law-findings-of-fact-after-judge-left-bench | findings of fact and conclusions of law |
WHEN THE TRIAL JUDGE LEAVE WITHOUT FILING PROPERLY REQUESTED
FINDINGS OF FACTS AND CONCLUSIONS OF LAW
In their first issue, appellants asserted the trial court erred by failing to file the timely requested findings of
fact and conclusions of law. In their second issue, appellants asserted Judge Elrod's successor, Judge
Kerrigan, could not issue the requested findings of fact and conclusions of law because she did not preside
over the trial and argued the case must be remanded for a new trial. We previously addressed both of these
issues in the order abating this appeal.
Initially, we agreed with appellant on their first issue and abated the appeal and ordered Judge Elrod's
successor to enter the requested findings of fact and conclusions of law. See Cherne Indus., Inc. v.
Magallanes, 763 S.W.2d 768, 772-73 (Tex. 1989); Electronic Power Design, Inc., v. R.A. Hanson Co., Inc.,
821 S.W.2d 170, 171 (Tex. App.-Houston [14th Dist.] 1991, no writ).
Citing binding precedent from this Court, we also addressed appellants' second issue in the abatement
order. In the abatement order we stated:
A judge who succeeds a judge who has resigned subsequent to rendering judgment is authorized to make
findings of fact and conclusions of law in the case. Lykes Bros. S. S. Co., Inc. v. Benben, 601 S.W.2d 418,
420 (Tex. Civ. App. 1980, writ ref'd n.r.e.) (holding that due process did not require findings and conclusions
be made by judge who heard evidence and rendered judgment). Rule 18 of the Texas Rules of Civil
Procedure allows successor judges to dispose of unresolved matters and enter various orders so long as the
successor judge does not render judgment without hearing evidence. See Tex. R. Civ. P. 18. see also
Fidelity & Guar. Life Ins. Co. v. Pina, 165 S.W.3d 416, 421 (Tex. App.-Corpus Christi 2005, no pet.) (noting
that rule 18 operates in conjunction with section 30.002 of the remedies code, which allows the successor of
a deceased judge to enter findings of fact and conclusions of law for cases pending at the death of his
Therefore, we conclude the error in this case is remediable. See Tex. R. App. P. 44.4. Accordingly we
abate the appeal and direct the trial court to correct the error. See Zeiba v. Martin, 928 S.W.2d 782, 786
(Tex. App.- Houston [14th Dist.] 1996, no writ).
Therefore, in abating the appeal and remanding to the trial court for the entry of findings of fact and
conclusions of law, we sustained appellants' first issue and overruled appellants' second issue requesting a
new trial. Eventually, the trial court entered the findings of fact and conclusions of law, which brings us to
appellants' third issue challenging the sufficiency of the evidence.
2900 Smith, Ltd v. Constellation Newenergy, Inc. (Tex.App.- Houston [14th Dist.] Nov. 5, 2009)(Substitute
Opinion by Anderson) (sworn account suit, electricity service, dispute over amount due, findings of facts not
filed before judge left bench, abatement for successor judge to make findings)
AFFIRMED IN PART DISMISSED IN PART: Opinion by Justice John 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
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