Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 3/30/2015 12:30:13 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-14-01030-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 3/30/2015 12:30:13 PM CHRISTOPHER PRINE CLERK
No. 01-14-01030-CV
________________________________________________________________
IN THE
COURT OF APPEALS
FOR THE FIRST SUPREME JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS
_________________________________________________________________
TARRIS WOODS, Appellant
v. SANDRA T. KENNER AND CHARLES E. TWYMON, JR., Appellees _________________________________________________________________
RESPONSE TO MOTION TO ABATE AND REMAND
To the Honorable Court of Appeals:
Sandra T. Kenner and Charles E. Twymon, Jr., Appellees, oppose the motion by Appellant, Tarris Woods, to abate this appeal and remand the case for the entry of
additional findings of fact and conclusions of law, for these reasons:
I. The Clerk’s Record filed with this Court shows no request by the Appellant for the entry of any additional findings of fact and conclusions of law after the original
findings and conclusions were entered by the trial court. Although the Appellant
filed “objections” to the Appellees’ “proposed” findings and conclusions (Cl. R.
64-67), no request for additional findings or conclusions was made, nor were any
proposed additional findings submitted. Tex. R. Civ. P. 298 allows a party to request
additional findings of fact and conclusions of law after original findings and
conclusions are filed. No such request for additional findings having been made in
this case, the Appellant’s motion presents nothing for this Court to review. See also,
Heard v. City of Dallas, 456 S.W.2d 440, 445 (Tex. Civ. App.—Dallas 1970, writ
ref’d n.r.e.) (“the so-called request for additional findings and conclusions does not
in our opinion comply with Rule 298, for ... Rule 298 contemplates that the request
for further additional or amended findings... shall specify the further additional or
amended findings that the party making the request desires the trial court to make and
file.”). See also, Buckeye Retirement Co., LLC, Ltd. v. Bank of Am., N.A., 239
S.W.3d 394, 402 (Tex. App.—Dallas 2007, no pet.)(“A trial court is not required to
make additional findings of fact that are unsupported in the record, that are
evidentiary, or that are contrary to other previous findings.”).
II. This is an appeal from an order probating a copy of a Will as a muniment of title, and vacating a previously entered judgment declaring heirship. The trial court’s
findings of fact recite the Decedent’s death, the execution of a Will “with the
formalities and solemnities required,” and that the Decedent's original Will could not
be located after the exercise of reasonable diligence, but that a true copy of the Will
was presented for probate. Then, the trial court concluded that the Appellees had
shown error its Judgment Declaring Heirship, previously entered, and that the copy
of the Decedent's Will was entitled to probate. Cl. R. 68-70.
The trial court’s findings of fact need address only the ultimate facts of the case, and not the evidentiary underpinnings for those findings. Prague v. Prague, 190
S.W.3d 31, 37 (Tex. App.—Dallas 2005, pet. denied). Moreover, if the trial court’s
findings “properly and succinctly relate the ultimate findings of fact and law
necessary to apprise [the party] of adequate information for the preparation of his or
her appeal,” those findings and conclusions are sufficient. In the Interest of R.D.Y.,
A Child, 51 S.W.3d 314, 322 (Tex. App. —Houston [1 Dist.] 2001, pet denied), Finch
v. Finch, 825 S.W.2d 218, 221 (Tex. App.-Houston [1st Dist.] 1992, no writ). See
e.g., Larry F. Smith, Inc. v. The Weber Co., 110 S.W.3d 611, 614 (Tex. App.—Dallas
2003, pet. denied)(“The general rule is that an appellant has been harmed if, under the
circumstances of the case, he has to guess at the reason the trial court ruled against
him. ... If there is only a single ground of recovery or a single defense, an appellant
does not usually have to guess at the reasons for the trial court's judgment.”). The
Appellant provides no explanation as to why the trial court’s findings of fact and
conclusions of law prevent him from properly presenting his case on appeal.
III. Even if the Appellant’s motion did present something for this Court to review, that review would be dependent upon whether the trial court’s failure to do whatever
the Appellant was requesting amounted to reversible error, which in turn would
require a determination of whether the Appellant was unable to effectively present the
merits of his appeal. Those issues require at least some consideration of the merits
of the appeal, so they would not be subject disposition on a motion preliminary to the
briefing of the merits.
For the reasons stated, Sandra T. Kenner and Charles E. Twymon, Jr., Appellees, pray that the Court deny the Appellant’s Motion to Abate and Remand this
appeal.
Respectfully submitted, /s/Thomas W McQuage Thomas W. McQuage Post Office Box 16894 Galveston, Texas 77552-6894 (409) 762-1104
(409) 762-4005 (FAX) State Bar No. 13849400 mcquage@swbell.net ATTORNEY FOR APPELLEES CERTIFICATE OF SERVICE I certify that a copy of the foregoing instrument was delivered to counsel for the Appellees on the 30 th day of March, 2015, by serving Douglas T. Godinich, through
the Efile.TX Courts electronic service.
/s/Thomas W McQuage