                           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

      2
          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.



      3
         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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