Dov Avni Kaminetzky v. Harris County Appraisal District ( 2015 )

ACCEPTED
14-14-00665-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
5/4/2015 12:39:45 PM
CHRISTOPHER PRINE
CLERK
No. 14-14-00665-CV
______________________________________________________________________________
In the
FILED IN
Court of Appeals 14th COURT OF APPEALS
For the HOUSTON, TEXAS
Fourteenth District of Texas 5/4/2015 12:39:45 PM
At Houston CHRISTOPHER A. PRINE
Clerk
______________________________________________________________________________
No. 2013-12988
In the 234th District Court of
Harris County, Texas
______________________________________________________________________________
DOV K. AVNI
Appellant,
v.
HARRIS COUNTY APPRAISAL DISTRICT,
Appellee
______________________________________________________________________________
APPELLEE’S OPPOSITION TO APPELLANT’S MOTION TO VACATE
______________________________________________________________________________
TO THE HONORABLE COURT OF APPEALS OF TEXAS:
COMES NOW THE HARRIS COUNTY APPRAISAL DISTRICT, Appellee, by and
through its undersigned counsel, and files this, its Opposition to Appellant’s Multi-Prong Motion
to Take Judicial Notice of Trial Court Record and Vacate Order Denying Abatement (the
“Motion to Vacate”) and in support of its Opposition states as follows:
Overview
1. Following his failure to file a brief after multiple extensions of time, appellant now seeks
to abate the appeal to request findings of fact and conclusions of law from the trial court.
However, any error by the trial court in failing to file findings of fact and conclusions of law in
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the underlying case is harmless, as it has not prevented Appellant from presenting its case to the
Court of Appeals. Appellant’s Motion to Vacate should be denied.
Procedural History
2. On April 16, 2015 Appellant filed a Motion to Abate, seeking permission to abate the
instant appeal so he could compel the trial court to enter findings of fact.1 Appellee filed and
opposition to that motion and the Court of Appeals entered an order denying the motion.
3. Appellant next filed the Motion to Vacate presently before the court.
4. In the underlying case, the trial court issued a final judgment on Wednesday, April 30,
2014. Pursuant to Rule 296 of the Texas Rules of Civil Procedure, appellant had until Thursday,
May 20, 2014 to file his request. Appellant filed a timely request for findings of fact and
conclusions of law on May 20, 2014.
5. The trial court did not make any findings of fact or conclusions of law on or before June
9, 2014. Pursuant to Rule 297 of the Texas Rules of Civil Procedure, Appellant had until June
19, 2014 to file his Notice of Past Due Findings of Fact and Conclusions of Law (“Notice”).
6. Appellant filed a letter on June 18, 2014, requesting Past Due Findings of Fact and
Conclusions of Law. Appellant therefore made a timely request and complied with Rule 297 of
the T.R.C.P. No reference to the June 18, 2014 filing was made in Appellant’s prior motion to
abate.
7. The failure to note this filing was an error on the part of the Appellee in its prior
opposition. Appellee agrees that Appellant timely requested the Past Due Findings of Fact and
Conclusions of Law.
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Appellant states that this Motion to Abate is opposed. Appellant made no effort to contact Appellee to confer
regarding this Motion to Abate prior to filing the motion.
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8. However, despite the Appellant’s timely filing of both a request and notice of past due
findings with the trial court is harmless error, as this error has not prevented Appellant fro
properly presenting his case to the court of appeals. See Graham Central Station, Inc. v. Pena,
442 S.W.3d 261, 263 (Tex. 2014); Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996)(“A trial
court’s failure to make findings is not harmful error if ‘the record before the appellate court
affirmatively shows that the complaining party suffered no injury.’”), citing Cherne Indus. V.
Magallanes, 763 S.W.2d 768, 772 (Tex. 1989).
9. In his motions for an extension of time to file his brief, Appellant asserts that, in addition
to the Clerk’s Record, the Reporter’s Record includes “ALL exhibits offered and admitted” at
the bench trial. Appellant does not explain the significance of findings that the trial court did not
make and how they relate to some issue on appeal. There is no indication that Appellant has
suffered any harm in presenting his appeal to this court. See Key Energy Services, LLC. v. Shelby
County Appraisal District, 428 S.W.3d 133, 150 (holding that reversal was not required where
appellant did not explain the significance of findings and how they relate to issue on appeal).
Appellant’s Motion to Vacate should be denied.
WHEREFORE, premises considered, Appellee requests that the honorable Court of
Appeals deny Appellant’s Motion to Vacate.
Respectfully submitted,
By: /s/ L. Susan Herrera
L. Susan Herrera
State Bar No.09530160
Matthew P. Crouch
State Bar No. 24072481
Department of Legal Services
Harris County Appraisal District
P. O Box 920975
Houston, Texas 77292-0975
Telephone: (713) 957-7497
Fax: (713) 957-5219
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sherrera@hcad.org;
mcrouch@hcad.org
ATTORNEYS FOR DEFENDANT,
HARRIS COUNTY APPRAISAL
DISTRICT
CERTIFICATE OF SERVICE
I hereby certify that on May 4, 2015, a true and correct copy of the foregoing Motion to
Dismiss was served via:
telecopy
certified mail, return receipt requested
hand delivery
to Dov K. Avni, 150-B Forest Drive, Jericho, NY 11753.
/s/ L. Susan Herrera
L. Susan Herrera
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CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that the forgoing Appellee’s Opposition is a
computer-generated document containing 813 words, including textboxes, footnotes, endnotes,
headings, and/or quotations. I certify that I am relying upon the word count provided by the
computer program that I used in preparing this document.
/s/ L. Susan Herrera
L. Susan Herrera
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