Sonny Wilson v. Tdcj-Id ( 2010 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-09-00354-CV

Sonny Wilson,

                                                                                    Appellant

 v.

TDCJ-ID,

                                                                                    Appellee

From the 278th District Court

Walker County, Texas

Trial Court No. 23,819

ORDER

            In this proceeding, Sonny Wilson, an inmate, appeals the trial court’s order granting TDCJ-ID’s plea to the jurisdiction.  Wilson filed his brief in March of 2010.  TDCJ-ID filed its brief in April of 2010.  By letter, the Clerk of this Court notified the attorney for TDCJ-ID that its brief did not respond to Wilson’s issues raised in his brief.  Further, the letter notified TDCJ-ID that its brief did not address the ground upon which the trial court’s order, entered on September 8, 2009, was expressly based, granting TDCJ-ID’s plea to the jurisdiction. 

            In that same letter from the Clerk of this Court, TDCJ-ID was requested to file a supplemental brief addressing Wilson’s issues as they relate to the trial court’s order granting TDCJ-ID’s plea to the jurisdiction.  A supplemental brief, if any, was requested to be filed within 21 days from the date of the clerk’s letter.  If no supplemental brief would be filed, TDCJ-ID was required to inform the Court, within 14 days from the date of the Clerk’s letter, that no supplemental brief would be filed.  TDCJ-ID did not inform the Court that it would not file a supplemental brief.  Thus, the Court was anticipating a supplemental brief.  More than 21 days have passed and a supplemental brief has not been filed. 

            We now strike TDCJ-ID’s brief. 

            TDCJ-ID is ORDERED to file a new brief within 30 days from the date of this order which is responsive to the issues raised by Wilson in his brief:

· the trial court abused its discretion in granting the plea to the jurisdiction;

· if the pleadings in the complaints are deficient, Appellant should be allowed to amend the pleadings;

· dismissal under Chapter 14 for reasons stated in that motion would also be an abuse of discretion; and

· it is possible that the pro se plaintiff was subjected to undue court prejudice.

                                                                        PER CURIAM

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Brief Stricken

Order issued and filed October 6, 2010

hildren not before the court for whom the obligor is obligated by a court order to pay support, without regard to whether the obligor is delinquent in child support payments, and who are not counted under Paragraph (A) or (B) is ___.”

Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, sec. 154.130(b), 1995 Tex. Gen. Laws 113, 163-64 (amended 2007) (current version at Tex. Fam. Code Ann. § 154.130(b) (Vernon Supp. 2007)).^[2]

        “Section 154.130 makes these findings mandatory and failure to make these findings when required constitutes reversible error.”  In re C.W., No. 07-04-0543-CV, 2006 Tex. App. LEXIS 363, at *7-*8 (Tex. App.—Amarillo Jan. 17, 2006, no pet.) (mem. op.); accord Omodele v. Adams, No. 14-01-00999-CV, 2003 Tex. App. LEXIS 292, at *12-*13 (Tex. App.—Houston [14th Dist.] Jan. 16, 2003, no pet.) (mem. op.).

        Harm “is presumed unless the contrary appears on the face of the record when” findings of fact and conclusions of law are required and the trial court fails to make and file them.  Tenery, 932 S.W.2d at 30 (citing Tex. R. Civ. P. 296); see Tex. R. App. P. 44.1(a)(2); Chervinskis v. Love, No. 10-06-00105-CV, 2007 Tex. App. LEXIS 3387, at *5 (Tex. App.—Waco May 2, 2007, no pet.) (mem. op.); Glass v. Williamson, 137 S.W.3d 114, 117-18 (Tex. App.—Houston [1st Dist.] 2004, no pet.).  “An appellant has suffered injury from such” failure “when the circumstances of the case require her to guess the reason or reasons the court ruled against her.”  Beard v. Beard, 49 S.W.3d 40, 52 (Tex. App.—Waco 2001, pet. denied) (op. on orig. submission); e.g. In re S.R.O., No. 10-01-184-CV (Tex. App.—Waco May 28, 2003, order) (per curiam) (not designated for publication) (“multiple grounds on which the court may have ruled”), disp. on merits, 143 S.W.3d 237 (Tex. App.—Waco 2004, no pet.).

        “The proper remedy for a trial court’s” failure “to file findings of fact and conclusions of law is abatement of an appeal, thereby giving the trial court an opportunity to cure its error.”  Elliott v. Kraft Foods N. Am., Inc., 118 S.W.3d 50, 56 (Tex. App.—Houston [14th Dist.] 2003, no pet.); see Tex. R. App. P. 44.4; Cherne Indus. Inc. v. Magallanes, 763 S.W.2d 768, 773 (Tex. 1989); Metzger v. Metzger, No. 01-04-00893-CV, 2007 Tex. App. LEXIS 4487, at *11 (Tex. App.—Houston [1st Dist.] June 7, 2007, pet. filed) (mem. op.); Carr v. Hubbard, 664 S.W.2d 151, 153-54 (Tex. App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.).

        Douglas contends, “The trial court erred in setting child support above the presumptive guidelines without pleadings or evidence.”  (Br. at 12; see id. at 12-14; Reply Br. at 9-11.)  Charmane agrees that the trial court implicitly found that “application of the guidelines would be unjust or inappropriate under the circumstances,” and argues several such circumstances.  (Br. at 14 (citing Tex. Fam. Code Ann. § 154.123(b) (Vernon 2002)); see Br. at 14-16.)  Under the pleadings and evidence, multiple grounds exist on which the trial court might have awarded child support in an amount that varied from the percentage guidelines.

        Accordingly, we abate the appeal to the trial court for the making and filing of appropriate findings of fact and conclusions of law.^[3]  The trial court must, within 30 days after the date of this order: (1) make appropriate findings of fact and conclusions of law, and (2) deliver those findings of fact and conclusions of law to the trial-court clerk.  The trial-court clerk must: (1) prepare a supplemental clerk’s record containing the findings of fact and conclusions of law that the trial court makes, and (2) file the supplemental clerk’s record with the Clerk of this Court within 45 days after the date of this order.

        If Douglas, after reviewing the findings of fact and conclusions of law, determines that he should amend or supplement his brief, his amended or supplemental brief will be due 30 days after the supplemental clerk’s record is filed.  If Douglas files an amended or supplemental brief, Charmane will have 30 days thereafter to file an amended or supplemental brief.  No extensions will be considered or granted absent extraordinarily urgent circumstances.

PER CURIAM

Before Chief Justice Gray,

        Justice Vance, and

        Justice Reyna

Abated and remanded

Order delivered and filed November 7, 2007

[CV06]

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                [1] We note that Douglas requested general findings of fact and conclusions of law in accordance with Rules of Civil Procedure 296 and 297, which findings and conclusions the trial court has failed to file.  Douglas argues:

      Without findings of fact and conclusions of law entered by the trial court pursuant to Doug’s request, Doug is unable to show any of the orders complained of . . . resulted in specific harm.  Harm to the complaining party is presumed unless the contrary appears on the face of the record when the party makes a proper and timely request for findings and the trial court fails to comply.  Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996).

(Br. at 20-21; see Reply Br. at 17.)

                [2] We note that the Family Code also requires:

     In a suit for dissolution of a marriage in which the court has rendered a judgment dividing the estate of the parties, on request by a party, the court shall state in writing its findings of fact and conclusions of law concerning:

           (1)           the characterization of each party’s assets, liabilities, claims, and offsets on which disputed evidence has been presented; and

           (2)           the value or amount of the community estate’s assets, liabilities, claims, and offsets on which disputed evidence has been presented.

Tex. Fam. Code Ann. § 6.711(a) (Vernon 2006).

                [3] In addition to the findings of fact and conclusions of law required by the Family Code, as noted above, Douglas has also requested findings and conclusions under the Rules of Civil Procedure.