Federal Deposit Ins. Corp. v. Morris

• Decision Date: 27 November 1989
• Docket Number: No. 05-89-00517-CV,05-89-00517-CV
• Citation: 782 S.W.2d 521
• Parties: FEDERAL DEPOSIT INSURANCE CORPORATION, in Its Capacity as Receiver of First National Bank of Irving, Texas, Appellant, v. Robert MORRIS, Jr. and William O. Shields, Appellees.
• Court: Texas Court of Appeals

Page 521

782 S.W.2d 521

FEDERAL DEPOSIT INSURANCE CORPORATION, in Its Capacity as Receiver of First National Bank of Irving, Texas, Appellant, v. Robert MORRIS, Jr. and William O. Shields, Appellees.

No. 05-89-00517-CV.

Court of Appeals of Texas Dallas.

Nov. 27, 1989.

Rehearing Denied Jan. 24, 1990.

T. Ray Guy, William C. Scott, Jenkens & Gilchrist, Dallas, for appellant.

J. Kent Newsom, Newsom, Terry & Newsom, Dallas, for appellees.

Before ENOCH, C.J., and STEPHENS ¹ and ASHWORTH ², JJ.

OPINION

ENOCH, Chief Justice.

Federal Deposit Insurance Corp. (FDIC), in its capacity as receiver of First National Bank of Irving ^B-I, appeals the trial court's judgment against it in a suit brought by Robert Morris, Jr., and William O. Shields. In a single point of error, FDIC claims that the trial court erred in failing to make findings of fact and conclusions of law, thus depriving FDIC of the opportunity to urge other points of error concerning the factual and legal foundations of the judgment. We agree. The judgment of the trial court is reversed and the cause is remanded for a new trial.

PROCEDURAL BACKGROUND

Trial was held before the court without a jury in the early fall of 1988, an election year. At trial, Morris and Shields sought recovery for damages they incurred by FNB-I's failure to convey an apartment building. FDIC asserted various legal and factual defenses. The trial judge lost his election to a full term on the court and did not sign a final judgment before leaving office. However, a final judgment was entered in favor of Morris and Shields on January 23, 1989, by the successor judge.

On January 31, 1989, FDIC, pursuant to rule 296 of the Texas Rules of Civil Procedure, requested the new presiding judge to make findings of fact and conclusions of law. The trial court judge acknowledged receipt of the request for findings of fact and conclusions of law on February 6, 1989. On February 24, 1989, FDIC, pursuant to rule 297 of the Texas Rules of Civil Procedure, filed a motion with the judge reminding him that findings of fact and conclusions of law had been requested and as of that date had not yet been filed with the clerk of the court. No findings of fact or conclusions of law were ever filed with the clerk.

FINDINGS OF FACT AND CONCLUSIONS OF LAW REQUIRED

Texas Rule of Civil Procedure 296 reads as follows:

In any case tried in the district or county court without a jury, the judge shall, at the request of either party, state in writing his findings of fact and conclusions of law. Such request shall be filed within ten days after the final judgment is signed. Notice of the filing of the request shall be served on the opposite party as provided in Rule 21a.

TEX.R.CIV.P. 296 (emphasis added).

Texas Rule of Civil Procedure 297 reads:

When demand is made therefor, the court shall prepare its findings of fact and conclusions of law and file same within thirty days after the judgment is signed. Such findings of fact and conclusions of law shall be filed with the clerk and shall be part of the record. If the trial judge shall fail so to file them, the party so demanding, in order to complain of the failure, shall, in writing, within five days after such date, call the omission to the attention of the judge, whereupon the period for preparation and filing shall be automatically extended for five days after such notification.

TEX.R.CIV.P. 297 (emphasis added).

Morris and Shields respond that the record does contain findings of fact and conclusions of law and that such findings and conclusions are located in the judgment itself. They point to case law for the proposition that when findings of fact and conclusions of law are set forth as recitations in the judgment appealed from, they shall be treated as findings of fact and conclusions of law filed in accordance with rule 296 of the Texas Rules of Civil Procedure. Cottle v. Knapper, 571 S.W.2d 59, 64 (Tex.Civ.App.--Tyler 1978, no writ). Indeed, a plethora of Texas cases so holds. See Lee v. Uvalde County, 616 S.W.2d 367, 369 (Tex.Civ.App.--Tyler 1981, no writ); Bradley v. Jones, 604 S.W.2d 450, 453 (Tex.Civ.App.--Tyler 1980, no writ); Peterson v. Peterson, 595 S.W.2d 889, 891 (Tex.Civ.App.--Austin 1980, writ dism'd); Hemphill v. S & Q Clothiers, 579 S.W.2d 564, 567 (Tex.Civ.App.--Fort Worth 1979, no writ).

However, we note that in these cases, no request was made by any of the parties for findings of fact or conclusions of law pursuant to rule 296. The court in Hemphill simply concludes that, "the findings of fact recited in this judgment are to be given the same consideration as if they had been separately filed." Hemphill, 579 S.W.2d at 567. In Cottle, however, the court pointed out that the preferable practice is to file findings of fact and conclusions of law in a separate instrument from that of the judgment. Cottle, 571 S.W.2d at 64. In the case before us, a timely request for findings of fact and conclusions of law was made. Once the request was properly and timely made, the judge had thirty days in which to file findings of fact and conclusions of law. Tex.R.Civ.P. 297. Morris and Shields fail to point out in the record where findings and conclusions by the trial court have been filed. Rules 296 and 297 clearly contemplate a separate instrument is to be filed.

When a party makes a proper and timely request for findings of fact and conclusions of law pursuant to rule 296, the trial court may not rely upon a reference back to recitals in the judgment itself to satisfy that request. Such recitals tend to mislead a party into failing to request specific findings, or as in this case, to request findings believing that none have been made and then bringing forth a point of error on appeal asserting failure of the trial court to respond to the request. See generally Gonzalez v. Cavazos, 601 S.W.2d 202, 203 (Tex.Civ.App.--Corpus Christi 1980, no writ) (holding that recitals in the judgment are not tantamount to findings of fact or conclusions of law); Texas Hauling Contractors v. Rose Sales Co., 565 S.W.2d 240, 244 (Tex.Civ.App.--Corpus Christi 1977, no writ) ("Such recitations [of findings of fact and legal conclusions] in the judgment are not proper. It tends to mislead the parties, sometimes resulting in failure by them to request and receive specific findings"); Cottle, 571 S.W.2d at 64 (The preferable practice is to file findings of fact and conclusions of law in a separate instrument).

FDIC made a request for findings of fact and conclusions of law within ten days after the judgment was entered. No such findings having been filed, FDIC gave its reminder notice under rule 297. We hold that the trial court was in error in failing to make findings of fact and conclusions of law. Anzaldua v. Anzaldua, 742 S.W.2d 782, 783 (Tex.App.--Corpus Christi 1987, writ denied); Fine v. Scott, 592 S.W.2d 56, 58 (Tex.Civ.App.--Eastland 1979, writ ref'd n.r.e.).

Having concluded that the trial court erred in failing to file findings of fact and conclusions of law, the only issue remaining is whether we are required to either abate the appeal and order the trial court to enter findings and conclusions or remand this cause for a new trial. See Joseph v. Joseph, 731 S.W.2d 597, 598-60 (Tex.App.--Houston [14th Dist.] 1987, no writ).

HARM

The general rule in Texas is that the failure of the trial court to file findings of fact and conclusions of law constitutes error, where the complaining party has complied with the appropriate rules of procedure in an effort to secure such findings. Wagner v. Riske, 142 Tex. 337, 342, 178...