TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00129-CV

Appellant, John Gordon// Cross-Appellant, South Texas Youth Soccer Association, Inc.

v.

Appellee, South Texas Youth Soccer Association, Inc.// Cross-Appellee, John Gordon

FROM THE 395TH DISTRICT COURT OF WILLIAMSON COUNTY

NO. 16-1393-C395, THE HONORABLE RYAN D. LARSON, JUDGE PRESIDING

O P I N I O N

This appeal primarily concerns the requirement to exhaust the administrative 

remedies of a voluntary association1 within the context of the judicial nonintervention doctrine, a 

longstanding and “well-established rule of law that the civil courts will not interfere with the 

internal operations of [voluntary] associations of private individuals.” Dallas Athletic Club 

Protective Comm. v. Dallas Athletic Club, 407 S.W.2d 849, 850 (Tex. App.—Austin 1966, writ 

ref’d n.r.e.) (quoting Gaines v. Farmer, 119 S.W. 874, 877 (Tex. App.—Texarkana 1909, writ 

1

 In current jurisprudence, the doctrine of exhaustion of administrative remedies 

generally arises in the context of an administrative proceeding and “requires a party in an 

administrative proceeding to await that proceeding’s completion, thereby securing all available 

administrative relief before seeking judicial review of the agency’s action.” Cash Am. Intern. 

Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex. 2000). Here, in contrast, the doctrine arises in the 

context of a voluntary association’s internal operations. See Bullard v. Austin Real Estate Bd., 

Inc., 376 S.W.2d 870, 877 (Tex. App.—Austin 1964, writ ref’d n.r.e.). Following Bullard, we

will continue to refer to the doctrine as one of exhaustion of administrative remedies but note 

that it is distinct from the doctrine in the context of administrative proceedings, although both are 

grounded in similar principles.
2

dism’d)). Here, the South Texas Youth Soccer Association, Inc. (STYSA) suspended John 

Gordon. Bypassing STYSA’s internal grievance procedures to appeal the suspension, Gordon

sued in trial court. STYSA moved to dismiss Gordon’s suit for lack of jurisdiction, which the 

trial court granted, and moved for attorney’s fees, which the trial court denied. Both parties 

appealed. For the following reasons, we affirm.

BACKGROUND

In June 2016, Gordon was appointed to the board of directors for Round Rock 

Soccer Association, Inc. (RRSA), after being involved with RRSA as a coach, a donor, and a 

licensed referee who would referee games within STYSA’s jurisdiction. RRSA is a local soccer 

association in the Capital Area Youth Soccer Association (CAYSA), which is a member of the 

regional youth soccer association STYSA. STYSA governs south Texas for the United States 

Youth Soccer Association (USYSA), a division of the United States Soccer Federation (USSF).2 

In November 2016, Gordon was removed from RRSA’s board of directors for

alleged aggressive behavior. The next month, Gordon sued the members of RRSA’s board of 

directors (the RRSA Members), seeking declaratory relief that his removal violated RRSA’s 

bylaws and the Texas Organizations Code and petitioning for writ of mandamus ordering the 

board to rescind its removal and to produce minutes of its meetings.

In February 2017, STYSA instituted an internal grievance proceeding against 

Gordon for alleged violations of STYSA’s procedures in section 4—titled Discipline, Protest, 

2

 As explained by STYSA, the USSF is a national governing body recognized and

designated by the United States Olympic Committee (USOC), which governs amateur sports in 

the United States. See generally 36 U.S.C. §§ 220501–220543. USOC is authorized to 

recognize national governing bodies for sports that are included in the Olympic Games or the

Pan-American Games and each national governing body may serve as the “coordinating body for

amateur athletic activity in the United States.” See id. §§ 220505(c)(4), 220523(a)(3).
3

Grievance and Appeal Procedures—of its administrative handbook.

3 Specifically, STYSA

alleged that Gordon’s suit against the RRSA Members violated sections 4.4.15 and 4.4.16, which

provide for the suspension of a person from all soccer activities for invoking the aid of the courts

without exhausting administrative remedies and impose liability for STYSA’s costs in defending 

the action, including for attorney’s fees.

4

The STYSA appeals committee conducted a hearing with Gordon present by 

telephone and in April, the committee issued a decision based on the testimony and information 

provided. The committee found by unanimous vote that Gordon violated sections 4.4.15 and 

4.4.16 and suspended Gordon “from any STYSA-sanctioned events for a period of one (1) year 

(effective April 11, 2017),” providing however that if Gordon “follows the proper course of

action outlined in STYSA [sections] 4.4.15 and 4.4.16, his suspension will be probated.” In a 

letter sent to Gordon the day after the hearing, STYSA enclosed the decision and stated, “You 

have the right to appeal this decision to the [USSF] Appeals Committee within ten (10) days of 

receipt of this letter. A copy of USSF Bylaw 705 and a Notice of Appeal form are enclosed with 

3

 The stated purpose of section 4 is “to promote and ensure uniformity and consistency in

the application of the rules and procedures” and to “attempt to regulate and control acceptable, 

unsportsmanlike and unfair behavior . . . in order to promote the sport of youth soccer.”

4

 Section 4.4.15 (“Cannot Invoke Aid of Courts”) states, “No official, club, league, 

association, team coach, referee, fan, supporter or player or their representative may invoke the 

aid of the courts of any State or of the United States without first exhausting all available 

remedies within the appropriate soccer organizations as set forth under the lines of authority 

herein.” Section 4.4.16 (“Penalty for Failure to Exhaust Administrative Remedies”) provides,

“Any person(s) or group(s) bringing action through the court system without exhausting the 

administrative remedies listed herein or in the USYSA / USSF rules” is subject to “suspension 

from all soccer activities and forfeit any appeal / protest rights” and liable to STYSA for court 

costs, attorney’s fees, and other expenses related to defending the action.
4

this letter.”

5 Gordon testified that although he received the letter, he did not intend to appeal the 

STYSA appeals committee’s decision to the USSF. He also stipulated that he did not initiate any 

grievance or any appeal of any protest or grievance procedure following receipt of the letter.

In May, Gordon amended his petition to add STYSA as a defendant. As alleged 

in his live petition—the fifth amended petition—Gordon claims that in early May he was 

removed from refereeing and “forced to leave the field” because he had “been banned from any 

participation in any STYSA-sponsored activity,” that he “suffered the loss of payment for this 

game,” and that he has “been unable to referee games for which he would otherwise have been

able to be employed and receive[] compensation.” He sued STYSA for tortious interference 

with contract for interfering with his “legitimate contractual rights to act as an independent 

contractor providing refereeing services to South Texas Soccer Referees,” for declaratory 

judgment that his suit “is not precluded by” STYSA’s procedures, for injunctive relief stopping 

STYSA from preventing Gordon from acting as a referee in youth soccer matches, and for 

attorney’s fees.

The RRSA Members filed a plea to the jurisdiction and STYSA moved to dismiss 

for lack of subject matter jurisdiction, citing the judicial nonintervention doctrine and alleging

that Gordon failed to exhaust administrative remedies by bringing his lawsuit instead of 

following the procedures for an internal appeal of his suspension as prescribed by STYSA’s 

constitution, bylaws, and rules. STYSA’s motion to dismiss also included a request “that this 

Court award STYSA with recovery of the attorney fees and costs incurred in pursuing this 

5 USSF Bylaw 705 prescribes the procedures for instituting an appeal and provides, “The 

Appeals Committee shall consider and determine appeals from final decisions rendered by 

Organization Members . . . relating to activities sponsored by the Federation or the Organization 

Member . . . or its members.”
5

Motion.” In November 2017, the trial court conducted an evidentiary hearing on the RRSA

Members’ plea and STYSA’s motion to dismiss. At the hearing, the parties did not discuss, 

argue, or present evidence as to attorney’s fees. In February 2018, the trial court granted 

STYSA’s motion and dismissed Gordon’s suit against STYSA with prejudice without addressing 

attorney’s fees. The record does not include a ruling on the RRSA Members’ plea.

A year later, the trial court granted Gordon and the RRSA Members’ joint motion

to dismiss their claims against each other with prejudice. Gordon represents to this Court that 

the issues between the RRSA Members and Gordon settled. STYSA then moved for entry and 

award of attorney’s fees, alleging that Gordon threatened an appeal earlier that month and

demanded settlement. STYSA claimed that “Gordon’s letter re-initiated this matter for STYSA

and forced STYSA to re-engage counsel and incur additional costs” and therefore that “STYSA

seeks to elect to enforce its right to recover attorney’s fees and costs” under section 4.4.16,

which provides as a penalty for failure to exhaust administrative remedies that the person is 

liable to STYSA “for all expenses incurred by STYSA . . . in defending the action, including, but 

not limited to: (1) court costs; (2) attorney’s fees; (3) cost of litigation” and other specified 

expenses. STYSA requested $14,367.69 for attorney’s fees and expenses and submitted an

affidavit to support the award. The court denied STYSA’s request for attorney’s fees because it 

“was not made pursuant to a timely counterclaim.”

6

Gordon then requested findings of fact and conclusions of law, which the court 

entered in April 2019, finding, as relevant here:

6

 The order indicates that a hearing on STYSA’s request for attorney’s fees occurred on 

March 4, 2019, but the record does not include a reporter’s record of this hearing.
6

12. STYSA has a Constitution, Bylaws, and Administrative Handbook that 

govern disciplinary actions and provide an appellate process for disciplinary 

decisions.

13. Gordon is bound by the Constitution, Bylaws, and Administrative Handbook 

as a member of RRSA’s Board of Directors and a participant under STYSA as a 

referee.

14. The Constitution, in section 4.4.1, states that a complainant shall pursue a

protest, appeal, and grievance to the following bodies in order:

a. One Member Association appeals body, then

b. STYSA Appeals Committee, then

c. STYSA Executive Committee only in disputes between Member 

Associations or their member clubs, then

d. USSF National Appeals Committee.

15. The Constitution, Bylaws, and Administrative Handbook state that a member 

can appeal a suspension decision to the [USSF] Appeals Committee within ten 

(10) days of a member’s receipt of a suspension.

16. The Constitution states that “Members agree not to resort to use of the courts 

until all administrative remedies are exhausted. Further, as penalty for breach of 

this agreement, members agree that by doing so they will be suspe[n]ded from all 

soccer activities and, further, liable for all of STYSA’s litigation fees and costs 

including the time of its personnel.”

17. STYSA suspended Gordon for a period of one year.

18. Gordon filed this litigation without appealing the suspension to the USSF 

Appeals Committee.

The court then made conclusions of law that Gordon is bound by the STYSA procedures, that 

STYSA as a voluntary association is entitled to set forth internal procedures not subject to 

judicial review, that Gordon did not exhaust all administrative remedies prior to filing litigation, 

and that the court therefore lacks subject matter jurisdiction.
7

Gordon appealed from the order granting STYSA’s motion to dismiss and 

STYSA cross appealed from the court’s order denying STYSA’s motion for attorney’s fees.

DISCUSSION

In four issues, Gordon challenges the trial court’s order granting STYSA’s motion 

to dismiss. In his first issue, he argues that his lawsuit involves state law issues that are not the 

proper subject of an administrative proceeding; therefore, the doctrine of judicial nonintervention 

should not apply. In his second and third issues, Gordon claims that the trial court’s decision

violates his due process rights and is contrary to public policy. In his fourth issue, Gordon 

argues that the only evidence admitted of STYSA’s organizational structure demonstrated that

STYSA did not have an administrative process that was enforceable against Gordon. On cross

appeal, STYSA challenges the trial court’s denial of its motion for attorney’s fees.

The Doctrine of Judicial Nonintervention

To provide context, we address the general nature of the doctrine of judicial 

nonintervention. “It is generally held that the constitution and by-laws of a voluntary 

association, whether incorporated or not, are controlling as to its internal management.” District

Grand Lodge No. 25 Grand United Order of Odd Fellows v. Jones, 160 S.W.2d 915, 922 (Tex. 

[Comm’n Op.] 1942). And more than half a century ago, this Court described the doctrine of 

judicial nonintervention by quoting our sister courts:

“We think it is a well-established rule of law that the civil courts will not interfere 

with the internal operations of such associations of private individuals, or assume 

to review their failure to conduct their business affairs according to the laws and 

rules of the order, except for the purpose of protecting some civil or property right 

of the party complaining.”

. . . .
8

“Courts are not disposed to interfere with the internal management of a voluntary 

association. The right of such an organization to interpret its own organic 

agreements, its laws and regulations, after they are made and adopted, is not

inferior to its right to make and adopt them. And a member, by becoming such, 

subjects himself, within legal limits, to his organization’s power to administer, as 

well as to its power to make, its rules.”

Dallas Athletic Club, 407 S.W.2d at 850 (first quoting Gaines, 119 S.W. at 877; then quoting

Brotherhood of R.R. Trainmen v. Price, 108 S.W.2d 239, 241 (Tex. App.—Galveston 1937, writ 

dism’d)); see Haedge v. Central Tex. Cattlemen’s Ass’n, No. 07-15-00368-CV, 2016 WL 5929596, 

at *6 (Tex. App.—Amarillo Oct. 11, 2016, pet. denied) (mem. op.) (“A member of a voluntary 

association is bound by a sentence of expulsion against him lawfully rendered by a tribunal 

created in pursuance of its constitution and clothed with that power. . . . The decisions of these 

tribunals, when organized under the constitution and lawfully exercising their powers, though 

they involve the expulsion of a member, are no more subject to collateral attack for mere error 

than are the judgments of a court of law.” (quoting Screwmen’s Benevolent Ass’n v. Benson, 

13 S.W. 379, 380 (Tex. 1890))).

However, “the application and the impact of the doctrine and its exceptions have 

not always been predictable.” Haedge, 2016 WL 5929596, at *5; see Hatley v. American 

Quarter Horse Ass’n, 552 F.2d 646, 655 (5th Cir. 1977) (noting that “the fabric of Texas law is 

not all of one piece in this area”); Barrash v. American Ass’n of Neurological Surgeons, Inc., 

No. 4:13-CV-1054, 2014 WL 2169813, at *1 (S.D. Tex. May 22, 2014) (order) (noting “the lack 

of clear guidance from Texas case law” regarding doctrine). Nevertheless, we need not delve 

into the contours of this doctrine to decide this case. The question before us is not whether 

Gordon could invoke judicial review of a final decision by a voluntary association, but whether 
9

he could invoke judicial review of STYSA’s decision without having pursued an internal appeal

as provided by STYSA’s procedures.

As to this question, binding precedent is clear. In a case applying the judicial 

nonintervention doctrine, this Court expressly required that members of voluntary associations

exhaust administrative remedies before bringing suit. See Bullard v. Austin Real Estate Bd., Inc.,

376 S.W.2d 870, 877 (Tex. App.—Austin 1964, writ ref’d n.r.e.).

7

 After noting the general rule 

“that usually a court will not enjoin expulsion proceedings pending before a professional 

association or its expulsory tribunal,” we held that a suit “was premature” when the litigant 

“failed to exhaust his administrative remedies” before the professional association and that, in 

this particular case, the litigant “refused to avail himself of [the administrative remedies]

altogether.” Id. at 874, 877. Thus, under Bullard, the issue in this appeal is whether Gordon 

exhausted his administrative remedies following STYSA’s decision before bringing suit.8

7

 From our review of case law, we have addressed the doctrine of judicial 

nonintervention three times. See Combs v. Texas State Teachers Ass’n, 533 S.W.2d 911, 913 

(Tex. App.—Austin 1976, writ ref’d n.r.e.); Dallas Athletic Club Protective Comm. v. Dallas 

Athletic Club, 407 S.W.2d 849, 850–51 (Tex. App.—Austin 1966, writ ref’d n.r.e.); Bullard, 

376 S.W.2d at 874–877. Only Bullard concerned the exhaustion requirement. 376 S.W.2d

at 877.

8 The Texas Supreme Court has not expressly addressed this question. But in the context 

of denying a petition for mandamus, the Texas Supreme Court held:

A member of a voluntary association is bound by a sentence of expulsion against 

him lawfully rendered by a tribunal created in pursuance of its constitution, and 

clothed with that power. The rule also applies at least to such incorporated 

societies as are not organized principally for commercial gain. By uniting with 

the society, the member assents to and accepts the constitution, and impliedly 

binds himself to abide by the decision of such boards as that instrument may 

provide, for the determination of disputes arising within the association. The 

decisions of these tribunals, when organized under the constitution, and lawfully 

exercising these powers, though they involve the expulsion of a member, are no

more subject to collateral attack for mere error than are the judgments of a court 
10

Exhaustion of Administrative Remedies

The failure to exhaust the administrative remedies of a voluntary association 

makes a suit “premature,” Bullard, 376 S.W.2d at 877; a premature suit is generally unripe, see 

Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998); and ripeness implicates 

subject matter jurisdiction, see id. Whether a court has subject matter jurisdiction is a question 

of law. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A plea 

to the jurisdiction is a dilatory plea whose purpose is to defeat a claim on jurisdictional grounds 

regardless of the claim’s merit. Bland Indep. Sch. Dist v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); 

see Patton v. Jones, 212 S.W.3d 541, 545 (Tex. App.—Austin 2006, pet. denied) (noting that 

“motion to dismiss based on a lack of subject matter jurisdiction is functionally equivalent to a 

plea to the jurisdiction”). “When the jurisdictional issue does not implicate the merits of the case 

and the jurisdictional facts are undisputed, the trial court should make the jurisdictional 

[of] law. But if the tribunal act illegally; if it declare a sentence of expulsion for 

an offense for which that penalty is not provided by the constitution and laws of

the association; and if there be no right of appeal, within the association, reserved 

for the redress of the injury,—the courts will review the proceedings, and, if 

found illegal, will treat them as null, and restore the member to his privileges as 

such. . . . Members of such associations, having voluntarily constituted tribunals 

to adjust their differences, should not be permitted to resort to the courts of justice 

to set aside the illegal awards of such tribunals as long as there is another body 

which has power to reverse the sentence, and which has not been appealed to.

The presumption is that if plaintiff had appeared before the association at a proper 

meeting, and had taken an appeal from the sentence of the board of trustees, the 

sentence, if illegal, would have been set aside. . . . The point is that it was the 

action of the tribunal created in accordance with the constitution, and the appellee 

had an adequate remedy by appeal within the society itself.

Screwmen’s Benevolent Ass’n v. Benson, 13 S.W. 379, 380 (Tex. 1890) (emphases added); see 

Manning v. San Antonio Club, 63 Tex. 166, 170–171 (1884) (citing German Reformed Church 

v. Commonwealth ex rel. Seibert, 3 Pa. 282, 291 (1846), for proposition that “if a member be 

expelled, even in violation of the rules of the church, his remedy is by appeal to the higher courts 

of the church and not to the civil tribunal”).
11

determination as a matter of law based solely on the undisputed facts,” which we review de 

novo. Assignees of Best Buy v. Combs, 395 S.W.3d 847, 858 (Tex. App.—Austin 2013, pet. 

denied) (citing University of Tex. v. Poindexter, 306 S.W.3d 798, 806 (Tex. App.—Austin 2009, 

no pet.)).

9

Here, the relevant facts necessary to decide whether Gordon exhausted his 

administrative remedies are undisputed and were confirmed at the evidentiary hearing on the 

motion to dismiss. Gordon does not dispute that STYSA suspended him for a year. He admitted 

that he attended the hearing by telephone and received a letter from STYSA that included both 

STYSA’s decision to suspend him and notice of his right to appeal to the USSF within ten days 

of receiving the notice. He also admitted that he did not intend to exercise that right and 

stipulated that “he did not initiate any grievance or any appeal of any protest or grievance 

following the receipt of that letter.”

In his fourth issue, Gordon asserts that the trial court erred because the CAYSA 

handbook, which he submitted as evidence at the evidentiary hearing, does not provide any 

evidence that RRSA had an administrative process for him to exhaust his administrative 

remedies. But the CAYSA handbook goes to whether Gordon exhausted administrative 

remedies following RRSA’s decision; it does not address whether Gordon exhausted his 

9 Given that the question before us concerns the exhaustion of administrative remedies, 

we need not take a position on the split between our sister courts as to whether the standard for 

reviewing a trial court’s decision to apply the doctrine of judicial nonintervention is abuse of 

discretion or de novo. Compare Texas Thoroughbred Breeders Ass’n v. Donnan, 202 S.W.3d 213,

224 (Tex. App.—Tyler 2006, pet. denied) (applying de novo standard); Juarez v. Texas Ass’n of 

Sporting Officials El Paso Chapter, 172 S.W.3d 274, 277–78 (Tex. App.—El Paso 2005, 

no pet.) (same), with Haedge v. Central Tex. Cattlemen’s Ass’n, No. 07-15-00368-CV, 

2016 WL 5929596, at *5 (Tex. App.—Amarillo Oct. 11, 2016, pet. denied) (mem. op.) (applying 

abuse of discretion standard); Stevens v. Anatolian Shepherd Dog Club of Am., Inc., 231 S.W.3d 71, 

75–76 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (same).
12

administrative remedies as to STYSA’s decision. Both STYSA’s Discipline, Protest, Grievance 

and Appeal Procedures and the notice of that process that was provided to Gordon following his 

suspension were admitted without objection at the hearing. And as described above, the 

undisputed facts establish that Gordon did not follow this process. We overrule his fourth issue.

In his first issue, Gordon argues that each of his “claims against RRSA are 

matters that should be resolved only by a court of law” and “that if only a court should decide the 

RRSA issues, only a court should decide if [] Gordon was wrongfully suspended by STYSA for 

exercising his right to have access to the Williamson County District Court in his suit against 

RRSA.” But we do not see how Gordon’s alleged conclusion necessarily follows. If Gordon is 

correct that the RRSA matters should be decided only by a court of law, then STYSA may have 

erred in its decision that Gordon should be suspended for failing to exhaust administrative 

remedies as to the RRSA matters. But the fact that STYSA may have erred does not necessitate 

that a court decide the issue that was before STYSA. Moreover, we do not opine today on 

whether a court may ultimately decide that issue. Instead, we reaffirm that a party generally 

must exhaust its administrative remedies within the voluntary association before bringing suit. 

See Bullard, 376 S.W.2d at 877; cf. Patterson, 971 S.W.2d at 443 (“[A]voiding premature 

litigation prevents courts from ‘entangling themselves in abstract disagreements over 

administrative policies’ while at the same time serving to ‘protect the agencies from judicial 

interference until an administrative decision has been formalized and its effects felt in a concrete

way by the challenging parties.’” (quoting City of El Paso v. Madero Dev. & Constr. Co., 

803 S.W.2d 396, 398–99 (Tex. App.—El Paso 1991, writ denied))); Benson, 13 S.W. at 380 (“If 

his expulsion was illegal, and if the association had refused, upon appeal, to set it aside, it may 

be that this court would have granted redress.”). We overrule his first issue.
13

In his second issue, Gordon claims that he was deprived of due process to have a 

trial subject to judicial examination. To the extent that Gordon is correct that he is entitled to a 

trial, the Texas Supreme Court has noted in the administrative law context that “[t]he

requirement that parties exhaust administrative remedies does not deprive parties of their legal 

rights” but “‘ensure[s] an orderly procedure to enforce those rights.’” Clint Indep. Sch. Dist. v.

Marquez, 487 S.W.3d 538, 544 (Tex. 2016) (quoting City of Houston v. Rhule, 417 S.W.3d 440, 

442 (Tex. 2013)). Likewise, here Gordon was not deprived of his due process rights. He chose 

not to avail himself of STYSA’s internal appeal procedure to enforce those rights within the 

voluntary association, which conceivably may have resulted in the reversal of STYSA’s decision 

in response to Gordon’s arguments. See Benson, 13 S.W. at 380 (“The presumption is that if 

plaintiff had appeared before the association at a proper meeting, and had taken an appeal from 

the sentence of the board of trustees, the sentence, if illegal, would have been set aside.”).

Because Gordon chose not to exhaust his administrative remedies, Bullard instructs that his suit 

is premature and that the trial court lacked subject matter jurisdiction over Gordon’s suit against 

STYSA. Bullard, 376 S.W.2d at 877. We overrule his second issue.

Finally, in his third issue, Gordon asserts that an exception to the doctrine of 

judicial nonintervention applies when “a valuable right or property interest is at stake,” Stevens v. 

Anatolian Shepherd Dog Club of Am., Inc., 231 S.W.3d 71, 75 (Tex. App.—Houston [14th Dist.] 

2007, pet. denied), and therefore that it is against the policy of the state to apply the doctrine of 

judicial nonintervention here. Specifically, Gordon argues that his “suspension by STYSA has 

resulted in a loss of income [in his role as referee] that he would have otherwise had” and that he 
14

“sued for that loss.”

10

 However, case law regarding this exception concerns a trial court’s refusal 

to intervene in the internal affairs of a voluntary association based upon the doctrine of judicial 

nonintervention, not based on a litigant’s failure to exhaust administrative remedies. Gordon

does not cite any analogous authority that applies the exception to permit a member of a 

voluntary association to bring suit without exhausting the administrative remedies within that 

association. Accordingly, we need not decide whether the exception applies to permit judicial

intervention had Gordon exhausted his administrative remedies because here—like the Bullard

plaintiff—he “refused to avail himself of them altogether.” Bullard, 376 S.W.2d at 877.

11 We 

overrule his third and final issue on appeal.

Attorney’s Fees

Turning to the cross appeal, STYSA asserts that the trial court erred in denying its

request for attorney’s fees and costs on the ground that STYSA did not file a counterclaim. In a 

single issue, STYSA alleges that it did not need to file a counterclaim, that it pleaded for 

attorney’s fees in its motion to dismiss, that the trial court should have considered the motion for 

10 Gordon also asserts that an exception applies because he had a “valuable right” in his 

“position on the board of directors” for RRSA and “his interest in accessing the books and 

records of the association so as to determine if his considerable donations were being spent as

promised.” But these rights were at stake before RRSA, not STYSA. It is STYSA’s action in 

suspending Gordon, not RRSA’s actions, that is at issue in this appeal.

11

 Our opinion today does not address a situation where a voluntary association deprives

a member of procedural due process. See Stevens, 231 S.W.3d at 75 (noting that “[c]ourts have 

also held that associations must accord their members something similar to due process, and 

have intervened in the inner-dealings of associations on this ground as well”). Other than 

asserting his right to a judicial trial, Gordon does not allege in his briefing before this Court any 

deprivation of procedural due process he received as to STYSA’s hearing or as to the internal 

appeal procedures provided by STYSA. See Masonic Grand Chapter of Order of E. Star 

v. Sweatt, 329 S.W.2d 334, 337 (Tex. App.—Fort Worth 1959, writ ref’d n.r.e.) (noting that 

“essential elements” of “due process” are “notice, and an opportunity to be heard and to defend 

in an orderly proceeding adapted to the nature of the case”).
15

entry and award of attorney’s fees as a “pre-judgment pleading amendment” because it “was 

filed after the dismissal order but before entry of a final judgment or the expiration of plenary

power,” and that there was no prejudice or surprise to Gordon. We disagree.

“Absent a mandatory statute, a trial court’s jurisdiction to render a judgment

for attorney’s fees must be invoked by pleadings, and a judgment not supported by 

pleadings requesting an award of attorney’s fees is a nullity.” Ogle v. Hector, No. 03-16-00716-

CV, 2017 WL 3379107, at *3 (Tex. App.—Austin Aug. 2, 2017, pet. denied) (mem. op.) 

(quoting Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 884 (Tex. 

App.—Dallas 2009, no pet.)). STYSA does not rely on a mandatory statute for its request for 

attorney’s fees. Nor did the parties try STYSA’s request by consent: at the November 2017 

evidentiary hearing, STYSA did not mention its request or present any supporting evidence for 

attorney’s fees. See Tex. R. Civ. P. 67 (“When issues not raised by the pleadings are tried by 

express or implied consent of the parties, they shall be treated in all respects as if they had been 

raised in the pleadings.”); Stoner v. Thompson, 578 S.W.2d 679, 682–83 (Tex. 1979) (holding 

that “[a] judgment must be based upon pleadings” not “‘on an unpleaded cause of action, in

the absence of trial by consent’” (quoting Oil Field Haulers Ass’n v. Railroad Comm’n, 

381 S.W.2d 183, 191 (Tex. 1964))); Nowlin v. Davis, No. 03-18-00694-CV, 2019 WL 2440103, 

at *2 (Tex. App.—Austin June 12, 2019, no pet.) (mem. op.) (noting issue was tried by consent 

when court admitted evidence of attorney’s fees without objection).

Pleadings define the issues and parameters of a contest. See Scott-Nixon v. Texas 

Higher Educ. Coordinating Bd., No. 03-10-00377-CV, 2012 WL 1582270, at *2 n.1 (Tex. 

App.—Austin May 4, 2012, no pet.) (mem. op.) (noting that “purpose of pleadings is to define 
16

issues at trial” (citing Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982))).

12

 But 

STYSA’s pleadings did not raise the issue of attorney’s fees; STYSA did not request attorney’s 

fees by petition or answer. See Tex. R. Civ. P. 45(a) (“Pleadings . . . shall . . . be by petition and 

answer.”), 78 (defining plaintiff’s pleadings as original petition and such supplemental petitions

as may be necessary), 83 (explaining that in course of pleading, defendant’s answer shall consist 

of original answer and such supplemental answers as may be necessary). And on this record, we 

cannot conclude that STYSA’s request for attorney’s fees in its motion to dismiss was a pleaded 

counterclaim, especially considering that the request was expressly limited to “recovery of the 

attorney fees and costs incurred in pursuing this Motion.” See In re S.A.P., 156 S.W.3d 574, 576 

n.3 (Tex. 2005) (“[A] motion for summary judgment is not a pleading.” (citing Tex. R. Civ. P. 

45(a))); MacFarland v. Le-Vel Brands LLC, No. 05-16-00672-CV, 2017 WL 1089684, at *17 

(Tex. App.—Dallas Mar. 23, 2017, no pet.) (mem. op.) (noting that record does not 

show “motion to dismiss was part of any pleading”); Portfolio Recovery Assocs. v. Talplacido,

No. 05-13-00682-CV, 2014 WL 2583691, at *3 (Tex. App.—Dallas June 10, 2014, no pet.)

(mem. op.) (“[A] motion is not a pleading.”); Stewart A. Feldman & Assocs. v. Industrial

Photographic Supply, Inc., No. 14-01-00249-CV, 2002 WL 31042586, at *5–6 (Tex. App.—

Houston [14th Dist.] Sept. 12, 2002, no pet.) (not designated for publication) (describing 

rationale for why motion for attorney’s fees was not “sufficient to constitute a pleading”); Jones

12

 STYSA’s two cited authorities on this issue are inapposite. See Whitton v. Loescher, 

No. 01-08-00497-CV, 2010 WL 1491948, at *6–7 (Tex. App.—Houston [1st Dist.] Apr. 15, 

2010, pet. denied) (mem. op.); Dickerson v. Trinity-W. Title Co., 985 S.W.2d 687, 692 (Tex. 

App.—Fort Worth 1999, pet. denied). In both cases, the defendant raised the issue of attorney’s 

fees in a pleading. In Whitton, the prevailing trial defendant alleged “a counterclaim for

attorney’s fees.” 2010 WL 1491948, at *2. In Dickerson, although the prevailing defendant did 

not bring a breach of contract counterclaim, the defendant did “answer[] with a general denial 

and [] affirmative defenses” and “requested attorney fees.” 985 S.W.2d at 688, 692.
17

v. Ignal, 798 S.W.2d 898, 900 n.1 (Tex. App.—Austin 1990, writ denied) (noting that motions 

are not pleadings but applications to court for relief not embraced by pleading’s prayer); Elliott 

v. Elliott, 797 S.W.2d 388, 392 (Tex. App.—Austin 1990, no writ) (same).

Finally, STYSA asserts that its motion for entry and award of attorney’s fees

constituted a “pre-judgment pleading amendment” that was filed “before entry of a final 

judgment,” notwithstanding that it was filed after the trial court dismissed both Gordon’s claims 

against STYSA with prejudice and all the claims of the other parties in the action. But the trial 

court’s orders dismissing Gordon’s claims against STYSA and the claims between Gordon and 

RRSA together constituted a final judgment. See Stewart v. USA Custom Paint & Body Shop, 

Inc., 870 S.W.2d 18, 20 (Tex. 1994) (“A properly executed order of dismissal is a judgment.”). 

Thus, we cannot construe the motion for entry and award of attorney’s fees as a “pre-judgment 

pleading amendment,” as STYSA asks this Court to do.

13

 And STYSA does not provide any 

authority or legal basis for concluding that the trial court erred in not granting a postjudgment

motion for attorney’s fees when the pleadings did not contain a claim for attorney’s fees, 

regardless of whether there was prejudice or surprise to Gordon.

Accordingly, we overrule STYSA’s sole issue on cross appeal.

13

 STYSA also argues that Gordon did not assert that the motion was untimely and 

therefore failed to preserve this issue on appeal by not raising it before the trial court. But

preservation concerns a “prerequisite to presenting a complaint for appellate review.” Tex. R. 

App. P. 33.1(a). Here, Gordon, as cross appellee, is not complaining of the trial court’s action, 

he is seeking to affirm the trial court’s action. Moreover, the trial court expressly addressed this

issue in its order when it denied STYSA’s motion as “not made pursuant to a timely

counterclaim,” and Gordon could raise arguments on appeal to support affirming the trial court’s 

decision based on this issue. See Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex.

2014) (“We do not consider issues that were not raised in the courts below, but parties are free to 

construct new arguments in support of issues properly before the Court.”).
18

CONCLUSION

For these reasons, we affirm both the order granting STYSA’s motion to dismiss 

and the order denying STYSA’s motion for attorney’s fees.

__________________________________________

Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Kelly

Affirmed

Filed: February 19, 2021