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Castle Hills Pharmacy, LLC v. Trial

Court of Appeals of Texas, Fourteenth District

January 30, 2014

CASTLE HILLS PHARMACY, LLC AND MICHAEL WARD, Appellants
v.
JOSEPH A. TRIAL, Appellee

On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Cause No. 1002800

ABATEMENT ORDER

PER CURIAM

After a non-jury trial, appellant brings this appeal from a judgment signed February 25, 2013. Appellants timely requested findings of fact and conclusions of law and timely reminded the trial court when the findings and conclusions were overdue. In their brief, appellants assert the trial court did not file the requested findings and conclusions, and the failure hinders their ability to argue their appeal.

When an appellant timely files a request for findings of fact and conclusions of law and a timely notice of past due findings, the trial court's error in failing to file findings of fact and conclusions of law is generally presumed to be harmful, unless the record before the appellate court affirmatively shows that the complaining party has suffered no injury. See Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (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).

In this case, we cannot say that the record affirmatively discloses no injury. Because the trial judge continues to serve on the district court, the error in this case is remediable. See Tex. R. App. P. 44.4. The proper remedy is to abate the appeal and direct the trial court to correct its error. See Zeiba v. Martin, 928 S.W.2d 782, 786 (Tex. App.—Houston [14th Dist.] 1996, no writ).

Accordingly, we ORDER the appeal abated and direct the trial court to file findings of fact and conclusions of law on or before February 20, 2014. Within ten days after the trial court has filed findings of fact and conclusions of law, any party may file a request for specified additional or amended findings or conclusions. The trial court shall file any additional or amended findings that are appropriate within ten days after such a request is filed. The trial court's findings of fact and conclusions of law, and any additional and amended findings or conclusions, shall be included in a supplemental clerk's record to be filed with this court on or before March 20, 2014.

The appeal is abated, treated as a closed case, and removed from this Court's active docket. The appeal will be reinstated on this Court's active docket when the supplemental clerk's record is filed in this Court. The Court will also consider an appropriate motion to reinstate the appeal ...


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