1 John T. B oyd, Chief Justice (Ret.), S eventh Court of A ppeals, sitting by

assignment . Tex. Gov ’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003). NO. 07-02-0149 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E APRIL 7, 2003

______________________________ LUBBOCK COUNTY CENTRAL A PPRAISAL DISTRICT, APP ELLANT V. JESSE CONTRAREZ, APPELLEE

_________________________________ FROM THE 140 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 93-730,705; HON ORABLE JIM B OB DAR NELL, JUD GE

_______________________________ Before REAVIS and CAMPB ELL, JJ., and BOYD, S.J. 1
OPINION2 All statutory references will be to the Texas Tax CodeAnn. (Vernon 2002), unless otherwise specifically noted. 2 Thisappeal arises from ajudicial foreclosure by the Lubbock C entral Appraisal Distri ct(the Dis trict), pursuant to Chapter 34 of the Tex Code, 2 of tax liens on two tracts of lan d ow ned by Jes se C ont rarez. A f ore clos ure saleof t he p rop ert y w as h eld in Decem ber

1999. The property w

as sold for an am ount m ore than sufficientto satisfy the Distri ct’s liens, as well as the federal tax liens on it. As re quired by s ection 34 .03(a)(1) , the District C lerk notified C ontrarez that t here w

ere exce ss proceeds to w hich he was entitled being held by her office. In the notice, the clerk recited the statutory procedures for obtaining the excess proceeds of a tax sale.
On Novem ber 27, 2001, Con trarez consulte d with attorney S amuel B rown S ilverman aboutclaiming the excess proceeds. A s a result of the conversa tion, in e xch ange for $450, Con tra rez

ass igne d hisclaim to the proceeds in w riting to Silverman. On November 29, 2001, by virtue of the ass ignment, S ilverman filed his claim in this cause for the excess proceeds of

the tax foreclosure sale. He attached thewritten assignm entof the proceeds to him from

Contrarez to his m otion.
On January 3, 2002, a hea ring was held on Silverman’s motion at which Silverman tes tified as to the facts concerni ng the assign ment. In the course of his t estimony , Silverman said he had told Contrarez he w ould charge between $ 1,000 and $2,00 0 to han dle the recovery of the excess . W hen asked if he had told Contrarez t h at other attorneys might ch arge less, Silverman res ponded that he did not know what ot her3

attorneys w

ould charge. The trial judge then inquired why Contrarez was not present at the hearing. Silv erm an r esp ond ed t hat

it w as b eca usehe d id not believe Contrarez had anyclaim to the ex

cess proceeds. A lthough Contrarez’s signature on the assignment was notarized, the trial judge said he w anted to speak to him“to confirm that he did, in fact, sign this docum ent. Silverm an provided the judgewith Contrar ez’s address and the telephonenum ber of C ontrarez ’s dau ghter.
On Ma rch 18, 200 2, S ilv erman f iled a motion to enter j udgme nt on his pleading. That mo tion was heard on March 29, 2002. Contrarez did not appear at the hearing. The trial judge opened the hearing by rem arking:
Mr. Silverman, t he court has visited w ith Mr. Contrarez. The court is of the opinion that you can do oneof two things. You can w ork som ething out with Mr. Contrar ez, or I will refer you to the grievance board beca use it is the court’s opinion thatyou co m m itted frau d in the conversa tion you h ad w ith Mr. Contrarez.
The trial judge signed an orde r denying Silverman’s mo tion the sam e day. Silverm an filed
a request for findings of fact and conclusions of law and, w hen they were not timely filed,
a notice of past due findings of fact a nd conclusions of law pursuant to Ru le of

Civ il Procedure 297. How

ever, no such findings and conclusions w ere ever filed.
Silverman duly perfected this appeal and, in doing so, presents tw o issues for our determ ination. Theyare whether t he trial court reversibly erred by failing to 1) release the
excess proceeds to him , and 2) file findings of f act and con clus ionsof l aw . Th e Di str ict is not a pa rty to t he a ppe al.3 Section 34. 04 o f th e Ta x Cod e was a m end ed a fte r th e fo rec lo sure and sale but

before the assignm entto Silverman. The am endm ent adde d subse ctions (e ) through (l). Silverman’s ass ignm ent con tain s ea ch o f th e ad ditio nal r equ ir eme nts impos ed by subsection (f) of the current s tatute. 4 We initial ly address Silverman’ s second issue. A trial court has a m andatory duty to file findings of

fact a nd conc lusions of law w hen they are requested in com pliance with Rule2 97 and th e failure to do so is presum ed to be harm ful. Cherne Industries, Inc. v. Magallenes , 763 S.W.2d 768, 772 (Tex. 1989). The te st for h arm de pends upon the circumstances of the case and whether an appellant would have to guess the reasons for the trial judge’s ruling. Eliz ando v. Gomez , 9 57 S.W .2 d 8 62 , 8 65 (T ex. Ap p.– Sa n A nto nio 1997, pe t. denied)

. Ordina ril y, the r emedy for the erroneous failure to file findings of fact and conclusions of law is to abate t he appeal fo r entry of findings and conclusions. See Rothwell v. Rothwell , 775 S.W.2d 888, 890 (Tex. A pp.–El Paso 1989, nowrit). How ever, in this particular instance, there is no need for such an abatement because 1) the reason for thecou rt’ s ru ling is

clea r fr om therecord , an d 2)therecord fails to show any disputed fact issue for the court’s res olution. See Ci ty of Galvest

on v. Gi les , 902 S.W.2d 167, 170 n.2 (Te x. Ap p.–Houston [1 stDist.] 1995, no w rit) (holding findi ngs of fact are not appropriat e in a trial on s tipulated fa cts).
The evidence is undi sputed that Sil verman is the assignee of Contrarez’s claim to the excess pro cee ds a nd t hat he c laim ed t hos e pr

oce edsin com plian ce w ith t he a pplicable statutoryrequire ments. 3 The trial court’s stated reasons for denying Silverm an’s claim w as5

thatSilverman had com mitted fraud in connection with obtaining th e ass ignment. The judge’s conclusion was apparent ly based upon an ex parte conversation with Contrarez. The contents of t he conversation are not show n in the record, nor does it show that the statem entwas m ade under oath. In review ing the trial court’s actions, we may not consider ma tters that are outside the record. Cushni e v. State

Bar of Texas, 845 S.W.2d 358, 361 (Tex. App. –Houston [1 stDist.] 1992, w rit denied).
Because the only record before us conclusively establishes Silverm an’s rightto the
excess proceeds, we m ust, and do, hereby rev er se th e trial court’s order and render judgm entfo r Si lv er man f or th e e xce ss p ro ce ed s he ld by t he di st ri ct cl er k. Te x. R. App. P. 43.2(c).
John T. Boyd Senior Justi ce