Theresa Pham v. Montgomery Capital Partners IV, LP

In the Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-25-00111-CV THERESA PHAM, Appellant V. MONTGOMERY CAPITAL PARTNERS IV, LP, Appellee On Appeal from the 431st District Court Denton County, Texas Trial Court No. 24-4280-431 Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Chief Justice Stevens Dissenting Opinion by Justice Rambin  MEMORANDUM OPINION Montgomery Capital Partners IV, LP, sued Theresa Pham for breach of a guaranty agreement that facilitated Montgomery’s two-million-dollar loan to a beverage company, partly owned by Pham, called Holy Kombucha, Inc (HKI). A bench trial resulted in finding that Pham was liable to Montgomery for breach of the guaranty. As a result, the trial court awarded Montgomery $619,419.50 in actual damages and post-judgment interest. On appeal, Pham argues that the trial court erred by (1) failing to enforce a mandatory forum-selection clause, (2) finding that the limited guaranty was not terminated without legally and factually sufficient evidence to support the same, (3) admitting and relying on an exhibit submitted by Montgomery, and (4) awarding interest in violation of the Texas Finance Code.1 We find that Montgomery abided by the forum-selection clause by suing in Texas and that Pham’s arguments relate instead to the issue of venue, which was waived. We also find that legally and factually sufficient evidence supported the trial court’s finding that the guaranty had not terminated, that the trial court did not abuse its discretion by admitting Montgomery’s exhibit, and that Pham failed to preserve her last point of error. As a result, we affirm the trial court’s judgment. I. Factual and Procedural Background This case involves a complex series of transactions, which ultimately resulted in Pham executing a guaranty agreement in favor of Montgomery. Pham and Leandro “Leo” Bienati are 1 Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We follow the precedent of the Second Court of Appeals in deciding the issues presented. See TEX. R. APP. P. 41.3. 2 part owners of HKI. See Bienati v. Cloister Holdings, LLC, 691 S.W.3d 493, 496 (Tex. 2024) (per curiam). On January 8, 2021, HKI closed on an Amended and Restated Loan and Security Agreement (Loan) in which it borrowed two million dollars from Montgomery after executing an amended and restated promissory note in favor of Montgomery. After an event of default, on December 15, 2021, HKI executed a Forbearance Agreement and Omnibus Amendment (Forbearance Agreement), which required Pham to “execute and deliver a Guaranty in favor of [Montgomery]” as a condition precedent in exchange for opening a $500,000.00 draw facility for HKI. Also on December 15, 2021, Pham signed a Guaranty (Guaranty) agreement in favor of Montgomery recognizing that HKI’s outstanding principal balance on the Loan was $2,044,544.92. To secure the Forbearance Agreement, Pham executed a “guaranty obligation[] . . . not [to] exceed the lesser of (i) $500,000.00 and (ii) the aggregate amount of principal advances made under the Draw Facility.” The Guaranty contained the following provision, which Pham argues is a forum-selection clause: GOVERNING LAW. THIS GUARANTY IS EXECUTED AND DELIVERED AS AN INCIDENT TO A LENDING TRANSACTION NEGOTIATED, AND CONSUMMATED IN THE STATE OF TEXAS, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF TEXAS. ANY ACTION OR PROCEEDING AGAINST [PHAM] UNDER OR IN CONNECTION WITH THIS GUARANTY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT IN DALLAS, TEXAS. [PHAM] HEREBY IRREVOCABLY (I) SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS, AND (II) WAIVES ANY OBJECTION [SHE] MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT 3  IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF [MONTGOMERY] TO BRING ANY ACTION OR PROCEEDING AGAINST [PHAM] OR WITH RESPECT TO ANY OF [PHAM’S] PROPERTY IN COURTS IN OTHER JURISDICTIONS. HKI requested and was advanced funds through the draw facility on several occasions. After another default on April 24, 2024, as the lender, Montgomery sued Pham for breach of the Guaranty in the 431st Judicial District Court of Denton County, Texas (trial court). After she was served, Pham’s first filing, on October 7, 2024, was a motion to transfer venue arguing that venue was only proper in Dallas County due to pending litigation regarding the Loan. In support of her motion, Pham attached a copy of Montgomery’s verified application for temporary restraining order and temporary injunction in cause number DC-21-17448, pending in the 134th Judicial District Court of Dallas County (Dallas County Litigation), in which Montgomery, HKI, and Pham were already parties involved in litigation regarding the Loan. Montgomery’s pleadings referenced Pham’s $500,000.00 Guaranty and included crossclaims against Pham for (1) money had and received in the form of cash collateral, (2) violation of the Texas Theft Liability Act,2 and (3) breach of fiduciary duty, among other things. Montgomery’s pleading in the Dallas County Litigation stated that venue was proper in Dallas County. Pham further alleged that Montgomery’s Loan provided that suit regarding the Loan could only be brought in Dallas County, and that, among other things, the mandatory venue provision for cases involving major transactions required a transfer of venue to Dallas County. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.020 (Supp.). Although Pham’s motion was filed, 2 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 134.001–.005. 4 there was no hearing on it, and the trial court’s docket contains a simple statement that “[t]he court coordinator or judge has indicated the submitted proposed order will not be signed.” On February 18, 2025, the trial court noticed a trial setting for August 18, 2025, and set a deadline of “[thirty] days before trial” for all dispositive motions to “be filed and heard.” Past that deadline, on August 7, 2025, Pham filed a motion to dismiss the case and, in the alternative, a motion to transfer the case to Dallas County. There is no written order denying Pham’s motion to transfer. On the day of trial, Pham urged the motion to dismiss or transfer, which prompted the trial judge to ask, “How do I get over the delay and not bringing this motion . . . until so many months after it was filed and only even being brought to the [trial] Court’s attention within less than the past two weeks?” The trial judge noted, “The lawsuit against Pham was filed May of 2024 first. Before any other responsive pleading, a motion to transfer was filed and then it just sat. So how -- I mean, normally courts would view that as waived.” Pham replied, “A motion to transfer would be waived, Judge, which is why I followed up with the procedural mechanism of the motion to dismiss.” Pham later stated, “I will concede . . . you know the case law with regard to venue. I probably waived that. It’s within your discretion. It’s probably waived.” After hearing counsel’s arguments, the trial court denied the motion to dismiss and proceeded with a bench trial.3 After the trial, the trial court entered findings of fact stating that (1) “[b]ut for the Guaranty, [Montgomery] would not have entered into the Forbearance Agreement”; (2) “[a]s of 3 The trial court entered findings of fact and conclusions of law on the merits of the litigation but made no reference to the motion to transfer or the forum-selection clause. 5 August 18, 2025, more than $500,000[.00] in principal remained due and owing under the Guaranty after the application of all payments, credits, and offsets”; and (3) “[Pham] has failed and refused to pay the amounts due and owing under the Guaranty to [Montgomery].” The trial court further found that the Guaranty had not terminated and that Montgomery was “entitled to recover $500,000[.00] in actual damages from [Pham] based upon her breach of the Guaranty” and “pre-judgment interest at the contract rate of [sixteen percent] compounded daily, for a total of $119,419.50 from [Pham], calculated from April 24, 2024[,] to August 18, 2025.” The trial court’s judgment reflected its findings and conclusions. II. Pham Waived Her Venue Complaint In her first issue on appeal, Pham argues that the trial court erred by failing to “Dismiss Based on Mandatory Forum-Selection Clauses.” Pham’s argument conflates the terms “forum” and “venue,” which “are not interchangeable terms.” Dr. Mylissa’s Med. Boutique LLC v. Balboa Cap. Corp., No. 02-25-00271-CV, 2025 WL 3119021, at *6 (Tex. App.—Fort Worth Nov. 6, 2025, no pet.) (mem. op.) (quoting Tex. Mun. League Intergovernmental Risk Pool v. City of Hidalgo, No. 13-22-00250-CV, 2022 WL 3651986, at *6 (Tex. App.—Corpus Christi– Edinburg Aug. 25, 2022, pet. denied) (mem. op.)). “Forum generally refers to a sovereign or a state, and venue refers to the county in which suit is proper within the forum state.” Id. (quoting City of Hidalgo, 2022 WL 3651986, at *6). “Thus, a forum-selection agreement is one that chooses another state or sovereign as the location for trial, whereas a venue-selection agreement chooses a particular county or court within that state or sovereign.” Id. (quoting City of Hidalgo, 6 2022 WL 3651986, at *6). The distinction is critical because the issue of venue can be waived, and here, Montgomery argues that it was. We agree with Montgomery’s conclusion that Pham’s venue arguments are waived. “Venue is a procedural matter, and it refers not to the power to hear a case but to the geographic location where a given case should be heard.” Id. (quoting 77 AM. JUR. 2D Venue § 2 (2025)). The issue of venue must be “enforced through a timely motion to transfer venue or the issue is waived.” Id. (quoting Xia v. Floyd, 638 S.W.3d 821, 825 (Tex. App.—Fort Worth 2021, no pet.)); see TEX. R. CIV. P. 86. Under Rule 87 of the Texas Rules of Civil Procedure, “[t]he determination of a motion to transfer venue shall be made promptly by the court and such determination must be made in a reasonable time prior to commencement of the trial on the merits. The movant has the duty to request a setting on the motion to transfer.” TEX. R. CIV. P. 87(1) (emphasis added). Thus, “if the movant wants to rely upon [her] motion for change of venue, or complain of the trial court’s failure to act upon it, [s]he has an affirmative duty to request a setting and pursue the court’s ruling on [her] motion, else the same may be waived.” Grozier v. L-B Sprinkler & Plumbing Repair, 744 S.W.2d 306, 312 (Tex. App.—Fort Worth 1988, writ denied). Here, the record establishes that Pham did not meet her duty to request a hearing on her motions. Although Pham timely filed a motion to transfer venue, it was not heard before trial. 4 4 Pham also acknowledged in a motion for continuance filed less than two weeks before trial that the motion to transfer “ha[d] not been set or ruled upon.” 7 On the day of trial, Pham candidly represented that the motion to transfer venue was waived. 5 When the trial court announced that it was denying Pham’s motion based on the delay and content of the document, Pham clarified that the trial court’s ruling had denied the motion to dismiss, not the motion to transfer venue. As a result, it does not appear that the trial court expressly ruled on the motion to transfer venue, except to find that any such hearing on the motion was untimely delayed. Consequently, we agree with Montgomery that Pham waived her venue issues. As for the forum-selection issue, Montgomery sued Pham under the Guaranty. The Guaranty established Texas as the proper forum. While the Guaranty restricted Pham from filing a lawsuit in any county except for Dallas County, the Guaranty expressly stated that “NOTHING HEREIN SHALL AFFECT THE RIGHT OF [MONTGOMERY] TO BRING ANY ACTION OR PROCEEDING AGAINST [PHAM] OR WITH RESPECT TO ANY OF [PHAM’ PROPERTY IN COURTS IN OTHER JURISDICTIONS.” Pham admits that this “language is permissive as to lender-filed suits.” As a result, Pham acknowledges that express terms of the Guaranty allowed Montgomery to sue Pham in Denton County. Nevertheless, she argues that venue is improper, but we have already determined that Pham waived that issue. As a result, we overrule Pham’s first point of error on appeal. III. Sufficient Evidence Supports the Finding That the Guaranty Did Not Terminate In its findings of fact, the trial court found that (1) “[a]t no time did the Guaranty terminate under Section 1.1 therein”; (2) “at no time on or after December 15, 2021[,] was the 5 Moreover, the trial court’s docket entries do not save Pham from the waiver. See Guyot v. Guyot, 3 S.W.3d 243, 247 (Tex. App.—Fort Worth 1999, no pet.). 8 ‘Current Balance’ less than or equal to $2,044,544.92”; and, (3) as a result, Montgomery was entitled to recover $500,000.00 based on Pham’s breach of the Guaranty. Pham challenges the findings regarding nontermination of the Guaranty for legal and factual sufficiency. A. Standard of Review “We review the trial court’s conclusions of law de novo[] and its findings of fact for sufficiency of the evidence.” Hegar v. Am. Multi-Cinema, Inc., 605 S.W.3d 35, 40 (Tex. 2020) (citation omitted). “A trial court’s findings of fact issued after a bench trial have the same weight, and are judged by the same appellate standards, as a jury verdict.” Tex. Outfitters Ltd. v. Nicholson, 572 S.W.3d 647, 653 (Tex. 2019) (citing Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991)); see Lloyd Walterscheid & Walterscheid Farms, LLC v. Walterscheid, 557 S.W.3d 245, 257 (Tex. App.—Fort Worth 2018, no pet.). As the plaintiff, it was Montgomery’s burden to prove the breach of guaranty. Where, as here, “a party raises a legal-sufficiency challenge to an issue for which it did not have the burden of proof, ‘it must demonstrate on appeal that no evidence supports the adverse finding.”” Luna v. Pickel, No. 02-19-00371-CV, 2020 WL 5949927, at *5 (Tex. App.—Fort Worth Oct. 8, 2020, no pet.) (mem. op.) (quoting Graham Cent. Station, Inc. v. Peña, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam)). When analyzing this issue, [w]e will sustain a legal[-]sufficiency challenge if “‘the evidence offered to prove a vital fact is no more than a scintilla.’” In conducting our review, “we credit evidence that supports the verdict if reasonable jurors could have done so and disregard contrary evidence unless reasonable jurors could not have done so.” “The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” 9 Id. at *6 (second alteration in original) (quoting Peña, 442 S.W.3d at 263 (citations omitted)). In addressing factual sufficiency, we “examine all of the evidence that supports and that is contrary to the jury’s determination” and will only “set[] aside the judgment if the evidence is so weak ‘as to be clearly wrong and unjust.’” Id. (quoting W. Wendell Hall & Ryan G. Anderson, Standards of Review in Texas, 50 ST. MARY’S L.J. 1099, 1135 (2019)). “In any sufficiency review, the factfinder remains the sole judge of witness credibility and evidentiary weight.” Cowden v. Cowden, No. 02-23-00054-CV, 2023 WL 8267696, at *5 (Tex. App.—Fort Worth Nov. 30, 2023, no pet.) (mem. op.). “In a bench trial, the trial court acts as the factfinder and is the sole judge of the credibility of witnesses.” Luna, 2020 WL 5949927, at *6 (quoting S-G Owners Ass’n, Inc. v. Sifuentes, 562 S.W.3d 614, 620 (Tex. App.—Houston [1st Dist.] 2018, no pet.)). “The trial court determines the weight of testimony, and it resolves conflicts and inconsistencies in the testimony.” Id. (quoting S-G Owners Ass’n, 562 S.W.3d at 620). “If the evidence is subject to reasonable disagreement, this court will not reverse the judgment of [the] trial court.” Id. (alteration in original) (quoting S-G Owners Ass’n, 562 S.W.3d at 620). B. The Evidence at Trial Carlos A. Lacayo, a managing director for Montgomery, testified that he was involved with the Loan to HKI. According to Lacayo, Pham reported that HKI needed additional funds in late November or early December 2021, and that Pham executed the Guaranty when the outstanding balance on the Loan term was $2,044,544.92. According to Lacayo, the “terms of the personal guaranty were such that the balance -- the combined balance on the [L]oan had to go 10 back to at or below [$]2,044,000[.00]” before the Guaranty would terminate. Lacayo testified that, at no point after December 15, [2021,] was the “amount of the [L]oan, the term and the credit facility” below that amount. His testimony was supported by a balance sheet (Exhibit 6) which was admitted into evidence and shows the outstanding balance on the Loan for every month. Lacayo testified that, as of the day of trial, $3,860,293.12 was owed to Montgomery. During cross-examination, Lacayo testified that he gave Pham a payoff balance via email, which was introduced into evidence. In a March 23, 2022, email, Lacayo told Pham, “$263,057.94 is the amount that will bring the draw facility down to $0[.00]. There will be a little bit of residual[-]accrued interest up to today – $3,364.68 – that can either be added back to the original note or you can send a bigger wire - $270K or $275K to cover for it and apply the remainder to the principal.” In April, HKI paid Montgomery $265,493.94, and Lacayo testified that “[a]t some point in April of 2022, HKI paid down the advances on the draw facility,” although “[t]here was still some residual[-]accrued interest.” In a July 27, 2022, email, Lacayo represented that the draw facility was “zero,” but Lacayo said that statement referred only to the principal of the draw facility, not the interest. Lacayo explained that the draw facility would not terminate even if the advances were paid off and that the draw facility would only terminate after the term-Loan balance was reduced to the Current Balance referenced in the Guaranty. He also testified that any payments were used to pay down both the term Loan and the draw facility and clarified that even though Pham requested that Montgomery release her personal Guaranty, they did not allow it. Also, after April 2022, HKI continued to request funds and was allocated funds under the draw facility. 11  Pham testified that it was her belief that when she made the payment in April 2022, the draw facility terminated. Even so, when asked if the balance on the Loan ever went below $2,044,000.00, Pham testified, “I [do not] know.” C. Analysis Pham’s irrevocable Guaranty was required because, according to the terms of the Guaranty, Montgomery was “not willing to enter into the Amendment, or otherwise extend credit, to [HKI] unless [Pham] unconditionally guarantee[d] payment to [Montgomery] of the Guaranteed Debt (as herein defined).” The Guaranty defined the term “Guaranteed Debt” as all of the following: (a) all accrued principal, interest, reasonable attorneys’ fees, commitment fees, liabilities for costs and expenses and other indebtedness, obligations and liabilities of [HKI] to [Montgomery] at any time created or arising in connection with the Loan, or any amendment thereto or substitution therefor, including, but not limited to, all indebtedness, obligations and liabilities of [HKI] to [Montgomery] arising under the Note, or under any renewals, modifications, increases and extensions of the Note, or under the Security Documents; (b) all liabilities of [HKI] for future advances, extensions of credit, sales on account or other value at any time given or made by [Montgomery] to [HKI] arising under the Security Documents, whether or not the advances, credit or value are given pursuant to commitment; (c) any and all other indebtedness, liabilities, obligations and duties of every kind and character of [HKI] to [Montgomery] arising under the Security Documents, whether now or hereafter existing or arising, regardless of whether such present or future indebtedness, liabilities, obligations or duties be direct or indirect, related or unrelated, liquidated or unliquidated, primary or secondary, joint, several, or joint and several, or fixed or contingent[.] The trial court’s findings reference the following paragraph of the Guaranty: Notwithstanding anything to the contrary in this Guaranty or any other of the Security Documents, (a) [Pham’s] guaranty obligations under this Section 1.1 12  shall not exceed the lesser of (i) $500,000.00 and (ii) the aggregate amount of principal advances made under the Draw Facility (as such term is defined in Section 5(b) of the Amendment) from time to time, and (b) [Pham’s] guaranty obligations under this Section 1.1 shall terminate immediately (and without any party being required to take affirmative action) upon the repayment of the Loan such that the aggregate amount of principal and interest outstanding under both the Term Facility (as defined in Section 5(b) of the Amendment) and the Draw Facility is less than or equal to the Current Balance. Citing to the events of March and April 2022, Pham argues that the evidence shows that the draw facility was paid off and that, because it was, her personal guaranty was terminated. We disagree. The record shows, at best, conflicting evidence as to whether the entire amount of the draw facility was paid because of the leftover-residual interest. Even so, the terms of the Guaranty expressly provided that Pham’s Guaranteed Debt included the term Loan and, for this reason, the Guaranty did not terminate until “repayment of the Loan such that the aggregate amount of principal and interest outstanding under both the Term Facility . . . and the Draw Facility is less than or equal to the Current Balance.” The Current Balance was defined by the Guaranty as “$2,044,544.92.” As a result, the trial court properly concluded that the balance on the term Loan and draw facility had to be below $2,044,544.92 before the Guaranty terminated. Lacayo’s testimony was that the draw facility was never completely paid off due to accrued interest and that the balance of the Guaranteed Debt was never below $2,044,544.92. Lacayo’s testimony was supported by a balance sheet (Exhibit 6), admitted into evidence, showing that the balance on the Guaranteed Debt did not reach below $2,044,544.92 at any point, including in March and April of 2022. While Pham points to Lacayo’s email regarding that amount of money required to pay down the draw facility, the email specifically states there would be “a little bit of 13 residual[-]accrued interest up to today – $3,364.68 – that can either be added back to the original note or you can send a bigger wire - $270K or $275K to cover for it and apply the remainder to the principal.” Pham argues that there was “direct[-]evidentiary conflict” as to whether the draw-facility balance was paid off. This conflict was within the trial judge’s purview, as the fact-finder, to resolve. The trial court’s conclusion that the Guaranty did not terminate was based on evidence that the balance of the Guaranteed Debt never dipped below $2,044,544.92. Accordingly, we find that the trial court’s findings were supported by legally and factually sufficient evidence. As a result, we overrule Pham’s second point of error. IV. There Was No Abuse of Discretion in the Admission of a Balance Sheet In her third point of error, Pham argues that the trial court erred by admitting Exhibit 6, a balance sheet showing all sums borrowed, interest accrued, and payments made. Lacayo said that he prepared Exhibit 6, which he described as “a record of the loan with all the advances and repayments captured that include[d] a calculation of the balance due as of [that day].” Pham objected to Exhibit 6 as hearsay that was not properly authenticated. The trial judge said that he was “hearing pieces of a foundation” and overruled Pham’s objection “at this point.” After this, Lacayo testified that he was the custodian of records for Montgomery, that the records reflected in Exhibit 6 were made at or near the time reflected thereon, were made by him, he had personal knowledge of Exhibit 6’s contents, and Exhibit 6 was kept in the ordinary course of business as a part of regular-business practices. When Exhibit 6 was again proffered, Pham lodged another hearsay objection, appeared to abandon the authentication objection, and instead 14 argued, “[Montgomery] [had] not produced any of the documents or any of the evidence on which the custodian is purporting to rely.” The trial court overruled this objection and Pham’s general-hearsay complaint and admitted Exhibit 6 as a business record. Pham argues that the trial court erred by admitting Exhibit 6. A. Standard of Review “We review a trial court’s ruling in admitting or excluding evidence under an abuse-of- discretion standard.” Allen v. Bell Textron, Inc., No. 02-25-00256-CV, 2026 WL 1614600, at *6 (Tex. App.—Fort Worth June 4, 2026, no pet.) (mem. op.) (citing Richmond Condos. v. Skipworth Com. Plumbing, Inc., 245 S.W.3d 646, 664–65 (Tex. App.—Fort Worth 2008, pet. denied) (citing Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000))). “A trial court abuses its discretion in admitting or excluding evidence if it acts without reference to any guiding rules and principles or if the act complained of is arbitrary and unreasonable.” Shaw v. Shaw, No. 02-25-00376-CV, 2026 WL 1614603, at *6 (Tex. App.—Fort Worth June 4, 2026, no pet.) (mem. op.) (citing Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). B. Analysis Pham argues that the trial court abused its discretion in admitting Exhibit 6 because “to the extent Montgomery’s calculations or supporting documents had not been timely disclosed, [Rule] 193.6 [of the Texas Rules of Civil Procedure] required exclusion absent a supported finding of good cause or lack of unfair surprise or unfair prejudice.” See TEX. R. CIV. P. 193.6. 15 She also complains that, under Rule 1006 of the Texas Rules of Evidence, the record should have been available for examination and copying. See TEX. R. EVID. 1006. However, the reporter’s record shows that Pham did not make these arguments when the trial court was deciding whether to admit Exhibit 6. Instead, Pham objected on the ground of hearsay and argued that documents supporting Exhibit 6 were not produced. Because a point of error on appeal must comport with the arguments raised at trial for the issue to be preserved, we conclude that Pham has failed to preserve any complaints regarding Rule 193.6 or Rule 1006 with respect to Exhibit 6. See In re Commitment of Guest, No. 02-19-00295-CV, 2021 WL 1245087, at *10 (Tex. App.—Fort Worth Apr. 1, 2021, pet. denied) (mem. op.).6 Next, Pham argues that the trial court erred by admitting Exhibit 6 because of statements made by Lacayo, after the document was admitted into evidence, during his cross-examination. We do not consider these statements, which were not a part of the record at the time that the trial court ruled on the admissibility of Exhibit 6. See W.D. v. R.D., No. 02-18-00328-CV, 2019 WL 2635563, at *10 (Tex. App.—Fort Worth June 27, 2019, no pet.) (mem. op.) (citing Khan v. Valliani, 439 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“When deciding whether the trial court abused its discretion . . . we consider only the record at the time of the trial court’s ruling . . . .”)). 6 Pham says that “[b]efore trial, she served a written ‘Objection to and Motion to Exclude Documents and Evidence,’ expressly objecting to any undisclosed evidence or testimony regarding damages, attorneys’ fees, and documents not properly disclosed or produced under the Rules.” The appellate record does not include this written motion. Although the trial court addressed Pham’s objection, it specifically said it would deal with any objections regarding evidence sought to be admitted at trial. Further, the trial court stated, “I’m not going to pre[-]rule on specific questions that I have not yet heard. So I don’t know if it’s hearsay or not. I don’t know what the trial evidence will be.” 16  Rule 803(6) of the Texas Rules of Evidence provides an exception to the hearsay rule permitting the admission of records of a regularly conducted activity. TEX. R. EVID. 803(6). Under the rule, “[a] record of an act, event, condition, opinion, or diagnosis” is admissible if the following conditions are met: (A) the record was made at or near the time by–or from information transmitted by–someone with knowledge; (B) the record was kept in the course of a regularly conducted business activity; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness . . . ; and (E) the opponent fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. TEX. R. EVID. 803(6)(A)–(E). The record shows that Lacayo stated that he was the custodian of those records and had personal knowledge of the contents of Exhibit 6. Lacayo said that the records reflected in Exhibit 6 were made by him at or near the time reflected in the dates stated in the exhibit. Further, Lacayo testified that Exhibit 6 was kept in the ordinary course of business as a part of Montgomery’s regular-business practices. Aside from argument regarding supporting documentation, Pham did not demonstrate that the preparation of Exhibit 6 indicated a lack of trustworthiness. We conclude that the trial court did not abuse its discretion in overruling Pham’s hearsay objection and by admitting Exhibit 6 as a record of regularly conducted activity. As a result, we overrule Pham’s third point of error. 17 V. Pham Waived Her Complaint About Interest In her last point of error, Pham complains of the trial court’s finding that Montgomery was entitled to recover pre-judgment and post-judgment “interest at the contract rate of [sixteen percent] compounded daily.” For the first time on appeal, Pham argues that the contractual rate awarded by the trial court violated the Texas Finance Code.7 “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.” Est. of Boylan, No. 02-14-00170-CV, 2015 WL 598531, at *5 (Tex. App.—Fort Worth Feb. 12, 2015, no pet.) (mem. op.) (citing TEX. R. APP. P. 33.1(a)). “If a party fails to do this, error is not preserved, and the complaint is waived.” Id. (citing Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (per curiam)). Where, as here, a party filed a motion for new trial or “a motion to modify and correct the judgment, but [s]he did not object to the amount or calculation of [pre-judgment] interest,” the party “waived th[e] issue on appeal.” Id. (citing Meek v. Onstad, 430 S.W.3d 601, 611 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“holding that appellant waived complaint regarding accrual date of prejudgment interest because he failed to raise it in his motion to modify judgment”)); see Life Invs. Mgmt. Co. v. Settlements of Tex., Inc., No. 02-23-00151-CV, 7Pham also argues that because the “Note mentions daily compounding, Montgomery’s proof of the amount due ([Exhibit] 6) remains unreliable because it utilizes a 360-day year calculation that directly contradicts the Note’s express 365-day year requirement.” As a result, Pham claims “the shortfall analysis rests on a flawed methodology,” and thus the trial court’s written findings that the “Current Balance” never fell to or below $2,044,544.92 and that the Guaranty “did not terminate under Section 1.1” cannot stand as written. Montgomery claims this argument was waived because Pham did not raise the 360-day annual-interest calculation argument at trial, nor did Pham make any objection regarding the reliability issue on these grounds at trial. We agree. Pham did not object to Exhibit 6 on these grounds, never raised this issue to the trial court during trial, and did not present her appellate argument in her motion for new trial. 18 2025 WL 2264057, at *33 (Tex. App.—Fort Worth Aug. 7, 2025, pet. denied) (mem. op.) (“The failure to object to a prejudgment-interest award in the trial court waives the issue for appeal.”). The same preservation rule applies to post-judgment interest. See Ramsey v. Spray, No. 02-08- 00129-CV, 2009 WL 5064539, at *4 (Tex. App.—Fort Worth Dec. 23, 2009, pet. denied) (per curiam) (mem. op.); HCRA of Tex., Inc. v. Johnston, 178 S.W.3d 861, 867 (Tex. App.— Fort Worth 2005, no pet.); see also Coleman v. Coleman, No. 01-09-00615-CV, 2010 WL 5187612, at *3 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet.) (mem. op.). Because Pham did not present her issues regarding pre-judgment or post-judgment interest to the trial court’s attention, we find that she has waived her last issue on appeal for our review. VI. Conclusion We affirm the trial court’s judgment. Scott E. Stevens Chief Justice DISSENT In her fourth issue, Pham urges, Did the trial court abuse its discretion by admitting and relying upon [Montgomery’s] Exhibit 6, a litigation-prepared amortization schedule, where Carlos Lacayo admitted he updated the schedule the weekend before trial, prepared it for litigation, and could not verify specific entries without underlying records that were not disclosed or produced? 19 Exhibit 6 is, in fact, a litigation document. As Lacayo belatedly8 admitted: Q. [BY PHAM:] [D]id you personally prepare this chart this weekend for the trial? A. [BY LACAYO:] Yes. Q. And you did -- you created this chart for purposes of litigation; isn’t that right? A. Yes. My colleagues do not address that testimony because they use a scope-of-the-record argument that Montgomery did not make,9,10 and indeed, an argument counter to the scope-of- the-record position taken by Montgomery on appeal.11,12 8 When testifying to secure the admission of Exhibit 6, Lacayo, to put it kindly, glossed over the part about preparing it the weekend before trial, for the purpose of trial. Instead, he testified that he prepared Exhibit 6 in his ordinary course of business, and that it had been kept by Montgomery in the ordinary course of business. 9 Legally, Montgomery makes no contention that our review is restricted to the first day of trial when Exhibit 6 was offered. The majority opinion cites W.D., 2019 WL 2635563, at *10 (citing Khan, 439 S.W.3d at 533). Montgomery did not cite these cases. Khan is a sanctions case, and W.D. is a divorce case where the appellant attempted to challenge the trial court ruling with a statement submitted after the decree of divorce had been entered, and indeed, after appeal had been filed. See Khan, 439 S.W.3d at 533; W.D., 2019 WL 2635563, at *9. Instead of citing those cases, Montgomery cited In re K.R.K.-L.H., 671 S.W.3d 761, 772 (Tex. App.—Beaumont 2023, pet. denied). In re K.R.K.-L.H. was a termination of parental rights case in which the mother challenged the admission of drug-test results as Rule 803(6) business records. Id. After the Texas Department of Family and Protective Services had offered testimony meeting the requisites of the business-records hearsay exception, the Beaumont Court of Appeals placed the burden on the mother “to introduce evidence sufficient to demonstrate the source of the information or the method or circumstances of preparing the reports indicate a lack of trustworthiness.” Id. at 773. It does not appear, though, that much is needed to meet the burden. See id. at 772 (“She doesn’t point out any problems with the records themselves, for example by explaining how a drug test in a given report was internally inconsistent with the other parts of the report.”). The scope of the Beaumont Court of Appeal’s review to ascertain whether that burden had been carried included the entire testimony of the custodian of records. See id. (“[T]he only evidence before us about the source of the reports comes from Stephanie Cole, whose testimony shows the records were made, kept and maintained as business records of the Texas Alcohol and Drug Testing Service, and there is nothing in Cole’s testimony that shows Mother’s biological specimens were gathered, sampled, or tested improperly.” (emphasis added)). More than that, the Beaumont Court of Appeal’s scope of review included the entire trial. Id. (“We have no such evidence the records are not trustworthy here. For example, there is no testimony in the record showing: (1) the testers who performed the tests were not qualified; (2) the equipment used to perform the tests provided the individual who performed them with less than accurate results; (3) the individuals who performed the tests were not properly trained to perform the tests; or (4) the individuals w