COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-418-CV
RONALD W ESTON APPELLANTS
AND SUK W ESTON
V.
OW EN MARK ALLISON APPELLEE
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellants Ronald Weston and Suk W eston appeal from the judgment entered
against them, following a bench trial, in their lawsuit against Appellee Owen Mark
Allison for adverse possession and private nuisance. In two issues, the W estons
contend that the trial court abused its discretion by denying their motions for
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See Tex. R. App. P. 47.4.
continuance and by acting in an unreasonable, prejudicial, and arbitrary manner
against them. W e affirm.
II. Factual and Procedural Background
The W estons sued Allison in April 2007 for adverse possession and private
nuisance. The W estons alleged that they had constructed a fence over a portion of
Allison’s property in 1984 and that condition on Allison’s property was a private
nuisance. Allison filed a counterclaim, seeking a permanent injunction against the
W estons and exemplary damages. The W estons were initially represented by
counsel, but they terminated their attorney and appeared at trial pro se. Following
a bench trial, the trial court entered a judgment that the W estons and Allison take
nothing on their respective claims and that the W estons bear all costs of court.
III. Alleged Denial of Motions for Continuance
The W estons contend in their second issue that the trial court abused its
discretion by failing to grant their motions for continuance because they had
subpoenaed three key witnesses who did not appear for trial. Allison responds that
the W estons never asked or moved for a continuance.
To preserve a complaint for appellate review, a party must have presented to
the trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling, if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a). If a party fails to do this, error is not
preserved, and the complaint is waived. Bushell v. Dean, 803 S.W .2d 711, 712
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(Tex. 1991) (op. on reh’g). The objecting party must get a ruling from the trial court.
Tex. R. App. P. 33.1(a)(2), (b). This ruling can be either express or implied. Id.;
Frazier v. Yu, 987 S.W .2d 607, 610 (Tex. App.—Fort W orth 1999, pet. denied). If
the trial court refuses to rule, an objection to the refusal to rule is sufficient to
preserve error. Tex. R. App. P. 33.1(a)(2).
Here, the W estons contend that they twice orally requested that the trial court
continue the trial to permit them to procure the attendance of three “key” witnesses.
But a motion for continuance must be in writing. See Green v. Tex. Dep’t of Prot. &
Reg. Servs., 25 S.W .3d 213, 218 (Tex. App.—El Paso 2000, no pet.); Favaloro v.
Comm’n for Lawyer Discipline, 13 S.W .3d 831, 838 (Tex. App.—Dallas 2000, no
pet.); see also Tex. R. Civ. P. 251, 252. An oral request for a continuance does not
preserve error. Phifer v. Nacagdoches Cty. Cent. Appr. Dist., 45 S.W .3d 159, 173
(Tex. App.—Tyler 2000, pet. denied). The W estons do not contend that they filed
written motions for a continuance, and the appellate record does not contain any
written motions for a continuance. Therefore, the W estons have not preserved their
complaint for appellate review. 2 See id. W e overrule the W estons’ second issue.
IV. Alleged Bias Against Appellants
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Although they are represented by counsel on appeal, we note that the
W estons terminated their attorney and chose to proceed pro se in the trial court. Pro
se litigants are held to the same standards as licensed attorneys; they must comply
with all applicable rules of procedure. Clemens v. Allen, 47 S.W .3d 26, 28 (Tex.
App.—Amarillo 2000, no pet.); Chandler v. Chandler, 991 S.W .2d 367, 378–79 (Tex.
App.—El Paso 1999, pet. denied), cert. denied, 529 U.S. 1054 (2000).
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The W estons contend in their first issue that the trial court abused its
discretion by acting in an unreasonable, prejudicial, and arbitrary manner against
them during the bench trial.
“Texas courts have held that ‘the discretion vested in the trial court over the
conduct of a trial is great.’” Dow Chem. Co. v. Francis, 46 S.W .3d 237, 240 (Tex.
2001) (quoting Schroeder v. Brandon, 141 Tex. 319, 325, 172 S.W .2d 488, 491
(1943)). “[A] trial court may properly intervene to maintain control in the courtroom,
to expedite the trial, and to prevent what it considers to be a waste of time.” Id. at
240–41 (citing Hoggett v. Brown, 971 S.W .2d 472, 495 (Tex. App.—Houston [14th
Dist.] 1997, no pet.) and Great Global Assurance Co. v. Keltex Props., Inc., 904
S.W .2d 771, 777 (Tex. App.—Corpus Christi 1995, no writ)). A trial “judge is
necessarily allowed discretion in expressing himself while controlling the trial of a
case. Reversal of a judgment should not be ordered unless there is a showing of
impropriety, coupled with probable prejudice, and the rendition of an improper
verdict.” Erskine v. Baker, 22 S.W .3d 537, 540 (Tex. App.—El Paso 2000, pet.
denied) (citing Tex. Employers Ins. Ass’n v. Draper, 658 S.W .2d 202, 209 (Tex.
App.—Houston [1st Dist.] 1983, no writ)).
The W estons contend that the trial court acted in an unreasonable, prejudicial,
and arbitrary manner against them by not granting their oral motions for a
continuance, making comments to Allison’s counsel, asking a witness questions,
questioning Mr. W eston while he was not on the stand, and making hearsay
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objections for defense counsel. However, the W estons do not argue that they
suffered probable prejudice by the trial court’s conduct, nor do they cite any authority
to support their argument. 3 Furthermore, in context, the trial court’s actions in this
ongoing fence war between neighbors, while somewhat proactive at times, were
clearly designed to foster efficiency and to avoid unnecessary delay. And to the
extent the W estons complain that the trial court was critical of them, we note that the
trial court also criticized Allison and his counsel on several occasions, overruled
several of Allison’s objections, and denied Allison any recovery on his counterclaims.
Thus, in addition to failing to show probable prejudice, the W estons have not shown
that the trial court acted prejudicially against them. Therefore, the W estons have not
shown that the trial court abused its discretion, and we overrule their first issue. See
Pitt v. Bradford Farms, 843 S.W .2d 705, 707 (Tex. App.—Corpus Christi 1992, no
writ) (overruling complaint that trial court acted prejudicially against the appellant
during her jury trial by interrupting her witnesses and counsel, prompting opposing
counsel to make objections, and belittling her counsel in front of the jury).
V. Conclusion
Having overruled each of Appellants’ two issues, we affirm the trial court’s
judgment.
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The W estons do cite Beaumont Bank v. Buller, 806 S.W .2d 223, 226 (Tex.
1991) and Heritage Res. v. Hill, 104 S.W .3d 612, 618 (Tex. App.—El Paso 2003, no
pet.) for the proposition that the appropriate standard of review is abuse of
discretion, but neither case is legally or factually similar to the present case.
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ANNE GARDNER
JUSTICE
PANEL: LIVNGSTON, C.J.; GARDNER and MEIER, JJ.
DELIVERED: August 5, 2010
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