Affirmed and Memorandum Opinion filed December 31, 2019.




                                      In The

                     Fourteenth Court of Appeals

                              NO. 14-18-00316-CV

RODNEY EDWARD THOMAS AND TRACEY RENEE LEWIS, Appellants
                                         V.
  CHRISTOPHER LATSON, TODD WHITE, SANDRA PEAK, STEVEN
           SUNDE, AND KIANA WILLIAMS, Appellees

                    On Appeal from the 61st District Court
                            Harris County, Texas
                      Trial Court Cause No. 2014-06739

                     MEMORANDUM OPINION

      Appellants Tracey Renee Lewis and Rodney Edward Thomas, defendants in
the trial court, appeal the trial court’s judgment in favor of appellee/intervenor
Steven Sunde. Finding no merit in appellants’ jurisdictional challenge and no
merits in appellants’ other complaints, we affirm.

                   I. FACTUAL AND PROCEDURAL BACKGROUND
      After a bench trial, the district court signed a judgment reciting that Sunde
had appeared pro se for trial, that Lewis and Thomas also had appeared pro se for
trial, and that another named defendant, Encompass 2 Commercial Corporation,
did not appear for trial. According to the judgment, after the trial court heard
evidence and arguments of the parties, the trial court found that Sunde was entitled
to judgment against Encompass, Lewis, and Thomas on Sunde’s claims, and
awarded Sunde a judgment in the amount of $482,202 against Lewis, Thomas, and
Encompass, jointly and severally.

      Thomas filed a “Motion to Vacate and Set Aside Judgment,” arguing that the
parties were bound to resolve their claims through arbitration under a valid
arbitration agreement. Thomas also challenged the court’s jurisdiction based on
the alleged arbitration agreement. The trial court denied the motion, and Lewis and
Thomas each have prosecuted this appeal pro se.

                              II. ISSUES AND ANALYSIS
      Though Thomas and Lewis each filed an appellate brief, their briefs are
substantially the same. Liberally construing the complaints from arguments set out
in their appellate briefs, we conclude Lewis and Thomas raise the following issues:
(1) the trial court lacked subject matter jurisdiction, both generally and specifically
as a consequence of the alleged arbitration agreement covering the claims; (2) the
trial court erred when it did not make any findings of fact; and (3) the trial court
abused its discretion in denying the “Motion to Vacate and Set Aside Judgment.”

A.    Did Sunde lack standing to bring his claims, or was there some other
      impediment preventing the trial court from exercising subject matter
      jurisdiction over the case?
      Lewis and Thomas make a variety of statements contesting Sunde’s standing
and the trial court’s subject matter jurisdiction.       Some relate to an alleged



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arbitration agreement1 while others are generic.2 We consider both categories. See
Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 484 (Tex. 2018) (explaining that
subject-matter jurisdiction cannot be waived and that “[a] court can—and if in
doubt, must—raise standing on its own at any time”). An issue implicating a
court’s subject-matter jurisdiction presents a question of law that we review de
novo. City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (per curiam).

       In considering Lewis’s and Thomas’s arbitration-related jurisdictional
contentions, we presume, without deciding, that a valid arbitration agreement
existed between the parties. Lewis and Thomas have not cited, and we have not
found, any binding authority to support their contention that the existence of an
arbitration clause divests a trial court of its jurisdiction over the claim subject to
the arbitration agreement. Contrary to their argument, this court has found that the
existence of an arbitration clause covering claims filed in a court does not divest
the court of jurisdiction over the action. In re China Oil & Gas Pipeline Bureau, 94
S.W.3d 50, 61 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding).

       Trial courts regularly exercise jurisdiction over parties to an arbitration
agreement. See FIA Card Services, N.A. v. Sweet, 14-08-00111-CV, 2009 WL
1748741, at *2 (Tex. App.—Houston [14th Dist.] June 23, 2009, no pet.) (finding
that the trial court erred in dismissing for lack of subject matter jurisdiction action
to confirm and enforce arbitration award brought under the Federal Arbitration Act
in state court). Neither subject-matter jurisdiction nor standing can be waived or

1
  In their summary of the argument, Lewis and Thomas contend that “Appellants failed to
exhaust all remedies in arbitration therefore the court lacked jurisdiction.” In their argument,
they contend, “Appellees lacked standing because parties agreed to have matter [sic] resolved by
Arbitration if a dispute arose.”
2
  In their argument section, under a “Standard of Review” subheading, Lewis and Thomas lodge
a generic jurisdictional complaint that “the lower court lacked jurisdiction to hear this matter.”
They also asserted that “[a]ppellees lacked standing to have their case heard by the lower court.”

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conferred by agreement. Houston Laureate Associates, Ltd. v. Russell, 504 S.W.3d
550, 556 (Tex. App.—Houston [14th Dist.] 2016, no pet.).              By contrast, an
agreement to arbitrate, like any contract, can be waived. Perry Homes v. Cull, 258
S.W.3d 580, 593 (Tex. 2008).

       We next consider appellants’ generic challenges to the judgment on lack-of-
subject-matter-jurisdiction and lack-of-standing grounds.           In his petition in
intervention Sunde sets out a fraud claim against Lewis and Thomas. The record
does not reflect that any party asserted special exceptions against Sunde’s petition
in intervention, and liberally construing that pleading in Sunde’s favor, we
conclude that Sunde had standing to assert the claims in this petition.           See
Schwartzott v. Etheridge Prop. Management, 403 S.W.3d 502–03 (Tex. App.—
Houston [14th Dist.] 2013, no pet.).

      After reviewing the record, we discern no basis for concluding that either the
trial court or this court lacks subject-matter jurisdiction.       We therefore reject
Lewis’s and Thomas’s challenges based on an alleged lack of standing or lack of
subject-matter jurisdiction, and we overrule their second issue.

B.    Did the trial court err by not issuing findings of fact and conclusions of
      law?
      Lewis and Thomas contend that the trial court erred in not issuing findings
of fact and conclusions of law. A party waives a complaint that the trial court
failed to file findings of fact and conclusions of law by not making a timely request
for findings of fact and conclusions of law, or by failing to timely file and serve a
notice of past due findings of fact and conclusions of law. See Tex. R. Civ. P. 296,
297; Haut v. Green Cafe Mgmt., Inc., 376 S.W.3d 171, 183 (Tex. App.—Houston
[14th Dist.] 2012, no pet.). Lewis and Thomas were required to present a record
showing that they timely requested findings and timely filed and served a notice of


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past due findings and conclusions. They showed neither and so waived the
complaint. See id. We therefore overrule it.

C.    Did the trial court err when it denied the “Motion to Vacate and Set
      Aside Judgment?”
      Lewis and Thomas complain that the trial court erred in denying the
“Motion to Vacate and Set Aside Judgment,” which they claim both filed. Only
Thomas signed the motion, and under the motion’s unambiguous language,
Thomas was the only party that asserted this motion.          Thus, Lewis failed to
preserve error in the trial court as to her first issue. See Wormald v. Villarina, 543
S.W.3d 315, 326 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

      As to Thomas’s complaint in his first issue, we presume, without deciding,
that Thomas sought arbitration of Sunde’s claims against him timely and did not
waive his right to arbitration by substantially invoking the litigation process to
Sunde’s detriment or prejudice.

      In considering the merits of Thomas’s motion, the starting point is the
arbitration agreement. In In re Estate of Guerrero, this court, sitting en banc,
determined that a document submitted as evidence in a motion-to-compel-
arbitration or summary-judgment context contains a substantive defect that renders
it incompetent if there was a complete failure to authenticate the document. In re
Estate of Guerrero, 465 S.W.3d 693, 705, 706–08 (Tex. App.–Houston [14th Dist.]
2015, pet. denied) (en banc). The authentication requirement applies to the alleged
arbitration agreement Thomas submitted in support of the “Motion to Vacate and
Set Aside Judgment.” See id. A party moving the trial court to compel arbitration
must show an arbitration agreement exists and was executed. See id. at 703.
Absent authentication of the alleged arbitration agreement, Thomas did not prove
an agreement to arbitrate. See id. at 705. Thomas completely failed to authenticate


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the alleged arbitration agreement. The complete absence of authentication of this
alleged agreement amounts to a substantive defect that is not waived by the failure
to object and obtain a ruling in the trial court. See id. at 705, 706–08. Under this
court’s precedent in In re Estate of Guerrero, this substantive defect makes the
alleged agreement submitted in support of the “Motion to Vacate and Set Aside
Judgment” incompetent to provide any evidence in support of the motion. See id.
Because Thomas did not prove any arbitration agreement, the trial court did not err
in denying the “Motion to Vacate and Set Aside Judgment” on the merits. See id.
Accordingly, we overrule Thomas’s first issue.

      Having overruled appellants’ jurisdictional challenges and all of their
complaints on appeal, we affirm the trial court’s judgment.




                                       /s/       Kem Thompson Frost
                                                 Chief Justice

Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.




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