Jeff O'Banion v. Inland Western Clear Lake Clear Shores GP, LLC and Shannon Methvin ( 2016 )


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  •                               COURT OF APPEALS FOR THE
    FIRST DISTRICT OF TEXAS AT HOUSTON
    ORDER
    Appellate case name:        Jeff O’Banion v. Inland Western Clear Lake Clear Shores GP,
    LLC and Shannon Methvin
    Appellate case number:      01-15-00704-CV
    Trial court case number:    CV-0061302
    Trial court:                County Court at Law No. 1 of Galveston County
    Appellee, Inland Western Clear Lake Clear Shores GP, filed suit in the trial court
    against appellant, Jeff O’Banion, seeking recovery of a debt. O’Banion filed a third-party
    claim against appellee, Shannon Methvin, claiming that she was obligated to indemnify
    O’Banion pursuant to a divorce decree. After a bench trial, the trial court entered a
    judgment in favor of Inland and against O’Banion on May 15, 2015. The trial court’s
    judgment did not specifically address O’Banion’s third-party claim against Methvin. On
    June 3, 2015, O’Banion filed a timely request for findings of fact and conclusions of law
    as to Inland’s claim against O’Banion and O’Banion’s third-party claim against Methvin.
    See TEX. R. CIV. P. 296. On June 24, 2015, O’Banion filed a Notice of Overdue Findings
    of Fact and Conclusions of Law. See TEX. R. CIV. P. 297. On July 7, 2015, the trial court
    entered its findings of fact and conclusions of law, but made no reference to O’Banion’s
    third-party claim against Methvin. On July 16, 2015, O’Banion filed a Request for
    Additional Findings of Fact and Conclusions of Law, specifically requesting findings on
    O’Banion’s third-party claim against Methvin.
    O’Banion filed a notice of appeal on August 14, 2015. See TEX. R. APP. P. 26.1(a).
    Because the trial court has not issued findings of fact or conclusions of law on O’Banion’s
    third-party claim against Methvin, O’Banion asked this Court to abate the appeal and
    require the trial court to issue findings of fact and conclusions of law on his third-party
    claim.
    Because the trial court held a bench trial wherein it heard evidence on the issue of
    O’Banion’s third-party claim and because appellant timely filed a request for findings of
    fact and conclusions of law and a notice of past due findings, the trial court had a mandatory
    duty to file findings of fact and conclusions of law and erred by failing to do so. See TEX.
    R. CIV. P. 296, 297; Nationwide Capital Funding, Inc. v. H. Epps. Co., No. 13-04-308-CV,
    
    2006 WL 1030105
    , at *2 (Tex. App.—Corpus Christi Apr. 20, 2006, no pet.) (mem. op.);
    Elec. Power Design, Inc. v. R.A. Hanson Co., 
    821 S.W.2d 170
    , 171 (Tex. App.—Houston
    [14th Dist.] 1991, no writ), overruled on other grounds by In re Gillespie, 
    124 S.W.3d 699
    703–04 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding). Further, the failure of
    the trial court to respond to a proper request for findings of fact and conclusions of law is
    presumed harmful, unless the record before the appellate court affirmatively demonstrates
    that the complaining party has suffered no injury. See Nationwide Capital Funding, 
    2006 WL 1030105
    , at *2; Elec. Power 
    Design, 821 S.W.2d at 171
    . “The test for determining
    harm in such a case is whether the circumstances of the particular case would force an
    appellant to guess the reason or reasons that the trial court ruled against it.” Nationwide
    Capital Funding, 
    2006 WL 1030105
    , at *2. And, “[i]n situations where there are two or
    more possible grounds on which the trial court might have ruled, the inference of harm
    cannot be defeated.” Elec. Power 
    Design, 821 S.W.2d at 171
    .
    Here, we cannot say that the record affirmatively discloses that O’Banion suffered
    no injury. The trial court’s final judgment does not address O’Banion’s third-party claim
    at all. The trial court’s judgment does not state explicitly that the trial court ruled on the
    third-party claim or the basis for the ruling. See also Acain v. Internat’l Plant Serv., LLC,
    
    449 S.W.3d 655
    , 660–61 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). Further,
    O’Banion and Methvin testified at trial, and both O’Banion and Methvin presented
    evidence to the trial court on the third-party claim. Therefore, we are not able to determine,
    by looking at the record, on what evidence the trial court based its decision. See Elec.
    Power 
    Design, 821 S.W.2d at 171
    .
    Accordingly, we grant O’Banion’s request to abate this appeal. We therefore abate
    this appeal and remand this case to the trial court. On remand, we order the trial court to
    file findings of fact and conclusions of law within 30 days of the date of this order
    specifically addressing O’Banion’s third-party claim against Methvin. See TEX. R. APP. P.
    44.4(b); Cherne Indus., Inc. v. Magallanes, 
    763 S.W.2d 768
    , 773 (Tex. 1989); Elec. Power
    
    Design, 821 S.W.2d at 171
    .
    We further order the trial court clerk to file a supplemental clerk’s record containing
    the trial court’s findings of fact and conclusions of law within 5 days of the date the trial
    court files its findings of fact and conclusions of law.
    Alternatively, we note that, after a trial on the merits, there is a presumption that a
    judgment is final, even if it does not dispose of all parties and claims. See Ne. Indep. Sch.
    Dist. v. Aldridge, 
    400 S.W.2d 893
    , 897–98 (Tex. 1966). If, however, the trial court did not
    intend to dispose of the third-party claim, it may clarify its judgment and can permit the
    parties to obtain an order or orders disposing of O’Banion’s third-party claim against
    Methvin. See TEX. R. APP. P. 27.2. A supplemental clerk’s record containing the trial
    court’s clarifying order or orders shall be filed with the clerk of this Court within 35 days
    of the date of this order.
    Judge’s signature: _/s/ Chief Justice Sherry Radack
     Acting individually
    Date: October 4, 2016
    

Document Info

Docket Number: 01-15-00704-CV

Filed Date: 10/4/2016

Precedential Status: Precedential

Modified Date: 4/17/2021