David Hyman and Renee Matturro v. KD Resources, LLC ( 2021 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: David Hyman and Renee Matturro v. KD Resources, LLC
Appellate case number: 01-20-00059-CV
Trial court case number: 2012-32430
Trial court: 129th District Court of Harris County
This is an appeal from the trial court’s judgment dated October 30, 2019, which was
entered after a nonjury trial. The appellants timely requested findings of fact and conclusions of
law and timely filed a notice of past due findings of fact and conclusions of law. See TEX. R. CIV.
P. 296, 297. The trial court did not file findings of fact and conclusions of law.
This is a breach-of-contract case in which the appellees alleged multiple affirmative
defenses. On appeal, the appellants filed an unopposed motion to abate the appeal and direct the
trial court to enter findings of fact and conclusions of law.
“A party is entitled to findings of fact and conclusions of law after a conventional trial on
the merits to the court.” U. Lawrence Bozé & Assocs., P.C. v. Harris Cty. Appraisal Dist., 368
S.W.3d 17, 32 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see TEX. R. CIV. P. 296; see also
IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997) (“The purpose of
Rule 296 is to give a party a right to findings of fact and conclusions of law finally adjudicated
after a conventional trial on the merits before the court.”). “A trial court’s failure to file findings
in response to a timely and proper request is . . . presumed harmful, unless the record before the
appellate court affirmatively shows that the complaining party has suffered no injury.” Ad
Villarai, LLC v. Chan Il Pak, 519 S.W.3d 132, 135 (Tex. 2017) (internal quotations omitted).
When a case involves “only a single ground of recovery or a single defense,” “an appellant is not
harmed by a failure to file findings and conclusions because he is not required to guess the
reasons for a trial court’s judgment.” Wood v. Pharia L.L.C., No. 01–10–00579–CV, 2010 WL
5060621, at *9 (Tex. App.—Houston [1st Dist.] Dec. 9, 2010, no pet.) (mem. op.). But when “a
party is prevented from presenting his case on appeal, he has been harmed.” Alsenz v. Alsenz,
101 S.W.3d 648, 652 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Typically, the remedy
for failure to file timely requested findings of fact and conclusion of law is to abate. See Elliott v.
Kraft Foods N. Am., Inc., 118 S.W.3d 50, 54 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
Because the appellees pleaded multiple contract defenses, we conclude that the record
does not affirmatively show that the appellants have not been harmed by the trial court’s failure
to file findings of fact and conclusions of law. See Ad Villarai, 519 S.W.3d at 135. Because the
trial judge continues to serve on the district court, the error in this case is remediable. See TEX. R.
APP. P. 44.1; Ad Villarai, 519 S.W.3d at 140 (no rule or statute “grants successor judges the
authority to file findings on behalf of their predecessors displaced by an election”).
We grant the appellants’ unopposed motion to abate this appeal. We order the trial court
to file findings of fact and conclusions of law on or before June 1, 2021. Within 10 days after
the trial court has filed findings of fact and conclusions of law, any party may file a request for
specified additional or amended findings or conclusions. The trial court shall file any additional
or amended findings that are appropriate within 10 days after such a request is filed. The trial
court’s findings of fact and conclusions of law, and any additional and amended findings or
conclusions, shall be included in a supplemental clerk’s record to be filed with this court on
or before July 1, 2021.
The appeal is abated, treated as a closed case, and removed from this court’s active
docket. The appeal will be reinstated on this court’s active docket when the trial court’s findings
and recommendations are filed in this court. The court will also consider an appropriate motion
to reinstate the appeal filed by either party, or the court may reinstate the appeal on its own
motion.
It is so ORDERED.
Judge’s signature: _____/s/ Peter Kelly__________
 Acting individually  Acting for the Court
Date: ___May 11, 2021___