Opinion
05-22-00293-CV
06-21-2023
THOMAS T. HEADEN III, Appellant v. ABUNDANT LIFE THERAPEUTIC SERVICES TEXAS, LLC, ANDGEOFFREY BERG, Appellees
On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-15576
Before Justices Pedersen, III, Garcia, and Kennedy
MEMORANDUM OPINION
NANCY KENNEDY, JUSTICE
Thomas T. Headen III appeals the trial court's orders and judgment granting a take-nothing summary judgment in favor of Abundant Life Therapeutic Services Texas, LLC ("Abundant Life") and awarding attorney's fees to Abundant Life and Geoffrey Berg. In his first issue, Headen challenges the trial court's grant of summary judgment, arguing it could not have been granted on affirmative defenses that had been previously rejected by the trial judge and that the record contains sufficient evidence to support his claims precluding the grant of a no-evidence summary judgment. In his second issue, Headen argues the trial court erred by failing to permit him to participate in discovery prior to awarding attorney's fees. In his third issue, Headen asserts the trial court erred by denying his request that a jury determine the amounts of attorney's fee awards. We affirm the trial court's judgment. Because all issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4.
Background
Abundant Life is a Houston-based outpatient mental health-services provider. In 2017, Abundant Life entered into a consulting agreement with an entity called Headen Consulting Services. Headen signed the consulting agreement on behalf of Headen Consulting Services as that entity's president. Pursuant to that consulting agreement, Abundant Life promised to make payments to Headen for Headen Consulting Services' assistance with "non-profit services, paralegal services, corporate records, document drafting, editing, legal research, strategic planning, and compliance." In February of the following year, Headen accepted an offer of employment with Abundant Life as its Legal/Compliance Officer ("employment agreement"). Shortly thereafter, Headen received an email from three managing members of Abundant Life notifying him of their decision to terminate his relationship with Abundant Life and detailing their stated reasons for that decision.
In April 2018, Headen filed a wage claim with the Texas Workforce Commission ("TWC"). Abundant Life disputed that claim, arguing that Headen was never an employee because the employment offer was extended by a manager without the authority to do so on behalf of Abundant Life. The TWC ruled in Headen's favor, and after Abundant Life unsuccessfully appealed that decision, the award was paid in full.
In October 2018, Headen filed suit against Abundant Life and several other defendants, including four members of Abundant Life: Jason Ford, Jon Nathaniel Ford, Melvin Anderson, and Lance Taylor. In his amended petitions, Headen added claims against appellee Berg for actions taken as counsel for Jason Ford. Headen also added claims against additional defendants, whom he later nonsuited along with Jon Nathaniel Ford.
Those other defendants were Novis Logica LLC, Legal Equalizer, LLC, Legal Equalizer, Inc., and Mbye Njie.
Berg and Abundant Life with several other defendants ("Abundant Life defendants") sought and obtained dismissal of many of Headen's claims against them pursuant to the Texas Citizens Participation Act ("TCPA"), denying dismissal as to only certain claims against Abundant Life. Abundant Life then filed motions for traditional and no-evidence summary judgment on Headen's remaining claims against it. The trial court signed orders granting Abundant Life a take-nothing judgment on Headen's claims against it and awarding attorney's fees to Berg and the other defendants who had obtained dismissal under the TCPA, as well as $5,000 in sanctions to the Abundant Life defendants and $5,000 in sanctions to Berg "to deter [Headen] from bringing similar [TCPA] actions." Headen filed a motion to modify the orders on attorney's fees, or alternatively for a new trial on same, which the trial court denied. While that motion was pending, the trial court signed a final judgment incorporating the summary judgment order and the orders on attorney's fees. Headen filed a post judgment motion to modify the final judgment, which the trial court denied.
The Abundant Life defendants were Abundant Life; Jason Ford; Melvin Anderson; Lance Taylor; and Abundant Life Therapeutic Services, LLC (Virginia LLC of which only Taylor and Anderson were members); SS of MA, LLC d/b/a Afford2Bill (California company owned by Jason Ford); Blackwise, LLC (Wyoming LLC owned by Jason Ford); Evolve Outreach Texas LLC (Texas company owned by Jason Ford and Anderson); and Presidium Prime, LLC (Virginia company owned by Anderson).
Headen filed his notice of appeal of the trial court's orders granting the TCPA motions, granting summary judgment, awarding attorney's fees and sanctions, and the final judgment "and every Order referenced in the Final Judgment." In response to a letter from this Court questioning our jurisdiction over Headen's appeals of the orders granting the TCPA motions, Headen wrote a letter brief conceding that, because his notice of appeal as to the orders granting the TCPA motions was untimely, this Court lacked jurisdiction over those orders. He further stated his issues on appeal would be limited to:
Headen filed his notice of appeal sixty-seven days after the final judgment was signed. See Tex. Civ. Prac. & Rem. Code Ann. § 27.008(b) (requiring appellate courts expedite appeals of orders on motion to dismiss pursuant to TCPA); Tex.R.App.P. 26.1(b) (requiring notice of appeal in accelerated appeals be filed within 20 days after order signed); 28.1(b) (providing motion for new trial or other post-trial motion will not extend time to perfect accelerated appeals).
(i) [w]hether there was sufficient evidence to dismiss the claims under Summary Judgment (ii) [w]hether the Appellant had the right to depose and/or cross examine witnesses on the record (iii) [w]hether the Trial Court erred in denying a timely requested jury trial[.]
Discussion I.
The Trial Court Did Not Err By Granting Summary Judgment
In his first issue, Headen challenges the trial court's grant of summary judgment to Abundant Life on his claims for negligent-misrepresentation, fraud, and third-party-beneficiary breach-of-contract claims. He urges the trial court erred granting judgment on affirmative defenses that had been rejected in an earlier order and argues the record contains sufficient evidence of his claims to avoid take-nothing judgments.
A. Standard of Review
We review an order granting summary judgment de novo, taking as true all evidence favorable to the nonmovant and indulging every reasonable inference in the nonmovant's favor. JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021) (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). To be entitled to traditional summary judgment, the movant has the burden to prove that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Id. (citing Tex.R.Civ.P. 166a(c) and Hillis v. McCall, 602 S.W.3d 436, 439-40 (Tex. 2020)). A defendant may obtain summary judgment by conclusively establishing an affirmative defense. See Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 705 (Tex. 2021) (citing Frost Nat'l Bank v. Fernandez, 315 SW.3d 494, 508 (Tex. 2010)). By contrast, a party may obtain a no-evidence summary judgment when "there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial." Hernandez, 622 S.W.3d at 864 (citing Tex.R.Civ.P. 166a(i)). A properly filed no-evidence motion shifts the burden to the nonmovant to present evidence raising a genuine issue of material fact supporting each element contested in the motion. Id. (citing Tex.R.Civ.P. 166a(i) and Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact." Id. (citing Tex.R.Civ.P. 166a(i); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); and Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002)).
B. Third-Party Beneficiary Breach-of-Contract Claim
In his third-party beneficiary breach-of-contract claim, Headen alleged Abundant Life breached the consulting agreement with Headen Consulting and that he was an intended third-party beneficiary of the agreement because the agreement specified the payments were to be made to "Thomas Headen." In its motion for summary judgment, Abundant Life asserted this claim was barred by affirmative defenses and challenged Headen to produce any evidence that he was a third-party beneficiary under the consulting agreement to support this claim.
As a general rule, the benefits and burdens of a contract belong solely to the contracting parties, and no person can sue upon a contract except a party to or one in privity with same. See First Bank v. Brumitt, 519 S.W.3d 95, 102-03 (Tex. 2017) (citing House v. Hous. Waterworks Co., 31 S.W. 179, 179 (1895)). An exception to this general rule permits a person who is not a party to the contract to sue for damages caused by its breach if the person qualifies as a third-party beneficiary. See id. Absent a statutory or other legal rule to the contrary, a person's status as a third-party beneficiary depends solely on the contracting parties' intent. See id. (citing Stine v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002)). Specifically, a person seeking to establish third-party-beneficiary status must demonstrate that the contracting parties "intended to secure a benefit to that third party" and "entered into the contract directly for the third party's benefit." See id. (quoting Stine, 80 S.W.3d at 589, and citing S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 306 (Tex. 2007) (per curiam)). It is not enough that the third party would benefit-whether directly or indirectly- from the parties' performance, or that the parties knew that the third party would benefit. See id. (citing Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 421 (Tex. 2011); Lomas, 223 S.W.3d at 306; and MCI, 995 S.W.2d at 651). Nor does it matter that the third party intended or expected to benefit from the contract. See id. To create a third-party beneficiary, the contracting parties must have intended to grant the third party the right to be a "claimant" in the event of a breach. See id. (citing Corpus Christi Bank & Tr. v. Smith, 525 S.W.2d 501, 505 (Tex. 1975)).
To determine whether the contracting parties intended to directly benefit a third party and entered into the contract for that purpose, courts must look solely to the contract's language, construed as a whole. See id. (citing Southland Royalty Co. v. Pan Am. Petroleum Corp., 378 S.W.2d 50, 53 (Tex. 1964), and Citizens Nat'l Bank in Abilene v. Tex. & P. Ry. Co., 150 S.W.2d 1003, 1006 (1941)). The contract must include a clear and unequivocal expression of the contracting parties' intent to directly benefit a third party, and any implied intent to create a third-party beneficiary is insufficient. See id. at 103 (citing Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011); Stine, 80 S.W.3d at 589; MCI, 995 S.W.2d at 651; and Citizens Nat'l Bank, 150 S.W.2d at 1006). Courts may not presume the necessary intent. See id. To the contrary, "we must begin with the presumption" that the parties contracted solely "for themselves," and only a clear expression of the intent to create a third-party beneficiary can overcome that presumption. See id. (citing Corpus Christi, 525 S.W.2d at 503-04). If the contract's language leaves any doubt about the parties' intent, those "doubts must be resolved against conferring third-party beneficiary status." See id. (quoting Tawes, 340 S.W.3d at 425).
Here, Headen concedes that the only parties to the consulting agreement were Headen Consulting and Abundant Life, but he argues that the agreement's provision that payment be made to him individually and that evidence Abundant Life made such payments establishes he was an intended third-party beneficiary. We disagree.
Headen relies on the following provision from the consulting agreement:
3. RETAINER/PAYMENT. Client will pay a retainer to Consultant for the Services in the amount of $3,000.00. This fee shall be payable in advance upon contract signing. This retainer is non-refundable. Consultant shall bill first to the retainer. Upon depletion of retainer, Client shall pay additional fees, if any, upon presentment of a billing statement by Consultant. Hourly services shall be billed at the hourly rate applicable.Payment May be Remitted by Mail to:
Thomas T Headen III 533 Salisbury Drive Grand Prairie, TX 75052
The supreme court has previously concluded:
that a contract did not create third-party beneficiaries when . . . a contractual promise that would benefit a third party was clearly intended for the benefit of one of the contracting parties, Corpus Christi, 525 S.W.2d at 505 (holding that subcontractors were not third-party beneficiaries of contract between city and general contractor even though it conditioned city's payment obligation on general contractor's payments to subcontractors); Citizens Nat'l Bank, 150 S.W.2d at 1006 (holding that contract that required railway to pay contractor's suppliers before paying the contractors "was inserted therein for the benefit of the Railway alone" and not for the suppliers).Brumitt, 519 S.W.3d at 103-04. Because the consulting agreement does not clearly show any intent that Headen have a right of recovery in case of any breach of the contract, we conclude the trial court did not err in granting a take-nothing judgment in favor of Abundant Life on Headen's third-party-beneficiary breach-of-contract claim. See id. at 102.
C. Fraud Claim
In his fraud claim, Headen alleged Abundant Life was vicariously liable for the fraudulent conduct of its manager Jon Nathanial Ford when he offered Headen the employment agreement without the authority to do so. Headen also alleges the conduct was fraudulent because Jon Nathanial Ford was aware when he made the offer to Headen that the other managing members of Abundant Life had decided to terminate its relationship with Headen. According to Abundant Life, Headen elected his remedy by filing and recovering on a TWC wage claim for his unpaid wages owed pursuant to the employment agreement such that he cannot recover the same past wages through common law claims, like fraud.
The affirmative defense of "election of remedies," under certain circumstances, bars a person from pursuing two inconsistent remedies. See Pipes v. Hemingway, 358 S.W.3d 438, 449 (Tex. App.-Dallas 2012, no pet.) (citing Medina v. Herrera, 927 S.W.2d 597, 600 (Tex.1996), and Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 850-52 (Tex. 1980)). The election of remedies doctrine may bar relief when a party successfully exercises an informed choice between two or more remedies, which are so inconsistent as to constitute manifest injustice. See id. (citing Medina, 927 S.W.2d at 600).
As an initial matter, we address Headen's argument that the trial court erred by even considering any affirmative defenses that Abundant Life had raised in a previous motion for summary judgment. The record indicates Abundant Life did indeed move for summary judgment on the affirmative defenses of collateral estoppel, res judicata, and election of remedies, and that, at least, one of those previous motions was denied before the trial court ultimately signed the order that granted Abundant Life a take-nothing judgment. Headen argues that to the extent the trial court denied those earlier motions, Abundant Life's arguments asserting those same affirmative defenses were previously adjudicated and thus barred by res judicata. We disagree. As we have previously held, "[t]here is no merit to [the] contention that a defendant may not file multiple motions for summary judgment urging grounds previously rejected by the trial court." Ho Yoo v. Hornok, No. 05-19-01590-CV, 2020 WL 6791521, at *3 (Tex. App.-Dallas Nov. 19, 2020, no pet.) (mem. op.); see also Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996) ("denial of a summary judgment is not a final judgment"); Allen-Burch, Inc. v. Tex. Alcoholic Beverage Comm'n, 104 S.W.3d 345, 350 (Tex. App.-Dallas 2003, no pet.) (noting res judicata "requires proof of . . . a prior final judgment" and collateral estoppel prevents relitigation of particular issues already resolved in "a prior suit") (emphasis added).
Here, the record reflects Headen successfully recovered on his wage claim with the TWC against Abundant Life for unpaid wages under the employment agreement. In Pipes v. Hemingway, we held that the election-of-remedies defense barred an attorney's conversion claim against a law firm to recover payments owed during the time period covered by the decision of the TWC on the attorney's wage claim. See id. Similarly, here, we conclude that to the extent Headen's fraud allegations related to the employment agreement seek to recover unpaid wages under same, they are barred by election of remedies. We now address his fraud allegations related to the consulting agreement.
In response to Abundant Life's motion, Headen referred to his motion for summary judgment, in which he made some allegations relating to the consulting agreement, specifically, that Abundant Life planned to "demand Headen return all payments" and not to pay him or any company related to him. To prevail on a cause of action for fraud, a plaintiff must show: (1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. See Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009) (per curiam). "A promise of future performance constitutes an actionable misrepresentation if the promise was made with no intention of performing at the time it was made." See id. (quoting Formosa Plastics Corp. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998)). "Proving that a party had no intention of performing at the time a contract was made is not easy, as intent to defraud is not usually susceptible to direct proof." See id. at 774-75 (quoting Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 305 (Tex. 2006)). While breach of the contract alone is not evidence that a party did not intend to perform, "breach combined with 'slight circumstantial evidence' of fraud" is some evidence of fraudulent intent, enough to support a verdict. See id. at 775 (quoting Chapa, 212 S.W.3d at 305). A party's intent is determined at the time the party made the representation, but it may be inferred from the party's subsequent acts after the representation is made. See id.
In its motion for summary judgment, Abundant Life challenged Headen to produce evidence that Abundant Life had no intention of paying Headen Consulting at the time it entered into the consulting agreement. Headen did not offer any such evidence. Instead, what Headen offered was the September 6, 2017 consulting agreement and a February 26, 2018 email from Jason Ford to other Abundant Life members Jon Nathaniel Ford, Anderson, and Taylor, in which he stated that he had learned bonuses were to be paid out that coming Friday and "want[ed] to make sure no additional payments are to be made to Thomas Headen or any organization that he is affiliated with" and requested the recipients respond with either agreement or disagreement. In his response, Headen also offered a February 21, 2018 email from Jason Ford to other Abundant Life members Jon Nathaniel Ford, Anderson, and Taylor, in which he alleged Headen had breached the consulting agreement and proposed notifying Headen of the termination of his relationship with Abundant Life and demanding all payments made to him by Abundant Life. Even assuming, without deciding, we could conclude that the consulting agreement itself is evidence of misrepresentations, we cannot conclude that any inference could be made from these emails that Abundant Life had any intention of not paying amounts owed under the consulting agreement at the time they entered into the same. Cf. D'Olivio v. Fox, No. 05-18-00868-CV, 2020 WL 4047868, at *12 (Tex. App.-Dallas July 20, 2020, pet. denied) (mem. op.) (concluding "slight circumstantial evidence of fraud" existed where evidence showed building contractor agreed to build house for an amount so low as to be "unheard" in that neighborhood and, despite reassuring owners she would stay in their budget and obtain their approval before making modifications, repeatedly charged the owners for numerous unauthorized upgrades and modifications to raise the house "well in excess of" the budget).
Accordingly, we conclude the trial court did not err in granting a take-nothing judgment in favor of Abundant Life on Headen's claim for fraud. See Hernandez, 622 S.W.3d at 864 (citing Tex.R.Civ.P. 166a(i)).
D. Negligent-Misrepresentation Claim
In his negligent-misrepresentation claim, Headen alleged Abundant Life "supplied 'false information' for the guidance of Headen Consulting and Headen as an individual business." In its motion for summary judgment, Abundant Life asserted this claim was barred by affirmative defenses, including election of remedies. According to Abundant Life, Headen elected his remedy by filing and recovering on a TWC wage claim for his unpaid wages owed pursuant to the employment agreement such that he cannot recover the same past wages through common law claims, like negligent misrepresentation. In response to Abundant Life's motion, Headen referred to his motion for summary judgment, in which he elaborated on this claim, alleging that Abundant Life made misrepresentations regarding its intent to pay Headen for the employment and consulting agreements.
Similarly to our conclusion above regarding fraud, we conclude that to the extent Headen's negligent-misrepresentation allegations related to the employment agreement seek to recover for unpaid wages under same, they are barred by election of remedies. See Pipes, 358 S.W.3d at 449.
Headen's remaining allegations related to the consulting agreement are that Abundant Life had no intention to pay Headen or any other company related to him for the amounts owed under that contract. To prevail on a cause of action for negligent misrepresentation, a plaintiff must show: (1) a representation made by a defendant in the course of its business or in a transaction in which it has a pecuniary interest; (2) the representation conveyed "'false information' for the guidance of others in their business; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and (4) the plaintiff suffers pecuniary loss by justifiably relying on the representation." JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 653-54 (Tex. 2018) (quoting Fed. Land Bank Ass'n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex. 1992)). Significantly, the sort of "false information" contemplated in a negligent misrepresentation case is a misstatement of "existing fact." See AKB Hendrick, LP v. Musgrave Enters., Inc., 380 S.W.3d 221, 237 (Tex. App.-Dallas 2012, no pet.) (emphasis in original) (citations omitted).
As part of its motion for summary judgment, Abundant Life challenged the existence of any evidence to support that it made any misrepresentations regarding its intent to pay amounts owed under the consulting agreement or that it did not intend to perform at the time those statements were made. Headen did not offer any such evidence. Instead, he referred to the evidence he relied on to support his fraud claim. Having already concluded above that evidence was insufficient to support even an inference that Abundant Life had no intention to pay amounts owed under the consulting agreement at the time they entered into same, we further conclude the trial court did not err in granting a take-nothing judgment in favor of Abundant Life on Headen's claim for negligent misrepresentation. See Hernandez, 622 S.W.3d at 864 (citing Tex.R.Civ.P. 166a(i)).
In light of our conclusions above, we overrule appellant's first issue and need not address his remaining arguments concerning same. See Tex. R. App. P. 47.4.
II. Trial Court Did Not Err in Its Awards of Attorney's Fees
As described above, certain defendants and Abundant Life obtained dismissal of certain of Headen's claims against them pursuant to the TCPA. In his second and third issues, Headen challenges whether the trial court erred by depriving him of the opportunity to depose witnesses and of the right to a jury trial on the issue of attorney's fees.
As discussed above, Berg and the Abundant Life defendants sought and obtained dismissal of many of Headen's claims against them pursuant to the TCPA, denying dismissal as to only certain claims against Abundant Life. Berg and the Abundant Life defendants filed motions seeking awards of attorney's fees and sanctions against Headen as provided by the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a) (providing court "shall" award moving party court costs and reasonable attorney's fees and "may" award sanctions against the party who brought the legal action).
On September 27, 2021, the trial court conducted a hearing on the motions for attorney's fees and sanctions, at which the trial court permitted Headen to cross-examine a witness attorney who had submitted an affidavit supporting the amount of fees requested. At the conclusion of the hearing, Headen indicated he wished to continue his cross-examination, and the trial court judge stated that he would permit Headen to take a one-hour deposition of the witness attorney at a later date. On November 1, Headen filed an objection to deficient notice of a hearing set for the next day on attorney's fees and motion for continuance, urging that he had received deficient notice and insufficient time for discovery, specifically that he had not yet had the opportunity for the additional deposition of the witness attorney. On November 16, the associate judge signed two orders, one awarding attorney's fees and sanctions to Berg and the other awarding same to the Abundant Life defendants. Subsequently, on December 16, Headen filed a motion to modify, correct or reform and alternatively, for new trial, in which he argued he should have been permitted to further depose the witness attorney before the hearing. The trial court denied that motion and Headen's later motion to modify the final judgment.
In his objections and motions to the trial court, as well as on appeal, Headen alleges the attorneys representing Berg and the Abundant Life defendants set the November 2 hearing after agreeing via email to make witnesses available for deposition on November 10 or 11, that those same attorneys misrepresented to the associate judge at the November 2 hearing that the trial court judge had not ordered any depositions, and that the same attorneys later misrepresented to the trial court judge that the associate judge had given Headen two hours to take additional testimony. These allegations are largely unsupported because no record of the November 2 hearing was made. Absent a complete record on appeal, we presume omitted items support the trial court's judgment. See Bennett v. Cochran, 96 S.W.227, 230 (Tex. 2002); see also Tex. R. App. P. 34.6(c)(4).
The trial court may exercise reasonable control over the interrogation of witnesses and presentment of evidence. See Chambers v. Pruitt, 241 S.W.3d 679, 688 (Tex. App.-Dallas 2007, no pet.) (citing Tex. R. Civ. Evid. 611(a)(2) and Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 556 (Tex. App.- Houston [1st Dist.] 1996) aff'd, 972 S.W.2d 35 (Tex. 1998). The trial court is also vested with great discretion over the conduct of the trial and to "maintain control in the courtroom, to expedite the trial, and to prevent what it considers to be a waste of time." See id. (citing Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001)).
Based on this record, where Headen had an opportunity to cross-examine the attorney witness and present his objections to the trial court regarding his requests for further discovery, we cannot conclude the trial court abused its discretion. We overrule Headen's second issue.
In his third issue, Headen argues the trial court erred by denying his request for a jury trial to determine the award of attorney's fees and sanctions. Headen urges that he first made this request in his original petition and reurged this request by filing another jury demand on October 28, prior to the November 2 hearing before the associate judge. Abundant Life argues Headen waived this complaint by failing to object at the September 27 hearing on attorney's fees. We agree that Headen waived this complaint by failing to object when the trial court proceeded with the September 27 hearing on attorney's fees. See Stallworth v. Stallworth, 201 S.W.3d 338, 346 (Tex. App.-Dallas 2006, no pet.) (holding appellant waived any error by failing to object when trial court proceeded with bench trial); see also In re A.Ja.T., No. 05-18-00705-CV, 2018 WL 5993905, at *4 (Tex. App.-Dallas Nov. 15, 2018, no pet.) (mem. op.) (holding jury-trial objection made after first witness testified at bench trial was untimely and insufficient to preserve right to complain on appeal).
We overrule Headen's third issue.
Conclusion
We affirm the trial court's judgment.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees ABUNDANT LIFE THERAPEUTIC SERVICES TEXAS, LLC, AND GEOFFREY BERG recover their costs of this appeal from appellant THOMAS T. HEADEN III.