Attorney at oral hearing on the post-judgment motion filed after grant of summary judgment wasn't even from the same law firm that was pursuing the appeal, and the notice of appeal had been filed before the post-judgment motion was even filed, not to mention heard by the trial court.
Chief Justice Radack nevertheless finds that the attorney's deferential response to the presiding judge at the oral hearing on the motion for reconsideration ("I totally understand what you are saying") resulted in waiver of the argument the client's appellate law firm was making on appeal, seeking reversal of the summary judgment granted based on the record before the trial court at that time it was heard.
|Say "Yes, ma'mam at your client's peril"|
Day cannot rely on the Youngs' attorney's statement at the summary judgment hearing because the trial court must decide the summary judgment issues based on the pleadings and evidence on file at the time of the hearing. See TEX. R. CIV. P. 166a(c).
Here, the oral remarks of the losing party's attorney that Chief Sherry Radack found to have resulted in waiver under the invited error doctrine were not even made at the summary judgment hearing; they were made on a post-judgment motion that the trial court judge denied while the case was already on appeal. The denial was not even added to the issues on appeal. Instead, the opposing party requested a supplemental reporter's record to torpedo the appeal with the "incriminating" statements that would not even have been in the appellate record otherwise, arguing that they amounted to "waiver" and mooted the pending appeal.
Radack cites a prior First Court case for authority:
“A party may not lead a trial court into error and then complain about it on appeal.” Solomon v. Parkside Med. Servs. Corp., 882 S.W.2d 492, 493 (Tex. App.—Houston [1st Dist.] 1994, writ denied).
So far, so good. Except that the appeal here was from a summary judgment granted by a visiting judge on July 7, 2017; that the notice of appeal was filed on August, 8, 2017; and the hearing on the motion for reconsideration that Radack found to have killed the appeal did not even take place until September 20, 2017, according to the trial court's docket sheet.
How could the appellant's trial court attorney have led the trial court into temptation to commit reversible legal error in granting the summary judgment with oral statement made more than two months after that happened, i.e. more than two months after the judgment was signed, not to mention signed by different (visiting) judge?
Not to mention that the appellate court's jurisdiction over the summary judgment had already been invoked?
It defies logic.
But logic does not seem to matter much.
But logic does not seem to matter much.
Opinion issued April 17, 2018
Court of Appeals
First District of Texas
CHERYL CURRID, Appellant
COIT CLEANING AND RESTORATION SERVICES, Appellee
On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Case No. 1087009
Appellant, Cheryl Currid, appeals from the trial court’s summary judgment in
favor of appellee, Coit Cleaning and Restoration Services (“Coit”), on Coit’s suit on
a sworn account1
and alternative claims for breach of contract, quantum meruit, and
1 See TEX. R. CIV. P. 185.
unjust enrichment. In two issues, Currid contends that the trial court erred in not
compelling the parties to arbitrate their dispute.
In its original petition, Coit alleged that, after Currid’s house suffered flood
damage, Coit provided remediation, restoration, and cleaning goods and services to
Currid, pursuant to a written agreement (the “agreement”). Coit alleged that after it
provided Currid with such goods and services, she failed or refused to pay as agreed.
Coit brought a suit on a sworn account and various alternative claims, including
breach of contract, quantum meruit, and unjust enrichment, against Currid. Currid
answered, generally denying the allegations and asserting a limitations defense.
Coit filed a motion for summary judgment, arguing that it was entitled to
judgment as a matter of law on its suit on a sworn account because, on May 29, 2015,
it provided goods and services to Currid, for which Currid promised to pay the
reasonable, usual, and customary price. After it provided such goods and services,
however, Currid failed or refused, despite demand by Coit, to pay as agreed. Coit
asserted that it kept systematic records of the account and that, after all just and
lawful offsets, credits, and payments, Currid owed the principal sum of $37,807.25.
Coit also asserted that it was entitled to judgment as a matter of law on its suit
on a sworn account because Currid had failed to timely file a verified denial.2
Further, the agreement, account, and damages were deemed admitted against Currid
because she had failed to timely “provide any legitimate substantive responses to
Coit asserted that it was entitled to judgment as a matter of law on its
alternative breach-of-contract claim because, pursuant to the parties’ written
agreement, Coit provided goods and services for which Currid agreed to pay; Coit
fully performed its contractual obligations as promised; Currid breached the
agreement by failing or refusing to pay as agreed; and such breach proximately
caused Coit damages in the amount of $37,807.25.
Coit also asserted that it was
2 See id.; see also Panditi v. Apostle, 180 S.W.3d 924, 927 (Tex. App.—Dallas 2006,
no pet.) (holding that, absent timely filed verified denial, defendant “will not be
permitted to dispute the receipt of the services or the correctness of the charges”);
Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 562 (Tex. App.—
Dallas 2003, pet. denied) (“[A] defendant’s noncompliance with rule 185
conclusively establishes that there is no defense to the suit on the sworn account.”).
3 Coit further moved for a no-evidence summary judgment, arguing that it was
entitled to judgment on its claims because Currid had no evidence to support any
defense against its claims, including limitations. “The law is well-established that
a party may never properly move for [a] no-evidence summary judgment to prevail
on its own claim or affirmative defense for which it bears the burden of proof.”
Haven Chapel United Methodist Church v. Leebron, 496 S.W.3d 893, 904 (Tex.
App.—Houston [14th Dist.] 2016, no pet.) (internal quotations omitted); see also
TEX. R. CIV. P. 166a(i).
entitled to judgment as a matter of law on its alternative claims of quantum meruit
and unjust enrichment.
Coit sought attorney’s fees, pursuant to Chapter 38 of the Texas Civil Practice
and Remedies Code,4
in the amount of $7,250.00. Coit attached, as its summaryjudgment
evidence, the business records affidavit of its general manager, Gus
Velasco; a copy of the agreement signed by Currid; an itemized description of the
work performed; Coit’s requests for admissions and Currid’s responses; and an
affidavit in support of Coit’s claim for attorney’s fees.
In her summary-judgment response, Currid asserted that Coit had brought its
claims “in the wrong forum.” She asserted that Coit had “sue[d] on a contract that
contains an arbitration agreement that subjects any dispute related to the
performance of services by COIT to mandatory arbitration,” as follows:
Currid asserted that, to the extent there existed any “ambiguity regarding the
applicability and enforceability of the arbitration agreement for purposes of
4 See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (West 2015) (providing
attorney’s fees for certain claims, including services rendered, labor performed,
materials furnished, sworn account, or written contract).
defending against [Coit’s] motion,” the trial court should resolve it summarily
because it constituted a question of law and one properly decided by the trial court,
rather than a merits issue reserved for the arbitrator. In her prayer, Currid asked the
trial court to “sustain her objection to [Coit’s] choice of forum in denigration of the
arbitration agreement, enter an order denying [Coit’s] motion for summary
judgment, and dismiss this suit for having been filed in the wrong forum.” Currid
did not attach any evidence.
Coit, in its reply, asserted that Currid had not presented any competent
summary-judgment evidence to raise a genuine issue of material fact and had waived
arbitration by raising it for the first time in her response, just two weeks before trial.
Subsequently, the trial court signed a final summary judgment in favor of Coit
on its claims, awarded it damages in the amount of $37,807.25, and awarded it
attorney’s fees in the amount of $7,250.00 through trial, with conditional attorney’s
fees through appeal and petition for review.
Currid then filed a “Motion to Alter or Set Aside the Final Summary
Judgment,” asserting that the trial court had erred in granting summary judgment for
Coit because the trial court “should have limited the inquiry to the threshold matter
of arbitrability.” Currid requested that the trial court vacate the judgment and
“replace it with a judgment of dismissal with prejudice to [Coit] re-filing its claim
in a court of law and without prejudice to the claim being refiled in the proper arbitral
forum, based . . . on the arbitration provisions in the terms of the document relied
upon by [Coit], of which the Court is requested to take judicial notice.” Currid
asked, in the alternative, that she be granted a new trial, “in the interest of justice.”
After a hearing, at which Currid agreed that she had not, prior to the trial court’s
ruling on the summary judgment, filed a motion to enforce the arbitration provision,
the trial court denied the motion to vacate its judgment.
In her first issue, Currid argues that the trial court “erred when it did not
compel arbitration,” and “[i]nstead, . . . ruled on the merits of the summary judgment
motion,”5 because she established that the parties had a valid arbitration agreement
and that Coit’s claims fell within the scope of the agreement. In her second issue,
Currid asserts that, because the trial court “should have compelled arbitration, it did
not have jurisdiction to award attorney’s fees.”
Standard of Review and Legal Principles
The Texas General Arbitration Act (“TAA”)6 provides, in pertinent part, that:
5 Currid does not challenge the merits of Coit’s claims.
6 The agreement at issue does not specifically invoke either the TAA or Federal
Arbitration Act (“FAA”). See 9 U.S.C. §§ 1–16. Because both parties apply the
TAA and neither asserts that the FAA preempts the TAA or is materially different
on any issue in this case, we apply decisions addressing both the TAA and FAA.
See G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 519 n.14 (Tex.
2015); S.C. Maxwell Family P’ship, Ltd. v. Kent, 472 S.W.3d 341, 343 (Tex. App.—
Houston [1st Dist.] 2015, no pet.).
(a) A court shall order the parties to arbitrate on [the] application of
a party showing:
(1) an agreement to arbitrate; and
(2) the opposing party’s refusal to arbitrate.
(b) If a party opposing an application made under Subsection (a)
denies the existence of the agreement, the court shall summarily
determine that issue. The court shall order the arbitration if it
finds for the party that made the application. If the court does
not find for that party, the court shall deny the application.
(c) An order compelling arbitration must include a stay of any
proceeding, subject to section 171.025.
TEX. CIV. PRAC. & REM. CODE ANN. §§ 171.021, 171.025 (West 2011).
“If there is a proceeding pending in a court involving an issue referable to
arbitration under an alleged agreement to arbitrate, a party may make an application
under this subchapter only in that court.” Id. § 171.024. Generally, the trial court
“shall stay a proceeding that involves an issue subject to arbitration if an order for
arbitration or an application for that order is made under this subchapter.” Id.
§ 171.025. The party seeking to compel arbitration has the initial burden to establish
that there exists a valid agreement to arbitrate, that the claims asserted fall within the
scope of the agreement, and that the opposing party has refused to arbitrate. See id.
§ 171.021; S.C. Maxwell Family P’ship, Ltd. v. Kent, 472 S.W.3d 341, 343 (Tex.
App.—Houston [1st Dist.] 2015, no pet.); Mohamed v. Auto Nation USA Corp., 89
S.W.3d 830, 835 (Tex. App.—Houston [1st Dist.] 2002, no pet.); see also Ellis v.
Schlimmer, 337 S.W.3d 860, 861–62 (Tex. 2011).
“If the party seeking arbitration carries its initial burden, the burden then shifts
to the party resisting arbitration to present evidence on its defenses to the arbitration
agreement.” Mohamed, 89 S.W.3d at 835; see Ellis, 337 S.W.3d at 862. One such
defense is that the party seeking arbitration has waived its right to arbitration.
Williams Indus., Inc. v. Earth Dev. Sys. Corp., 110 S.W.3d 131, 135 (Tex. App.—
Houston [1st Dist.] 2003, no pet.). A party does not waive arbitration merely by
delay; rather, waiver may be found only if the proponent of the defense establishes
that: (1) the party seeking arbitration has substantially invoked the judicial process
and (2) the party opposing arbitration suffers actual prejudice as a result. G.T. Leach
Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 511–12, 515 (Tex. 2015);
Williams Indus., Inc., 110 S.W.3d at 135. Waiver may be implied or express, but it
must be intentional. See Williams Indus., Inc., 110 S.W.3d at 135. Because public
policy favors arbitration, there is a strong presumption against finding that a party
has waived its right to arbitration. Id. Whether waiver has occurred depends on the
individual facts and circumstances of each case. Id.
Motion to Compel Arbitration
Here, Currid first argues that the trial court erred in not compelling arbitration
because she included in her summary-judgment response an “assertion that the case
should be compelled to arbitration.”
Coit asserts that the “proper mechanism for invoking arbitration” under
section 171.021 is a motion to compel arbitration and that Currid did not file a
motion to compel arbitration or to abate or to stay the proceedings, did not invoke
arbitration in her summary-judgment response, and affirmatively represented to the
trial court that she did not act to compel arbitration.
“A party to a lawsuit who seeks to enforce an arbitration provision must file
a motion to compel arbitration.” S.C. Maxwell Family P’ship, Ltd., 472 S.W.3d at
343 (“[A]rbitration provisions are not self-executing . . . .”); Ground Force Const.,
LLC v. Coastline Homes, LLC, No. 14-13-00649-CV, 2014 WL 2158160, at *2 (Tex.
App.—Houston [14th Dist.] May 22, 2014, no pet.) (mem. op.) (noting that section
171.021 “requires an ‘application of a party’ for the court to order arbitration”); see
also TEX. CIV. PRAC. & REM. CODE ANN. § 171.021 (“A court shall order the parties
to arbitrate on [the] application of a party . . . .” (emphasis added)); see, e.g.,
Schlumberger Tech. Corp. v. Baker Hughes Inc., 355 S.W.3d 791, 797 (Tex. App.—
Houston [1st Dist.] 2011, no pet.) (holding that interlocutory jurisdiction required
filing of “an application to compel arbitration made under Section 171.021”).
It is undisputed that Currid did not file a motion to compel arbitration in the
instant proceeding in the trial court. See TEX. CIV. PRAC. & REM. CODE ANN.
§§ 171.021, 171.024 (“If there is a proceeding pending in a court involving an issue
referable to arbitration under an alleged agreement to arbitrate, a party may make an
application under this subchapter only in that court.” (emphasis added)); S.C.
Maxwell Family P’ship, Ltd., 472 S.W.3d at 343.
The record shows that Currid, in her summary-judgment response, asked the
trial court to “sustain her objection to [Coit’s] choice of forum in denigration of the
arbitration agreement, enter an order denying [Coit’s] motion for summary
judgment, and dismiss this suit.” She does not direct us to any place in her response,
or to any other place in the record, in which she requested an order from the trial
court compelling the parties to arbitrate Coit’s claims or to abate or to stay the
proceedings. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 171.021, 171.025.
In support of her argument that she “sought to compel arbitration” in her
summary-judgment response, Currid relies on Grace Interest, L.L.C. v. Wallis State
Bank, 431 S.W.3d 110, 122–23 (Tex. App.—Houston [14th Dist.] 2013, pet.
denied). In Grace Interest, the appellate court upheld the trial court’s denial of the
appellants’ request for arbitration because the appellants did not meet their burden
to establish the existence of a valid arbitration agreement covering the claims at
issue. Id. at 123. There, however, the appellants included a request for arbitration
in their summary-judgment response. Id.
As a prerequisite to presenting a complaint for appellate review, the record
must show that the complaint was made to the trial court by a timely request,
objection, or motion. TEX. R. APP. P. 33.1. Because the record does not show that
Currid moved to compel arbitration, nothing is presented for our review. See id.
Moreover, we note that “judicial economy generally requires that a trial court
have the opportunity to correct an error before an appeal proceeds,” In re C.O.S.,
988 S.W.2d 760, 765 (Tex. 1999), and a motion to reconsider provides the trial court
with just such an opportunity. In re Christus Santa Rosa Health Sys., 492 S.W.3d
276, 281 (Tex. 2016). Here, however, at the hearing on Currid’s motion to vacate
the judgment, during which the trial court could have corrected the alleged error
Currid now presents on appeal, Currid affirmatively represented to the trial court
that she had not moved to enforce the arbitration agreement and, thus, no error had
“A party may not lead a trial court into error and then complain about it
on appeal.” Solomon v. Parkside Med. Servs. Corp., 882 S.W.2d 492, 493 (Tex.
7 The parties dispute whether these statements constitute judicial admissions. “A
judicial admission is a formal waiver of proof that dispenses with the production of
evidence on an issue and bars the admitting party from disputing it.” Lee v. Lee, 43
S.W.3d 636, 641 (Tex. App.—Fort Worth 2001, no pet.). Judicial admissions may
include arguments to the trial court or counsel’s statements to the trial court on
behalf of a client. Id.; see also Am. Nat. Petroleum Co. v. Transcon. Gas Pipe Line
Corp., 798 S.W.2d 274, 278 (Tex. 1990); Sanroc Co. Int’l v. Roadrunner Transp.,
Inc., 596 S.W.2d 320, 323 (Tex. Civ. App.—Houston [1st Dist.] 1980, no writ)
(“Judicial admissions are not evidence but rather constitute a waiver of evidence.”).
Here, the record shows that these statements took place during the hearing on
Currid’s motion to vacate, after the trial court had ruled on the motion for summary
judgment. Thus, the trial court did not rely on the statements in rendering its
judgment. See Plotkin v. Joekel, 304 S.W.3d 455, 486 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied) (noting that review generally extends to that which was
before the trial court at the time of its ruling); cf. Brown v. Lanier Worldwide, Inc.,
124 S.W.3d 883, 900 (Tex. App.—Houston [14th Dist.] 2004, no pet.);
App.—Houston [1st Dist.] 1994, writ denied); see, e.g., Steamboat Capital Mgmt.,
LLC v. Lowry, No. 01-16-00956-CV, 2017 WL 5623414, at *11 (Tex. App.—
Houston [1st Dist.] Nov. 21, 2017, no pet.) (mem. op.) (holding that appellant could
not, on appeal, rely on fiduciary shield doctrine because record showed that he
affirmatively asserted in trial court that he “didn’t seek the application of fiduciary
In sum, Currid does not challenge the merits of the summary judgment on
Coit’s claims. Rather, her complaint on appeal is that the trial court erred in not
compelling arbitration. Because Currid does not direct us to any place in the record,
however, in which she filed a motion to compel or requested that the trial court
compel the parties to arbitration, in accordance with section 171.021, nothing is
presented for review. See TEX.R. APP. P. 33.1. We do not reach whether there exists
a valid agreement to arbitrate, Coit’s claims fall within the scope of the agreement,
or Coit refused to arbitrate. See TEX. CIV. PRAC. & REM. CODE ANN. § 171.021; S.C.
Maxwell Family P’ship, Ltd., 472 S.W.3d at 343. Because Currid did not meet her
initial burden, the burden never shifted to Coit to establish its waiver defense. See
Mohamed, 89 S.W.3d at 835; see Ellis, 337 S.W.3d at 862.
We hold that Currid has waived her first issue.
Accordingly, we do not reach Currid’s second issue, in which she argues that,
because the trial court “should have compelled arbitration, it did not have
jurisdiction to award attorney’s fees.”
We affirm the judgment of the trial court.
Panel consists of Chief Justice Radack and Justices Massengale and Brown.