AD Villarai, LLC v. Chan Il Pak

• Citation: 519 S.W.3d 132
• Decision Date: 12 May 2017
• Docket Number: No. 16-0373,16-0373
• Parties: AD VILLARAI, LLC, the Ashley Nicole Williams Trust, Villas on Raiford Carrollton Senior Housing, LLC, and Villas on Raiford, LLC, Petitioners, v. CHAN IL PAK, Respondent
• Court: Supreme Court of Texas

519 S.W.3d 132

AD VILLARAI, LLC, the Ashley Nicole Williams Trust, Villas on Raiford Carrollton Senior Housing, LLC, and Villas on Raiford, LLC, Petitioners,

v.CHAN IL PAK, Respondent

No. 16-0373

Supreme Court of Texas.

OPINION DELIVERED: May 12, 2017

William F. LePage, Peter D'Apice, Stutzman Bromberg Esserman & Plifka, P.C., Dallas, David M. Pruessner, Law Offices of David M. Pruessner, Dallas, for Petitioners.

John C. Sokatch, James Robert Krause, Friedman & Feiger, LLP, Dallas, Jason Charles Ciarochi, Ciarochi Law Firm PLLC, Dallas, for Respondent.

PER CURIAM

The issue in this case is whether a newly elected district-court judge or the former judge she replaced may file findings of fact following a bench trial over which the former judge presided before his term expired. The court of appeals held that neither judge can file the findings. We agree that the new judge lacks authority to file the findings. Under these facts, however, we conclude that the former judge may file the findings. We reverse the court of appeals' judgment and remand this case to that court with instructions that it abate the appeal and direct the trial court to correct the error by requesting that the former judge file findings. If the former judge fails or refuses to file findings as requested, the court of appeals may then reverse the trial court's judgment and remand for a new trial.

We begin by summarizing the law governing findings of fact. "In any case tried in the district or county court without a jury, any party may request the court to state in writing its findings of fact and conclusions of law." TEX. R. CIV. P. 296.¹ The party must file its request within twenty days after the court enters its judgment, and the court clerk must "immediately" bring the request "to the attention of the judge who tried the case." Id. The court must file its findings within twenty days of the timely request. TEX. R. CIV. P. 297. If the court fails to file findings within twenty days, the requesting party may file a notice of past due findings within thirty days of the initial request. Id. A timely past-due notice extends the judge's deadline to forty days from the party's initial request. Id. If the court fails to file findings in response to a proper and timely request, the court of appeals must presume the trial court made all the findings necessary to support the judgment. Marchand , 83 S.W.3d at 795. A party may rebut the presumption by demonstrating that the record evidence does not support a presumed finding. See Zac Smith & Co. v. Otis Elevator Co. , 734 S.W.2d 662, 666 (Tex. 1987).

Of course, "fact findings are not necessary when the matters in question are not disputed." Barker v. Eckman , 213 S.W.3d 306, 310 (Tex. 2006) (citing Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex. 1971) ). But if a court fails to file findings when the facts are disputed, the burden of rebutting every presumed finding can be so burdensome that it effectively "prevent[s the appellant] from properly presenting its case to the court of appeals or this Court." Graham Cent. Station, Inc. v. Peña , 442 S.W.3d 261, 263 (Tex. 2014) (citing Tenery v. Tenery , 932 S.W.2d 29, 30 (Tex. 1996) (per curiam)); see also Fraser v. Goldberg , 552 S.W.2d 592, 594 (Tex. Civ. App.—Beaumont 1977, writ ref'd n.r.e.) ("In factually complicated situations in which there are two or more possible grounds for recovery or defense, an undue burden would be placed upon an appellant."). A trial court's failure to file findings in response to a timely and proper request is thus "presumed harmful, unless ‘the record before the appellate court affirmatively shows that the complaining party has suffered no injury.’ " Cherne Indus., Inc. v. Magallanes , 763 S.W.2d 768, 772 (Tex. 1989) (quoting Wagner v. Riske , 142 Tex. 337,178 S.W.2d 117, 120 (1944) ).²

When the trial court's failure is harmful, the preferred remedy is for the appellate court to direct the trial court to file the missing findings. See id. at 772–73 (instructing court of appeals to direct trial court to correct its error by filing findings and conclusions); see also TEX. R. APP. P. 44.4 (requiring appellate courts to direct trial courts to correct any correctable error that prevents "the proper presentation of a case to the court of appeals"). If the trial court still fails to file the findings, the appellate court must reverse the trial court's judgment and remand the case for a new trial. TEX. R. APP. P. 44.1(a)(2) ("No judgment may be reversed ... [unless] the court of appeals concludes that the error complained of ... prevented the appellant from properly presenting the case to the court of appeals."); Brooks v. Hous. Auth. of El Paso , 926 S.W.2d 316, 321 (Tex. App.—El Paso 1996, no writ) ("If the trial court cannot forward findings and conclusions to the court of appeals due to loss of the record, problems with memory, passage of time, or other inescapable difficulties, reversal and remand for a new trial is a proper remedy."); see also S. Pac. Transp. Co. v. Stoot , 530 S.W.2d 930, 931 (Tex. 1975) ("If the facts are not fully and accurately determined, then the wisest judge cannot distinguish between merit and demerit. If we do not get the facts right, there is little chance for the judgment to be right.").

We now turn to the facts of this case, in which Petitioners AD Villarai, LLC, the Ashley Nicole Williams Trust, Villas on Raiford, LLC, and Villas on Raiford Carrollton Senior Housing, LLC (collectively, Villarai) sued Respondent Chan Il Pak for breach of fiduciary duty and related claims. In March 2014, Judge Martin Lowy—who then served as judge of the 101st Judicial District Court of Dallas County—entered an interlocutory permanent injunction against Pak. That same month, Judge Lowy lost in the primary election to Judge Staci Williams. Judge Lowy conducted a bench trial on Villarai's remaining claims in October 2014 and entered a final judgment on November 24, 2014. Pak timely filed a request for findings of fact and conclusions of law on December 1, but Judge Lowy did not file findings within twenty days. Pak then filed a notice of past due findings on December 31, Judge Lowy's last day as the elected judge of the 101st. Judge Williams, meanwhile, faced no opposition in the November general election and took office on January 1, 2015. After learning of Pak's pending request, Judge Williams ordered copies of the reporter's record and exhibits from the bench trial and then timely filed her findings of fact and conclusions of law on January 12, 2015.³

Pak appealed the trial court's judgment, arguing in part that Judge Williams's findings were invalid because she lacked authority to file them. The court of appeals agreed, and further held that Judge Lowy could not then file findings because he "has been replaced as the result of an election and is no longer available to respond to an order of this Court to make findings and conclusions." 2016 WL 637736, at *4 (Tex.App.—Dallas February 16, 2016). The court thus reversed the judgment against Pak and remanded the case to the trial court for further proceedings consistent with the court's opinion. Id. Villarai filed a petition for review.

Villarai first contends that Pak waived any complaint about Judge Williams's authority to file findings because he never raised that objection in the trial court. On January 6, 2015, shortly after taking office, Judge Williams issued an order directing the court reporter to provide a copy of the reporter's record and exhibits so that she could file the findings Pak had requested. Two days later, she entered another order requiring the reporter to resubmit the record in a format compatible with the court's computers. She then filed her findings on January 12. Pak never objected to any of these orders and did not challenge Judge Williams's authority to file the findings until he filed his appellant's brief in the court of appeals. A majority of the appellate-court panel concluded that, despite Pak's failure to raise an objection in the trial court, Judge Williams lacked authority to file the findings and thus the findings were of "no effect." Id. at *2. The dissenting justice disagreed.

We agree with Pak and the court of appeals' majority. Our error-preservation rules require litigants to make "a timely request, objection, or motion that" provides the grounds for relief and complies with the Rules of Civil or Appellate Procedure. TEX. R. APP. P. 33.1. The Rules of Civil Procedure provide the mechanism for parties to preserve error regarding a trial court's findings of fact. See TEX. R. CIV. P. 296 (requiring litigants to file a request for findings within twenty days of the final judgment), 297 (requiring litigants to file a notice of past due findings when the court does not file findings within twenty days). We have held that a party waives its right to challenge a failure to file findings if it does not file a notice of past due findings as rule 297 requires. See, e.g. , Las Vegas Pecan & Cattle Co., Inc. v. Zavala Cty. , 682 S.W.2d 254, 255 (Tex. 1984) ("Without [the] timely reminder [that rule 297 requires], [the requesting party] waived its complaint of the failure on appeal."). And as a result, filing a notice of past due findings is sufficient to preserve error for unfiled findings.

What appears to make this case different is that Judge Williams did file findings, but this is a distinction without a difference. When a party challenges a lack of findings from the trial court, it is immaterial whether the court literally filed no findings or filed something that amounts to no findings authorized by law. In either case, the trial court has not discharged its obligation to provide findings and the requesting party does not have findings that comply with rule 296. Thus, Pak did not have an obligation to preserve error beyond filing his request for past due findings. See, e.g. , Cherne , 763 S.W.2d at 772 (holding that compliance with rules 296...