                                  NO. 12-14-00300-CV

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

IN THE ESTATE OF                                 §      APPEAL FROM THE

RODNEY JOE KNIGHT,                               §      COUNTY COURT AT LAW

DECEASED                                         §      CHEROKEE COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Natosha Moore appeals the trial court’s admission of the will of Rodney Joe Knight to
probate. She presents four issues for our consideration. We affirm.


                                          BACKGROUND
       Rodney Joe Knight died on November 11, 2013. Appellee Roy D. Knight, the decedent’s
brother, filed an application to probate the decedent’s will. Moore contested the will, asserting
that she and the decedent had an informal marriage. Knight countered that Moore lacked
standing and was not an interested party under the Texas Estates Code because she was not
married to the decedent.
       At Knight’s request, the trial court granted a temporary restraining order and set a hearing
on all contested matters. At the conclusion of the hearing, the trial court denied the will contest,
ordered the will admitted to probate, and authorized the issuance of letters testamentary.
Ultimately, the trial court rendered a final judgment and this appeal followed.


                                  MOTION FOR CONTINUANCE
       In Moore’s first issue, she contends the trial court abused its discretion by denying her
motion for continuance of the will contest hearing.
       The decision to grant or deny a continuance rests within the sound discretion of the trial
court. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). The trial court’s ruling on a motion
for continuance will not be disturbed on appeal unless the record discloses a clear abuse of
discretion. Id. An abuse of discretion occurs when the trial court acts unreasonably or in an
arbitrary manner without reference to any guiding rules or principles. Mercedes-Benz Credit
Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).
       As a prerequisite to complaining on appeal about the denial of a motion for continuance,
the record must show that the motion was brought to the trial court’s attention and that the trial
court denied the motion or the trial court refused to rule on the motion and the complaining party
objected to the refusal. TEX. R. APP. P. 33.1; Bryant v. Jeter, 341 S.W.3d 447, 450–51 (Tex.
App.—Dallas 2011, no pet.).
       On the day of the hearing, Moore filed a motion for continuance. At the hearing, Moore
informed the court that the motion concerned the unavailability of a witness to testify about
Moore’s informal marriage to the decedent. The trial court did not expressly rule on the motion
for continuance. Instead, the court stated, “I’ll carry forward your motion, I guess, but I want to
hear some evidence today.” The hearing proceeded as scheduled, resulting in the court’s implicit
denial of the motion. See Sw. Country Enter., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490,
492-93 (Tex. App.—Fort Worth 1999, pet. denied).
       During the hearing, Knight testified, without objection, about the relationship between
Moore and the decedent. Moore testified as to both the validity of the will and the nature of her
relationship with the decedent. Moore then called another witness to testify about Moore’s
relationship with the decedent. After hearing the testimony, the court ordered the will admitted
to probate and letters testamentary issued to Knight.
       Moore did not re-urge her motion for continuance at any time. Nor did she ask the court
to make a ruling on the motion or object to the court’s failure to do so. Therefore, she failed to
preserve this issue for appellate review. See TEX. R. APP. P. 33.1. But even if the issue were
preserved, Moore still would not prevail. In her motion, Moore alleged that the unavailable
witness would testify that the decedent referred to Moore as his wife. However, Knight provided
this same testimony. Therefore, Moore cannot show that she was prejudiced by the trial court’s
implicit denial of her motion for continuance. See TEX. R. APP. P. 44.1(a)(1) (error in civil case
reversible if it caused rendition of improper judgment). Accordingly, Moore’s first issue is
overruled.




                                                2
                                              NOTICE
       In her second issue, Moore argues she did not receive forty-five days’ notice of the
hearing as required by Rule 245 of the Texas Rules of Civil Procedure.
       Rule 245 provides that “the court may set contested cases on written request of any party,
or on the court’s own motion, with reasonable notice of not less than forty-five days to the
parties of a first setting for trial . . . .” TEX. R. CIV. P. 245. However, any error resulting from a
trial court’s failure to provide proper notice under Rule 245 is waived if the party proceeds to
trial and fails to object to the lack of proper notice. TEX. R. APP. P. 33.1; Stallworth v.
Stallworth, 201 S.W.3d 338, 346 (Tex. App.—Dallas 2006, no pet.).
       The trial court set the January 7, 2014 hearing on December 27, 2013. This gave the
parties eleven days’ notice of the hearing. Knight argues that Rule 245 applies only to a trial and
does not apply to the hearing in this case. It appears, however, that the trial court disposed of all
contested issues at the hearing. Therefore, Rule 245’s notice requirements may apply. See TEX.
R. CIV. P. 245 (applies to “contested cases”). But we need not address Knight’s argument
because Moore did not object to the lack of proper notice.             See TEX. R. APP. P. 33.1.
Consequently, Moore waived any error based on a lack of proper notice under Rule 245.
Moore’s second issue is overruled.


                                           DUE PROCESS
       In her third issue, Moore argues that the denial of her motion for continuance was so
arbitrary that it violated her rights to due process. However, as a rule, a claim, including a
constitutional claim, must have been asserted in the trial court in order to be raised on appeal.
Wood v. Wood, 320 S.W.2d 807, 813 (Tex. 1959). Moore did not make her due process
argument in the trial court. Therefore, she has waived her due process complaint on appeal.
TEX. R. APP. P. 33.1. Moore’s third issue is overruled.


                                            JUDGMENT
       In her fourth issue, Moore argues that the trial court’s judgment does not conform to the
pleadings. Specifically, Moore argues that the issue of informal marriage was not raised by the
pleadings and should not have been disposed of by the trial court’s judgment.




                                                  3
         The Texas Rules of Civil Procedure require that a trial court’s judgment conform to the
pleadings of the parties. TEX. R. CIV. P. 301. Moore claims to have reasonably believed that the
issue of informal marriage had not been raised at the time of the hearing.                         However, the
pleadings on file at that time included Moore’s first amended will contest, in which Moore
asserted she had standing to contest the will based upon her informal marriage to the decedent.
Additionally, Knight expressly alleged in his answer to the will contest, which was the subject of
the hearing, that Moore did not have standing and was not married to the decedent. Thus, the
informal marriage issue was raised in the pleadings that were on file at the time of the hearing.
Furthermore, at the hearing, the majority of Moore’s questions to the witnesses and her own
testimony concerned the existence of the alleged informal marriage. Therefore, Moore has not
shown she reasonably believed the informal marriage issue had not been raised at the time of the
hearing.
         The trial court’s judgment conforms to the pleadings. Accordingly, Moore’s fourth issue
is overruled.1


                                                   DISPOSITION
         Having overruled Appellant’s four issues, we affirm the trial court’s judgment.
                                                                           GREG NEELEY
                                                                              Justice

Opinion delivered September 23, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)



         1
          Moore further argues that the issue of informal marriage was not tried by consent. See TEX. R. CIV. P. 67.
Because informal marriage was raised by the pleadings, we need not address Moore’s trial by consent argument.
TEX. R. APP. P. 47.1.


                                                          4
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        SEPTEMBER 23, 2015


                                         NO. 12-14-00300-CV


                IN THE ESTATE OF RODNEY JOE KNIGHT, DECEASED


                                Appeal from the County Court at Law
                          of Cherokee County, Texas (Tr.Ct.No. P12025)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellant, NATOSHA MOORE, for which execution may issue, and that this
decision be certified to the court below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
