in the Interest of B.B.J.

• Court: Court of Appeals of Texas
• Decided: August 20, 2015
• Docket: 07-15-00291-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-15-00291-CV

IN THE INTEREST OF B.B.J.

On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. 2013-508,395, Honorable Jim Bob Darnell, Presiding

August 20, 2015

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant, Joshua Epps, appeals the trial court's judgment entered on April 24,

2015. On May 8, 2015, Epps filed a Request for Findings of Fact and Conclusions of

Law and on June 1, 2015, he filed a request for past due findings and conclusions.

The trial court has failed to file same. On August 12, 2015, Epps filed an “Unopposed

Motion of Appellant to Abate Appeal and to Direct the District Court to Make Findings

of Fact and Conclusions of Law.” In the interest of judicial economy, we abate this appeal and remand the cause to the trial court with instructions to make and file

Findings of Fact and Conclusions of Law.1

Rule 296 of the Texas Rules of Civil Procedure provides that in any case tried

in the district court without a jury, any party may request written findings of fact and

conclusions of law within twenty days after the judgment is signed. Epps timely

requested findings of fact and conclusions of law. Rule 297 provides that the trial

court shall file its findings and conclusions within twenty days after a timely request is

filed. The trial court's findings and conclusions were due on May 28, 2015. None

were filed. Thereafter, appellant, pursuant to Rule 297, filed a "Notice of Past Due

Findings of Fact and Conclusions of Law."2 The deadline for the trial court to file its

findings and conclusions was extended to forty days from the date the original request

was due, i.e., June 17, 2015. As stated before, the trial court has failed to file

findings of fact and conclusions of law.

Upon compliance by a party with Rules 296 and 297, the trial court is required

to make and file findings of fact and conclusions of law. See Cherne Industries,

Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). The failure of a trial court to

respond to all timely requests is presumed harmful unless the record shows that an

appellant has suffered no injury. Id. As a general rule, an appellant has been

harmed if he has to guess at the reason the trial court ruled against him. See

1 As long as the same judge presides in the trial court, abatement is the preferred remedy. See Larry F. Smith, Inc. v. The Weber Co., 110 S.W.3d 611, 616 (Tex. App.—Dallas 2003, pet. denied). Another option is reversal and remand. See id. 2 Rule 297 provides that a notice of past due findings be filed within thirty days after the original request. In this case, that deadline was June 8, 2015.

2 Larry F. Smith, Inc. v. The Weber Co., 110 S.W.3d 611, 614 (Tex. App.—Dallas

2003, pet. denied).

We now abate this appeal and remand the cause to the trial court with

instructions to make and file findings of fact and conclusions of law in support of its

judgment. The trial court is directed to cause its findings and conclusions to be

included in a supplemental clerk's record to be filed with the Clerk of this Court no

later than September 16, 2015. Appellant’s brief is due no later than October 16,

2015.

It is so ordered.

Per Curiam