Correctly Securing Findings of Fact and Conclusions of Law

In a bench trial (or in other situations in which the judge, rather than the jury, resolves fact disputes), securing written formal findings of fact and conclusions of law can be crucial to the appeal. They are the equivalent of the jury's verdict. Without them, the court of appeals will draw every reasonable inference in favor of the judgment and will affirm on any legal theory supported by those deemed findings. Unfortunately, the process for obtaining findings and conclusions is convoluted and fraught with opportunities to waive error.

A request for findings and conclusions must be filed no later than 20 days after the judgment is signed. Tex. R. Civ. P 296. The findings and conclusions are "due" 20 days after the request is filed. Tex. R. Civ. P. 297. If the court does not file the findings and conclusions by the due date, the requesting party must file a notice of past due findings. Id. This notice must be filed no later than 30 days after the original request was made. Id. Failure to timely file the notice of past due findings waives any error from the failure to file findings and conclusions. Id. Finally, after the findings are filed, the party may need to request additional or amended findings. Tex. R. Civ. P. 298. If the court omits an essential finding, but the complaining party does not request additional or amended findings, the omitted element will be deemed to have been found in favor of the judgment. Tex R. Civ. P. 299. The request for additional findings is due 10 days after the original findings are filed. Tex. R. Civ. P. 298.

A recent case from the First Court of Appeals illustrates some of the traps in this process. In Joseph v. Joseph, the appellant filed her request for findings and conclusions nine days before the judgment was signed. No. 01-11-01096-CV, 2012 WL 1564318 at *2 (Tex. App.--Houston [1st Dist.] May 3, 2012). The court of appeals noted that under Rule 306c, the prematurely filed request was deemed filed immediately after the judgment was signed. Thus, the appellant's request was timely filed. The appellant also filed a notice of past due findings, but she filed it before the findings were due. The trial court never filed any findings and conclusions. The court held that the premature notice of past due findings was insufficient and that she had therefore waived any error in the trial court's failure to make the requested findings and conclusions.

The opinion is not clear about exactly when the notice of past due findings was filed, but it is possible that the appellant read the rule about the timing of the notice of past due findings and concluded that she had to file it within 30 days of her original request even if the findings were not yet technically past due. See Tex. R. Civ. P. 297 (specifying deadline for notice of past due findings based on date of original request, not on the date the findings were due). The notice was still untimely, because under Rule 306c, the request for findings was deemed filed on the date the judgment was entered.

The lesson in all of this is that these deadlines must be carefully calendared and monitored. They are shorter than most other appellate deadlines and can easily get lost in the shuffle. When I have a case where I need findings and conclusions, I always prepare a separate chart to calculate all of the deadlines related to the request for findings and conclusions. The following bullets summarize the key dates. Although the sequence looks simple in theory, it can be devilishly complicated in practice if all of the key deadlines are not properly calendared.

• Request for findings and conclusions -- after the judgment is signed but no later than 20 days after the judgment is signed
• Notice of past due findings -- no earlier than 20 days after the request is filed, but no later than 30 days after the request was filed
• Request for additional findings and conclusions (if necessary) -- no later than 10 days after the original findings are filed

-- Rich Phillips, Thompson & Knight

Comments

[Rich Phillips]

Glad you found it helpful.

[Angela Walter]

Thank for making this an easy read.