law-findings-of-fact-after-judge-left-bench | findings of fact and conclusions of law |
WHEN THE TRIAL JUDGE LEAVE WITHOUT FILING PROPERLY REQUESTED
FINDINGS OF FACTS AND CONCLUSIONS OF LAW
In their first issue, appellants asserted the trial court erred by failing to file the timely requested findings of fact
and conclusions of law. In their second issue, appellants asserted Judge Elrod's successor, Judge Kerrigan,
could not issue the requested findings of fact and conclusions of law because she did not preside over the trial
and argued the case must be remanded for a new trial. We previously addressed both of these issues in the
order abating this appeal.
Initially, we agreed with appellant on their first issue and abated the appeal and ordered Judge Elrod's successor
to enter the requested findings of fact and conclusions of law. See Cherne Indus., Inc. v. Magallanes, 763
S.W.2d 768, 772-73 (Tex. 1989); Electronic Power Design, Inc., v. R.A. Hanson Co., Inc., 821 S.W.2d 170, 171
(Tex. App.-Houston [14th Dist.] 1991, no writ).
Citing binding precedent from this Court, we also addressed appellants' second issue in the abatement order. In
the abatement order we stated:
A judge who succeeds a judge who has resigned subsequent to rendering judgment is authorized to make
findings of fact and conclusions of law in the case. Lykes Bros. S. S. Co., Inc. v. Benben, 601 S.W.2d 418, 420
(Tex. Civ. App. 1980, writ ref'd n.r.e.) (holding that due process did not require findings and conclusions be made
by judge who heard evidence and rendered judgment). Rule 18 of the Texas Rules of Civil Procedure allows
successor judges to dispose of unresolved matters and enter various orders so long as the successor judge
does not render judgment without hearing evidence. See Tex. R. Civ. P. 18. see also Fidelity & Guar. Life Ins.
Co. v. Pina, 165 S.W.3d 416, 421 (Tex. App.-Corpus Christi 2005, no pet.) (noting that rule 18 operates in
conjunction with section 30.002 of the remedies code, which allows the successor of a deceased judge to enter
findings of fact and conclusions of law for cases pending at the death of his predecessor)
Therefore, we conclude the error in this case is remediable. See Tex. R. App. P. 44.4. Accordingly we abate
the appeal and direct the trial court to correct the error. See Zeiba v. Martin, 928 S.W.2d 782, 786 (Tex. App.-
Houston [14th Dist.] 1996, no writ).
Therefore, in abating the appeal and remanding to the trial court for the entry of findings of fact and conclusions
of law, we sustained appellants' first issue and overruled appellants' second issue requesting a new trial.
Eventually, the trial court entered the findings of fact and conclusions of law, which brings us to appellants' third
issue challenging the sufficiency of the evidence.
2900 Smith, Ltd v. Constellation Newenergy, Inc. (Tex.App.- Houston [14th Dist.] Nov. 5, 2009)(Substitute
Opinion by Anderson) (sworn account suit, electricity service, dispute over amount due, findings of facts not filed
before judge left bench, abatement for successor judge to make findings)
AFFIRMED IN PART DISMISSED IN PART: Opinion by Justice John Anderson
Before Chief Justice Hedges, Justices Anderson and Seymore
14-08-00061-CV 2900 Smith, Limited and Katie Pham v. Constellation Newenergy, Inc.
Appeal from 190th District Court of Harris County
Trial Court Judge: Jennifer Elrod Walker
CAUSES OF ACTION ELEMENTS | HOUSTON CASE LAW | TEXAS COURT OF APPEALS OPINIONS
HOUSTON OPINIONS HOME PAGE