appellate-rules-no-findings-of-fact-and-conclusions-of-law

law-findings-of-fact-and-conclusions-of-law | effect of failure to file | treatment of filed findings by court of
appeals
factual sufficiency challenge | challenging the legal sufficiency of the findings | findings of fact not file prior to
trial court judge leaving the bench |

When written findings of fact and conclusions of law are not filed, we must affirm the trial court's decision on any
legal theory finding support in the evidence. Tex. Dep't of Pub. Safety v. Wilmoth, 83 S.W.3d 929, 931 (Tex.
App.-Amarillo 2002, no pet.). Oral pronouncements by the trial court that allegedly explain its decision cannot
be substituted for those absent findings of fact and conclusions of law. Id. Moreover, we are not permitted to
consider those oral comments. Id. (citing In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984)).

BENCH TRIAL: FINDINGS OF FACTS EQUIVALENT OF JURY'S VERDICT
"[W]e cannot consider comments made by the judge at the conclusion of a bench trial as a substitute for findings of fact and
conclusions of law." Huang v. Don McGill Toyota, Inc., 209 S.W.3d 674, 679 (Tex. App.--Houston [14th Dist.] 2006, no pet.).

Findings of Fact and Conclusions of Law
In its first issue, Rafes argues that the trial court erred in not filing the requested findings of fact and
conclusions of law because the trial court was required to do so. See id. In response, Huml and Slowboy assert
that the trial court made implicit findings and argue, alternatively, that the trial court's failure to file findings of
fact and conclusions of law did not harm Rafes because "the facts in this case are not in dispute." (1)
David Rafes, Inc. v. Hum l (Tex.App.- Houston [1st Dist.] Oct. 29, 2009)(Jennings)
(defamation business disparagement claim re product quality, tortious interference with prospective business
relationships, substantial truth defense to defamation claim succeeds)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Higley and Sharp
01-08-00856-CV    David Rafes, Inc. v. Michael Huml and Slowboy Racing, Inc.
Appeal from 11th District Court of Harris County
Trial Court Judge: Hon. Mark Davidson
Here, Rafes timely filed its request for findings of fact and conclusions of law within twenty days after the
judgment was signed. See Tex. R. Civ. P. 296. However, Rafes untimely filed its notice of past due findings of
fact and conclusions of law, thirty-one days after filing its original request for findings of fact and conclusions of
law. (2) See Tex. R. Civ. P. 297 (providing that notice of past due findings of fact and conclusions of law shall
be filed within thirty days after filing the original request). Because Rafes untimely filed its notice of past due
findings and conclusions, we hold that it has waived its right to complain about the trial court's failure to file
findings and conclusions. See Averyt v. Grande, Inc., 717 S.W.2d 891, 895 (Tex. 1986); Las Vegas Pecan &
Cattle Co. v. Zavala County, 682 S.W.2d 254, 255 (Tex. 1984); see also Alpert v. Crain, Caton & James, P.C.,
178 S.W.3d 398, 410 (Tex. App.--Houston [1st Dist.] 2005, pet. denied) (holding that complete failure to file the
notice required by rule 297 waives any issue concerning the trial court's failure to file findings of fact and
conclusions of law); Fleming v. Taylor, 814 S.W.2d 89, 91 (Tex. App.--Corpus Christi 1991, no writ) (holding
that party that untimely filed notice thirty-two days after original request waived complaint on appeal regarding
trial court's failure to file findings of fact and conclusions of law).

“In an appeal from a bench trial, a trial court’s findings of fact have the same weight as a
jury’s verdict.” HTS Servs., Inc. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex. App.—
Houston [1st Dist.] 2005, no pet.); Lee v. Lee, 981 S.W.2d 903, 905 (Tex. App.—Houston [1st Dist.] 1998, pet.
denied). Thus, when an appellant challenges the trial court’s findings of fact, we review the sufficiency of the
evidence supporting the findings by applying the same standards that we use in reviewing the legal or factual
sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).

In reviewing a trial court's findings for legal sufficiency of the evidence, we apply the same standards we apply
in reviewing evidence supporting a jury's answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).
Findings of fact in a bench trial have the same force and dignity as a jury's verdict on jury questions.   Arrellano
v. State Farm Fire & Cas. Co., 191 S.W.3d 852, 855-56 (Tex. App.- Houston [14th Dist.] 2006, no pet.).
However, the trial court's findings are not conclusive when, as here, there is a complete reporter's record. Id. at
856.
Langhorne v. Miller (Tex.App.- Houston [14th Dist.] Aug. 4, 2009)(Seymore) (conversion of aircraft,
proof of conversion damages, market value, owner may testify, quantum meruit claim fails)
AFFIRMED: Opinion by Justice Seymore

Effect on Failure to Follow Up with Notice of Past-Due Findings of Facts when not file
Chenault filed a request that the trial court make findings of fact and conclusions of law, but she failed to file a
timely notice of overdue findings of facts and conclusions of law, and thus the trial court was not required to
make them. See Tex. R. Civ. P. 296-299.

Findings of fact in a bench trial have the same force and dignity as a jury verdict; thus, an
appellate court reviews sufficiency challenges to findings of fact by the same standards as apply in reviewing a
jury’s findings. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). In a factual-sufficiency
review, we weigh all of the evidence in the record and overturn the finding only if it is so against the great
weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770,
772 (Tex. 1996).

2900 Smith, L td. v. Co n stellation Newenergy, Inc. (Tex.App.- Houston [1 4th Dist.] Jul. 21, 2009)(Anderson)
(sworn account, electricity service, notice of higher rate by new provider disputed, sufficiency review, findings of
facts and conclusions of law, abatement for new judge to file findings)
AFFIRMED: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Seymore
14-08-00061-CV 2900 Smith, Limited and Katie Pham v. Constellation Newenergy, Inc.
Appeal from 190th District Court of Harris County
Trial Court Judge: Jennifer Elrod Walker

Rule 297 provides,

If the court fails to file timely findings of fact and conclusions of law, the party making the
request shall, within thirty days after filing the original request, file with the clerk and
serve on all other parties . . . . “Notice of Past Due Findings of Fact and Conclusions of
Law” which shall be immediately called to the attention of the court by the clerk.

Tex. R. Civ. P. 297. Failure to file the reminder required by rule 297 waives any issue concerning the trial court’
s failure to file findings of fact and conclusions of law. Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398,
410 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (citing Averyt v. Grande, Inc., 717 S.W.2d 891, 895
(Tex. 1986)). Here, the record does not contain a notice of past due findings of fact and conclusions of law.
Therefore, we conclude that Stuart has waived this issue. We overrule Stuart’s tenth issue.
Guillot v. Guillot (Tex.App.- Houston [1st Dist.] June 26, 2008)(Alcala)
(child custody appeal, supervised visitation, spousal support, findings of facts and conclusions of law)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala
Before Justices Nuchia, Alcala and Hanks
01-06-01039-CV     Stuart Guillot v. Debra Guillot
Appeal from 387th District Court of Fort Bend County
Trial Court Judge: Hon. Robert J. Kern

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

City of Keller, 168 S.W.3d at 827; see also Vickery, 5 S.W.3d at 258 (where trial court makes findings of fact
but fails to include an element of a claim or defense, implied findings will be made in support of the judgment
where the omission was not pointed out to the trial court).

Unchallenged findings of fact are binding on an appellate court unless the contrary is established as a matter of
law. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). Where the trial court makes findings of fact
but inadvertently omits an essential element of a ground of recovery or defense, the court will imply findings in
support of the judgment. See Tex. R. Civ. P. 299; Vickery, 5 S.W.3d at 252.

We review the trial court's conclusions of law de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d
789, 794 (Tex. 2002). We will uphold conclusions of law on appeal if the judgment can be sustained on any
legal theory the evidence supports. 2616 S. Loop L.L.C. v. Health Source Home Care, Inc., 201 S.W.3d 349,
355 (Tex. App.-Houston [14th Dist.] 2006, no pet.). Incorrect conclusions of law do not require reversal if the
controlling findings of fact support the judgment under a correct legal theory. Id. Moreover, in a bench trial,
the trial court is the sole determiner of the credibility of the witnesses and the weight to be given their
testimony. See Cohn v. Comm'n for Lawyer Discipline, 979 S.W.2d 694, 696-97 (Tex. App.-Houston [14th Dist.]
1998, no pet.); Nordstrom v. Nordstom, 965 S.W.2d 575, 580-81 (Tex. App.-Houston [1st Dist.] 1997, pet.
denied). The trial court, as the finder of fact, may consider all of the evidence and circumstances and can
reject or accept all or part of a witness's testimony. Nordstrom, 965 S.W.2d at 580-81. Texoma Advertising Co.,
LP v. The Siblings, LLC (Tex.App.- Houston [14th Dist.] Jun. 16, 2009)(Yates) (lease agreement for advertising
disputed, removal of billboard, conversion)

ABSENCE OF FINDINGS RESULTS IN WAVER. Although Texoma pleaded a claim for conversion, the trial
court made no express findings of fact or conclusions of law with regard to that claim. Texoma does not provide
any argument, citation to authorities, or citation to the record with regard to its conversion claim. We, therefore,
hold that Texoma has waived any challenge to the lack of findings or conclusions with regard to the conversion
claim. See Tex. R. App. P. 38.1(i); Garza v. Texas Alcoholic Beverage Comm'n, 138 S.W.3d 609, 616 (Tex.
App.- Houston [14th Dist.] 2004, no pet.).

EFFECT OF FAILURE TO REQUEST FINDINGS OF FACT --> PRESUMPTION

Standard of Review

Because we have no findings of fact and conclusions of law by the trial court, we infer all findings necessary to
support the judgment. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex. 1990). It is axiomatic that any implied finding be consistent with the
judgment. Anderson Mill Mun. Util. Dist. v. Robbins, No. 03-04-00369-CV, 2005 WL 2170355, at *6 (Tex. App.--
Austin, Sept. 8, 2005, no pet.). We presume that the trial court found all questions of fact in support of the
judgment, and we affirm if the judgment can be upheld on any legal basis supported by the pleadings and the
evidence. See Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987); Worford, 801 S.W.2d at
109. When the record includes a reporter's record of the trial, as here, the appealing party must show that the
judgment of the court below cannot be sustained by any theory raised by the evidence. See Whorton, 742 S.W.
2d at 278.

STANDARD OF REVIEW ON APPEAL:
TRIAL COURT'S FINDINGS OF FACTS & CONCLUSIONS OF LAW

Findings of fact in a bench trial have the same force and dignity as a jury's verdict upon jury questions. City of
Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex. App.- Houston [14th Dist.] 1977, writ ref'd n.r.e.).
When challenged on appeal, the findings are not conclusive if there is a complete reporter's record, as there is
here. Material Partnerships, Inc. v. Ventura, 102 S.W.3d 252, 257 (Tex. App.- Houston [14th Dist.] 2003, pet.
denied). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their
testimony. Barrientos v. Nava, 94 S.W.3d 270, 288 (Tex. App.- Houston [14th Dist.] 2002, no pet.). The trial
court's findings will not be disturbed if there is evidence of probative force to support them. Id.

A trial court's findings are reviewable for legal and factual sufficiency of the evidence by the same
standards that are applied in reviewing evidence supporting a jury's answer. Catalina v. Blasdel, 881 S.W.2d
295, 297 (Tex. 1994). If an appellant attacks the legal sufficiency of an adverse finding on an issue on which
he did not have the burden of proof, the appellant must demonstrate on appeal there is no evidence to support
the adverse finding. Price Pfister, Inc. v. Moore & Kimmer, Inc., 48 S.W.3d 341, 347 (Tex. App.- Houston [14th
Dist.] 2001, pet. denied). When reviewing the legal sufficiency of the evidence, we review the evidence in the
light most favorable to the challenged finding and indulge every reasonable inference that would support it.
City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable fact
finder could and disregard contrary evidence unless a reasonable factfinder could not. Id. at 827. The
evidence is legally sufficient if it would enable fair-minded people to reach the verdict under review. Id. There
is “no evidence" or legally insufficient evidence when (1) there is a complete absence of evidence of a vital fact;
(2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a
vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence
conclusively establishes the opposite of the vital fact. Id. at 810.

We review the trial court's conclusions of law de novo. Smith v. Smith, 22 S.W.3d 140, 143B44 (Tex. App.-
Houston [14th Dist.] 2000, no pet.). Under de novo review, the reviewing court exercises its own judgment and
redetermines each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). We will uphold
conclusions of law on appeal if the judgment can be sustained on any legal theory the evidence supports.
Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex. App.- Houston [14th Dist.] 1996, no writ). Incorrect
conclusions of law do not require reversal if the controlling findings of fact support the judgment under a correct
legal theory. Id.

Incorrect conclusions of law will not require a reversal if the controlling findings of fact will support the judgment
under a correct legal theory. BACM 2001-1 San Felipe Road L.P. v. Trafalgar Holdings I, Ltd. , 218 S.W.3d
137, 143 (Tex. App.-Houston [14th Dist.] 2007, pet. denied). On the other hand, conclusions of law which are
not based on findings of fact and supported by pleadings will not sustain a judgment. Tex. R. Civ. P. 299; Light
v. Wilson, 663 S.W.2d 813, 814 (Tex. 1983). Jones v. Smith (Tex.App.- Houston [14th Dist.] Jul. 14, 2009)(real
estate law: action to quiet title, not bona fide purchaser, quantum meruit cross-claim, findings of fact and
conclusions of law)
REVERSED AND REMANDED: Opinion by Justice Guzman
Before Justices Brock Yates, Guzman and Sullivan)
14-08-00639-CV Guy Jones v. Jeanne M. Smith and Peter A. Morgenroth
Appeal from 405TH District Court of Galveston County
Trial Court Judge: WAYNE J. MALLIA

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