in the Estate of Rickey Ray Allen

• Court: Court of Appeals of Texas
• Decided: September 18, 2020
• Docket: 13-20-00289-CV
• Status: Published

Opinion

NUMBER 13-20-00289-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE ESTATE OF RICKEY RAY ALLEN, DECEASED

On Appellant’s Amended Motion to Abate and Remand.

ORDER OF ABATEMENT Before Chief Justice Contreras and Justices Longoria and Perkes Order Per Curiam

This cause concerns a dispute over the estate of Rickey Ray Allen. 1 Appellant Lisa

Allen, Rickey’s surviving spouse, opposed the third amended application to probate

Rickey’s alleged will filed by appellee Kenneth Lindsay. Lindsay stated in his live

application that the original executed will could not be found and sought to probate an

unsigned copy of the alleged will. See TEX. EST. CODE ANN. § 256.156. After a trial to the

bench, the trial court ruled in favor of Lindsay. Lisa requested findings of fact and

1This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. conclusions of law, and the trial court issued them on April 8, 2020. See TEX. R. CIV. P.

297. Lisa then requested additional findings of fact and conclusions of law, but the trial

court rejected her request. See TEX. R. CIV. P. 298.

Lisa has filed an amended motion asking us to abate this case and to instruct the

trial court to issue additional findings of fact concerning: (1) the cause of the

nonproduction of Rickey’s alleged will, including the reasonable diligence undertaken to

attempt to produce the alleged will; and (2) the trial court’s conclusion of law that Rickey

never revoked the alleged will. See TEX. EST. CODE ANN. § 256.156(b)(1) (providing that

probating a will not produced in court requires proof of “the cause of the nonproduction of

[the] will . . ., which must be sufficient to satisfy the court that the will cannot by any

reasonable diligence be produced”); Woods v. Kenner, 501 S.W.3d 185, 197 (Tex. App.—

Houston [1st Dist.] 2016, no pet.) (“When an original will cannot be located and was last

seen in the testator’s possession, a presumption arises that the testator destroyed the will

with the intent of revoking it.”). Lisa argues these findings are necessary because she is

otherwise forced to guess the basis for two of the trial court’s conclusions of law crucial

to her appeal. We agree.

We note that Lisa requested these additional findings after the trial court issued its

findings of fact and conclusions of law. See TEX. R. CIV. P. 298 (providing that a party

may request specified additional findings and that the trial court “shall file any additional

or amended findings and conclusions that are appropriate”); see also Robles v. Robles,

965 S.W.2d 605 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (“The failure to

request additional findings of fact and conclusions of law constitutes a waiver on appeal

of the trial court’s lack of such findings and conclusions.”). Further, upon review of the

2 record, we note that there are multiple possible bases for both of the trial court’s

conclusions of law. Therefore, we conclude that Lisa is harmed by the omission of the

trial court’s findings of fact regarding the issues noted above. See Dominguez v.

Castaneda, 163 S.W.3d 318, 326 (Tex. App.—El Paso 2005, pet. denied) (“In an appeal

of a nonjury trial, findings are specifically and meaningfully tied to appropriate standards

of appellate review and are therefore truly beneficial to appellate review.”); Anzaldua v.

Anzaldua, 742 S.W.2d 782, 784 (Tex. App.—Corpus Christi–Edinburg 1987, writ denied)

(“When a timely and proper request for findings of fact and conclusions of law have been

made and the trial court fails to comply with such request, injury to the complaining party

is presumed unless the contrary appears.”); see also In re Marriage of Edwards, 79

S.W.3d 88, 4 (Tex. App.—Texarkana 2002, no pet.) (“[T]he trial court need only enter

findings, or additional findings, on ultimate or controlling issues, rather than on mere

evidentiary issues.”); Finch v. Finch, 825 S.W.2d 218, 221 (Tex. App.—Houston [1st Dist.]

1992, no writ) (noting that “[a]n ultimate fact issue is one that is essential to the right of

action” and that “[s]uch an issue seeks a fact that would have direct effect upon the

judgment”); Willmore v. Alcover, No. 13-16-00180-CV, 2018 WL 1417556, at *4 (Tex.

App.—Corpus Christi–Edinburg March 22, 2018, no pet.) (mem. op.) (noting that error is

harmful if it prevents an appellant from properly presenting the issues for appellate

review). This error and harm may be corrected by the trial court if we remand the case

with instructions to enter such findings. See White v. Pope, 664 S.W.2d 105, 107 (Tex.

App.—Corpus Christi–Edinburg 1983, no writ).

Accordingly, we GRANT Lisa’s amended motion, ABATE this appeal, and

REMAND to the trial court with instructions to enter the findings of fact underlying its

3 conclusions that (1) Rickey never revoked the will; and (2) the alleged will could not be

produced by reasonable diligence, including the reason why the will could not be

produced. Those matters shall be included in a supplemental clerk’s record to be filed

with the clerk of this Court. The supplemental record shall be filed with this Court within

30 days from the date of this order. Furthermore, we withdraw our grant of Lisa’s second

motion for extension of time to file her appellate brief that we granted on September 10,

2020, which was submitted in the alternative to the amended motion to abate, and dismiss

the second motion for extension of time as moot.

The appeal will be reinstated upon receipt of the supplemental record and upon

further order of this Court.

IT IS SO ORDERED.

PER CURIAM

Delivered and filed the 18th day of September, 2020.