Opinion
14-23-00414-CV
10-31-2023
LEILA OSHMAN HURT, Appellant v. ALLEN HURT, Appellee
On Appeal from the 247th District Court Harris County, Texas Trial Court Cause No. 2021-57130
Panel Consists of Justices Wise, Zimmerer, and Poissant.
ABATEMENT ORDER
PER CURIAM
After a non-jury trial, appellant brings this appeal from a judgment signed June 2, 2023. Appellant timely filed their notice of appeal on June 12, 2023. The trial court filed findings of fact and conclusions of law on July 17, 2023. On July 24, 2023, appellant timely filed a request for additional or amended findings of fact and conclusions of law pursuant to Texas Rules of Civil Procedure 298. See Tex. R. Civ. Pro. 298. The trial court did not file additional or amended findings of fact and conclusions of law. On October 11, 2023, appellant asked this court to order the trial court to file additional or amended findings of fact and conclusions of law. Appellant's motion is granted in part.
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). Additional findings are not required if the original findings of fact and conclusions of law "properly and succinctly relate the ultimate findings of fact and law necessary to apprise the party of adequate information for the preparation of his or her appeal." See Maxwell v. Maxwell, No. 14-20-00298-CV, 2021 WL 4956881, (Tex. App.-Houston[14th Dist.] Oct. 26, 2021, pet. denied).
Appellant avers in its motion that they cannot properly present or frame its issues without the additional 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, if any, 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 grant or deny appellant's request for additional or amended findings of fact and conclusions of law on or before December 4, 2023. Any additional findings or conclusions shall be included in a supplemental clerk's record to be filed with this court on or before January 4, 2024.
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 if the trial court's additional or amended findings and conclusions of law are filed in this court. This 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 so ORDERED.