### 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 Gordo n

FROM TH E 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

re medies of a voluntary association 1 w i thin the conte xt of the j u dicial non intervention doctrin e , 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 Ath letic Club
Protectiv e 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 c urrent juris prudence, the doctrine of exhaustion of administrative remedies generally arises in the context of an administrative proce eding and “ r equir es a par ty in an admin istrative pr oceedi ng to await that proceeding ’ s completion, thereby securin g all av ailable administrative relief before seeking judicial review of the agency ’ s action. ” Cash Am. Intern. Inc. v. Bennett , 35 S.W.3d 12, 15 (Tex. 20 00)

. Here , i n contrast, th e doctrine a rises in the context of a voluntary association ’ s i nternal oper ations

. See Bull ard v. Austin Real Estate Bd., Inc. , 376 S.W.2d 870, 877 (Tex. App.

— Austin 1964, writ ref’d n.r.e.)

. F oll owing Bul l ard , we will continue to refer to the doctrine a s one of exhaustion of administrative remedies but note that it is d istinct from the doctrin e in the context of administrative proce edings , altho u gh both are g rounded in similar principles

.2

dism ’ d) ). Here, t he South Texas You th Soccer A ssoci ation , Inc. (S TYSA) suspended Jo hn
Gord on
. B ypassing STYSA ’ s internal grievance procedures to appeal the suspension , Gordon
sued in trial court

. STYSA moved to dismiss Gordon ’ s suit for lack of juri sdiction , which the trial court granted, and moved for attorney ’ s fees , which the trial court d enied

. B oth p a rties appealed

. For the following reasons, we affirm

.

B ACKGROU ND In June 2016, Gordon was appointed t o the bo a rd o f di rectors for Round Rock
So ccer Association, Inc. (RRSA) , af ter being involved with RRSA as a coa ch , a don or , and a l ice ns ed refer ee who wo uld referee g ames within STYSA ’ s jurisdiction

. RRSA is a local soccer
association in th e C ap ital Area Youth Soccer Associ ation (CAYSA) , which is a member of the regional youth soccer association STYSA

. S TYSA governs south Texas for the U nited States Youth Soccer Association (USYSA) , a division of the United Sta te s S occe r Federatio n (USSF). 2

In November 2016, Gordon was rem oved from RRSA ’ s board of directors for
al leged a ggres sive behavior

. The next month , Gordon sued the members o f R RSA ’ s board of
directors (t he RRSA Mem be rs) , s eeking declarat o ry relief that his removal violated RRSA ’ s bylaws and the Texas Organizations Co de and pet i ti on ing for writ of mandam us ordering the
board to rescind its removal and to prod uc e m in utes of it s me etin gs
.

I n Febr uary 2017, STY SA instit uted a n interna l grievance proceeding against
Gordon for alleged violat ion s of STYS A ’ s pro cedures i n section 4

— titled D is cipline, Prote st,

2 As explaine d by ST YSA, t he US SF i s a n ational go vernin g bo dy r ecognized and d esignat ed by the United St a tes Olym pic Committee (USO C) , which go verns am ateu r sports in the Uni ted States

. S ee generally 36 U. S.C . §§ 22050 1

– 2 2 05 4 3

. U S O C is auth ori ze d to recognize nat ional governing b od ies for s ports tha t are incl uded in t he Olympic Games or the Pan

- Am erican G ame s and e ach nation al gover n in g body may serve as the “coordinating body for ama teu r a thleti c activ ity in the United S tat es .” See id. § § 220 505 (c)(4) , 22 0523 (a)(3).3

Griev an ce a nd Appeal Proc edures

— of its administrative handbook

. 3 Sp ecif icall y, STYSA alleged that Gordon ’ s suit against the RRSA Me mbers vi olated sec tions 4.4. 15 and 4.4.16 , which provide for the suspe ns ion of a pers on from all soccer activi ti es for invok ing the aid of t he c ourts without exhausting administrative remedies and impo se liab i li ty for STYSA ’ s costs in de fendi ng the action, includin g for attorney ’ s fees

. 4

The STYSA appeals committe e co ndu cted a hearing with Gordo n present b y telephone an d i n April, the committee issued a decision b ased on the testimony an d in forma tion provid ed . The committee fo und by unanimous vote that Gordon violated sections 4.4.15 and
4.4.16 and suspended Gordon “f rom any ST YSA

- san c tioned events for a p eriod of one ( 1) year (effective April 11, 2 017) , ” provid i ng however that if Gordon “fol lows th e proper cou r s e of

act ion outlin ed in STYSA [sections] 4.4.15 and 4.4.16, his suspension will be probated. ” I n a letter s ent to Go r don the day af ter the hea ring , STYSA enclos ed the decisi on and stated , “ You
hav e the rig ht to appeal this decision to the [USS F] Appeals C ommi ttee within ten (10) days of receipt of this letter. A copy of USSF Bylaw 705 and a Notice of Appeal fo rm are enc losed w ith

3 The stated purpose o f section 4 is “to promo te and ensure uniformity and consis tency in the application of the r u les an d procedures” and to “attempt to regul ate and control acc eptable , unsportsm anlike and unfair behavior . . . in order to p romote the sport of youth soccer.”

4 Section 4 .4.15 ( “ Cann ot I nvok e Aid of Co urts ” ) s tates , “ N o official , club , leagu e , association , team c oac h, referee, fan , suppor te r or p l ayer or their re present ative may i nvok e the ai d o f the courts of any State or of the Un it ed States wit hout fi rst exh aus ting al l a vailable re medi es w ithin the a ppropria te soccer o rganizat i ons a s set f orth under the lines o f a uthority herein. ” Sect ion 4. 4.1 6 ( “ P enalty for Failure to Exhaust Administrative R e m edies ” ) provides , “ A ny person(s) o r g ro up (s) brin gin g actio n th rough the co u rt system w ithout e xhausting t he admin istrative remedie s lis ted her ein or in the USYSA / USSF r ule s ” is subject to “ su spensi on fr om all soccer activit ies a nd for feit any appeal / protest rights ” and l iab le to STYSA fo r court cost s , attorne y ’ s fees, and ot h er expenses relate d to defen di ng the a ction.4

thi s letter

. ” 5 G o rdon testified that although he received th e le tter, he did not inten d t o appe al the
STYSA a ppeal s c ommittee ’ s decision to the USSF . He also sti pul ated that he did no t initiat e any
gr iev ance or any ap peal of any protest or grievance procedure follow ing re ceipt of the l etter.

In May , Gordon amended hi s petition to a dd S T YSA a s a def endant. As al leg ed
in h is live petition

—

the fifth amended pet ition

— Gordon cl aims that in early M ay he w as removed from r efe r ee ing a nd “ forced to leave the field ” b ecause he ha d “ b ee n banned from any participation in any ST Y SA

- sponsored ac tivi t y , ” that he “ suf fered th e lo s s of payment for this
game , ” and that he has “ be en unable to referee ga me s for which he wo uld oth erw ise hav e been
able to be employed and receive [] com pensation

. ” He su e d STYSA for t ortious interf erence with cont ract for inter fer ing with his “ legi tim ate c ontractual rights to ac t as an independent

con tractor providing refereeing servi ces to Sout h Texas So ccer Re ferees , ” for declarato r y judgment that his suit “ is not precluded by ” STYSA ’ s p rocedure s , for injunctiv e rel ief stopping STYSA from preventing Gordo n from acting a s a referee in youth soccer mat ches , an d for attorney ’ s fe es.

Th e RRSA Memb ers filed a plea t o t he ju ri sdiction and STYSA moved to dismiss for lack of subject mat te r ju risdiction , cit ing th e judi cial non intervention doctrine and alleg ing

t hat Gord on failed to e xhaust administrative remedies by br inging his laws uit in stead of
foll ow ing the p rocedur e s for an internal appeal of his suspen sion as prescribed by S TYSA ’s

c o nstit ution, b y l aws, and r u les

. STY SA ’ s motion to dismiss also include d a r equest “ t hat this Court award STYSA with recovery of the at torney fees and costs incurred in pursuing t his

5 USSF Bylaw 7 05 presc ribes t he p roce dures for in stitut in g a n appeal and p rov ide s , “ T he Appea ls Com mittee shall con sid er and det er mine appeals from fin al d ecisio ns rendered by O rga nization Members

. . . relating to act iv i ties spon sored by t he Federation or th e Organization M e mber

. . . or its m embers

. ”5

Mot ion

. ” In November 2017, t he t rial court conducted a n evidentiary hear i ng on t he RRSA
Members ’ pl e a and ST YSA ’ s motion to dismiss

. At the he aring , the parties did not discu ss , argue, o r present evidence as to attorney ’ s fees

. In February 2018 , the trial cour t granted
STYSA ’ s mo tion a n d dismissed Gordon ’s suit against STYSA with prejudice w i tho ut add ressing

at torney ’ s fe es. T he record doe s no t inc lude a ruling on the RRSA Memb ers ’ plea

.

A year later, the trial court grant ed Gordo n and the RRSA Members ’ jo int motion
to dis mis s the ir cl ai ms against ea ch other with prejudic e
. Gordon rep resents to t his Co urt t hat
the issues b etw een the RRSA M embers and Gordon settled

. STYSA the n mo ved for entry and award of attorney ’ s fees , a lleg ing that Gor don threate ned an appeal ea rlier t hat month and
d emanded settl ement. STYSA claimed that “ Gordon ’ s letter re
- i nitiat ed t h is matter for ST YSA
and forced ST YSA to re
- engage counsel and incur additi onal costs ” and therefore that “ STYSA
seeks to el ect to enforce its right to recove r att orney ’ s fees an d costs ” u nd er section 4. 4.16 , which provi des as a penal ty for failure to exhau s t a dministrative reme di es that t he pers on is
liable to STY SA “ for all exp enses incurred by STYSA . . . in defending the ac tion, including, but
not limited t o: ( 1) cour t costs; (2) at tor ne y’s fees ; (3) cost of litigati on ” and other specif ied
exp ense s. ST YSA requested $ 14,367 .69 for atto rney ’ s fees and expenses and su bmitted an affidavit to support the award

. T he court denie d STYS A ’ s request for attorne y ’ s f ees b ecause it

“ was not mad e p ur suant to a ti mely counterclaim

. ” 6

Gordon then request ed f inding s of fact and conclus ion s of law, which th e court
entered in April 2 019 , finding, a s relevant here :

6 The order i ndicat e s t hat a hearing on STYSA ’ s request for attorney ’ s fees o ccurred on Mar ch 4 , 2019 , but th e record does not include a reporte r ’ s r ecord of this h earin g
.6

12. STYSA has a Constitutio n, Bylaws, and Administrative Han d book that g overn dis ciplina ry actions and pro vide an app el late process for disciplinary d ecis ions.
13. Gordon is bound by th e Constitu tion, Bylaws, and Administrative Handbook as a member of RRSA ’ s Board of Directors and a participant under STYSA as a r e fere e. 14. The Con stitu t i on, in section 4.4 .1, states th at a complai n ant shall pursue a pro test, appe al, and grievance to th e followin g bodies in or der:

a. One Member A ssociation appeals body, then
b. STYSA Appeals C ommittee, then

c
. STYSA Executi v e Co mmittee only in dispute s between Member A ssociation s or their memb er clubs, then
d. USS F Nati onal Appeals Committe e. 15

. The Con stitution , B ylaws, and Administrative Handbook state that a member can appeal a suspen sion decision to the [U SSF] Appea l s Co mmittee within t en (10) days of a member ’ s receipt o f a suspension

. 16. The Constit utio n stat es t hat “ Members agre e n ot to resort to use of the courts until all administrative remedies are exhausted. Further, as pen al ty for breach of this agreement , mem bers ag ree that by doin g so they will be suspe[n]ded from all socc er activities and, furt her, l iabl e for all of STYS A ’ s li tigation f e es and costs including the time of its personnel. ”
17. STYSA suspended Gordon for a period of one year.
1 8

. Gordon file d this litigatio n witho ut appeal ing the s uspension t o the USSF App eals Committee.

Th e co urt th en m ade conclu sions o f l aw th at Gordon is bound by the STYSA procedures, that
STYSA as a voluntary association is entitled to se t forth internal procedures not su bje ct to j udicial re view, that G ordon did not exha ust all ad ministrative r eme dies prior to fil ing litiga tion , and that t he court the refore lacks subject matter jurisdiction.7 Gordo n appealed from the order granting STYSA ’ s motion t o dismiss and
STYSA cro ss appe al ed fr om the co urt ’ s or d er den y in g STYSA ’ s motio n for atto rney ’ s fees.

D ISC USSI ON
In four issu es , Go rdon challe nges the t ri a l court ’ s order granting STYSA ’ s motion
to dismiss

. In his first issue , he argues tha t his law sui t involves sta te la w issues tha t are not th e
proper subjec t o f an administra tive pro ceedi ng ; therefore , the doc trine o f ju dicial non intervention
shou ld not a pply . In his se cond and third is sue s , Gordon claims that t he tr ial court ’ s dec ision
violates h is due proce ss rig ht s a n d is co ntr ary to pu blic policy

. In h is fourth issue, G ord on argues t hat the only evidence ad mitted of STYSA ’ s or ganizational str u c tu r e d emonstrated that
STY SA did not ha ve an administrative proce ss that was enf orceable against Gord on. On cross
ap peal, STYSA challeng es th e trial court ’ s deni al of its motion for attorney ’ s fees

.

The Doctr ine of Judic ial Non i nt erve ntion

To prov ide c ontext , we address the general nature of the doctrine of judicial
noninter vention. “It i s ge nerally held that the cons tituti on and by

- laws of a volu ntary
associa tion, wh ether inco rporated or not , are co ntrolling as to its internal m anage ment.” Dist r ict
Gra nd Lo dge No. 25 Grand United Order of O dd Fellows v. Jones , 160 S.W. 2d 915, 922 ( Tex. [ C omm ’ n Op.] 1942)

. And m ore t han ha lf a ce ntu ry ag o , this Court d es cribe d th e doctri ne of judicial noninterventio n by quoting ou r si ster c ourt s :

“ We th ink i t is a well

- es t ab lis hed rule of law that the civil courts will no t interfere wit h th e inte rnal operations o f su ch ass oc iations of priva te indi vid uals, or assu me to r ev iew t heir failure to co nduct th eir business a f fairs according to the l a ws and rules of th e ord er, excep t f or the purpose of protecting some civil or prope rty right of th e pa rty co mplaining

. ”

. . . .8

“ Courts a re not dis posed to inte rfe re wi th t he i nternal m anage ment of a vo luntar y associ ation. The ri g ht of such an o rgan izati o n to interpre t its own organic a g re eme nts, its laws and regul ations, after they are made and adopt ed, is not inferior to its r igh t to m ak e and adop t them

. And a m ember , by bec oming s uc h, su bjects himse lf, wi thin leg al limits, to h is organization ’ s p ower t o administer, as w ell a s to its p ow er to m ake, its rules. ”

Dallas Athletic Club , 4 07 S.W.2d at 85 0 ( f irst q uoting G aines , 11 9 S. W. at 87 7 ; then qu oting
B rother hoo d of R. R. Tra inmen v

. Price , 108 S.W.2d 239, 241 (Tex

. App.

— Galvesto n 19 37, writ
di sm ’ d ) ) ; s ee Haedge v. C ent ra l Tex

. C attlem e n ’ s A ss ’ n , No. 07

- 15

- 00368

- CV, 2016 WL 592959 6 , at *6 (Tex. App.

— Amar il lo Oct. 11, 2016, pet. de n ied ) (m em. op.) ( “ A mem ber of a v oluntary
association is bou nd by a sentence o f expulsion against him lawfully rende red by a tribunal
created in purs uance of its co nstitution and clothed with that power.

. . . The decisions of these tribunals, when organized und er the con stitut ion and la wfully exercising th eir pow ers, though they i nvolve the expulsion of a member, are no more subject to collatera l att ack for mere er ror than are the judgments of a court of law. ” ( quoting Screwm en ’ s Benev o l e n t Ass ’ n v. Ben son , 13 S .W. 379, 3 80 (Te x. 189 0 )) )

.

Ho wever, “ t he applica tion and the impac t of the doctrine and i ts exceptions h ave not always been predicta ble

. ” Haedge , 2016 W L 59 29596, at *5 ; see Ha tley v. A merican Quarter H

orse Ass ’ n , 552 F.2d 646 , 6 5 5 ( 5th Cir. 1977) (n oting that “ the fabric of Texas law is
not all of one piece in this are a ” ); Barrash v. Am erica n Ass ’ n of Neur ological Surge ons, Inc

. , No. 4:13

- CV

- 1054, 2014 WL 2169813, at *1 (S.D. Tex. May 22, 2014) (order) (noting “ the lack of clear guidance fro m Texas case law ” r e garding doctr in e )

. Nev ertheless, w e need n o t delv e into the contour s of this doctr ine to decide t his case. The question before us is not whethe r Gordon could invoke judicial review of a final decision by a voluntary association , but whether9

he could i nv oke judicial r eview o f S TYSA ’ s deci sion with o ut hav i n g pursued an int ernal appeal

as provided by ST YSA ’ s proced ures
.

As to this qu esti on, bindin g preceden t is clear. I n a case applying the judicial
noninte rvention doctrine, this Court expressly requir e d that m ember s of vo lun tary associ ations
exhaust admin i strati ve reme dies before bri n ging suit

. Se e Bullard v. Austin Real Es tate B d., Inc. , 376 S. W.2d 870, 877 ( T ex
. App.

— Austin 1 964, writ ref ’ d n.r.e.)

. 7 A fter noting the general rule

“ that usual l y a co urt will n ot e njoin e xpulsion proce edings pending befor e a pro fessio nal
associat ion or its expulsor y tribunal, ” we held that a suit “ was premature ” when the litigant

“ failed to exhaust his administrative remedies ” before the profess ional association and th at , in
th is pa rticula r case, the li tigant “ refused to a vail hi mself of [the admi nist rati ve remedies ] altogether. ” Id. at 874, 877. Thus, u nder B ul lard , the issue in this appeal is whether Gordon
exhaust ed his administrative remedies following STYSA ’ s dec ision bef ore b rin ging suit. 8

7 From ou r review of case law, we hav e addr es sed the doctrine of judicial nonintervention three time s. Se e Combs v. Texas State Teache rs Ass ’ n , 533 S.W .2d 911, 913 (Te x. App.

— Au stin 1976, writ ref ’ d n.r.e.) ; Dallas Athlet ic Club P rotective Comm. v. Dalla s Athletic Club , 4 07 S.W.2d 849, 850

– 5 1 (Tex

. App.

— Austin 1966, writ ref’d n.r.e.) ; Bullard , 376 S.W.2d at 8 74

– 877

. O nly Bullard conc erned the exhaustion requ irement . 376 S.W.2d at 877.

8 T he Texas Supreme Court has not expressl y addressed this quest ion

. B ut in the c ontext of denying a pet iti on for mandamus, the Texas Supreme Court held:
A member of a v olu ntary association is bound by a sen tence of expulsion against h im lawfully rendered by a tribunal created in pursuance of it s constitution, and cl othed with t hat po wer. The rule al so app lie s at l east to su ch incorporated so cieties as are not organized pri ncipally for commercial gain. By u niting with the society, the member assents to a nd accepts the constitution, and impliedl y binds himself to a bi de by the de cision of such boards a s that in st rume nt may pro vide, for the dete rmination of disputes arising wi thin the association. The decision s of these tribunals, when o rganized under the c onstitution, and lawfully exercising thes e powers, though the y involve th e expuls ion of a member, ar e no mo re sub ject to co llateral attack fo r mere error than are the jud gme nts of a court10

Exhaus tion of Administrati ve Reme dies

T he failure t o ex ha ust the adm inistrative remedies of a volunta ry a ssociation

m akes a suit “ premature , ” Bullard , 376 S.W.2d at 877 ; a premature suit is g ene rally u nripe , see
Patterson v. P lanned Parent hood , 971 S .W.2d 439, 442 (Tex. 1998) ; and ripeness implica tes subject matter jurisdi ction , see id. Whether a court h a s subject matte r jurisdiction is a question
of law

. Texas Dep ’ t of Park s & W ildlife v. Miranda , 133 S.W.3d 21 7, 226 (Tex. 2004). A plea to the jurisdiction is a dilatory plea whos e pur pose i s to defeat a c laim on jurisd ictional gr ounds
regar dless of th e claim ’ s merit. Bland Indep. Sch. D ist v. Blue , 34 S.W.3d 547, 554 ( Tex. 2000) ;

see Patton v. Jones , 212 S.W.3d 541, 54 5 ( Tex. Ap p.

— Austin 2006, pet. denied) ( noting that

“ motion to dismiss based on a lack of subject matter jurisdi ction is fu nctionally equiva lent to a pl ea to the jurisdiction ” )

. “ Wh en the ju risdictional issue does not implicate the merits of the case
and the jurisdi cti onal facts ar e undis puted, the trial court should make the jurisdictional

[of] law. But if the t ribunal act illegall y; if it declare a sentence of expulsion for an offense for which that penalty is not pr ovided by the constit ution and laws of the a ss o ciatio n; and if there be no right of appeal, within the asso ciation, reserved for the redress of the injury , — the courts w ill revi ew the proceedings, and, if found illegal, will treat them as null, and restore the member to his pri vileges as such.

. . . M e mbers of such as sociations, having voluntarily constituted t ribunals to adjust their differences, sho uld not be p ermitted to re so rt to the courts of jus tice to set aside the illegal award s of such tribunals as long as t here i s ano ther body which h as pow er to rev erse the s entence, and which has not been appealed to. The presumption is that if plaintiff ha d ap peared before the associ ation at a proper me eting, and had taken an appeal from th e sentence of the boar d of trust ees, the se ntence, if illega l, wou ld have b een set as ide.

. . . The po int is that it was the act ion of the tr ibunal created in accordance with the c onstitution, and the appellee had an adequate remedy by appeal within the s ociety itself.
Screwm en’s Benev o l e nt Ass’n v. Benson , 13 S. W. 379 , 3 80 (Te x. 1890) ( emphas e s added) ; s ee Manning v. San Antonio Club , 63 Tex. 166, 170

– 171 (1884) ( c iting Ge rman Reformed Church v. C om m onwealth ex rel. Seibert , 3 Pa. 282, 291 (1846) , for p r oposition that “ if a m ember be e xpelled , ev en in violation of the r u l es of the church, his remedy is by appeal to the higher cour ts of the church and not to the civil trib u na l ” )

.11

de termination as a matter of law base d solely on the undi sputed facts , ” which we review de

nov o. Assignees of Best Buy v. Combs , 395 S.W.3d 847, 8 5 8 (Tex. App.

— Austin 201 3 , pet.
den ied) (citing Un ivers ity of Tex. v. Poindex ter , 306 S.W.3d 798, 806 (Tex. App

. — Austin 2009, no pet.) )

. 9
Her e , the rele vant facts ne cessar y to decide whether G ordon e xhausted his administrative remedies are undispu te d and w ere confi rmed at t he evidentiary he aring on the

m otion to dismiss . Gordon does not dispute that STYSA suspended hi m for a year. He admitted
that he attend e d the hearing by telephone and rece ived a letter from STYSA that included both
STYSA ’ s deci sion to su spe n d h i m and not i ce of his right to appea l to the USSF within ten days of receiving the notice

. He al so admitted th at he did not inten d to exercise that right and stip ulated t hat “ he did not initiate any grievan c e or any app e al of any protest or gr i evance following the re ceipt of that l etter. ”

In his fourth issue, Gordon asserts that the trial court erred be cause the CAYS A
handboo k, which he sub mitted as evi dence at t he evidentia ry hear ing, does not p rovide any
evidence that RR S A had an administrat ive p rocess for him to exha ust his adminis trative
remedies. But the CAYSA handbook goes to whether Gordon exhausted admini strative

reme dies following RRSA ’ s decisi on ; it doe s not addres s whether Gordon exhausted his

9 Given that the question before us concerns the exhaustion of administrativ e remedies , we need no t take a p osition o n the split betwe en our sis t er cou rts as to wh ether the s tandar d for reviewing a trial c ourt ’ s decisi on to apply the doctrine of ju dicial nonintervention is abuse of discretion or de novo

. Compare Texas Thoroughbre d Breeders Ass’n v. Do nnan , 202 S.W.3d 213 , 224 (Tex. A pp.

— T y ler 200 6, pe t. denied) (applyi ng de novo standard); Juarez v. Texas Ass’n of Sporting Officials E l Paso Chapter , 172 S.W.3 d 274, 277

– 78 (Tex. App.

— El Paso 2005, no pet.) (same), with Haedge v. Ce ntral Tex. Cattlemen’s Ass’n , No . 07

- 15

- 003 68

- CV, 2016 WL 592 9596, a t * 5 (Tex. App.

— Amarill o Oct . 11, 2016, pet. denied) (mem. o p .) (applying abuse of discret ion standard); Stev ens v. Anatolian She pherd Dog Club of Am., Inc. , 231 S.W.3d 71 , 75

– 76 (Tex. App

. — Houston [14th Dist.] 2007, pet . denied ) ( same)

.12

administrati ve remed i es as to STYSA ’ s dec isi o n. Both S TYSA ’ s D isc ipline, Protest , Griev an ce and Appeal Procedures and the notice of that pr ocess that was provided to G ordon fol lowing his suspension w ere admitted without ob je ction at the hearing

. And a s described abo ve, t he

u nd ispu ted facts esta bli s h that Gordon did not follow this pr ocess. We overrule his fourth issue.

In his first issue, Gordo n argues that each of h is “ claims against RRSA are

m a tter s t hat sho uld be resol ved only by a court of law ” a nd “ that if only a court should decide the
RRSA iss u es, on ly a court sho uld decide if [] Gordon was wrongfully suspended by STYSA for exercising his right to have access t o the Williamson County District C our t in hi s suit again st
RRSA. ” But we do not see how Gordon ’ s alleged conclusion necess arily follows

. If G ordon is

c orre ct t hat the RRSA matters should be decided only by a court of law, then STYS A may have
erred in its decision that Gordon should be su spe nded fo r failing to exhaust administrative
remedies as to th e RRSA matters. But the f act that STYS A may h ave erred does no t necess itate
that a court decide the issue that was before STYSA

. Moreo ver, we do not opine today on whether a court may ultimat ely decide th at issue

. Instead , we reaffirm that a party generall y
must exhaust its adm inistrative r e medies within the vo lun t ary asso ciation before bringing suit.
S ee Bullard , 376 S.W.2d at 877 ; c f. P atterson , 971 S.W.2 d at 443 ( “ [A] voiding premature
lit iga tion pr events court s from ‘ e ntangling themselves in abstract disagreem ents over
admin istrative p ol i cies ’ while at th e s ame time ser ving to ‘ prote ct the agencies from judicial
interference until a n administrative decisi on has been formalized and its effe cts felt i n a concrete way by t he challenging parties. ’ ” ( quoting City o f El Paso v. Ma dero Dev. & Co nstr. C o. , 803 S.W .2 d 3 96 , 398

– 99 (Tex. App.

— El Paso 1991, writ denied) ) ) ; Benson , 13 S.W. at 380 ( “ If his expulsion wa s illegal, and if the association ha d r e fused, upon appeal , to set it aside, it may be that this court would have granted redress. ” )

. We overrule his firs t issue.13 In h is second iss ue , G or don claims that h e was deprived of due process to have a trial subject to judicial exami nation. To th e extent t hat Gordon i s c orrect that he is entitled to a trial, the Texas Supreme Court has note d in the administrative law contex t th at “ [t] he

re qu irement that parties exhaust administrative remedies doe s not deprive parties of their legal

r ights ” but “ ‘ e nsure[s] a n orderly pr oce dure t o enforce those rights. ’ ” Clint Indep. Sch. Dist. v. Marquez , 487 S.W.3d 538, 544 (Tex. 201 6) ( quo ting City of Hou st on v. Rhule , 417 S.W.3d 440, 442 (Tex. 2013))

. Likewise, here Gordon was not deprived of his due process ri ghts. H e chose

not to av ail hi mself of STYSA ’ s internal appeal procedure to enforce those righ ts within the voluntary asso ciation , wh ich con ce iva bl y may have resulted in the revers al of STYSA ’ s decision in response to Gordon ’ s arguments

. See Be nson , 13 S .W. at 380 ( “ The presu mpt ion is that if plaintiff had appeared b efore the association at a proper meeting, and had take n an app eal fro m the sentenc e o f the board of trustees, the sentence, if illegal, would have been set aside

. ” )

. B ecause Gordon chose not to ex haus t his admini str ative remedies , Bull ard instructs that his suit
is premature and that the trial court lack ed s ubje ct m at t er j urisd iction o v er Gordon ’ s suit a gainst
STYSA

. Bullard , 376 S.W.2d at 877

. We overrule his second issue.

Finally, in hi s third is sue, Gordon asserts t hat an exception to the d octrin e of judicial nonintervention appl ies when “ a valuable ri ght or property interest is at stak e , ” Ste vens v. Anatolian Sh epherd Dog Club of Am., Inc. , 231 S.W.3d 71, 75 (Tex. App.

— Houston [14th Di st.] 2007, pet. denied ) , and th erefore that it is agains t the policy of the state to apply the doctrine of judicial non int ervention he re. Specif ically, Gordon argues that his “ sus pens io n by STYSA has
resulted in a loss of inco me [in his role as referee] t hat he wou ld have othe r wise had ” and that he14

“ sued for t hat lo ss. ” 10 However, case law regarding this exception concern s a trial court ’ s refusal
to int erven e i n the i nternal affairs of a voluntary association based upon the doc trine of judicial
noninterven tio n , not based on a l i tigant ’ s failure to exhaust admin istrat ive remedies

. Gordon does not cite any analogous authori ty that applies the exception to permit a membe r of a voluntary a s s ociation to bring suit without exhausting the admin istrative remedies wit hin tha t
associatio n
. Accor di ngly, w e need not decid e whet her the exception appl ies to permit judicial
intervention ha d Gordon exh austed his administrative rem edi es because here

— li ke the Bull ard plaintiff

— he “ refused to avail himself of them al together

. ” Bullar d , 376 S.W.2 d at 877

. 11 We
overrul e his third and final i ssue on appeal.
Attorney ’ s Fees

Turning to the cro s s appeal, STYS A asserts that the trial court erred in denying i ts request for attorney ’ s fees and co sts on the ground that ST YSA did not f ile a co unter claim

. In a sing le issue, STYS A alleges that i t did n ot need to file a count erclaim, that it ple a d ed for

atto rney ’ s fees in its mo ti on to dismiss, t hat the trial c our t shoul d have considered the motion for

10 Gordon also a sser t s that an e xceptio n applies because he had a “ valuable r ight ” in his

“ position on th e board of directors ” for RRSA an d “ his interest i n accessing the books and records of the associatio n so as to determine if h is co nsiderable donations w e re bei ng spen t as promised. ” But th e se rights were at stake b efore RRSA, not STYSA

. I t is STYSA ’s act ion in suspending Gordon , not RR SA ’s actions , that is at issue in this appeal.

11 Our opinion today does not address a situatio n where a v oluntary as s ociati on depr ive s a member of proced ur al du e process
. See Stevens , 231 S. W.3d at 75 (noting that “ [c]o urt s have also held that associatio ns must accord their members something s imilar to due proces s, and have intervened in the inner

- dealings o f asso ciati o ns on this gr ound as well ” ). Other tha n as serting his right to a judicial trial, Gordon does not alleg e i n his briefing before this Court any deprivation of procedu ral due proce ss he received as to STYSA’ s hearing or as to the inter nal appeal procedures p rovide d by ST YSA. See Masoni c Grand Ch apte r of Order of E

. Star v. Sweatt , 329 S.W.2d 334, 337 (Tex. A pp.

— Fort Worth 1959, writ ref’d n.r .e.) (noting that “essentia l elements” o f “due process” are “notice , and an opportuni ty to be h eard and to defend in a n orde rly pro ceedi ng adapted to the nat ure of the case”)

.15

entry and award of attorney ’ s fees as a “ pre
- judgment ple adi n g amendment ” bec ause it “ was filed af te r the di smi ssal o rde r but before entr y of a final judgm ent o r the expirati on of plenary
p ower , ” a nd that ther e was no prejud ice or surpri se to G ordon. We disagree.

“Absent a mandatory statute, a tr i al co urt ’ s juris diction t o rende r a judgm e nt
for attorney ’ s fees m ust be invoked by pleadings, and a j udgment not supported by pl eading s req uest ing an award of attorney ’ s f ees is a nullity.” Ogle v
. Hector , No. 03

- 16

- 007 16

- CV, 2017 WL 3379107, at *3 (Tex

. Ap p.

— Au stin Aug . 2, 2017 , pet. deni ed) ( m em . op.) ( quoting Alan R euber Chevrolet, Inc. v. Grady Chevr olet, L td. , 287 S.W.3d 877, 884 ( Te x. App.

— Dallas 2009, no pet.) )

. S TYSA do es not rely on a m and atory s ta tute for its req uest for attorney ’ s fe es. Nor d id the p ar ties t r y STYSA ’ s reque st b y co nsent : at the November 2017
evidentiar y hear ing , STYS A did not mention it s request or present any suppo rting evidence for attorney ’ s fees

. S ee T e x. R. Civ. P. 67 (“Whe n iss ues not rais ed by the pleading s are tried by
expre ss or implied consent o f the parties, t hey shal l be treat ed in all respe cts as if they had been raised in the pleadings. ”) ; Stoner v. Th om pso n , 578 S.W.2d 679, 682

– 83 (Tex. 197 9) ( h oldi ng that “ [a] jud g m ent must be bas ed upon pleadings ” not “ ‘on a n unplead ed cause of action, in
the ab sence of t rial by consent ’ ” ( quo ting Oil Fi eld Ha ulers Ass ’n v. Railroad Comm ’ n , 381 S.W.2d 183 , 191 (Tex. 196 4) ) ) ; Nowlin v. Davis , No. 03

- 18

- 0069 4

- CV , 201 9 WL 2440103,

at * 2 ( Tex. App.

— Aus ti n June 12, 2019, no p et.) (mem. op. ) (noting issue was tri ed by c onsent
wh en c ourt admitted e vid ence of att orney ’ s fees without objection )

.

Pleadings defi ne the issues and param eters o f a cont est

. See Scott

- Nixon v. Texas Higher Ed uc. Coordinati ng B d. , No. 03

- 10

- 003 77

- CV , 2012 W L 158 22 70, a t *2 n.1 (Tex. App.

— A us tin May 4, 2012, no p et.) (m em. op .) (noting that “ purpose of ple ading s is to define16

issues a t t r i al ” (citing Murray v. O & A E xpress, Inc. , 630 S.W.2d 63 3, 636 (Tex. 1982 ) ))

. 12 But
STYSA ’ s p lead ing s did not raise the is s ue of a t torney ’ s fees ; STYS A did not request attorney ’ s fees by peti tion or answer. See Tex. R. Civ. P. 45 (a) ( “ Pleadings

. . . sha ll

. . . b e by petition and

answer
. ” ) , 78 (defin ing plaintiff ’ s pleadings as original pe ti t io n and such supplemental petiti o n s

as m ay be ne cessary) , 83 ( explaining that i n course of plea d ing , d efendant ’ s ans wer shall consi st
of o riginal answer and such s upp lementa l a nswers as may be necessary) . A nd o n this record, we

cannot con cl ude t hat STYS A ’ s r eque st for attorney ’ s fe es in its mo t ion t o dis miss was a pleaded
counterclaim , especially co nsider ing that the request was expressly l imit ed to “ re cove ry of th e

a t torney fees and c os ts incurred in p ursui ng this Motion

. ” See In re S.A. P. , 156 S.W.3d 5 74, 576
n.3 (Tex. 2005) ( “ [A] moti on for summary judgment is not a pleading

. ” (citing Tex. R. Civ . P. 45(a)) ) ; MacFar land v. Le

- Vel Br an ds LLC , No

. 0 5

- 16

- 00672

- CV, 20 17 WL 1089684, at *17 (Te x. App.

— Dallas Mar. 23, 2017, no pe t.) (mem. op. ) (noting that re cor d doe s not

s how “ mo tion to dism i ss wa s part of any pleading ” ); Portfolio Recovery Assoc s
. v . T alplacido , No. 05

- 13

- 00682

- CV, 2014 WL 25 8 3691, a t *3 (Tex. A pp.

— Da llas June 10, 2014, no pet.) (mem. op.) ( “ [A] motion is not a plead ing

. ” ); Stewart A. F eldma n & Asso c s
. v. Indus trial Photogra p hic S u pply, Inc. , N o. 14

- 01

- 00249

- C V, 20 02 WL 31 042586, at *5

– 6 (Tex. App.

— Ho uston [ 14th Dis t.] Sept. 12 , 2002, no pet. ) ( not des ignate d for publi cation ) ( describing

r ationale for why m otion for a ttorney ’ s f ees was not “ s uf

fi cien t to constitute a pleading ” ) ; Jo n es

12 STY SA ’ s two c ite d autho rities on this issu e are inappo site

. See Whitton v. L oesch e r , N o. 01

- 08

- 00497

- CV, 2010 WL 149 1948, at * 6

– 7 (Tex

. App.

— Ho uston [1st Dist.] Apr. 15, 2 010, pet. d enied) (me m
. op.) ; Dicker son v . Trinity

- W

. Ti tl e Co

. , 9 85 S.W.2d 687, 692 (T ex. App.

— F ort Worth 1999, pet. den ied)

. In both ca ses, the defendan t rais ed th e iss ue of attorney ’ s fees in a ple ading. In Whitton , the pre vailing trial defe ndant alle ged “ a coun terclaim fo r attor ney ’ s f

ees. ” 2010 WL 1 491948, at *2

. In Dickerson , although the pr ev ailing defend ant did not br ing a breach of contract counte rclaim , t he defendant did “ answer[] with a g eneral deni a l and [] affirm a tive defenses ” an d “ re quest ed attorney fees

. ” 98 5 S .W.2 d at 68 8 , 69 2

.17

v. Ignal , 798 S .W.2d 898, 90 0 n.1 (Tex. App.

— Austin 1 990, writ d enied) ( noting that motions

are not pl e ading s but applic ations to court for relief not em braced by pleading ’ s pr ayer ) ; Elliott

v. El liot t , 79 7 S.W.2 d 388, 3 92 (T ex. App.

— Austin 1 99 0, no wr i t) (sam e)

.

Finally, STYSA asserts that its motion fo r entry a nd award of attorney ’ s fees
constituted a “ p re
-

ju dgment pleading amendment ” that was filed “ be fore entry o f a fin al judg men t , ” notwithstanding that it was filed after th e trial court dis miss e d both Gordo n ’ s cl ai ms
ag ainst STYSA with prejudic e an d all th e claims of t he other parties i n the ac tion

. But the trial

court ’ s order s dismissing Gordon ’ s claims ag ainst STYSA and the claims between G ordon an d
RRSA together constitu ted a fi nal judgm ent. See Stewar t v . U S A Custom Pa i nt & Body Shop,
Inc. , 870 S. W.2d 18, 20 (Tex

. 199 4) ( “ A p roperl y executed order o f di s missal is a judgment. ” ). Thus, we can not const rue the motion for entry and award of attorney’s fees as a “ p re
- judgment pleading amendm en t , ” as S TYSA asks thi s Court to do

. 13 An d STYSA doe s not pr ov ide a ny
aut hority or legal basis fo r co ncluding that t h e tri al court err ed in not grant ing a post jud gm en t motion for attorney ’ s fees when th e plead in gs did not cont ain a claim for attorney ’ s fe es ,

r egard l es s of whethe r there was prejud ice or s urprise to G ordon

.

According ly, w e overrule STY SA ’ s sol e issue on cro ss appeal.

13 STYSA also a rg u e s that Gor don did not assert that the moti on wa s untimely and t herefore failed t o preserve this issue o n app ea l b y not raising it before t he trial court. But p reser vation concerns a “ prerequis ite to pres enti ng a co m plaint for ap pella te review. ” Tex. R

. App. P. 3 3.1 (a)

. Here, Go rdon , as cro s s a pp ellee , is not compla ining of the trial cou rt ’s ac tion , he is se eking to affir m t he trial court ’ s action

. More o v er, th e tr ial court expressl y addres se d this issu e in its ord er whe n it de nied S TY S A ’ s motion a s “ no t m ade pursuan t to a timely coun te r claim , ” and G ordon could raise a rguments on appeal to s upp or t affirming the trial court ’ s decision based on t h is issue. See Gr eene v. Farmers Ins. E xch. , 446 S.W .3d 761, 764 n.4 (Te x. 201 4) ( “ We do not conside r is sues th at were not raised in the court s be lo w, but parties are free to co n struct new a rgume nt s in support o f issues properly before the Court. ” ).18 CO NCLUSION
For these reaso ns , we affirm both the orde r granting STYSA ’ s m otio n to di smiss
and the order denying STYS A ’ s mo ti on for a ttorney ’ s fees

.

_______________ ________ ___________________ Melissa Goodwin , Jus ti ce Bef ore Jus tices Goodwin, Baker, and Ke lly
Af fi rmed
Fi led : February 19, 2021