Pak v. AD Villarai, LLC

Dallas Court of Appeals, No. 05-14-01312-CV (February 16, 2016)

Justices Francis (Opinion), Evans (Dissent), and Stoddart

Following a bench trial, the district court entered judgment for AD Villarai. Pak requested findings of fact and conclusions of law. Meanwhile, after the trial and judgment but before Pak’s request for findings and conclusions, the presiding judge lost his reelection bid. In the weeks that followed, the judge didn’t get around to making findings and conclusions as requested. Pak filed a notice of past-due findings on December 31—8 minutes before the sitting judge was due to leave office. Shortly after taking office, the successor judge issued orders arranging to review the record and indicating her intent to issue findings and conclusions, which she did on January 12, two days after the extended deadline under Rule 297. Pak appealed.

Without reaching the merits, the Dallas Court of Appeals reversed, holding the successor judge had no authority to issue findings and conclusions in a case, like this, where she had not heard the evidence. Although Rule 18 and TEX. CIV. PRAC. & REM. CODE § 30.002(b) allow a successor judge to make findings and conclusions in specified situations—when the presiding judge has died, resigned, or become disabled—there is no statutory authority for the successor judge to act in the circumstances here, where the presiding judge left office after losing an election. The successor judge, therefore, apparently will have to retry the case.

Judge Evans dissented and would’ve reached the merits of the appeal. He argued Pak failed to preserve error by not objecting to the successor judge’s orders indicating she intended to obtain and review the record and issue findings and conclusions. Under Civil Practice & Remedies Code § 30.002(a), he explained, the successor judge could have asked her predecessor to return for the limited purpose of dealing with the findings and conclusions. Or he could have been appointed as a visiting judge, again, for the limited purpose of making findings and conclusions in support of the judgment he’d already entered. Either of these more efficient alternatives could have been pursued, said the dissent, had Pak objected.