Richard and Debora Ralston v. Liza Pratt

NUMBER 13-04-003-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI B EDINBURG RICHARD AND DEBORA RALSTON, Appellants, v. LIZA PRATT, Appellee. On appeal from the 94th District Court of Nueces County, Texas. M E M O R A N D U M   O P I N I O N Before Chief Justice Valdez and Justices Hinojosa and Rodriguez Opinion by Chief Justice Valdez This is an appeal of a trial court=s dismissal of a case for want of prosecution. In the sole issue presented, appellants, Richard and Debora Ralston, assert that the trial court=s decision to dismiss the case was improper because a Texas trial court has no inherent authority to dismiss a cause of action. We affirm. I. ANALYSIS Appellee filed her original petition with the trial court on November 12, 1998, alleging that appellants misrepresented material facts during the contractual stages of a home purchase. Appellants filed a general denial and a counterclaim for attorney=s fees. On November 18, 2003, the trial court judge signed an order dismissing appellee=s lawsuit for want of prosecution. This order also denied appellants= counterclaim for legal fees, which was based on a contractual clause in the home purchase agreement that required, in the event of litigation, reimbursement of litigation costs to the prevailing party by the non-prevailing party. On appeal, appellants argue that the trial court had no authority to dismiss their claims under any Texas statute or common law. A party cannot raise an issue for the first time on appeal when that party did not present the issue to the trial court. Tex. R. App. P. 33.1(a); see also PGP Gas Products, Inc. v. Fariss, 620 S.W.2d 559, 560 (Tex. 1981). Generally, complaints on appeal must be preserved at the trial court level by timely request, motion, objection, or some other vehicle. PGP Gas Products, Inc., 620 S.W.2d at 560. The complaint must identify the matter or event specifically enough to apprise the trial judge of the alleged error. Id. Appellants failed to preserve their complaint for appeal by not properly presenting the alleged error to the trial court. At the dismissal hearing, the trial judge denied appellants= request for attorney=s fees. Appellants= attorney indicated he understood this denial, and that he himself would draft a new dismissal order including this denial for the trial judge to sign. At no time did he object to the ruling, nor did he file a motion for a new trial raising this complaint. Any error in the denial of awarding attorney=s fees is not a fundamental error, and therefore must be preserved by proper objection. Tex. R. App. P. 33.1(a); City of Port Isabel v. Shiba, 976 S.W.2d 856, 860-61 (Tex. App.BCorpus Christi 1998, pet. denied) (holding that trial court improperly awarded attorney=s fees, but that appellate review of the error was waived when the city failed to object). Appellants did not make their contentions known to the trial court at the dismissal hearing, nor did they take any action to do so after the order was granted. There is nothing in the record that shows the error was properly preserved. Torres, 869 S.W.2d at 556; see also Andrews v. ABJ Adjusters, Inc., 800 S.W.2d 567, 569 (Tex. App.BHouston [14th Dist.] 1990, writ denied). Accordingly, we overrule appellants= single issue. II.  CONCLUSION We affirm the order of the trial court. Rogelio Valdez, Chief Justice Memorandum Opinion delivered and filed this 14th day of July, 2005.