Lucidalia Chavez v. Walter Chavez

Opinion

ACCEPTED 14-14-00481-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 7/8/2015 11:14:13 AM CHRISTOPHER PRINE CLERK

No. 14-14-00481-CV

________________________________________________________________________ FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS IN THE FOURTEENTH COURT OF 7/8/2015 11:14:13 AM APPEALS CHRISTOPHER A. PRINE HOUSTON, TEXAS Clerk

________________________________________________________________________

LUCIDALIA CHAVEZ,

Appellant, V.

WALTER CHAVEZ

Appellee.

________________________________________________________________________

APPELLEE’S EMERGENCY VERIFIED MOTION TO ABATE AND REMAND TO MAKE FINDINGS OF FACT AND CONLCUSIONS OF LAW ________________________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT:

Appellee files this Emergency Motion to Abate and Remand to Make

Findings of Fact and Conclusions of Law. In support of this motion,

Appellee shows the following: I. MOTION TO ABATE AND REMAND TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW Appellee filed his first Motion to Abate and Remand on March 12,

2015 on the ground that, although timely requested, the trial court did not

file findings of facts and conclusions of law. (Exhibit A.) The Court

granted that motion on March 24, 2015 and ordered the trial court to “file

findings of fact and conclusions of law on or before April 13, 2015.”

(Exhibit B.) The Court further ordered that the trial court clerk file “findings

of fact and conclusions of law . . . in a supplemental clerk’s record to be

filed with [the Court of Appeals] on or before May 8, 2015.” Id.

The trial court did not file the findings on or before April 13, 2015 as

ordered. (See Supplemental Clerk’s Record filed on June 2, 2015). Nor did

the trial court clerk file a supplemental record on or before May 8, 2015.

(See File.) The trial court clerk did nonetheless file a supplemental record

on June 2, 2105. Id. However, that supplemental record does not contain

findings of fact and conclusions of law and therefore does not comply with

the Court’s order. Id.

In the meantime, on May 20, 2015, Appellant filed a Motion to

Reinstate (without stating any grounds). (Exhibit C.) The Court denied that

motion on the ground Appellee “had requested a status conference with the

2 trial court, to be held on July 2, 2015, for the purpose of determining why

the court has not filed the findings and conclusions, and whether more time

is required.” (Exhibit D.)

Regardless, and perhaps because the trial court clerk filed a

supplemental record on June 2, 2015, the Court reinstated this appeal sua

sponte on June 18, 2015 (prior to the time of the status conference).

As opposed to reasserting his motion to abate, Appellee planned on

discussing the matter with Appellant at the July 2, 2015 status conference,

after learning the reason for the delay in filing the findings. However, on

June 30, 2015, Appellant’s counsel notified Appellee she had an emergency

hearing in Brazoria County on July 2, 2015 at 9:00 a.m. and asked for a reset

of the status conference. (Exhibit E.) Appellee agreed to reset the status

conference to July 16, 2015 to accommodate counsel’ schedule. (Exhibit F.)

In addition, on July 6, 2015, the undersigned counsel received a call

from Mrs. Madeline Russell, Court Coordinator of the 309th District Court,

asking counsel to send an electronic courtesy copy of Appellee’s proposed

findings of fact and conclusions of law and informing him that Judge Dean

was working on the findings. Counsel complied with Mrs. Russell’s request.

For the sake of judicial efficiency and to put the Court and the parties

in the best position to achieve a prompt resolution to this matter (e.g.,

3 without the necessity of a mandamus proceeding, if possible), Appellee

respectfully MOVES that the Court again abate this appeal until one week

after the July 16, 2015 status conference and remand to the trial court to give

court an opportunity to remedy the situation.

II. REQUEST FOR EMERGENCY CONSIDERATION Because the Court reinstated this appeal on June 18, 2015 (even

though the clerk’s supplemental record did not comply with the Court’s

order) the deadlines for briefs arguably began running on that day. See Tex.

R. App. P. 38.6(a)(1). Therefore, Appellee respectfully requests that the

Court consider this Motion on an emergency basis.

If it is the Court’s opinion that the deadlines for briefs did not begin

running on Jun 18, 2015, this request is withdrawn.

WHEREFORE PREMISES CONSIDERED, Appellee, Walter

Chavez, PRAYS that the Court GRANT his Emergency Verified Motion to

Abate and Remand to Make Findings of Fact and Conclusions of Law.

Respectfully Submitted,

/s/ Robert A. Whitley Robert A. Whitley Bar No. 24056522 12621 Featherwood Dr. Suite 282

4 Houston, Texas 77034 Email: robert@whitlegal.com Phone: (281) 741-5225 Fax: (281) 741-9549 Attorney for Walter Chavez

5 CERTIFICATE OF CONFERENCE

I hereby certify that on July 7, 2015, I contacted the office of Patricia

Billings. Mrs. Billings was not available, but I explained to the Legal Assistant

that I was filing this motion and asked whether Mrs. Billings would oppose it. The

Legal Assistant told me she would ask Mrs. Billings and get back to me. As of the

filing of this Motion, I have not heard back from Mrs. Billings or her Legal

assistant.

/s/ Robert A. Whitley Robert A. Whitley

CERTIFICATE OF SERVICE

I hereby certify that on July 8, 2015 a true and correct copy of the

foregoing Motion to Abate was served on the persons below by the method

indicated.

Patricia Garcia Billings 107 W. First St., Suite 201 Humble, Texas 77338 Tel. (281)540-1529 Fax. (281)540-1535 Counsel for Appellant Via E-mail and Facsimile

6 VERIFICATION

STATE OF TEXAS $ $ COUNTY OF HARRIS $

BEFORE ME, the undersigned authority, personally appeared Robert A. Whitley, who

stated, upon oath, that the statements made in the foregoing instrument are within his personal

knowledge and are true and correct.

Ro rt A. Whitley

suBScRrFqD AND swoRN ro BEFORE ME "n tlulg 6, zOts , uv ?oh,"t I hlhrt\fn.

ASHTON EIIZAEEIH WHITTEY Notory Public, Stote of lexos My Commission Expires Notary Public, State of Te Moy 22, Z0lg No. 14-14-00481-CV

________________________________________________________________________

IN THE FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS ________________________________________________________________________

________________________________________________________________________

APPELLEE’S OPPOSED MOTION TO ABATE AND REMAND TO MAKE FINDINGS OF FACT AND CONLCUSIONS OF LAW AND ALTERNATIVE REQUEST FOR EXTENSION OF TIME TO FILE BRIEF ON THE MERITS ________________________________________________________________________

Appellee files this Opposed Motion to Abate and Remand to Make

Findings of Fact and Conclusions of Law and Alternative Motion for

Extension of Time to File Brief on the Merits. In support of this motion,

Appellee shows the following:

Ex. A II. MOTION TO REMAND TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW Appellant (Petitioner below) timely filed a Request for Findings of

Fact and Conclusions of Law and subsequently filed a timely Notice of Past

Due Findings of Fact and Conclusions of Law. (CR 186-87, 191-92.) The

trial court did not file the findings of fact and conclusions of law.

If the trial court does not file findings of fact and conclusions of law,

it is presumed harmful error unless the record affirmatively shows the

appellant suffered no harm. Tenery v. Tenery , 932 S.W.2d 29, 30 (Tex.

1996.) In a complicated case with disputes facts, the inference or harm

cannot be overcome. Randall v. Jennings, 788 S.W.2d 981, 932 (Tex.

App.—Houston [14th Dist.] 1990, no writ). This case is complicated and

many of the facts bearing on the controlling issues are in dispute. See, e.g.,

Appellant’s Brief: Issues Presented Nos. 1 and 2 (arguing the trial court

abused its discretion in naming Appellee as the conservator with the right to

designate the children’s primary residence and in purportedly awarding

100% of the net community estate to Appellee).

Generally, a court of appeals must not rule on an appeal when the trial

court’s failure to act prevents the proper presentation of a case to the court of

appeals and the trial court can correct its action. Tex. R. App. P. 44.4(a).

Ex. A When this circumstance is present, the court of appeals must direct the trial

court to correct the error. Id., 44.4(b). Under the circumstances presented

here, a court of appeals should abate the appeal and remand the case to the

trial court and direct the trial court make the findings of fact and conclusions

of law. See Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 773 (Tex.

1989).

Here a record of the trial was made and filed with the Court of

Appeals on October 10, 2014. See Court File. Therefore, the error is

curable because the trial court has a record from which to render findings of

fact and conclusions of law. 1

Moreover, even though she opposes this motion, Appellant argues in

her brief that abating the appeal and remanding the case to the trial court for

findings of fact and conclusions of law is the appropriate remedy.

(Appellant’s Brief, P. 24-25.) It is unclear why Appellant has now changed

her position.

Appellee respectfully MOVES that the Court of Appeals abate this

appeal, remand the case to the trial court, and direct the trial court to make

and file findings of fact and conclusions of law within thirty (30) days of the

order thereon. 1 In addition, Appellee will file with the trial court the attached Proposed Findings of Fact and Conclusions of Law (subject to any modifications Appellee deems necessary before actually filing) within three days of the Court granting this motion. (Exhibit A.)

Ex. A II. ALTERNATIVE MOTION FOR EXTENTION OF TIME TO FILE BREIF Appellee’s Brief on the Merits is due on April 1, 2015. See Court

File. While Appellee believes his motion to abate and remand the case to

the trial court for findings of fact and conclusions of law should be granted,

in the event the Court does not grant the motion, Appellee will need

additional time for his brief because the Court’s ruling will bear on which

issues Appellee will address and how he will address them.

Therefore, in the even the Court denies Appellee’s Motion to Abate

and Remand to the Trial Court for Findings of Fact and Conclusions of Law,

and in the alternative, Appellee MOVES for a thirty (30) day extension of

time for which to file his brief.

Chavez, PRAYS that the Court GRANT his Motion to Abate and Remand to

Make Findings of Fact and Conclusions of Law or, in the alternative

GRANT his Motion for Extension of Time to File Brief on the Merits of

thirty (30) days.

Ex. A Bar No. 24056522 12621 Featherwood Dr. Suite 282 Houston, Texas 77034 Email: robert@whitlegal.com Phone: (281) 741-5225 Fax: (281) 741-9549 Attorney for Walter Chavez

Ex. A CERTIFICATE OF CONFERENCE

I hereby certify that on or about March 12, 2015, Appellant’s Counsel

Patricia Garcia Billings indicated in an e-mail that she opposes this motion.

I hereby certify that on March 18, 2015 a true and correct copy of the

foregoing Motion for Extension of Time was served on the persons below by

the method indicated.

Patricia Garcia Billings 107 W. First St., Suite 201 Humble, Texas 77338 Tel. (281)540-1529 Fax. (281)540-1535 Counsel for Appellant Via Facsimile

Ex. A Motion Granted; Order filed March 24, 2015.

In The

Fourteenth Court of Appeals ____________

NO. 14-14-00481-CV ____________

LUCIDALIA CHAVEZ, Appellant

V.

WALTER CHAVEZ, Appellee

On Appeal from the 309th District Court Harris County, Texas Trial Court Cause No. 2012-60726

ABATEMENT ORDER

After a non-jury trial, appellant Lucidalia Chavez brings this appeal from a final decree of divorce signed March 17, 2014. Appellant timely requested findings of fact and conclusions of law and timely reminded the trial court when the findings and conclusions were overdue. Our record does not contain the requested findings and conclusions.

On January 29, 2015, appellant filed a brief complaining of the trial court’s failure to make and file findings of fact and conclusions of law. On March 18,

Ex. B 2015, appellee filed a motion to abate the appeal so that the trial court may make and file findings of fact and conclusions of law. Appellee avers in the motion that he cannot properly respond to appellant’s issues without the findings and conclusions. Because the trial judge continues to serve on the district court, the error in this case is remediable. See Tex. R. App. P. 44.4.

We GRANT appellee’s motion, ABATE the appeal, and ORDER the trial court to file findings of fact and conclusions of law on or before April 13, 2015. Within ten days after the trial court has filed findings of fact and conclusions of law, any party may file a request for specified additional or amended findings or conclusions. The trial court shall file any additional or amended findings that are appropriate within ten days after such a request is filed. The trial court’s findings of fact and conclusions of law, and any additional and amended findings or conclusions, shall be included in a supplemental clerk’s record to be filed with this court on or before May 8, 2015.

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 when the supplemental record ordered herein is filed in this court. The 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. Appellant’s brief shall be due thirty days after the appeal is reinstated.

PER CURIAM

Ex. B CAUSE NUMBER 14-14-000481-CV

IN THE FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS

WALTER CHAVEZ,

Appellees.

MOTION TO REINSTATE APPEAL

PATRICIA GARCIA BILLINGS

107 W. FIRST ST., SUITE 201

HUMBLE, TEXAS 77338

TEL: (281) 540-1529

FAX: (281) 540-1535

Ex. C TO THE HONORABLE FOURTEENTH COURT OF APPEALS:

This Motion to Reinstate Appeal is brought by LUCIDALIA CHAVEZ, Petitioner,

through undersigned counsel, who shows in support:

I. This Honorable Court granted Appellee's Motion to Abate and requested the trial

court file Findings of Fact and Conclusions of Law by April 13, 2015.

2. Further, the supplemental record was due by May 8, 2015 to include Findings of

Fact and Conclusions of Law and any additional and amended findings and

conclusions.

LUCIDALIA CHAVEZ requests that this Court enter its order reinstating LUCIDALIA

CHAVEZ's appeal.

Respectfully submitted

The Law Office of Patricia Billings 107 W. First St. Suite 201 Humble, Texas 77338 Tel: (281) 540-1529 Fax: (281) 540-1535

'---- ,..1cia Garcia Billings State Bar No. 24071984 patricia@lawyerbillings.com Attorney for LUCIDALIA CHAVEZ

Ex. C Affidavit

Patricia Garcia Billings, attorney for LUCIDALIA CHAVEZ, appeared in person before

me today and stated under oath that she is above the age of eighteen years and is fully competent

to make this affidavit; that she is the attorney for LUCIDALIA CHAVEZ in this case and, as

such, has authority to make this affidavit; that she has read the above Motion to Reinstate

Appeal; and that every statement contained in it is within her personal knowledge and is true and

correct.

'------_..,'"'111ant

SIGNED under oath before me on _....';-M -'-,-::..,,t:....,:;;,,,_,,.,._. ...:'------'--,=Y- _

Anthony Gallegos Notary Public, State of Texas My Convnlsson Expires Norary'9," #r April 4, 2019

I certify that a true copy of the above was served on each attorney of record or party in

accordance with the Texas Rules of Civil Procedure on May 20, 2015.

Pa · ia Garcia Billings '------A -:'.ttorney for LUCIDALIA CHAVEZ

Ex. C Motion Denied; Continuing Abatement Order filed June 2, 2015

On Appeal from the 309th District Court Harris County, Texas Trial Court Cause No. 2012-60726

CONTINUING ABATEMENT ORDER

After a non-jury trial, appellant Lucidalia Chavez brings this appeal from a final decree of divorce signed March 17, 2014. Appellant timely requested findings of fact and conclusions of law and timely reminded the trial court when the findings and conclusions were overdue. Our record does not contain the requested findings and conclusions.

On January 29, 2015, appellant filed a brief complaining of the trial court’s failure to make and file findings of fact and conclusions of law. On March 18,

Ex. D 2015, appellee filed a motion to abate the appeal so that the trial court could make and file findings of fact and conclusions of law. Appellee avers in the motion that he cannot properly respond to appellant’s issues without the findings and conclusions. Because the trial judge continues to serve on the district court, the error in this case is remediable. See Tex. R. App. P. 44.4.

On March 24, 2015, this court granted appellee’s motion, abated the appeal, and ordered the trial court to file findings of fact and conclusions of law on or before April 13, 2015. This court’s order also permitted any party to file a request for specified additional or amended findings or conclusions within ten days of the filing of the trial court’s findings of fact and conclusions of law. The trial court was ordered to file any additional or amended findings that are appropriate within ten days after such a request is filed. The trial court’s findings of fact and conclusions of law, and any additional and amended findings or conclusions, were ordered to be included in a supplemental clerk’s record to be filed with this court on or before May 8, 2015.

On May 20, 2015, appellant filed a motion to reinstate the case because the findings of fact and conclusions of law had not been filed. Appellee filed a response in which he opposed appellant’s motion, and notified this court that he had requested a status conference with the trial court, to be held on July 2, 2015, for the purpose of determining why the court has not filed the findings and conclusions, and whether more time is required.

We deny appellant’s motion to reinstate the appeal. The parties shall notify this court of the status of the findings of fact and conclusions of law within one week of the status conference with the trial court.

The appeal will be reinstated on this court’s active docket when the

Ex. D supplemental record ordered herein is filed in this court. The 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. Appellant’s supplemental brief shall be due thirty days after the appeal is reinstated.

Ex. D 3E-JUN-?815 tE : E4 Fr^ om : PRTRICIR BILLIT{GS a8154A1535 To: e8174L9549 Fasezl"rL

FAX THE LAW OFFtcE oF ParnrctA GaHcrA B rLLtNGs, pLLc L07 W. First Street, Suite 201 Hurnbte Texas .77338 Phone; (2BL) 540 15Zg Fax: (ZB 1) 540 153 5 patric ia@tawyerb i [[i n gs,com

To; Robert Whitley From: Patricia Billings Fax: (281) 74L-9549 Re: Cause l4-74-ooo487-cv; L- chavez vs. w. chavez; rn the l4th Court of Appeals Houston, Texas, Pages: 1_ including cover sheet Date: June 30, 2015 ursent t ] Please Reply tX] For Revi€w t I

Dear Mr. Whitley:

Tha.nk vou_tor your response to our facsimile regarding the status conference set for July z, 2015 in the 309rH. Please be advised that Mrs. Billingi rras in emergency temporary orders neaiirrg previously scheduled for July 2, 2015 at 9:00 a.m., in BrazoriJCounty tlrat mornilg.

our office will be notifying the court of the status of Mrs. Billings that morning. We apotogize for the inconvenience.

Thank you for your tirne and attention in this matter.

Sincerely,

ez Ito Patricia G. tsilf in This fa;< fansmission and/or the documents accompanying it may contain confidential information belonging to the sender. lf you are not tnb inrenieo recipient, you are hereby notified that any disclosure, copying, distriuution or the taking of any action in retiance on lhe contents of this intormaiibn-is strictry prohibited. "rf-you have received this transmis-sion in error,.please notify this offi6e'immediately by ielephone to arrange for return of the documents,

Ex. E 06/30/ 2015 11:05 P.001

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Ex. E From: Robert Whitley Sent: Wednesday, July 01, 2015 11:18 AM To: 'Paralegal' Cc: 'Patricia Billings'; admin@lawyerbillings.com Subject: RE: Cause No: 14-14-000481-CV; L. Chavez vs. W. Chavez; Status Conference moved to 7/16/15

Thanks and confirmed for July 16, 2015 a 9:00 a.m.

Robert A. Whitley Blasingame Whitley, Attorneys at Law 12621 Featherwood Dr. Suite 282 Houston, TX 77034 (281) 741-5225 (281) 741-9549 fax

CONFIDENTIALITY NOTICE: This E-mail (including attachments) is covered by the Electronic Communications Act, 18 U.S.C. 2210-2521, is confidential and may be legally privileged. This E-mail contains information that is private, confidential, or is protected by the attorney-client work product doctrines, and is intended only for the use of the individual(s) named herein. If you are not the intended recipient, be advised that unauthorized use, disclosure, copying, distribution, or the taking of any action in reliance on this information is strictly prohibited. If you have received this E-mail in error, please immediately notify the sender by replying to this E-mail, and delete the original message and any attachments. Thank you.

From: Paralegal [mailto:paralegal@lawyerbillings.com] Sent: Wednesday, July 01, 2015 11:35 AM To: robert@whitlegal.com Cc: Patricia Billings; admin@lawyerbillings.com Subject: Cause No: 14-14-000481-CV; L. Chavez vs. W. Chavez; Status Conference moved to 7/16/15

I spoke with Sandy in the 309TH and the status conference set for tomorrow morning has been moved to July 16, 2015 at 9:00 a.m.

Additionally, Judge Dean was not going to be present tomorrow morning, so the status conference has not be moved anyway.

Thank you for your attention and consideration in this matter.

Best Regards,

Ana Jimenez Paralegal The Law Offices of Patricia G. Billings 107 West 1st Street, Suite 201 Humble, Texas 77338 Tel: 281-540-1529 Fax: 281-540-1535

Ex. F This communication is confidential and may be protected by the attorney-client, work product and/or other privileges. Any improper use or dissemination of this e-mail without the consent of the originator is strictly prohibited. If you are not the above named recipient and you have received this e-mail in error, you should not review the text of this message or otherwise disseminate, distribute or copy this e-mail. Please immediately notify us of the error via a reply to this e-mail and then permanently delete this message from your system. Although this e-mail is believed to be free of any virus or other defect, it is the responsibility of the recipient to ensure that it is virus-free, and no responsibility is accepted by the sender or The Law Office of Patricia G. Billings for any damage arising from its use.

Ex. F