Opinion
01-22-00457-CV
08-29-2023
Derek Allen Johnson v. Maura Marine Nobile Johnson
Trial court: 507th District Court of Harris County No. 2017-06884
ORDER
Veronica Rivas-Molloy, Judge
Appellant Derek Allen Johnson filed a Motion to Abate Time to File Appellant's Brief and to Order Trial Court to File Timely-Requested Findings of Facts and Conclusions of Law. The record shows that Appellant requested findings of fact and conclusions of law on February 1, 2022, making the requested findings due on April 20, 2022. See Tex. R. Civ. P. 296; see also Tex. R. Civ. P. 297. Appellant filed a Notice of Past Due Findings of Fact and Conclusions of Law on April 20, 2022 at 7:44 a.m. See id. at 297 ("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 in accordance with Rule 21a a '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.").
The trial court signed a final Order in Suit to Modify the Parent-Child Relationship on March 31, 2022. Appellee acknowledges that Appellant's February 1, 2022 request for findings, although premature, is deemed timely filed on March 31, 2022. See Tex. R. Civ. P. 306(c).
Because the trial court has not issued findings of fact or conclusions of law, Appellant requested we abate the appeal and issue an order requiring the trial court to issue findings of fact and conclusions of law. Appellant argued that the lack of findings from the trial court "is causing [him] harm because the trial court awarded Appellee $184,905.50 in trial court attorney's fees without specifying the legal standard by which that very substantial attorney's fee was awarded." Appellee Maura Marine Nobile Johnson filed a response opposing the request, arguing Appellant "waived his right to findings of fact and conclusions of law from the trial court's final judgment." She argues that "[t]o the extent [] the trial court had until midnight on April 20, 2022 to issue its findings, [Appellant's past due] notice [was filed] premature[ly] as the time for the court to issue findings had not yet expired." On reply, Appellant argues "Appellee fails to plead how she is harmed in any way." Appellant further argues "the trial court sign[ing] [of] an acknowledgement on said 20th day [of April 2022] that the findings of fact and conclusions were late," "waived any error."
Appellant's past due notice filed on April 20, 2022, and signed by the trial court, states:
"The original request for the Court's findings of fact and conclusions of law was filed by Derek Allen Johnson on February 1, 2022. The findings and conclusions were due on April 20, 2022, but were not timely filed. Upon the filing of this Notice, the time for the Court to file findings of fact and conclusions of law is extended to May 10, 2022."
"[T]he Supreme Court of Texas has indicated that the overarching policy in approaching the unintentional errors of counsel is to decide cases on the merits rather than on a procedural default when possible." Krajca v. Caum, No. 01-16-00057-CV, 2017 WL 2471102, at *4 (Tex. App.-Houston [1st Dist.] 2017, pet. denied) (mem. op.) (citing Texas Department of Aging and Disability Services v. Mersch, 418 S.W.3d 736, 742 (Tex. App.- Houston [1st Dist.] 2013, no pet.)). Appellant's past due notice was not filed late. Rather, he filed his past due notice on the same date the findings were due, warranting a decision on the merits. In addition, Appellant's past due notice served "the purpose of reminding the trial court that it ha[d] been requested to file findings and ha[d] not done so by the time prescribed by the rules of procedure." Cf. Williams v. City of Richardson, No. 05-20-00085-CV, 2021 WL 3891593, at *6 (Tex. App.-Dallas Aug. 31, 2021, no pet.) (mem. op.) (ruling original request for findings of fact and conclusions of law cannot serve as notice of past due findings). Indeed, the trial court acknowledged that its findings were past due by signing Appellant's past due notice on the same day it was filed-on April 20, 2022.
We grant Appellant's motion to abate this appeal. We therefore abate this appeal and remand this case to the trial court. On remand, we order the trial court to file its findings of fact and conclusions of law within 30 days of the date of this order. See Tex. R. App. P. 44.4(b). We further order the trial court clerk to file a second supplemental clerk's record containing the trial court's findings of fact and conclusions of law within 45 days of the date of this order.
Appellant's Unopposed Third Motion to Extend Time to File Appellant's Brief, filed on July 7, 2023, is granted. See Tex. R. Civ. P. 10.3(a)(1). Appellant's brief is due 30 days from the filing of the second supplemental clerk's record containing the trial court's findings of fact and conclusions of law.