Tarris Woods v. Sandra T. Kenner and Charles E. Twymon, Jr.

• Court: Court of Appeals of Texas
• Decided: March 30, 2015
• Docket: 01-14-01030-CV
• Status: Published

Opinion

ACCEPTED 01-14-01030-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 3/30/2015 12:30:13 PM CHRISTOPHER PRINE CLERK

No. 01-14-01030-CV ________________________________________________________________ IN THE FILED IN 1st COURT OF APPEALS COURT OF APPEALS HOUSTON, TEXAS FOR THE 3/30/2015 12:30:13 PM FIRST SUPREME JUDICIAL DISTRICT OF TEXAS CHRISTOPHER A. PRINE Clerk HOUSTON, TEXAS _________________________________________________________________

TARRIS WOODS, Appellant v. SANDRA T. KENNER AND CHARLES E. TWYMON, JR., Appellees _________________________________________________________________

RESPONSE TO MOTION TO ABATE AND REMAND

To the Honorable Court of Appeals:

Sandra T. Kenner and Charles E. Twymon, Jr., Appellees, oppose the motion

by Appellant, Tarris Woods, to abate this appeal and remand the case for the entry of

additional findings of fact and conclusions of law, for these reasons:

I.

The Clerk’s Record filed with this Court shows no request by the Appellant for

the entry of any additional findings of fact and conclusions of law after the original

findings and conclusions were entered by the trial court. Although the Appellant

filed “objections” to the Appellees’ “proposed” findings and conclusions (Cl. R.

64-67), no request for additional findings or conclusions was made, nor were any

proposed additional findings submitted. Tex. R. Civ. P. 298 allows a party to request

additional findings of fact and conclusions of law after original findings and conclusions are filed. No such request for additional findings having been made in

this case, the Appellant’s motion presents nothing for this Court to review. See also,

Heard v. City of Dallas, 456 S.W.2d 440, 445 (Tex. Civ. App.—Dallas 1970, writ

ref’d n.r.e.) (“the so-called request for additional findings and conclusions does not

in our opinion comply with Rule 298, for ... Rule 298 contemplates that the request

for further additional or amended findings... shall specify the further additional or

amended findings that the party making the request desires the trial court to make and

file.”). See also, Buckeye Retirement Co., LLC, Ltd. v. Bank of Am., N.A., 239

S.W.3d 394, 402 (Tex. App.—Dallas 2007, no pet.)(“A trial court is not required to

make additional findings of fact that are unsupported in the record, that are

evidentiary, or that are contrary to other previous findings.”).

II.

This is an appeal from an order probating a copy of a Will as a muniment of

title, and vacating a previously entered judgment declaring heirship. The trial court’s

findings of fact recite the Decedent’s death, the execution of a Will “with the

formalities and solemnities required,” and that the Decedent's original Will could not

be located after the exercise of reasonable diligence, but that a true copy of the Will

was presented for probate. Then, the trial court concluded that the Appellees had

shown error its Judgment Declaring Heirship, previously entered, and that the copy

-2- of the Decedent's Will was entitled to probate. Cl. R. 68-70.

The trial court’s findings of fact need address only the ultimate facts of the

case, and not the evidentiary underpinnings for those findings. Prague v. Prague, 190

S.W.3d 31, 37 (Tex. App.—Dallas 2005, pet. denied). Moreover, if the trial court’s

findings “properly and succinctly relate the ultimate findings of fact and law

necessary to apprise [the party] of adequate information for the preparation of his or

her appeal,” those findings and conclusions are sufficient. In the Interest of R.D.Y.,

A Child, 51 S.W.3d 314, 322 (Tex. App. —Houston [1 Dist.] 2001, pet denied), Finch

v. Finch, 825 S.W.2d 218, 221 (Tex. App.-Houston [1st Dist.] 1992, no writ). See

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

2003, pet. denied)(“The general rule is that an appellant has been harmed if, under the

circumstances of the case, he has to guess at the reason the trial court ruled against

him. ... If there is only a single ground of recovery or a single defense, an appellant

does not usually have to guess at the reasons for the trial court's judgment.”). The

Appellant provides no explanation as to why the trial court’s findings of fact and

conclusions of law prevent him from properly presenting his case on appeal.

III.

Even if the Appellant’s motion did present something for this Court to review,

that review would be dependent upon whether the trial court’s failure to do whatever

-3- the Appellant was requesting amounted to reversible error, which in turn would

require a determination of whether the Appellant was unable to effectively present the

merits of his appeal. Those issues require at least some consideration of the merits

of the appeal, so they would not be subject disposition on a motion preliminary to the

briefing of the merits.

For the reasons stated, Sandra T. Kenner and Charles E. Twymon, Jr.,

Appellees, pray that the Court deny the Appellant’s Motion to Abate and Remand this

appeal.

Respectfully submitted,

/s/Thomas W McQuage Thomas W. McQuage Post Office Box 16894 Galveston, Texas 77552-6894 (409) 762-1104 (409) 762-4005 (FAX) State Bar No. 13849400 mcquage@swbell.net ATTORNEY FOR APPELLEES

CERTIFICATE OF SERVICE I certify that a copy of the foregoing instrument was delivered to counsel for the Appellees on the 30th day of March, 2015, by serving Douglas T. Godinich, through the Efile.TX Courts electronic service.

/s/Thomas W McQuage

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