Full opinion text
OPINION PRICE, Justice (Assigned). The plaintiff in a multi-cause of action lawsuit appeals from a directed verdict against him on all causes of action. He and his trial attorneys also appeal from sanctions entered against them by the trial judge. We affirm parts of the judgment, reverse and remand parts of the judgment, and reverse and render part of the judgment. We dismiss part of the appeal for want of jurisdiction. I. The Evidence The trial, before it was terminated by the judge’s directed verdict, lasted over a month. The following evidence was adduced, in front of the jury unless otherwise noted. Mark Metzger (Metzger) and his wife Judy (Sebek) had three children: Marcus, Larry, and Danielle. In 1986, Metzger and Sebek separated. In October of that year, Metzger filed for divorce, alleging adultery. In the divorce proceeding, Metzger was represented by Burta Raborn (Raborn). Earle Lilly (Lilly) and Joel Nass (Nass) represented Sebek. Metzger was awarded sole managing conser-vatorship of the children, but he later agreed to joint managing conservatorship with Se-bek. The divorce case was ordered to “nonbinding” arbitration in November, 1986. Metzger testified in a bill of exception that Lilly, in January, 1987, “entered a pleading in the court record requesting the — it was an order for Child Protective Services, which was infusing into the case child abuse allegations.” Although the divorce court’s file is in our record, no such pleading is contained within it, or anywhere else in the record. We have no pleading in our record that “infus[es] into the case child abuse allegations” in or around January, 1987. At some point during early 1987, Larry, now three and a half years old, was enrolled in Montessori Morning Glory School (the School). On February 20, personnel at the School reported .a handprint bruise on Larry’s stomach to Childrens’ Protective Services (CPS). According to Sebek, this was the first time that Larry manifested a sign of abuse. The CPS record indicates that the “[plhysical abuse has been substantiated,” but that the “[pjerpetrator [is] unknown.” Also in March, 1987, the School’s progress reports on Larry indicated that he was unable to complete his work, he attacked other children, and he cried in a “heavy, emotional, depressed” manner. Late in April, two of Larry’s teachers at the School met separately with Metzger and Sebek to convey their concerns and recommend counseling. Sebek asked one of Larry’s teachers, Rebecca Kugler (Kugler), who was also the School’s director, to recommend a psychologist. Kugler referred her to several psychologists, among them Barbara Taylor (Taylor). The non-binding arbitration ended, unsuccessfully, on April 28. On April 29, Sebek and Larry met with Taylor. While Sebek and Taylor talked, Larry began playing with the dolls in the meeting room. According to Taylor, Larry’s play with the dolls was disturbing: Larry took the dolls and stripped their clothes off. I mean ... had them all undressed. ... It was a frantic activity. That was the first thing that caught my attention. The next thing that he did, which was most unusual, was he took Scotch tape ... and he taped his own mouth, after which he took the Scotch tape and bound the legs of the dolls together and taped them. He had ... a quality to his play that was eerie. [H]e would laugh and he would have this glimmer on his face that was very bizarre and strange ... and I said: There is something very wrong here. [T]his activity and this stripping of the dolls and taping of the legs and then eventually at one point having dolls humping one another from behind and hiding under the stairwell — I have a baby doll in my office that’s a regular-size baby doll that he took behind the chair. He would leer over the chair at me and undress the baby doll and always with Scotch tape over his mouth and always was taping the mouths and the legs of the dolls, and the significance of that to me was that there is something that’s very secret, that he is not supposed to tell, and that the tape over his mouth is an indication of the secretiveness of this. Based on his appearance and his play, Taylor suspected that Larry was being sexually abused. During this first meeting between Sebek, Larry, and Taylor, Sebek told Taylor that Metzger had twice previously been reported to CPS for child abuse. Shortly after the meeting, Taylor called Marie Senegel (Sene-gel), the CPS ease worker, and informed Senegel of her suspicions. During their conversation, Senegel told Taylor that she was planning on closing the file on Metzger. Taylor asked Senegel to keep the ease open, and Senegel agreed. Taylor also attempted to get Metzger to meet with her. These attempts were unsuccessful. Taylor next saw Larry on May 4. At that time, Larry reenacted the sexual theme of stripping the clothes off the dolls, taping his mouth, taping their legs, and having the dolls hump one another ... There were different configurations. Sometimes the father doll is behind the child doll ... That same day, Taylor called Kugler to obtain some information on the Metzger family. Kugler told Taylor about an incident when Metzger knocked Larry down and kicked him in the stomach because he had tripped over his shoelace. She also related an incident in which Larry “saw a little girl with a loving father and kicked the little girl in the head.” He then “cracked up and began to sob and cry.” Kugler did not implicate anyone in sexual abuse. On May 7 and May 9, Metzger, Larry, and Marcus went to see Dr. Jerome Brown (Brown), another psychologist. Dr. Brown documented the following observations and conclusions: The evaluation results for the children reveal difficulties for both of them, especially for the youngest, Larry. They are both troubled children ... Larry ... seems to be a more disturbed child.... With regard to the specific issue of sexual abuse of [Larry], there is no clear or definite way to use the evaluation results to determine whether or not such actions ever occurred. However, it can be stated that Mr. Metzger does not exhibit the personality characteristics, behaviors, background or attitudes typically associated with individuals who do commit such inappropriate acts. The level of involvement he has with [Larry] is unusual for the typical sex offender.... In summary, the present situation involving allegations of sexual abuse by Mr. Metzger of ... Larry should be viewed with considerable skepticism, in my opinion. Mr. Metzger simply does not exhibit the characteristics, attitudes or behavioral background of individuals who molest their children.... On May 11, Brown wrote Kugler, asking her to fill out a report on Larry’s “functioning at school.” Dr. Kugler’s response included the following remarks: [Larry] attacks children physically by hitting, kicking, throwing things at them, pushing, pouring water on them from a drinking glass, spitting, and pulling on clothing_ He is exhibiting confusion about discipline and love, appropriate physical contact with others and other alarming behaviors.... Larry undresses dolls and physically abuses them. He has made attempts to undress shy children and sleeping children and on one occasion attempted to insert his finger into the anus of another child.... Larry places tape over his mouth when he sees tape on the art shelf of the classroom. In late May or early June, Kugler and another teacher met with Metzger and Sebek to discuss Larry’s behavior at the School, which had worsened. Kugler told Metzger and Sebek that Larry “was showing signs of sexual acting-out behavior, that the boy had become more aggressive, he was hitting other children....” Kugler requested that Metzger and Sebek remove Larry from the School because of his “aggressive behavior.” Kugler also told Metzger and Sebek that, as a result of Larry’s sexual acting-out, the School was going to report to CPS about Larry’s sexually oriented behavior. On June 2, Sebek moved the court to conduct a social study. Lilly suggested that the court appoint Dr. Jean Guez (Guez), a psychologist, to conduct the study. Raborn spoke to court personnel about Guez and approved Lilly’s suggestion. The court appointed Guez, specifying that she should “perform psychological testing and evaluation of the children and the parties” and to make a written report of her findings to the court. On June 3, Kugler reported to Senegel at CPS. Another CPS worker in turn reported to the Houston Police Department (HPD). HPD assigned Officer Sherry Turner Anderson (Anderson) to the case. On June 4, Senegel called one of Larry’s other teachers at the School. The teacher confirmed that Larry had been sexually acting-out in class. On June 10, Senegal visited Metzger and Larry at Metzger’s home. Senegel discussed “inappropriate touching” with Larry: We discussed the parts of the body utilizing the anatomically correct dolls and he was easily able to name all parts including the private part area. We then discussed good and bad touches. I asked if anyone had given him a bad touch and he said no. I asked if he had touched anyone else and he said no.... I then told Larry that he should tell his parents if someone touches his private part area and he agreed.... Senegel also met with Marcus during this visit: [Marcus] proceeded to tell me that Larry was put out of school for touching someone in the “butt” and he said that he does it all the time.... The next day, June 11, Sebek met separately with Guez and Senegel. Sebek expressed concern that someone was sexually abusing Larry, and she recounted a list of possible suspects, including some of Metz-ger’s neighbors. She did not list Metzger among the people she thought might be responsible. When discussing the same subject with Senegel, she again mentioned Metz-ger’s neighbors, but not Metzger. Either on June 16 or 17, Guez evaluated Larry. Guez testified that her first evaluation of Larry was on June 17; her notes also indicate that June 17 was the first date. Senegel, however, testifying from a copy of her handwritten notes, stated that she called Guez on June 16, and that Guez told Senegal that she (Guez) had evaluated Larry and suspected that he had been abused. She testified that she had not seen her original handwritten notes, and that “[i]t’s possible” that the date had been altered. She stated that “[t]he date could have been changed.” Guez testified that she spoke to Senegal and reported her suspicion on June 17. Guez reported to Senegal that Larry was “troubled,” and that he was possibly being sexually abused. Guez stated that he evaluated Larry four times: on June 17 and 18, and on July 7 and 9. During this period, she obtained copies of Kugler’s records, Brown’s records, and Taylor’s records. Guez’ observations of Larry included the following: Larry is acutely distressed_ His demeanor, affect, and behavior as well as the content of his play and projections suggest a strong likelihood of both physical and sexual abuse. The etiology of the abuse appears to be from a male figure and possibly a paternal figure. Guez also stated that Larry’s distress appears to relate to a history of sexual abuse, “most likely by his father.” From the stand, Guez explained some of the reasons for her conclusion that it was “most likely” Metzger who was sexually abusing Larry: [Larry] went over to a dollhouse and he removed the furniture from the room, and there’s a group of family dolls that I have that go along with the dollhouse. He removed all of the furniture from one room, and he said: I’m scared to touch the daddy dolls. He took the daddy dolls and he put them behind his back and hid them and called them the daddy dolls.... He took two daddy dolls and he hid them behind his back. Then he unclothed the little boy doll, hides it and starts smiling and becomes very secretive in his play with that doll. And then he looks at me ... and he points to the anus of the doll and he says: What’s that? And he sort of smiles and appears to have a lot of anal interest at that point. He says: The chimney has smoke in it. This is daddy. He pulls out a daddy doll. He says: I have two daddies.... [T]hen he says he hurt him and the little boy with the two daddies, he’s dead, and the mommy and the daddy are mad at each other, and the two daddies are together right now. He’s got the two daddy dolls and the little boy doll in the middle, and he has the daddys [sic] back-to-front, and he says they’re bad, real bad, and he bangs them against this little baby doll in the middle, and says they’re having a spanking. That created some interest in me in sexual problems, fear of daddy, possibility of some type of abuse, be it physical, emotional or sexual with father figures. Guez’ conclusions included the following: [T]here is a strong likelihood of both physical and sexual abuse suggested by [Larry’s] behavior. The etiology of the abuse appears to be from a male figure and possibly a paternal figure.... A male figure and possibly a paternal figure was suggested to me by this boy’s play, and specific references to his fear of daddy dolls and his preoccupation with being hurt and seared around daddy, wanting to run away from daddy’s house. Guez’ notes and her testimony both reflect that Larry had said that he had two “daddies.” Guez did not know to whom Larry was referring when he spoke of the second “daddy.” On June 26, Senegal asked Guez to serve as “case monitor” and to “inform us if abuse is disclosed.” On June 30, Senegal noted in the CPS file on the case that “[a]t this time, the investigation is incomplete. Therefore, findings will be delayed until we are able to reinterview Larry for possible sexual abuse.” On or about July 2, HPD “cleared” the case against Metzger “as unfounded,” noting that Larry himself had never stated that he had been abused. Anderson stated that there was “some evidence” to go forward with the case, but that there was just not enough evidence, particularly without a statement from Larry. The report mentions that Sebek “suspects the father’s friends” of abusing Larry, “as the father is gay.” On July 6, Guez evaluated Metzger. Her reports states that “[t]here is a preoccupation with sexuality which suggests a cloaked or latent polymorphous perverse orientation to the environment. His fantasies may include latent homosexual, bisexual, and exhibitionist feelings ... [T]he data suggest that ... his rigid defensive stance belies emotional dysfunction particularly in the arena of interpersonal relations and sexuality.” On the morning of July 7, Sebek noticed that Larry was lying on the floor not wearing any underwear. Sebek testified about the incident as follows: [H]e was playing with himself. And he was sort of in a traum — he was in a daze. And I said, Larry, and he was kind of straunehed [sic] up on the floor. What are you doing. And he said I am playing with my privates. Jerking them up and down. I said has anybody ever done that with you. He said yes. And I said who. And trying to be calm about this whole thing. He said daddy. And I said, well, does he do anything else with you. And he said he ties his feet. And he said other things about his daddy riding his back, calling him horsey and names and so it was — I assured him that he had done nothing wrong, that everything was going to be okay. And we talked a little bit about saying no, being firm and I called Dr. Guez and asked her what I should do with him_ [S]he recommended I take him out of the situation, the home and take him in another environment and that I had done the right thing by staying calm. That afternoon, Metzger picked up Larry to attend an appointment they had with Guez. Pursuant to the court’s temporary orders, Larry was to spend that night (and the night of July 9) with Metzger. While Metzger and Larry were with Guez, Sebek drove to Metzger’s home to talk to Larry’s baby-sitter. Because Sebek knew she had to leave Larry with Metzger that night, she asked the sitter to spend the night in Larry’s room with Larry. Sebek told the sitter that she was concerned because Larry had been having “horrible nightmares”; the sitter promised Sebek that she would watch over Larry. On July 9, Sebek reported Larry’s statements to Senegal. She told Senegal she wanted to “file charges” against Metzger. Senegal scheduled an interview for Sebek and Larry for the next day, July 10. In the interview, Senegal used anatomically correct dolls to question Larry. The following occurred (in Senegal’s words): Larry had a blue bicycle chain with him.... We again talked of touching, in terms of good touches and bad touches and I asked if anyone had given him a bad touch and he said yes, his father did. I asked how many times it happened and he said many times. I asked in which part of the house and he said the bedroom.... I then asked Larry to indicate with the dolls and he undressed the male doll and touched his private part area by moving it up and down. I then asked Larry about the bicycle chain and he said he and his father play with it. I asked him to show me and he tied the chain around his arms and also put it over his head and around his waist. After interviewing Larry, Senegal recommended to Sebek that Metzger have no overnight visitation “because of the abuse.” Senegal also recommended that Metzger’s visits with Larry all be supervised. Later that day, Senegal, Sebek, and Larry went to Anderson’s office. Sebek gave a statement to Anderson about what Larry had said, and Senegal videotaped an interview with Larry for Anderson to view. We have viewed the videotape. During its making, Larry fidgets constantly, sometimes standing on his head, sometimes sitting in the interviewer’s lap, sometimes lying down, and sometimes moving around on his feet. We note the following occurrences, set out in chronological order, on the videotape: * Larry correctly identifies the name of his “dad” as Mark. * Larry has difficulty with the concepts of truth and lying: Interviewer: Larry, do you know what a lie is? Larry: Yeah. Interviewer: Yeah. What is a lie? Larry: I don’t know. Interviewer: Okay. Do you know if it’s good or bad to tell a lie? Larry: No. Interviewer: No? You don’t? Is it good to tell a lie? Larry: Yeah. Interviewer: Is it good to tell the truth? Larry: Yes. Interviewer: Okay, is it good, is it bad to tell a lie? Larry: Yes. Interviewer: Okay. Do you know what happens when you tell a lie? Larry: Yeah. Interviewer: What happens? Larry: I don’t know. * Larry can correctly identify a person’s “bottom” and “private parts” on anatomically correct dolls. * Larry denies several times that “anyone” has touched his private parts. After the last denial, however, he volunteers that “somebody did.” The following exchange then takes place: Interviewer: Somebody did? Who did? Larry: I don’t know. Interviewer: You don’t know? Larry: (inaudible) Interviewer: You do know? Who did? Larry: Daddy. Interviewer: Okay. What did he touch you with there? Larry: I don’t know. Interviewer: You don’t know. Did he touch you a lot of time or a little bit of times? Larry: A little bit of times. Interviewer: Little bit of time? Larry: Yeah. Interviewer: Did he touch you in the living room or the bedroom? Larry: Bedroom. * Later, Larry again correctly identifies his “daddy’s name” as Mark: Interviewer: What’s your daddy’s.name, Larry? Larry: Mark. * The interviewer later asks Larry where “Mark” touched him, and Larry indicates the doll’s crotch several times. After the last indication, Larry very visibly wets his pants. *At the end of the interview, the interviewer questions Larry about the truthfulness of what he has said in the interview: Interviewer: Now, everything you told me today, is it the truth or is it a lie? Are you telling me the truth? Larry: A lie. Interviewer: Huh? Larry: A lie. Interviewer: No? It’s a lie? Larry: Yeah. Based on what she had heard and seen, Anderson decided to “reopen” the case against Metzger. The report notes that the case is “to continue pending presentation to the DA’s office.” In a report dated July 13, Guez reported to the court concerning Larry’s situation. Guez wrote: [T]here is ample reason for alarm in regard to the psychological well being of these children and in particular ... Larry. Different from the acute distress which the children are experiencing relative to the current litigation and hostility between these two parents, there is a chronic history of trauma, possible abuse both physical and sexual.... Larry exhibits severe signs of depression, self-abuse, uncontrolled acting-out and aggression and a general paucity of either ego controls or nurturing. The deficits in this little boy are so great as to certainly warrant intense psychological intervention, even on an inpatient status. Larry’s distress appears to relate to a history of both sexually and physically abuse [sic] most likely by his father. The abuse ... [appears to be] more in line with fondling and exhibitionism. Guez also wrote that neither Sebek or Metz-ger was capable of adequately earing for Larry: These children have been raised in an environment where the father has taken an authoritarian, rigid, punitive role and where the mother has taken a passive-submissive and helpless role. Both extremes are to a fault and neither on its own can supply the psychological needs of these children.... In the first setting, they are more prone to be behaviorally controlled, but emotionally damaged and in the latter setting they are more likely to be behaviorally out of control, but more emotionally supported. The lack of a core identity in Mrs. Metzger keeps her from being able to provide direction either for herself or for her children and she will need a massive dose of parenting skills and support in order to provide an appropriate environment in which these children can thrive. Mr. Metzger’s interpersonal and sexual problem and reliance upon authoritarian models of the family make him a poor candidate to be Managing Conservator of these children. That is not to say he should not be allowed father-son or father-daughter relationships with his children. But it is to say that overnight visitation is not recommended, at least for the younger two at this time.... It is recommended that if Mrs. Metzger can get herself psychological support and education on parenting that she be given sole Managing Conservatorship and that Mr. Metzger be allowed a status of PC under limited circumstances.... At trial, Guez elaborated on Metzger’s “sexual problem” (the term she used in her report). She testified that Metzger had “difficulties in gender identity, in sexual expression, and in fantasy associated with sexual issues.” On July 14, Sebek’s attorneys, Lilly and Nass, moved for a temporary restraining order, seeking to stop Metzger from exercising his visitation rights with his children. The motion was based on Guez’ report (a copy of which Nass had previously obtained) and information obtained from Sebek, Taylor, and the School, and was supported by affidavit. The certificate of service on the motion indicates that a copy of the motion was hand-delivered to Rabom. At the hearing on July 14, the court granted an ex parte temporary restraining order prohibiting Metzger’s access to his children. The court set a hearing for July 17. Later on July 14, Guez called Senegal and told her that she had filed a report with the court in which she stated her suspicion that Metzger was sexually abusing Larry. Guez also told Senegal that she believed Larry should be hospitalized. The next day, July 15, Senegal called Metzger to schedule an office visit for them to discuss the allegations of sexual abuse. Metzger said he needed to discuss the matter with his attorney and would call Senegal the next day. When Metzger called the next day, he informed Senegal that his attorney advised that he should have no contact with her until after the hearing on July 17. On July 17, the judge met with Lilly, Nass, Rabom, Senegal, and Guez. Lilly, Raborn, and Guez all testified regarding what occurred in the conference. Their testimony is substantially the same and reflects the following: Guez paraphrased the contents of her report, and stated that,-in her opinion, Larry had been sexually abused, by a male, while in the care and custody of his father. She stated that neither Metzger or Sebek was currently able to adequately care for Larry, and that she wanted to place Larry in Depelchin Children’s Center (Depelchin) because she feared for Larry’s safety, physical and psychological. Although nothing was specifically voiced by Guez or Senegal, both Rabom and Lilly understood that, if they would not accept Guez’ recommendation that Larry be hospitalized, CPS, with the support of Guez, would attempt to intervene in the lawsuit and seek Larry’s hospitalization. Raborn found Guez “articulate,” “persuasive,” “professional,” and “credible.” She believed that the judge would accept Guez’ recommendations and put Larry in Depel-chin “based upon his view of the best interest of Larry Metzger.” She therefore advised Metzger, after the conference, to settle the case “and try to work something out with regard to [Depelchin] so that he could maximize the amount of time that he would have with the children.” Raborn advised Metzger that, if he agreed to having Larry put in Depelchin, “he might have a little control over” the conditions of Larry’s hospitalization, i.e., his visitation rights there. She advised him that if he did not agree to hospitalization, the court would probably do it anyway, and he would then probably have much less say in visitation. When Guez left the conference, she encountered Metzger outside the conference room. She told him that his children, and particularly Larry, were not safe, and that they needed to be in “some type of protective setting,” either “a hospital [or] foster care.” On July 20, the judge, Metzger, Raborn, Sebek, and Lilly signed an agreed divorce decree. The decree included the following terms: ⅜ Sebek is appointed managing conservator of the children. * Metzger is appointed possessory conservator. * Larry is to be placed in Depelchin for 30 days, the cost to be borne primarily by Sebek. * Sebek shall enter therapy with Guez “as pertains to the parent-child” relationship. * “As a condition of possession of and access to the minor children,” Metzger shall enter therapy with Dr. Blair Justice, or, if Dr. Justice is unable to serve as Metzger’s therapist, with “a substitute psychologist or psychiatrist as recommended by Dr. Jean Guez.” Guez was to be “the liaison [ ] between the treating professionals and the legal professionals to determine the best interest” of Larry after the divorce. Sebek enrolled Larry at Depelchin on July 21. She signed a consent form which stated that Larry “will receive ... accepted psychiatric treatment and normal medical treatment by the staff” while he is a patient. She also was presented with (among other forms) a form entitled “Movie Permission,” which stated as follows: Sometimes during a patient’s stay "with [Depelchin], movies with ratings of PG 13 and R are shown specifically for therapeutic content. These movies are always previewed and approved by the treatment team. After viewing, the content is utilized for group dynamic processing. May we have your permission to allow your child to view these movies with the group, if shown? _Yes _No Sebek checked ‘Yes” and signed the form. Larry was admitted to a 10-to-12 bed unit of Depelchin. His treatment team consisted mainly of Dr. Ernest Kendrick, Dr. Luisa Lohner, and Dr. Ann Hodges (all of whom we will refer to by their respective last names). Dr. Kendrick, from Baylor College of Medicine (Baylor), was the head of the team. Larry was evaluated shortly after being admitted. Kendrick opined that Larry “had a variety of behaviors that were unusual, abnormal, and for a child his age ... dysfunctional for him.” Under “Findings,” Larry’s psychiatric evaluation form lists seven disorders with the notation “R/O,” for “rule out,” before the disorders. Guez informed Metzger of the “rule outs.” Metzger understood that the “rule outs” were disorders that the evaluating physician had already concluded were not present in Larry; in other words, that these seven disorders had been “ruled out” as possible problems. Metzger reasoned that, because these seven disorders had been, in his mind, eliminated, the staff at Depelchin had concluded that Larry had not been sexually abused. Actually, however, according to Kendrick, “rule out” means just the opposite: [R]ule out does not mean that any particular event is eliminated as a possibility.... It actually means just the contrary, that that’s part of the differential diagnosis and we are interested to see if those particular things might be what’s going on with the patient.... The significance of it is to communicate to other people who are— who may be involved in reviewing the patient’s treatment what it is you are thinking about as possibilities that may be the ideology or at least maybe the — what’s going on with the patient diagnostically, because that often will indicate treatment. The other health care professionals who testified regarding the meaning and significance of “rule out” gave it the same meaning and significance as Kendrick. Upon receiving news of the “rule outs,” Metzger called Senegal. He requested a meeting with Senegal and her supervisor. Metzger told Senegal that his “rights had been violated”; that Larry’s psychiatric evaluation had “ruled out” sexual abuse; that he and Senegal had been “manipulated and used by the system”; and that he had not abused Larry. Senegal and Metzger arranged to meet the next day. Metzger, however, called the next day and cancelled the meeting, because “something had come up.” Dr. Justice was not available to counsel Metzger; therefore, pursuant to the divorce decree, another doctor had to be secured for that purpose. Metzger asked Kendrick for a recommendation, and Kendrick endorsed Dr. Michael Cox (Cox). Guez approved this choice, and Metzger contacted Cox immediately to begin therapy. The first month or so of Larry’s stay at Depelchin was marked by problems, including the following: ⅝ Larry was often physically aggressive and confrontational with other children. Some of these episodes ended with the other child striking back against Larry and subduing him. ⅜ Larry often struck staff members. ⅜ Larry went to the bathroom in his pants several times, on one occasion smearing excrement on the walls and floor. * Larry used bad language (words such as “f_” and “a_e”) on numerous occasions, cursing the staff and other children; * Larry stated that two older female children come into his room at night and touch his penis. He then recanted, twice stating that the girls did not do anything. ⅜ Larry often played with his privates, and was noted to “act out sexually.” On one occasion, he was noted lying on his stomach with his pants and underwear down. He had “stuck a little toy car up between his buttocks.” When asked about the incident, Larry said he had put the car in his “butt” because, “If I didn’t do that, something would get me.” When asked who told him that, Larry replied, “my daddy.” On August 11, Metzger visited Larry during a “play therapy session.” He did not see Larry again until September. On August 21, upon Larry’s having completed one month’s stay in Depelchin, Kendrick, Taylor, Guez, Lohner, and Senegal met to discuss Larry’s case. Larry’s diagnosis was “post-traumatic symptoms due to sexual abuse, possibly by Mr. Metzger, as well as possible physical abuse.” Another note stated that “[a]t present there are still questions about both parents’ capacity to parent; however, Ms. Metzger is the least detrimental.” The following plan was also reported: Larry will remain hospitalized for an additional 30 days and Mr. Metzger’s visitations will remain the same. Larry can be released to Ms. Metzger once her ability to protect increases and this will be based on three criteria: a. Her plans for day-care. b. Her increased parenting skills and therapy for she and Larry. e. Ms. Metzger’s commitment to long-term treatment for Larry. The report from the August 21 meeting concludes with this note: “The card Mr. Metz-ger had given to Larry was also disclosed and it displayed two gorillas, one on top of the other one, which was determined inappropriate.” Anderson presented HPD’s file on the case to Marie Munier (Munier), Chief of the Child Abuse Unit of the District Attorney’s Office, who decided to go forward. Child Abuse Unit personnel contacted those appellees who had records on Larry and subpoenaed their records. None of the appellees initiated contact with the District Attorney’s Office or volunteered information. By September 17, Larry had achieved some progress. Kendrick reported that Larry no longer used the bathroom in his pants or wet his bed. On September 25, Munier spoke by telephone to Cox. Cox agreed that someone had been abusing Larry, but pointed out that Larry had called other adult males besides Metzger “daddy.” Munier thus decided that, in order to ascertain whether Larry actually meant Metzger when he had implicated, on previous occasions, “daddy” in his sexual abuse, Larry should view a photospread and be asked to identify who had abused him. Munier asked Anderson to arrange a photo-spread that included pictures of Metzger, Sebek’s boyfriend (whom Metzger had identified as a possible perpetrator), and others. Anderson went to Depelchin and showed Larry the photospread. Larry picked out Metzger’s picture. On October 2, Senegal called Kendrick about Larry’s progress. Kendrick related that Larry had regressed within the last 10 days and had started soiling his pants again. Kendrick also noted that Larry’s play “is also regressing to sexual connotations again.” He also reported that Metzger had visited Larry twice a week lately, and opined that Larry’s regression “has a direct association to Mr. Metzger’s re-entry into Larry’s life.” Kendrick projected that Larry would need to remain in Depelchin for another 30 days. He expressed reservation regarding whether either of Larry’s parents could adequately care for him. On October 27, Munier presented the case regarding Metzger to a grand jury. She presented both the evidence that tended to incriminate Metzger in the sexual abuse of his son, and the evidence that tended to exculpate him. Cox was the only witness to testify. Excerpts of his testimony include the following: * “I have no evidence from the standpoint of psychological test that would leave [sic] me to believe he is a sex offender.” ⅝ “I don’t believe [Metzger] ever touched this child for his own sexual gratification.” * “If I was blind and said, ‘Give me this stuff and the test results on this. Is this guy likely to offend?’ I would say ‘no.’ ” Later in Cox’ testimony, Munier confronted him with the fact that Larry had picked Metzger' out of a photospread. She asked Cox, “Does that change your opinion now?” He replied: [I]f the interview and picture session were a valid one ... I assume it was a valid interview and I assume that Larry validly indicated Mark and to me, yeah, that is the most significant data point. The grand jury indicted Metzger for sexual indecency with a child. The charges were dismissed, however, on the district attorney’s motion, made after the trial court ruled that Larry was incompetent to testify. On November 11, Depelchin discharged Larry. In the “closing summary,” Kendrick wrote: Although Larry made significant progress while in therapy, he needs to continue with outpatient care to decrease his depression and self-abusive behaviors, increase his trust in adults, increase his ability to protect himself by enlisting the aid of significant others, and reduce his aggressive behaviors. His parents need to continue in therapy to increase their parent management skills and improve their abilities in protecting and communicating with Larry. On July 25, 1988, Guez issued her final report to Raborn and Lilly. She observed that “Larry is doing remarkably well”; that “Mark and Judy Metzger have made measurable progress in regard to their own therapy and parenting skills,” but also that “[b]oth ... continue to have a higher priority attached to their own needs than to the children’s-and that “[i]n regard to visitation issues, it is imperative that the status quo be maintained. Night terrors and bed-wetting continue to occur after visitations with Mr. Metzger and increased time or unsupervised time is not considered to be in the best interest of the children.” On July 13, 1989, Metzger filed suit in federal court against the appellees and others, since dismissed. On August 16, 1990, the federal court dismissed Metzger’s case on the ground that “the Court abstains from exercising jurisdiction even if, arguably, that jurisdiction exists.” Metzger then brought suit in state court. At the time of trial, Metzger’s petition asserted the following causes of action: 1. civil conspiracy “for the unlawful purpose of maliciously, and without probable cause, bringing a criminal prosecution against Plaintiff for allegedly having sexually abused” Larry; 2. civil conspiracy “to [extort from and] defraud Plaintiff of valuable property and liberty interests, protectable under both the Texas and United States Constitutions”; 3. malicious prosecution; 4. “deprivation of civil rights based upon malicious prosecution”; 5. intentional infliction of emotional distress; 6. medical negligence for “negligently misdiagnosfing] Larry as having been physically and sexually abused by Plaintiff” (asserted only against Depelchin, Baylor, Kendrick, Lohner, Cox, and Taylor); 7. negligent infliction of emotional distress (asserted only against Depelchin, Baylor, Kendrick, Lohner, Cox, and Taylor); and 8. civil RICO (Racketeer Influenced and Corrupt Organizations Act). After hearing Metzger’s evidence, the trial court granted a directed verdict for all appel-lees on all applicable causes of action; the court did not state the specific ground or grounds on which it granted the motion. The court then sanctioned Metzger and his trial attorneys, L.T. “Butch” Bradt (Bradt) and Joe Alfred Izen, Jr. (Izen). II. A Fair Trial Before An Unbiased Judge The appellants contend that the trial court denied them “a fair and impartial trial,” and did not act as an unbiased court. They complain that the court “disparag[ed]” counsel “both in and out of the presence of the jury,” and that the court “accus[ed] counsel ... of lying to the court and jury.” This includes Metzger’s sixth point of error, Bradt’s tenth, eleventh, and twelfth points of error, and Izen’s eleventh, twelfth, and thirteenth points of error. We note initially that, because the judge removed this case from the jury — and thus the jury did not decide anything — Metzger could not have been harmed by the jury perceiving from his attorneys’ conflicts with the judge that the judge was against him, if indeed the jury did so perceive. We also note that the judge never accused counsel of lying. On three occasions, he admonished Metzger’s counsel not to mislead, each time with some reason: 1.Outside the presence of the jury, the judge told Izen that he had misled the court, asked him why he did it, and instructed him not to do it again. Izen had stated that Guez suspected other people besides Metzger of abusing Larry, when Guez had actually said that Sebek had told her that she, Sebek, suspected other people of the abuse. 2. While questioning his witness, Izen referred to a medical report as being written by Taylor, when in fact the witness he was examining at the time had just testified that she herself had written the report. Defense counsel objected to the question, pointing out that the report had not been written by Taylor. The judge sustained the objection, and then told Izen, “don’t mislead me anymore.” 3. When Izen was cross-examining Lilly, Lilly testified four times that he had not seen a videotape before trial. Izen then asked him whether he remembered what was on the videotape. After an objection by defense counsel, the judge told Izen to “think again” if he thought he was going to mislead the lawyers, the judge, and the jurors, and told him that he had tried to “misrepresent evidence.” The propriety of the judge’s comments will be discussed below. With these preliminary observations, we turn to our analysis of the appellants’ complaint. 1. The substance of the parties’ right The parties have a right to a fair trial under both the United States Constitution and the Texas Constitution. See In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (holding that “[a] fair trial in a fair tribunal is a basic requirement of due process”); Babcock v. Northwest Memorial Hosp., 767 S.W.2d 705, 708 (Tex.1989) (holding that, “[i]n Texas, the right to a fair and impartial trial is guaranteed by the Constitution”). In Texas, part of the right to a fair and impartial trial is also secured by statute. See Tex.Gov’t Code Ann. § 62.105 (Vernon 1988). One of the most fundamental components of a fair trial is “a neutral and detached judge.” Ward v. Village of Monroe- ville, 409 U.S. 57, 62, 93 S.Ct. 80, 84, 34 L.Ed.2d 267 (1972). A judge should be fair and impartial and not act as an advocate for any party. Delaporte v. Preston Square, Inc., 680 S.W.2d 561, 563 (Tex.App.—Dallas 1984, writ ref'd n.r.e.). A judge should not be any party’s adversary. Ex parte Finn, 615 S.W.2d 293, 296 (Tex.Civ.App.—Dallas 1981, no writ); see Delaporte, 680 S.W.2d at 563. The impartiality of the judge is not only a matter of constitutional law, but of public policy, as well: Public policy demands that a judge who tries a case act with absolute impartiality. It further demands that a judge appear to be impartial so that no doubts or suspicions exist as to the fairness or the integrity of the court. Judicial decisions rendered under circumstances that suggest bias, prejudice or favoritism undermine the integrity of the courts, breed skepticism and mistrust, and thwart the principles on which the judicial system is based. CNA Ins. Co. v. Scheffey, 828 S.W.2d 785, 792 (Tex.App.—Texarkana 1992, writ denied) (citations omitted). Every trial court has the “inherent power” to control the disposition of the cases on its docket “with economy of time and effort for itself, for counsel, and for litigants.” Landis v. North Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 166, 81 L.Ed. 153 (1936). “How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” Id. at 299 U.S. at 254-55, 57 S.Ct. at 166. In Texas, a trial court’s exercise of its “inherent power” is partially promoted by, and partially guided by, the Texas Rules of Civil Procedure, which “provide a trial judge with the tools to facilitate the litigation of lawsuits and, to a certain extent, to prevent abuse of the legal process.” Waguespack v. Halipoto, 633 S.W.2d 628, 629 (Tex.App.—Houston [1st Dist.] 1982, writ dism’d w.o.j.). Together, the court’s “inherent power” and the applicable rules of procedure and evidence accord judges broad, but not unfettered, discretion in handling trials. See Texas Employers Ins. Ass’n v. Loesch, 538 S.W.2d 435, 440 (Tex.Civ.App.—Waco 1976, writ ref'd n.r.e.) (holding that court may place some limits on voir dire examination); Tex.R.Civ.P. 270 (allowing the court the discretion to permit “additional evidence” to be offered); Tex.R.Civ.P. 286 (stating that “[ajdditional argument may be allowed in the discretion of the court” in ,the event that the jury receives further instructions after having retired); Tex.R.Civ.Evid. 611(a) (giving the court “reasonable control” over the interrogation of witnesses and presentation of evidence). 2. The obligations of the judge and attorneys The judge is responsible for the general conduct and management of the trial. Pitt v. Bradford Farms, 843 S.W.2d 705, 706 (Tex.App.Corpus Christi 1992, no writ); Food Source, Inc. v. Zurich Ins. Co., 751 S.W.2d 596, 600 (Tex.App.—Dallas 1988, writ denied); French v. Brodsky, 521 S.W.2d 670, 679 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ refd n.r.e.). In fulfilling this responsibility, the court has discretion in expressing itself while managing the trial. Pitt, 843 S.W.2d at 706; Food Source, 751 S.W.2d at 600; Texas Employers Ins. Ass’n v. Draper, 658 S.W.2d 202, 209 (Tex.App.—Houston [1st Dist.] 1983, no writ); Best Inv. Co. v. Hernandez, 479 S.W.2d 759, 761 (Tex.Civ.App.—Dallas 1972, writ ref'd n.r.e.). The judge may properly intervene in the proceedings to maintain control and promote expedition. Food Source, 751 S.W.2d at 600; French, 521 S.W.2d at 679. The judge should, however, refrain from verbally confronting or displaying displeasure toward counsel, particularly in the presence of the jury. Pitt, 843 S.W.2d at 706; Food Source, 751 S.W.2d at 600; French, 521 S.W.2d at 679. During trial, the judge should not make unnecessary comments or remarks that may result in prejudice to a litigant. Brown v. Russell, 703 S.W.2d 843, 847 (Tex.App.—Fort Worth 1986, no writ); Crawford Chevrolet, Inc. v. McLarty, 519 S.W.2d 656, 664 (Tex.Civ.App.—Amarillo 1975, no writ). “Lawyers [] have the responsibility to conduct themselves with respect for the tribunal and the legal system.” Shaw v. Greater Houston Transp. Co., 791 S.W.2d 204, 211 (Tex.App.—Corpus Christi 1990, no writ). The lawyers (and parties) should not engage in behavior likely to invoke proper admonishment from the court. See Pitt, 843 S.W.2d at 707; Draper, 658 S.W.2d at 209. 3. The standard of review To reverse a judgment on the ground of improper conduct or comments of the judge, we must find (1) that judicial impropriety was in fact committed, and (2) probable prejudice to the complaining party. Pitt, 843 S.W.2d at 706; Brown, 703 S.W.2d at 847; see Food Source, 751 S.W.2d at 600; Tex.R.App.P. 81(b). We examine the entire record to determine whether these factors are present. Pitt, 843 S.W.2d at 706-707; Brown, 703 S.W.2d at 847. 4. Analysis and resolution The statement of facts in this case is over 4400 pages long. We have read it in its entirety, including all of the many episodes where the judge and one or both of Metz-ger’s trial attorneys had any sort of interaction. The appellants complain of over 150 of these episodes. The great majority of the interactions between the judge and Metzger’s attorneys was innocuous; many were just exchanges during which the judge disagreed with Metzger’s attorneys on some point, such as when the judge would sustain an objection made by defense counsel. In some of these instances of disagreement, the disagreements became unpleasant, marked by perceptible sharpness on both sides. In other of these instances, the judge was abrupt, terse, or gruff with Metzger’s attorneys. There is no doubt from this record that the judge sometimes lost his patience with them over the course of the proceedings, which lasted more than a month. Nor is there any doubt that the judge’s patience was sorely tested by the behavior— indeed, sometimes the antics — of Metzger’s attorneys. The record reflects that, to a large degree, Metzger’s attorneys invited the court’s agitation and impatience by their behavior. For example, Metzger’s attorneys repeatedly violated the order in limine; violated other orders of the court; interrupted the judge; grumbled audibly about rulings; laughed at the judge; misread documents; and attempted to mislead the judge and some witnesses. Metzger’s attorneys often earned the impatience and intolerance sometimes shown them by the judge. In several encounters, the remarks of the judge may indeed have created an impression in the minds of the jurors that the judge was impatient, agitated, and angry at the behavior of Metzger’s counsel. This is regrettable. However, as noted, counsel contributed to a very large degree to the state of mind that produced the judge’s sometimes sharp rebukes. We find no evidence, however, that the judge’s impatience was anything more than that, and no evidence of bias against Metzger or his attorneys. The judge’s agitation did not lead to partiality. Nor did the judge become an advocate. The record indicates that the judge’s comments were mainly directed to the often disorderly process of the trial — a process over which the law makes him responsible. For us to set out and analyze in this opinion each episode of conflict cited by the appellants would benefit no one. See Best Investment, 479 S.W.2d at 761 (where appellant complained of judge’s statements that allegedly embarrassed counsel and that allegedly showed the judge had become an advocate for the other side, court of appeals, in overruling point, declined to set out the various remarks complained of, stating that “[i]t would serve no useful purpose” and that the court “ha[s] carefully read and considered same and are of the opinion that none of them or all of them taken together constitute error”); see also Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 471, 86 L.Ed. 680 (1942) (Court declined to separately consider “numerous instances of alleged prejudicial misconduct” because to do so “would unduly extend this opinion,” and held “after due consideration” that there was no reversible error). It would needlessly lengthen an already long opinion, be of no aid to the parties and their attorneys, and provide no significant guidance to the bench and bar. We hold that Metzger has not shown the prejudice required for us to reverse and remand on this ground. See Pitt, 843 S.W.2d at 706; Brown, 703 S.W.2d at 847. As noted, the jury did not decide this case, so any prejudice against Metzger that the encounters between the judge and Metzger’s attorneys may have produced in the minds of the jurors is irrelevant. Indeed, there is authority that the jury’s not deciding this case makes the appellants’ complaint about the judge moot. See Best Investment, 479 S.W.2d at 761 (holding that “the point of error” based on the judge’s allegedly improper remarks “seems to be moot since the case was withdrawn from the jury’s consideration and judgment rendered by the court”). However, in at least one case, a court of appeals has reversed a judgment on this ground “[ejven though many of the[ ] incidents occurred outside the presence of the jury,” holding that “the cumulative effect of all of [the judge’s] acts deprived appellants of a fair trial.” Shaw, 791 S.W.2d at 211 (emphasis added). Here, even considering the “cumulative effect” of all of the judge’s comments, we cannot say that Metz-ger’s right to a fair trial was compromised by the court’s behavior. Those instances where the court showed less patience or decorum than it should have do not amount to reversible error. Based on the above, we overrule Metzger’s sixth point of error. We also overrule Bradt’s tenth, eleventh, and twelfth points of error, and Izen’s eleventh, twelfth, and thirteenth points of error, but for a different reason. The right to a fair trial before an impartial judge is the litigant’s right, not the attorney’s. Bradt and Izen do not have standing to complain of this alleged error. See Gibson v. Richter, 97 S.W.2d 351, 352 (Tex.Civ.App.—San Antonio 1936, no writ). III. The Directed Verdict Metzger argues that the trial court erred in granting all of the defendants a directed verdict on all of his causes of action. This includes Metzger’s third and seventh points of error. Bradt and Izen also allude to the granting of the directed verdict as error. However, even if their discussions of the issue could be construed as valid argument under Tex.R.App.P. 74(f) — an issue we do not decide — they still lack standing to complain of the alleged error. See Gibson, 97 S.W.2d at 352. 1. The standard of review Where a trial court grants a motion for directed verdict without stating the specific ground or grounds on which it is relying, the verdict must be upheld if any of the grounds stated in the motion are meritorious. McCarley v. Hopkins, 687 S.W.2d 510, 512 (Tex.App.—Houston [1st Dist.] 1985, no writ). A directed verdict is proper if (1) a defect in the non-movant’s pleadings makes them insufficient to support a judgment; (2) the evidence conclusively proves a fact that establishes the movant’s right to judgment as a matter of law, or negates the right of the non-movant to judgment; or (3) the evidence is insufficient to raise a fact issue on the cause of action at issue. Edlund v. Bounds, 842 S.W.2d 719, 723-24 (Tex.App.—Dallas 1992, writ denied); McCarley, 687 S.W.2d at 512. The trial court should not weigh the credibility of the witnesses in determining whether a directed verdict is warranted. Do v. Huber, Formagus, Holstead & Guidry Ins., Inc., 728 S.W.2d 852, 853 (Tex.App.—Beaumont 1987, no writ). In reviewing a directed verdict, we consider all of the evidence in the light most favorable to the party against whom the verdict was directed, disregarding all contrary evidence and inferences. Qantel Business Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 303 (Tex.1988); Edlund, 842 S.W.2d at 723. We determine whether there is any evidence of probative force to raise a fact issue on the material question presented. Edlund, 842 S.W.2d at 723. If such evidence exists, it was error for the trial court to direct a verdict; the question should have been presented to the jury. Id. at 724. 2. Metzger’s causes of action A. Negligent infliction of emotional distress In Texas, there is no cause of action for negligent infliction of emotional distress. Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex.1993). At the time of trial, however, this cause of action did exist. See St. Elizabeth Hasp. v. Garrard, 730 S.W.2d 649, 653-54 (Tex.1987). Nevertheless, because Metz-ger did not proceed solely on this theory at trial — having proceeded on seven other causes of action, as well — we apply the holding in Boyles and affirm the judgment for the defendants on negligent infliction of emotional distress. See Boyles, 855 S.W.2d at 594, 603 (where plaintiff failed to assert alternative causes of action perhaps because, under Garrard, this tort still existed, and thus proceeded only on this cause of action, court held that, although ease had to be reversed because tort was abrogated, case was remanded for new trial for plaintiff to assert other possible theories of recovery). The abolishment of this tort in Boyles did not leave Metzger without a viable theory of recovery, as his pleading of seven other applicable causes of action shows. Therefore, unlike in Ms. Kerr’s case, there is no need to remand so that Metzger can plead new theories in the place of this one, because he did not rely solely on this theory at trial. We affirm the directed verdict regarding negligent infliction of emotional distress. B. Medical malpractice Metzger pled medical malpractice against Depelchin, Baylor, Kendrick, Lohner, Cox, and Taylor, for “negligently misdiagnos[ing] Larry as having been physically and sexually abused by Plaintiff.” However, “a mental health care professional owes no professional duty of care to a third party to not negligently misdiagnose a condition of a patient.” Bird v. W.C.W., 868 S.W.2d 767, 772 (Tex.1994). In Bird, the supreme court held that a summary judgment granted to a psychologist accused of negligently misdiagnosing a child as having been sexually abused by his father was proper, because the psychologist “owed no professional duty to the father to not negligently misdiagnose the condition of the child.” Id. at 770. Bird applies here. We affirm the directed verdict regarding medical malpractice. C.Malicious prosecution “Public policy requires that there be wide latitude in reporting facts to a prosecuting authority in order that the exposure of crime not be discouraged.” Compton v. Calabria, 811 S.W.2d 945, 949 (Tex.App.—Dallas 1991, no writ). “Protection is [ ] afforded to one who makes a full and fair disclosure to the prosecuting attorney.” Ellis County State Bank v. Keever, 888 S.W.2d 790, 794 (1994). The gravamen of a malicious prosecution action is that the defendant improperly made the plaintiff the subject of legal process to the plaintiffs detriment. Browning-Ferris Indus., Inc. v. Zavaleta, 827 S.W.2d 336, 338 (Tex.App.—Corpus Christi 1991, writ denied); Daniels v. Conrad, 331 S.W.2d 411, 415 (Tex.Civ.App.—Dallas 1959, writ ref'd n.r.e.) (quoting Daughtry v. Blanket State Bank, 60 S.W.2d 272, 273 (Tex.Civ.App.—Austin 1933, no writ)). At the time this case was tried, a plaintiff against whom criminal proceedings were instituted was required to establish seven facts to prove malicious prosecution; (1) the commencement of a criminal prosecution against the plaintiff; (2) that the prosecution was caused by the defendant or through its aid or cooperation; (8) that the prosecution terminated in favor of the plaintiff; (4) that the plaintiff was innocent; (5) that there was no probable cause for the proceeding; (6) that the defendant acted with malice; and (7) damages. Zavaleta, 827 S.W.2d at 338; Compton, 811 S.W.2d at 949; Thomas v. Cisneros, 596 S.W.2d 313, 316 (Tex.Civ.App.—Austin 1980, writ ref'd n.r.e.); Pete v. Metcalfe, 8 F.3d 214, 219 (5th Cir.1993). “One accused of malicious prosecution is rightly aided by ‘an initial presumption that a defendant acted reasonably and in good faith and therefore had probable cause.’ ” Keever, 888 S.W.2d at 794 (quoting Akin v. Dahl, 661 S.W.2d 917, 920 (Tex.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1911, 80 L.Ed.2d 460 (1984)). The issue of whether probable cause existed does not turn on the guilt or innocence of the malicious prosecution plaintiff. Fisher v. Beach, 671 S.W.2d 63, 66 (Tex.App.—Dallas 1984, no writ); Parker v. Dallas Hunting & Fishing Club, 463 S.W.2d 496, 500 (Tex.Civ.App.—Dallas 1971, no writ); Ledesma v. Dillard Dep’t Stores, Inc., 818 F.Supp. 983, 986 (N.D.Tex.1993). Even an acquittal is not evidence of a lack of probable cause. Fisher, 671 S.W.2d at 66; Parker, 463 S.W.2d at 500; Parkerson v. Carrouth, 782 F.2d 1449, 1452 (8th Cir.1986); Ledesma, 818 F.Supp. at 986. Similarly, the dismissal of the criminal case before trial is not evidence of a lack of probable cause. Ada Oil Co. v. Dillaberry, 440 S.W.2d 902, 910 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ dism’d); see Ledesma, 818 F.Supp. at 986. In their motion for directed verdict, the appellees advanced one ground for a directed verdict on the cause of action of malicious prosecution: the existence of probable cause. The record reveals that, during the proceedings, the trial court temporarily excused the jury and itself received the evidence on probable cause. The trial court, in other words, was the finder of fact regarding probable cause. While this procedure is unusual, the record reflects that it had the approval of all of the attorneys and the judge. Metzger attacks the procedure on appeal, arguing in his fourth point of error that the court erred “in ruling on ... probable cause for malicious prosecution,” and that the court had thereby infringed on Metzger’s “right to trial by jury.” Metzger is estopped from bringing the point. The record shows more than once that his counsel expressly agreed to try the issue of probable cause to the court, on one occasion even pointing out some of the benefits of proceeding in that fashion. A party cannot encourage the court to take a particular action and then complain on appeal that the court erred by taking it. Austin Transp. Study Policy Advisory Comm. v. Sierra Club, 843 S.W.2d 683, 689 (Tex.App.—Austin 1992, writ denied); Dolenz v. American Gen. Fire & Casualty Co., 798 S.W.2d 862, 863 (Tex.App.—Dallas 1990, writ denied). We overrule Metzger’s fourth point of error; In the context of malicious prosecution, p