COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER OF ABATEMENT

Appellate case name: David Hyman and Renee Matturro v. KD Resources, LLC

Appellate case number: 01-20-00059-CV

Trial court case number: 2012-32430

Trial court: 129th District Court of Harris County

This is an appeal from the trial court’s judgment dated October 30, 2019, which was 

entered after a nonjury trial. The appellants timely requested findings of fact and conclusions of 

law and timely filed a notice of past due findings of fact and conclusions of law. See TEX. R. CIV.

P. 296, 297. The trial court did not file findings of fact and conclusions of law. 

This is a breach-of-contract case in which the appellees alleged multiple affirmative 

defenses. On appeal, the appellants filed an unopposed motion to abate the appeal and direct the 

trial court to enter findings of fact and conclusions of law. 

“A party is entitled to findings of fact and conclusions of law after a conventional trial on 

the merits to the court.” U. Lawrence Bozé & Assocs., P.C. v. Harris Cty. Appraisal Dist., 368 

S.W.3d 17, 32 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see TEX. R. CIV. P. 296; see also 

IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997) (“The purpose of 

Rule 296 is to give a party a right to findings of fact and conclusions of law finally adjudicated 

after a conventional trial on the merits before the court.”). “A trial court’s failure to file findings 

in response to a timely and proper request is . . . presumed harmful, unless the record before the 

appellate court affirmatively shows that the complaining party has suffered no injury.” Ad

Villarai, LLC v. Chan Il Pak, 519 S.W.3d 132, 135 (Tex. 2017) (internal quotations omitted). 

When a case involves “only a single ground of recovery or a single defense,” “an appellant is not 

harmed by a failure to file findings and conclusions because he is not required to guess the 

reasons for a trial court’s judgment.” Wood v. Pharia L.L.C., No. 01–10–00579–CV, 2010 WL

5060621, at *9 (Tex. App.—Houston [1st Dist.] Dec. 9, 2010, no pet.) (mem. op.). But when “a 

party is prevented from presenting his case on appeal, he has been harmed.” Alsenz v. Alsenz, 

101 S.W.3d 648, 652 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Typically, the remedy 

for failure to file timely requested findings of fact and conclusion of law is to abate. See Elliott v. 

Kraft Foods N. Am., Inc., 118 S.W.3d 50, 54 (Tex. App.—Houston [14th Dist.] 2003, no pet.). 
Because the appellees pleaded multiple contract defenses, we conclude that the record 

does not affirmatively show that the appellants have not been harmed by the trial court’s failure 

to file findings of fact and conclusions of law. See Ad Villarai, 519 S.W.3d at 135. Because the 

trial judge continues to serve on the district court, the error in this case is remediable. See TEX. R.

APP. P. 44.1; Ad Villarai, 519 S.W.3d at 140 (no rule or statute “grants successor judges the 

authority to file findings on behalf of their predecessors displaced by an election”). 

We grant the appellants’ unopposed motion to abate this appeal. We order the trial court 

to file findings of fact and conclusions of law on or before June 1, 2021. Within 10 days after 

the trial court has filed findings of fact and conclusions of law, any party may file a request for 

specified additional or amended findings or conclusions. The trial court shall file any additional 

or amended findings that are appropriate within 10 days after such a request is filed. The trial 

court’s findings of fact and conclusions of law, and any additional and amended findings or 

conclusions, shall be included in a supplemental clerk’s record to be filed with this court on 

or before July 1, 2021.

The appeal is abated, treated as a closed case, and removed from this court’s active 

docket. The appeal will be reinstated on this court’s active docket when the trial court’s findings 

and recommendations are filed in this court. The court will also consider an appropriate motion 

to reinstate the appeal filed by either party, or the court may reinstate the appeal on its own 

motion. 

It is so ORDERED.

Judge’s signature: _____/s/ Peter Kelly__________

 Acting individually  Acting for the Court

Date: ___May 11, 2021___