Dr. Richard and Wanda Gott v. Rice Consolidated Independent School District

Opinion issued October 23, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00051-CV

DR. RICHARD GOTT AND WANDA GOTT, Appellants

V.

RICE CONSOLIDATED INDEPENDENT SCHOOL DISTRICT,

SUPERINTENDENT MICHAEL LANIER, BETTY SCHIURRING, JOE

LEE PEREZ, VIVIAN SPANIHEL, and CAROLYN BAIRD, Appellees

On Appeal from the 25th District Court

Colorado County, Texas

Trial Court Cause No. 21,464

MEMORANDUM OPINION

Appellants, Dr. Richard and Wanda Gott, appeal the trial court’s judgement

dismissing their claims against Rice Consolidated Independent School District

(“RCISD”), Superintendent Michael Lanier, Betty Schiurring, Joe Lee Perez, Vivian

Spanihel, Carolyn Baird (collectively, “the Individual Defendants,” and collectively

with RCISD, the “School Defendants”).

The trial court dismissed the Gotts’ claims

against the School Defendants, with prejudice, after the Gotts failed to amend their

pleadings pursuant to an agreed order granting the School Defendants’ special

exceptions. We determine whether (1) the Gotts preserved their complaints regarding

the trial court’s rendering of a dismissal “with prejudice,” and its denial of the Gotts’

motion for new trial and (2) whether the trial court abused its discretion in not

granting relief on the Gotts’ motion for temporary stay under Texas Rule of Civil

Procedure 5(b) and dismissing the Gotts’ claims. We affirm the judgment.

Background

A. The Original Petition

Richard Gott served as the Superintendent of RCISD from 1994 until 2004.

Wanda Gott was employed as an administrative secretary for RCISD during the same

time period. In 2004, Richard Gott was terminated from his position and Wanda’s

employment with RCISD also ended.

On February 3, 2006, the Gotts sued RCISD,

individual members of the Board of Trustees, the Superintendent of the school

district, and JR 3 Education Associates, L.L.P., alleging that the RCISD board had

illegally terminated Richard’s employment and that all defendants “had failed to

abide by the law or terms of the agreement with Richard.” The petition also alleged

that the School Defendants had engaged in discriminatory practices and noted that the

Gotts had filed charges of discrimination and had received notices of dismissal and

the right to sue.

B. The Special Exceptions and the Agreed Order

On April 12, 2006, the School Defendants filed special exceptions to the Gotts’

original petition, asserting that the Gotts (1) failed to provide the proposed discovery

level; (2) failed to plead sufficient facts so that the defendants had fair notice of the

claims against them; (3) failed properly to state causes of action in breach of contract,

employment discrimination, or retaliation; (4) failed to state a claim against the

Individual Defendants; (5) improperly pleaded for punitive damages against RCISD;

and (6) failed to state the maximum amount of damages for which the Gotts were

suing. The School Defendants requested that the Gotts be ordered to replead and to

cure the defects within 14 days of the court’s order and that the Gotts’ “pleading be

stricken and this case dismissed, with prejudice, if [the Gotts] fail to comply with the

Court’s order and cure these pleading defects by the Court-imposed deadline.”

The Gotts did not file any response to the special exceptions, but entered into

an agreed order with the School Defendants, signed by the trial court on July 17,

2006. In the order, the trial court granted all of the special exceptions, ordered the

Gotts to replead in accordance with the special exceptions within 30 days of the

order, and ordered that the amended petition omit all claims against the Individual

Defendants, except those alleged against Lanier in his official capacity as

Superintendent of RCISD.

C. The Motion to Dismiss, the Response, and the Motion for Temporary

Stay

The Gotts failed to file amended pleadings by the required date,

and, on

August 29, 2006, the School Defendants filed a motion to strike the petition and to

dismiss all claims against them. The School Defendants averred that the Gotts had

been given an opportunity to amend the pleading, but had failed to do so, and that

dismissal was therefore appropriate. The School Defendants did not specifically

request, in that motion, that the dismissal be with prejudice.

That same day, the Gotts filed a response to the motion, which included a

motion for temporary stay. The response explained that the Gotts’ attorney, a solo

practitioner, had been having health issues and had recently suffered the death of a

close family member. It further detailed that the attorney had been advised by his

doctor not to engage in contested matters or trials and noted that the attorney “had

moved and is moving for a temporary stay in all pending court appearances, state and

federal.” Attached as an exhibit was a letter from the attorney’s cardiologist, dated

July 21, 2006, recommending that the attorney “significantly reduce his immediate

work-related activities during the next 90 days, and refrain from trial and/or contested

court appearances during that time in order that [the doctor] might further evaluate

his medication and condition.” The Gotts prayed that all deadlines in the action

“existing prior to or at the time of July 21, 2006” be continued and stayed until

October 15, 2006 and that all deadlines be rescheduled. The motion did not make

any reference to the required amended pleadings, nor did it contain any request for

leave to file late amended pleadings. It also did not include either an affidavit or a

valid verification.

There is no record of any hearing or ruling on the motion for stay.

On September 7, 2006, the trial court held a hearing on the motion to strike

pleadings and to dismiss claims. The Gotts did not appear at the hearing either in

person or by counsel. The court granted the motion to dismiss on that day, dismissing

all of the Gotts’ claims against the School Defendants with prejudice.

D. The Motion for New Trial

The Gotts filed a motion for new trial on October 10, 2006. In the motion, the

Gotts referenced their counsel’s medical difficulties and attempt to present a motion

to stay and argued that the trial court should grant a new trial because it erred in

dismissing the Gotts’ claims

(1) “when the only and agreed action pursuant to the Agreed Order on

Defendants’ Special Exceptions was that individual claims against

individual defendants would be dismissed by Plaintiffs” and

(2) when “even though the court did not make an express finding, the

court seemingly and implicitly found that [the School Defendants’]

Motion to Dismiss should be granted dismissing claims against all

District defendants, even those who were not to benefit from the

agreed order (the District and Sup’t Lanier officially) wherein

Plaintiff on July 12, 2006, agreed to replead on or before August 13,

2006, specifically during the hiatus of [the Gotts’] counsel’s medical

downtime.”

(Emphasis in original.)

The Gotts concluded that it was “manifestly unjust” for their “claims to be

dismissed for failure to amend to dismiss various individual defendants in their

individual capacity . . . during a time when [the Gotts’] counsel was medically

incapacitated” and such fact was known to counsel for the School Defendants.

The motion included two exhibits: an affidavit from the Gotts’ attorney, which

attached the same letter from counsel’s cardiologist that had been attached to the

motion to stay, and a document entitled “Plaintiffs’ First Amended Original

Petition.”

After a hearing on the motion for new trial, the trial court denied the motion

without specifying a particular basis for its ruling.

The Challenges on Appeal

On appeal, the Gotts complain of the trial court’s (1) implied denial of their

motion for temporary stay, (2) grant of the School Defendants’ motion to dismiss, and

(3) denial of the Gotts’ motion for new trial. The Gotts challenge all three rulings in

each of their three issues on appeal. They also advance the same three arguments in

support of their challenges to each of the three rulings. Specifically, the Gotts assert

that the trial court erred in its disposition of each of the three motions because (1) the

Gotts pleaded good cause to enlarge the time and to stay the deadlines to allow

amendment of the pleadings under Texas Rule of Civil Procedure 5(b); (2) the motion

to strike was an unauthorized procedural mechanism to substantively attack the Gotts’

pleadings, and the trial court improperly dismissed the pleadings without giving the

Gotts an opportunity to amend and when the petition stated a valid cause of action;

and (3) it was an abuse of discretion for the trial court to impose the “death penalty”

sanction of dismissal of the claims with prejudice in its ruling on the motion to strike.

We will address the Gotts’ complaints by reviewing each challenged ruling in

turn and considering the arguments advanced in each of the three issues raised as they

may apply to the ruling being challenged.

The Trial Court’s Implicit Denial of the Motion for Temporary Stay

Before considering the Gotts’ arguments as to this “ruling,” we first note that

the trial court never actually rendered either a written or an oral ruling on the motion

for temporary stay. The Gotts did not lodge any written or oral objections to the trial

court’s failure to rule on their motion for temporary stay. The Gotts do not assert on

appeal that any implied ruling was made, nor do they address how they preserved any

error given the absence of a ruling on this motion.

Nevertheless, an implicit ruling is sufficient to preserve error, T ex. R. App. P.

33.1( a )(2)(A), and when a trial court’s express ruling on one motion necessarily

implies a contrary ruling on an opposing motion, the trial court may be deemed to

have implicitly ruled on the opposing motion. See Salinas v. Rafati, 948 S.W.2d 286,

288 (Tex. 1997). In the present case, the trial court’s granting of the motion to

dismiss, premised on the fact that the Gotts had not filed amended pleadings by the

required deadline, necessarily implied a denial of the Gotts’ motion for temporary

stay, which requested a continuation of all deadlines that existed prior to July 21,

2006—which would have included the deadline for the filing of amended pleadings.

Cf. In re Z.L.T. , 124 S.W.3d 163, 165 (Tex. 2003) (holding that trial court’s act of

proceeding to trial without issuing requested bench warrant was implicit denial of

request). We therefore review the Gotts’ complaint as to the implicit denial of their

motion for temporary stay.

The Gotts argue on appeal that the trial court erred in denying their motion for

temporary stay because (1) they pleaded good cause to enlarge the time and to stay

the deadlines to allow amendment of the pleadings under Texas Rule of Civil

Procedure 5(b); (2) the motion to strike was an unauthorized procedural mechanism

to substantively attack the Gotts’ pleadings and the trial court improperly dismissed

the pleadings without giving the Gotts an opportunity to amend and when the petition

stated a valid cause of action; and (3) it was an abuse of discretion for the trial court

to impose the “death penalty” sanction of dismissal of the claims with prejudice in

ruling on the motion to strike. Because the last two arguments relate exclusively to

the trial court’s ruling on the motion to strike, we consider here only their first

argument which relates to the denial of their motion for temporary stay.

In their “good cause” argument on appeal, the Gotts rely on Texas Rule of Civil

Procedure 5, specifically subsection (b), which gives the trial court discretion to

permit an act to be done after the expiration of a specified period for action when

good cause is shown for the failure to act, and Woods v. Woods , 193 S.W.3d 720

(Tex. App.—Beaumont 2006, pet. denied), which they cite to as providing the

standard for evaluating whether a party has established good cause. The Gotts argue

that they met the elements of good cause set out in Woods because (1) the “verified

pleadings, the notarized affidavit of Larry Watts and the July 21, 2006

correspondence of [counsel’s physician], all support that [the Gotts’] failure to timely

file [amended pleadings] was not because [the Gotts] did not care or the result of

conscious indifference, but because [the Gotts’] counsel was ill”

and (2) “allowing

the late response will occasion no undue delay . . . [and] [the School] Defendants did

not plead or prove with sufficient evidence that . . . [the Gotts’] failure to amend

resulted in any delay or injury to the Defendants.”

The applicable portion of Texas Rule of Civil Procedure 5 reads as follows:

Rule 5. Enlargement of Time

When by these rules or by a notice given thereunder or by order of the

court an act is required or allowed to be done at or within a specified

time, the court for cause shown may, at any time in its discretion (a)

with or without motion or notice, order the period enlarged if

application therefor is made before the expiration of the period

originally prescribed or as extended by a previous order; or (b) upon

motion permit the act to be done after the expiration of the specified

period where good cause is shown for the failure to act. . . .

Tex. R. Civ. P. 5 .

Assuming, without deciding, that the motion for temporary stay put the trial

court on notice that the Gotts were really seeking relief under rule 5,

we hold that the

trial court did not abuse its discretion in implicitly denying such relief. If the motion

for temporary stay was an attempt to invoke rule 5, it asked only for the relief

obtainable under subsection (a)—an enlargement of time—rather than the relief

proper to subsection (b)—leave to perform the act, despite the expiration of the

deadline, or in this case, leave to file the amended pleadings, even though the

deadline had passed. The trial court could not have abused its discretion in not

granting an enlargement of time under subsection (a) because the time period

originally prescribed had already expired. Likewise, the trial court could not have

abused its discretion in not granting leave to file late amended pleadings under

subsection (b), upon a showing of good cause for failing to have timely filed the

pleadings, because no request for leave to file was ever made and no pleadings were

actually presented to the court for late filing.

Woods , relied on by the Gotts,

illustrates this point, holding, “If a party files [a pleading] late, Rule 5(b) authorizes

the trial court ‘upon motion’ to permit the late filing, if the movant shows good cause

for the failure to act.” Woods, 193 S.W.3d at 722 (holding same in case in which party

had filed objections late and trial court subsequently implicitly determined party had

not established good cause for late filing); see also Carpenter v. Cimarron

Hydrocarbons Corp. , 98 S.W.3d 682 , 685–88 (Tex. 2002) (relied upon by Woods;

discussing rule 5 and what constitutes good cause in context of motion for leave to

file untimely response, after party had filed motion for leave to file untimely response

with proposed response attached).

Subsection (b) of rule 5 would have given the trial court in the present case the

authority to permit the late filing of amended pleadings, if the Gotts had so requested

and the court had found good cause for the Gotts’ failure to file the pleadings in a

timely fashion. However, unlike the applicable parties in Woods and Carpenter , the

Gotts did not actually file a late pleading or seek leave to file a late pleading; all they

asked for was a temporary stay and continuance. Subsection (b) of rule 5 was

inapplicable to the motion that was actually filed and the relief that was actually

requested, and accordingly we hold that there was no abuse of discretion by the trial

court in not having granted relief under rule 5.

The Trial Court’s Grant of the Motion to Dismiss The Gotts also contend that the trial court erred in granting the School

Defendants’ motion to dismiss the Gotts’ pleadings, challenging this ruling on the

same three legal grounds asserted for their other complaints, averring that the trial

court should not have granted the motion to dismiss because (1) the Gotts pleaded

good cause to enlarge the time and to stay the deadlines to allow amendment of the

pleadings under Texas Rule of Civil Procedure 5(b); (2) the motion to strike was an

unauthorized procedural mechanism to substantively attack the Gotts’ pleadings and

the trial court improperly dismissed the pleadings without giving the Gotts an

opportunity to amend and when the petition stated a valid cause of action; and (3) it

was an abuse of discretion for the trial court to impose the “death penalty” sanction

of dismissal of the claims with prejudice in ruling on the motion to strike.

In considering the Gotts’ arguments, we note that the first contention is actually

a complaint as to the trial court’s implied ruling on the motion for temporary stay.

Only the last two arguments pertain to the trial court’s ruling granting the motion to

dismiss, and it is those two, therefore, that we consider in reviewing that ruling.

“The standard of review of a trial court’s dismissal upon special exceptions is

de novo on the legal question of whether the pleading stated a cause of action,” and

the reviewing court accepts “as true all of the factual allegations set forth in the

pleading.” Sanchez v. Huntsville Indep. Sch. Dist. , 844 S.W.2d 286, 288 (Tex.

App.—Houston [1st Dist.] 1992, no writ.). In such a review, we first consider, under

an abuse-of-discretion standard, whether the trial court properly granted the special

exceptions. Id. ; s ee also Cole v. Hall , 864 S.W.2d 563, 566 (Tex. App.—Dallas

1993, writ dism’d w.o.j.). If the trial court did not abuse its discretion in granting the

special exceptions, and the plaintiff does not amend the petition after being given an

opportunity to do so, the trial court does not abuse its discretion in dismissing the

plaintiff’s action. Sanchez , 844 S.W.2d at 291–92; Cole , 864 S.W.2d at 566 .

In the present case, because the Gotts agreed to the granting of the special

exceptions, we do not review the correctness of the trial court’s ruling on the special

exceptions. See Tex. R. App. P. 33.1 (a)(1)(A) (requiring complaint to have been

made to trial court in order for complaint to have been preserved for appeal); Counts

v. Counts , 358 S.W.2d 192, 199 (Tex. Civ. App.—Austin 1962, writ dism’d w.o.j.)

(holding that party who agreed to order sustaining special exception could not

complain of the sustaining of special exception on appeal). By agreeing to the trial

court’s granting of all of the special exceptions, including exceptions pertaining to

the failure of the petition to state a cause of action,

the Gotts’ are estopped now from

asserting that their original petition did, in fact, state a cause of action. See Counts ,

358 S.W.2d at 199 . We accordingly consider only (1) whether the trial court abused

its discretion in dismissing the Gotts’ claims after the Gotts’ failure to replead by the

given deadline and, if not, (2) whether the court abused its discretion in ordering a

dismissal with prejudice, rather than without prejudice.

A. Dismissal for Failure Timely to Replead

The Gotts aver that the trial court erred in granting the motion to dismiss

because the motion was an unauthorized procedural mechanism to substantively

attack their pleadings, citing to Gallien v. Washington Mut. Home Loans, Inc ., 209

S.W.3d 856 (Tex. App.—Texarkana 2006, no pet.), and assert that their petition

should not have been dismissed without giving them an opportunity to amend their

pleadings.

We conclude that the posture of the instant case is readily distinguishable from

that of the case before the court of appeals in Gallien . In Gallien , defendant

Washington Mutual filed special exceptions to the Galliens’ original petition. Id. at

859 . After the hearing on that motion, but before an order was signed, the Galliens

filed an amended petition. Id. The trial court granted the special exceptions to the

original petition, and Washington Mutual filed additional special exceptions

acknowledging the filing of the first amended petition. Id. The trial court never

sustained those exceptions. Id. Another party, MSV, also filed special exceptions to

the first amended petition, which were purportedly granted orally, but no written

order was ever entered. Id. The Galliens then filed a second amended petition. Id.

No party ever filed any special exceptions to the second amended petition. Id.

Washington Mutual and another party then filed a joint motion to strike the second

amended petition, arguing that the secondamended petition was untimely and the

amended pleadings did not comply with MSV’s special exceptions to the first

amended petition. Id. at 862 . The trial court dismissed the second amended petition

without ever having any special exceptions filed or ruled on regarding that petition

and without giving the plaintiffs any opportunity to amend their amended pleadings.

Id. The court of appeals condemned such a summary dismissal. Id . The Gallien

court, in terming the motion to strike filed in that case an “improper procedural

mechanism,” contrasted it to the “established mechanism” provided in the Texas

Rules of Civil Procedure, namely, that of special exceptions. Id. at 861–62.

It was precisely this established mechanism of special exceptions that was

followed in the case before us. The School Defendants first filed special exceptions,

which the trial court sustained upon the parties’ agreement. The trial court then

provided the Gotts an opportunity to amend their pleadings. The Gotts did not amend

their pleadings, and the School Defendants then filed a motion to dismiss based on

the Gotts’ failure to amend the petition as ordered upon the sustaining of the School

Defendants’ special exceptions. The mechanism utilized in the present case, rather

than being prohibited, is well-established in Texas jurisprudence. See Tex. Dep’t of

Corr.v. Herring , 513 S.W.2d 6, 10 (Tex. 1974) (holding that special exception, not

summary judgment, is proper procedure when plaintiff failed to state cause of action

and that court may dismiss case when special exceptions are sustained, plaintiff is

given opportunity to amend, and plaintiff still fails to state cause of action).

The

trial court in the instant case gave the Gotts an opportunity to amend their pleadings,

allowing them 30 days from the date of the agreed order granting the special

exceptions in which to amend. The Gotts failed to do so.

The Gotts nevertheless contend on appeal that the trial court did not give them

an opportunity to amend before striking their pleadings, noting that they requested a

stay of the missed original deadline so that they could amend their petition. They cite

no authority that would support the proposition that a trial court fails to provide a

plaintiff an “opportunity to amend” when it does not grant a plaintiff additional

opportunities to amend after the plaintiff fails to amend during the original

opportunity given by the court. We find no authority that requires a trial court to

extend its original deadline for the amendment of pleadings for such length of time

as plaintiffs may request, in order for a plaintiff to have had an “opportunity to

amend.”

The Gotts failed to amend their petition to comply with the sustained special

exceptions after having been given an opportunity to do so.

We hold, therefore, that

the trial court did not abuse its discretion in dismissing the Gotts’ claims. See

Herring , 513 S.W.2d at 10 ; Sanchez , 844 S.W.2d at 291–92; Cole , 864 S.W.2d at

566 .

B. Dismissal with Prejudice

The Gotts further complain that the trial court abused its discretion in

dismissing their claims “with prejudice,” arguing that, in doing so, the trial court

imposed “‘death penalty’ sanctions” when “there was not a direct relationship

between the imposed sanction and the offensive conduct.” They further allege that

the imposed “sanction was severe and excessive and did not satisfy the legitimate

purpose to obtain compliance for filing the pleading late” and contend that the Gotts

“did not demonstrate a callous disregard for the rules or flagrant bad faith.” Finally,

they assert that the trial court did not consider “lesser sanctions” and that “lesser

sanctions [would] have been effective” and contend that the case was not exceptional

and that there was no showing that such a sanction was “clearly justified.” The Gotts

rely on Gallien and Kutch v. Del Mar College , 831 S.W.2d 506 (Tex. App.—Corpus

Christi 1992, no writ), for support and argue that the appropriateness of the dismissal

with prejudice should be reviewed under the two-part test set out in TransAmerican

Natural Gas Corp. v. Powell , 811 S.W.2d 913 (Tex. 1991). The Gotts also refer us

to Cire v. Cummings , 134 S.W.3d 835 (Tex. 2004), and cases cited therein.

We first observe that the Gotts did not complain to the trial court that the

dismissal “with prejudice” was an excessive and inappropriate “death penalty”

sanction , suggest that lesser sanctions should be imposed, or request the trial court

to modify its order of dismissal from one “with prejudice” to one “without

prejudice.”

In general, a party cannot raise for the first time on appeal an issue that

was not presented to the trial court by way of a timely request, motion, or objection.

Tex. R. App. P. 33.1(a)(1); McCain v. NME Hosps., Inc. , 856 S.W.2d 751, 755 (Tex.

App.—Dallas 1993, no writ) (complaint that dismissal of case with prejudice was not

appropriate sanction was not preserved for appellate review because it was not raised

in trial court) ; Andrews v. ABJ Adjusters, Inc. , 800 S.W.2d 567 , 568–69 (Tex.

App.—Houston [14th Dist.] 1990, writ denied) (op. on reh’g) (holding that appellant

failed to preserve complaint that trial court improperly dismissed claim “with

prejudice” by not presenting alleged error first to trial court). The Gotts did file a

motion for new trial complaining of the dismissal of their pleadings, but their sole

argument was that the trial court should not have dismissed the Gotts’ claims against

all of the School Defendants for the Gotts’ failure to amend the pleadings pursuant

to the special exceptions when the Gotts had actually agreed only to amend the

pleadings to dismiss the claims against the individual defendants. Such contentions

would not have alerted the trial court to complaints that the order of dismissal “with

prejudice” was an inappropriate and excessive sanction because there was no showing

that such a sanction was clearly justified, that the case was not exceptional, that the

sanction did not satisfy the legitimate purpose to obtain compliance for filing the

pleading late, that there was not a direct relationship between the imposed sanction

and the offensive conduct, and that the Gotts did not demonstrate a callous disregard

for the rules or flagrant bad faith. Cf. D/FW Commercial Roofing Co. v. Mehra, 854

S.W.2d 182, 189 (Tex. App.—Dallas 1993, no writ) (holding that appellant’s motion

for new trial, which alleged that evidence was insufficient to support damages

awarded, did not alert trial court to complaint of double recovery asserted on appeal).

We therefore hold that the Gotts failed to preserve this complaint for appellate

review.

The Trial Court’s Denial of the Motion for New Trial

The Gotts also challenge the trial court’s denial of their motion for new trial

on the same three legal bases as their challenges to the trial court’s rulings on the

motion for temporary stay and the motion to dismiss, arguing that the trial court

should have granted the motion for new trial because (1) the Gotts pleaded good

cause to enlarge the time and to stay the deadlines to allow amendment of the

pleadings under Texas Rule of Civil Procedure 5(b); (2) the motion to strike was an

unauthorized procedural mechanism to substantively attack the Gotts’ pleadings and

the trial court improperly dismissed the pleadings without giving the Gotts an

opportunity to amend and when the petition stated a valid cause of action; and (3) it

was an abuse of discretion for the trial court to impose the “death penalty” sanction

of dismissal of the claims with prejudice in ruling on the motion to strike.

In their motion for new trial, the Gotts did not assert any of those arguments.

Rather, their sole argument was that the trial court should grant a new trial because

the agreed order on special exceptions was intended only to be an agreement to

remove any claims against defendants in their individual capacities, and, therefore,

the claims against RCISD, and Michael Lanier in his capacity as superintendent,

should not have been struck or dismissed.

The grounds asserted on appeal for the grant of the motion for new trial are

different from the grounds asserted to the trial court below. The Gotts may not now

enlarge their complaint on appeal to include grounds never raised before the trial

court. See C.M. Ashfahl Agency v. Tensor, Inc. , 135 S.W.3d 768, 797 (Tex.

App.—Houston [1st Dist.] 2004, no pet.). We will not find an abuse of discretion for

failure to grant a new trial on grounds that were never presented to, and so were never

considered by, the trial court. See Gerdes v. Kennamer , 155 S.W.3d 523, 532 (Tex.

App.—Corpus Christi 2004, pet. denied) (declaring that motion for new trial that

states one legal theory cannot be used to support a different legal theory on appeal

and holding that issue was waived); D/FW Commercial Roofing , 854 S.W.2d at 189

(noting that trial court could not have been expected to address specific complaint

when motion for new trial did not assert such complaint and holding that complaint

not preserved for review). Conclusion

We overrule all of the Gotts’ issues on appeal and affirm the judgment of the

trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Keyes, and Alcala.