Ad Villarai, LLC v. Chan Il Pak
519 S.W.3d 132
| Tex. | 2017Background
- Villarai sued Pak; bench trial presided by Judge Martin Lowy in Oct. 2014; final judgment entered Nov. 24, 2014.
- Pak timely requested findings Dec. 1, 2014; Judge Lowy did not file findings within 20 days.
- Pak filed a notice of past-due findings on Dec. 31, 2014 (extending the deadline to Jan. 12, 2015), the last day of Judge Lowy’s term.
- Judge Staci Williams (the elected successor) took office Jan. 1, 2015, obtained the trial record, and filed findings on Jan. 12, 2015.
- Pak appealed, arguing the successor judge lacked authority to file fact findings; the court of appeals agreed and reversed. The Texas Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument (Villarai) | Defendant's Argument (Pak) | Held |
|---|---|---|---|
| Whether a successor judge who did not preside at trial may file findings of fact after taking office by election | Successor may file because rules refer to “the court” and liberal construction (also reliance on rule 18/Lykes) | Successor lacks authority; findings by one who didn’t preside are void | Held: Successor (Judge Williams) lacked authority; her findings are invalid |
| Whether Pak waived challenge to Judge Williams filing findings by not objecting in trial court | Waiver because no trial-court objection was made | No waiver: a void act by a court is not waivable on direct review; Pak preserved error via timely request and past-due notice | Held: No waiver; void acts need not be objected to and Pak preserved error by requesting findings and filing past-due notice |
| Whether former judge Lowy may file findings after his term expired during the filing period | Villarai: statute §30.002(a) does not authorize only the former judge; successor can act or statute silent | Pak: former judge’s authority may be limited by plenary power or other constraints | Held: Former judge Lowy had authority under Tex. Civ. Prac. & Rem. Code §30.002(a) to file findings because his term expired during the prescribed filing period |
| Appropriate remedy when successor’s findings are invalid and former judge still could file | Villarai: court of appeals should accept successor’s findings or order new trial | Pak: findings invalid; remand for remedy | Held: Reverse court of appeals; instruct to abate and direct trial court to request former judge Lowy to file findings; if he refuses, then reverse and remand for new trial |
Key Cases Cited
- BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (discusses standards and presumptions when trial court fails to file findings)
- Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662 (Tex. 1987) (addresses rebutting presumed findings)
- Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768 (Tex. 1989) (appellate court should direct trial court to correct missing findings; harm presumed)
- Tenery v. Tenery, 932 S.W.2d 29 (Tex. 1996) (harm presumed when timely findings request is ignored)
- Storrie v. Shaw, 75 S.W. 20 (Tex. 1903) (common-law authority for the judge who tried the case to file conclusions after term expiration)
- Lykes Bros. Steamship Co. v. Benben, 601 S.W.2d 418 (Tex. Civ. App. 1980) (held successor could act under rule 18 where predecessor resigned; distinguished here)