Brooks v. Housing Authority of City of El Paso

• Decision Date: 29 February 1996
• Docket Number: No. 08-95-00096-CV,08-95-00096-CV
• Parties: Sherry BROOKS, Appellant, v. HOUSING AUTHORITY OF the CITY OF EL PASO, Appellee.
• Court: Texas Court of Appeals

Page 316

926 S.W.2d 316

Sherry BROOKS, Appellant, v. HOUSING AUTHORITY OF the CITY OF EL PASO, Appellee.

No. 08-95-00096-CV.

Court of Appeals of Texas El Paso.

Feb. 29, 1996.

Rehearing Overruled May 14, 1996.

Joel A. Madrigal, El Paso Legal Assistance Society, El Paso, for Appellant.

Michael C. Crowley, El Paso, Edward Dunbar, Dunbar & Barill, El Paso, for Appellee.

Before BARAJAS, C.J., and McCLURE and CHEW, JJ.

OPINION

BARAJAS, Chief Justice.

This is an appeal from a forcible detainer action, tried de novo by non-jury trial in the county court at law. Judgment was entered in favor of Appellee, the owner of the premises. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

Appellant is a lessee of an apartment owned by Appellee. The lease provides that only the lessee and specifically named family members are to reside in the apartment. ¹ On May 24, 1994, Appellee filed a forcible detainer action in justice court against Appellant, alleging that Appellant was permitting Greg Haley, the father of her three children, to live with her in violation of the lease. After judgment was entered in favor of Appellee, de novo appeal was pursued in the county court at law. The county court at law also held in favor of Appellee, finding that "Greg Haley has lived with Sherry Brooks at her Housing Authority apartment."

Prior to the forcible detainer action, Mr. Haley had been the subject of private security company log reports and police incident reports commencing on January 1, 1993, and ending on March 17, 1994. Regarding his "living" with Appellant, the trial court made the following findings of fact:

12. On January 1, 1993, Greg Haley was involved in a family violence incident with Sherry Brooks in her apartment.

13. On March 28, 1993, at 11:00 p.m., Sherry Brooks and Greg Haley were involved in a disturbance at Sherry Brooks' apartment. The police were called to this disturbance.

14. On March 29, 1993, Greg Haley was involved in a shouting incident at 2:00 in the morning at Sherry Brooks' apartment.

15. On May 3, 1993, at 9:00 in the evening, Greg Haley asked the Housing Authority security guard if he could park his car next to "his front door" because he had a broken window on his car.

16. On May 14, 1993, the security guard advised Greg Haley not to wash his car at the complex anymore since it was a violation of complex rules.

17. On June 18, 1993, Greg Haley was seen at Sherry Brooks' apartment at 4:00 in the morning.

18. On June 6, 1993, Sherry Brooks called the apartment security to complain that she was having problems with Greg Haley and asked for help in getting him to leave the apartment.

19. On June 19 and 20, 1993, Greg Haley's vehicle was parked in the Housing Authority parking lot and he was seen at Sherry Brooks' apartment.

20. On June 24, 1993, Greg Haley's vehicle was again seen in the parking lot.

21. On June 25, 1993, Greg Haley was with Sherry Brooks in front of her apartment.

22. The security guards noted on June 26, 1993, that Greg Haley was still staying at Sherry Brooks' apartment and getting visitors late at night and early in the morning.

23. On June 28, 1993, Greg Haley was still at Sherry Brooks' apartment.

24. On July 4, 1993, at 2:00 in the morning, Greg Haley was talking to an individual at the Housing Authority parking lot.

25. On July 6, 1993, Greg Haley's vehicle was parked in the Housing Authority parking lot.

26. On April 28, 1993, the security guards notice a strong smell of marijuana coming from Sherry Brooks' apartment.

27. On September 3, 1992, Greg Haley was investigated concerning a family fight and was arrested by the El Paso Police Department for a probation violation. He gave his address as Sherry Brooks' apartment.

28. On November 27, 1993, Greg Haley was arrested very close to the Housing Authority by the El Paso Police Department for the offense of theft of service (not paying a taxi driver). At that time Greg Haley gave the address of Sherry Brooks as his address.

29. On March 17, 1994 at approximately 1:00 in the morning, Greg Haley filed a complaint with the El Paso Police Department about shots fired at him. This incident took place in the block next to the block where Sherry Brooks' apartment is and Greg Haley gave Sherry Brooks' apartment as his address.

30. Sandra Torres, who was the manager at the Housing Authority complex for three and a half years, saw Greg Haley around on numerous occasions. On June 4, 1993, Sandra Torres counseled Sherry Brooks about having Greg Haley live with her and also about his activities on or near the Housing Authority premises.

II. DISCUSSION

Appellant attacks the judgment of the trial court in ten points of error. In her first, second, and third points of error, Appellant avers that the trial court erred in failing to prepare findings of fact and conclusions of law. We find any error to be remedied.

After the trial court rendered judgment in favor of Appellee, Appellant timely filed her request for findings of fact and conclusions of law. A second request noting the failure to comply with the original request was also timely filed pursuant to TEX.R.CIV.P. 297. The trial court, however, did not respond. ² On Appellee's motion, we abated the appeal for thirty days and directed the filing of findings of fact and conclusions of law. Thereafter, the requisite findings and conclusions were duly made, and now are before us in the supplemental transcript.

Much confusion exists over the effect of a trial court's failure to file initial findings of fact and conclusions of law after timely request and reminder. Appellate courts have espoused two quite different solutions to the problem: reverse and remand for new trial or stay proceedings and order the trial judge to file findings and conclusions. These dissimilar resolutions arise from competing rules within the Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure. See Ann C. McClure, Making the Non-Jury Trial More "Appealing", in STATE BAR OF TEXAS PROF.DEV.PROGRAM, ADVANCED CIVIL APPELLATE PRACTICE COURSE J, J-22 (1994).

TEX.R.CIV.P. 296 provides that in any case tried in the district or county court without a jury, the judge shall, at the request of any party, state in writing findings of fact and conclusions of law. This rule is derived from former TEX.REV.CIV.STAT.ANN. art. 2208, ³ which contained similar language. The former statute provided that the failure to file requested findings of fact and conclusions of law was reversible error.

TEX.R.APP.P. 81(a), stemming directly from former TEX.R.CIV.P. 434, provides as follows:

If the erroneous action or failure or refusal of the trial judge to act shall prevent the proper presentation of a cause to the court of appeals, and be such as may be corrected by the judge of the trial court, then the judgment shall not be reversed for such error, but the appellate court shall direct the said judge to correct the error, and thereafter the court of appeals shall proceed as if such erroneous action or failure to act had not occurred.

Rule 434 emanated from Rule 62a, which provided for error correction if the trial judge's action prevented proper presentation of an appeal. The purpose of Rule 62a "was to prevent the reversal of trial court judgments for technical and unsubstantiated errors, and to cast the burden of showing prejudice upon the party complaining of the erroneous ruling, so far, at least, as it was within his power to do so." Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822, 823 (1923). As such, TEX.R.CIV.P. 296, interpreted to require reversal, and TEX.R.APP.P. 81(a), providing for abatement, have endured for many years.

In Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117 (1944), the Supreme Court considered the effect of a trial court's failure to file findings and conclusions after proper requests. The Court noted that because TEX.R.CIV.P. 296 is in the same language as Article 2208, it should be given the same construction and held to accord the same rights. Id., 178 S.W.2d at 119. For this reason, the Court found that the failure of the trial court to make requested findings and conclusions was reversible error unless the record affirmatively showed that the complaining party had suffered no injury. Id. at 119-20. The Wagner decision has spawned a line of precedent and the rule has been carried forward, to one extent or another, ever since. See, e.g., Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768 (Tex.1989); Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254 (Tex.1984); Joseph v. Joseph, 731 S.W.2d 597 (Tex.App.--Houston [14th Dist.] 1987, no writ).

The impetus toward abatement as an appropriate solution stemmed from 4 ROY W. MCDONALD, TEXAS CIVIL PRACTICE IN DISTRICT AND COUNTY COURTS § 16.08.1 (rev. 1984). McDonald disagreed with the supposition in the Wagner line of precedent that a statute adopted as a rule of procedure continues to carry its former interpretations. He contended that other rule changes must be considered before the premise can be applied. Upon weighing such rule changes, he concluded as follows:

Interpreting the rules as a whole and giving effect to their general aim of limiting reversals to cases wherein there is prejudicial error, it is proper for the court of appeals, in a cause in which the trial judge has erroneously failed to make findings, either (i) to overrule the point of error based upon the trial judge's failure, if from the record it is clear that no prejudice resulted; or (ii), if the error is not shown to be harmless, to order the trial judge to file findings of fact and conclusions of law, together with such supplemental and additional findings as may be requested by either party and granted by the court, and to certify these to the appellate court.

Id. Thereafter, the pendulum began to swing in the direction of abatement as more courts relied on the provisions in Rule 434 and McDonald's contentions. See, e.g., Avila v....