author: DON H. REAVIS, Justice. JAMES T. CAMPBELL, Justice,

text:
    James GUEST and Anita Guest, Appellants, v. Austin L. DIXON, M.D., Appellee.
    No. 07-03-0189-CV.
    Court of Appeals of Texas, Amarillo.
    Jan. 7, 2004.

      Sharon McCally, Daryl L. Moore, Sto-rey, Moore & McCally, P.C., Teresa A. Lynn, Michael Y. Saunders, Helm Pleteher Bowen & Saunders, Houston, for appellants.
    Jim Hund, Hund & Harriger L.L.P., Lubbock, for appellee.
    Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

      . James Guest died on August 20, 1997. A suggestion of death and notice that suit would be prosecuted by his surviving widow was filed on September 15, 1997.

   OPINION

DON H. REAVIS, Justice.

By two issues, appellant Anita Guest appeals from an order dismissing her suit alleging medical negligence against appel-lee Austin L. Dixon, M.D. By her first issue, she contends the trial court erred in dismissing the case for want of prosecution, and by her second issue, contends the trial court erred in refusing to apply the “conscious indifferent” [sic] standard in resolving the motion to dismiss for want of prosecution. Based on the rationale expressed herein, we dismiss the appeal for want of jurisdiction.

This Court is obligated to determine, sua sponte, its jurisdiction to hear an appeal. Welch v. McDougal, 876 S.W.2d 218, 220 (Tex.App.-Amarillo 1994, writ denied); see also New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex.1990). On August 30, 1995, Guest filed suit to recover damages allegedly caused by the medical malpractice and negligence of Austin L. Dixon, M.D. Thereafter, on July 24, 2002, Dixon filed his motion to dismiss for want of prosecution pursuant to Rule 165a of the Texas Rules of Civil Procedure, and Guest filed her response on December 27, 2002. After a hearing was conducted, on January 25, 2003, the trial court signed its order dismissing Guest’s action for want of prosecution. The order does not recite any specific findings or grounds for the dismissal. Then, on February 26, 2003, represented by the same law firm and a member from a different firm, Guest filed a motion to reinstate the action per Rule 165a(3). Following a hearing, the trial court signed an order on April 20, 2003, denying Guest’s motion to reinstate. She filed her notice of appeal on April 24, 2003, referencing the order of dismissal and the order denying her motion to reinstate. On May 2, 2003, she filed an amended notice of appeal to correct the referenced date on the order of dismissal.

A notice of appeal must be filed within 30 days after a judgment or final order is signed unless a post-judgment motion is timely filed, thereby extending the deadline to 90 days. Tex.R.App. P. 26.1. Although a timely filed motion to reinstate a proceeding dismissed for want of prosecution filed pursuant to Rule 165a(3) of the Texas Rules of Civil Procedure serves to extend the deadline for filing a notice of appeal, the motion to reinstate filed by Guest was not verified by her or her attorney. By letter dated November 21, 2003, this Court notified Guest of the defect and requested that she show cause why the appeal should not be dismissed for want of jurisdiction. She filed a response to our letter alleging the affidavit of a former attorney submitted with the motion to reinstate was sufficient to satisfy the requirements of Rule 165a. Dixon replied to Guest’s response alleging that the affidavit accompanying the motion to reinstate did not constitute verification. We agree with Dixon.

Guest relies on 3V, Inc. v. JTS Enterprises, Inc., 40 S.W.3d 533 (Tex.App.-Houston [14th Dist.] 2000, no pet.), in support of her contention that the separate affidavit of her former counsel which was submitted along with the motion to reinstate constituted verification of the motion for purposes of Rule 165a. However, for the reasons discussed below, 3V, Inc., is not applicable.

In 3V, Inc., the motion of the corporate movant was supported by affidavits of two of its attorneys. Although the affiants were not attorneys of record in the Texas proceeding, according to the affidavits, they had knowledge of matters relevant to the Texas proceeding by virtue of their representation of the client outside Texas. Being a corporate movant, verification could only be accomplished by the act of a person or persons with knowledge acting on behalf of the movant. Also, the attorney-client relationship is an agency relationship. See Texas Employers Insurance Ass’n v. Wermske, 162 Tex. 540, 349 S.W.2d 90, 93 (1961). Accordingly, the affidavits of the attorneys constituted verification for 3V, Inc., as a corporate mov-ant. Here, however, the affidavit of one of Guest’s 'former attorneys does not amount to verification because the agency relationship had ceased to exist.

Further, the alleged verification is incomplete. By his affidavit, Guest’s former attorney covered only the case history from May 1996 to March 2001, when he left the firm. As a result, he did not address approximately 24 months of case history. Finally, by his response to the affidavit of Guest’s former attorney, Dixon filed an objection to the affidavit and orally argued his objection at the hearing on Guest’s motion to reinstate. Among other grounds, citing Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105 (Tex.1985), Dixon objected to the affidavit because Guest had not complied with his discovery request filed in response to the affidavit of Guest’s former attorney.

We conclude that because the motion to reinstate was not properly verified, it did not operate to extend the deadline for filing the notice of appeal beyond the 30 days provided in Rule 26.1 of the Texas Rules of Appellate Procedure. See McConnell v. May, 800 S.W.2d 194 (Tex.1990); see also Butts v. Capitol City Nursing Home, 705 S.W.2d 696, 697 (Tex.1986). Accordingly, we do not have jurisdiction to consider the appeal and must dismiss the proceeding.

Accordingly, the appeal is dismissed for want of jurisdiction.

CAMPBELL, J., dissenting.

JAMES T. CAMPBELL, Justice,

dissenting.

Disagreeing with my colleagues that we lack jurisdiction over this appeal, I respectfully dissent from its dismissal.

The rule stated in McConnell v. May, 800 S.W.2d 194 (Tex.1990) (orig. proceeding), by which an unverified motion to reinstate filed under Rule 165a of the Rules of Civil Procedure is held not to extend the due date of the notice of appeal under Rule 26.1(a) of the Rules of Appellate Procedure, seems to me an exception to the general policy that disfavors the defeat of appellate jurisdiction by procedural defects and irregularities. See, e.g., Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997).

In at least one other context, the case law draws a distinction between the effect of a procedural error on the appellate timetable and other consequences of the error. In Tate v. E.I. DuPont de Nemours & Co., Inc., 934 S.W.2d 83, 84 (Tex.1996), the Supreme Court held that the failure to pay the required filing fee with a motion for new trial may forfeit the mov-ant’s opportunity to have the motion considered by the trial court, but it does not invalidate the motion’s filing for purposes of extending the due date for appeal. Similarly, in Marathon Corp. v. Pitzner ex rel. Pitzner, 55 S.W.3d 114, 125 (Tex.App.-Corpus Christi 2001), rev’d on other grounds, 106 S.W.3d 724 (Tex.2003), the court held that an appellant’s failure to pay the filing fee with a motion for new trial until after the motion was overruled by operation of law and the trial court lost plenary power did not keep the motion from extending the appellate timetable, even though it rendered the motion ineffective to preserve error on the issues that were dependent on a timely filed motion.

For the narrow purpose of determining whether a motion to reinstate has been filed and the time to perfect appeal thus extended under Rule 26.1(a)(3), and in the interest of the “simplicity and certainty in appellate procedure” that our Supreme Court has stated is desirable, Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex.2001), I would apply a similar analysis here and would limit McConnell to instances in which there is a complete absence of verification. Since appellant’s motion to reinstate was not entirely unverified, I would find that its filing was effective to extend the date appellant’s notice of appeal was due under Rule 26.1(a), that appellant’s notice of appeal was therefore timely filed and that we have jurisdiction of the appeal.

      . Notice as required by Rule 42.3(a) Tex. R.App. P. was given to counsel by letter dated November 21, 2003.

      . At all times material hereto, Guest has been represented by the same law firm, albeit at least three different attorneys were assigned to the case.


source: Caselaw Access Project

author: PHIL JOHNSON, Chief Justice.

license: Public Domain

text:
    Jimmy MAY, Appellant, v. BARTON’S PUMP SERVICE, INC., Appellee.
    No. 07-02-0210-CV.
    Court of Appeals of Texas, Amarillo.
    Jan. 16, 2004.

      James L. Gorsuch, Lubbock, for Appellant.
    Kevin Glasheen, The Law Offices of Kevin Glasheen, Lubbock, for Appellee.
    Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
   OPINION

PHIL JOHNSON, Chief Justice.

Jimmy May appeals from a judgment against him for the amount due on a contract for services and materials. By 11 issues he challenges the (1) legal and factual sufficiency of the evidence, (2) trial court’s refusal to allow an expert witness to testify and (3) trial court’s refusal to submit a proposed jury instruction. We affirm.

BACKGROUND

In 1999 and for some years prior to that time, appellant Jimmy May owned approximately 68.49 acres of land southwest of the City of Lubbock. He formulated a plan to subdivide the acreage into commercial and residential lots and sell them. As part of his development plan, May sought to convert an old irrigation well on the property to a water source for a privately owned public water supply system (the water system) which would serve the subdivision lots. May was a professional engineer and developed a plan for the water system which he submitted to the Texas Natural Resource Conservation Commission (TNRCC) for approval. He also took a copy of his water system drawing to appellee Barton’s Pump Service, Inc. May and Dale Barton, one of the principal owners of Barton’s, agreed that Barton’s would perform work on the irrigation well which Barton’s did. The result was not to May’s satisfaction and May did not pay Barton’s bill.

May sued Barton’s alleging various theories of liability, including violation of the Texas Deceptive Trade Practices Act, breach of contract, breach of implied warranty of good workmanship, negligent misrepresentation and negligence. The bases for May’s claims were that after Barton’s worked on the well, the well did not comply with TNRCC requirements for a public water supply system, the well was damaged and the well’s water production was severely decreased.

Barton’s denied liability and counterclaimed to recover its unpaid bill.

The evidence conflicted sharply as to what May and Dale Barton agreed to. May contended that the agreement was for Barton’s to (1) modify the irrigation well in accordance with May’s schematic drawing, (2) bring the well into compliance with TNRCC regulations, and (3) concrete the outside of the 16" well casing from the surface to the top of the water bearing formation. If Barton’s had done so as agreed, May contended, the amount of water produced by the well would not have been reduced and the well would have supplied May’s planned privately-owned public water system.

Barton’s maintained that it properly performed the work it agreed to do and for which it billed May. Barton’s denied that it agreed to perform work as contended by May, including bringing the well into compliance with TNRCC regulations. Barton’s asserted that it agreed to do the work described in a written estimate dated December 27, 1999. That work only included inserting an 8" PVC liner inside the existing 16" well casing, placing gravel between the liner and the 16" casing, and placing a concrete cap on the well site.

May’s modification plan did not include inserting a liner into the existing well casing, placing gravel inside the existing casing, and merely placing a concrete cap on the well at the surface.

The case was submitted to a jury by 18 questions. The jury effectively found that May and Dale Barton agreed as Barton’s contended, and not as May contended. By its answers to Jury Questions, the jury failed to find that Barton’s: (Question 1) engaged in a misleading or deceptive act or practice on which May relied to May’s damage; (Question 2) engaged in an unconscionable action or course of action which was a producing cause of damages to May; (Question 8) failed to comply with a warranty which was a producing cause of damages to May; (Question 5) agreed with May that Barton’s would follow May’s drawing, bring the well into compliance with TNRCC regulations and concrete the outside of the 16" well casing from the surface to the top of the water bearing formation; (Question 15) made a negligent misrepresentation on which May justifiably relied; and (Question 16) actions were negligence and a proximate cause of the damages. In response to other questions, the jury found (Question 10) Barton’s and May agreed that Barton’s would do work on May’s well as described in Barton’s estimate dated December 27, 1999 and that May would pay the reasonable charges for such work; (Question 11) May failed to comply with the agreement referenced in Question 10; (Question 18) Barton’s damages were $5,533.83; (Question 14) attorney’s fees for Barton’s were $23,000 for preparation and trial, $7,500 for appeal to the Court of Appeals and $5,000 for appeal to the Supreme Court of Texas; and (Question 16) May’s negligence was a proximate cause of the damages. The jury also failed to find that May’s failure to comply with the agreement between Barton’s and May was excused (Question 12).

May challenges (1) the factual sufficiency of the evidence to support the jury’s answers against him on his theories of liability and contractual excuse (Questions 1,2,3,5,12,15,16); (2) both the legal and factual sufficiency of the evidence to support the jury’s answers in favor of Barton’s theory of liability (Questions 10,11,16); (3) the legal and factual sufficiency of the evidence as to Barton’s attorney’s fees for appeal to the Court of Appeals and the Supreme Court of Texas (Question 14); (4) the trial court’s exclusion of May’s expert witness Tucker Rudder; and (5) the trial court’s refusal to submit a proposed instruction as to excuse for May’s failure to comply with the agreement submitted via Question 10.

We will address the issues, in general, as they are grouped by May.

ISSUES ONE, TWO AND THREE-FACTUAL INSUFFICIENCY

Issues one, two and three assert that the jury’s negative answers to certain of the Jury Questions on which May had the burden of proof are against the great weight and preponderance of- the evidence. Issue one challenges the jury’s refusal to find, in response to Questions 1, 2 and 3 that Barton’s violated the deceptive trade practices act. Issue two addresses the jury’s negative answer to Question 12, which presented May’s position that Barton’s made a false representation to induce May to enter into an agreement in the first instance. Issue three presents the same assertion to the jury’s failure to find, in response to Question 15, that Barton’s made a negligent misrepresentation. Such challenges are' factual sufficiency challenges to adverse jury answers to questions on which the challenging party had the burden of proof. See Chang v. Nguyen, 76 S.W.3d 635, 637 n. 1 (Tex.App.-Houston (14th Dist.) 2002, no pet.); W. Wendell Hall, Standards of Review in Texas, 29 St. Mary’s L.J. 351, 487 (1998).

When considering factual sufficiency challenges to a jury’s verdict, courts of appeals must consider and weigh all of the evidence, not just evidence which supports the verdict. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998); Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). A court of appeals can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. See Maritime Overseas Corp., 971 S.W.2d at 407; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

The factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962). The factfinder may believe one witness and disbelieve another, and resolves inconsistencies in testimony. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). Where enough evidence is before the factfinder that reasonable minds could differ on the meaning of the evidence, or the inferences and conclusions to be drawn from the evidence, we may not substitute our judgment for that of -the factfinder. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988). When the jury did not find a fact based upon. a preponderance of the evidence, we may not reverse merely because we conclude that the evidence preponderates toward a different answer. Id.

In arguing his issues, May recites substantial direct and circumstantial evidence both affirmatively supporting his position and impeaching Barton’s position. Barton’s references similar types of evidence that support Barton’s position that Dale Barton did not make the misrepresentations alleged by May.

In order to reach a verdict, the jury had to reconcile the numerous significant direct conflicts in evidence. Assuming, arguendo, that May’s contentions and conclusions seem more probable than those advanced by Barton’s and found by the jury, we are unauthorized to overturn a jury verdict so dependent on the jury’s resolution of credibility of the witnesses and conflicting evidence as is this verdict. See id. We overrule May’s issues one, two and three.

ISSUES FOUR, FIVE AND SIX: EVI-DENTIARY SUPPORT FOR THE CONTRACTUAL FINDINGS

Issue five- urges a factual sufficiency challenge to the jury’s negative finding on the question submitting May’s version of the agreement reached by May and Barton’s (Quéstion 5). Issue four challenges the legal and factual evidentiary support for the jury’s finding that the agreement reached between May and Barton’s was the agreement testified to by Dale Barton (Question 10). Issue six asserts both legal and factual sufficiency challenges to the jury’s finding that May failed to comply with the agreement the jury found had been reached between May and Barton’s (Question 11).

When both legal and factual sufficiency issues are raised, we review the legal sufficiency point first to determine whether there is any probative evidence to support the jury’s verdict. See Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981). In conducting a review for legal sufficiency, we consider the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. See Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex.2001); Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001). If more than a scintilla of evidence exists, the evidence is legally sufficient. Lee Lewis Constr., Inc., 70 S.W.3d at 782. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact’s existence. Id. at 782-83.

We have set out the standard of review for factual sufficiency issues in our consideration of May’s issues one, two and three.

In advancing issue five, May cites evidence that his version of the agreement, as submitted in Jury Question five, was supported by a detailed drawing, was specific as to terms, and was more in agreement with the physical evidence at the well site than was the agreement Barton’s claimed. May points out that the agreement Barton’s claimed existed, as submitted in Jury Question ten, was based on a written estimate which did not contain all the terms Dale Barton testified to, but which merely set out prices for gravel, pipe and concrete. May also directs our attention to Dale Barton’s testimony to the effect that May reputedly told Dale Barton to “Just do the best you can.”, and ‘Well, let’s try it.”, in response to Dale Barton’s statement that reworking an old irrigation well such as the one in question was a difficult proposition, and that Dale Barton proposed reworking the well by a process of inserting an 8" pipe into the 16" casing and putting gravel between the 8" pipe and the 16" casing. May further urges that whether he received a copy of Barton’s written estimate, and if so, when, was a hotly disputed matter.

Barton’s asserts that the above-referenced statements by May were in the context of responses to Dale Barton’s having told May that the design presented by May was flawed, and that Dale Barton’s alternative as represented by the written estimate was a counter-offer. Barton’s posits that May’s statements were actually the acceptance of Barton’s counter-offer and thus evidenced the necessary “meeting of the minds” for an agreement.

As we have referenced in our discussion of May’s first three issues, the jury had before it testimony and other evidence of communications between the parties and actions of the parties in connection with those communications. The jury was instructed that such evidence could be considered in deciding if the parties reached an agreement. The jury was further instructed that in order for the parties to form a binding contract, the parties must have had a mutual assent or “meeting of the minds” on the essential terms of the contract. See Copeland v. Alsobrook, 3 S.W.3d 598, 604 (Tex.App.-San Antonio 1999, pet. denied).

Dale Barton’s testimony and the December 27th written estimate are legally and factually sufficient evidence to support the jury’s finding in response to Question 10 that the agreement between May and Barton’s was as urged by Barton’s. See Lee Lewis Const., Inc., 70 S.W.3d at 782-83; Herbert, 754 S.W.2d at 144.

Moreover, although Dale Barton’s testimony as to his rejection of May’s proposed manner of reworking the well and Barton’s counteroffer as expressed in the written estimate may not have been as detailed, clear and free from inconsistencies as May’s testimony, the jury’s refusal to find that Barton’s agreed to the contractual terms advanced by May and presented in Question 5 was not so against the great weight and preponderance of the evidence as to warrant reversal. See Maritime Overseas Corp., 971 S.W.2d at 407.

Lastly, May does not dispute that he did not pay Barton’s for the work on the well; his position was and is that he did not owe for the work because the work Barton’s performed was not the work May agreed on. The jury’s finding that May failed to comply with Barton’s version of the agreement, which the jury found May agreed to, was consistent with its other answers in favor of Barton’s position and adverse to May’s position. The evidence, part of which we have previously noted, is both legally and factually sufficient to support the jury’s answer to Question 11.

We overrule issues four, five and six.

ISSUES SEVEN AND EIGHT: NEGLIGENCE

May’s issues seven and eight challenge the jury’s answer to Question 16 which asked if the negligence of May or Barton’s proximately caused “the damages.” The jury answered ‘Tes” as to May and “No” as to Barton’s. May argues via issue seven that the ‘Tes” answer was based on legally and factually insufficient evidence, and via issue eight that the “No” answer was based on factually insufficient evidence.

Barton’s responds, in part, to issue seven, that regardless of the evidentiary support for the finding that May was negligent, the finding was not material because the jury failed to find Barton’s negligent, and because even if the jury had found that May was not negligent, the judgment would not have been different. As to issue eight, Barton’s urges, in part, that Barton’s did not breach a duty to May.

We first address issue eight. May bases his argument on Barton’s lack of familiarity with TNRCC regulations and evidence that the well as reworked by Barton’s failed to meet TNRCC regulations for use as a public water supply. He urges that the failure of Barton’s to bring the well into compliance with TNRCC regulations was failure to meet the standard of care for “an ordinary prudent operator [sic] such as himself.”

The elements of a negligence cause of action are: (1) a legal duty; (2) breach of that duty; and (3) damages proximately resulting from the breach. See Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998). Because of May’s claim that Barton’s was negligent, it was incumbent on May to prove the existence and violation of a duty owed to him by Barton’s. See El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). If no duty existed, there could be no negligence. See Van Horn, 970 S.W.2d at 544.

May does not claim that Barton’s owed a duty to him other than a duty which arose, from the agreement between them. By its answer to Question 5, the jury failed to find that Barton’s agreed to bring the well into compliance with TNRCC regulations. The agreement which the jury found in response to Question 10 (Barton’s version of the agreement) did not include an undertaking by Barton’s to bring the well into compliance with TNRCC regulations. We have determined that the jury’s answers to both questions were supported by sufficient evidence.

The jury’s answers do not establish that Barton’s owed a duty to May to bring the well into compliance with TNRCC regulations. Thus, we agree with Barton’s that it breached no duty to May. See id.

We overrule issue eight. Our conclusions as to issue eight and May’s other issues pretermits any necessity for us to consider May’s issue seven because even if we sustained the issue, the judgment would not be affected. See Tex.R.App. P. 47.1.

ISSUE NINE: ATTORNEY’S FEES

May’s ninth issue challenges the legal and factual sufficiency of the evidence to support the jury’s finding of appellate attorney’s fees for Barton’s. In presenting the issue, May references testimony of Barton’s attorney which included an opinion only as to attorney’s fees for preparation and trial. Barton’s, however, counters by referring to testimony of May’s attorney which included opinions that (1) $7,500 would be a reasonable and necessary attorney’s fee for an appeal to the Court of Appeals, and (2) $5,000 would be reasonable and necessary attorney’s fees for an appeal to the Supreme Court of Texas.

May does not urge that the trial court was requested to, or did, in any manner limit the jury’s consideration of his attorney’s testimony. See Tex.R. Evid. 105(a). Accordingly, the evidence was before the jury for all purposes. See Birchfield v. Texarkana Mem’l. Hosp., 747 S.W.2d 361, 365, 366 (Tex.1987); In re K.S., 76 S.W.3d 36, 39 (Tex.App.-Amarillo 2002, no pet.). And, under this record, the testimony is sufficient evidentiary basis, both legally and factually, to support a finding of appellate attorney’s fees for either party for an appeal from the trial court’s judgment. See Lee Lewis Const., Inc., 70 S.W.3d at 782-83; Herbert, 754 S.W.2d at 144. Issue nine is overruled.

ISSUE TEN: EXCLUSION OF EXPERT TESTIMONY

Issue ten asserts error by the trial court’s exclusion of testimony by Tucker Rudder, a witness May called. May’s attorney advised the trial court that Rudder would testify to TNRCC requirements, Rudder’s familiarity with such requirements, what Rudder would have done had he been contacted as a driller to rework the well in question, why the well produced the way it had, and the feasibility of drilling other wells in the area.

Barton’s objected on the basis that Rudder was not qualified to give an opinion on bringing old irrigation wells up to TNRCC standards or the proper method for doing so. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex.1998). The trial court held a hearing outside the jury’s presence to determine the objection. During the hearing, Rudder testified to having considerable experience as a licensed water well driller. He was familiar with TNRCC regulations, but not with standards of the American Water Works Association, which were referenced by the TNRCC regulations. He had not reworked an “old” irrigation well to convert it to a well complying with TNRCC regulations for use as a public water supply.

The court sustained Barton’s objection. May urges that Rudder was qualified to give testimony on several facets of the inatters at issue, but attributes harm to the exclusion of Rudder’s testimony only because the ruling prevented the jury from hearing qualified expert testimony that Barton’s failed to use ordinary care in attempting to bring the well into compliance with TNRCC regulations.

Reversal of a judgment for an error in the exclusion of evidence is warranted if the error probably caused the rendition of an improper judgment, or probably prevented the appellant from properly presenting the case to the court of appeals. TRAP 44.1. A successful challenge to evi-dentiary rulings usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex.1995). The entire record must be reviewed to determine whether the case turns on the excluded evidence. Id. We must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998).

We have previously determined, in considering May’s issue eight, that the evidence and jury answers to Questions 5 and 10 failed to establish Barton’s undertook to bring the well into compliance with TNRCC regulations, and that May did not contend Barton’s otherwise owed a duty to bring the well into compliance with such regulations. Because Barton’s did not owe a duty to bring the well into compliance with TNRCC regulations, Rudder’s opinion that Barton’s failed to use ordinary care to do so would not have supported a finding that Barton’s was negligent.

Assuming, arguendo, that the trial court erred in excluding Rudder’s testimony, the error was not harmful and did not cause rendition of an improper judgment. See TRAP 44.1. Because we conclude that exclusion of Rudder’s opinions , was not harmful, we do not address the questions of whether error was preserved as to such opinions, see Tex.R. Evid. 103(a)(2), (b); Fletcher v. Minnesota Min. and Mfg. Co., 57 S.W.3d 602, 607 (Tex.App.-Hous. [1st Dist.] 2001, pet. denied); or whether the trial court abused its discretion in excluding. the opinions. See Gammill, 972 S.W.2d at 718-19.

Issue ten is overruled.

ISSUE ELEVEN: FAILURE TO GIVE JURY INSTRUCTION ON EXCUSE FOR BREACH OF CONTRACT

Issue 11 asserts error in the trial court’s refusal to instruct the jury in conjunction with Jury Question 12 that May’s failure to comply with the agreement was excused by Barton’s previous failure to comply with a material obligation of the same agreement. Question 12, together with an accompanying instruction which May does not challenge, asked if May’s failure to comply with the agreement between May and Barton’s was excused. The charge was structured so that the jury was to answer Question 12 only if it previously found that the parties agreed to Barton’s version of the agreement, and that May failed to comply with that agreement.

A trial court’s decision to submit or refuse a particular instruction is reviewed for abuse of discretion. See In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000). Whether a trial court abuses its discretion by acting without reference to any guiding rules and principles, see Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939), is measured by the rules of procedure, the substantive law and the requirement that the parties and the appellate courts be able to tell what the jury answered and the bases for its answers. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex.2000). When the trial court refuses to submit a requested instruction, one question on appeal is whether the instruction was supported by pleadings and evidence. See Tex.R. Civ. P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992). We review the evidence under a legal sufficiency standard to determine whether evidence supported the requested question. See id.

We must review the entire record to determine whether it contains legally sufficient evidence to support a claim that Barton’s materially breached the agreement which Barton’s claimed was made and which was evidenced by Barton’s December 27, 1999, written estimate. That was the agreement the jury found was reached between the parties.

Dale Barton testified that when May came in to discuss reworking the well, he told May that he did not believe the well could be reworked in accordance with May’s drawings; but that he could pull the pump from the well, install an 8" finer and screen with factory-mill perforations, and try to gravel-pack and concrete the well. According to Dale Barton, May responded “Let’s try it.” Dale Barton testified that he explained what Barton’s would do to the well; wrote the estimate dated December 27, 1999, and gave a copy to May; May agreed to Barton’s proposal; and Barton’s performed the work the two men agreed would be done.

May did not claim Barton’s materially breached Barton’s version of the agreement; May claimed the agreement terms advanced by Barton’s simply never were the agreement. The jury disagreed with May.

May urges, without explanation, that the jury “could have found” a material breach by Barton’s (1) placing an 8" finer in the well, (2) gravel packing the well, (3) failing to cement outside of the 16" casing, or (4) using an inadequate screen. Our review of the entire record, however, reveals no evidence that Barton’s did not perform the material parts of the agreement as testified to by Dale Barton and found by the jury. The evidence was legally insufficient to support submission of the instruction May requested. Accordingly, the trial court did not abuse its discretion in refusing to give the instruction. See Tex.R. Civ. P. 278; Elbaor, 845 S.W.2d at 243.

Issue 11 is overruled.

CONCLUSION

Having overruled May’s 11 issues, we affirm the judgment of the trial court.

      . Tex. Bus. & Comm.Code Ann. § 17.45 et. seq. (Vernon 2002). Reference to a provision of the Code hereafter will be by reference to "the deceptive trade practices act” or "TB & CC §

      . Further reference to a rule of appellate procedure shall be by reference to "TRAP_"

      . See, also, our analysis of the record in regard to May's issues one through six.


author: DON H. REAVIS, Justice.

text:
    In the Interest of S.S.G., A Minor Child.
    No. 07-03-0261-CV.
    Court of Appeals of Texas, Amarillo.
    Jan. 27, 2004.
    Rehearing Overruled March 10, 2004.

      Laura D. Hamilton, Amarillo, Kyle Lewis, Moore Lewis & Russwurm, Dumas, James B. Johnston, Friona, for Appellants.
    Lynda Smith, Joe Marr Wilson, Amarillo, for Appellees.
    Before QUINN and REAVIS and CAMPBELL, JJ.
   OPINION

DON H. REAVIS, Justice.

Following a jury trial, Ashley Gutierrez and Joseph Alarcon Gonzalez, unmarried parents of their daughter S.S.G., appeal the trial court’s judgment terminating the parent-child relationship between them and S.S.G. and appointing Jeffrey Donald Gurney and Alicia Munoz Gurney managing conservators of S.S.G. By separate briefs, Ashley and Joseph present three similar issues by which they contend the trial court erred in denying (1) their motions for judgment notwithstanding the verdict because the evidence was legally insufficient to support the jury verdict because there was no evidence for the jury to properly form a firm belief or conviction that they voluntarily left S.S.G. alone or in the possession of another not the parent and expressed an intent not to return, (2) their motion for judgment notwithstanding the verdict because the evidence was legally insufficient to support the jury verdict because there was no evidence for the jury to properly form a firm belief or conviction that they voluntarily left S.S.G. alone or in the possession of another not the parent and expressed an intent not to return, and (3) their motions for new trial. The Gurneys present two cross-points asserting the trial court erred (1) when it limited the jury’s consideration of Joseph’s conduct to the time period after November 5, 2002, and (2) by directing a verdict against them on their alternative request to be appointed as joint managing conservators of the child in the event the jury failed to terminate the parental rights of both Ashley and Joseph. We reverse and render.

Because the evidence and history is discussed in detail in our legal sufficiency review, we commence our analysis with a summary of the facts necessary to frame the issues for our decision. At age 14 Ashley discovered she was pregnant. On February 25, 2002, after giving birth to 5.5.G., she signed a written authorization for release of infant by which she gave her consent to hospital authorities to release 5.5.G. “into the custody of Jeffrey and Alicia Gurney.” The Gurneys took S.S.G. to their home in Amarillo, and on February 28, 2002, Jeffrey mailed to Ashley a medical power of attorney, an affidavit of relinquishment of parental rights, and an affidavit that the identify of the biological father was unknown. The documents were prepared by Jeffrey’s former attorney. Ashley signed and returned the medical power of attorney, but refused to sign and return the affidavits. After she was discharged from the hospital, Ashley, a resident of Muleshoe, traveled to Amarillo several times to visit S.S.G in the home of the Gurneys. Then, on July 28, 2002, when Jeffrey and Alicia refused to allow Ashley to take S.S.G. to her home in Mu-leshoe, Ashley commenced the underlying proceeding by filing a petition for habeas corpus. The Gurneys responded by filing their petition for termination and adoption on July 29, 2002. The trial court denied the petition for habeas corpus and entered temporary orders.

Alleging only two grounds, by their petition for termination of parental rights and adoption of S.S.G., the Gurneys alleged that Ashley and Joseph had each:

• voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return; and
• voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months.

See Tex. Fam.Code Ann. § 161.001(1)(A) and (B) (Vernon 2002). At the conclusion of the evidence and charge conference, the trial court submitted the case to the jury but did not submit the ground set out in section 161.001(1)(B). By its charge, the court instructed the jury as follows:

• to consider only the evidence introduced under oath and such exhibits; and
• the “clear and convincing evidence” standard is that measure or degree of proof that produces a firm belief or conviction that the allegations sought to be established are true.

Based upon the jury finding that Ashley and Joseph both voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return, the trial court signed its order terminating their parental rights and appointing Jeffrey and Alicia managing conservators of the children. The discrete question presented for our determination is whether the evidence was legally sufficient to support the jury finding that Ashley and Joseph left the child alone or in the possession of another not the parent and expressed an intent not to return. Before reviewing the evidence, we first review the controlling law and the appropriate standard of review.

Under section 161.001, Jeffrey and Alicia had the burden to allege and prove by clear and convincing evidence that Ashley and Joseph voluntarily left the child alone and expressed an intent not to return per section 161.001(1)(A); however, a favorable jury finding may not stand without probative evidence to support the finding. Williams v. Gaines, 943 S.W.2d 185, 193 (Tex.App.-Amarillo 1997, writ denied). As defined in Bailey Cty. Appraisal Dist. v. Smallwood, 848 S.W.2d 822, 825 (Tex.App.-Amarillo 1993, no writ), probative evidence is evidence which “serves to prove the asserted proposition, and it must be more than a surmise or suspicion.” Direct evidence is provided by witnesses who saw the acts done or heard the words spoken, while circumstantial evidence is proof of collateral facts and circumstances from which the trier of fact arrives at the conclusion that the maiii facts sought to be established in fact existed. Texas & N.O.R. Co. v. Warden, 125 Tex. 193, 78 S.W.2d 164, 167 (1935). Although circumstantial evidence may be considered, meager circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and thus will not survive a legal sufficiency challenge. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998)

In our legal sufficiency review of the evidence to support an order terminating parental rights we 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. In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). However, based on section 161.001(1)(A), we do not consider any evidence of events occurring before the birth of the child. See In Interest of S.D.H., 591 S.W.2d 637, 638 (Tex.Civ.App.-Eastland 1979, no writ). To give appropriate deference to the jury’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 the jury resolved disputed facts in favor of its finding if a reasonable jury could do so. J.F.C., 96 S.W.3d at 266. Thus, we disregard all evidence that a reasonable jury could have disbelieved or found to have been incredible. Id.

By their first issue, Ashley and Joseph contend the trial court erred in denying their motions for judgment notwithstanding the verdict because there was legally insufficient evidence to support the jury verdict in that there was no evidence for the jury to properly form a firm belief or conviction that they voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return. We agree.

Focusing our attention on whether Ashley or Joseph “expressed an intent not to return” per section 161.001(1)(A), although the trial consumed the better part of three days, the record on this subject is scant. Although Ashley executed a revocable medical power of attorney authorizing Jeffrey or Alicia, as Ashley’s “agent,” to obtain health care for S.S.G., the power of attorney was silent on Ashley’s intent “not to return.” Jeffrey and Alicia admitted that neither Ashley nor Joseph signed an affidavit for voluntary relinquishment of parental rights or a consent for adoption. See §§ 161.103 and 162.010. Moreover, the authorization for release of S.S.G. that Ashley signed in the hospital merely acknowledged her consent to hospital authorities to release S.S.G. into the custody of the Gurneys, and like the power of attorney, it did not specify the terms, purpose, or duration of the custodial arrangement or contain a statement that she did not intend to return.

Alicia and Ashley both testified they were considering an “open” adoption. The briefs do not define the term “open adoption;” however, from the record, it appears that Alicia and Ashley contemplated that Ashley would be permitted certain visitation rights. After receiving a phone call advising them that Ashley was in labor, the Gurneys went to the hospital; however, they did not go into Ashley’s room and the record does not show any communication between Alicia and Ashley at the hospital. Also, Joseph was not at the hospital before, during, or after S.S.G.’s birth. Approximately 36 hours after the baby’s birth, the Gurneys were allowed to remove S.S.G. from the hospital and take her to their home in Amarillo.

By their brief, the Gurneys provide citations to the record noting that although several opportunities were presented, Ashley did not express her intention that she did not want to give up the baby or words of similar import. Even if these references would be relevant to the ground asserted per section 161.001(1)(B), which was not submitted to the jury, they do not constitute expressions of “intent not to return” under section 161.001(1)(A), which is the basis of the order of termination. References to the record regarding Joseph’s intent not to return are similar to those cited regarding Ashley. The Gurneys do not reference the record to show any direct evidence that Ashley or Joseph “expressed an intent not to return.” Based upon our review of the record and the briefs, we conclude there is no direct evidence to support a finding that the natural parents “expressed an intent not to return.” Citing In Interest of R.D.S., 902 S.W.2d 714 (Tex.App.-Amarillo 1995, no writ), the Gurneys erroneously suggest that our prior decision is controlling. However, R.D.S. is not controlling because each of the natural parents in R.D.S. had executed affidavits relinquishing their parental rights, and we held that notwithstanding revocation, the affidavits remained indicative of the parents preexisting intention.

The Gurneys suggest that the “intent not to return” can be implied from the actions of the parents for several reasons. First, Jeffrey and Alicia did not request that the trial court give an instruction that circumstantial evidence would be sufficient or otherwise define the term “express” as they suggest. See 1 Comm, on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges PJC 1.7 (2002 ed.). Moreover, in Wells v. Texas Pac. Coal & Oil Co., 140 Tex. 2, 164 S.W.2d 660, 663 (1942), the Court held that the law does not permit the pyramiding of one assumption upon another because an ultimate fact thus arrived at is too conjectural and speculative to support a judgment. Later, in Schlumberger Well Sur. Corp. v. Nortex Oil & G. Corp., 435 S.W.2d 854, 858 (Tex.1968), noting that although probative circumstantial evidence may be sufficient, a vital fact, essential to establishing legal elements for recovery may not be established by “piling inference upon inference.” See also Briones v. Levine’s Department Store, Inc., 446 S.W.2d 7, 10 (Tex.1969); Roth v. FFP Operating Partners, 994 S.W.2d 190, 197 (Tex.App.-Amarillo 1999, pet. denied). Even if the jury considered that Ashley “had an intent not to return,” having the intent and expressing that intent are not synonymous. Even if the consent authorizing the hospital to allow the Gurneys to take the child from the hospital and the medical power of attorney signed by Ashley may be circumstantial evidence that Ashley had an intent not to return, a question we do not decide, any inference that Ashley expressed an intent not to return cannot be “piled upon the inference that Ashley had an intent not to return.” Further, because Joseph did not sign either instrument, no inference arises as to him. Finally, according to Jeffrey, Ashley only signed and returned the medical power of attorney, not the affidavit of relinquishment of parental rights. Thus, her actions in so doing cannot support any logical inference that she did not “intend to return.” Having found that there was no direct evidence that each natural parent expressed an “intent not to return,” we conclude the evidence in its entirety is legally insufficient to support the jury verdict that the natural parents expressed an intent not to return. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). Accordingly, we sustain Ashley and Joseph’s first issue. Our disposition of this issue preter-mits our consideration of their remaining issues.

Appellees’ Cross-Points

Notwithstanding the fact that they obtained a favorable finding, by their first cross-point, Jeffrey and Alicia contend the trial court erroneously restricted the time period during which Joseph’s acts and omissions could be evaluated. We disagree. The trial court has considerable discretion in crafting the jury charge. Moreover, a party objecting to a jury charge must point out the objectionable matter distinctly and set out the grounds of the objection. Tex.R. Civ. P. 274; Iron Mt. Bison Ranch v. Easley Trailer Mfg., 42 S.W.3d 149, 156 (Tex.App.-Amarillo 2000, no pet). Our review of the charge conference does not show an objection per Rule 274. Moreover, the Gurneys do not contend the trial court abused its discretion nor demonstrate that error, if any, probably caused the rendition of an improper judgment. Tex.R.App. P. 44.1(a); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995). Cross-point one is overruled.

By their second cross-point, the Gurneys contend the trial court erred by directing a verdict against them on their alternative request to be appointed joint managing conservators of S.S.G. in the event the jury failed to terminate the parental rights of both Ashley and Joseph. However, the Gurneys had the burden of directing this Court to the portion of the record which supports their complaint. See Tex.R.App. P. 38.1(h). We are not required to search a voluminous record without guidance from the party to determine whether an assertion of reversible error is valid. Labrador Oil Co. v. Norton Drilling Co., 1 S.W.3d 795, 803 (Tex.App.-Amarillo 1999, no pet.). Because the Gurneys do not direct us to the portion of the record where the matters complained of were presented to the trial court, the cross-point presents nothing for review. Cross-point two is overruled.

Accordingly, the judgment of the trial court is reversed and judgment is hereby rendered in favor of Ashley Gutierrez and Joseph Alarcon Gonzalez, and the relief sought by Jeffrey and Alicia Gurney is hereby denied.

      . The document dated February 26, 2002, was not acknowledged by a notary public nor verified.

      . The affidavit was acknowledged by a notary public on March 12, 2002.

      . The petition for adoption was denied by the order which denied all relief not expressly granted.

      .We give special consideration to the fact that the “without expressing an intent to return” provision in section 161.001 (1)(B) does not apply under this record and charge.


text:
    In the Matter of the MARRIAGE OF Jackie L. STEIN and Craig H. Stein and in the Interest of Brooke L. Stein and Tyler W. Stein, Minor Children.
    No. 07-03-0289-CV.
    Court of Appeals of Texas, Amarillo.
    Jan. 30, 2004.

      Sally Holt Emerson, Christopher K. Wrampelmeier, Underwood, Wilson, Berry, Stein & Johnson, P.C., Amarillo, for appellant.
    Scott Sherwood, Sherwood & Sherwood, Panhandle, for appellee.
    Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION

DON H. REAVIS, Justice.

Following a non-jury trial, Jackie L. Stein challenges those portions of the final decree of divorce (1) naming Craig H. Stein and her as joint managing conservators of their children; (2) designating Craig as the primary joint managing conservator 'with the exclusive right to establish the primary residence of the children; and (3) ordering her to pay child support. Jackie contends by her first issue that the trial court erred by finding there was no credible evidence presenting a history or pattern of past or present physical abuse by Craig against her. By her second issue, Jackie maintains the trial court abused its discretion in appointing the parties as joint managing conservators in the face of such credible evidence. For the following reasons, we reverse and remand in part and affirm in part.

Jackie and Craig began dating in 1997. Shortly before the birth of their daughter, the couple began living together. Jackie and Craig’s son was born in February of 2001, and they were married the following fall. In February of 2002, the Lipscomb County Court, finding that Craig had committed family violence, entered a protective order against him for the benefit of Jackie and the children. Jackie filed for divorce on November 13, 2002. The following day, after Craig pleaded no contest, the Lipscomb County Court found him guilty of violating the protective order.

In her original petition for divorce, Jackie presented a “Protective Order Statement” and attached as an exhibit to the petition a copy of the protective order. At the trial in February of 2003, Jackie offered, and the court admitted, into evidence a certified copy of the judgment and sentence reflecting Craig’s conviction for violation of the protective order. In addition, through their trial testimony, Jackie and Craig acknowledged they committed family violence against each other during the course of their tumultuous relationship. Most significant, Craig conceded that on one occasion he dragged Jackie across the room by her hair. Correspondingly, Jackie admitted the ham-dragging incident occurred after she hit Craig with a hammer in an effort “to get his attention.” Thus, although none of the acts of violence resulted in any injuries requiring medical treatment, the record presents undisputed evidence of past physical abuse by one parent against the other. That evidence notwithstanding, at the conclusion of the trial, the court announced:

The Court makes the finding that there’s not a history or pattern of past or present child neglect or physical or sexual abuse by one parent ... directed against the other parent, spouse or a child. And the Court finds that to be in the best interest of the children....

Following that announcement, the trial court declared Craig and Jackie to be joint managing conservators of their children.

Upon Jackie’s request, the trial court entered, as pertinent to this appeal, the following findings of fact and conclusions of law:

5. It is in the best interest of the children that [Jackie] and [Craig] be appointed Joint Managing Conservators of the children.
6. There is no credible evidence presenting a history or pattern of child neglect, sexual abuse or physical abuse by one parent directed against the other parent, a spouse or a child.
7. [Craig] is a person fit to be appointed a parent joint managing conservator with the exclusive right to establish the primary residence of the children without regard to geographic location.
8. [Jackie] is a person fit to be appointed a parent joint managing conservator.
11. That a protective order was entered against [Craig] for the protection of [Jackie]. Three days after the protective order was entered, the parties again lived together for a period of more than five months.
12. Any finding of fact that is a conclusion of law shall be deemed a conclusion of law.

In June of 2008, Jackie filed her notice of appeal to this Court.

By her first issue, Jackie contends the trial court erred when it found there was no credible evidence presenting a history or pattern of past or present physical abuse by Craig against her. Jackie argues, in other words, the critical issue is “whether credible evidence presenting a history or pattern of past or present physical abuse by [Craig] against [Jackie] was presented at trial.” With her second issue, Jackie maintains the trial court abused its discretion by appointing the parties joint managing conservators when such credible evidence was presented. Because the two issues advance questions of law, and because our disposition of the first issue controls our disposition of the second, we will discuss the issues contemporaneously.

Trial Court Discretion

Well established Texas law affords the trial court with wide latitude in determining the best interest of minor children, and the decision of the trial court will be reversed only when it appears from the record as a whole that the court has abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). That discretion, however, is now subject to the provisions of section 153.004 of the Family Code, which applies when there is a history of domestic violence within the family. (Vernon 2002). Specifically, the Family Code provides, in pertinent part:

(a) In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party’s spouse ... committed within a two-year period preceding the filing of the suit or during the pendency of the suit.
(b) The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child....

Tex. Fam.Code Ann. § 153.004(a) & (b) (Vernon 2002).

Findings of Fact and Conclusions of Law

Next, we notice the trial court’s designation of a finding of fact or conclusion of law is not controlling on appeal. See Ray v. Farmers State Bank of Hart, 576 S.W.2d 607, 608 n. 1 (Tex.1979). The trial court’s finding number six that “there is no credible evidence presenting a history or pattern of child neglect, sexual abuse or physical abuse” is similar to a finding that Jackie “failed to prove” certain elements. Cf. Williford v. Submergible Cable, 895 S.W.2d 379, 383 (Tex.App.-Amarillo 1994, no writ) (such a negative answer means the party with the burden of proof has failed to carry the burden). Because the evidence of physical abuse was undisputed, we conclude finding number six constitutes a conclusion by the trial court that, as a matter of law, Jackie failed to prove her claim that physical abuse had occurred. Cf. Sandoval v. Hartford Cas. Ins. Co., 653 S.W.2d 604, 607 (Tex.App.-Amarillo 1983, no writ) (where the testimony of a witness, even an interested one, is clear, direct, positive, and uncontradicted by any other witness or attendant circumstances, it is taken as true as a matter of law). We will, therefore, review the trial court’s conclusion of law de novo. In re Humphreys, 880 S.W.2d 402, 403 (Tex.1994), cert. denied, 513 U.S. 964, 115 S.Ct. 427, 130 L.Ed.2d 340 (1994). That conclusion will be set aside if it is erroneous as a matter of law. Benedictine Sisters of the Good Shepherd v. Ellison, 956 S.W.2d 629, 631 (Tex.App.-San Antonio 1997, pet. denied).

Analysis

The Legislature did not define the terms history or pattern when it enacted section 153.004 of the Family Code. However, where, as here, the statute is clear and unambiguous, the rules of statutory construction are inappropriate, and the statute should be given its plain meaning. Cail v. Service Motors Inc., 660 S.W.2d 814, 815 (Tex.1983). In common usage, the term history is defined as “events that form the subject matter of a history” or “events of the past.” Merriam-Webster’s Collegiate Dictionary 549 (10th Ed.2002). From that definition we deduce that, although a single act of violence or abuse may not constitute a pattern, it can amount to a history of physical abuse. Cf. Tex. Fam.Code Ann. § 153.004(b) (Vernon 2002) (providing “a history of sexual abuse includes a sexual assault that results in the other parent becoming pregnant with the child”) (emphasis added). Considering the record before us, we conclude that, because the acts of physical abuse were either conceded by the parties or revealed by other uncontra-dicted testimony at trial, as a matter of law credible evidence was presented of a history of physical abuse by one parent against the other parent. Cf. Texas & N.O.R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 530 (1947) (where there is evidence upon an issue, and there is no evidence to the contrary, the fact finder does not have the right to disregard the undisputed evidence and decide the issue in accordance with his wishes). The trial court’s conclusion of law to the contrary is erroneous as a matter of law. Benedictine Sisters, 956 S.W.2d at 631. Therefore, because the Family Code prohibits the appointment of joint managing conservators where a history of physical abuse is presented, the trial court abused its discretion in so designating Jackie and Craig. Jackie’s first and second issues are sustained.

Accordingly, we reverse that portion of the trial court’s judgment relating to con-servatorship, possession, and child support, and remand those issues to the trial court for further proceedings. In all other aspects, the judgment of the trial court is affirmed.

      . The final decree of divorce granted Jackie's request for her name to be changed to Jackie Stulken and many documents contained in the record are so styled. For the sake of clarity, however, we will refer to her as Jackie.

      . Jackie and Craig agree that none of the family violence was directed at their children.

      . We recognize the most recent edition of the statute is located in a cumulative pocket part; however, because that version is different from the one under which the parties operated at trial, we will refer, instead, to the bound volume. Cf. Tex. Fam.Code Ann. § 153.004 (Vernon 2002) with Tex. Fam.Code. Ann. § 153.004 (Vernon Supp.2004).

      . Our holding related to the history of physical abuse presented under the facts of this case precludes a determination of whether, under a different set of circumstances, a single act of violence could constitute a pattern under the terms of the statute.

      . In reaching this conclusion, we have not overlooked Craig’s reliance upon Burns v. Burns, 116 S.W.3d 916 (Tex.App.-Dallas 2003, no pet.). However, we deem that case to be factually distinguishable from the one at hand. In Bums, the evidence of physical violence was conflicting, and the protective order at issue in the case seemingly was never brought to the attention of the trial court.


text:
    In re Billy Bob DAVIDSON, Relator.
    No. 07-04-0040-CV.
    Court of Appeals of Texas, Amarillo.
    Feb. 19, 2004.
    Billy Bob Davidson, Amarillo, Relator pro se.
    Jim Bob Darnell, Lubbock, Respondent pro se.
    Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
   OPINION

PHIL JOHNSON, Chief Justice.

Relator Billy Bob Davidson seeks a writ of mandamus ordering respondent, the Honorable Jim Bob Darnell, Judge of the 140th District Court of Lubbock County, to rule on a motion to obtain records and transcript. We deny the petition.

On January 30, 2004, relator filed with the clerk of this court a pleading entitled Petition for Writ of Mandamus. Relator alleges that respondent has failed to act on relator’s motion filed with the trial court clerk. We are requested to direct respondent to rule on relator’s motion, and, in the alternative, to order that relator be furnished a copy of his records and a transcript of his trial.

In support of the petition for writ of mandamus, relator attached (1) unsworn copies of a letter he purportedly sent to the trial court clerk filing his motion and requesting that it be presented to “the attention of the court”; and (2) a copy of the motion allegedly sent to the trial court clerk. No other document or record of proceedings is attached to or furnished in support of the petition.

When petition for writ of mandamus is made, it is the relator’s burden to show entitlement to the relief being requested. See generally Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig. proceeding). Relator must file with the petition a certified sworn copy of every document that is material to relator’s claim for relief and that was filed in any underlying proceeding, and a properly authenticated transcript of any relevant testimony from any underlying proceeding including any exhibits offered in evidence or a statement that no testimony was adduced in connection with the matter complained of. Tex.R.App. P. 52.7(a).

Moreover, relators seeking issuance of a writ of mandamus must satisfy three requirements to show entitlement to the writ: (1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act. See Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.1979). A court is not required to consider a motion not called to its attention. Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex.App.-Houston [1st Dist.] 1994, writ denied). Showing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court’s attention or presented to the trial court with a request for a ruling. See In re Chavez, 62 S.W.3d 225, 228 (Tex.App.-Amarillo 2001) (orig. proceeding).

Relator has not attached certified, sworn copies of motions and correspondence referenced in the petition. Nor has relator shown that demand has been made upon respondent for action on the alleged motion filed with the trial court clerk, or that respondent has refused to act. Relator has not presented a record which shows entitlement to the relief sought, or upon which we are authorized to act.

The petition for writ of mandamus is denied.


text:
    MONSANTO COMPANY; Delta and Pine Land Company d/b/a Paymaster, Appellants, v. Anthony ALTMAN, Appellee.
    No. 07-02-0370-CV.
    Court of Appeals of Texas, Amarillo.
    Feb. 25, 2004.
    Rehearing Overruled March 26, 2004.

      Elizabeth B. Kamin, Elizabeth P. Vol-mert, Strasburger & Price, L.L.P., Houston, William J. Wade, Crenshaw Dupree & Milam L.L.P., Lubbock, for Appellants.
    Nolan Greak, Greak & Smith, P.C., Lubbock, for Appellee.
    Before QUINN and REAVIS and CAMPBELL, JJ.
   OPINION

DON H. REAVIS, Justice.

By this appeal following a jury trial, appellants Monsanto Company and Delta and Pine Land Company d/b/a Paymaster present seven issues complaining of the judgment based upon jury findings of violations of the Deceptive Trade Practices Act rendering that Anthony Altman recover from Monsanto/Delta a total of $285,857.53, plus interest, and attorney’s fees for appeal. By their issues, Monsanto/Delta contend the trial court abused its discretion and committed reversible error when it admitted (1) the testimony of another farmer because such testimony was immaterial, irrelevant, and unduly prejudicial, and (2) when it allowed Altman to read into evidence portions of answers to interrogatories indicating complaints received from other farmers because such evidence was immaterial, irrelevant, and unduly prejudicial. Monsanto/Delta also challenge the legal and factual sufficiency of the evidence to support the jury’s findings that they (3) committed a false, misleading, or deceptive act which caused Altman any damages, (4) engaged in any unconscionable action or course of conduct which caused Altman any damages, and (5) engaged in any wrongful act knowingly and/or intentionally. They further assert (6) there was no evidence or, in the alternative, insufficient evidence to support the jury’s answers to questions four, five, and six regarding damages and attorney’s fees, and (7) the trial court abused its discretion and committed reversible error when it overruled objections to question four because the question failed to contain a proper instruction or definition of what the jury should consider when assessing lost profits. We reverse and render.

In 1997, Altman, an experienced cotton farmer with operations in Hockley and Lubbock Counties, planted his cotton crop with Roundup Ready® 2326 cottonseed. Because he was pleased with the performance and yield of his 1997 crop, he decided to plant the Roundup Ready® cottonseed again in 1998. His Hockley County fields produced good crops in both 1997 and 1998; however, his 1998 crop in Lubbock County did not meet his expectations based on his experience with the seed in 1997. Altman alleged generally that some of the seed planted in Lubbock County emerged but died shortly thereafter, there were skips in the cotton plants, the stand was not uniform, the field included very small plants next to larger and more mature ones, and the smaller plants would not produce any marketable cotton.

After notifying Monsanto/Delta about the poor performance of the seed planted in Lubbock County in 1998, Altman filed his sworn complaint, and pursuant to chapter 64 of the Texas Agriculture Code, he sought arbitration of his claims. He did not allege that the seed planted in Lubbock County did not meet the percentage of germination contained on the label. See Tex. Agrie. Code Ann. § 61.004(a)(3)(A) (Vernon 1995). Instead, he alleged generally:

such seeds were defective because they did not germinate; the ones that did germinate do so slowly; the taproot on a large amount of the cotton that did mature is defective, abnormal and fails to provide the plant with adequate water so it can develop (sic) the cotton. Additionally, numerous cotton plants that did germinate continue to have problems because of the abnormal taproot and failure of the cotton to grow in a normal manner. The cotton plants will not produce a normal cotton crop.

While his complaint was pending arbitration, Altman filed suit against Monsanto/Delta seeking damages alleging violations of the DTPA and breach of express and implied warranties. By its written report dated November 22, 1999, among other findings of fact, the State Seed and Plant Board of Arbitration found the labels for the cottonseeds purchased by Altman included the arbitration notice required by section 64.003 of the Agriculture Code and specified the variety and the rate of germination of the cottonseeds. In addition, the Board concluded the “cottonseeds did perform and produce as represented by the information on the label.” At trial the entire report of the Board was admitted into evidence. See § 64.004 (Vernon Supp. 2004).

By his supplemental petition, Altman abandoned his original claims based on breach of express or implied warranties and proceeded to trial on his DTPA claims. Among other things, Monsanto/Delta (1) alleged Altman’s claims were barred by the disclaimers and limitations of warranties contained on the packaging label, (2) alleged the cottonseed conformed with the packaging label, and (3) requested that the court consider the findings and conclusions of the Board per section 64.004. Altman did not offer any expert testimony, but instead proceeded to trial based on his testimony, the testimony of a Hockley County farmer, and the President and Chief Operating Officer of Delta. In response to question one, the jury found that Monsanto/Delta engaged in a “false, misleading or deceptive act or practice that was a producing cause of damages to Anthony Altman” and by its answer to question two, found that Monsanto/Delta engaged in “unconscionable action or course of conduct that was a producing cause of damages to Anthony Altman.” For purposes of questions one and two, producing cause was defined as:

“Producing cause” means an efficient, exciting, or combining cause that, in a natural sequence, produced the damages, if any. There may be more than one producing cause. However, a defendant’s actions, if any, cannot constitute a producing cause of plaintiffs damages if such damages are caused by an “act of God.” Damages are caused by an “act of God” if the damages are caused directly and exclusively by the violence of nature, without human intervention or cause, and could not have been prevented by reasonable foresight or care.

Questions three, four, five, six, seven, and eight need not be considered because they are not material to our analysis and disposition of the case.

Addressing Monsanto/Delta’s issues in a .logical rather than numerical order, we first address issue three by which they contend there is no evidence or insufficient evidence to support the jury’s finding to question one that they committed a false, misleading, or deceptive act which was detrimentally relied upon by Altman causing his damages. Then, by issue four, Monsanto/Delta contend there is no evidence or insufficient evidence to support the jury’s finding in answer to question two that they engaged in unconscionable action or course of conduct which caused Altman damages. We agree with both contentions. Because these two issues implicate the common question of producing cause and the same standard of review, we will consider them simultaneously.

Altman had the burden to secure a favorable jury finding that the conduct of Monsanto/Delta was a producing cause of his damages. A favorable jury finding may not stand without probative evidence to support the finding. Williams v. Gaines, 943 S.W.2d 185, 193 (Tex.App.-Amarillo 1997, writ denied). As defined in Bailey Cty. Appraisal Dist. v. Smallwood, 848 S.W.2d 822, 825 (Tex.App.-Amarillo 1993, no writ), probative evidence is evidence which “serves to prove the asserted proposition, and it must be more than a surmise or suspicion.” The trial court gave the following special instruction:

[a] fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved.

See Texas & N.O.R. Co. v. Warden, 125 Tex. 193, 78 S.W.2d 164, 167 (1935). Although circumstantial evidence may be considered, meager circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and thus will not survive a legal sufficiency challenge. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998). Further, although probative circumstantial evidence may be sufficient, a vital fact essential to establishing legal elements for recovery may not be established by piling inference upon inference. See Briones v. Levine’s Department Store, Inc., 446 S.W.2d 7, 10 (Tex.1969); Schlumberger Well Sur. Corp. v. Nortex Oil & G. Corp., 435 S.W.2d 854, 858 (Tex.1968).

Standard of Review

In our examination of a no-evidence contention, we consider all the evidence and reasonable inferences therefrom in the light most favorable to the prevailing party. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998). In evaluating legal sufficiency, we are required to determine whether the proffered evidence as a whole rises to the level that would enable reasonable and fair-minded people to differ in their conclusions. Id.; Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994).

Reliance

Among other things, Monsanto/Delta contend, without referencing authority, that Altman did not introduce any evidence to support the essential element of detrimental reliance. Altman does not contend that reliance is not an essential element but instead argues that the issue of detrimental reliance was undisputed and that Monsanto/Delta did not request it be submitted to the jury. A consumer is not required to prove reliance as an element to recover under the DTPA. Weitzel v. Barnes, 691 S.W.2d 598, 600 (Tex.1985). However, three courts of appeals have held that reliance is a factor to consider in deciding whether the defendant’s conduct was a producing cause of damages to the consumer. See Cianfichi v. White House Motor Hotel, 921 S.W.2d 441, 443 (Tex.App.-Houston [1st Dist.] 1996, writ denied); Celtic Life Ins. Co. v. Coats, 831 S.W.2d 592, 596 (Tex.App.-Austin 1992), aff'd as modified, 885 S.W.2d 96 (1994); see also James V. Mazuca and Associates v. Schumann, 82 S.W.3d 90, 95 (Tex.App.-San Antonio 2002, pet. denied). In Mazuca, the court observed in reversing a judgment based on DTPA claims after noting that reliance may be a factor in determining whether a misrepresentation was a producing cause of damages:

[i]t is apparent from Schumann’s own testimony that he in no way relied on Mazuca’s statement....

See also Prudential Ins. v. Jefferson Associates, 896 S.W.2d 156, 166 (Tex.1995) (concurring opinion of Justice Cornyn) (noting the existence of an “as is” clause is relevant to the producing cause inquiry). Following, Cianfichi, Celtic Life, and Ma-zuca, we focus our review of the evidence on whether any false, misleading, deceptive act or practice, or unconscionable action of Monsanto/Delta was a producing cause of Altman’s damages.

Analysis

Altman testified that' he planted Roundup Ready® cottonseed in 1997 and was pleased with the crop and its yield. On cross-examination he admitted he knew that Monsanto/Delta did not guaranty the seed or a yield and that in 1998, he planted all his acreage to Roundup Ready® cottonseed because he was “happy with it from the year before, from 1997.”

Altman’s crop planted in Hockley County and his dry land crop in Lubbock County were acceptable, although he was dissatisfied with his irrigated fields in Lubbock County in 1998. He admitted it was normal for crop yields to vary, from year to year and that notwithstanding his disappointment with thé 1998 irrigated crop, he planted Roundup Ready® cottonseed in 1999.

In describing his irrigated field in Lubbock County, Altman testified that “one day he had a beautiful crop,” and “a couple of days later it was horrible.” He claimed the cottonseed was defective because it did not germinate and focused his claim on Monsanto/Delta’s failure to inform him of the cool germination test results. However, Altman admitted that before 1998, he never questioned a cottonseed provider about the results of a cool germination test nor inquired about the results of the test when he purchased the Roundup Ready® cottonseed for planting in 1999. Although the expression in a brochure or advertising material of an opinion by a seller is generally not actionable unless it contains representations of fact, Altman also based his DTPA complaints on a brochure provided in 1997. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 480 (Tex.1995).

In addition to its written report denying Altman any recovery on his claim, the Board made findings of fact and conclusions. As material here, it found:

7. Test conducted on the plants located in the fields in which the plants died at the seedling state revealed the presence of seedling disease.
8. The problems that Complainant experienced with his cotton crop appeared to be due to factors other than defective cottonseeds.
9. The cottonseeds purchased by Complainant did include the arbitration notice required by the Act (Texas Agriculture Code, Section 64.003). The labels also specified the variety and the rate of germination, of the cottonseeds. The label did not contain any information regarding the vigor, yield of the crop produced by the seeds, or any other warranties regarding the seeds.
10. The cotton crop produced from the seeds purchased and planted by Complainant was consistent with the information represented on the labels.

Because the report was admitted into evidence without any limiting instruction, it could be considered by the factfinder for all purposes. See Tex.R. Evid. 105(a); In re K.S., 76 S.W.3d 36, 40 (Tex.App.-Amarillo 2002, no pet.).

Altman’s acknowledgment that he planted the Roundup Ready® cottonseed in 1998 because of his favorable experience with it in 1997 is similar to the analysis in Mazuca that the consumer “in no way relied on” the defendant’s statement. 82 S.W.3d at 95. Moreover, Altman did not introduce any evidence, expert or otherwise, disputing the accuracy of the information on the labels of the seed he purchased nor challenge the findings of the Board that the cottonseed was properly labeled and the crop produced was consistent with the germination information on the labels. Further, Altman did not claim the germination or other information provided on the labels was incorrect or that the crop did not conform to the representations contained on the label. Because the evidence regarding germination information on the label and other findings is not disputed, the jury was not free to disregard the uncontradicted evidence. Schwartz v. Pinnacle Communications, 944 S.W.2d 427, 434 (Tex.App.-Houston [14th Dist.] 1997, no writ).

Altman had the burden to show by probative evidence that the claimed misrepresentations, deceptive acts or practices, or unconscionable action induced him to purchase Roundup Ready® cottonseed for planting in 1998 and, consequently, was the producing cause of his damages. Doe, 907 S.W.2d at 481. Instead, the evidence shows he purchased the cottonseed for planting in 1998 because of his successful experience with it in 1997. Further, according to the undisputed evidence, the cottonseed was properly labeled for germination and other purposes, and the crop was consistent with the representations on the label. Questions one and two presented two sub-questions, to-wit: (1) conduct and (2) producing cause of damages. Directing our attention to the “producing cause of damages” sub-question, even when viewed in the light most favorable to Altman and considering the evidence in its entirety, we conclude there was no probative evidence rising above surmise or suspicion to support the jury’s finding that the conduct of Monsanto/Delta was the producing cause of Altman’s damages. Issues three and four are sustained. Our sustension of issues three and four preter-mits our consideration of the remaining issues.

Accordingly, the judgment of the trial court is reversed and judgment is hereby rendered that Altman take and recover nothing against Monsanto/Delta.

      . Issues restated in the interest of brevity.

      . Deceptive Trade Practices-Consumer Protection Act, Tex. Bus. & Com.Code Ann., §§ 17.41-17.885 (Vernon 2002 & Supp.2004).

      . The charge defined false, misleading, or deceptive act or practice to mean any of the following:
      Representing that the goods had characteristic uses, benefits or qualities which they did not have; or
      Representing that the goods were of a particular standard, quality or grade, if they are of another; or
      Failing to disclose information concerning the goods which was known at the time of the transaction with the intent to induce Anthony Altman into a transaction into which he otherwise would not have entered into if the information had been disclosed.

      . The charge defined unconscionable action or course of action as an act or practice, that to a person's detriment; either—
      a. takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree; or
      b. results in a gross disparity between value received and consideration paid in a transaction involving transfer of consideration.

      . Among other requirements, per section 61.004(A) and (C) of the Agriculture Code, a label on agricultural seed must contain the percentage of germination, exclusive of hard seed, as determined by rule of the department, and the calendar month and year that the test was completed to determine the percentage of germination.