Rylee v. McMorrough

ON MOTION FOR REHEARING

On motion for rehearing appellant points out our failure to rule on her second point *653of error, which is that the trial court erred in granting summary judgment prior to completion of discovery by appellant. To support the point appellant relies on two facts before the court at the time of the hearing on summary judgment: (1) that appellee’s deposition was in recess, and (2) that a motion for production had previously been filed with the court. Neither of these facts serves to preserve this point on appeal, and appellant failed to take any additional steps to preserve the point.

Appellant may not complain that she was forced to go to trial before she was ready when she did not move for a continuance in the case. Snell v. McCracken, 70 S.W.2d 488 (Tex.Civ.App.—San Antonio 1934, no writ); Ohmart v. Highberger, 43 S.W.2d 975 (Tex.Civ.App.—San Antonio 1931, writ ref’d). This rule applies to summary judgment hearings, although applications for additional time under the summary judgment provisions of Tex.R.Civ.P. 166-A do not require a strict compliance with all the requirements of Tex.R.Civ.P. 252. Enterprises & Contracting Co. v. Plicoflex, Inc., 529 S.W.2d 805 (Tex.Civ.App.—Houston [1st] 1975, no writ). Appellant admits she failed to file a motion for continuance, and there is no complaint in her motion for rehearing filed with the trial court of any refusal by the court to continue the hearing. Furthermore, appellant’s counsel approved the judgment which recites that both attorneys appeared in person and announced ready. Finally, the motion for production to which appellant refers was never set down for hearing or ruled upon by the trial judge. It is elemental that matters not presented to the trial court and on which no ruling was obtained may not be reviewed on appeal.

Appellant’s motion for rehearing is overruled.