CAUSE NO. 14-14-00556-CV

In The

Court of Appeals

For The 

14

th District of Texas 

________________________________________ 

YVONNE VILLALON 

 Appellant,

v. 

MARIA S. GALINDO 

 Appellee.

________________________________________ 

On Appeal from the 281st Judicial District Court

Harris County, Texas 

Trial Court No. 2011-39836 

________________________________________ 

Appellant’s Sur-Reply to Appellee’s Reply-Brief 

________________________________________ 

Mestemaker, Straub & Zumwalt 

David K. Mestemaker

dkm@msandz.com 

SBN: 13974600

3100 Timmons Lane 

Suite 455 

Houston, Texas 77027

Telephone: (713) 626-8900 

Facsimile: (713) 626-8910 

Counsel for Appellant 

Oral Argument Requested

 

ACCEPTED

14-14-00556-cv

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

5/14/2015 4:13:22 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 5/14/2015 4:13:22 PM CHRISTOPHER A. PRINE Clerk
-2-

Table of Contents

Index of Authorities............................................................................................ 3

Argument................................................................................................................. 4

Did the trial court commit reversible error when it ruled against

Plaintiff/Appellant’s premises liability claim?......................................................... 4

Did the trial court commit reversible error when it implicitly rendered 

judgment against Plaintiff/Appellant’s negligence claim? ...................................... 9

Did the trial court commit reversible error when it refused to issue Findings

of Fact and Conclusions of Law?........................................................................... 10

Did the trial court commit reversible error when it denied Plaintiff/Appellant’s

motion for new trial, when no response opposing same was filed ......................... 12

Conclusion ............................................................................................................. 13

Prayer .................................................................................................................... 14

Certificate of Service ............................................................................................ 14
-3-

INDEX OF AUTHORITIES

Cases 

Black’s Law Dictionary 1233

 (5th Ed. 1979)................................................................................11

Black v. Dallas Cty. Child Welfare Unit

 835 S.W.2d 626, 630 n. 10 (Tex. 1992)...................................................10

Craddock v. Sunshine Bus Lines, Inc.

 133 S.W.2d 124, 126 (Tex. 1939).........................................................12

Frommer v. Frommer

 981 S.W.2d 811, 813-14 (Tex. App.--Houston [1st Dist.] 1998, pet. dism’d).4, 5, 6

Gonzalez v. Razi

 338 S.W.3d 167, 175 (Tex. App.--Houston [1st Dist.] 2011, pet. denied)............6

Guridi v. Waller

 98 S.W.3d 315, 316-17 (Tex. App.--Houston [1st Dist.] 2003, pet. dism’d).........6

Hill v. Hill

 971 S.W.2d 153, 157 (Tex. App.--Amarillo 1998, no pet.).......................4, 5, 6

In re C.A.B.

 289 S.W.3d 874, 881 (Tex. App.--Houston [14th Dist.] 2009, no pet.)...............6

Kaminetzky v. Dosohs I, Ltd.

 14-14-00410-CV, (Tex. App.--Houston [14th Dist.] 2015, no writ history)........11

Tenery v. Tenery

 932 S.W.2d 219, 30 (Tex. 1996)...........................................................11

Rules and Statutes

Rule 193.6...........................................................................................6, 8

Rule 296 TRCP......................................................................................11

Rule 297 TRCP......................................................................................10

Rule 3.3.2 of the Harris County Local Rules......................................................12

Texas Rules of Civil Procedure....................................................................5, 7

Tex. R. Civ. P. 299a...........................................................................4, 5, 6, 7
-4-

ARGUMENT

Did the trial court commit reversible error when it ruled against 

Plaintiff/Appellant’s premises liability claim? 

1. Yes. Appellee is correct that a trial judge shall not make Findings of Fact and 

Conclusions of Law in a final judgment. TRCP Rule 299a is quite specific in this regard. 

“Findings of fact shall not be recited in a judgment.” Id. Appellee cites Hill v. Hill, 971 

S.W.2d 153, 157 (Tex. App. – Amarillo 1998, no pet.) in her brief to suggest that the 

Judge’s failure to issue findings of Fact and Conclusions of Law despite being twice 

requested to do so is somehow excusable. Not true, as shown in the following paragraphs 

and as was demonstrated in Appellant’s brief which Appellant incorporates herein as if 

fully set forth on these pages.

2. Appellee’s Response fails to address the issues presented in Appellant’s brief on 

point of error No. 1: those being the dangerous condition of the stairs as evidenced by the 

unrefuted testimony of the Plaintiff and the photographs; the scintilla of evidence 

standard used to prove preponderance of the evidence; how the term unreasonably 

dangerous is defined; foreseeability; and the risk of harm versus the cost of repairs. 

Given that Appellee chose to not respond to any of these issues, all of them are admitted 

as true for the purposes of this appeal. 

3. The First Court of Appeals has twice considered the purpose of Rule 299a. In the 

case of Frommer v. Frommer, 981 S.W.2d 811, 813-14 (Tex. App. -- Houston [1st Dist.]

1998, pet. dism’d) the Court distinguished Hill when it wrote: “While we neither approve 
-5-

or disprove (sp) of the reasoning in Hill, we believe the purpose of Rule 299a is clear. 

Findings of fact and conclusions of law shall not be recited in a judgment.” Id. at 813. 

4. Appellee suggests that because there is no conflict with the findings and 

conclusions and the comments the trial judge wrote in her final judgment, that the 

comments in the judgment should be given effect. Not so. First, Findings of Fact and 

Conclusions of Law were requested in the underlying case; twice. (CR 12, 18 and 22). 

Second, in the trial court’s Order regarding Findings of Fact and Conclusions of Law (CR 

32) she wrote: “However if findings are necessary, the essential findings and conclusions 

of law may be found in the Final Judgment.” (CR 32)

5. This statement by the trial judge is the exact opposite of what Rule 299a states and 

is contrary to the holding in Frommer. The Appellee and the trial judge want to hide 

behind the use of the term “Proposed” versus “Requested” as letting the trial court off the 

hook in having to prepare and file Findings of Fact and Conclusions of Law and thus 

there is no conflict. That paper thin unjustified refusal to follow the intent and meaning 

of the Texas Rules of Civil Procedure issue has been extensively briefed in Appellant’s 

brief and will be expanded upon here.

6. The failure to abide by Rule 299a renders the language in the Final Judgment a 

nullity. “Essentially, Pedro argues that because no findings of fact were requested, there 

is no conflict with those in the judgment, and, therefore, they should be given effect. We 

reject this argument.” Frommer at 814. The First Court went on to explain their 

reasoning. “We believe the purpose behind Rule 299a is to ensure that parties have the 

opportunity to work within the adversarial process to properly preserve their claims on 
-6-

appeal.” Id. Appellant was denied this Due Process right by the trial court’s actions, so it 

should be reversed and a judgment in the full amount requested by the Appellant should 

be rendered.

7. The First Court revisited this issue of how Rule 299a works in the case of Guridi 

v. Waller, 98 S.w.3d 315, 316-17 (Tex. App. – Houston [1st. Dist.] 2003, pet. dism’d.). 

Therein, the Court again considered Hill v. Hill and reaffirmed its holding in Frommer

when it wrote: “We disagree with Hill and continue to follow this Court’s reasoning set 

forth in Frommer.” Id. at 317. The Court went on to opine that without any separately 

filed findings of fraud “we may not presume a finding of fraud.” Id. Similarly, without 

any specific findings on Plaintiff’s claims, the Court may not presume they lack merit. 

When this Court looks at the totality of the case and finds that the Appellee failed to 

answer any discovery and further, failed to respond to the motion for new trial and failed 

to attend the hearing, the appropriate remedy is to find for the Appellant and reverse and 

render a decision in favor of her.

8. Furthermore, in the cases cited by Appellee of Gonzalez v. Razi, 338 S.w.3d 167, 

175 (Tex. App. – Houston [1st Dist.] 2011, pet. denied) and In re C.A.B., 289 S.w.3d 874, 

881 (Tex. App. – Houston [14th Dist.] 2009, no pet.), the Courts opined that findings of 

fact found in a final judgment will be allowed as long as they did not conflict with those 

issued in a separate document. Id. at 175 and 881 respectively. Such was not the case 

here as the trial court refused to issue findings. A reading of the trial judge’s final 

judgment shows (CR 21) there is nothing mentioned regarding Defendant violating 

TRCP 193.6, nothing recited regarding Plaintiff’s negligence claim, nothing recited about 
-7-

the slippery condition of the stairs, and no basis for her conclusion that the evidence 

failed to show that “the sloping stairs at the premises posed an unreasonable risk of 

harm.” (CR 21). 

9. So, if the trial judge’s final judgment is allowed to stand as is, then Appellant will 

be denied her constitutional right to know on what basis this trial judge ruled against her. 

Furthermore, holding against the Appellant could well encourage other trial judges of 

similar mindsets to hide behind the log and write whatever they want in a final judgment

claiming it to be the equivalent of findings of fact and conclusions of law. In fact, the 

trial judge in the instant case thumbed her nose at Rule 299a when she wrote in what 

purports to be her findings of fact and conclusions of law when she wrote: “However, if 

findings are necessary, the essential findings of fact and conclusions of law may be found 

in the Final Judgment.” (CR 32). This is directly opposite of the intent and purpose of 

the Texas Rules of Civil Procedure. 

10. Next, Appellee was mistaken when she wrote that the Court made no ruling on the 

issue of Appellee never answering any discovery. First, Appellee’s counsel attempted to 

explain his failure to answer the Interrogatories that were propounded to the Appellee 

more than two and a half years before trial as follows: “I mean, it is basically a situation 

if you look at the substance of the interrogatories – when I realized that we had – we had 

purposely not answered them originally.” (RR pg. 8, lns. 16-19) Thus, the Appellee 

intentionally refused to comply with the rules of discovery until a week before the April 

23, 2014 trial; a trial setting that had been re-set at the behest of Appellee’s counsel from 

January 27, 2014, as shown on the trial court’s Order dated January 27, 2014. (CR 15) 
-8-

11. “And when I realized that these had not been answered, I answered them at that 

particular time last week.” (RR pg. 8, lns. 21-13) Appellee’s counsel failed to explain 

any good reason of any kind why he hadn’t looked at the file prior to the January, 2015 

trial setting nor why he forgot that he had intentionally not answered the discovery 

requests two and a half years earlier. 

12. Appellee’s counsel restricted what his issues were when he said: “The only area 

that my client might offer some testimony is in reference to the notice area of the defect 

she’s alleging.”; not to offer testimony about the stairs. (RR pg. 11, lns. 4-6) It is unclear 

as to what “notice area” he is referencing, but notice was amply supplied when 

Appellant’s boyfriend told Appellee’s husband about the dangerous condition of the 

stairs and even offered to help pay for them. (RR pg. 24, lns. 11-18)

13. Following this representation, the Court stated: “Okay. So, according to Rule 

193.6: A party who fails to make, amend, or supplement a discovery response in a timely 

manner may not introduce into evidence any material information that was not timely 

disclosed or offer the testimony of a witness, other than a named party, who was not 

timely disclosed unless the Court finds one of two things.” (RR pg. 11, lns. 7-13) So, the 

trial court did make a ruling which was in compliance with what the rule requires; no 

civil trials by ambush.

14. In spite of Appellee counsel’s promise to only ask questions on notice, he did not 

plead notice as an issue, even in the amended original answer that counsel filed on April 

15, 2014. (CR 16-17). The only affirmative defense pertinent to this appeal found in the 

amended original answer was contributory negligence. (CR 16, para. 4)
-9-

15. Appellee did not plead lack of notice nor did she plead that the stairs were not 

unreasonably dangerous (CR 16-17) nor did she answer any discovery alleging anything,

so the basis of the Court’s decision is not supported by Defendant’s pleadings or the 

evidence. The Appellee agreed that it was her responsibility as the landlord to rebuild the 

stairs. (RR pgs. 66-67, lns. 17-25 and 1-4) The Appellee was never asked if the stairs 

were dangerous, only if she agreed that the photos showed them to be sloping and 

slippery. (RR pgs. 64, lns. 2-4). Despite what Plaintiff’s photo Exhibit No. 10 clearly 

shows, the Appellee would not admit that the stairs are sloped. (RR pg. 64, lns. 2-3) The 

Appellee would not admit that the porch had a hole in it that can easily be seen in 

Plaintiff’s Exhibit No. 11. (RR pg. 63, lns. 4-24) So, the inability to honestly answer an 

obvious question took away any credibility that the Appellee might have had.

16. The empirical evidence supporting the finding that the stairs were unreasonably 

dangerous is overwhelmingly in favor of the Appellant; from the photos that depict the 

sloping, uneven, slippery stairs (PX 10, 11); to the Plaintiff’s testimony describing their 

condition and her accident (RR pgs. 24, 26, 27 lns. 11-18, 12-14, 22-25 and 1-2 

respectively); to the Plaintiff having offered to help repair the dangerous stairs (RR pgs. 

23-24, lns. 22-25, 1-13 respectively) before the accident happened. 

Did the trial court commit reversible error when it implicitly rendered judgment 

against Plaintiff/Appellant’s negligence claim?

17. The importance of this cause of action not having been adjudicated by the trial

court is two-fold. First, the failure of the trial court to mention Appellant’s cause of 

action in the judge’s final judgment (CR 21) nor in the judge’s supposed findings of fact 
-10-

Order (CR 32) for simple negligence demonstrates how sloppy the trial court was with 

regard to addressing all of the claims pled by Appellant. Second; the failure of Appellee’s 

counsel to address Appellant’s negligence claim during the trial indicates how little 

attention he paid to the Plaintiff’s claims also. Thus, Plaintiff’s negligence claim still 

lives. 

Did the trial court commit reversible error when it refused to issue Findings of Fact 

and Conclusions of Law?

18. The trial court chose to put form over substance in its clever denial of Appellant’s 

request for findings of fact because the request was entitled “Proposed” versus “Request” 

(CR 32). “Plaintiff’s ‘Proposed Findings’ do not meet the requirements for a Request for 

Findings and did not provide proper notice to the Court.” (CR 32). There was no 

question that the findings were timely requested by Appellant (CR 12) and it is worth 

noting that Appellee’s counsel titled his request as “proposed” also (CR 18). The 

obvious reason why the trial court refused to issue findings of fact in the underlying case 

is because without them, the appellate courts “will imply all necessary fact findings in 

support of the trial court’s judgment.” Black v. Dallas Cty. Child Welfare Unit, 835 

S.W.2d 626, 630 n. 10 (Tex. 1992) 

19. Furthermore, there is no question that Appellant timely filed her Notice of Past 

Due Findings with the trial court on May 23, 2014 (CR 22) in compliance with Rule 297 

TRCP. The trial judge’s minimal attempt to comply with the rules resulted in the Order 

found at CR 32; hardly the format usually seen for findings of fact. In the trial court’s 

Order there is no delineation of what are findings of fact and what are conclusions of law; 
-11-

nor is what is written therein complete. Also, the Order refers back to the final judgment 

in contravention of Rule 296 TRCP. All in all, not sufficient.

20. Contrary to Appellee’s comment that a Rule 296 request must be entitled 

“Request”, Rule 296 uses the word “shall”; a word that ordinarily means mandatory. 

Black’s Law Dictionary 1233 (5th. Ed. 1979). However, the dictionary goes on to construe 

“shall” as “merely permissive or directory (as equivalent to ‘may’), to carry out the 

legislative intention and in cases where no right or benefit to any one depends on its 

being taken in the imperative sense...” Id. at 1233. More than one hundred (100) cases 

were read to see if any had ever been decided upholding a trial court’s refusal to issue 

findings of fact based on a misnomer in the title. None were found. So, the legislative 

intent is carried out by using either the word “proposed” or “requested” because no right 

or benefit to anyone depends on its being taken in the imperative sense.

21. What is important is that the trial court’s not filing findings of fact is presumed to 

be harmful. “Error is harmful if it prevents an appellant from properly presenting a case 

to the appellate court.” Tenery v. Tenery, 932 S.W.2d 219, 30 (Tex. 1996). That is the 

case here. Appellant is in a vacuum as to what reasoning, if any, the trial court relied 

upon to render its decision. So, Appellant moves this Court to reverse the trial court and 

render a decision in favor of the Appellant to correct the trial court’s abuse of discretion 

or remand the case to the trial court with instructions for the trial court to issue findings 

of fact as was recently so ordered in Kaminetzky v. Dosohs I, LTD, 14-14-00410-CV, 

(Tex. App. – Houston [14th Dist.] 2015, no writ history). 
-12-

Did the trial court commit reversible error when it denied Plaintiff/Appellant’s 

motion for new trial, when no response opposing same was filed?

22. A close reading of Appellee’s argument on this point of error reveals that the 

Appellee approached the motion for new trial the same way she handled the discovery 

requests propounded to her during the discovery phase of the case. That is to say, that 

Appellee did nothing; did not oppose the motion for new trial and did not show up at the 

hearing for the motion for new trial. 

23. At the hearing the same arguments that are being made here at the appellate level 

were made, without opposition, to the trial judge. (RR motion for new trial pgs. 4-5, lns. 

14-25 and 1-21) The unrefuted evidence and arguments of counsel made at the motion for 

new trial gave rise to the same quixotic result from the trial judge as that which occurred 

in the trial; that is, denied, for no good reason. (CR 33). 

24. While the trial judge noted in her Order on the motion for new trial that she is 

aware of Rule 3.3.2 of the Harris County local rules, she failed to make any finding that 

the failure to respond to the motion for new trial equaled no opposition. Had the trial 

judge made that finding she would have had no choice but to grant the motion for new 

trial and clearly, the trial judge did not want to reverse herself. 

25. In her appellate brief, Appellee offers no explanation as to why she did not 

respond to the motion; she offers no good reason why she did not respond or to not show 

up at the hearing; no Craddock factors, nothing at all. For this reason, Appellant moves 

this Court to reverse the trial judge and render a judgment for Appellant for $25,350.25, 
-13-

the sum of the amounts requested during Plaintiff’s closing argument (RR pg. 79-80, lns. 

21-25 and 1-22) or removed for a new trial. 

CONCLUSION

26. Appellant / Plaintiff Yvonne Villalon again urges this Court to reverse and render 

a decision in favor of Appellant on her premises liability claim, because there is much 

more than scintilla of evidence that Appellee knew before the accident that the stairs were 

unreasonably dangerous, because they were slippery, sloped and uneven, and because 

Appellant told Appellee and Appellant’s boyfriend and offered to help repair them. 

Appellant was a tenant and Appellee had a duty to repair the stairs to make the premises 

reasonably safe for Appellant/Invitee. Appellee did not make the repairs that her husband 

said he would make and as a direct consequence, Appellant was badly injured. 

27. Appellant / Plaintiff Yvonne Villalon further urges this Court to reverse and render

a decision in favor of Appellant, because there is more than scintilla of evidence that 

Appellee was negligent in that she had a duty, to provide Appellant a reasonably safe set 

of stairs; a duty that she breached. The stairs in question were not safe, because they 

were glossy, slick and severely sloping and the cost of repairing them was very small 

when compared with the risk of injury from a fall. The Appellee breached her duty when 

she did not repair the steps (again even though her husband said he would), and as a 

direct consequence, Appellant was badly injured.

28. Should this Court decide that a new trial is the fairest way of deciding these issues,

Appellant moves this Court to reverse the trial court and remand the case to the trial court 

for a new trial.
-14-

29. For all of these reasons, Appellant / Plaintiff moves this Court to reverse and 

render a decision in her favor or in the alternative, to remand the case back to the trial 

court for a new trial.

PRAYER

For these reasons, Appellant asks this Court to reverse and render a decision on 

her case, or in the alternative, remand the matter back to the trial court for a new trial.

Respectfully submitted,

MESTEMAKER, STRAUB & ZUMWALT

By: /s/ David K. Mestemaker 

 David K. Mestemaker

 dkm@msandz.com

 abocanegra@msandz.com

 TBN 13974600

 FBN 14410

 3100 Timmons Lane, Suite 455

 Houston, Texas 77027

 (713) 626-8900 Telephone

 (713) 626-8910 Telecopier

ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

I hereby certify a true and correct copy of the foregoing instrument was served on: 

Robert Cruz

Attorney at Law 

7614 Park Place Blvd.

Houston, Texas 77087

In compliance with Rule 9.5, Tex. R. App. P., on this 14

th day of May, 2015.

/s/ David K. Mestemaker 

 David K. Mestemaker