Harwood v. Gilroy

Full title: John HARWOOD, Appellant v. Brian GILROY, Appellee

Court: Fourth Court of Appeals San Antonio, Texas

Date published: Dec 20, 2016

No. 04-16-00652-CV (Tex. App. Dec. 20, 2016)

Opinion

No. 04-16-00652-CV

12-20-2016

John HARWOOD, Appellant v. Brian GILROY, Appellee

Rebeca C. Martinez, Justice

From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2016CI11327
Honorable Antonia Arteaga, Judge Presiding

ABATEMENT ORDER

The court has reviewed "Appellee's Motion to Abate Appellee's Brief Pending Submission of Trial Court's Findings of Fact and Conclusions of Law" as well as "Appellant's Response In Opposition to Appellee's Motion to Abate Appellee's Brief Pending Submission of Trial Court's Findings of Fact and Conclusions of Law." Section 27.007 of the Texas Civil Practice and Remedies Code provides:

(a) At the request of a party making a motion under Section 27.003, the court shall issue findings regarding whether the legal action was brought to deter or prevent the motiving party from exercising constitutional rights and is brought for an improper purpose, including to harass or to cause unnecessary delay or to increase the cost of litigation.

(b) The court must issue findings under Subsection (a) not later than the 30th day after the date a request under that subsection is made.

TEX. CIV. PRAC. & REM. CODE ANN. § 27.007 (West 2015). The clerk's record reflects that appellant made a request for findings of fact and conclusions of law on September 1, 2016; however, the clerk's record does not contain any findings made by the trial court.

Because, pursuant to section 27.007, the trial court has a mandatory duty to make findings upon proper request, and because appellant properly requested the findings in this case, we GRANT appellee's motion. We order this matter abated and remanded to the trial court for preparation of findings in accordance with section 27.007. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.007. We order the trial court to make the findings and record them either in writing or orally at a hearing in open court with all counsel present. The trial court shall make its findings on or before January 9, 2016. If the trial court makes written findings, it shall deliver them to the trial court clerk, and if so delivered, we order the trial court clerk to prepare a supplemental clerk's record containing the trial court's written findings and file it in this court on or before fifteen days from the date the trial court completes its findings. If the trial court decides to hold a hearing and make its findings on the record in open court, the court reporter is ordered to record them and to file a reporter's record of the hearing in this court on or before fifteen days from the date of the hearing. After the findings are filed in this court, we will reinstate the matter and set a due date for appellant to file an amended brief.

We further order the clerk of this court to serve a copy of this order upon the trial court, the trial court clerk, the court reporter, and all counsel.

/s/_________

Rebeca C. Martinez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 20th day of December, 2016.

/s/_________

Keith E. Hottle

Clerk of Court