                                                                                          ACCEPTED
                                                                                       14-14-00556-cv
                                                                      FOURTEENTH COURT OF APPEALS
                                                                                   HOUSTON, TEXAS
                                                                                 5/14/2015 4:13:22 PM
                                                                                CHRISTOPHER PRINE
                                                                                               CLERK

                          CAUSE NO. 14-14-00556-CV

                                                                      FILED IN
                                                               14th COURT OF APPEALS
                                                                  HOUSTON, TEXAS
                                  In The                       5/14/2015 4:13:22 PM
                              Court of Appeals                 CHRISTOPHER A. PRINE
                                  For The                               Clerk
                              th
                            14 District of Texas
                ________________________________________

                            YVONNE VILLALON
                                                         Appellant,

                                       v.

                             MARIA S. GALINDO
                                                  Appellee.
                ________________________________________

                 On Appeal from the 281st Judicial District Court
                             Harris County, Texas
                         Trial Court No. 2011-39836
                ________________________________________

               Appellant’s Sur-Reply to Appellee’s Reply-Brief
               ________________________________________



                                                      Mestemaker, Straub & Zumwalt
                                                      David K. Mestemaker
                                                      dkm@msandz.com
                                                      SBN: 13974600
                                                      3100 Timmons Lane
                                                      Suite 455
                                                      Houston, Texas 77027
                                                      Telephone: (713) 626-8900
                                                      Facsimile: (713) 626-8910
                                                      Counsel for Appellant

Oral Argument Requested
                                                     Table of Contents

Index of Authorities ................................................................................. ……….. 3

Argument ................................................................................................................. 4

Did the trial court commit reversible error when it ruled against
Plaintiff/Appellant’s premises liability claim? ......................................................... 4

Did the trial court commit reversible error when it implicitly rendered
judgment against Plaintiff/Appellant’s negligence claim? ...................................... 9

Did the trial court commit reversible error when it refused to issue Findings
of Fact and Conclusions of Law? ........................................................................... 10

Did the trial court commit reversible error when it denied Plaintiff/Appellant’s
motion for new trial, when no response opposing same was filed ......................... 12

Conclusion ............................................................................................................. 13

Prayer .................................................................................................................... 14

Certificate of Service ............................................................................................ 14




                                                                  -2-
                             INDEX OF AUTHORITIES

Cases

Black’s Law Dictionary 1233
        (5th Ed. 1979)………………….…………………………...…………….………11
Black v. Dallas Cty. Child Welfare Unit
        835 S.W.2d 626, 630 n. 10 (Tex. 1992)…………………..………………….......10
Craddock v. Sunshine Bus Lines, Inc.
        133 S.W.2d 124, 126 (Tex. 1939)…………………..………………...………….12
Frommer v. Frommer
        981 S.W.2d 811, 813-14 (Tex. App.--Houston [1st Dist.] 1998, pet. dism’d).4, 5, 6
Gonzalez v. Razi
        338 S.W.3d 167, 175 (Tex. App.--Houston [1st Dist.] 2011, pet. denied)………...6
Guridi v. Waller
        98 S.W.3d 315, 316-17 (Tex. App.--Houston [1st Dist.] 2003, pet. dism’d)……...6
Hill v. Hill
        971 S.W.2d 153, 157 (Tex. App.--Amarillo 1998, no pet.)……………….....4, 5, 6
In re C.A.B.
        289 S.W.3d 874, 881 (Tex. App.--Houston [14th Dist.] 2009, no pet.)……….…..6
Kaminetzky v. Dosohs I, Ltd.
        14-14-00410-CV, (Tex. App.--Houston [14th Dist.] 2015, no writ history)….….11
Tenery v. Tenery
        932 S.W.2d 219, 30 (Tex. 1996)..…………………..…………………...……….11

Rules and Statutes

Rule 193.6....……………………………………………………………………………6, 8

Rule 296 TRCP…………………………………………………………………………..11

Rule 297 TRCP…………………………………………………………………………..10

Rule 3.3.2 of the Harris County Local Rules..…...………………..……………………..12

Texas Rules of Civil Procedure..…...………………..……………………….………...5, 7

Tex. R. Civ. P. 299a..…...………………..……………………….……………….4, 5, 6, 7




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                                       ARGUMENT

Did    the   trial   court    commit       reversible   error   when   it   ruled   against

Plaintiff/Appellant’s premises liability claim?

1.     Yes. Appellee is correct that a trial judge shall not make Findings of Fact and

Conclusions of Law in a final judgment. TRCP Rule 299a is quite specific in this regard.

“Findings of fact shall not be recited in a judgment.” Id. Appellee cites Hill v. Hill, 971

S.W.2d 153, 157 (Tex. App. – Amarillo 1998, no pet.) in her brief to suggest that the

Judge’s failure to issue findings of Fact and Conclusions of Law despite being twice

requested to do so is somehow excusable. Not true, as shown in the following paragraphs

and as was demonstrated in Appellant’s brief which Appellant incorporates herein as if

fully set forth on these pages.

2.     Appellee’s Response fails to address the issues presented in Appellant’s brief on

point of error No. 1: those being the dangerous condition of the stairs as evidenced by the

unrefuted testimony of the Plaintiff and the photographs; the scintilla of evidence

standard used to prove preponderance of the evidence; how the term unreasonably

dangerous is defined; foreseeability; and the risk of harm versus the cost of repairs.

Given that Appellee chose to not respond to any of these issues, all of them are admitted

as true for the purposes of this appeal.

3.     The First Court of Appeals has twice considered the purpose of Rule 299a. In the

case of Frommer v. Frommer, 981 S.W.2d 811, 813-14 (Tex. App. -- Houston [1st Dist.]

1998, pet. dism’d) the Court distinguished Hill when it wrote: “While we neither approve


                                               -4-
or disprove (sp) of the reasoning in Hill, we believe the purpose of Rule 299a is clear.

Findings of fact and conclusions of law shall not be recited in a judgment.” Id. at 813.

4.     Appellee suggests that because there is no conflict with the findings and

conclusions and the comments the trial judge wrote in her final judgment, that the

comments in the judgment should be given effect. Not so. First, Findings of Fact and

Conclusions of Law were requested in the underlying case; twice. (CR 12, 18 and 22).

Second, in the trial court’s Order regarding Findings of Fact and Conclusions of Law (CR

32) she wrote: “However if findings are necessary, the essential findings and conclusions

of law may be found in the Final Judgment.” (CR 32)

5.     This statement by the trial judge is the exact opposite of what Rule 299a states and

is contrary to the holding in Frommer. The Appellee and the trial judge want to hide

behind the use of the term “Proposed” versus “Requested” as letting the trial court off the

hook in having to prepare and file Findings of Fact and Conclusions of Law and thus

there is no conflict. That paper thin unjustified refusal to follow the intent and meaning

of the Texas Rules of Civil Procedure issue has been extensively briefed in Appellant’s

brief and will be expanded upon here.

6.     The failure to abide by Rule 299a renders the language in the Final Judgment a

nullity. “Essentially, Pedro argues that because no findings of fact were requested, there

is no conflict with those in the judgment, and, therefore, they should be given effect. We

reject this argument.” Frommer at 814.        The First Court went on to explain their

reasoning. “We believe the purpose behind Rule 299a is to ensure that parties have the

opportunity to work within the adversarial process to properly preserve their claims on


                                            -5-
appeal.” Id. Appellant was denied this Due Process right by the trial court’s actions, so it

should be reversed and a judgment in the full amount requested by the Appellant should

be rendered.

7.     The First Court revisited this issue of how Rule 299a works in the case of Guridi

v. Waller, 98 S.w.3d 315, 316-17 (Tex. App. – Houston [1st. Dist.] 2003, pet. dism’d.).

Therein, the Court again considered Hill v. Hill and reaffirmed its holding in Frommer

when it wrote: “We disagree with Hill and continue to follow this Court’s reasoning set

forth in Frommer.” Id. at 317. The Court went on to opine that without any separately

filed findings of fraud “we may not presume a finding of fraud.” Id. Similarly, without

any specific findings on Plaintiff’s claims, the Court may not presume they lack merit.

When this Court looks at the totality of the case and finds that the Appellee failed to

answer any discovery and further, failed to respond to the motion for new trial and failed

to attend the hearing, the appropriate remedy is to find for the Appellant and reverse and

render a decision in favor of her.

8.     Furthermore, in the cases cited by Appellee of Gonzalez v. Razi, 338 S.w.3d 167,

175 (Tex. App. – Houston [1st Dist.] 2011, pet. denied) and In re C.A.B., 289 S.w.3d 874,

881 (Tex. App. – Houston [14th Dist.] 2009, no pet.), the Courts opined that findings of

fact found in a final judgment will be allowed as long as they did not conflict with those

issued in a separate document. Id. at 175 and 881 respectively. Such was not the case

here as the trial court refused to issue findings. A reading of the trial judge’s final

judgment shows (CR 21) there is nothing mentioned regarding Defendant violating

TRCP 193.6, nothing recited regarding Plaintiff’s negligence claim, nothing recited about


                                            -6-
the slippery condition of the stairs, and no basis for her conclusion that the evidence

failed to show that “the sloping stairs at the premises posed an unreasonable risk of

harm.” (CR 21).

9.     So, if the trial judge’s final judgment is allowed to stand as is, then Appellant will

be denied her constitutional right to know on what basis this trial judge ruled against her.

Furthermore, holding against the Appellant could well encourage other trial judges of

similar mindsets to hide behind the log and write whatever they want in a final judgment

claiming it to be the equivalent of findings of fact and conclusions of law. In fact, the

trial judge in the instant case thumbed her nose at Rule 299a when she wrote in what

purports to be her findings of fact and conclusions of law when she wrote: “However, if

findings are necessary, the essential findings of fact and conclusions of law may be found

in the Final Judgment.” (CR 32). This is directly opposite of the intent and purpose of

the Texas Rules of Civil Procedure.

10.    Next, Appellee was mistaken when she wrote that the Court made no ruling on the

issue of Appellee never answering any discovery. First, Appellee’s counsel attempted to

explain his failure to answer the Interrogatories that were propounded to the Appellee

more than two and a half years before trial as follows: “I mean, it is basically a situation

if you look at the substance of the interrogatories – when I realized that we had – we had

purposely not answered them originally.” (RR pg. 8, lns. 16-19) Thus, the Appellee

intentionally refused to comply with the rules of discovery until a week before the April

23, 2014 trial; a trial setting that had been re-set at the behest of Appellee’s counsel from

January 27, 2014, as shown on the trial court’s Order dated January 27, 2014. (CR 15)


                                             -7-
11.    “And when I realized that these had not been answered, I answered them at that

particular time last week.” (RR pg. 8, lns. 21-13) Appellee’s counsel failed to explain

any good reason of any kind why he hadn’t looked at the file prior to the January, 2015

trial setting nor why he forgot that he had intentionally not answered the discovery

requests two and a half years earlier.

12.    Appellee’s counsel restricted what his issues were when he said: “The only area

that my client might offer some testimony is in reference to the notice area of the defect

she’s alleging.”; not to offer testimony about the stairs. (RR pg. 11, lns. 4-6) It is unclear

as to what “notice area” he is referencing, but notice was amply supplied when

Appellant’s boyfriend told Appellee’s husband about the dangerous condition of the

stairs and even offered to help pay for them. (RR pg. 24, lns. 11-18)

13.    Following this representation, the Court stated: “Okay. So, according to Rule

193.6: A party who fails to make, amend, or supplement a discovery response in a timely

manner may not introduce into evidence any material information that was not timely

disclosed or offer the testimony of a witness, other than a named party, who was not

timely disclosed unless the Court finds one of two things.” (RR pg. 11, lns. 7-13) So, the

trial court did make a ruling which was in compliance with what the rule requires; no

civil trials by ambush.

14.    In spite of Appellee counsel’s promise to only ask questions on notice, he did not

plead notice as an issue, even in the amended original answer that counsel filed on April

15, 2014. (CR 16-17). The only affirmative defense pertinent to this appeal found in the

amended original answer was contributory negligence. (CR 16, para. 4)


                                             -8-
15.    Appellee did not plead lack of notice nor did she plead that the stairs were not

unreasonably dangerous (CR 16-17) nor did she answer any discovery alleging anything,

so the basis of the Court’s decision is not supported by Defendant’s pleadings or the

evidence. The Appellee agreed that it was her responsibility as the landlord to rebuild the

stairs. (RR pgs. 66-67, lns. 17-25 and 1-4) The Appellee was never asked if the stairs

were dangerous, only if she agreed that the photos showed them to be sloping and

slippery. (RR pgs. 64, lns. 2-4). Despite what Plaintiff’s photo Exhibit No. 10 clearly

shows, the Appellee would not admit that the stairs are sloped. (RR pg. 64, lns. 2-3) The

Appellee would not admit that the porch had a hole in it that can easily be seen in

Plaintiff’s Exhibit No. 11. (RR pg. 63, lns. 4-24) So, the inability to honestly answer an

obvious question took away any credibility that the Appellee might have had.

16.    The empirical evidence supporting the finding that the stairs were unreasonably

dangerous is overwhelmingly in favor of the Appellant; from the photos that depict the

sloping, uneven, slippery stairs (PX 10, 11); to the Plaintiff’s testimony describing their

condition and her accident (RR pgs. 24, 26, 27 lns. 11-18, 12-14, 22-25 and 1-2

respectively); to the Plaintiff having offered to help repair the dangerous stairs (RR pgs.

23-24, lns. 22-25, 1-13 respectively) before the accident happened.

Did the trial court commit reversible error when it implicitly rendered judgment

against Plaintiff/Appellant’s negligence claim?

17.    The importance of this cause of action not having been adjudicated by the trial

court is two-fold. First, the failure of the trial court to mention Appellant’s cause of

action in the judge’s final judgment (CR 21) nor in the judge’s supposed findings of fact


                                            -9-
Order (CR 32) for simple negligence demonstrates how sloppy the trial court was with

regard to addressing all of the claims pled by Appellant. Second; the failure of Appellee’s

counsel to address Appellant’s negligence claim during the trial indicates how little

attention he paid to the Plaintiff’s claims also. Thus, Plaintiff’s negligence claim still

lives.

Did the trial court commit reversible error when it refused to issue Findings of Fact

and Conclusions of Law?

18.      The trial court chose to put form over substance in its clever denial of Appellant’s

request for findings of fact because the request was entitled “Proposed” versus “Request”

(CR 32). “Plaintiff’s ‘Proposed Findings’ do not meet the requirements for a Request for

Findings and did not provide proper notice to the Court.” (CR 32). There was no

question that the findings were timely requested by Appellant (CR 12) and it is worth

noting that Appellee’s counsel titled his request as “proposed” also (CR 18).            The

obvious reason why the trial court refused to issue findings of fact in the underlying case

is because without them, the appellate courts “will imply all necessary fact findings in

support of the trial court’s judgment.” Black v. Dallas Cty. Child Welfare Unit, 835

S.W.2d 626, 630 n. 10 (Tex. 1992)

19.      Furthermore, there is no question that Appellant timely filed her Notice of Past

Due Findings with the trial court on May 23, 2014 (CR 22) in compliance with Rule 297

TRCP. The trial judge’s minimal attempt to comply with the rules resulted in the Order

found at CR 32; hardly the format usually seen for findings of fact. In the trial court’s

Order there is no delineation of what are findings of fact and what are conclusions of law;


                                             -10-
nor is what is written therein complete. Also, the Order refers back to the final judgment

in contravention of Rule 296 TRCP. All in all, not sufficient.

20.    Contrary to Appellee’s comment that a Rule 296 request must be entitled

“Request”, Rule 296 uses the word “shall”; a word that ordinarily means mandatory.

Black’s Law Dictionary 1233 (5th. Ed. 1979). However, the dictionary goes on to construe

“shall” as “merely permissive or directory (as equivalent to ‘may’), to carry out the

legislative intention and in cases where no right or benefit to any one depends on its

being taken in the imperative sense…” Id. at 1233. More than one hundred (100) cases

were read to see if any had ever been decided upholding a trial court’s refusal to issue

findings of fact based on a misnomer in the title. None were found. So, the legislative

intent is carried out by using either the word “proposed” or “requested” because no right

or benefit to anyone depends on its being taken in the imperative sense.

21.    What is important is that the trial court’s not filing findings of fact is presumed to

be harmful. “Error is harmful if it prevents an appellant from properly presenting a case

to the appellate court.” Tenery v. Tenery, 932 S.W.2d 219, 30 (Tex. 1996). That is the

case here. Appellant is in a vacuum as to what reasoning, if any, the trial court relied

upon to render its decision. So, Appellant moves this Court to reverse the trial court and

render a decision in favor of the Appellant to correct the trial court’s abuse of discretion

or remand the case to the trial court with instructions for the trial court to issue findings

of fact as was recently so ordered in Kaminetzky v. Dosohs I, LTD, 14-14-00410-CV,

(Tex. App. – Houston [14th Dist.] 2015, no writ history).




                                            -11-
Did the trial court commit reversible error when it denied Plaintiff/Appellant’s

motion for new trial, when no response opposing same was filed?

22.    A close reading of Appellee’s argument on this point of error reveals that the

Appellee approached the motion for new trial the same way she handled the discovery

requests propounded to her during the discovery phase of the case. That is to say, that

Appellee did nothing; did not oppose the motion for new trial and did not show up at the

hearing for the motion for new trial.

23.    At the hearing the same arguments that are being made here at the appellate level

were made, without opposition, to the trial judge. (RR motion for new trial pgs. 4-5, lns.

14-25 and 1-21) The unrefuted evidence and arguments of counsel made at the motion for

new trial gave rise to the same quixotic result from the trial judge as that which occurred

in the trial; that is, denied, for no good reason. (CR 33).

24.    While the trial judge noted in her Order on the motion for new trial that she is

aware of Rule 3.3.2 of the Harris County local rules, she failed to make any finding that

the failure to respond to the motion for new trial equaled no opposition. Had the trial

judge made that finding she would have had no choice but to grant the motion for new

trial and clearly, the trial judge did not want to reverse herself.

25.    In her appellate brief, Appellee offers no explanation as to why she did not

respond to the motion; she offers no good reason why she did not respond or to not show

up at the hearing; no Craddock factors, nothing at all. For this reason, Appellant moves

this Court to reverse the trial judge and render a judgment for Appellant for $25,350.25,




                                              -12-
the sum of the amounts requested during Plaintiff’s closing argument (RR pg. 79-80, lns.

21-25 and 1-22) or removed for a new trial.

                                     CONCLUSION

26.    Appellant / Plaintiff Yvonne Villalon again urges this Court to reverse and render

a decision in favor of Appellant on her premises liability claim, because there is much

more than scintilla of evidence that Appellee knew before the accident that the stairs were

unreasonably dangerous, because they were slippery, sloped and uneven, and because

Appellant told Appellee and Appellant’s boyfriend and offered to help repair them.

Appellant was a tenant and Appellee had a duty to repair the stairs to make the premises

reasonably safe for Appellant/Invitee. Appellee did not make the repairs that her husband

said he would make and as a direct consequence, Appellant was badly injured.

27.    Appellant / Plaintiff Yvonne Villalon further urges this Court to reverse and render

a decision in favor of Appellant, because there is more than scintilla of evidence that

Appellee was negligent in that she had a duty, to provide Appellant a reasonably safe set

of stairs; a duty that she breached. The stairs in question were not safe, because they

were glossy, slick and severely sloping and the cost of repairing them was very small

when compared with the risk of injury from a fall. The Appellee breached her duty when

she did not repair the steps (again even though her husband said he would), and as a

direct consequence, Appellant was badly injured.

28.    Should this Court decide that a new trial is the fairest way of deciding these issues,

Appellant moves this Court to reverse the trial court and remand the case to the trial court

for a new trial.


                                            -13-
29.    For all of these reasons, Appellant / Plaintiff moves this Court to reverse and

render a decision in her favor or in the alternative, to remand the case back to the trial

court for a new trial.

                                          PRAYER

       For these reasons, Appellant asks this Court to reverse and render a decision on

her case, or in the alternative, remand the matter back to the trial court for a new trial.

                                            Respectfully submitted,

                                            MESTEMAKER, STRAUB & ZUMWALT

                                            By: /s/ David K. Mestemaker
                                                David K. Mestemaker
                                                dkm@msandz.com
                                                abocanegra@msandz.com
                                                TBN 13974600
                                                FBN 14410
                                                3100 Timmons Lane, Suite 455
                                                Houston, Texas 77027
                                                (713) 626-8900 Telephone
                                                (713) 626-8910 Telecopier

                                            ATTORNEY FOR APPELLANT

                              CERTIFICATE OF SERVICE

       I hereby certify a true and correct copy of the foregoing instrument was served on:

Robert Cruz
Attorney at Law
7614 Park Place Blvd.
Houston, Texas 77087

       In compliance with Rule 9.5, Tex. R. App. P., on this 14th day of May, 2015.

                                                    /s/ David K. Mestemaker
                                                    David K. Mestemaker



                                             -14-
