Randol Rene Lopez v. Mary Balderrama ( 2015 )

ACCEPTED
13-15-00083-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
4/20/2015 11:40:35 AM
DORIAN RAMIREZ
CLERK
No. 13-15-00083-CV FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
IN THE COURT OF APPEALS4/20/2015 11:40:35 AM
FOR THE THIRTEENTH DISTRICT OF TEXAS
DORIAN E. RAMIREZ
AT CORPUS CHRISTI - EDINBURG, TEXAS Clerk
RANDOL RENE LOPEZ,
Appellant
v.
MARY BALDERRAMA,
Appellee
On appeal from the 197th Judicial District Court
Of Willacy County, Texas
In Cause No. 2014-CV-02140-A
APPELLANT’S BRIEF
Julie Balovich
Texas Bar No. 24036182
TEXAS RIOGRANDE LEGAL AID, INC.
114 N. 6th Street
Alpine, Texas 79830
(432) 837-1199 (phone)
(432) 837-9946 (fax)
jbalovich@trla.org
Attorneys for Appellant
IDENTITY OF PARTIES AND COUNSEL
APPELLANT
Randol Rene Lopez
APPELLEE
Mary Balderrama
APPELLANT’S TRIAL COUNSEL
Randol Ree Lopez, pro se
APPELLEE’S TRIAL COUNSEL
Valerie M. Garcia
State Bar No. 24043677
8418 Summer View Court
Harlingen, TX 78552
APPELLANT’S ATTORNEY ON APPEAL
Julie Balovich
TEXAS RIOGRANDE LEGAL AID, INC.
114 N. 6th Street
Alpine, Texas 79830
APPELLEE’S ATTORNEY ON APPEAL
Mary Balderrama, pro se
REDACTED
REDACTED
ii
TABLE OF CONTENTS
STATEMENT OF THE CASE 1
STATEMENT REGARDING ORAL ARGUMENT 1
ISSUES PRESENTED FOR REVIEW 2
STATEMENT OF FACTS 2
SUMMARY OF ARGUMENT 5
ARGUMENT & AUTHORITIES 6
I. Appellant did not receive notice of the final hearing as
required by Texas Rule of Civil Procedure 245 and due
process.
II. Plaintiff produced no evidence to support her claim for relief
in this post-answer default.
III. The trial court's failure to file findings of fact and
conclusions of law is presumed harmful error.
PRAYER 10
CERTIFICATE OF SERVICE 10
CERTIFICATE OF COMPLIANCE 11
APPENDIX 12
iii
TABLE OF AUTHORITIES
CASES
Anzaldua v. Anzaldua, 742 S.W.2d 782 (Tex. App.—
Corpus Christi-Edinburg, 1987, writ denied) 9
Cisneros v. Regalado Family Ltd. Partnership, No. 13–10–089–CV,
2011 WL 3366345 (Tex. App.—Corpus Christi–Edinburg,
Aug. 4, 2011, no pet.) (mem. op.) 7
Delgado v. Hernandez, 951 S.W.2d 97 (Tex. App.—Corpus Christi
-Edinburg 1997, no writ.) 6
In re P.C., 339 S.W.3d 322 (Tex. App.—El Paso 2011, no pet) 7
LBL Oil Co.v. Int’l Power Services, Inc., 777 S.W.2d 390
(Tex. 1989) (per curiam) 6
Mathis v. Lockwood, 166 S.W.3d 743 (Tex. 2005) 6
Morales v. Marquis, No. 13-12-00407-CV, 2013 WL 2298469,
(Tex. App.—Corpus Christi – Edinburg, May 23, 2013, no pet.) 6
Stoner v. Thompson, 578 S.W.2d 679 (Tex. 1979) 8
CODES AND RULES
TEX. R. APP. P. 9.4 11
TEX. R. APP. P. 26.1(a)(1), (4) 1
TEX. R. CIV. P. 21a 7
TEX. R. CIV. P 245 6
TEX. R. CIV. P. 296 9
iv
TEX. R. CIV. P. 297 9
TEX. R. CIV. P. 306c 9
TEX. R. CIV. P. 760 8
TEX. R. CIV. P. 761 8
TEX. R. CIV. P. 770 8
Willacy County Local Rules 1.7 7
v
STATEMENT OF THE CASE
This is an appeal from a default judgment granting partition. CR 65. Mary
Balderrama sued seven defendants, including Appellant Randol Rene Lopez,
seeking a judgment for partition and an order of sale for two tracts of land in
Willacy County. CR 6-33. Appellant timely answered the suit. CR 37-38. On
August 20, 2014, a status hearing took place without any written notice to the
parties. RR 1, 5; CR passim. Instead of holding a status hearing, the court rendered
a judgment for partition. RR 6. After the status hearing but before entry of
judgment, Appellant filed a motion to set aside order and a request for findings of
fact and conclusions of law, which extended the time to file appeal. CR 58-64;
TEX. R. APP. P. 26.1(a)(1), (4). The final judgment was signed on September 16,
2014. CR 65-66. This appeal followed.
STATEMENT REGARDING ORAL ARGUMENT
The record conclusively establishes that Appellant did not receive notice of
the default hearing and that the judgment was unsupported by evidence.
Accordingly, Appellant does not believe oral argument is necessary to aid the
court’s decisional process.
1
ISSUES PRESENTED FOR REVIEW
Issue 1: Whether the default judgment should be set aside because Appellant
did not receive notice of the final hearing.
Issue 2: Whether the default judgment should be set aside because no evidence
supported the judgment granting partition.
Issue 3: Whether the trial court’s failure to enter findings of fact and
conclusions of law prejudiced appellant’s ability present his appeal.
STATEMENT OF FACTS
On May 20, 2014, Appellee Mary Balderrama filed a suit seeking judgment
determining the owners to tracts of real property located in Willacy County and
partition. CR 6. According to her petition and the documents attached in support,
Appellee’s mother, Anita Molina Garza, died intestate on January 1, 2004. CR 12.
At the time of her death, Anita Molina Garza owned the two tracts of real property
in question, comprised of a .88 acre tract with a homestead and another 4.375 acre
tract. CR 12-13. At the time of her death, Anita Molina Garza’s four living
children were Mary Balderrama (Appellee), Janie Garza, Roberto M. Garza, and
Mary Lou Garza. CR 12. Garza also had one child who predeceased her and who
left three living children: Diana Bruttell, Gilberto Garza, Jr., and Roberto Daniel
Garza. CR 12. Janie Garza’s son, Randol Rene Lopez (the Appellant), resided
with Anita Molina Garza at the home on the .88 acre property at the time of her
death and continued to live there since her death. CR 12.
2
Balderrama named as defendants the three living children of Anita Molina
Garza, the three children of the predeceased son, and Appellant, alleging that all
defendants were “joint owners” in the two tracts of real property. CR 7. With
respect to each owner, she alleged their ownership share but as to Lopez she
asserted his interest was “unknown” because he was claiming ownership of the
property through adverse possession and through gift deeds from Janie Garza (his
mother) and Roberto M. Garza (his uncle). CR 8. She requested the court make a
finding as to Lopez’s ownership interest as part of the partition. CR 8.
Appellant filed an answer on June 16, 2014. CR 37-38. On the same day,
his mother Janie Garza filed a sworn answer in which she confirmed that she had
granted her interest in the property that she inherited to Appellant. CR 39-40.
Roberto M. Garza also filed an answer on July 21, 2014. CR 51-52. The four other
defendants filed waivers of citation. CR 47, 48, 53, 54.
On August 20, 2014, a status hearing took place. RR 1. The clerk’s record
reflects no notice of the hearing, CR passim, but Appellee’s trial counsel informed
the court that a status hearing had been set when the court heard a different lawsuit
involving the same parties:
I wasn’t here the last time that there was a proceeding taken up
with regards to one of the defendants, Randol Rene Lopez, who had
filed suit against the Willacy County Sheriff and all of those parties,
but Your Honor has taken care of that and it was already dismissed.
And then it was my understanding through that particular suit you set
3
us here for a status on the petition that was still pending, and my
clients conveyed that message to me.
It is also my understanding that Mr. Lopez was also present
during that hearing when his matter was dismissed and he received
notice of that hearing as well.
RR 5. Without putting on any evidence, trial counsel then requested a court
order that allowed the Appellee to sell three tracts of land owned by the
Decedent and divide the proceeds five ways. RR 5-6. The request for relief
was granted and final judgment rendered. RR 6-7.
On August 22, 2014, Appellant moved to set aside the order on the
grounds that he had failed to receive notice of the hearing and that any
notice given in open court in a separate cause was insufficient. CR 58.
Roberto M. Garza also moved to set aside the order, noting that he had not
been present at the hearing in which the court gave notice in open court. CR
55-56. In addition Appellant filed a request for findings of fact and
conclusions of law, specifically requesting findings as to why partition in
kind had not been ordered and findings as to how he received notice. CR 62.
The final order was thereafter signed on September 16, 2014. CR 65.
The Court found that Anita Garza was the owner of two tracts of land, that
partition in kind was not feasible and could not be obtained fairly and
equitably, and ordered the property sold by public sale and the proceeds
divided among seven heirs, with the three grandchildren receiving their
4
father’s 20% proceeds. CR 65-66. The order does not name Appellant as a
party with interest in the property. CR 65-66. On September 23,2014,
Appellant filed a notice of past-due findings of fact and conclusions of law.
CR 68. On December 12, 2014, within 90 days of the entry of the final
order, Appellant filed an appeal accompanied by affidavit of indigence. CR
88-95. The motion to set aside order was denied on January 21, 2015. CR
99.
SUMMARY OF ARGUMENT
The judgment in this case was entered following a status hearing for which
no written notice issued. Because the case was contested, Rule 245 required that
answering defendants receive 45 days’ notice of final hearing. Due process
requires that the judgment be set aside and the case remanded for new trial.
Further, the judgment was supported by no evidence. When a defendant
answers, the plaintiff must introduce evidence to prove her case. In a partition
case, that means proving ownership rights to the property, proving respective
interests in the property, and then proving that partition in kind is not feasible
before a partition for sale may be ordered. In this case, no evidence was
introduced to support the trial court’s judgment as to the ownership interests of the
5
defendants and in favor of partition by sale over partition in kind. Therefore, the
judgment must be reversed.
Finally, the trial court failed to enter findings of fact and conclusions of law
despite Appellant’s timely request for findings and timely filing of notice of past
due findings. The law presumes that Appellant was harmed and the judgment must
be reversed.
ARGUMENT & AUTHORITIES
I. Appellant did not receive notice of the final hearing as required by
Texas Rule of Civil Procedure 245 and due process.
Once a defendant has appeared in a case, he is entitled to notice of the trial
setting as a matter of due process under the Fourteenth Amendment to the U.S.
Constitution. LBL Oil Co.v. Int’l Power Services, Inc., 777 S.W.2d 390, 390-91
(Tex. 1989) (per curiam). In Texas courts, reasonable notice of not less than 45
days must be given in a contested case. Tex. R. Civ. P. 245. If such notice is not
given, the post-answer default judgment should be set aside. Mathis v. Lockwood,
166 S.W.3d 743, 744 (Tex. 2005) (per curiam); Morales v. Marquis, No. 13-12-
00407-CV; 2013 WL 2298469, at *2 (Tex. App.—Corpus Christi – Edinburg,
May 23, 2013, no pet.)
The law presumes that a trial court will hear a case only when proper notice
is given. Delgado v. Hernandez, 951 S.W.2d 97, 99 (Tex. App.—Corpus Christi-
6
Edinburg 1997, no writ.) That presumption may be rebutted by other evidence in
the record. Id. Appellant, representing himself pro se, filed an unsworn motion to
set aside order asserting he did not receive written notice. CR 58. The record
conclusively establishes that Appellant received no notice of a final hearing. The
clerk’s record includes no notice of the August 20, 2014, hearing. TEX. R. CIV. P.
21a; Willacy County Local Rules 1.71 (requiring counsel who receives notice from
the trial court of a trial setting provide written notice to all parties and proof of
same to the clerk.). Furthermore, Appellee’s counsel represented to the court the
only notice defendant received was verbal, took place during a hearing in another
cause, and was for a status hearing – not final hearing. RR 5. As a matter of law,
what Appellee’s counsel described is insufficient notice of a trial setting. See In re
P.C., 339 S.W.3d 322, 324-325 (Tex. App.—El Paso 2011, no pet) (finding verbal
notice to a defendant in a hearing on a different motion insufficient). The
judgment must be reversed.
II. Plaintiff produced no evidence to support her claim for relief in this
post-answer default.
A post-answer “default” is not an abandonment of the defendant’s answer
nor an implied confession of issues. Cisneros v. Regalado Family Ltd. Partnership,
No. 13–10–089–CV., 2011 WL 3366345 (Tex. App.—Corpus Christi – Edinburg,
1
http://www.co.cameron.tx.us/district_clerks/docs/ApprovalofLocalRules.pdf
7
Aug. 4, 2011, no pet.) (mem. op.) Judgment cannot be entered on the pleadings,
and the plaintiff in such cases must still appear to present evidence to prove her
case in spite of the post-answer default by the defendant. Stoner v. Thompson, 578
S.W.2d 679, 682 (Tex. 1979).
In a hearing on a suit for partition, a court must determine the share or
interest of each joint owner or claimant, whether the property or any part thereof is
susceptible to partition, and if so, must enter a decree directing the partition in
accordance with the owners’ respective shares or interests. TEX. R. CIV. P. 760,
761. The court is only authorized to order partition by sale if it finds that a fair and
equitable division of the real estate cannot be made. TEX. R. CIV. P. 770.
In this case, Appellee specifically pled for a finding as to Appellant’s
interest or share in the property, conceding that Appellant may be owner of part of
the property due to conveyance. CR 8. But at the default hearing, no evidence was
introduced regarding the respective ownership rights of the parties. RR passim.
Nor was any evidence introduced as to why the property, which comprised 5.237
acres, could not be partitioned in kind among 5 ownership interests. RR passim.
Despite Appellee’s pleading that identified Appellant as a person with a potential
ownership interest, and defendant Janie Garza’s sworn answer confirming that she
had conveyed her 20% interest to Appellant, the final judgment excludes Appellant
as a joint owner with any interest in the property. CR 65-66
8
There being no evidence to prove up the required elements of partition, the
judgment must be reversed.
III. The trial court’s failure to file findings of fact and conclusions of law is
presumed harmful error.
To the extent that the record is insufficient to support Appellant’s points on
appeal, it is the result of the trial court’s failure to enter findings of fact and
conclusions of law. Appellant timely requested findings of fact and conclusions of
law within two days of the hearing that resulted in a final judgment. CR 62. TEX.
R. CIV. P. 306c (requests for findings of fact filed prematurely are deemed filed on
the day of but subsequent to final judgment); TEX. R. CIV. P. 296. He requested
findings on the very issues presented by this appeal: what notice he received of
final hearing and what evidence was considered to support a finding that partition
in kind was not feasible. CR 62-63. The trial court made no findings in response.
CR passim. Appellant further filed a notice of past due findings when no response
was received within 30 days. TEX. R. CIV. P. 297.
When a trial court’s failure to file findings of fact injures the presentation of
an appeal, due process requires reversal and remand. Anzaldua v. Anzaldua, 742
S.W.2d 782 (Tex. App.—Corpus Christi-Edinburg, 1987, writ denied) (reversing
judgment in a partition case because the court entered no findings which supported
its denial of partition relief). If Appellant does not prevail on one of his first two
9
issues, he requests that the judgment be reversed due to the trial court’s failure to
make findings of fact as required.
PRAYER
Wherefore, premises considered, Appellant prays that the judgment be
reversed and remanded to the trial court for a new trial and for such other and
further relief to which he may be entitled.
Respectfully submitted,
Texas RioGrande Legal Aid, Inc.
114 N. 6th Street
Alpine, Texas 79830
Tel: (432) 837-1199
Fax: (432) 837-9946
By: /s/ Julie Balovich
Julie Balovich
State Bar No. 24036182
Attorneys for Randol Rene Lopez
CERTIFICATE OF SERVICE
I certify that a true copy of Appellant’s Brief was served in accordance with
Rule 9.5 of the Texas Rules of Appellate Procedure on each party or that party’s
lead counsel as follows:
Mary Balderrama
REDACTED
10
Method of service: Via certified mail/return receipt requested
Date of service: April 20, 2015
/s/ Julie Balovich
Julie Balovich
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4 of the Texas Rules of Appellate Procedure, I certify that
according to the computer program that assisted me to prepare this document,
without excluding portions of the document as is authorized, shows the word count
of this document to be 1,965 and is therefore in compliance with the rule.
/s/ Julie Balovich
Julie Balovich
11
APPENDIX
1. Final Order
2. Tex. R. Civ. P. 21a
3. Tex. R. Civ. P. 245
4. Tex. R. Civ. P. 296
5. Tex. R. Civ. P. 297
6. Tex. R. Civ. P. 760
7. Tex. R. Civ. P. 761
8. Tex. R. Civ. P. 770
9. Willacy County Local Rule 1.7
12
CAUSE NO. 2014-CV-0214-A
MARY BALDERRAMA, § IN THE DISTRICT COURT
. PLAINTIFF . §
§
.vs. §
§
MARY LOU GARZA, DIANA § 197'h JUDICIAL DISTRICT
BRUTTELL, GILBERTO GARZA, JR. §
ROBERTO DANIEL GARZA, §
ROBERTO M. GARZA, JANIE §
GARZA AND RANDOL RENE §
LOPEZ, DEFENDANTS WILLACY COUNTY, TEXAS
FINAL ORDER
ON TillS DAY, came to be heard Plaintiffs Original Petition for Partition. And after
due consideration, the Court makes the following findings:
1. That Anita Molina Garza·Died intestate on January 1, 2004;
2. There is currently no administration pending of the Estate of Anita Molina Garza and the
four year statute oflimitations to petition for administration has passed;
J. At.the time of her death Anita Molina Garza was survived by the following heirs:
Mary Balderrama;
Diana Bruttell, Gilberto Garza, Jr., and Roberto Daniel Garza (Children of Gilberto
Garza(Deceased);
Jariie Garza;
. Roberto M. Garza; and
Mary Lou Garza
4. At the time of her death, Anita Molina Garza owned two separate tracts of real property
in Willacy County, Texas described below as Tract One and Tract Two:
~8feli@
SEP 16 Z014
='ilfl~fJl;r~.`` 65
TRACT ONE: Lot 12E-1, Block 25, in the Gulf Coast Irrigation Company
Subdivision as recorded in volume 2, page 53, Map Records ofWillacy County, Texas and more
specifically described in the Rios Surveying survey dated June 12, 2008 and attached hereto and
. marked Exhibit "A" which property is known locally as 4876 FM 2845, Lyford, Texas 78569;
and
TRACT TWO: Lot 12E (N PT), Block 25, Part of Tract 4 in the Gulf Coast
Irrigati·o n Company Subdivision as recorded in volume 2, page 53, Map Records of Willacy .
County, Texas which property is known locally as 4876 FM 2845, Lyford, Texas 78569 AND
Consists of 4,35 acres, also identified by the Willacy County Tax Assessor Collector as Property
ID 13210, GEO number G0400-00-00250-012-0E-O.
· 5. That partition in kind ·is not feasible and cannot be achieved fairly and equitably;
therefore there exists a need to order a private sale of said properties.
IT IS THEREFORE ORDERED DECREED AND ADJUDGED that Plaintiffs Petition for .
Partition is in all things GRANTED and the Court Orders the following:
1. That the above referenced properties be placed for public sale by the Willacy County
Sheriff;
2. That the Willacy County Sheriffs office notify Plaintiff and Defendants of the time
and place of the sale; .
3. That after said sale, the proceeds of the sale be returned to the Court for distribution
as follows:
A. Mary Balderrama, daughter: 20%
B. Mary Lou Garza, daughter: 20%
C. Diana Bruttell, Gilberte Garza, Jr., and Roberto Daniel Garza, grandchildren.
113 of20% each= 6.666 (as children ofGilberto Garza, Deceased)
D. Roberto M. Garza, son: 20%
E. Janie Garza, daughter: 20%
4. That .Plaintiff will be reimbursed for all expenses incurred by Plaintiff for filing
fees, costs and expenses and attorney's fees to be determined by the Court at the
time of distribution; ·
5. That any person occupying the premises comply with this Order and peacefully
allow .for the sale of the subject properties and abandon the premises no later than
(IO) days before the date of sale.
· Signed and ent~red on this~ day of ~ , 2014 in Willacy County, Texas.
(, .
``
HOt;d8li3L()iJe~
66
Rule 21a. Methods of Service, TX R RCP Rule 21a
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 1. General Rules (Refs & Annos)
TX Rules of Civil Procedure, Rule 21a
Rule 21a. Methods of Service
Currentness
(a) Methods of Service. Every notice required by these rules, and every pleading, plea, motion, or other form of request required
to be served under Rule 21, other than the citation to be served upon the filing of a cause of action and except as otherwise
expressly provided in these rules, may be served by delivering a copy to the party to be served, or the party's duly authorized
agent or attorney of record in the manner specified below:
(1) Documents Filed Electronically. A document filed electronically under Rule 21 must be served electronically through the
electronic filing manager if the email address of the party or attorney to be served is on file with the electronic filing manager.
If the email address of the party or attorney to be served is not on file with the electronic filing manager, the document may
be served on that party or attorney under subparagraph (2).
(2) Documents Not Filed Electronically. A document not filed electronically may be served in person, mail, by commercial
delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.
(b) When Complete.
(1) Service by mail or commercial delivery service shall be complete upon deposit of the document, postpaid and properly
addressed, in the mail or with a commercial delivery service.
(2) Service by fax is complete on receipt. Service completed after 5:00 p.m. local time of the recipient shall be deemed served
on the following day.
(3) Electronic service is complete on transmission of the document to the serving party's electronic filing service provider.
The electronic filing manager will send confirmation of service to the serving party.
(c) Time for Action After Service. Whenever a party has the right or is required to do some act within a prescribed period after
the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added
to the prescribed period.
(d) Who May Serve. Notice may be served by a party to the suit, an attorney of record, a sheriff or constable, or by any other
person competent to testify.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Rule 21a. Methods of Service, TX R RCP Rule 21a
(e) Proof of Service. The party or attorney of record shall certify to the court compliance with this rule in writing over signature
and on the filed instrument. A certificate by a party or an attorney of record, or the return of the officer, or the affidavit of any
other person showing service of a notice shall be prima facie evidence of the fact of service. Nothing herein shall preclude any
party from offering proof that the document was not received, or, if service was by mail, that the document was not received
within three days from the date that it was deposited in the mail, and upon so finding, the court may extend the time for taking
the action required of such party or grant such other relief as it deems just.
(f) Procedures Cumulative. These provisions are cumulative of all other methods of service prescribed by these rules.
Credits
Aug. 18, 1947, eff. Dec. 31, 1947. Amended by orders of July 21, 1970, eff. Jan. 1, 1971; Oct. 3, 1972, eff. Feb. 1, 1973; July
11, 1977, eff. Jan. 1, 1978; June 10, 1980, eff. Jan. 1, 1981; Dec. 5, 1983, eff. April 1, 1984; April 24, 1990, eff. Sept. 1, 1990;
Dec. 11, 2013, eff. Jan. 1, 2014.
Editors' Notes
COMMENT--2013
Rule 21a is revised to incorporate rules for electronic service in accordance with the Supreme Court's order--Misc.
Docket No. 12-9206, amended by Misc. Docket Nos. 13-9092 and 13-9164--mandating electronic filing in civil cases
beginning on January 1, 2014.
Notes of Decisions (327)
Vernon's Ann. Texas Rules Civ. Proc., Rule 21a, TX R RCP Rule 21a
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Rule 245. Assignment of Cases for Trial, TX R RCP Rule 245
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 11. Trial of Causes
A. Appearance and Procedure
TX Rules of Civil Procedure, Rule 245
Rule 245. Assignment of Cases for Trial
Currentness
The Court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not
less than forty-five days to the parties of a first setting for trial, or by agreement of the parties; provided, however, that when
a case previously has been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the
parties or by agreement of the parties. Noncontested cases may be tried or disposed of at any time whether set or not, and may
be set at any time for any other time.
A request for trial setting constitutes a representation that the requesting party reasonably and in good faith expects to be ready
for trial by the date requested, but no additional representation concerning the completion of pretrial proceedings or of current
readiness for trial shall be required in order to obtain a trial setting in a contested case.
Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of July 22, 1975, eff. Jan. 1, 1976; Dec. 5, 1983, eff. April 1, 1984; April
24, 1990, eff. Sept. 1, 1990.
Notes of Decisions (166)
Vernon's Ann. Texas Rules Civ. Proc., Rule 245, TX R RCP Rule 245
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Rule 296. Requests for Findings of Facts and Conclusions of Law, TX R RCP Rule 296
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 11. Trial of Causes
G. Findings by the Court
TX Rules of Civil Procedure, Rule 296
Rule 296. Requests for Findings of Facts and Conclusions of Law
Currentness
In any case tried in the district or county court without a jury, any party may request the court to state in writing its findings of fact
and conclusions of law. Such request shall be entitled “Request for Findings of Fact and Conclusions of Law” and shall be filed
within twenty days after judgment is signed with the clerk of the court, who shall immediately call such request to the attention
of the judge who tried the case. The party making the request shall serve it on all other parties in accordance with Rule 21a.
Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of March 19, 1957, eff. Sept. 1, 1957; June 10, 1980, eff. Jan. 1, 1981;
Dec. 5, 1983, eff. April 1, 1984; April 24, 1990, eff. Sept. 1, 1990.
Notes of Decisions (1782)
Vernon's Ann. Texas Rules Civ. Proc., Rule 296, TX R RCP Rule 296
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Rule 297. Time to File Findings of Fact and Conclusions of Law, TX R RCP Rule 297
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 11. Trial of Causes
G. Findings by the Court
TX Rules of Civil Procedure, Rule 297
Rule 297. Time to File Findings of Fact and Conclusions of Law
Currentness
The court shall file its findings of fact and conclusions of law within twenty days after a timely request is filed. The court shall
cause a copy of its findings and conclusions to be mailed to each party in the suit.
If the court fails to file timely findings of fact and conclusions of law, the party making the request shall, within thirty days
after filing the original request, file with the clerk and serve on all other parties in accordance with Rule 21a a “Notice of Past
Due Findings of Fact and Conclusions of Law” which shall be immediately called to the attention of the court by the clerk.
Such notice shall state the date the original request was filed and the date the findings and conclusions were due. Upon filing
this notice, the time for the court to file findings of fact and conclusions of law is extended to forty days from the date the
original request was filed.
Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of June 10, 1980, eff. Jan. 1, 1981; Dec. 5, 1983, eff. April 1, 1984; April
24, 1990, eff. Sept. 1, 1990.
Notes of Decisions (251)
Vernon's Ann. Texas Rules Civ. Proc., Rule 297, TX R RCP Rule 297
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Rule 760. Court Shall Determine, What, TX R RCP Rule 760
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part VII. Rules Relating to Special Proceedings
Section 4. Partition of Real Estate (Refs & Annos)
TX Rules of Civil Procedure, Rule 760
Rule 760. Court Shall Determine, What
Currentness
Upon the hearing of the cause, the court shall determine the share or interest of each of the joint owners or claimants in the real
estate sought to be divided, and all questions of law or equity affecting the title to such land which may arise.
Notes of Decisions (89)
Vernon's Ann. Texas Rules Civ. Proc., Rule 760, TX R RCP Rule 760
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Rule 761. Appointment of Commissioners, TX R RCP Rule 761
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part VII. Rules Relating to Special Proceedings
Section 4. Partition of Real Estate (Refs & Annos)
TX Rules of Civil Procedure, Rule 761
Rule 761. Appointment of Commissioners
Currentness
The court shall determine before entering the decree of partition whether the property, or any part thereof, is susceptible of
partition; and, if the court determines that the whole, or any part of such property is susceptible of partition, then the court
for that part of such property held to be susceptible of partition shall enter a decree directing the partition of such real estate,
describing the same, to be made in accordance with the respective shares or interests of each of such parties entitled thereto,
specify in such decree the share or interest of each party, and shall appoint three or more competent and disinterested persons as
commissioners to make such partition in accordance with such decree and the law, a majority of which commissioners may act.
Notes of Decisions (56)
Vernon's Ann. Texas Rules Civ. Proc., Rule 761, TX R RCP Rule 761
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Rule 770. Property Incapable of Division, TX R RCP Rule 770
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part VII. Rules Relating to Special Proceedings
Section 4. Partition of Real Estate (Refs & Annos)
TX Rules of Civil Procedure, Rule 770
Rule 770. Property Incapable of Division
Currentness
Should the court be of the opinion that a fair and equitable division of the real estate, or any part thereof, cannot be made, it shall
order a sale of so much as is incapable of partition, which sale shall be for cash, or upon such other terms as the court may direct,
and shall be made as under execution or by private or public sale through a receiver, if the court so order, and the proceeds
thereof shall be returned into court and be partitioned among the persons entitled thereto, according to their respective interests.
Credits
Oct. 12, 1949, eff. March 1, 1950.
Notes of Decisions (53)
Vernon's Ann. Texas Rules Civ. Proc., Rule 770, TX R RCP Rule 770
Current with amendments received through 3/15/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
WILLACY COUNTY CIVIL RULES
INDEX
PART ONE
CIVIL DISTRICT COURTS
1.1 FILING, ASSIGNMENT AND TRANSFER
1.2 TEMPORARY ORDERS
1.3 EX PARTE ORDERS
1.4 TEMPORARY AND PROTECTIVE ORDERS IN FAMILY LAW MATIERS
1.5 SEVERANCE
1.6 SETTING FOR TRlAL AND PRE-TRIAL
1.7 OTHER SETTINGS
1.8 SPECIAL SETTINGS
1.9 GENERAL PLEADINGS
1.11 INITIAL PRE-TRIALCONFERENCE
1.12 DILATORYPLEAS
1.13 APPEARANCE IN COURT FOR HEARINGS, ANNOUNCEMENTS AND/OR
TRIAL
1.14 DISMISSAL FOR WANT OF PROSECUTION
1.15 WITHDRAWAL OF COUNSEL
1.16 FILING OF PAPERS AND/OR ELECTRONIC FILING WITII THE DISTRJCT
CLERK
1.17 WITHDRAWAL AND COPYING OF FILES
1.18 ORDERS AND JUDGMENTS
PART2
COUNTY COURT
2.1 RULES APPLICABLE TO COUNTY COURT
PART3
GENERAL AND MISCELLANEOUS
3.1 AUTHORITYFORRULES
3.2 REPEAL OF FORJvffiRRULES
3.3 TITLE AND CITATION
3.4 PARTIAL CIVIL INVALIDITY
3.5 "COUNSEV', "LAWYERS", "ATTORNEY OF RECORD"
3.6 CONDUCT OF THE GENERAL PUBLIC
3.7 CONDUCT OF COUNSEL
3.8 CONDUCT OF THE OFFICERS OF THE COURT, INCLUDING COUNSEL
3.9 ADOPTION AND EFFECTIVE DATE
WILLACY COUNTY LOCAL RULES PAGE 1 OF 16
pre-trial hearing. The Court may always on its own Motion set a pre-trial hearing by
issuing notice of the date and time of same to all parties.
(c) Counsel attending a pre-trial hearing shall be either the counsel who
expects to be lead attorney at trial or an attorney who has full authority to state the
client's position of the law and facts on pending matters, to make stipulations, and to
enter into settlement negotiations.
1.7 OTHERSETTINGS
(a) Counsel who request a hearing, pre-trial and/or trial date and who receives
notice of same from the Court and/or the Court Coordinator shall have the duty to give all
other parties in the case written notice immediately of such setting and to furnish a copy
of such notice to the clerk of the Court in which the case is pending. If a party receives
his copy of notice by written order mailed to parties from the clerk's office, the party is
excused from providing duplicative notice to all parties.
(b) No hearing shall be set on less than three (3) days' notice, and no party
shall request a hearing on less than three (3) days' notice unless that party has filed a
motion for emergency hearing, and has provided specific reasons for same. If filing a
motion requesting an emergency hearing, counsel must provide a copy of the motion and
written notice of the requested and/or any awarded hearing date by hand-delivery, telefax,
electronic transmission, or other similar means most likely to insure that opposing
counsel receives that notice. Counsel seeking the emergency hearing must also make a
good faith effort to contact all opposing counsel's offices to confirm that the opposing
counsel has received the notice.
(c) No setting is required for a hearing on a default requiring no record or
proof; however, ifthere are any other parties to the case, notice to all such parties must be
given before any attempt is made to approach the Court to obtain a default. If other
parties indicate a desire to be present, they must be given the opportunity to or be present,
or a setting with at least three (3) days' notice must be obtained.
(d) Testimony for defaults requiring proof shall be scheduled with the Court
Coordinator ofthe Court in which the case is pending, and notice given to all parties.
1.8 SPECIAL SETTINGS
Special preferential settings may be made by the Judge when, because of unusual
circumstances, more than ordinary difficulty would be encountered in having all counsel
and witnesses available when the case is reached in regular order. Cases specially set
shall take precedence over all other matters, except matters entitled to preference by law
and matters commenced but not completed in the preceding week. Other engagements of
WILLACY COUNTY LOCAL RULES PAGE 6 OF 16