C OURT OF A PPEALS FOR THE F IRST D ISTRICT OF T EXAS AT H OUSTON

O RDER OF A BATEMENT

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 Dis trict Court o f Harris County

This is an appeal from the trial court ’ s judgment dated October 30, 2019 , which was entered after a n onjury trial. The appellants timely requested findings of fact and conclusions of la w and tim ely filed a notice of past due findings of fact and conclusions of law

. See T EX

. R. C IV

. P. 296, 2 97. The trial court did not file findings of fact and conclusions of law.

This is a breach

- of

- contract case in which the appell ees alleged multiple affirmative defen ses. On appeal, the a ppellants filed an unopposed motion to abate th e appeal and d irect the
tr ial 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. Lawren ce Bo z é & Assoc s. , P.C. v. Harris C ty

. Appraisal Dist. , 368 S.W.3d 17, 32 (Tex. App.

— Houston [1st Dist.] 2011, no pet.) ; see T EX

. R. C IV

. P. 296 ; see also IKB Indus. (Nigeria) Ltd. v. Pro

- Line Corp. , 938 S.W.2d 440, 442 (Tex. 1997) ( “ The purpose o f Rule 2 96 is to give a party a right to findings of fact and conclusions of law finally adjudicated

a fter a conventional t rial on the merits before the court. ” ). “A trial c ourt ’ s failure to file findings in response to a timely and proper request is

. . . presume d harmful, unless the record before the appellate court affirmatively shows that the complain i ng 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 “ on ly a sin gle 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 i s 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 ). Typic ally, the remedy for failure to file timely requested findings of fact and conclusion of law i s 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 th e appellees pleaded mu ltiple contract defenses, we conclude that the record

does not af

f irmatively 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
tr ial j udge continues to serve on the district court, the error in this c ase is remediable. See T EX

. R. A PP

. P. 44.1; Ad V

illar ai , 519 S.W.3d at 140 ( no rule or statute “ grants successor judges the authority to file findings on behalf of t heir predecessors displa ced by an election ” ).

We grant the appellants ’ unopposed motion to abate this appeal. We order the trial court to file fi nding s of fact and conclusions of law on or before June 1 , 202 1

. Within 10 days after the trial court has filed findings of fact and conclusions of law, any party may fil e a request for specified additional or amended findings or conclusions. The trial court s h all file any additional

or am ended findings that are appropriate within 10 days after such a request is filed. The trial
court ’ s findings of fact and conclus ions of law , and any additional and amended findings or conclusions, shall be included in a supple m ental clerk ’ s record to be f iled with this court on or before July 1 , 202 1

. The appeal is abated , treated as a closed case, a nd removed from thi s c ourt ’ s active docket. The appeal will be reinstated on this c ourt ’ s active docket when the trial court ’ s findings and recommendations are filed in this c ourt. The c ourt will also consider an appropriate motion to reinstate the appeal filed by either par ty, or the c ourt 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

___