Stone Contractors, Inc. D/B/A Infinity Roofing General Contractors v. Jeff Striley and Tracy Striley

• Court: Court of Appeals of Texas
• Decided: December 29, 2020
• Docket: 07-20-00266-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-20-00266-CV

STONE CONTRACTORS, INC. D/B/A INFINITY ROOFING GENERAL CONTRACTORS, APPELLANT

V.

JEFF STRILEY AND TRACY STRILEY, APPELLEES

On Appeal from the 181st District Court Randall County, Texas Trial Court No. 72,912-B, Honorable John B. Board, Presiding

December 29, 2020

ORDER OF ABATEMENT AND REMAND Before PIRTLE and PARKER and DOSS, JJ.

Appellant, Stone Contractors, Inc. d/b/a Infinity Roofing General Contractors,

appeals from the trial court’s Final Take Nothing Judgment in favor of appellees, Jeff

Striley and Tracy Striley. Now pending before this Court is “Appellant’s Motion to Abate

Appeal to Require District Court to Issue Findings of Fact and Conclusions of Law.” We

grant the motion and remand the cause to the trial court for further proceedings.

Infinity Roofing sued the Strileys for breach of contract, conversion, unjust

enrichment, and quantum meruit after the Strileys allegedly failed to pay for the removal and replacement of a residential roof. Following a bench trial, the trial court rendered

judgment that Infinity Roofing take nothing on its claims against the Strileys.1 Infinity

Roofing timely filed a request for findings of fact and conclusions of law and a notice of

past due findings and conclusions. See TEX. R. CIV. P. 296, 297. However, the trial court

did not issue any findings. On appeal, Infinity Roofing requests that we remand the cause

to the trial court to prepare findings of fact and conclusions of law.

Upon a timely request, the trial court in a bench trial must file written findings of

fact and conclusions of law. Nev. Gold & Silver, Inc. v. Andrews Indep. Sch., 225 S.W.3d

68, 77 (Tex. App.—El Paso 2005, no pet.). Because the trial court’s duty to file findings

and conclusions is mandatory, a trial court’s failure to do so when all requests have been

properly made is presumed harmful, unless “the record before the appellate court

affirmatively shows that the complaining party has suffered no injury.” Cherne Indus., Inc.

v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989) (citing Wagner v. Riske, 178 S.W.2d

117, 120 (1944)). When the trial court’s reasons for its judgment are apparent from the

record, the presumption of harm is rebutted. See Rollins v. Am. Express Travel Related

Servs. Co., 219 S.W.3d 1, 5-6 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“where the

facts are undisputed and the only matters presented on appeal are legal issues to be

reviewed de novo, the failure to file findings of fact and conclusions of law is harmless

error.”).

An appellant is harmed, however, if there are two or more possible grounds on

which the trial court could have ruled, and the appellant is left to guess the basis for the

1This matter was tried before the Honorable John B. Board prior to his retirement in August 2020. The new judge of the 181st District Court, the Honorable Titiana D. Frausto, subsequently recused herself from the case. On October 21, 2020, the presiding judge of the Ninth Administrative Judicial Region assigned Judge Board to the matter. 2 trial court’s ruling. Academy Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d

732, 739 (Tex. App.—Houston [14th Dist.] 2000, no pet.). When the trial court’s failure is

harmful, the appropriate remedy is to abate the appeal and direct the trial court to file the

missing findings. AD Villarai, LLC v. Pak, 519 S.W.3d 132, 136 (Tex. 2017) (per curiam);

see TEX. R. APP. P. 44.4 (requiring appellate courts to direct the trial court to remedy any

correctable error that “prevents the proper presentation of a case to the court of appeals”).

Upon review of the record, we find that the matters in question are not undisputed

and that the reasons for the trial court’s ruling against Infinity Roofing are not obvious.

Consequently, we cannot conclude that Infinity Roofing suffered no harm from the trial

court’s failure to issue the requested findings of fact and conclusions of law. See Hamlett

v. Comm’n for Lawyer Discipline, No. 07-16-00256-CV, 2016 Tex. App. LEXIS 11488, at

*4 (Tex. App.—Amarillo Oct. 24, 2016, order) (per curiam) (remanding for findings where

record did not affirmatively show that the appellant suffered no harm as a result of the

trial court’s failure to file the requested findings).

Accordingly, we now abate this appeal and remand the cause to the trial court to

issue findings of fact and conclusions of law in support of its Final Take Nothing

Judgment. See TEX. R. CIV. P. 297; TEX. R. APP. P. 44.4(b). The trial court shall 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 January 28, 2021.

It is so ordered.

Per Curiam