in the Estate of Rickey Ray Allen ( 2020 )

NUMBER 13-20-00289-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE ESTATE OF RICKEY RAY ALLEN, DECEASED
On Appellant’s Amended Motion to Abate and Remand.
ORDER OF ABATEMENT
Before Chief Justice Contreras and Justices Longoria and Perkes
Order Per Curiam
This cause concerns a dispute over the estate of Rickey Ray Allen. 1 Appellant Lisa
Allen, Rickey’s surviving spouse, opposed the third amended application to probate
Rickey’s alleged will filed by appellee Kenneth Lindsay. Lindsay stated in his live
application that the original executed will could not be found and sought to probate an
unsigned copy of the alleged will. See TEX. EST. CODE ANN. § 256.156. After a trial to the
bench, the trial court ruled in favor of Lindsay. Lisa requested findings of fact and
1This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
conclusions of law, and the trial court issued them on April 8, 2020. See TEX. R. CIV. P.
297. Lisa then requested additional findings of fact and conclusions of law, but the trial
court rejected her request. See TEX. R. CIV. P. 298.
Lisa has filed an amended motion asking us to abate this case and to instruct the
trial court to issue additional findings of fact concerning: (1) the cause of the
nonproduction of Rickey’s alleged will, including the reasonable diligence undertaken to
attempt to produce the alleged will; and (2) the trial court’s conclusion of law that Rickey
never revoked the alleged will. See TEX. EST. CODE ANN. § 256.156(b)(1) (providing that
probating a will not produced in court requires proof of “the cause of the nonproduction of
[the] will . . ., which must be sufficient to satisfy the court that the will cannot by any
reasonable diligence be produced”); Woods v. Kenner, 501 S.W.3d 185, 197 (Tex. App.—
Houston [1st Dist.] 2016, no pet.) (“When an original will cannot be located and was last
seen in the testator’s possession, a presumption arises that the testator destroyed the will
with the intent of revoking it.”). Lisa argues these findings are necessary because she is
otherwise forced to guess the basis for two of the trial court’s conclusions of law crucial
to her appeal. We agree.
We note that Lisa requested these additional findings after the trial court issued its
findings of fact and conclusions of law. See TEX. R. CIV. P. 298 (providing that a party
may request specified additional findings and that the trial court “shall file any additional
or amended findings and conclusions that are appropriate”); see also Robles v. Robles,
965 S.W.2d 605 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (“The failure to
request additional findings of fact and conclusions of law constitutes a waiver on appeal
of the trial court’s lack of such findings and conclusions.”). Further, upon review of the
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record, we note that there are multiple possible bases for both of the trial court’s
conclusions of law. Therefore, we conclude that Lisa is harmed by the omission of the
trial court’s findings of fact regarding the issues noted above. See Dominguez v.
Castaneda, 163 S.W.3d 318, 326 (Tex. App.—El Paso 2005, pet. denied) (“In an appeal
of a nonjury trial, findings are specifically and meaningfully tied to appropriate standards
of appellate review and are therefore truly beneficial to appellate review.”); Anzaldua v.
Anzaldua, 742 S.W.2d 782, 784 (Tex. App.—Corpus Christi–Edinburg 1987, writ denied)
(“When a timely and proper request for findings of fact and conclusions of law have been
made and the trial court fails to comply with such request, injury to the complaining party
is presumed unless the contrary appears.”); see also In re Marriage of Edwards, 79
S.W.3d 88, 4 (Tex. App.—Texarkana 2002, no pet.) (“[T]he trial court need only enter
findings, or additional findings, on ultimate or controlling issues, rather than on mere
evidentiary issues.”); Finch v. Finch, 825 S.W.2d 218, 221 (Tex. App.—Houston [1st Dist.]
1992, no writ) (noting that “[a]n ultimate fact issue is one that is essential to the right of
action” and that “[s]uch an issue seeks a fact that would have direct effect upon the
judgment”); Willmore v. Alcover, No. 13-16-00180-CV, 2018 WL 1417556, at *4 (Tex.
App.—Corpus Christi–Edinburg March 22, 2018, no pet.) (mem. op.) (noting that error is
harmful if it prevents an appellant from properly presenting the issues for appellate
review). This error and harm may be corrected by the trial court if we remand the case
with instructions to enter such findings. See White v. Pope, 664 S.W.2d 105, 107 (Tex.
App.—Corpus Christi–Edinburg 1983, no writ).
Accordingly, we GRANT Lisa’s amended motion, ABATE this appeal, and
REMAND to the trial court with instructions to enter the findings of fact underlying its
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conclusions that (1) Rickey never revoked the will; and (2) the alleged will could not be
produced by reasonable diligence, including the reason why the will could not be
produced. Those matters shall be included in a supplemental clerk’s record to be filed
with the clerk of this Court. The supplemental record shall be filed with this Court within
30 days from the date of this order. Furthermore, we withdraw our grant of Lisa’s second
motion for extension of time to file her appellate brief that we granted on September 10,
2020, which was submitted in the alternative to the amended motion to abate, and dismiss
the second motion for extension of time as moot.
The appeal will be reinstated upon receipt of the supplemental record and upon
further order of this Court.
IT IS SO ORDERED.
PER CURIAM
Delivered and filed the 18th
day of September, 2020.
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