Dov Avni Kaminetzky v. Harris County Appraisal District

Opinion

ACCEPTED 14-14-00665-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 5/4/2015 12:39:45 PM CHRISTOPHER PRINE CLERK

No. 14-14-00665-CV ______________________________________________________________________________ In the FILED IN Court of Appeals 14th COURT OF APPEALS For the HOUSTON, TEXAS Fourteenth District of Texas 5/4/2015 12:39:45 PM At Houston CHRISTOPHER A. PRINE Clerk ______________________________________________________________________________

No. 2013-12988 In the 234th District Court of Harris County, Texas ______________________________________________________________________________

DOV K. AVNI Appellant,

v.

HARRIS COUNTY APPRAISAL DISTRICT, Appellee ______________________________________________________________________________

APPELLEE’S OPPOSITION TO APPELLANT’S MOTION TO VACATE ______________________________________________________________________________

TO THE HONORABLE COURT OF APPEALS OF TEXAS:

COMES NOW THE HARRIS COUNTY APPRAISAL DISTRICT, Appellee, by and

through its undersigned counsel, and files this, its Opposition to Appellant’s Multi-Prong Motion

to Take Judicial Notice of Trial Court Record and Vacate Order Denying Abatement (the

“Motion to Vacate”) and in support of its Opposition states as follows:

Overview

1. Following his failure to file a brief after multiple extensions of time, appellant now seeks

to abate the appeal to request findings of fact and conclusions of law from the trial court.

However, any error by the trial court in failing to file findings of fact and conclusions of law in

1 the underlying case is harmless, as it has not prevented Appellant from presenting its case to the

Court of Appeals. Appellant’s Motion to Vacate should be denied.

Procedural History

2. On April 16, 2015 Appellant filed a Motion to Abate, seeking permission to abate the

instant appeal so he could compel the trial court to enter findings of fact.1 Appellee filed and

opposition to that motion and the Court of Appeals entered an order denying the motion.

3. Appellant next filed the Motion to Vacate presently before the court.

4. In the underlying case, the trial court issued a final judgment on Wednesday, April 30,

2014. Pursuant to Rule 296 of the Texas Rules of Civil Procedure, appellant had until Thursday,

May 20, 2014 to file his request. Appellant filed a timely request for findings of fact and

conclusions of law on May 20, 2014.

5. The trial court did not make any findings of fact or conclusions of law on or before June

9, 2014. Pursuant to Rule 297 of the Texas Rules of Civil Procedure, Appellant had until June

19, 2014 to file his Notice of Past Due Findings of Fact and Conclusions of Law (“Notice”).

6. Appellant filed a letter on June 18, 2014, requesting Past Due Findings of Fact and

Conclusions of Law. Appellant therefore made a timely request and complied with Rule 297 of

the T.R.C.P. No reference to the June 18, 2014 filing was made in Appellant’s prior motion to

abate.

7. The failure to note this filing was an error on the part of the Appellee in its prior

opposition. Appellee agrees that Appellant timely requested the Past Due Findings of Fact and

Conclusions of Law.

1 Appellant states that this Motion to Abate is opposed. Appellant made no effort to contact Appellee to confer regarding this Motion to Abate prior to filing the motion.

2 8. However, despite the Appellant’s timely filing of both a request and notice of past due

findings with the trial court is harmless error, as this error has not prevented Appellant fro

properly presenting his case to the court of appeals. See Graham Central Station, Inc. v. Pena,

442 S.W.3d 261, 263 (Tex. 2014); Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996)(“A trial

court’s failure to make findings is not harmful error if ‘the record before the appellate court

affirmatively shows that the complaining party suffered no injury.’”), citing Cherne Indus. V.

Magallanes, 763 S.W.2d 768, 772 (Tex. 1989).

9. In his motions for an extension of time to file his brief, Appellant asserts that, in addition

to the Clerk’s Record, the Reporter’s Record includes “ALL exhibits offered and admitted” at

the bench trial. Appellant does not explain the significance of findings that the trial court did not

make and how they relate to some issue on appeal. There is no indication that Appellant has

suffered any harm in presenting his appeal to this court. See Key Energy Services, LLC. v. Shelby

County Appraisal District, 428 S.W.3d 133, 150 (holding that reversal was not required where

appellant did not explain the significance of findings and how they relate to issue on appeal).

Appellant’s Motion to Vacate should be denied.

WHEREFORE, premises considered, Appellee requests that the honorable Court of

Appeals deny Appellant’s Motion to Vacate.

Respectfully submitted,

By: /s/ L. Susan Herrera L. Susan Herrera State Bar No.09530160 Matthew P. Crouch State Bar No. 24072481 Department of Legal Services Harris County Appraisal District P. O Box 920975 Houston, Texas 77292-0975 Telephone: (713) 957-7497 Fax: (713) 957-5219

3 sherrera@hcad.org; mcrouch@hcad.org ATTORNEYS FOR DEFENDANT, HARRIS COUNTY APPRAISAL DISTRICT

CERTIFICATE OF SERVICE

I hereby certify that on May 4, 2015, a true and correct copy of the foregoing Motion to Dismiss was served via: telecopy certified mail, return receipt requested hand delivery

to Dov K. Avni, 150-B Forest Drive, Jericho, NY 11753.

/s/ L. Susan Herrera L. Susan Herrera

4 CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that the forgoing Appellee’s Opposition is a computer-generated document containing 813 words, including textboxes, footnotes, endnotes, headings, and/or quotations. I certify that I am relying upon the word count provided by the computer program that I used in preparing this document.

/s/ L. Susan Herrera L. Susan Herrera