, its body and a blood specimen taken from the horse were promptly destroyed without Lovewell’s knowledge or consent. This was done without a necropsy having been performed and without an independent analysis of the blood specimen. The jurors were entitled to consider this evidence, along with the long-standing business relationship How-ton had with the Gabriels, in drawing inferences that reasonably support the verdict.

The jurors were entitled to consider all this evidence in light of their own general experience and common sense and conclude that the Gabriels’ acts or omissions were a substantial factor in bringing about the injury (the death of the horse), without which acts or omissions the harm would not have occurred. See Read, 990 S.W.2d at 737. Viewing the evidence in a light most favorable to the verdict, we conclude it was legally sufficient to support the jury’s verdict.

3. Factually Sufficient Evidence

The record reveals that the jury relied on Lovewell’s testimony about his conversation with Howton to some extent, as indicated by notes to the trial court during deliberations. Additionally, we again note the record shows that Lana had taken the farm’s trailer out of town to a horse show for a few days and that the trailer was not there on Saturday, July 24. Ron testified as to the availability of trailers at his property, indicating that, even if the farm’s trailer was being used, he had access to several owners’ trailers left on his property or he could have borrowed one from a neighbor. The jury, however, could have disregarded this testimony. A jury is free to believe or disbelieve the testimony of any witness, or any part of a witness’ testimony.

Both veterinarians testified to the possible side effects of the drugs administered by the Gabriels. In other words, their testimony established that the drugs have the propensity to cause some of the ailments suffered by the horse. But they both also testified that the drugs did not in this case. The veterinarians both testified the Gabriels did not cause the death of the horse. However, as we previously concluded, the Gabriels’ experts’ testimony on the cause of the filly’s death was not conclusive on the matter. In light of Gregory and West, the jury was free to disregard the veterinarians’ trial conclusions. Considering all of the evidence in a neutral light, we cannot conclude the jury’s verdict was so against the great weight and preponderance of the evidence as to be manifestly unjust.

IV. CONCLUSION

In summary, the impact of the admission of Lovewell’s testimony concerning his conversation with Howton is at least two-fold. First, without having been limited before the jury, the testimony carries full probative weight. This testimony, together with the other evidence and its logical inferences, renders the evidence legally and factually sufficient to support the jury’s verdict in favor of Lovewell. Second, Lovewell’s hearsay testimony undermines the experts’ testimony that the Ga-briels’ acts or omissions were not the cause of the horse’s death and, thus, eliminates the conclusive nature that the experts’ testimony likely would have had otherwise. For these reasons, we conclude the evidence is legally and factually sufficient to support the jury’s verdict.

We affirm the judgment.

JACK CARTER, Justice, dissents.

The central issue in this case is whether alleged acts of negligence by the Gabriels caused the death of Lovewell’s filly. Though Lovewell presented no expert testimony, the majority nevertheless concludes the evidence is legally and factually sufficient to support the jury’s finding of negligence and proximate cause. The majority reaches this conclusion after holding Lovewell was not required to present expert testimony on the issue of causation. Because I disagree with that assessment of the law, I respectfully dissent.

Lovewell’s suit against the Gabriels alleged sixteen theories of negligence. A cause of action for ordinary negligence requires a showing (1) that the defendant owed the plaintiff a duty recognized by law, (2) that there was a breach of that duty, (3) that the breach of the defendant’s duty proximately caused injury to the plaintiff, and (4) that the plaintiff suffered actual loss or damages as a result of the defendant’s negligent conduct. Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 273-74 (Tex.2002); Sunbridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 243, 2005 Tex.App. LEXIS 1887, at *26 (Tex. App.-Texarkana Mar.ll, 2005, no pet.). “An essential element of the plaintiffs cause of action for negligence, or for that matter for any other tort, is that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered. Prosser, Law of Torts (3rd Ed.) 240-241, ‘Causation’, 41 (1964).” E. Tex. Theatres, Inc. v. Rutledge, 453 S.W.2d 466, 468 (Tex.1970).

Lovewell alleged that the Gabriels committed acts or omissions that proximately caused the death of the horse. Therefore, proof of the cause of the death of the horse was required. The majority opinion states that the circumstances surrounding the cause of the filly’s death were matters within the jury’s common understanding. In this case, the evidence shows that the horse died from renal failure due to complications from endotoxemia resulting from Colitis X. May a jury make the determination, without expert testimony, that the actions or omissions of the Gabriels were the cause in fact of the horse contracting Colitis X causing endotoxemia and renal failure and ultimately death? The veterinarians testified that no act or omissions of the Gabriels caused the death of the horse. It is undisputed that there are many causes of Colitis X. The Texas Supreme Court has stated:

In determining the question of proximate cause, the general rule is “that proof of causation must be beyond a showing of a possibility that the injuries arose from the defendant’s negligence or lack of skill, since the jury will not be permitted to speculate as to the cause of the injury. Thus where the evidence most favorably to the plaintiff develops more than one equally probable cause, for one or more of which defendant is not responsible, the plaintiff has failed to sustain his burden of proof.”

Hart v. Van Zandt, 399 S.W.2d 791, 792-93 (Tex.1965) (quoting 13 A.L.R.2d 22) (superseded by statute on other grounds, see Peterson v. Shields, 652 S.W.2d 929, 930 (Tex.1983)).

Though not precisely on point, a recent decision by the Second Court of Appeals supports the Gabriels’ position that Love-well was required to present expert testimony at trial regarding causation. In McGee v. Smith, a horse owner sued a veterinarian for negligent care that allegedly led to the death of a foal. 107 S.W.3d 725, 726-27 (Tex.App.-Fort Worth 2003, pet. denied). The horse owner offered no expert testimony at trial on the element of causation. Id. at 727. Instead, the owner “relied on his own testimony and that of his father-in-law. Although both men had been involved in the horse industry for many years, neither was qualified as an expert in veterinary medicine.” Id. The court of appeals wrote that veterinary malpractice cases, like medical malpractice cases, require the plaintiff to provide expert testimony to prove causation “unless the form or mode of treatment is a matter of common knowledge, or the matter is within the experience of a layperson.” Id. The McGee court ultimately held the dearth of expert evidence on behalf of the plaintiffs case was insufficient to support the jury’s verdict. Id. at 728. The court then reversed the trial court’s judgment and rendered a take — nothing judgment for the veterinarian. Id.

Given the facts of this case — the array of drugs (Rebound, Naxcell, Erythromy-cin, Banamine, Ampicillin, and Gentamicin) that had been recently administered to the horse, the side effects of those drags to create or exacerbate other life-threatening illnesses, the short onset of death (less than one week passed from the onset of symptoms until the filly’s death), the complex nature of the disease, and the treatment by multiple veterinarians and other care providers — I believe that understanding the proximate cause of the filly’s death would be outside the purview of a layperson’s common knowledge or experience. Jurors do not commonly have experience in diagnosing the cause of a disease or ailment, especially in equines. Without expert testimony, the jury must engage in speculation to conclude that the actions of the Gabriels proximately caused the death of the horse. Even if there is evidence of the Gabriels’ negligence, there must be a connection between the negligence and the death of the animal. In cases involving the diagnosis and progression of a disease leading to death, that connecting link is supplied by expert testimony. See Ins. Co. of N. Am. v. Myers, 411 S.W.2d 710, 713 (Tex.1966); Tex. Employers Ins. Ass’n v. Gallegos, 415 S.W.2d 708, 711 (Tex.Civ. App.-San Antonio 1967, no writ). I believe the causal nexus between the alleged acts of negligence and the death of the filly should have been established and supported by expert testimony presented during Lovewell’s case-in-chief.

Though this is not a malpractice ease, the facts and issues are more than sufficiently akin to the complex area of veterinary science that I believe similar expert testimony was essential to aid the jury. I do not believe there is any probative evidence to support the jury’s finding on causation and, therefore, the case should be reversed and rendered.

      . The filly’s body was destroyed without Love-well's knowledge and without having undergone a necropsy. Based on that information, and a statement in support by the man who picked up the horse’s body, Lovewell alleged that the Gabriels had converted the filly. The jury rejected this theory of recovery.

      . Lovewell alleged a bailment relationship with the Gabriels. By doing so, he invoked a rebuttable presumption of negligence by proving the bailment and that the horse was not returned to him. See Andrews v. Allen, 724 S.W.2d 893, 895-96 (Tex.App.-Austin 1987, no writ). The Gabriels admitted they owed a duty to Lovewell. They do not challenge the evidence regarding the breach of that duty or a breach of the warranty. Thus, the only issue on appeal is the sufficiency of the evidence to prove causation.

      . In the criminal law, see Kipp v. State, 876 S.W.2d 330, 337 (Tex.Crim.App.1994), and Daniels v. State, 25 S.W.3d 893, 898 (Tex. App.-Houston [14th Dist.] 2000, no pet.).

      . See Thrash v. State, 500 S.W.2d 834 (Tex. Crim.App.1973).

      . Alternatively, it might be concluded that the Gabriels’ introduction of the conversation into evidence allowed Lovewell to testify to the conversation to make it fully understood. See Tex.R. Evid. 107. Tex.R. Evid. 107 provides, in pertinent part, that: When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence. ...

        . See also Wongv. Graham, 2001 WL 123932, 2001 Tex.App. LEXIS 978, at *3-4 (Tex.App.Austin Feb. 15, 2001, no pet.) (not designated for publication).

      . Lexis identifies this opinion as not designated for publication. The Amarillo court's case information does not confirm this.

      . Tex R. Evid. 702 provides:
      If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issüe, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

      . This is particularly true where the expert’s testimony is based on studies made while in the employ of the party who is offering his or her testimony. Luttes v. State, 159 Tex. 500, 324 S.W.2d 167, 189 (1958).


author: STEVE McKEITHEN, Chief Justice.

text:
    In the Interest of T.M.G.R.
    No. 09-05-002 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted May 10, 2005.
    Decided May 26, 2005.
    John Rynski, Mount Kisco, NY, pro se.
    Richard D. Hughes, McPherson, Monk, Hughes, Bradley, Wimberley & Steele, LLP, Port Arthur, for appellee.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

In this appeal from the modification of an order affecting the parent-child relationship, John William Rynski complains the trial court’s order deviates from the parties’ mediated settlement agreement. The appellee, Teresa Gorgano Stokely, contends that Rynski failed to raise his objections to the trial court and argues the order’s merger clause incorporated the mediated settlement agreement into the order. We find Rynski did present most of his objections to the trial court, but we hold that the appellate record does not support the arguments he makes on appeal. We affirm the judgment of the trial court.

Rynski, who is representing himself in this appeal, presents one issue, as follows:

Several key clauses have been removed, outside the scope of the mediated agreement, from the Order of Parentage filed. The Order also contains several key clauses which are contrary to the mediated agreement read into the court record under sworn testimony one year pri- or to the filing. Several clauses are also believed to be unenforceable and one clause has been specifically disallowed by the Office of the Attorney General of the State of Texas.

Public policy encourages the peaceful resolution of disputes, especially those involving the parent-child relationship, through voluntary settlement procedures. See generally Tex. Civ. PeaC. & Rem.Code ÁNN. § 152.002 (Vernon 1997) (authorizing establishment of alternative dispute resolution systems). An agreement made in open court and entered of record is enforceable. Tex.R. Civ. P. 11. A Rule 11 agreement may be enforced as a binding contract notwithstanding the withdrawal of consent by one of the parties to the agreement prior to judgment. Padilla v. LaF-rance, 907 S.W.2d 454, 461-62 (Tex.1995). Rynski does not contest the trial court’s power to enter a judgment in accordance with the Rule 11 agreement, but he argues the order does not comport with the settlement agreement. The ten errors identified by Rynski fall into two general categories: (1) clauses contained in the original order that were removed from the modified order without his consent, and (2) clauses in the modification order that differ from the mediated agreement upon which the trial court rendered judgment. We address each general category of alleged error separately.

Rynski and Stokely had each alleged the other committed numerous violations of the original order affecting the parent-child relationship. Part of the settlement agreement involved forgiving all past violations and represented an attempt to simplify the parties’ respective rights and obligations. In memorializing their agreement in open court, the parties described their agreement to modify the prior order as follows:

[Counsel for Rynski]: It is our understanding that there will continue to be a joint managing conservatorship with Mrs. Stokely being the primary, with all of the joint managing conservatorship rights that are outlined in the Texas Family Code, specifically each parent will have the independent right to take the child to a counselor or a psychologist without the permission or consent required by the other parent.
Is that your agreement, Mr. Rynski?
MR. RYNSKI: Yes.
MRS. STOKELY: Yes.
[Counsel for Stokely]: Specifically that includes Dr. Duncan. We don’t want any more letters to the doctor that he can’t see the child.
Is that agreed?
MR. RYNSKI: It’s part of the Order.
MS. WALTON: Is it your understanding, Mr. Rynski, that unless we have modified provisions in this agreement from your original Order of Parentage, all additional orders — provisions will carry over?
MR. RYNSKI: Yes.
[Counsel for Rynski]: We are addressing that because you-all currently have a provision in your Order of Parentage that says something to the effect that if a Court finds that each one of you or either of you violates the Order on at least three different occasions you-all
could be held responsible for that party’s attorney fees and a bond could be required.
MR. RYNSKI: Yes
[Counsel for Stokely]: Yes, that’s certainly the agreement. That’s what we addressed when you said all of the provisions are going to carry over. It’s understood that because of the e-mail and the recorder, all of that stuff is being wiped out by this agreement, that you give standard notice for the flights, a written notice. We don’t have to go into all that, do we?
[Counsel for Rynski]: No.
[Counsel for Stokely]: That’s being replaced by this modification?
[Counsel for Rynski]: Yes.
[Counsel for Stokely]: Do you understand that, Mrs. Stokely?
MRS. STOKELY: Yes.
[Counsel for Stokely]: Do you understand what she said about that? Basically what we’re doing is we’re changing the “subject to” business and we’re saying you have the right to make the standard — what’s standard in the Family Code, you have a right to make those decisions; and he’s going to have a similar right. You have certain exclusive rights, and one of those is to determine the residence of the child. Is that not correct?
[Counsel for Rynski]: Yes.

At the request of Rynski’s attorney, the trial court pronounced rendition of judgment on the settlement agreement at the conclusion of the hearing. Over a year elapsed before the trial court conducted a hearing on motion to enter judgment and signed the written order. Counsel explained to the trial court that Rynski’s attorney had prepared a draft order acceptable to Stokely, but that Rynski had insisted on inserting additional obligations.

On appeal, Rynski maintains the order entered by the trial court deviates from the agreement of the parties. Rynski identifies five provisions from the original order establishing paternity that were omitted from the modification order. First, the appellant argues the trial court improperly deleted a requirement that the appellee provide a list of the child’s health care providers. Second, the appellant complains the trial court deleted a requirement that Stokely obtain a second opinion in the event she desires to schedule invasive medical treatment to which Rynski does not agree, and that she obtain a tiebreaker opinion if the second opinion conflicts with the initial opinion. Third, Ryn-ski objects to the removal of a provision mandating a professional educational assessment in the event the parties disagree about which school the child should attend. Fourth, the appellant objects to the removal of a mutual requirement to notify the other parent within fourteen days of a firearm being brought into the home. Fifth, he complains the trial court removed the requirement that a competent adult remain visible in the doorway when the child is returned from a period of possession. The issue on appeal is whether the parties’ agreement to continue as joint managing conservators, with Stokely as the primary managing conservator and the parties having the standard rights under the Family Code, constituted an agreement to modify specific provisions affecting those rights. Rynski relies upon his counsel’s statement that, unless modified by their agreement, the provisions of the prior order would continue. The parties did not, he contends, agree to alter specific rights and obligations expressed in the original Order of Parentage.

When these alleged discrepancies were brought to the attention of the trial court during the hearing on the motion to enter judgment, counsel for the appellee explained that the health care provider clause was not expressed as a continuing obligation in the original order, but was to be performed by February 15, 2001. As to that and the other four provisions, the appellee argued the parties’ agreement was to revert to a standard agreement except where they specifically agreed to the contrary. Rynski’s attorney addressed the trial court as follows:

[Counsel for Rynski]: I would like for the court to understand that it’s very simple for us lawyers to say joint managing conservatorship with all the standard rights. But then when we come back and say, however, because that first order had so many unusual and case specific inserts and additional language, we are going to keep that. Unless we have specifically addressed it and changed it, we are going to keep everything else because it would have taken us two days to go through that prior order and pick and choose what we were changing and what we didn’t. And we did not do that. We said joint managing with standard language, and we are going to keep everything else that was previously entered.
So, the majority of the objections that [Stokely’s counsel] has are where I specifically went back and added the language that was case specific from the first one. So, I think mine accurately represents what our full agreement was, Your Honor.

Although the order being appealed is included in the clerk’s record, the original order affecting the parent-child relationship is not contained in the appellate record. That order is not one of the documents included in the clerk’s record absent a request in the designation of record. Tex.R.App. P. 34.5(a),(b). Thus, we have nothing against which to compare the order entered on the petitions for modification. There is also no written mediated agreement in the appellate record. Counsel for Rynski and for Stokely both referred to a written agreement during the hearing on motion to enter judgment, but we cannot determine whether a written agreement was filed with the trial court as required for enforcement under Rule ll. When the appellant bears the responsibility to designate the inclusion of particular relevant documents in the appellate record, and fails to do so, “[w]e must presume the missing documents would sustain the trial court’s ruling.” Till v. Thomas, 10 S.W.3d 730, 734 (Tex.App.-Houston [1st Disk] 1999, no pet.). There is no indication in the record that a written agreement was filed with the trial court, and we will presume the parties rely solely upon their in-court statements for their Rule 11 agreement. We address the merits of Rynski’s argument to the extent we are able.

Rynski cites no authority in support of his argument, but he essentially argues that the trial court abused its discretion by deviating from the terms of the agreement in the judgment. In Garciar-Udall v. Udall, temporary orders gave one parent the exclusive right to consent to “invasive medical, dental, or surgical treatment.” Garcia-Udall v. Udall, 141 S.W.3d 323, 327 (Tex.App.-Dallas 2004, no pet.). The parties subsequently executed a Section 153.0071 mediated settlement agreement that incorporated the temporary orders into the divorce decree, and also provided that one parent would have the final decision “in the event the parties cannot agree on medical, dental or surgical treatment involving invasive procedures.” Id. at 327-28. The appellant argued the agreement changed the decision making on invasive treatment from appellee’s exclusive right to a joint right. Id. at 328. Recognizing that an unambiguous contract must be interpreted as a matter of law, and ambiguity does not arise merely because the parties advance differing interpretations, the court of appeals held the adjectives “medical, dental or surgical” modified the same noun, “treatment” and the participial phrase “involving invasive procedures” modified the noun “treatment” and was not limited to surgical treatment. Id. The court of appeals reversed the trial court and modified the judgment to make the decree conform to the mediated agreement. Id. at 329. “The fact that the trial court interpreted the mediated settlement differently is irrelevant because the trial court has no discretion to misapply the law.” Id.

Similarly, in Casper v. Preston, No. 01-01-00322-CV, 2003 WL 1563985, *2 (Tex. App.-Houston 2003, no pet.)(memo.opin.), the mediated agreement entered pursuant to Family Code § 153.0071 provided for a “Standard Possession Order” and stated that the father could possess the children for an extended summer vacation of “at least 21 days.” After the trial court entered a decree that provided only 21 days of extended summer possession, the appellate court reformed the order to provide for weekend visitation throughout the year and added 30 days of summer vacation possession, 21 of which could be exercised as extended summer possession. Id. at *4.

In this case, however, Rynski has not established a deviation from the mediated agreement. The parties agreed to cany forward from the original order to the new order any terms not addressed in the Rule 11 agreement. The rights of the parents were addressed in the mediated settlement when they agreed to joint managing con-servatorship with the standard rights contained in the Family Code. See Tex. Fam. Code AnN. §§ 153.071-.076 (Vernon 2002 & Supp.2005). Although we cannot discern whether the order modified the prior order in the manner asserted by the appellant, we conclude that the trial court’s order comports with the Rule 11 agreement as to the provisions at issue.

Rynski identifies five additional provisions he contends differ from the mediated agreement. The record contradicts his claims. First, Rynski complains the trial court altered the beginning time of possession from the time school is dismissed for Spring Break to 6:00 p.m. At the settlement hearing, the parties addressed the fact that the child would be flying to New York for visitation with Rynski, and they agreed that flights would be scheduled no earlier than two hours after school is released. Second, Rynski complains that the word “accompany” has been replaced with the phrase “always be with” regarding his international travel with the child. In the settlement hearing, Rynski’s lawyer stated, “Mr. Rynski will also always be with [T.M.G.R.], physically present with [T.M.G.R.], when they travel outside of the country....” Third, the appellant complains that the provision regarding removing his name from the child abduction list is unenforceable as written and must require Stokely to immediately act to remove his name from any and all government lists to which she has added his name. At the settlement hearing, Rynski agreed he would “take responsibility of finding out what that requirement is, providing us with any necessary documentation ...” and that Stokely would “cooperate” with him. Fourth, Rynski complains that a provision regarding removing derogatory letters from the child’s school file is unenforceable and that Stokely should be ordered to act immediately to remove the letters. The order is consistent with the agreement expressed by the parties, that “[t]he burden is on him” and that the appellee would “sign and give permission for that to be removed” but would not “file any lawsuits or anything to get that done.” Fifth, Rynski objects on appeal to a provision that if Rynski paid for the child’s transportation costs on behalf of Stokely (who was ordered to pay the cost of every other out-of-town visitation by the child), the actual amount would be credited toward his child support. He argues the provision is unenforceable and that the order must be changed to order Stokely to immediately reimburse Rynski the amount of her obligation toward the child’s travel costs. The order entered by the trial court is consistent with the Rule 11 agreement that “If [the appellee] does not advance that [flight] cost up to $310 and Mr. Rynski has to pay that fee, then the amount he had to pay on her behalf will get credited towards his child support obligation.” Because these provisions are consistent with the agreement the parties expressed in open court, the trial court did not abuse its discretion by including them in the order.

Furthermore, Rynski did not timely present to the trial court his complaints that three of the provisions are unenforceable. See Tex.R.App. P. 33.1. In addition, his briefs to the Court refer to events and documents for which there is no evidentia-ry support in the record. Documents not properly presented to the trial court cannot be incorporated into the appellate record through inclusion in the appendix to the brief. Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 342 n. 2 (Tex. App.-Houston [14th Dist.] 2003, no pet.).

The appellant fails to establish that the order entered by the trial court includes provisions contrary to the agreement dictated in open court. The judgment is affirmed.

AFFIRMED.

      . Emphasis is provided by the Court.

      . An unsigned copy of an "Order of Parentage” was attached as an exhibit to Rynski's original motion for enforcement. This order is not attached to Rynski’s amended motion, and the clerk's record does not include the order actually signed by the judge. The order was not introduced into evidence at trial.

      . A written mediated settlement agreement in a suit affecting the parent-child relationship is enforceable notwithstanding Rule 11. See Tex. Fam.Code Ann. § 153.0071(d),(e) (Vernon 2002). The parties have relied solely upon Rule 11 in the course of these proceedings, and we limit our review accordingly.