Opinion issued D ecember 10 , 2019

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 00750
- CV

——————————— FREDERICK NICHOLAS , Appella nt

V. IN HANCE TECHNOLOGIES L LC , Appell e e
On Appeal from the 11th District Court Harris Coun t y , Texas Trial Court Ca se No. 2015
- 67125

MEMORANDUM OPINION This appeal arises from an employment case. Frederick Nic holas sued
In hance Tech nologies LLC ( “ Inhance ” ) for wrongful termination of his2

employment under Sa bin e Pilot

. 1 In three issues, Nichola s contends the trial court (1) erred by failing to issue findings of fact and conclusio ns of law , (2 ) abused its discretion by c omp elling him to arbitrate , and (3) violated his constitutional rights to due process. We affirm. Background In 2013, Fluoroseal

- I n ternational , LLC ( “ FSI ”) offered Nicholas a pos iti on as its health, safety , and envi ronm ental director. FSI was Inhance ’ s predecessor in interest , and l ater in the year, FSI change d its na me to Inhance T echnologies, LLC

. N icholas a ccepted the employment o ffer by signing and dating the offer letter

. Th e offer lette r includes a dispute res olution provision, requ iring t h e parties to resolve any disputes related to “ employment or termination of employmen t ” in arbi tration. During his employ ment, Nicholas was r e sponsible for matters relat ed to envi ronmental permitting and compliance. Nicholas contends that he was terminated for seeking to comply with st atu tory env i ronmental laws. In 201 5, Nicholas sued Inha nce for w rongful termination of his employment under Sa b ine Pilot

. Under the dispute resolution provision in its offer letter, Inhance filed a motion to compel arbitratio n and to stay the lawsuit pending arbitration. Al though he did not respond to this mot ion , Nicholas appeared at the

1 Sabine Pi lot Ser

v ., In c. v. H

auck , 687 S.W.2d 733, 735 (Tex. 1985) ( providing for a wron gful terminational claim where a n employee is dis charge d for refusing to commit a n illegal act )

.3

hearing on it

. At the hea r ing, the trial court provided Nicho las with additional time to respond to Inhance ’ s motion. Still, Nicholas did no t respond

. The trial c ourt subsequently granted Inhance ’ s motion to comp el arbitration and referred the case

“ to arbi tration with the America n Arbitrat ion Association

. ” Without complying with the court ’ s order compelling arbitration, N icholas filed three m o tions , wh ich

were set for hearing. 2 Inhan ce filed its response , and Nicholas filed a reply. The trial court eventually denied Nicholas ’ s mot i ons. Inhance filed a motion to d ismiss Nicholas ’ s suit for failure to ini tiate arbitration. The motion asserted Nichola s had “ rep e atedly ignored ” the trial court ’ s order compelling ar bitrati on and had caused “ unju stifiable delay and injustice ” to Inhance

. Nicholas did not file a response t o the m otion . Th e trial court dismissed Nicholas ’ s claim against Inhance wit h prej udice to ref il i ng . Nicholas requested findings of fact and conclusi ons of law, but the trial court issued none

. This appeal followed. DISC U SSION A. Jurisdiction Nicholas appeal s the order compelling arbitration and the order dismissing the case f or failing to initiat e arb itration. Gene r ally, a n a ppeal may only be taken

2 Nicholas filed a request for findin gs of fact and conclusions of law, a motion for n ew trial, and a motion to vacate the order compelling arbitration and to reverse the order compelling a rbitration and staying pr oc ee dings.4

from a final judgment

. See Lehmann v. Har

- Con Corp. , 39 S. W .3d 19 1 , 195 (Tex

. 2001)

. A judgment issued without a conventional trial is final fo r purposes of appeal if it disposes of all pending claims and parties in a cas e or “states with unmistakable clarity that it is a final judgment as to all claims and all
p arties. ” I d

. a t 19 3

. 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 arb itration “ dispos ed of the entire case o n the merits an d left no part of it pending before the cour t. ” Green Tree Fin. Corp.

- Alabama v. Randolph , 531 U.S. 79, 86

– 87 (2000) ; s ee 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 t he underlying case was dismissed)

. B. D enial of requ est to ma ke findings of fact and conclusions of law
I n his first issue, Nicholas com plain s th e trial court failed to enter findings of fact and conclusions of law that he had requested and that the f ailure h armed and prejudiced him. Under Rule 29 6 of the Texas Rules of Civil Procedure , a party may fil e a request for findings of fact and conclusions of law i n any case tried in the district or county court without a jury

. T EX
. R. C IV
. P. 29 6

. A case is “tried ” when the trial
court holds an e viden tiary hear ing. See Black v. Shor , 443 S.W.3d 154, 166 (Tex. App.

— Corpus Christi 2013, pet. denied) ( “ The term ‘ tried ’ for the purposes of rule5

296 includes the disposition o f a case rendered after an evidentiary hearing before the trial court upon con flicting evidence. ”) ; Puri v. Mansukhani , 973 S.W.2d 701, 708 (T ex. App.

— Houston [14th Dist.] 1998, no pet.) ( “ A case is ‘ tried ’ when there is an evidentiary hearing before the c ourt upon conflicting e v idence. ”) ; s ee general l y , Lusk v. Serv. Lloyds Ins. Co. , 922 S.W.2d 647, 648 (Tex. App.

— Austin 1996, writ denied) (per curiam) ( d ismissing appeal because case was not “ tried ” given that it was dismissed by summary judgment before the trial on the merits)

. A
tr i al court d oes not err by failing to issue findings of fact and conclusions of law when there has been no trial

. Black , 443 S .W.3d a t 166

– 67; Lusk , 922 S.W.2d at 649

. H ere, there was no evidentiary hearing, and therefore no “trial on the merits. ” A trial court was not o blig a ted to issue fin dings of f ac t when neither party presented conflicted evidence at an evidentiary hearing

. IKB Indus. (Nigeri a) L td.
v. Pro

- Line Corp. , 938 S.W.2d 440, 442 (Tex. 1997) . The trial court dismissed th e

case without a trial after Nicholas faile d to respond to Inhance ’ s motion to dismiss. Eichelberger v. Balette , 841 S.W.2d 508, 510 (Tex. App.

— Houston [14th Dist.] 199 2, w rit denied) (holding that the trial court did not have to file findi n gs of fact and c onclusions of law because it dismi ssed the case without a trial ). Because t here

was no trial , w e conclude that the trial court did not err in failing to make findings of fact and concl usio ns of law

. We o verrule N icholas ’ s first issue.6

C. Failure to pr e serve complaint s In his second and third issue s , Nicholas contends the trial court erred by compelling him to arbitr at e his claim in which the arbitration agreeme nt was
proc ured by fraud and lack of cons i derati on, and beca u se Inhance waived

ar bitration by stating, “ We a re not pursing arbitration. Thank you. ” Nicho las further contends that the trial court violated his con stitutional due process rights because it did not allow him “ to be heard in a meani n gful and time ly manne r ” or
pro vide “ notice of th e date that th is [c]our t would rul [e] on the mer its of [t he] motion to compel [ arbitrati on. ]. ” To prese rve a complaint for appellate review, a party must first demonstrate that the complaint was made to the trial court by a time l y request, objection, or

m otion

. See T EX
. R. A PP
. P. 33.1

. A timely objection is one made “at a point in the proceedings which giv es t he trial court the opportunity to cure any alleged error.” Crews v. Dkasi Corp. , 469 S.W.3d 194, 20 1 (Tex. App.

– Da llas 20 1 5, pet. denied)

. “[I]t is well

- settled that even constitutional issues, such as d ue process claims, must be properly raised in the tri al cour t or they are waived on appeal

. ” Taylor v. Bridges , No. 14

- 13

- 00669

- CV, 2014 WL 4202507, at * 2 (Tex. App.

— H ouston [ 14th Dist.] Aug. 26, 2014, no pet.) (me m. op.).
Here , Nicholas did not file a res ponse to Inhance ’ s motion to compel

a rbit ration, even after the trial court provided him with additional time to respon d7

to it. Although he filed two motions, neither of these respon ded to the motion to
compe l arb itrat ion or raised the issue that Nicholas brings to this C ourt

— meaning
fr aud , lack of mutual obligation/ con sider atio n , an d waiver

. H is unre lated motions

were insufficient to pre serve erro r on the order compelling arbi tration 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. 19 98) (per curiam ) ( ruling no preservation of error where party fai led to obj e ct at trial regarding the

a rbitration agreement , but later raised complain t in a motion for new trial ) ; GJ R 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 fail ing t o preserve

error because party filed the motion to vacate after the trial had already entered judgment )

. H aving failed to raise his arguments by filing a response to I nhance ’ s motion compel , Nicholas has waived these complai nt s on appeal

. See My Three
Son s , Ltd. v. Midway/Parker Med. Ctr., L.P. , N o . 05

- 15

- 01068

- CV, 2017 WL 2351082, at *3 (Tex. App.

— Dallas M ay 31, 2017, no pet.) (mem. op. on reh ’g) (w aivi ng complaint where appellant f a iled to file a response or objec tions to

mo tion to compe l arbi tration in t he underlying case ); G arcia 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 com pel arbitration not presented8

in trial court). Nor did Nicholas raise his due

- pr o cess challenge in the trial court.
We o verrule Nicholas ’s second an d third issue s . Conclusion W e affirm the judgment of the trial court

.

Sarah Beth Landau Justice Panel consists of Justices Lloyd, Goodman, and Landau.