law-findings-of-facts-FoF | TRCP 296, 297 | notice of past due findings of fact and conclusions of law
297 | additional findings of fact |
ADDITIONAL FOFs
After the trial court files its original findings of fact and conclusions of law, any party may file a request
for specified additional or amended findings or conclusions with the clerk of the court. Tex. R. Civ. P.
298; Gentry v. Squires Constr., Inc., 188 S.W.3d 396, 408 (Tex. App.-Dallas 2006, no pet.). The
failure of a party to request additional or amended findings or conclusions waives the party's right to
complain on appeal about the presumed finding. Gentry, 188 S.W.3d at 408.
TRIAL COURT'S FINDINGS OF FACTS ON APPEAL
Findings of fact entered in a case tried to the court have the same force and dignity as a jury’s
answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).
Findings of fact are the exclusive province of the trier of fact. Bellefonte Underwriters Ins. Co. v.
Brown, 704 S.W.2d 742, 744-45 (Tex. 1986).
A court of appeals cannot make findings of fact; it can only “unfind” facts. Tex. Nat'l Bank v. Karnes,
717 S.W.2d 901, 903 (Tex. 1986). Unchallenged findings of fact are binding unless the contrary is
established as a matter of law or there is no evidence to support the findings. McGalliard v.
Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Reliance Ins. Co. v. Denton Cent. Appraisal Dist., 999 S.
W.2d 626, 629 (Tex. App.—Fort Worth 1999, no pet.).
Challenged findings of fact are reviewed for legal and factual sufficiency. See Daniel v. Falcon
Interest Realty Corp., 190 S.W.3d 177, 184 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding
that findings of fact after bench trial have same weight as jury's verdict, unchallenged findings of fact
are conclusive, and challenged findings are reviewed under traditional legal and factual sufficiency
standards of review; conclusions of law are reviewed de novo but upheld on any legal theory
supported by the evidence).
FINDINGS OF FACT AFTER RENDITION OF JUDGMENT - ROLE ON
APPEAL
Findings of fact entered in a case tried to the court have the same force and dignity as a jury's
answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.
1991). The trial court's findings of fact are reviewable for legal and factual sufficiency of the
evidence to support them by the same standards that are applied in reviewing evidence
supporting a jury's answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v.
Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).
However, in a review of a child custody ruling, “legal and factual sufficiency are not
independent grounds of error but are relevant factors in deciding whether the trial court
abused its discretion.” M.M.M., 307 S.W.3d at 849. We consider whether (1) the trial court
had sufficient information upon which to exercise its discretion and (2) whether it erred in its
application of that discretion. Id. The first question is subject to a traditional sufficiency
review; we determine in the second question whether, based on the elicited evidence, the trial
court made a reasonable decision. Id.
Texas supreme court has said that findings and conclusions can properly be considered by
the reviewing court when a judgment is, among other things, "based in any part on an
evidentiary hearing." See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443
(Tex. 1997).
FACT FINDINGS NOT APPROPRIATE IN SJ CONTEXT Findings of fact and conclusions of
law "have no purpose" in regard to a summary judgment ruling—the issue, after all, is whether
judgment should be rendered as a matter of law without an evidentiary hearing—and the trial court
properly ignored Singh's requests. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440,
441-43 (Tex. 1997); Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994).
PETITION FOR REVIEW IN TEXAS SUPREME COURT ABATED PENDING
SUBMISSION OF FINDINGS
Gallagher Headquarters Ranch Development, Ltd., No. 08-0773 (Tex. Feb. 12, 2010)(per curiam)
(petition for review in the Supreme Court put on hold pending submission of findings of fact requested
from the trial court)(scope and reach of release in settlement at issue)(petition abated, findings of fact
requested from trial court, scope of release pursuant to settlement at issue)
GALLAGHER HEADQUARTERS RANCH DEVELOPMENT, LTD., CHRIS HILL AND JULIE HOOPER v.
CITY OF SAN ANTONIO AND CITY PUBLIC SERVICE; from Bexar County; 4th district (04-07-00325-
CV, 269 SW3d 628, 07-23-08) abatement order issued
[Note: The petition is abated and remanded to the trial court for findings of fact. The trial court shall
submit its findings to this Court no later than May 3, 2010. The parties may, within thirty days after the
trial court's findings are submitted, provide a supplementary brief to this Court.]
Per Curiam Opinion
(Justice Hecht not sitting)
FINDINGS OF FACT AND CONCLUSIONS OF LAW - RULE AND
CASELAW
Texas Rule of Civil Procedure 296 provides a party with the procedural right to request that the
trial court prepare written findings of fact and conclusions of law. See Tex.R.Civ.P. 296. Texas Rule of
Civil Procedure 297 makes the trial court's duty to make such findings in response to a timely request
mandatory. See Tex.R.Civ.P. 297; see also Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772
(Tex. 1999). A trial court's failure to respond to a timely request is presumed to be harmful error
unless the appellate record affirmatively shows that the complaining party has suffered no harm.
Cherne Indus., Inc., 763 S.W.2d at 772.
In a trial to the court where no findings of fact or conclusions of law are filed, the trial court's judgment
implies all findings of fact necessary to support it. Pharo v. Chambers Cnty., 922 S.W.2d 945, 948
(Tex. 1996); In re Estate of Rhea, 257 S.W.3d 787, 790 (Tex. App.-Fort Worth 2008, no pet.). When a
reporter's record is filed, however, these implied findings are not conclusive, and an appellant may
challenge them by raising both legal and factual sufficiency of the evidence points. BMC Software
Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Estate of Rhea, 257 S.W.3d at 790. When
such points are raised, the applicable standard of review is the same as that to be applied in the
review of jury findings or a trial court's findings of fact. Roberson v. Robinson, 768 S.W.2d 280, 281
(Tex. 1989). The judgment must be affirmed if it can be upheld on any legal theory that finds support
in the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re Guardianship of
Boatsman, 266 S.W.3d 80, 85 (Tex. App.-Fort Worth 2008, no pet.).
To preserve error for appellate review, a party has the burden of objecting to the court reporter's
failure to record the proceedings. See TEX. R. APP. P. 33.1(a); Reyes v. Credit Based Asset
Servicing & Securitization, 190 S.W.3d 736, 740 (Tex. App.-San Antonio 205, no pet.). As a general
rule, an appellate court may consider a case based only upon the appellate record on file, which must
reflect that a complaint was made to the trial court by a timely request, objection, or motion. See TEX.
R. APP. P. 33.1(a).
Findings of Fact
An appellate court reviews the trial court's findings of fact for legal and factual sufficiency. BMC
Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Corpus Christi Housing Auth. v.
Lara, 267 S.W.3d 222, 226 (Tex. App.—Corpus Christi 2008, no pet.). When a reporter's record is
part of the appellate record, findings of fact are not conclusive on appeal, even if unchallenged. Zac
Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987).
Conclusions of Law
The trial court's conclusions of law are reviewed de novo. BMC Software Belgium, 83 S.W.3d at 794;
Lara, 267 S.W.3d at 226. We independently evaluate a trial court's conclusions to determine their
correctness, and we will uphold conclusions on appeal if the judgment can be sustained on any legal
theory supported by the evidence. In re Moers, 104 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.]
2003, no pet.). The appellant may not challenge a trial court's conclusions of law for factual
insufficiency; however, the reviewing court may review the trial court's legal conclusions drawn from
the facts to determine their correctness. Templeton v. Dreiss, 961 S.W.2d 645, 656 n.8 (Tex. App.—
San Antonio 1998, pet. denied).
COURT OF APPEALS CASES (pet. denied)
09-0663 MICHAEL G. BYBOTH v. WOOD LIMITED PARTNERSHIP; AMS STAFF LEASING, INC.; AND
CHARLES D. WOOD, JR.; from Collin County; 5th district (05-08-00915-CV, ___ SW3d ___, 05-21-09)
(breach of promissory note, personal guaranty, findinds of fact and conclusions of law).
We first consider Byboth's third issue concerning the trial court's failure to file findings of fact and
conclusions of law. When properly requested, the trial court has a mandatory duty to file findings of
fact. Tex. Rs. Civ. P. 296, 297; Landerman v. State Bar of Tex., 247 S.W.3d 426, 430 (Tex. App.-
Dallas 2008, pet. denied). If the trial court fails to file findings of fact and conclusions of law after a
proper request, the failure is presumed harmful unless the record affirmatively shows the complaining
party suffered no injury. Landerman, 247 S.W.3d at 430. Fact findings are not necessary, however,
when the matters in question are not disputed. Id. Accordingly, where the facts are undisputed and
the only matters presented on appeal are legal issues to be reviewed de novo, the failure to file
findings of fact and conclusions of law is harmless error. Id. at 430-31.
The facts concerning Byboth's defense of material alteration of the note are undisputed, and this
appeal presents only legal issues to be reviewed de novo. Therefore, findings of fact were not
necessary, and any error in failing to enter findings of fact and conclusions of law was harmless. See
id. We resolve Byboth's third issue against him.
JOHN A. LYONS v. LAURI D. LYONS; from Bexar County;
4th district (04-08-00259-CV, ___ SW3d ___, 01-14-09, pet. denied Sep. 2009)
(divorce appeal, business records affidavit defective, findings of fact & conclusions of law, error
preservation for appellate review) as redrafted
“A trial court’s findings of fact are reviewed for factual sufficiency of the evidence under the same
legal standards as applied to review jury verdicts for factual sufficiency of the evidence.” Ortiz v.
Jones, 917 S.W.2d 770, 772 (Tex. 1996); see also Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.
1994). In our review, we weigh all the evidence in the record and overturn findings only if the evidence
is so against the great weight and preponderance of the evidence that the findings are clearly wrong
and unjust. See Ortiz, 917 S.W.2d at 772; see also Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In
the event we find a finding to be factually insufficient, we must clearly state why the jury’s finding is
factually insufficient or is so against the great weight and preponderance of the evidence as to be
manifestly unjust. See Ortiz, 917 S.W.2d at 772.
09-0381
In Issue Six, Bluebonnet contends that the trial court erred by failing to make findings in response to
its September 5 request. Because we find this issue determinative of the appeal at this point, we will
limit our review to this issue.
Bluebonnet Financial Assets v. Miller, No. 08-07-00282-CV (Tex.App.- El Paso [8th Dist.] May 1, 2009)
ABATED: Per Curiam
Before Chief Justice Chew, Justices McClure and Rivera
08-07-00282-CV Bluebonnet Financial Assets v. Marvin Miller
Appeal from County Court at Law No. 5 of Collin County
Texas Rule of Civil Procedure 296 provides a party with the procedural right to request that the trial
court prepare written findings of fact and conclusions of law. See Tex.R.Civ.P. 296. Texas Rule of Civil
Procedure 297 makes the trial court's duty to make such findings in response to a timely request
mandatory. See Tex.R.Civ.P. 297; see also Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772
(Tex. 1999). A trial court's failure to respond to a timely request is presumed to be harmful error
unless the appellate record affirmatively shows that the complaining party has suffered no harm.
Cherne Indus., Inc., 763 S.W.2d at 772.
As a preliminary matter, it is necessary to address the timeliness of Bluebonnet's September 5
request for findings. A party's Rule 296 request for findings of fact and conclusions of law is due to be
filed with the clerk of the court within twenty days of the date the judgment is signed. Tex.R.Civ.P. 296.
If the trial court fails to respond to a request for findings within twenty days, the requesting party must
file a notice of past due findings within thirty days of the original request. Tex.R.Civ.P. 297. Here, we
have a rather unique situation where a party has made a timely request for findings which were timely
entered in the record, only to have those findings be set aside pursuant to the opposing party's
motion, outside time period in which another request, or a request for additional findings, could be
made. See Tex.R.Civ.P. 296, 298.
Were we to count from August 3, the date the judgment was signed, Bluebonnet's September 5
request for findings would be untimely, as would its past due notice. Bluebonnet would no longer be
entitled to findings. See Cherne Indus., Inc., 763 S.W.2d at 772. This result frustrates the purpose of
Rules 296 and 297, and leaves a party who has otherwise complied with the rules' requirements
without a remedy. Without findings of fact and conclusions of law, Bluebonnet would be forced to
guess what the trial court's findings were unless they are provided to them. See Brown v. McGonagill,
940 S.W.2d 178, 180 (Tex.App.--San Antonio 1996, no writ). Putting the appellant in the position of
having to guess the trial court's reasons for rendering judgment against it defeats the inherent
purpose of Rules 296 and 297. Larry F. Smith, Inc. v. The Weber Co., Inc., 110 S.W.3d 611, 614 (Tex.
App.-Dallas 2003, writ denied). The purpose of a request under the rules is to "narrow the bases of
the judgment to only a portion of [the multiple] claims and defenses, thereby reducing the number of
contentions that the appellant must raise on appeal." Id. Requiring an appellant to undertake a broad
attack on all the potential bases for the trial court's judgment requires an appellant to expend
resources on briefing that may be rendered meaningless after the trial court's findings become
available. Liberty Mut. Fire Ins. v. Laca, 243 S.W.3d 791, 795 (Tex.App.--El Paso 2007, no pet.).
Bluebonnet has continually pursued its request for findings. Because Bluebonnet has conscientiously
exercised its right to findings despite its opposing party's actions, and because we conclude it would
frustrate the purposes of Rules 296 and 297 to hold otherwise, we will calculate Bluebonnet's
deadline for findings of fact and conclusions of law from the date the trial court set aside the initial set
of findings. When we calculate from that date, Bluebonnet's September 5 request was timely, as was
its past due notice. Therefore, the trial court had an affirmative duty to enter findings of fact and
conclusions of law pursuant to a timely request. Because the court has not entered findings, we must
next address the question of harm.
The general rule is that an appellant has been harmed by a trial court's failure to enter findings of fact
and conclusions of law if, under the circumstances of the case, he is forced to guess the reasons the
trial court ruled against him. Larry F. Smith, Inc., 110 S.W.3d at 614. If there is only a single ground of
recovery or a single defense in the case, the record shows the appellant has suffered no harm
because he is not forced to guess the reasons for the trial court's judgment. Id. In a case such as this
one, where there are multiple grounds upon which the trial court could have based its decision, the
record does not affirmatively show appellant was not harmed by the trial court's failure to respond to a
timely request for findings of fact and conclusions of law. See Laca, 243 S.W.3d at 795. The
preferable remedy in this situation is for the appellate court to abate the appeal to allow the missing
findings to be entered. Cherne Indus., Inc., 763 S.W.2d at 773; Brooks v. Housing Auth. of City of El
Paso, 926 S.W.2d 316, 321 (Tex.App.--El Paso 1996, no writ). Accordingly, we abate this appeal and
direct the trial judge to enter findings of fact and conclusions of law and forward the same to the
District Clerk of Collin County within thirty (30) days of the date of this opinion. It is further ordered
that the District Clerk of Collin County prepare a supplemental clerk's record and forward the same to
this Court with fifteen (15) days of the filing of the findings of fact and conclusions of law.
When properly requested, the trial court has a mandatory duty to file findings of fact. Tex. R. Civ. P.
296, 297; Nevada Gold & Silver, Inc. v. Andrews Indep. Sch. Dist., 225 S.W.3d 68, 77 (Tex. App.-El
Paso 2005, no pet). The purpose of rule 296 is to give a party the right to findings of fact and
conclusions of law following a conventional bench trial on the merits. Willms v. Ams. Tire Co., 190 S.W.
3d 796, 801 (Tex. App.-Dallas 2006, pet. denied). If the trial court fails to file findings of fact and
conclusions of law after a proper request, the failure is presumed harmful unless the record
affirmatively shows the complaining party suffered no injury. Cherne Indus., Inc. v. Magallanes, 763 S.
W.2d 768, 772 (Tex. 1989); Willms, 190 S.W.3d at 801.
Generally, an appellant is presumed harmed if, under the circumstances of the case, he has to guess
at the reason the trial court ruled against him. Willms, 190 S.W.3d at 801-02. However, “fact findings
are not necessary when the matters in question are not disputed.” Barker v. Eckman, 213 S.W.3d
306, 310 (Tex. 2006).
Filing of Findings of Fact and Conclusions of Law by Successor Judge
08-0301
ALLEN LANDERMAN v. STATE BAR OF TEXAS; from Collin County; 5th district (05-07-00332-CV,
247 SW3d 426, 03‑05‑08, pet. denied Oct 2008) as redrafted (disciplinary proceeding, motion for new
trial)
We first consider appellant's fifth issue in which he contends the findings of fact and conclusions of
law were erroneously entered by the successor judge. The Honorable Nathan White was the sitting
judge of the 366th Judicial District Court on December 11, 2006 and heard appellant's petition. Judge
White signed the judgment denying appellant's petition on December 20, 2006. Judge White did not
run for reelection and his term expired on December 31, 2006. See Footnote 1 The Honorable
Gregory Brewer assumed the trial court bench on January 1, 2007.
On January 5, 2007, appellant filed his request for findings of fact and conclusions of law by mail.
Judge Brewer entered findings of fact and conclusions of law on January 12, 2007. Appellant objected
to the entry of findings of fact and conclusions of law by Judge Brewer. Although the docket sheet
reflects Judge White reviewed and approved the findings of fact and conclusions of law on April 5,
2007, Judge White never entered findings of fact and conclusions of law. See Footnote 2 Appellant
contends section 30.002(a) of the Texas Civil Practice and Remedies Code required Judge White,
rather than Judge Brewer, to enter findings of fact and conclusions of law. See Footnote 3
Assuming, without deciding, that Judge White erred in failing to enter findings of fact and conclusions
of law, we conclude any error was harmless.
When properly requested, the trial court has a mandatory duty to file findings of fact. Tex. R. Civ. P.
296, 297; Nevada Gold & Silver, Inc. v. Andrews Indep. Sch. Dist., 225 S.W.3d 68, 77 (Tex. App.-El
Paso 2005, no pet). The purpose of rule 296 is to give a party the right to findings of fact and
conclusions of law following a conventional bench trial on the merits. Willms v. Ams. Tire Co., 190 S.W.
3d 796, 801 (Tex. App.-Dallas 2006, pet. denied). If the trial court fails to file findings of fact and
conclusions of law after a proper request, the failure is presumed harmful unless the record
affirmatively shows the complaining party suffered no injury. Cherne Indus., Inc. v. Magallanes, 763 S.
W.2d 768, 772 (Tex. 1989); Willms, 190 S.W.3d at 801.
Generally, an appellant is presumed harmed if, under the circumstances of the case, he has to guess
at the reason the trial court ruled against him. Willms, 190 S.W.3d at 801-02. However, “fact findings
are not necessary when the matters in question are not disputed.” Barker v. Eckman, 213 S.W.3d
306, 310 (Tex. 2006). Accordingly, “where the facts are undisputed and the only matters presented
on appeal are legal issues to be reviewed de novo, the failure to file findings of fact and conclusions
of law is harmless error.” Rollins v. Am. Exp. Travel Related Servs. Co., 219 S.W.3d 1, 5-6 (Tex. App.-
Houston [1st Dist.] 2006, no pet.).
The evidence regarding the circumstances surrounding appellant's conviction, his conduct since the
completion of his sentence and his prior disciplinary history was undisputed. Therefore, fact findings
were not necessary, Barker, 213 S.W.3d at 310, and any error by Judge White in failing to enter
findings of fact and conclusions of law was harmless. We overrule appellant's fifth issue.
Findings of Fact
In his first issue, appellant contends the trial court's findings of fact do not support the judgment
because the findings are evidentiary in nature and do not reach the ultimate or controlling issues.
Because fact findings were not necessary in this case, we need not consider whether the findings
reached an ultimate or controlling issue. See Keisling v. Landrum, 218 S.W.3d 737, 743 (Tex. App.-
Fort Worth 2007, pet. denied) (court of appeals can “unfind” unnecessary findings of fact). We
overrule appellant's first issue.
Findings of Fact and Conclusions of Law
As a preliminary matter, we will address an argument informally presented in appellant's brief
concerning the absence of findings of fact and conclusions of law. It does not appear that the trial
court filed findings even though appellant originally filed a request for them. However, the record
does not indicate that appellant filed a notice of past due findings of fact and conclusions of
law in accordance with Tex. R. Civ. P. 297. The failure to file a notice of past due findings of fact
waives the right to complain about the trial court's failure to file findings of fact and conclusions of
law. See Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255 (Tex. 1984).
09‑0164 IN THE INTEREST OF L.K.K. AND C.M.K., CHILDREN; from Montgomery County; 11th
district (11-07-00106-CV, ___ SW3d ___, 09‑11‑08)(child support modification, denial of credit for
voluntary overpayment, findings of facts, de minimis amount)
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