COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Cornelis P. Willig v. Marcela Gutierrez Diaz

Appellate case number: 01-15-00073-CV

Trial court case number: 2014-16063

Trial court: 309th District Court of Harris County

Appellant, Cornelis P. Willig, filed suit in the trial court against appellee, Marcela 

Gutierrez Diaz, seeking a divorce and division of the parties’ community property. 

Appellee responded by filing a special appearance, arguing that she has insufficient 

contacts with Texas for the trial court to exercise personal jurisdiction over her and that 

appellant’s petition “cannot go forward” because a court in the Netherlands had

previously obtained jurisdiction over a divorce action filed in that country by appellee. 

Appellee also filed a plea in abatement, contending that she had previously filed a 

divorce case in the Netherlands involving the same parties and issues as appellant’s 

petition filed in the trial court below and that the case below should therefore be abated. 

Appellee further argued that neither appellant nor appellee met the domiciliary and 

residency requirements necessary for the trial court to obtain jurisdiction over this case.

The trial court held a hearing regarding appellee’s special appearance and plea for 

abatement on September 26, 2014. On October 31, 2014, the trial court signed an order 

sustaining appellee’s “Special Appearance Challenging Personal Jurisdiction” and 

dismissing the case.

Appellant requested findings of fact and conclusions of law on November 14, 

2014. See TEX. R. CIV. P. 296. Appellant further filed a notice of past-due findings of 

fact and conclusions of law on December 5, 2014. See id. 297. Appellant filed a notice 

of appeal on January 19, 2015. See TEX. R. APP. P. 26.1(a). Because the trial court has 

not issued findings of fact or conclusions of law, appellant moved on March 31, 2015, for 

an order abating this appeal and requiring the trial court to issue findings of fact and 

conclusions of law.
Because the trial court held a hearing wherein it heard evidence on the issue of 

personal jurisdiction and decided this case, and because appellant timely filed a request 

for findings of fact and conclusions of law and a notice of past due findings, the trial 

court had a mandatory duty to file findings of fact and conclusions of law and erred by 

failing to do so. See TEX. R. CIV. P. 296, 297; Nationwide Capital Funding, Inc. v. H. 

Epps. Co., No. 13-04-308-CV, 2006 WL 1030105, at *2 (Tex. App.—Corpus Christi 

Apr. 20, 2006, no pet.) (mem. op.); Elec. Power Design, Inc. v. R.A. Hanson Co., 821 

S.W.2d 170, 171 (Tex. App.—Houston [14th Dist.] 1991, no writ), overruled on other 

grounds by In re Gillespie, 124 S.W.3d 699 703–04 (Tex. App.—Houston [14th Dist.] 

2003, orig. proceeding). Further, the failure of the trial court to respond to a proper 

request for findings of fact and conclusions of law is presumed harmful, unless the record 

before the appellate court affirmatively demonstrates that the complaining party has 

suffered no injury. See Nationwide Capital Funding, 2006 WL 1030105, at *2; Elec. 

Power Design, 821 S.W.2d at 171. “The test for determining harm in such a case is 

whether the circumstances of the particular case would force an appellant to guess the 

reason or reasons that the trial court ruled against it.” Nationwide Capital Funding, 2006 

WL 1030105, at *2. And, “[i]n situations where there are two or more possible grounds 

on which the trial court might have ruled, the inference of harm cannot be defeated.” 

Elec. Power Design, 821 S.W.2d at 171.

Here, we cannot say that the record affirmatively discloses that appellant suffered 

no injury. The trial court’s order states only that there is another cause pending in the 

Netherlands and “that Marcela Gutierrez Diaz’s Special Appearance Challenging 

Personal Jurisdiction is SUSTAINED and this cause is hereby DISMISSED.” The order 

does not state whether the trial court dismissed the case based on a lack of personal 

jurisdiction over appellee, on grounds of international comity, or on some other basis. 

See also Acain v. Internat’l Plant Serv., LLC, 449 S.W.3d 655, 660–61 (Tex. App.—

Houston [1st Dist.] 2014, pet. filed). Further, appellant testified at the hearing and both 

appellant and appellee presented evidence to the trial court at the hearing. Therefore, we 

are not able to determine, by looking at the record, on what evidence the trial court based 

its decision. See Elec. Power Design, 821 S.W.2d at 171.

Accordingly, we grant appellant’s motion to abate this appeal. We therefore abate 

this appeal and remand this case to the trial court. On remand, we order the trial court to 

file findings of fact and conclusions of law within 30 days of the date of this order. See

TEX. R. APP. P. 44.4(b); Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 773 (Tex. 

1989); Elec. Power Design, 821 S.W.2d at 171. We further order the trial court clerk to 

file a supplemental clerk’s record containing the trial court’s findings of fact and 

conclusions of law within 45 days of the date of this order.

Judge’s signature: /s/ Sherry Radack

  Acting individually  Acting for the Court

Date: April 16, 2015