Opinion issued December 10, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00750-CV ——————————— FREDERICK NICHOLAS, Appellant V. INHANCE TECHNOLOGIES LLC, Appellee
On Appeal from the 11th District Court Harris County, Texas Trial Court Case No. 2015-67125
MEMORANDUM OPINION
This appeal arises from an employment case. Frederick Nicholas sued
Inhance Technologies LLC (“Inhance”) for wrongful termination of his employment under Sabine Pilot.1 In three issues, Nicholas contends the trial court
(1) erred by failing to issue findings of fact and conclusions of law, (2) abused its
discretion by compelling him to arbitrate, and (3) violated his constitutional rights
to due process. We affirm.
Background
In 2013, Fluoroseal-International, LLC (“FSI”) offered Nicholas a position
as its health, safety, and environmental director. FSI was Inhance’s predecessor in
interest, and later in the year, FSI changed its name to Inhance Technologies, LLC.
Nicholas accepted the employment offer by signing and dating the offer letter. The
offer letter includes a dispute resolution provision, requiring the parties to resolve
any disputes related to “employment or termination of employment” in arbitration.
During his employment, Nicholas was responsible for matters related to
environmental permitting and compliance. Nicholas contends that he was
terminated for seeking to comply with statutory environmental laws.
In 2015, Nicholas sued Inhance for wrongful termination of his employment
under Sabine Pilot. Under the dispute resolution provision in its offer letter,
Inhance filed a motion to compel arbitration and to stay the lawsuit pending
arbitration. Although he did not respond to this motion, Nicholas appeared at the
1 Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985) (providing for a wrongful terminational claim where an employee is discharged for refusing to commit an illegal act).
2 hearing on it. At the hearing, the trial court provided Nicholas with additional time
to respond to Inhance’s motion. Still, Nicholas did not respond. The trial court
subsequently granted Inhance’s motion to compel arbitration and referred the case
“to arbitration with the American Arbitration Association.” Without complying
with the court’s order compelling arbitration, Nicholas filed three motions, which
were set for hearing.2 Inhance filed its response, and Nicholas filed a reply. The
trial court eventually denied Nicholas’s motions.
Inhance filed a motion to dismiss Nicholas’s suit for failure to initiate
arbitration. The motion asserted Nicholas had “repeatedly ignored” the trial court’s
order compelling arbitration and had caused “unjustifiable delay and injustice” to
Inhance. Nicholas did not file a response to the motion. The trial court dismissed
Nicholas’s claim against Inhance with prejudice to refiling. Nicholas requested
findings of fact and conclusions of law, but the trial court issued none. This appeal
followed.
DISCUSSION
A. Jurisdiction
Nicholas appeals the order compelling arbitration and the order dismissing
the case for failing to initiate arbitration. Generally, an appeal may only be taken
2 Nicholas filed a request for findings of fact and conclusions of law, a motion for new trial, and a motion to vacate the order compelling arbitration and to reverse the order compelling arbitration and staying proceedings. 3 from a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.
2001). A judgment issued without a conventional trial is final for purposes of
appeal if it disposes of all pending claims and parties in a case or “states with
unmistakable clarity that it is a final judgment as to all claims and all
parties.” Id. at 193. Here, the trial court dismissed the underlying case, and its
decision was final and appealable because the order dismissing the case for failing
to initiate arbitration “disposed of the entire case on the merits and left no part of it
pending before the court.” Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S.
79, 86–87 (2000); see In re Gulf Expl., LLC, 289 S.W.3d 836, 839–40 (Tex. 2009)
(authorizing appellate review of an order compelling arbitration as long as the
underlying case was dismissed).
B. Denial of request to make findings of fact and conclusions of law
In his first issue, Nicholas complains the trial court failed to enter findings of
fact and conclusions of law that he had requested and that the failure harmed and
prejudiced him.
Under Rule 296 of the Texas Rules of Civil Procedure, a party may file a
request for findings of fact and conclusions of law in any case tried in the district
or county court without a jury. TEX. R. CIV. P. 296. A case is “tried” when the trial
court holds an evidentiary hearing. See Black v. Shor, 443 S.W.3d 154, 166 (Tex.
App.—Corpus Christi 2013, pet. denied) (“The term ‘tried’ for the purposes of rule
4 296 includes the disposition of a case rendered after an evidentiary hearing before
the trial court upon conflicting evidence.”); Puri v. Mansukhani, 973 S.W.2d 701,
708 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (“A case is ‘tried’ when there
is an evidentiary hearing before the court upon conflicting evidence.”); see
generally, Lusk v. Serv. Lloyds Ins. Co., 922 S.W.2d 647, 648 (Tex. App.—Austin
1996, writ denied) (per curiam) (dismissing appeal because case was not “tried”
given that it was dismissed by summary judgment before the trial on the merits). A
trial court does not err by failing to issue findings of fact and conclusions of law
when there has been no trial. Black, 443 S.W.3d at 166–67; Lusk, 922 S.W.2d at
649.
Here, there was no evidentiary hearing, and therefore no “trial on the
merits.” A trial court was not obligated to issue findings of fact when neither party
presented conflicted evidence at an evidentiary hearing. IKB Indus. (Nigeria) Ltd.
v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997). The trial court dismissed the
case without a trial after Nicholas failed to respond to Inhance’s motion to dismiss.
Eichelberger v. Balette, 841 S.W.2d 508, 510 (Tex. App.—Houston [14th Dist.]
1992, writ denied) (holding that the trial court did not have to file findings of fact
and conclusions of law because it dismissed the case without a trial). Because there
was no trial, we conclude that the trial court did not err in failing to make findings
of fact and conclusions of law. We overrule Nicholas’s first issue.
5 C. Failure to preserve complaints
In his second and third issues, Nicholas contends the trial court erred by
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion issued December 10, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00750-CV ——————————— FREDERICK NICHOLAS, Appellant V. INHANCE TECHNOLOGIES LLC, Appellee
On Appeal from the 11th District Court Harris County, Texas Trial Court Case No. 2015-67125
MEMORANDUM OPINION
This appeal arises from an employment case. Frederick Nicholas sued
Inhance Technologies LLC (“Inhance”) for wrongful termination of his employment under Sabine Pilot.1 In three issues, Nicholas contends the trial court
(1) erred by failing to issue findings of fact and conclusions of law, (2) abused its
discretion by compelling him to arbitrate, and (3) violated his constitutional rights
to due process. We affirm.
Background
In 2013, Fluoroseal-International, LLC (“FSI”) offered Nicholas a position
as its health, safety, and environmental director. FSI was Inhance’s predecessor in
interest, and later in the year, FSI changed its name to Inhance Technologies, LLC.
Nicholas accepted the employment offer by signing and dating the offer letter. The
offer letter includes a dispute resolution provision, requiring the parties to resolve
any disputes related to “employment or termination of employment” in arbitration.
During his employment, Nicholas was responsible for matters related to
environmental permitting and compliance. Nicholas contends that he was
terminated for seeking to comply with statutory environmental laws.
In 2015, Nicholas sued Inhance for wrongful termination of his employment
under Sabine Pilot. Under the dispute resolution provision in its offer letter,
Inhance filed a motion to compel arbitration and to stay the lawsuit pending
arbitration. Although he did not respond to this motion, Nicholas appeared at the
1 Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985) (providing for a wrongful terminational claim where an employee is discharged for refusing to commit an illegal act).
2 hearing on it. At the hearing, the trial court provided Nicholas with additional time
to respond to Inhance’s motion. Still, Nicholas did not respond. The trial court
subsequently granted Inhance’s motion to compel arbitration and referred the case
“to arbitration with the American Arbitration Association.” Without complying
with the court’s order compelling arbitration, Nicholas filed three motions, which
were set for hearing.2 Inhance filed its response, and Nicholas filed a reply. The
trial court eventually denied Nicholas’s motions.
Inhance filed a motion to dismiss Nicholas’s suit for failure to initiate
arbitration. The motion asserted Nicholas had “repeatedly ignored” the trial court’s
order compelling arbitration and had caused “unjustifiable delay and injustice” to
Inhance. Nicholas did not file a response to the motion. The trial court dismissed
Nicholas’s claim against Inhance with prejudice to refiling. Nicholas requested
findings of fact and conclusions of law, but the trial court issued none. This appeal
followed.
DISCUSSION
A. Jurisdiction
Nicholas appeals the order compelling arbitration and the order dismissing
the case for failing to initiate arbitration. Generally, an appeal may only be taken
2 Nicholas filed a request for findings of fact and conclusions of law, a motion for new trial, and a motion to vacate the order compelling arbitration and to reverse the order compelling arbitration and staying proceedings. 3 from a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.
2001). A judgment issued without a conventional trial is final for purposes of
appeal if it disposes of all pending claims and parties in a case or “states with
unmistakable clarity that it is a final judgment as to all claims and all
parties.” Id. at 193. Here, the trial court dismissed the underlying case, and its
decision was final and appealable because the order dismissing the case for failing
to initiate arbitration “disposed of the entire case on the merits and left no part of it
pending before the court.” Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S.
79, 86–87 (2000); see In re Gulf Expl., LLC, 289 S.W.3d 836, 839–40 (Tex. 2009)
(authorizing appellate review of an order compelling arbitration as long as the
underlying case was dismissed).
B. Denial of request to make findings of fact and conclusions of law
In his first issue, Nicholas complains the trial court failed to enter findings of
fact and conclusions of law that he had requested and that the failure harmed and
prejudiced him.
Under Rule 296 of the Texas Rules of Civil Procedure, a party may file a
request for findings of fact and conclusions of law in any case tried in the district
or county court without a jury. TEX. R. CIV. P. 296. A case is “tried” when the trial
court holds an evidentiary hearing. See Black v. Shor, 443 S.W.3d 154, 166 (Tex.
App.—Corpus Christi 2013, pet. denied) (“The term ‘tried’ for the purposes of rule
4 296 includes the disposition of a case rendered after an evidentiary hearing before
the trial court upon conflicting evidence.”); Puri v. Mansukhani, 973 S.W.2d 701,
708 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (“A case is ‘tried’ when there
is an evidentiary hearing before the court upon conflicting evidence.”); see
generally, Lusk v. Serv. Lloyds Ins. Co., 922 S.W.2d 647, 648 (Tex. App.—Austin
1996, writ denied) (per curiam) (dismissing appeal because case was not “tried”
given that it was dismissed by summary judgment before the trial on the merits). A
trial court does not err by failing to issue findings of fact and conclusions of law
when there has been no trial. Black, 443 S.W.3d at 166–67; Lusk, 922 S.W.2d at
649.
Here, there was no evidentiary hearing, and therefore no “trial on the
merits.” A trial court was not obligated to issue findings of fact when neither party
presented conflicted evidence at an evidentiary hearing. IKB Indus. (Nigeria) Ltd.
v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997). The trial court dismissed the
case without a trial after Nicholas failed to respond to Inhance’s motion to dismiss.
Eichelberger v. Balette, 841 S.W.2d 508, 510 (Tex. App.—Houston [14th Dist.]
1992, writ denied) (holding that the trial court did not have to file findings of fact
and conclusions of law because it dismissed the case without a trial). Because there
was no trial, we conclude that the trial court did not err in failing to make findings
of fact and conclusions of law. We overrule Nicholas’s first issue.
5 C. Failure to preserve complaints
In his second and third issues, Nicholas contends the trial court erred by
compelling him to arbitrate his claim in which the arbitration agreement was
procured by fraud and lack of consideration, and because Inhance waived
arbitration by stating, “We are not pursing arbitration. Thank you.” Nicholas
further contends that the trial court violated his constitutional due process rights
because it did not allow him “to be heard in a meaningful and timely manner” or
provide “notice of the date that this [c]ourt would rul[e] on the merits of [the]
motion to compel [arbitration.].”
To preserve a complaint for appellate review, a party must first demonstrate
that the complaint was made to the trial court by a timely request, objection, or
motion. See TEX. R. APP. P. 33.1. A timely objection is one made “at a point in the
proceedings which gives the trial court the opportunity to cure any alleged
error.” Crews v. Dkasi Corp., 469 S.W.3d 194, 201 (Tex. App.–Dallas 2015, pet.
denied). “[I]t is well-settled that even constitutional issues, such as due process
claims, must be properly raised in the trial court or they are waived on appeal.”
Taylor v. Bridges, No. 14-13-00669-CV, 2014 WL 4202507, at *2 (Tex. App.—
Houston [14th Dist.] Aug. 26, 2014, no pet.) (mem. op.).
Here, Nicholas did not file a response to Inhance’s motion to compel
arbitration, even after the trial court provided him with additional time to respond
6 to it. Although he filed two motions, neither of these responded to the motion to
compel arbitration or raised the issue that Nicholas brings to this Court—meaning
fraud, lack of mutual obligation/consideration, and waiver. His unrelated motions
were insufficient to preserve error on the order compelling arbitration and his
claim that his due process rights were violated. St. Paul Surplus Lines Ins. Co., Inc.
v. Dal-Worth Tank Co., Inc., 974 S.W.2d 51, 53 (Tex. 1998) (per curiam) (ruling
no preservation of error where party failed to object at trial regarding the
arbitration agreement, but later raised complaint in a motion for new trial); GJR
Mgmt. Holdings, L.P. v. Jack Raus, Ltd., 126 S.W.3d 257, 260 (Tex. App.—San
Antonio 2003, pet. denied) (overruling appellate complaint for failing to preserve
error because party filed the motion to vacate after the trial had already entered
judgment). Having failed to raise his arguments by filing a response to Inhance’s
motion compel, Nicholas has waived these complaints on appeal. See My Three
Sons, Ltd. v. Midway/Parker Med. Ctr., L.P., No. 05-15-01068-CV, 2017 WL
2351082, at *3 (Tex. App.—Dallas May 31, 2017, no pet.) (mem. op. on reh’g)
(waiving complaint where appellant failed to file a response or objections to
motion to compel arbitration in the underlying case); Garcia v. Walker, No. 04–
05–00343–CV, 2006 WL 397950, at *1 (Tex. App.–San Antonio Feb. 22, 2006, no
pet.) (mem. op.) (waiving objections to motion to compel arbitration not presented
7 in trial court). Nor did Nicholas raise his due-process challenge in the trial court.
We overrule Nicholas’s second and third issues.
Conclusion
We affirm the judgment of the trial court.
Sarah Beth Landau Justice
Panel consists of Justices Lloyd, Goodman, and Landau.