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.




                                         8
