Dov Avni Kaminetzky v. Dosohs I, LTD ( 2015 )

Abatement Order filed May 7, 2015
In The
Fourteenth Court of Appeals
NO. 14-14-00410-CV
DOV AVNI KAMINETZKY, Appellant
V.
DOSOHS I, LTD, Appellee
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 1997-40590
ORDER
After a non-jury trial, appellant brings this appeal from a judgment signed
March 31, 2014. Appellant timely requested findings of fact and conclusions of
law and timely reminded the trial court when the findings and conclusions were
overdue. The trial court did not file the requested findings and conclusions. On
April 20, 2015, appellant asked this court to order the trial court to find findings of
fact and conclusions of law.
When an appellant timely files a request for findings of fact and conclusions
of law and a timely notice of past due findings, the trial court’s error in failing to
file findings of fact and conclusions of law is generally presumed to be harmful,
unless the record before the appellate court affirmatively shows that the
complaining party has suffered no injury. See Cherne Indus., Inc. v. Magallanes,
763 S.W.2d 768, 772 (Tex. 1989); Electronic Power Design, Inc., v. R.A. Hanson
Co., Inc., 821 S.W.2d 170, 171 (Tex. App.—Houston [14th Dist.] 1991, no writ).
Appellant avers in his motion that he cannot properly present or frame its
issues without the findings and conclusions. In this case, therefore, we cannot say
that the record affirmatively discloses no injury. Because the trial judge continues
to serve on the district court, the error in this case is remediable. See Tex. R. App.
P. 44.4. The proper remedy is to abate the appeal and direct the trial court to
correct its error. See Zeiba v. Martin, 928 S.W.2d 782, 786 (Tex. App.—Houston
[14th Dist.] 1996, no writ). We ORDER the trial court to file findings of fact and
conclusions of law on or before May 27, 2015. Within ten 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 ten 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 June 29, 2015.
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.
PER CURIAM