Manish Kumar Kardam v. Michelle Lynn Lofstrom ( 2020 )

Affirmed as modified; Opinion Filed January 28, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01435-CV
MANISH KUMAR KARDAM, Appellant
V.
MICHELLE LYNN LOFSTROM, Appellee
On Appeal from the 417th Judicial District Court
Collin County, Texas
Trial Court Cause No. 417-55748-2018
MEMORANDUM OPINION
Before Justices Myers, Schenck, and Carlyle
Opinion by Justice Myers
Manish Kumar Kardam appeals the protective order against him in favor Michelle Lynn
Lofstrom. Appellant brings five issues contending the trial court erred by rendering the protective
order because (1) the order violates his due process rights; (2), (3) the evidence is legally and
factually insufficient to support the trial court’s finding that appellant and appellee were “intimate
partners” under 18 U.S.C. § 2266. Appellant also contends (4) the trial court erred by refusing to
clarify the word “contact” in the court’s findings of fact; and (5) the trial court erred by refusing
to make additional findings and conclusions requested by appellant. Appellee agrees the evidence
is insufficient to support the trial court’s finding that they were intimate partners. We modify the
judgment to delete the finding that the parties were “intimate partners,” and we affirm the judgment
as modified.
BACKGROUND
Appellant and appellee were coworkers. Appellee applied for a protective order under
chapter 7A of the Code of Criminal Procedure and alleged appellant had been stalking her. After
a hearing at which both parties testified, the trial court signed a protective order against appellant.
The order contains twelve prohibitions against appellant that the order states are enforceable by
arrest.
DUE PROCESS
In his first issue, appellant contends the protective order deprives him of due process
because it does not provide for notice to him of a violation of the order and a hearing to contest
the allegation that he violated the order before he is arrested for violating the order. Appellee
asserts appellant’s complaints are not ripe. We need not reach that issue because appellant did not
object to the order in the trial court as violating his right to due process.
Rule of Appellate Procedure 33.1 requires that the record show that a party presenting a
complaint for appellate review made a timely request, objection, or motion in the trial court that
stated the grounds for the ruling sought. TEX. R. APP. P. 33.1(a)(1). The complaint must be
specific enough to make the trial court aware of the complaint. Id. This rule applies to complaints
that an order deprives a party of due process. See McFadin v. Broadway Coffeehouse, LLC, 539
S.W.3d 278, 285 (Tex. 2018). A contention of lack of due process raised for the first time in the
appellate court is not preserved for review. Id.
The record does not show appellant objected in the trial court that the order deprived him
of due process. We conclude this issue is not preserved for appellate review. We overrule
appellant’s first issue.
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SUFFICIENCY OF THE EVIDENCE
In his second and third issues, appellant contends the evidence is legally and factually
insufficient to support the trial court’s finding in the protective order that “APPLICANT and
RESPONDENT are intimate partners pursuant to Title 18, Unites States Code, Section 2266.”
Appellant asks that we reform the order and strike the finding that the parties were “intimate
partners.” Appellee states in her brief that appellant is correct that the “intimate partners” finding
should be deleted from the order.
We have reviewed the record, and we agree with the parties that no evidence supports the
finding that the parties were “intimate partners.” Accordingly, we sustain appellant’s second issue.
Having concluded no evidence supports the finding, we do not address appellant’s third issue
contending the evidence is factually insufficient to support the finding.
ADDITIONAL FINDINGS OF FACT
In his fourth and fifth issues, appellant contends the trial court was required to make
subsequent or additional findings of fact under Rule of Civil Procedure 298. Appellant requested
additional findings on whether the contact between appellant and appellee was physical or
nonphysical. Appellant also requested additional findings and conclusions concerning whether
appellant stalked appellee.
When the protective order contains the findings required by statute, the trial court is not
required to make additional findings. See Peña v. Garza, 61 S.W.3d 529, 531–32 (Tex. App.—
San Antonio 2001, no pet.); see also Maki v. Anderson, No. 02-12-00513-CV, 2013 WL 4121229,
at *3 (Tex. App.—Fort Worth Aug. 15, 2013, pet. denied) (citing Peña).
Article 7A.03 provides that at the close of a hearing on an application for a protective order,
“the court shall find whether there are reasonable grounds to believe that the applicant is the victim
of sexual assault or abuse, stalking, or trafficking.” CRIM. PROC. art. 7A.03(a). If a trial court
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issues a protective order, the order must include “a statement of the required findings.” Id. art
7A.03(b). The trial court stated in the protective order, “The Court finds that there are reasonable
grounds to believe that RESPONDENT has stalked APPLICANT.” Appellant does not challenge
the sufficiency of the evidence to support this finding. This finding complied with article 7A.03.
Therefore, appellant was not entitled to additional findings. See Peña, 61 S.W.3d at 531 (statutory
requirement for findings in protective-order cases trumps right to findings under Texas Rules of
Civil Procedure); see also Maki, 2013 WL 4121229, at *3 (citing Peña). We overrule appellant’s
fourth and fifth issues.
CONCLUSION
We modify the protective order and order the following language deleted: “APPLICANT
and RESPONDENT are intimate partners pursuant to Title 18, United States Code, Section 2266.”
We affirm the protective order as modified.
/Lana Myers/
LANA MYERS
JUSTICE
181435F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MANISH KUMAR KARDAM, Appellant On Appeal from the 417th Judicial District
Court, Collin County, Texas
No. 05-18-01435-CV V. Trial Court Cause No. 417-55748-2018.
Opinion delivered by Justice Myers.
MICHELLE LYNN LOFSTROM, Justices Schenck and Carlyle participating.
Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
the following language in the judgment of the trial court is DELETED:
"APPLICANT and RESPONDENT are intimate partners pursuant to Title 18,
United States Code, Section 2266."
It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee MICHELLE LYNN LOFSTROM recover her costs of this
appeal from appellant MANISH KUMAR KARDAM.
Judgment entered this 28th day of January, 2020.
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