Philip Floyd v. MMWKM Advisors, LLC, Series ERD I and Elias Dragon

• Court: Court of Appeals of Texas
• Decided: November 29, 2022
• Docket: 05-22-01147-CV
• Status: Published

Opinion

Order entered November 29, 2022

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-22-01147-CV

PHILIP FLOYD, Appellant

V.

MMWKM ADVISORS, LLC, SERIES ERD I AND ELIAS DRAGON, Appellees

On Appeal from the 471st Judicial District Court Collin County, Texas Trial Court Cause No. 471-02423-2021

ORDER

This appeal follows the trial court’s confirmation of an arbitration award.

On August 2, 2022, the day after the trial court signed the order of confirmation,

appellant filed a request for findings of fact and conclusions of law. See TEX. R.

CIV. P. 296 (request due within twenty days of judgment). The trial court failed to

file the requested findings and conclusions within twenty days as required by rule

297 of the rules of civil procedure, see id. 297, and, on August 29, 2022, appellant

filed a notice of past due findings and conclusions, see id. (past-due notice due within thirty days of original request). To date, the trial court has not filed any

findings and conclusions, and appellant now moves to abate the appeal and direct

the trial court to do so. Appellees oppose the motion by response filed November

28, 2022.

When, as here, the appealed order recites the trial court considered evidence,

and a request for findings of fact and conclusions of law and past-due notice are

timely filed, the trial court must file written findings and conclusions. See id. 296,

297; Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); see also

Phillips v. McNeill, 635 S.W.3d 620, 625 (Tex. 2021). Accordingly, we GRANT

appellant’s motion and ORDER the Honorable Andrea K. Bouressa, Presiding

Judge of the 471st Judicial District Court, to make findings of fact and conclusions

of law in accordance with Texas Rule of Civil Procedure 297 no later than

December 9, 2022. We further ORDER any request for specified additional or

amended findings or conclusions be made by December 19, 2022 and any

additional or amended findings and conclusions, or written verification additional

findings are not appropriate, be filed by December 29, 2022. The trial court’s

findings of fact and conclusions of law, any request for additional or amended

findings and conclusions, and any additional or amended findings and conclusions

or verification shall be filed in a supplemental clerk’s record with this Court no

later than January 6, 2023. We DIRECT the Clerk of this Court to send a copy of this order by

electronic transmission to Judge Bouressa; Collin County District Clerk Lynne

Finley; and, the parties.

We ABATE the appeal to allow the trial court an opportunity to comply

with this order. The appeal will be reinstated no later than January 13, 2023.

/s/ BONNIE LEE GOLDSTEIN JUSTICE