Luc J. Messier v. Katy Shuk Chi Lau Messier

Motion Granted; Abatement Order filed September 12, 2013
In The
Fourteenth Court of Appeals
____________
NO. 14-13-00572-CV
____________
LUC J. MESSIER, Appellant
V.
KATY SHUK CHI LAU MESSIER, Appellee
On Appeal from the 311th District Court
Harris County, Texas
Trial Court Cause No. 2009-45158
ABATEMENT ORDER
After a non-jury trial, appellant brings this appeal from a judgment signed
June 25, 2013. 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
August 29, 2013, 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 his
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 October 4, 2013. 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 November 1, 2013.
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 the responsibility of any
party seeking reinstatement to request a hearing date from the trial court and to
schedule a hearing in compliance with this Court’s order. If the parties do not
request a hearing, the court coordinator of the trial court shall set a hearing date
and notify the parties of such date.
It is so ORDERED.
PER CURIAM