Marcelle Guimaraes v. Christopher Scott Brann

• Court: Court of Appeals of Texas
• Decided: August 23, 2016
• Docket: 01-16-00093-CV
• Status: Published

Opinion

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: In the Matter of the Marriage of Marcelle Guimaraes and Christopher Scott Brann and in the Interest of NSB

Appellate case number: 01-16-00093-CV

Trial court case number: 2012-53837

Trial court: 308th District Court of Harris County

Appellant, Marcelle Guimaraes, has filed an Agreed Motion to Abate the Appeal for the trial court to enter findings of fact and conclusions of law. The record shows that Appellant requested findings of fact and conclusions of law on November 23, 2015. See TEX. R. CIV. P. 296. Appellant further filed a notice of past-due findings of fact and conclusions of law on December 21, 2015. See id. 297. Appellant filed a notice of appeal on February 3, 2016. See TEX. R. APP. P. 26.1(a). Because the trial court has not issued findings of fact or conclusions of law, appellant moved on July 27, 2016, for an order abating this appeal and requiring the trial court to issue findings of fact and conclusions of law. Because appellant timely filed a request for findings of fact and conclusions of law and a notice of past due findings, the trial court had a mandatory duty to file findings of fact and conclusions of law and erred by failing to do so. See TEX. R. CIV. P. 296, 297; TEX. FAM. CODE ANN. § 6.711 (West 2006); Nationwide Capital Funding, Inc. v. H. Epps. Co., No. 13–04–308–CV, 2006 WL 1030105, at *2 (Tex. App.—Corpus Christi Apr. 20, 2006, no pet.) (mem. op.); Elec. Power Design, Inc. v. R.A. Hanson Co., 821 S.W.2d 170, 171 (Tex. App.—Houston [14th Dist.] 1991, no writ), overruled on other grounds by In re Gillespie, 124 S.W.3d 699 703–04 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding). Accordingly, we grant appellant’s agreed motion to abate this appeal. We therefore abate this appeal and remand this case to the trial court. On remand, we order the trial court to file findings of fact and conclusions of law within 30 days of the date of this order. See TEX. R. APP. P. 44.4(b); Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 773 (Tex. 1989); Elec. Power Design, 821 S.W.2d at 171. We further order the trial court clerk to file a supplemental clerk’s record containing the trial court’s findings of fact and conclusions of law within 45 days of the date of this order.

Judge’s signature: _/s/ Chief Justice Sherry Radack_  Acting individually  Acting for the Court

Date: August 23, 2016