Cherne Industries, Inc. v. Magallanes

• Decision Date: 25 January 1989
• Docket Number: No. C-7534,C-7534
• Parties: CHERNE INDUSTRIES, INC., Petitioner, v. Juan MAGALLANES, Guardian Ad Litem, Respondent.
• Court: Texas Supreme Court

Page 768

763 S.W.2d 768

CHERNE INDUSTRIES, INC., Petitioner, v. Juan MAGALLANES, Guardian Ad Litem, Respondent.

No. C-7534.

Supreme Court of Texas.

Jan. 25, 1989.

Rehearing Denied Feb. 15, 1989.

William E. Hooks, Jr., Clark & Gamble, San Antonio, for petitioner.

E. Dale Robertson, Robertson & Nunez, Charles E. Sweetman, Law Offices of Allison & Sweetman, Brownsville, William J. McCarthy, Adams & Graham, Harlingen, Paul Q. O'Leary, O'Leary, Dale & Malany, Brownsville, Robin W. Welch, Lewis, Pettitt & Skaggs, McAllen, for respondent.

OPINION

PHILLIPS, Chief Justice.

This is a limited appeal from an award of guardian ad litem fees in connection with the settlement of a wrongful death action. The principal issue before this court is whether the petitioner, Cherne Industries, Inc., timely requested the trial court to make findings of fact and conclusions of law regarding the award. After holding that Cherne did not make a timely initial request to the trial court, the court of appeals, in an unpublished opinion, affirmed the award. We hold that Cherne's initial request was timely, and thus that the trial court failed in its mandatory duty to prepare and file findings of fact and conclusions of law. Because it does not affirmatively appear that this failure was harmless to Cherne, we reverse the judgment of the court of appeals and remand to that court to direct the trial court to file findings and conclusions in compliance with Cherne's request.

The underlying suit was a consolidated action brought by several plaintiffs, one of whom was Delia A. Hernandez, individually and as next friend of her minor son, Jose Angel Hernandez, Jr., against various defendants, including Cherne Industries, Inc. On the eve of trial, the plaintiffs and most of the defendants, including Cherne, reached a settlement. The trial court appointed J.A. Magallanes, an attorney, as guardian ad litem to protect the interests of the minor child.

After severing out the non-settling parties, the trial court signed a final judgment on May 20, 1987, consistent with the terms of the settlement. By the judgment, the court awarded Magallanes a fee of $15,000.00 for his services.

By an instrument dated May 27, 1987, Cherne's counsel requested the trial court pursuant to TEX.R.CIV.P. 296 ¹ to prepare and file findings of fact and conclusions of law solely on the award of fees to the guardian ad litem. A signature line was included on the second page for the judge to make written acknowledgment of receipt of the request. The original of this instrument was addressed to the trial judge and mailed by certified mail, return receipt requested, while a copy was apparently sent by regular mail to the district clerk. The copy was filed on the morning of May 28, 1987, according to the file stamp of the district clerk. The green card accompanying the certified mail delivery was signed by a person purporting to be an agent of the trial judge and dated June 1, 1987; but the request itself was not filed until the next morning, according to the handwritten note accompanying the district clerk's file stamp. Not until June 11, 1987, more than one week later, did the trial judge execute the written acknowledgment of receipt. On June 22, 1987, pursuant to TEX.R.CIV.P 297 ², counsel for Cherne sent a letter to the judge reiterating the earlier request for findings and conclusions and calling the omission of the filing to the judge's attention. By letter to counsel on July 2, 1987, the trial court declined to make any findings and conclusions on two grounds: that such a procedure was not appropriate following a settlement, and that, in any event, the request "was not timely filed with this Court as required under Rule 296" (emphasis original).

In affirming the judgment of the trial court, the court of appeals held that the initial request for findings and conclusions must be both filed and presented to the trial judge within ten days after the signing of the final judgment under Rule 296. This requirement is not justified by the plain language of the rule, which requires only that the initial request "shall be filed within ten days after the final judgment is signed." ³ Nor is it justified by the additional case law requirement that both the initial and second requests be separately presented to the judge. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1977). While separate presentment has long been required by our courts, Cherne correctly points out that no previous decision has expressly required that presentment, as well as filing, be accomplished within ten days.

Cherne thus urges this court to hold that the court of appeals erred in requiring both filing and presentment to be accomplished within ten days. This holding would be consistent with Lassiter, and it would not add yet another artificial burden for obtaining a meaningful appellate review of a non-jury trial. However, after careful examination of the development and purpose of Rule 296, we feel compelled to go further and overrule Lassiter and all other decisions after 1957 which have required separate presentment of the initial request for findings and conclusions. This judicially imposed hurdle is contrary to both the spirit and plain letter of Rule 296 as it has existed since that date, and the mere longevity of the error should not now preclude its correction.

The Legislature first provided for findings and conclusions by trial courts in 1879, by a statute which provided, in part:

[U]pon a trial by the court, the judge shall, at the request of either of the parties, also state in writing the conclusions of fact found by him separately from the conclusions of law, which conclusions of fact and law shall be filed with the clerk and shall constitute a part of the record....

Act of April 19, 1879, ch. 111, § 1, 1879 Tex.Gen.Laws 119, 8 H. Gammel, Laws of Texas 1419 (1898). This statute continued in substantially the same form until 1939, when it was adopted as Rule 296 of the original Rules of Civil Procedure ⁴. Under each of these provisions, the method and timing of the request was entirely unspecified. The request was not required to be in writing, see Griner v. Trevino, 207 S.W. 947, 950 (Tex.Civ.App.--San Antonio 1919, no writ), and the only statutory restrictions as to time were the deadlines for the court's filing of its findings and conclusions. Act of May 14, 1907, ch. 7, § 1, 1907 Tex.Gen.Laws 446, Tex.Rev.Civ.Stat. art. 2075 (1911) and Tex.Rev.Civ.Stat. art. 2247 (1925), amended by Act of April 25, 1931, ch. 76, § 1, 1931 Tex.Gen.Laws 118, 118- 19, and repealed by Act of May 15, 1939, ch. 25, § 1, 1939 Tex.Gen.Laws 201, 201 (adopting the Texas Rules of Civil Procedure). See now Tex.R.Civ.P. 297.

Although time and form were of little importance, the courts did require a party who complained of a trial court's failure to file findings and conclusions to establish that the judge actually had an opportunity to pass upon the request. This court said in Cotulla v. Goggan, 77 Tex. 32, 35, 13 S.W. 742, 743 (1890):

It is also complained that the court erred in failing to file its conclusions of law and fact upon the written request of appellant. The application is found in the record, but there is no bill of exceptions to the action of the court upon it. We are of opinion that this is a matter which must be brought before this court by an exception. It may frequently occur that a party who has filed his application for findings of law and fact may waive or withdraw it. Without a bill of exceptions, when the findings do not appear, we cannot know that this has not been done. We find no error in the judgment, and it is affirmed.

This requirement was frequently reiterated by the courts of our state. See, e.g., Landa v. Heermann, 85 Tex. 1, 3-4, 19 S.W. 885, 886 (1892); Sewall v. Colby, 163 S.W. 694, 696 (Tex.Civ.App.--El Paso 1914, writ dism'd w.o.j.); Jacobs v. Nussbaum & Scharff, 63 Tex.Civ.App. 520, 523-24, 133 S.W. 484, 485-86 (1911, no writ); Kemp v. Everett, 59 Tex.Civ.App. 399, 400, 126 S.W. 897, 897 (1910, no writ).

In 1931, the Legislature introduced the requirement of a second request in the event the court failed to timely file findings and conclusions. The second request was to be made in writing within five days after the deadline of thirty days before the time for filing the transcript, and it was to "call the omission to the attention of the Judge." Act of April 25, 1931, ch. 76, § 1, 1931 Tex.Gen.Laws 118, 118-19, amending former Tex.Rev.Civ.Stat. art. 2247 (1925) (repealed 1939). The imposition of a required second request removed most of the justification for the court-made rule of Cotulla v. Goggan, since it both confirmed the party's continuing interest in securing findings and conclusions and generated a document that could be included in the record on appeal. Nevertheless, our courts continued to require a complaining party to establish by bill of exception that the initial request, as well as the second request, was specifically called to the trial judge's attention. See, e.g., Spradlin v. Rosebud Feed & Grain Co., 294 S.W.2d 301, 302 (Tex.Civ.App.--Waco 1956, writ ref'd n.r.e.); Birdwell v. Pacific Finance Corp., 259 S.W.2d 957, 958 (Tex.Civ.App.--Dallas 1953, no writ); Ross v. Odom, 88 S.W.2d 1053 (Tex.Civ.App.--Austin 1935, no writ); 3A Tex.Jur., Appeal and Error § 507 (1949). Although it would seem odd indeed for a litigant to prepare a second request for findings if it did not want the first request to be honored, no appellate decision questioned the need for proof of separate presentment of the initial request.

In 1957, the Supreme Court made a substantial change in nonjury practice by requiring both a form and a deadline for the initial request for findings and conclusions. The court inserted the phrase, "which request shall be filed within ten days from rendition of final judgment or overruling motion for new trial," ⁵ into Rule 296 for the purpose of "limiting...