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 
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employment under Sabine Pilot.

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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).
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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.2Inhance 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. 
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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 
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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.
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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 
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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 
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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.