INTERNATIONAL ASSOCIATION FOR COLON HYDROTHERAPY and CLASS 3 STUDY GROUP, Appellants v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed November 26, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01046-CV
............................
INTERNATIONAL ASSOCIATION FOR COLON HYDROTHERAPY
and CLASS 3 STUDY GROUP, Appellants
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DV-03-12307-L
.............................................................
MEMORANDUM OPINION
Before Justices Moseley, FitzGerald, and Francis
Opinion By Justice FitzGerald
        Appellant International Association for Colon Hydrotherapy (“I-ACT”) is a non-profit corporation that instructs its members and the public concerning the practice and benefits of colon irrigation. Appellant Class 3 Study Group (“C3SG”) is a non-profit corporation organized to compile information for presentation to federal regulators concerning classification of colon irrigation devices. The Attorney General of the State of Texas, through his Consumer Protection Division, sued appellants, alleging violations of the Texas Deceptive Trade & Practices Act and the Texas Food Drug and Cosmetics Act. The case was tried to a jury, which found I-ACT and C3SG violated the TFDCA by conducting a study that failed to comply with statutory requirements. The jury also found I-ACT violated the TFDCA by misbranding or causing misbranding of prescription colon irrigation devices in commerce.   See Footnote 1  The facts are known to the parties, and we do not recite them in any detail. Further, because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm the trial court's judgment.
        In their first appellate issue, I-ACT and C3SG argue the trial court erred in allowing the trial to proceed against them under the TFDCA. Appellants' brief contends that-because appellants are not manufacturers, distributors, owners, or sellers of colon irrigation devices-their activities cannot be subject to that statute. However, counsel for appellants repudiated this legal position at oral argument. Indeed, counsel for appellants admitted the TFDCA applied to appellants, but stated the evidence was insufficient to prove appellants committed any of the acts prohibited by the TFDCA. By conceding application of TFDCA, appellants waived consideration of their first issue. See Bates v. Dallas Indep. Sch. Dist., 952 S.W.2d 543, 550 (Tex. App.-Dallas 1997, writ denied) (appellate court may refuse to consider an issue conceded by a party at oral argument). Nor may this Court consider appellants' sufficiency-of-the-evidence argument raised for the first time at oral argument. See Allright, Inc. v. Pearson, 735 S.W.2d 240 (Tex. 1987) (per curiam) (“It is error for a court of appeals to consider unassigned points of error.”). We overrule appellants' first issue.
        Appellants' second issue purports to identify a constitutional violation related to unauthorized rulemaking by the State. Appellants argue at length under this issue that there are no existing rules that apply to the colon hydrotherapy industry. But appellants do not identify any specific ruling or order made by the trial court that was preserved below and that somehow violated their rights under the United States Constitution. In the absence of an allegation of preserved error, appellants have presented nothing for our review in their second issue.         In their third issue, appellants argue the trial court erroneously excluded their proffered Trial Exhibits 4 and 5. It appears Exhibit 4 was a collection of written correspondence, and Exhibit 5 was a collection of electronic correspondence. The State objected to the exhibits at trial on a number of grounds, including hearsay. The record indicates the trial court heard lengthy arguments on the admissibility of these exhibits before excluding them. Counsel for appellants agreed on the record to put a “Q and A” offer of proof on the record. No such offer was made, however, and appellants did not include the excluded exhibits in the trial record in any form. Nor did appellants file a formal bill of exception in this Court. Because the substance of the excluded evidence is not in the appellate record, this Court has nothing to review.   See Footnote 2  See Financial Ins. Co. v. Ragsdale, 166 S.W.3d 922, 930 (Tex. App.-El Paso 2005, no pet.) (evidence not properly preserved for appellate review when attorney made no offer of proof or formal bill of exception). See generally Tex. R. App. P. 33.1 (prerequisites to presenting complaint for appellate review); Tex. R. Evid. 103 (procedure for preserving ruling on exclusion of evidence). We overrule appellants' third issue.
        In their fourth issue, appellants challenge the trial court's ruling that colon irrigation systems are prescription devices subject to regulation by the TFDCA. The trial court initially made this legal ruling before trial, when it ruled the TFDCA applied to the facts of this case.   See Footnote 3  The issue was then raised at least three times during the course of the proceedings below. The issue arose twice during the court's pretrial proceedings concerning the parties' motions in limine. At that point, the trial court instructed counsel they could not tell the jury “something different” from his ruling that the irrigation systems were prescription devices; counsel for appellants stated they had not opposed that ruling. Later, after forbidding references in front of the jury to his rulings, the judge answered a question stating, “I don't have any problem with you calling these things prescription devices.” Counsel for appellants responded: “We haven't objected.” Finally, at the charge conference, counsel for appellants made a number of specific objections to the court's charge, but none of those objections involved the trial court's ruling-repeated within the charge-that the colon irrigation devices at issue were prescription devices. To preserve a complaint for appellate review, a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefore, and obtain a ruling. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (citing Tex. R. App. P. 52(a)). Appellants failed to preserve error on this issue, so we overrule it as well.
        In their fifth and final issue, appellants argue the trial court erred in allowing allegations against C3SG to be included in the court's charge and in including findings against C3SG in its judgment, because C3SG “had ceased all activities, and no longer existed, ten months prior to the filing of suit.” Appellants fail to support this issue with any legal argument or citations to relevant legal authority. Accordingly, the issue is inadequately briefed and will not be considered. See Tex. R. App. P. 38.1(h); McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex. App.-Dallas 2001, pet. denied).
        We have decided each of appellants' issues against them. We affirm the judgment of the trial court.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
071046F.P05
 
Footnote 1 The jury also found I-ACT had violated the DTPA, but that finding has not been appealed.
Footnote 2 Appellants attached what are purported to be copies of the excluded exhibits in its appendix. Documents attached as exhibits or appendices to briefs are not thereby included in the record on appeal, and such documents cannot be considered by this Court. Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533, 534 (Tex. App.-Dallas 1987, no writ).
Footnote 3 Appellants identify this issue as one of sufficiency of the evidence, but appellants' arguments are rooted in statutory construction, which is a question of law.