author: CATHERINE STONE, Justice.

text:
    The CITY OF ALAMO HEIGHTS and the Board of Adjustment of the City of Alamo Heights, Appellants, v. Ken BOYAR and Lisa Boyar, Appellees.
    No. 04-04-00179-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 5, 2005.

      Samuel H. Bayless, Michael S. Brenan, San Antonio, for appellants.
    Jacqueline M. Stroh, Thomas H. Crofts, Jr., Crofts & Callaway, P.C., Richard P. Corrigan, San Antonio, for appellees.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice.
   OPINION

Opinion by

CATHERINE STONE, Justice.

This case involves a writ of certiorari in the district court from a decision of the Zoning Board of Adjustment for the City of Alamo Heights interpreting several setback provisions of the Alamo Heights Zoning Code. The City of Alamo Heights and the Zoning Board of Adjustment for the City of Alamo Heights appeal the district court’s judgment which essentially reversed the Zoning Board’s decision and allowed the Boyars a variance to deviate from the City’s setback requirements. We reverse and remand the cause to the trial court.

BACKGROUND

Kenneth and Lisa Boyar own a condominium in Alamo Heights, Texas. After purchasing the property, the Boyars proceeded to completely enclose their backyard with screens. According to the Boyars, before they screened in their backyard, their property suffered from various intrusions from their neighbors’ properties, including noise, lights, debris, insects, rodents, and trespassers. Although the Boyars’ screened structure prevents insects and other debris from intruding onto their property, it permits the wind, rain, and sunlight to enter their yard. The Boyars constructed their screened structure without a building permit.

After the Boyars enclosed their backyard with screens, the Boyars applied to the City of Alamo Heights for a building permit. The City denied the Boyars’ application because their screened structure did not comply with the side-yard and rear-yard setback provisions of the Zoning Code. The City stated it denied the Bo-yars’ application because the Boyars’ “minimum side yard would be zero (0)ft instead of the 15ft required by Section 10(D)(2)(c) [of the Alamo Heights Zoning Code]; and the rear yard setback would be zero (0)ft instead of the 25ft required by Section 10(E)(1) of the [Alamo Heights Zoning Code].”

When the Boyars petitioned for a variance to deviate from the applicable zoning ordinances, the Zoning Board of Adjustment for the City of Alamo Heights denied the request, citing sections 10(D)(2)(c) and 10(E)(1) of the Zoning Code in support of its ruling. The Boyars subsequently asked the district court, via writ of certiorari, to review the Zoning Board’s decision under section 211.011 of the Texas Local Government Code. The City and the Zoning Board responded by filing a counterclaim seeking an injunction requiring the Boyars to either modify or remove the screened structure to bring it in compliance with the Zoning Code. After a bench trial, the trial court found that the Zoning Board incorrectly interpreted or applied the provisions of the Zoning Code to the Boyars’ screened structure. The trial court further found that the Zoning Board had abused its discretion by failing to grant the Boyars a variance because “[a] literal enforcement of the applicable [ordinance would result in unnecessary hardship on the Boyars.” Thus, the trial court modified the Zoning Board’s decision to allow the Boyars a variance for their screened structure.

Standard op Review

When a party challenges a zoning board’s action by filing a writ of certiorari, the district court sits as a court of review to determine the sole question of the legality of the zoning board’s order. Tex. Loc. Gov’t Code Ann. § 211.011 (Vernon Supp.2004); City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67, 70 (1945). The board’s order is presumed to be legal, and the party attacking the order has the burden of establishing its illegality. Currey v. Kimple, 577 S.W.2d 508, 512 (Tex.Civ.App.-Texarkana 1978, writ ref d n.r.e.).

To establish that an order of a zoning board is illegal, the party attacking the order must present a very clear showing that the board abused its discretion. Boehme Bakery, 190 S.W.2d at 71. A board abuses its discretion if it acts “without reference to any guiding rules and principles,” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), or “clear[ly] fail[s] to analyze or apply the law correctly.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). The reviewing court must not, however, put itself in the position of the board and substitute its discretion for that of the board. Boehme Bakery, 190 S.W.2d at 70. Whether a zoning board of adjustment abused its discretion is a question of law for the trial court. Bd. of Adjustment v. Patel, 882 S.W.2d 87, 89 (Tex.App.-Amarillo 1994, writ denied); Dengler v. City of Groves, 997 S.W.2d 418, 420 (Tex.App.-Beaumont 1999, pet. denied). This court reviews a trial court’s decision on a question of law de novo. Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

Plain Language of the Zoning Code

The first issue we must resolve is whether the Zoning Board correctly analyzed and applied the provisions of the Alamo Heights Zoning Code when it considered the Boyars’ request for a variance. The Zoning Board relied on sections 10(D)(2)(c) and 10(E)(1) of the Zoning Code to deny the Boyars’ request for a variance. Because the parties agree that the Zoning Board incorrectly relied on section 10(D)(2)(c) to deny the Boyars’ variance request, we must only consider the applicability of section 10(E)(1) on appeal.

Section 10(E)(1) of the Zoning Code provides that “[n]o building, structure or use shall hereafter be located so as to have a smaller rear yard than” 25 feet. Alamo Heights Zoning Code Appendix A § 10(E)(1). The Zoning Code defines “building” as “[a]ny structure designed, built or intended for shelter, enclosure of persons, animals, chattels or movable property of any kind.” Id. at § 20(A)(8). “Structure” is defined “the same as a building, but shall in addition, include such items as a free standing ground sign and pylon when erected on a base and not made integral with a building.” Id. at § 20(A)(43). The Zoning Code defines a “yard” as an “open, unoccupied space (except for vegetation and surfacing) other than a court, on the lot in which a building is situated and which is unobstructed except as provided herein by any building from the ground to the sky.” Id. at § 20(A)(44). It further defines a “rear yard” as “[a]n open, unoccupied space, except for accessory buildings as herein permitted, extending across the rear of a lot from one side lot line to the other side lot line and having a depth between the main building and the rear lot line. The required rear yard shall have a minimum dimension as specified in the district in which the lot is situated.” Id. at § 20(A)(46). Lastly, the Zoning Code defines an “open space” as the “[a]rea included in any side, rear or front yard or any unoccupied space on the lot that is open and unobstructed to the sky except for the ordinary projection of cornices, eaves or porches.” Id. at § 20(A)(35).

The dispute in this case focuses primarily on the definition of “structure” as provided by the Zoning Code. In construing an ordinance, courts use the same rules as when construing a statute and seek to discern the intent of the enacting body. Bd. of Adjustment v. Wende, 92 S.W.3d 424, 430 (Tex.2002). The court’s role in construing a statute is well-established:

Courts must take statutes as they find them. More than that, they should be willing to take them as they find them. They should search out carefully the intendment of a statute, giving full effect to all of its terms. But they must find its intent in its language and not elsewhere .... They are not responsible for omissions in legislation. They are responsible for a true and fair interpretation of the written law. It must be an interpretation which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain.

RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.1985) (quoting Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (Tex.1920)).

When making our determination, we look first to the plain meaning of the words of the ordinance. Wende, 92 S.W.3d at 430. If words and phrases are not defined by the enacting body, the courts should apply the ordinary meaning of the words or phrases. Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex.1993). Courts are to read every word, phrase, and expression as if it were deliberately chosen and presume that words excluded from the statute were excluded purposefully. Gables Realty Ltd. P’ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied). We should consider the associated words and the context in which they appear when construing a phrase within a statute. Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex.1994).

If the meaning of an ordinance is doubtful or ambiguous, the court should give serious consideration to the construction given by the body charged with its enforcement or administration. Texans to Save the Capitol, Inc. v. Bd. of Adjustment, 647 S.W.2d 773, 776 (Tex.App.-Austin 1983, writ refd n.r.e.). “Texas courts[, however,] have universally adopted the ‘clear and unambiguous meaning’ test,” under which courts may “interpret the ordinance only if the language’s meaning is not clear and plain on the law’s face. If the language is clear and plain, the court is bound by the language’s ‘plain meaning.’ ” Id. at 775 n. 4; see also Seawall East Townhomes Ass’n, Inc. v. City of Galveston, 879 S.W.2d 363, 364 (Tex.App.-Houston [14th Dist.] 1994, no writ) (“When the words in an ordinance or statute are clear, the ordinance must be given its literal interpretation.”). “In other words, if the disputed phrase is clear and unambiguous, extrinsic aids and rules of construction are inappropriate and the ordinance should be given its common meaning.” City of Austin v. Hyde Park Baptist Church, 152 S.W.3d 162, 166 (Tex.App.-Austin 2004, no pet. h.).

Our objective in construing the Zoning Code is to discern the Alamo Heights City Council’s intent, considering first the plain meaning of the words used in the Code. The setback provisions of the Zoning Code apply only to buildings and structures. See Alamo Heights Zoning Code Appendix A § 10(E)(1). A structure is defined as anything “designed, built or intended for shelter, enclosure of persons, animals, chattels or movable property of any kind.” Id. at §§ 20(A)(8),(43). The City Council did not define “enclosure” in the zoning ordinance; thus we use the ordinary meaning of the word when interpreting the ordinance. See Monsanto Co., 865 S.W.2d at 939. Black’s Law Dictionary defines “enclosure” as “Land surrounded by some visible obstruction. An artificial fence around one’s estate.” Black’s Law Dictionary 473, 687 (5th ed.1979). It further defines “enclose” as “To surround; to encompass; to bound; fence, or hem in, on all sides. To shut up.” Id. Webster’s Dictionary defines “enclosure” as “the act or action of enclosing: the quality or state of being enclosed; something that encloses; something enclosed.” Webster’s ninth new collegiate dictionary 409 (9th ed.1991). It further defines “enclose” as “to close in: surround; to fence off (common land) for individual use; to hold in: confine.” Id.

On its face, the ordinance was plainly intended to extend to a structure such as the screened structure erected by the Bo-yars. The Boyars’ screened structure was designed, built, and intended for the enclosure of persons. The record indicates the Boyars’ property suffers intrusions from its commercial and residential neighbors. These intrusions include noise, lights, leaves, debris, insects, rodents, and people. It is undisputed that the Boyars’ screened structure surrounds the Boyars while in their backyard and alleviates/eliminates the intrusions onto their property by creating a barrier between the Boyars and the abutting properties. Thus, the Boyars’ screened structure is a structure as defined by the plain language of the ordinance.

The Boyars argue that the requirements of the Zoning Code do not apply to them because their screened structure is essentially an “open-air patio cover,” which is not regulated by the Code. The Boyars note that the Alamo Heights Building Code has specific provisions addressing “patio covers” whereas the Zoning Code does not. They claim the Zoning Code’s failure to expressly address patio covers signifies an intention not to regulate the erection of screened structures like theirs. Regardless of the term the Boyars use to describe their backyard improvement, it clearly falls within the definition of a structure as provided by the Zoning Code. Therefore, we do not believe the Zoning Code’s omission of language pertaining to patio covers is of any consequence in the case at bar.

The Boyars further argue that their screened structure does not violate section 10(E)(1) of the Zoning Code. They claim their “screened structure does not decrease the amount of available ... rear-yard space any more than a fence does. The Boyars continue to have a backyard to the extent they ever had one.” This argument, however, ignores the fact that the Zoning Code essentially requires a backyard to be open and unobstructed to the sky. See Alamo Heights Zoning Code Appendix A §§ 20(A)(35), (44), (46). Here, the Boyars’ backyard is not open and unobstructed to the sky. The Boyars’ screened structure, although permeable to some degree, inhibits the free movement of people, animals, and objects in the area above their yard.

Undue Haedship

The next issue we must resolve is whether the Zoning Board abused its discretion by denying the Boyars’ variance request. The Boyars claim the Board erroneously denied their variance request because they provided substantive evidence that a literal enforcement of the provisions of the ordinance would result in undue hardship. According to the Boyars, Mrs. Boyar would suffer significantly from the loss of the screened structure because she would be unable to enjoy her backyard due to her sun and insect allergies. They further claim that they would suffer a $27,000 financial loss if required to remove their screened structure because it cost $17,000 to install and will cost another $10,000 to remove.

Under state law, a board of adjustment “may authorize in specific cases a variance from the terms of a zoning ordinance if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship, and so that the spirit of the ordinance is observed and substantial justice is done.” Tex. Local Gov’t Code Ann. § 211.009(a)(3) (Vernon 1999). The Alamo Heights Zoning Code further authorizes the Board to grant variances from zoning regulations. Section 17(E) of the Zoning Code provides:

When, in its judgment, the public convenience and welfare will be substantially served and the appropriate use of the neighboring property will not be substantially or permanently injured, the Board of Adjustment may in specific cases ... authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.

Alamo Heights Zoning Code Appendix A § 17(E)(3). Whether a hardship exists is a question of fact for the Board. Ferris v. City of Austin, 150 S.W.3d 514 at 521-22 (Tex.App.-Austin 2004, no pet.). “On appeal, the issue is not whether there was hardship, but whether the trial court, after examining all the evidence, could conclude as a matter of law that the Board had evidence of a substantive and probative nature before it upon which it could conclude that a literal enforcement would result in an unnecessary and unique hardship.” Id.

Importantly, “in order to justify a variance, a hardship must not be self-imposed, nor financial only, and must relate to the very property for which variance is sought, i.e., a condition unique, oppressive, and not common to other property.” Town of S. Padre Island v. Cantu, 52 S.W.3d 287, 290 (Tex.App.-Corpus Christi 2001, no pet.). Likewise, the hardship must not be personal in nature. Currey, 577 S.W.2d at 513 (“An example of a personal or self-created hardship might be a situation in which the owner of a square lot divides it into two triangles and then tries to secure a variance in order to sell the property at a high price. In such an instance, the hardship would be self-created and if the owner could not sell the triangular pieces of property without the variance, then the hardship would be personal.”).

Here, a literal enforcement of the ordinance would undeniably result in hardship to the Boyars. The resulting hardship, however, would be only personal or financial in nature. The Boyars have indicated that Mrs. Boyar will not be able to enjoy the use of her backyard without the screened structure due to her sun and insect allergies. Such hardship is personal to Mrs. Boyar and is not a hardship connected with the configuration or the uniqueness of her property. The Boyars further cite the substantial financial hardship they would endure if required to remove their screened structure. Unfortunately, financial loss alone is insufficient to justify a variance. Based on the foregoing, we believe the Zoning Board correctly applied the provisions of the Zoning Code to deny the Boyars’ variance request. Consequently, we hold the trial court substituted its judgment for that of the Zoning Board when it modified the Board’s decision to allow the Boyars a variance to deviate from the City’s setback requirements.

Injunctive Relief

The final issue we must resolve is whether the trial court should have granted the City and the Zoning Board’s request for an injunction to enjoin the Boyars’ violation of the Zoning Code. Section 22 of the Alamo Heights Zoning Code provides:

Any person or corporation who shall fail to comply with any provisions of this ordinance, or any of the requirements hereof ... shall be liable to injunctive action, being subject to being enjoined and mandatorily enjoined in any court of competent jurisdiction....

Alamo Heights Zoning Code Appendix A § 22. In this case, the trial court concluded the Zoning Board incorrectly interpreted and analyzed the provisions of the Zoning Code with respect to the Boyars. As a result, the court did not consider the merits of the City and the Board’s request for injunctive relief. Because we have determined the Zoning Board did not abuse its discretion regarding the Boyars’ screened structure, we hold the trial court erred by not considering the City and the Board’s request for an injunction.

Conclusion

The Zoning Board did not abuse its discretion in this case because the Board correctly analyzed and applied the provisions of the Zoning Code to the Boyars’ screened structure. Thus, the trial court substituted its judgment for that of the Zoning Board when it modified the Board’s decision to allow the Boyars a variance to deviate from the City’s setback requirements. Accordingly, the judgment of the trial court is reversed and the cause is remanded to the trial court for entry of judgment in favor of the City and the Board. Because the trial court failed to consider the merits of the City and the Board’s request for injunctive relief during the previous proceedings, the trial court is further instructed to address the request for an injunction.

      .The Boyars placed screens above and on all three sides of their backyard by mounting the screens to their condominium and to the concrete wall surrounding their yard. To complete their project, the Boyars had to remove a preexisting arbor. The arbor was approximately 16 feet in height, covered by a roof, and extended at least three feet over the Bo-yars' property line.

      . For purposes of this appeal, the Boyars' improvement shall be referred to as a "screened structure.”

      . The screened structure, however, reduces ultraviolet rays by 35 percent.

      . The court conditioned its decision on the Boyars camouflaging their screened structure with vegetation.

      . Section 10(D)(2)(c) of the Zoning Code provides:
      Except as hereinafter provided, no building or structure or part thereof shall be erected, altered or converted for any use permitted in the district in which it is located unless it is in conformity with all the minimum regulations herein specified for lot area, lot width, lot coverage and front, side and rear yards: ... In the following zoning districts the minimum required side yard shall be in accordance with the following schedule: ... (D) Side yard. No building, structure or use shall hereafter be located so as to have a smaller side yard on each side of a building than hereinafter specified by the following schedule: ... (2) Special side yard regulations ... (c) Where multiple-family dwellings are arranged on a lot with a building side having a length greater than thirty-five (35) feet and being approximately parallel to the side lot line, or where the side of such building is parallel to another building in a project, a side yard of fifteen (15) feet shall be provided on each side of each building. The effect of such side yard shall be that the walls of buildings arranged as parallel structures shall be a minimum average of thirty (30) feet apart and that no canopy or balcony shall extend into such side yard for a distance greater than five (5) feet.
      Alamo Heights Zoning Code Appendix A § 10(D)(2)(c).


source: Caselaw Access Project

author: ANNE GARDNER, Justice.

license: Public Domain

text:
    Leighia HUTCHISON, Individually and as Representative of the Estates of Cody Edward Hutchison and Elizabeth Paige Hutchison and as Next Friend of Jonathan Thomas Hutchison, Laura Blevins, Donny C. Drennon, Randy Edward Hutchison, as Heir and Personal Representative to the Estates of Cody Edward Hutchison and Elizabeth Paige Hutchison, and Sharon Hutchison as Assignee, Appellants, v. Vincent PHARRIS d/b/a Murray & Massie Butane, Appellee.
    No. 02-03-006-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 6, 2005.
    Rehearing Overruled Feb. 3, 2005.

      Sydow, Kormanik, Carrigan & Ecker-son, Michael Sydow, Houston, Whitten-burg, Whittenburg, Schachter & Harris, P.C., Ana E. Estevez, Amarillo, for Appellants.
    Byrne, Townsend, Mead & Smitherman, David Townsend, Joseph Byrne, Dallas, for appellee.

      Panel B: CAYCE, C.J. and GARDNER, J.
   OPINION

ANNE GARDNER, Justice.

INTRODUCTION

This suit involves the tragic deaths of two children resulting from a fire that also injured three adults and destroyed a mobile home. Appellants Leighia Hutchison, individually, as next friend of Jonathan Hutchison, and as representative of the estates of Cody and Elizabeth Hutchison; Laura Blevins; and Donny Drennon appeal from a take-nothing judgment in favor of Appellee Vincent Pharris d/b/a Murray & Massie Butane (Murray & Massie). Appellants raise three issues, complaining that (1) there is legally or factually insufficient evidence to support the jury’s finding that Blevins and Hutchison were contribu-torily negligent in causing the fire or deaths; (2) the jury’s failure to find negligence of Murray & Massie in connection with the mobile home’s propane tank is against the overwhelming weight and preponderance of the evidence; and (3) the jury’s failure to award damages to Appellants is against the overwhelming weight and preponderance of the evidence.

FACTUAL BACKGROUND

A. The Fire

At about 9:00 a.m. on March 9, 1994, a fire engulfed and totally destroyed a double-wide mobile home at Lake Arrowhead, Texas. Laura Blevins and her husband had bought the mobile home in 1992. Laura and her husband had separated, and she had lived in the mobile home for a little more than a year at the time of the fire. The propane tank and line were already hooked up when they bought the trailer. Blevins did not know who had previously serviced the tank. When they first bought the mobile home, she had called John’s Tractor & Propane to check and service the tank.

Murray & Massie first made an “out-of-gas” call to the residence on November 2, 1993. Its gas serviceman performed a mo-nometer or “leak” test of the regulator, made a visual exam, reconnected the line, and went into the house and lit the pilot lights after filling the tank. Everything checked out. Murray & Massie again provided propane service and filled the tank on November 2, 1993, December 6, 1993, January 5, 1994, and January 21, 1994. When Murray & Massie was not paid for those last three deliveries, it quit delivering gas. When Blevins once again ran out of gas in March, shortly before the fire, she called Calvin Gas Company for service. Calvin Gas was the last dealer to fill Blevins’s propane tank before the fire. Calvin Gas filled the tank a few days before the fire but did not inspect the system or light the pilot lights.

At the time of the fire, the mobile home was occupied by Blevins, her son Donny, her daughter Leighia Hutchison, and Hutchison’s three children. Cody was three years of age, Jonathan was eighteen months old, and Elizabeth was five months old. Blevins had turned on the burners of her kitchen stove to warm the home when she returned from work around 4:00 a.m. There was no other heat, as the pilot lights to the furnaces had been unlit for several days.

Blevins had coffee and a couple of cigarettes and left the burners on when she retired to her bedroom after heating a bottle for her granddaughter, Elizabeth. Leighia awoke and took the three children into another bedroom to watch TV after the two boys had cereal. Donny was asleep in the third bedroom. Leighia went back to sleep with Elizabeth lying beside her as Jonathan and Cody left the bedroom, ostensibly to use the bathroom, shutting the bedroom door behind them. No one smelled gas.

Blevins heard the boys go into the kitchen. A few minutes later, Leighia heard Cody scream. Blevins came out of her bedroom and saw what she would later describe as a “fireball” above the stove that “swooshed” back toward the laundry room, knocking her down. The boys ran to Blevins, who crawled with Jonathan through thick smoke and heat to the front door and onto the porch. Cody ran back toward the bedroom, and she never saw him again. According to Blevins, an unidentified man drove up to the scene with his wife, who took Jonathan to safety while the man held Blevins back from re-entering the mobile home to find the other two children.

Blevins’s daughter, Leighia, testified that she awoke and opened the door to the hall, but it was filled with black smoke, so she went to the window and opened it, whereupon, she said, she was pulled through the window by Blevins and the same unidentified man, leaving five-month-old Elizabeth asleep next to the same window. Blevins’s son, Donny, awoke and opened his door to smoke and flames, with things falling down from the ceiling. He briefly saw Cody’s legs through the smoke, and then someone called Cody, who ran back the other direction. Donny broke a window with a chair and crawled through it. He did not try to re-enter the home as every room was on fire. Both Cody and Elizabeth died in the fire.

B. The Suit

Appellants originally sued the manufacturers of the mobile home and heating system and Calvin Gas Company for injuries suffered by the adults and wrongful death and survival actions for the death's of Cody and Elizabeth. Other defendants, including Murray & Massie, were later added to the suit. After several claims were settled, the case ultimately proceeded to trial in September 2002 against Murray & Massie as the sole remaining defendant.

Appellants’ theory of liability against Murray & Massie at trial was that the propane tank’s regulator, which was more than fifteen years old, had “worn out” and failed, resulting in increased pressure on the furnace control valve, which in turn allowed propane gas to leak into the home and to get ignited by the stove burners. Appellants claimed Murray & Massie was negligent and violated the DTPA in breaching a warranty to perform services in a workmanlike manner and in failing to replace the regulator or advise Blevins that the regulator was more than fifteen years old.

Following a week-long trial, the jury returned a verdict answering broad-form jury question number one “yes” as to whether negligence of Leighia Hutchison and Laura Blevins was a proximate cause of the occurrence in question, and “no” as to whether negligence of the furnace manufacturer, Calvin Gas Co., or Murray & Massie was a proximate cause of the occurrence. In answer to jury question number two, the jury apportioned the percentage of causation attributable to Leig-hia Hutchison at 30 percent, the percentage attributable to Laura Blevins at 70 percent, and the percentage attributable to Murray & Massie and the other two named parties at zero. The jury questions on damages were conditioned upon affirmative findings on the liability issues and, consequently, were not answered. Appellants appeal from a take-nothing judgment on the verdict after denial of their motion for new trial.

C. The Expert Testimony

1. The Investigation

Kenny Lemons, a fire investigator certified by the State, was a deputy with the Clay County Sheriffs office. He arrived at the scene as firemen were extinguishing the blaze, and took charge of the scene after the fire was out to determine the origin and cause of the fire. His purpose was to find the approximate area of origin of the fire. He questioned people at the scene, including firemen, a neighbor, the local fire chief, and Leighia Hutchison. He did not interview Blevins, but another fireman told him that she had described hearing a “whoosh” or explosion. The overwhelming majority of the wiring was destroyed, according to Lemons, so that he was not able to examine it.

The furnace from the laundry room had ended up outside the home, upside down. Lemons testified that he flipped it over and put it back into place beside the washer in what had been the laundry room. He described the furnace as an old unit with rusted parts, and he understood that it was “inoperable” and that the family did not even use it. In Lemons’s opinion, the fire’s most likely origin was the furnace, and the cause was “some kind of gas leak” in the area of the laundry room, based on the high damage to the beams and appliances in that area. He testified that the source of the leak was probably the bottom of the furnace. Once he determined that the fire was “accidental,” he did not investigate further in detail.

Lemons called David Duke, a lieutenant and fire and arson investigator with the Wichita Falls Fire Department, who arrived at about 11:00 a.m. and assisted Lemons in finding the older child’s body and in determining the origin and cause of the fire. When Lieutenant Duke arrived, the little girl’s body had already been recovered by another fireman in the front bedroom. The remaining child was found in the hallway outside another bedroom. Lieutenant Duke spent six and one-half hours at the scene, five hours of which were spent determining the origin and cause of the fire.

Witnesses had first seen the fire in the northwest corner of the trailer near the laundry room. Duke confirmed that the fire appeared to have burned longer and hotter in that area, which he explained was an indicator of the location of origin. He testified that the overwhelming majority of the wiring was destroyed, and he was unable to examine it. He was also unable to look at burn patterns or “vee” patterns because there was total destruction. The bottoms of the washer and dryer were heavily distorted. Duke and Lemons ruled out arson. Duke confirmed that both he and Lemons believed the cause was “some sort of gas leak” based on significant heating below the furnace. He believed that the bottom of the furnace ignited and was the seat of the fire. He agreed that, if a witness said a “fireball” came off the stove top and migrated back to the furnace, that would put the point of origin in the kitchen.

2. The Regulator

Michael Chaney, an independent certified fire investigator hired by Appellants, and Robert Ross, an expert consulting engineer, testified for Appellants about the purpose and function of the regulator on the propane tank. They explained that a propane tank has gas under pressure from 20 to 40 pounds per square inch (psi), depending on the temperature. The maximum pressure on the furnace control valve is specified by the furnace manufacturer at 14 inches “water column,” which equates to ⅜ psi. The manufacturer’s brochure warns that the control valve could be damaged if the pressure exceeds the range of 11 to 14 inches. Ross testified that, if the control valve is over-pressured beyond 6 or 7 psi, the furnace control valve will at some point leak gas. The only protection from pressure on the valve is the regulator on the tank. The regulator keeps the pressure at a safe level. The regulator on this tank was manufactured by Fisher, date stamped as manufactured “10-73.” It was undisputed that the fire occurred twenty-one years after the regulator was manufactured.

Ross described Fisher’s warnings in its manuals, including the risk of fire and explosion from old, unmaintained regulators. Since the 1970’s, he said, Fisher had issued materials to trade publications and dealer letters concerning the need to maintain regulators on tanks. In 1989, Fisher issued stronger warnings recommending replacement of regulators that were more than fifteen years old. A large insurer of propane dealers had likewise issued recommended standards for its insureds, recommending replacement of regulators over fifteen years old if they were exposed to elements or showed signs of deterioration.

Ross testified that these recommendations were made because the “seat” of the regulator will wear out and become subject to producing higher pressures. The seat is made of synthetic rubber that needs to be pliable, and it will become brittle with age, allowing debris, such as scale from the tank or piping, to enter the regulator and cause it to malfunction, permitting gas to enter the home. However, he additionally testified that a blocked vent from insects or freezing precipitation may also cause a regulator to fail if the vent is not either protected by a bonnet or hood or turned to face downward.

3. Standard of Care

Ross testified for Appellants on the standard of care of a reasonable propane dealer in servicing a propane tank. He testified that, for out-of-gas calls, the National Fire Protection Association promulgated the “NFPA-54” procedure requiring a dealer to shut off the system, check the appliance, pressure check, and only do business with a customer if the propane system complies. However, he acknowledged that The Texas Railroad Commission regulates propane gas dealers in Texas. NFPA-54 was not adopted in Texas by the Railroad Commission until after 1993, according to Ross, and yet Murray & Massie not only complied with but exceeded the NFPA-54 procedure when it serviced Blevins’s tank. He knew of nothing Murray & Massie did that was a violation of any then-existing regulation of the Railroad Commission. However, he said, Calvin Gas had not complied with NFPA-54 and should have made sure that the pilots were on and checked the pressure when they serviced the tank shortly before the fire, but they had refused. In Ross’s opinion, Calvin Gas was negligent.

Nevertheless, in Ross’s opinion, Murray & Massey should also have changed out the regulator because it was more than fifteen years old in 1993, and Murray & Massie was thus negligent, as was Calvin Gas. Ross further testified that the regulator, as shown in a photograph of the tank and system taken three years after the fire, had no bonnet or hood and had therefore been “exposed to the elements.” Additionally, the vent was not turned to point down, so that in his opinion, the vent was probably also blocked by freezing rain or insects. In his opinion, each dealer had some “blame.”

Vincent Pharris, owner of Murray & Massie, had been in the business of propane gas service since 1966 and was licensed by the Railroad Commission as a dealer in 1968. Pharris testified he knows and complies with the standard of care for reasonably prudent propane dealers in Texas. He replaces several hundred regulators a year, making a profit from those sold, but also giving regulators to customers when needed. Pharris testified a reasonably prudent propane dealer would not necessarily change out a regulator that was over fifteen years old; replacement is not mandatory and the Railroad Commission does not require it. He would test it, and replacement would be “automatic” if the pressure went over 14 inches and would not adjust down or would creep back up. In that case, he would recommend that the customer permit him to replace it and would refuse to service the system and report the customer to the Railroad Commission if he/she refused permission.

Pharris further testified he was not a Fisher dealer in 1993 and did not receive their dealer materials, but that he serviced tanks with Fisher regulators and knew Fisher recommended replacement of regulators more than fifteen years old. He also testified he told customers of Fisher’s recommendations and, if a gas deliveryman did not tell a customer of the manufacturer’s recommendation, in his opinion, it would have been “less than what he would expect.” Murray & Massie stipulated that its gas deliveryman did not advise Blevins of Fisher’s recommendation. Pharris testified he personally had not been out to the Blevins mobile home and he had not known the age of the regulator. However, the morning after the fire, Phar-ris said, he went to the scene and examined the regulator on the propane tank. It had a bonnet protecting it and good paint still on it. In his opinion, the regulator had not been exposed to the elements. The gas serviceman who had first serviced the tank for Murray & Massie testified that he always looked for any deterioration or damage, and if a regulator did not have a hood or bonnet, he would put one on.

James Peterson, a forensic mechanical engineer hired by the defense, testified that, in his opinion, Murray & Massie acted as a reasonably prudent propane gas dealer under the standards required in Texas. By complying with the NFPA-54 standard for leak-checking on out-of-gas calls, which had not yet been adopted in Texas at that time, he agreed with Ross, Murray & Massie exceeded the then-existing Texas standard. Peterson understood Murray & Massie’s gas deliveryman obtained a pressure reading of 11 inches when he serviced the tank in 1993, and in his opinion, the regulator never showed aberrant pressure.

Peterson testified that he sits on National Propane Gas Association committees involved with technical standards and safety, and those committees have never adopted or recommended replacement after fifteen years as a standard. He had also worked for one of the companies involved in establishing the fifteen-year recommendation. Peterson described the fifteen-year recommendation as merely a “consensus” number for replacement if a dealer had not been regularly doing leak checks or maintaining the system. It was not a safety standard adopted by the industry.

ANALYSIS

Jury question number one asked the jury: “Did the negligence, if any, of those named below, proximately cause the occurrence in question?” Below the question was a series of pattern jury charge definitions for “negligence,” “ordinary care” and “proximate cause,” followed by the instruction: Answer ‘Tes” or “No” for each of the following: “a. Leighia Hutchison; b. Laura Blevins; c. Evcon d/b/a The Coleman Company, Inc.; d. Calvin Gas Co., Inc.; e. Murray & Massie Butane.” To the right of each name listed was a blank in which the jury wrote “yes” for Leighia Hutchison and Laura Blevins, and “no” for Murray & Massie and the other two named companies. Jury question number two inquired as to the percentage of responsibility of the same parties. These jury questions were standard broad-form, pattern jury form questions that submitted both negligence and proximate cause, together with contributory negligence of Leighia Hutchison and Laura Blevins in the same question.

A. Contributory Negligence Finding

Appellants complain by their first issue that there is legally or factually insufficient evidence to support the jury’s findings in answer to jury question number one and two that any negligence of Leighia Hutchi-son or Laura Blevins caused the fire or the deaths of Elizabeth and Cody. Specifically, Appellants argue that only fire investigators certified by the Texas Commission on Fire Protection are authorized to determine the cause and origin of fires. Appellants contend that, of the four certified fire investigators who testified, two attributed the cause of the fire to a gas leak near the laundry room and the fourth, who testified on behalf of Murray & Massie, was of the opinion that the fire should have been categorized as “undetermined.” Appellants argue that there is no evidence or factually insufficient evidence that Blevins and Hutchison were negligent because no witness testified as to any negligence on their part, and the fire rapidly spread and totally destroyed the mobile home in fifteen to twenty minutes, during which time the adults would likely have been disoriented while attempting to escape. Appellants further argue that no expert testified that the fire was caused by Blevins or Hutchison.

1. Waiver

Murray & Massie first argues that Appellants waived their complaint as to the negligence or causation findings against Blevins and Hutchison by failing to object to the submission of those issues. We disagree. “A claim that the evidence was legally or factually insufficient to warrant the submission of any question may be made for the first time after ver-dict_” Tex.R. Civ. P. 279. It is well settled that an attack based on legal sufficiency of evidence to support a jury finding may be preserved for appeal in any of five ways: (1) objection to the charge; (2) motion for directed verdict; (3) motion to disregard the finding; (4) motion for judgment notwithstanding the verdict; or (5) motion for new trial. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex.1991). Indeed, a complaint of factual insufficiency of evidence not only may but must be made only after verdict by a motion for new trial to preserve error for appeal in a jury case. Tex.R. Civ. P. 324(b)(2). Appellants properly preserved error both as to legal and factual sufficiency of the evidence by raising those complaints after verdict in their motion for new trial. However, we conclude that any error in the jury’s finding of contributory negligence is harmless as discussed below.

2. Harmless Error

Appellants complain in their second issue that the jury’s finding of no negligence on the part of Murray & Massie is against the overwhelming weight and preponderance of the evidence. However, we likewise conclude that any error in this finding is harmless. We are persuaded by Murray & Massie’s harmless error argument that the jury’s refusal to find proximate cause as to any negligence on their part is sufficient to support the judgment. Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex.1980).

Whether Blevins and Hutchison were contributory negligent was submitted in jury question number one along with whether Murray & Massie was negligent, and the same question also inquired as to whether the negligence, if any, of those parties was a proximate cause of the occurrence. The jury’s answer of “no” as to Murray & Massie could have been based upon the jury’s refusal to find either that Murray & Massie was negligent or that any such negligence was a proximate cause of the occurrence. Additionally, the jury attributed “0” percentage of causation to Murray & Massie in answer to question number two. It is unnecessary to address the legal or factual sufficiency of evidence to support the jury’s findings of negligence of Blevins and Hutchison or the jury’s failure to find Murray & Massie negligent if we hold that Appellants failed to challenge the negative finding as to proximate cause or that the finding is supported by the evidence. Id. at 750; see Tex.R.App. P. 44.1(a)(1) (reversal precluded unless error complained of probably resulted in an improper judgment).

Appellants respond that an erroneous finding is harmless only if answers to “other” jury questions support the judgment whereas here, there were no findings of negligence and proximate cause in answer to “other” questions because those elements, along with contributory negligence, were all submitted in the same jury question. But the harmless error rule applies in cases such as this, where a broad-form jury question encompasses both the complained of finding and the other unchallenged findings. See, e.g., McRae v. Echols, 8 S.W.3d 797, 801 (Tex.App.-Waco 2000, pet. denied) (jury’s negative answer to broad-form submission of negligence and proximate cause in same question could have been based on finding that defendant’s negligence was not a proximate cause of collision); Carr v. Jaffe Aircraft Corp., 884 S.W.2d 797, 799 (Tex.App.-San Antonio 1994, no writ) (negative answer to question asking whether negligence of defendant proximately caused occurrence in question could have been based on failure to find either negligence or proximate cause); Yap v. ANR Freight Sys., Inc., 789 S.W.2d 424, 428 (Tex.App.-Houston [1st Dist.] 1990, no writ) (negative finding that defendant’s negligence was not a proximate cause could have been based on jury’s belief that any negligence was not a cause of event).

Appellants did not raise any issue in their original brief complaining of the jury’s refusal to find proximate cause as to any negligence of Murray & Massie. Absent such a complaint, the jury’s refusal to find proximate cause is sufficient to support the judgment, regardless of the contributory negligence finding and regardless of whether the jury properly failed to find Murray & Massie negligent. See Boatland, 609 S.W.2d at 750; Daves v. Comm’n for Lawyer Discipline, 952 S.W.2d 573, 580 (Tex.App.-Amarillo 1997, pet. denied) (alleged error held harmless when jury’s findings as to other issues are sufficient to support judgment); Harris v. Gen. Motors, Corp., 924 S.W.2d 187, 188 (Tex.App.-San Antonio 1996, writ denied) (failure to challenge no-damages finding rendered any error regarding liability findings harmless).

Although Appellants did not explicitly complain of the jury’s refusal to find proximate cause in their original brief, Murray & Massie raised and fully argued the evidence in their response to show that the jury’s finding of causation is not against the overwhelming weight and preponderance of the evidence. Appellants, in turn, addressed this evidentiary issue in their reply brief. Ordinarily, an issue raised for the first time on appeal in a reply brief is waived. However, the parties joined issue when Murray & Massie fully argued the evidence supporting the negative finding to proximate cause in its response brief and Appellants replied. Therefore, we will consider and address the issue as properly before us. If the jury’s refusal to find proximate cause as to any negligence of Murray & Massie is not against the overwhelming weight and preponderance of the evidence, then that negative finding is sufficient to support the judgment.

B. Proximate Cause

The elements of a negligence cause of action are a legal duty, a breach of that duty, and damages proximately caused by the breach. IHS Cedars Treatment Center of Desoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004) (citing D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002)). To establish proximate cause, it is a plaintiffs burden to prove two elements, cause-in-fact and foreseeability. Id. Cause-in-fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred. Id. at 799; Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex.1991). The jury’s negative answer to jury question number one as to Murray & Massie represented a refusal to find from a preponderance of the evidence that negligence of Murray & Massie was a proximate cause of the occurrence. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989).

1. Standard of Review

When a party challenges the factual sufficiency of evidence regarding a refusal to find on an issue upon which that party bore the burden of proof, the party must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); W. Wendell Hall, Standards of Review in Texas, 29 St. Mary’s L.J. 351, 484 (2002). We examine the entire record, first examining whether there is some evidence in favor of the challenged finding and, if so, whether the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. Dow, 46 S.W.3d at 241; Cain, 709 S.W.2d at 176. Because the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, we may not substitute our judgment for that of the jury simply because we may disagree with its findings. Herbert v. Herbert, 754 S.W.2d 141, 142 (Tex.1988); Jones v. Lurie, 32 S.W.3d 737, 740-41 (Tex.App.-Houston [14th Dist.] 2000, no pet.). We may not reverse simply because we conclude that the evidence “preponderates toward” an affirmative answer. Herbert, 754 S.W.2d at 144. We may reverse only when the “great weight” of the evidence supports an affirmative answer. Id.

2. Causation Evidence

Appellants contend that the fire investigators certified by the State each testified that the fire originated at the furnace control valve. We agree that four expert witnesses testified who were certified as fire investigators, but we disagree with Appellants’ characterization of their testimony. Appellants argue that Deputy Kenneth Lemons and Lieutenant David Duke both testified the fire was caused by a propane leak at the furnace control valve. But neither Duke nor Lemons mentioned the furnace control valve. Appellants’ expert, Michael Chaney, was also a certified fire investigator, formerly with the Wichita Falls Fire Department. Chaney reviewed Lemons’s and Duke’s reports, did his own investigation of the scene of the fire, which still stood unchanged after two years, and examined the materials in storage and the depositions of witnesses and reports of other experts. Chaney agreed with Lemons and Duke that the cause of the fire may have been a gas leak in the laundry room. He understood that there were open flames in the kitchen and that a witness saw a “fireball.” He placed the origin of the fire at the stove. He theorized that the heated air in a cold room would draw the gas to the stove, where it ignited and then shot back toward the source. Chaney also explained that the gas had mercaptan added to provide a very “stinky” odor, but testified that the adults may not have smelled it if they were in other rooms and the leak developed suddenly.

Of the four certified fire investigators who testified, only Michael Chaney addressed any potential role of the furnace control valve. While he reviewed another expert’s opinion that the “cock” in the control valve was the “weak link,” he did not know where the control valve was, could not say how the control valve failed, and would defer to another expert on that subject. And failure of the control valve was not in issue as to any liability of Murray & Massie, in any event.

More importantly, Chaney addressed the role of the regulator on the propane gas tank, which was the specific basis for Appellants’ theory of negligence against Murray & Massie. In his opinion, the probable cause of the fire was leaking gas from some point of ignition in the home. In his further opinion, the most likely cause of the leak was that the Fisher regulator that was outside the age of replacement had failed, allowing high pressure to come out of the tank, and then the control valve had failed, so that gas leaked inside the home.

However, Chaney acknowledged that he is not a regulator expert. He stated that Appellants hired a different expert to test the regulator, and he would defer to another witness who would talk about the regulator. He did not know how the regulator would have failed. There could be a number of reasons. He would stay out of areas of testimony about problems with the regulator.

The fourth certified fire investigator who testified was Murray & Massie’s expert, Jean McDowell. McDowell is a forensic engineer and a Fellow in the Academy of Forensic Science and serves on the LP Gas Advisory Commission to the Texas Railroad Commission, advising it on standards and safety regarding liquid propane gas. He visited the site of the fire in 1995, and assisted in collecting, tagging, and storing evidence. If a gas leak coupled with the stove as the source of the ignition caused the fire, as theorized by Appellants, in his opinion there would have been an explosion, but he found no evidence of an explosion at the site. However, there was not enough evidence left from the fire to determine the origin and cause of the fire, in his opinion. There was not enough wire left to determine whether it was electrical, nor could he determine whether the fire might have started in the kitchen. The fire itself had destroyed the evidence. In McDowell’s opinion, the origin and cause of the fire should have been classified as “undetermined.”

Appellants seem to argue that only certified fire investigators are qualified to express opinions on the cause and origin of fires. But the closest that two of the certified fire investigators, Lemons and Duke, came to identifying the cause of the fire as being connected with the regulator was in expressing the opinion that it was some kind of gas leak originating in the area of the furnace in the laundry room. The third certified fire investigator, Chaney, acknowledged he was not qualified to commit to a professional opinion regarding the control valve or regulator. The fourth, McDowell, was of the opinion that the cause could not be determined from the evidence. We are aware of no case law holding that only fire investigators certified by the State of Texas may testify regarding the cause and origin of a fire. Moreover, Appellants do not claim that those experts’ testimony overwhelmingly established that the regulator was a cause-in-fact of the fire.

Other experts specifically testified about the regulator and Murray & Massie’s role. Robert Ross, Appellants’ standard of care expert, testified for Appellants that, in his opinion, the probable cause of the leak and fire was that the regulator malfunctioned because of a blocked vent exposed to freezing rain and insects and facing the wrong way, and because the regulator was old and the seat had become brittle, allowing gas to leak into the home. However, Ross never tested the regulator. Ross acknowledged that, when the regulator in question was tested three years after the fire, it never delivered enough pressure to cause any damage to the control valve or house.

Murray & Massie presented two experts whose testimony directly controverted Appellants’ liability theory. James Peterson, a licensed professional engineer, had worked for Fisher and other manufacturers in design and management and was familiar with regulators for propane tanks and regulator-related incidents. Peterson analyzed the regulator in question for the defense and reviewed the depositions and reports of the other experts. Peterson explained how the Fisher 922 regulator worked and described possible causes of failure, none of which occurred here, in his opinion. Peterson testified as to tests he-performed on the regulator:

Q. Mr. Peterson, I’m going to show you Exhibit 1. Would you take a look at that and tell me what that exhibit depicts?
A. Oh, yes. Those are what I would call my field notes when we were conducting the tests at Mr. Dunn’s office. Q. And do they indicate what pressures you were able to obtain?
A. Yes.
Q. What’s the significance of the pressures you found?
A. Those pressures are slightly higher than what the factory would have set them at. They’re not abnormally high. They’re slightly high, but nothing that should cause any damage to any downstream components.

Peterson further testified, based upon his examination of the regulator, that it was generally in good condition. In his opinion, the regulator was not a cause of the fire. Additionally, as we have noted, Jean McDowell testified the destruction of evidence at the scene was so great that it precluded any definitive conclusion as to the cause and origin of the fire. And as Appellee points out, McDowell also provided testimony that disputed Appellants’ theory of a flash fire that created a “fireball” as described by Laura Blevins, which formed the basis for their theory that gas accumulated and ignited over the stove. McDowell testified he was unable to replicate such an explosion when he properly vented the mock-up of the trailer for his tests. He further testified:

A. [W]hen the mother woke up ... [,] she said her fight didn’t work. Also, when the door was opened, there was just black smoke. Those two things are not indicative of a flash fire.
Q. Why is that?
A. Well, a flash fire is just that, a very short-term fire that does not have sufficient longevity to ignite solid combustibles .... But when you’ve got an electrical system damaged, this is a fire that has penetrated into the structural members of the frame.... I don’t know if it ran through the wall or through the ceiling to get to the other end of the trader. But I think the reason the fight didn’t work, it’s more likely than not the fire had already interrupted the circuit.

Appellants urge that this case is like Hickson v. Martinez, 707 S.W.2d 919 (Tex.App.-Dallas 1985), writ ref'd n.r.e., 716 S.W.2d 499 (Tex.1986), in which the Dallas Court of Appeals held that a jury finding that the defendant doctor did not fail to properly diagnose, treat, or stabilize the patient was contrary to the overwhelming weight of the evidence. Id. at 924. In Hickson, four medical experts testified that in their opinions the defendant doctor acted contrary to a reasonably prudent physician and the only defense expert testified that he did not think the defendant doctor acted improperly in transferring the patient to another hospital. Id. Unlike the testimony of the defense expert in that case, the defense experts’ opinions here went to the heart of Appellants’ claim of negligence against Murray & Massie that depended upon the regulator being a cause of the fire. Peterson’s testimony directly contradicted Appellants’ experts’ opinions that failure, malfunction, or age of the regulator was the cause of the fire, as well as their theory that the fire was a flash fire from ignition of gas that consumed the home in minutes. Murray & Massie’s regulator experts countered their own experts’ opinions that a fifteen-year old regulator represented a hazard and needed to be replaced as well as whether the regulator was a cause of the fire.

Like many medical malpractice suits, this case comes down to a “battle of the experts.” See Cruz ex. rel. Cruz v. Paso Del Norte Health Found., 44 S.W.3d 622, 646 (Tex.App.-El Paso 2001, pet. denied) (holding refusal to find nurse negligent not against overwhelming weight of evidence where opinions of experts for both parties conflicted); see also Magee v. Ulery, 993 S.W.2d 332, 336 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (holding failure to find physician negligent not against overwhelming weight where jury could have believed defense expert that diagnosis was erroneous but not negligent); Crawford v. Hope, 898 S.W.2d 937, 942-43 (Tex.App.-Amarillo 1995, writ denied) (noting “battle of experts” existed in suit against physician for prescribing ineffective medication; weight of evidence was for jury and failure to find proximate cause not manifestly unjust or clearly erroneous). In a “battle of competing evidence,” it is the sole prerogative of the jury to determine the weight and credibility of the witnesses, the obligation of the respective advocates to persuade them, and “our obligation to see that the process was fair and carried out according to the rules.” Cruz, 44 S.W.3d at 646. We cannot substitute our judgment for that of the jury simply because we may disagree with the jury’s findings. Jones, 32 S.W.3d at 743 (citing Herbert, 754 S.W.2d at 142). As fact finder, the jury is authorized to disbelieve expert witnesses. See Waltrip v. Bilbon Corp., 38 S.W.3d 873, 882 (Tex.App.-Beaumont 2001, pet. denied). Here, the jury believed Murray & Massie’s experts that the regulator did not cause the fire, rather than the experts offered by Appellants. We are unable to conclude that the jury’s refusal to find that any negligence of Murray & Massie was a proximate cause of the occurrence was against the overwhelming weight and preponderance of the evidence.

CONCLUSION

The jury’s negative answer to jury question number one could have been based upon a refusal to find that any negligence of Murray & Massie was a proximate cause of the fire and the injuries and deaths for which Appellants sued. The additional finding that the percentage of causation attributable to Murray & Massie was “0” demonstrates that is exactly what the jury refused to find. The negative answer is not so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust and is sufficient to support the judgment. Therefore, even if the evidence is legally or factually insufficient to support the finding that Blevins and Hutchison were contributorily negligent, any error is harmless, and we accordingly overrule Appellants’ first issue. Likewise, any refusal to find that Murray & Massie was negligent, even if contrary to the overwhelming weight of the evidence, is harmless. We thus overrule Appellants’ second issue. And because the jury’s refusal to find proximate cause supports the take-nothing judgment, it is unnecessary to reach Appellants’ third issue complaining that the jury’s failure to award damages to Appellants is against the overwhelming weight and preponderance of evidence. Tex.R.App. P. 47.1. We affirm the judgment of the trial court.

      . Appellants and Intervenors Randy Edward Hutchison, as heir and personal representative of the Estates of Cody and Elizabeth, and Sharon Hutchison, as assignee, joined in this appeal and adopted in all respects the brief of the above-named Appellants.

      . Blevins first testified that she tried to call Murray & Massie but its office was closed for vacation. However, she admitted that she had not paid Murray & Massey for its latest three deliveries and still owed it money when she called Calvin Gas.

      . A summary judgment in favor of Murray & Massie was reversed and the cause was remanded as to it in Hutchison, et al. v. Vincent Pharris d/b/a Murray & Massie Butane, No. 2-99-347-CV (Tex.App.-Fort Worth June 14, 2001, pet. denied).

      . The jury answered "no" to jury question number three as to whether failure, if any, of Murray & Massie to replace the regulator was a failure to perform services in a good and workmanlike manner and a producing cause of the occurrence in question. Consequently, the jury did not reach question number four, inquiring whether such failure was committed knowingly. Appellants do not complain of the jury’s failure to find in their favor on these issues.

      . See Comm. On Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges — General Negligence & Intentional Personal Torts PJC 4.1, 4.3 (2003).

      . Appellants contend that the minimum standards for fire investigation personnel are established by the Texas Commission on Fire Protection. See Tex. Gov’t Code Ann. § 419.025 (Vernon 1998). As promulgated by that Commission, the current minimum standards require an individual to be certified as a fire investigator by the State to determine the cause and origin of fires. Texas Comm'n on Fire Protection, Standards Manual for Fire Protection Personnel § 431.201(d), http:/Avww.tcfp.state.tx.us/standards/stan-dards — manual/print—rule. asp?rule=431.201.

      . As Murray & Massie points out, the jury was asked whether Blevins or Hutchison’s negligence, if any, proximately caused the “occurrence,” not the "fire.” Moreover, the jury sent out a question asking for a definition of " 'occurrence?’ as it relates to negligence? (in question # 1) fire deaths or -?” The court instructed the jury: "... you axe advised that 'occurrence' in Question # 1 is the event, the deaths or the injury, if any." (emphasis added). Therefore, it is clear from the record that the jury did not find that any negligence of Blevins and Hutchison caused the fire.

      . Asserting the legal sufficiency complaint only in their motion for new trial entitles Appellants only to a remand, rather than rendition, if sustained. See In re W.E.C., 110 S.W.3d 231, 237 n. 3 (Tex.App.-Fort Worth 2003, no pet.) (citing Horrocks v. Tex. Dep’t of Transp., 852 S.W.2d 498, 499 (Tex.1993)).

      . Appellants did not object to the charge, and do not complain on appeal, as to submission of jury question number one in broad form because one element or theory submitted lacked evidentiary support. Therefore, we express no opinion as to whether this submission may have prevented proper presentation on appeal by improperly commingling theories, elements, or defenses lacking legal (or factual) evidentiary support. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex.2000) (reversing judgment based on answer to jury question improperly combining valid and invalid theories where timely and proper objection was made); see also Harris County v. Smith, 96 S.W.3d 230, 233 (Tex.2002) (holding error in submitting damage question combining some elements supported by legally insufficient evidence was reversible where proper objection was made to broad-form submission).

      . See also Schneider v. Schneider, No. 2-02-075-CV, 2004 WL 254247, at *2 (Tex.App.-Fort Worth Feb. 12, 2004, pet. struck)(not designated for publication) (no-evidence complaint as to ground for divorce based on abandonment harmless where other unchallenged grounds supported judgment); Tollen v. Benson, No. 08-01-00006-CV, 2002 WL 244823, at *3 (Tex.App.-El Paso Feb. 21, 2002, pet. denied) (not designated for publication) (any error in submission of comparative negligence of plaintiff and finding of 100 percent responsibility harmless absent challenge to jury's negative answer regarding defendant's negligence or proximate cause).

      . Bankhead v. Maddox, 135 S.W.3d 162, 163-64 (Tex.App.-Tyler 2004, no pet.) (citing Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 424 (Tex.1996)); Barnes v. SWS Fin. Servs., Inc., 97 S.W.3d 759, 765 (Tex.App.-Dallas 2003, no pet.); JHC Ventures, L.P. v. Fast Trucking, Inc., 94 S.W.3d 762, 773, n. 9 (Tex.App.-San Antonio 2002, no pet.); see also Penley v. Westbrook, 146 S.W.3d 220, 226 (Tex.App.-Fort Worth, 2004, pet. filed); Tex.R.App. P. 38.1, 38.3.

      . See Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 7-8 (Tex.App.-San Antonio 2004, pet. denied) (considering issue as properly presented where fully briefed and responded to by both parties, citing McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex.1964)).

      . Robert Ross, Appellants’ own standard of care expert, noted that neither Duke nor Lemons reported that the leak originated in the furnace control valve.


author: SANDEE BRYAN MARION, Justice.

text:
    Maria Cristina Brittingham Sada de AYALA; Barbara Brittingham Sada de Powers; Angel Eduardo Marroquin Brittingham; Guillermo Marroquin Brittingham; Mauricio Marroquin Brittingham; Juan Carlos Lobeira-Brittingham; Maria Cristina Lobeira Brittingham; Daniela Lobeira Brittingham; Daniel Milmo Brittingham; Brandon Milmo-Brittingham; and Roberto Tijerina, Executor of the Dominant Estate of Juan Roberto Brittingham-McLean, Deceased, Appellants, v. Kevin Michael MACKIE, Named Administrator of the Ancillary Estate of Juan Roberto Brittingham-McLean, Deceased, Appellee.
    No. 04-04-00302-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 12, 2005.

      W. Wendell Hall, Rosemarie Kanusky, Fulbright & Jaworksi L.L.P., San Antonio, for appellants.

      Bruce J. Werstak, III, Sames & Wers-tak, L.L.P., Homero G. Martinez, Homero G. Martinez, P.L.L.C., Alison White Haynes, Kenneth A. Vails, Wilson, Trevino, Freed, Vails & Trevino, P.L.L.C., Laredo, Jason M. Davis, Law Office of Jason M. Davis, P.C., San Antonio, Kathleen S. Rose, Michael W. Perrin, King & Spauld-ing, L.L.P., Houston, Vincent L. Marable, III, Paul Webb, P.C., Wharton, for appel-lee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

This is the third appeal from a probate proceeding involving the assets of a Mexican decedent, and a dispute between his surviving spouse and some of his children and grandchildren. In the first appeal, a panel of this court determined the probate court had subject matter jurisdiction, but reversed the court’s order appointing Ana Maria Brittingham as executrix and remanded the cause. See Ayala v. Brittingham, 131 S.W.3d 3 (Tex.App.-San Antonio 2003, pet. filed). In the second appeal, a panel of this court determined the probate court’s exercise of personal jurisdiction over some of the Mexican defendants was unreasonable and did not comport with fair play and substantial justice. See Brittingham-Sada de Powers v. Ancillary Estate of Brittingham-McLean, No. 04-01-00389-CV, 158 S.W.3d 518, 2004 WL 2599405 (Tex.App.-San Antonio Nov.17, 2004, no pet. h.). This appeal arises from the probate court’s appointment of a successor administrator, following our remand of the first appeal. We affirm the order denying Roberto Tijerina’s application to name him as successor executor; however, because the order appointing Kevin Mackie did not set a bond, we reverse that order and remand.

BACKGROUND

Juan Roberto Brittingham-McLean, a resident of Mexico, died in Mexico on January 14, 1998. The two executors named in Mr. Brittingham’s will, Harold Turk and Raul Hernandez-Garcia, submitted the will for probate in Mexico on January 28, 1998. Turk and Hernandez-Garcia later resigned as executors, and the Mexican probate court appointed Jose Flores Zaher Diab as successor executor.

In February 1999, Mr. Brittingham’s widow, Ana Maria Brittingham (“Ana Maria”) sued Mr. Brittingham’s estate in Mexico, seeking to set aside her marital agreement with Mr. Brittingham and asserting a community property claim to assets of Mr. Brittingham’s estate. The Mexican court denied Ana Maria’s claim.

In August 2000, Ana Maria filed an application for ancillary probate of Mr. Brittingham’s will in Webb County, Texas. The Texas probate court admitted the will to probate and issued ancillary letters testamentary naming Ana Maria as executrix and requiring her to file a bond. This court reversed the probate court’s order appointing Ana Maria as executrix. See Ayala, 131 S.W.3d at 8-10. John R. Brittingham Aguirre (“Aguirre”) later intervened in the Texas probate action.

Diab filed an application to be appointed representative of the Texas estate. However, Diab later resigned as executor in Mexico, and he withdrew his application in Texas. The Mexican court appointed Roberto Tijerina as successor executor of the Mexican estate.

Tijerina then filed an application in the Texas proceeding to name him as successor executor of the ancillary estate. At the hearing on Tijerina’s application, Aguirre objected to Tijerina’s appointment, arguing Tijerina was not qualified or suitable to act as representative. Aguirre did not suggest the name of another successor; instead, he asked the probate court to name a qualified individual of good character residing in Webb County as successor. Following the hearing, the court denied Tijerina’s application and appointed Kevin Maekie as successor executor of the ancillary estate. After this appeal was perfected, the court clarified its earlier order, and named Maekie as administrator.

ANALYSIS

On appeal, the appellants raise the following issues: (1) there is no need for continuing administration of the ancillary estate; (2) Tijerina was entitled to appointment as successor executor under Probate Code section 105; (3) the order appointing Maekie ancillary administrator is void; and (4) Maekie is not authorized to take any action on the estate’s behalf. We must uphold the court’s determinations unless the record clearly shows an abuse of discretion. Davis v. Cayton, 214 S.W.2d 801, 804 (Tex.Civ.App.-Amarillo 1948, no writ) (determining whether there is a necessity for continued administration); Olguin v. Jungman, 931 S.W.2d 607, 610 (Tex.App.-San Antonio 1996, no writ) (determining whether an individual is “suitable” to be appointed a successor representative).

When, as here, a duly appointed representative of the estate resigns or is removed, the court may appoint a successor if there is a continuing necessity for a successor representative and administration of the estate. See Tex. Prob.Code Ann. §§ 220(a), 223 (Vernon 2003). The necessity for a continued administration must be presumed in every case, unless the party opposing administration proves no necessity exists. Davis, 214 S.W.2d at 804.

At the April 6, 2004 hearing on Tijer-ina’s application, Tijerina said he considered this to be a “complicated estate administration” because of the pending litigation between family members, and he agreed that the court had “jurisdiction right now” to appoint a successor. Aguirre asserted that because of various legal proceedings, including appeals before the Texas Supreme Court and this court, the appointment of a successor representative for the estate was necessary. No evidence was offered to rebut the presumption that a continuing need for administration existed. We conclude the probate court did not abuse its discretion in determining there was a continuing need for administration and the need for appointment of a successor representative was immediate.

Appellants next assert Tijerina was entitled to appointment as successor executor pursuant to Texas Probate Code section 105, which provides as follows:

When a foreign will is admitted to ancillary probate in accordance with Section 95 of this Code, the executor named in such will shall be entitled to receive, upon application, letters testamentary upon proof that he has qualified as such in the jurisdiction in which the will was admitted to probate, and that he is not disqualified to serve as executor in this State. After such proof is made, the court shall enter an order directing that ancillary letters testamentary be issued to him. If letters of administration have previously been granted by such court in this State to any other person, such letters shall be revoked upon the application of the executor after personal service of citation upon the person to whom such letters were granted.

Tex. Prob.Code Ann. § 105 (emphasis added).

Appellants assert section 105 makes the appointment of the foreign executor, even one not named in the will, mandatory, unless that person is otherwise disqualified. Appellants argue that because section 105 does not contemplate a situation such as the one presented here — where no successor is named in the will — this court should read into section 105 a requirement that the executor named in a foreign will as well as any foreign successor executors shall be entitled to receive letters testamentary. We need not determine whether a foreign successor who is not named in the will is entitled to appointment under section 105 because, as appellants concede on appeal, whether Tijerina’s application is viewed under section 77 or section 105, he must still meet the requirement that he be qualified. See id. §§ 77 (“Order of Persons Qualified to Serve”); 105 (requiring that foreign executor not be disqualified).

Under Probate Code section 78, an individual whom the court finds “unsuitable” is not qualified to serve as an executor or administrator. See id. § 78(e). The Probate Code does not define “unsuitable,” and case law has recognized no comprehensive, discrete explanation delineating attributes that make someone unsuitable under the Probate Code. See Boyles v. Gresham, 158 Tex. 158, 309 S.W.2d 50, 53-54 (1958) (declining to define “unsuitable”); Olguin, 931 S.W.2d at 610; Dean v. Getz, 970 S.W.2d 629, 633 (Tex.App.-Tyler 1998, no pet.). “It would appear, therefore, that the legislature intended for the trial court to have wide latitude in determining who would be appropriate for the purpose of administering estates.” Dean, 970 S.W.2d at 633.

Tijerina, who is an attorney in Mexico, admitted he had prepared contracts for companies represented by one of the Brit-tingham appellants, Juan Carlos Lobeira; Mr. Lobeira was the first to approach him about acting as executor of the Mexican probate estate; and all of the Brittingham appellants supported his appointment as such. Aguirre pointed out to the court that Tijerina’s application for appointment as executor of the Texas probate estate was supported by the very individuals, the Brittingham appellants, who were the defendants in the underlying lawsuit. Aguirre expressed his concern that an executor supported by these defendants may be influenced to simply dismiss the underlying lawsuit. Aguirre argued that any individual proposed by any of the parties, himself or the Brittingham appellants, would have “unclean hands.” Therefore, according to Aguirre, the interests of the estate were best protected by the appointment of an individual of the court’s choosing. Based on this record, we conclude the probate court did not abuse its discretion in denying Tijerina’s application for appointment as successor executor.

Finally, appellants assert the order appointing Mackie ancillary administrator is void, and that Mackie is not authorized to take any action on the estate’s behalf. Appellants contend the order appointing him is void because Mackie did not file an application to be appointed successor representative, Mackie was appointed in the absence of notice and a hearing, and the order did not establish a bond. Because the probate court determined there was an immediate need for the appointment of a successor representative, the court was authorized to make such an appointment without citation or notice. See Tex. Prob.Code Ann. §§ 179, 220(a), 223. Nevertheless, appellants received notice. At the April 6th hearing, Aguirre objected to Ti-jerina’s appointment and he asked the court to appoint a disinterested representative. The Brittingham appellants raised no objection to Aguirre’s request. Tijerina complained that Aguirre’s request was untimely, but the court did not rule on his objection. Neither Tijerina nor the Brit-tingham appellants requested a hearing on the qualifications of any other person if the court was inclined to grant Aguirre’s request. Instead, the parties asked the court for time to mutually agree on a representative if the court did not appoint Tijerina. Appellants also did not object to Mackie’s later-filed Motion to Clarify Order and For Letters of Administration.

Appellants also complain that the order appointing Mackie did not set a bond, and Mackie is not qualified to serve as administrator because he has not filed a bond. We agree with appellants that the court was required to set a bond in its order appointing Mackie successor administrator. See §§ 195, 194, 181(c). We disagree with appellants’ argument that the court’s failure to set a bond renders the order void.

“A judgment is void only when it is apparent that the court rendering the judgment had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court.” Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990) (per curiam). “Errors other than lack of jurisdiction, such as ‘a court’s action contrary to a statute or statutory equivalent,’ merely render the judgment voidable so that it may be ‘corrected through the ordinary appellate process or other proper proceedings.’ ” Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex.2003) (quoting Mapco) (order divesting respondent of his separate property voidable, not void); In re Masonite Corp., 997 S.W.2d 194, 198 (Tex.1999) (orig. proceeding) (order transferring venue that was contrary to the pleadings, the facts, and the law was voidable, not void); but see Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334, 337 (Tex.2000) (per curiam) (order granting temporary injunction that did not satisfy Rule 683’s requirement for a bond was subject to being declared void). Therefore, the order appointing Mackie is voidable, and not void.

CONCLUSION

We conclude the county court did not abuse its discretion in denying Tijerina’s application for appointment as successor executor; therefore, we affirm that order. Although we also conclude the court did not abuse its discretion in appointing Mackie as administrator of the estate, the county court failed to set a bond as required by the Texas Probate Code. Therefore, we reverse the order appointing Mackie, and remand the cause to the county court for further proceedings.

      . In their first issue, appellants assert Aguirre has no standing to object to Tijerina's application; therefore, Tijerina's application was unopposed and the probate court erred in denying the unopposed application. Even if Aguirre had no standing to object, we disagree with appellants’ assertion that an unopposed application must be granted. A trial court must still determine whether an applicant is qualified to serve. See Tex. Prob.Code Ann. §§ 77(h), 78(e), 105.

      . On appeal, appellants insist they are not challenging Mackie’s qualifications to serve as administrator of the estate. Instead, they challenge only the procedure by which he was appointed, and our opinion is limited to that challenge alone.

      . The court gave the parties from April 6th to April 12th to agree on an administrator, after which date the court said it would make its ruling on April 13th.