                              NO. 07-02-0149-CV

                         IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                                AT AMARILLO

                                  PANEL E

                                APRIL 7, 2003

                      ______________________________


          LUBBOCK COUNTY CENTRAL APPRAISAL DISTRICT, APPELLANT

                                      V.

                       JESSE CONTRAREZ, APPELLEE


                    _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 93-730,705; HONORABLE JIM BOB DARNELL, JUDGE

                     _______________________________

Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1


                                  OPINION




      1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
       This appeal arises from a judicial foreclosure by the Lubbock Central Appraisal

District (the District), pursuant to Chapter 34 of the Tex Code,2 of tax liens on two tracts

of land owned by Jesse Contrarez. A foreclosure sale of the property was held in

December 1999. The property was sold for an amount more than sufficient to satisfy the

District’s liens, as well as the federal tax liens on it. As required by section 34.03(a)(1),

the District Clerk notified Contrarez that there were excess proceeds to which he was

entitled being held by her office. In the notice, the clerk recited the statutory procedures

for obtaining the excess proceeds of a tax sale.


       On November 27, 2001, Contrarez consulted with attorney Samuel Brown Silverman

about claiming the excess proceeds. As a result of the conversation, in exchange for

$450, Contrarez assigned his claim to the proceeds in writing to Silverman. On November

29, 2001, by virtue of the assignment, Silverman filed his claim in this cause for the excess

proceeds of the tax foreclosure sale. He attached the written assignment of the proceeds

to him from Contrarez to his motion.


       On January 3, 2002, a hearing was held on Silverman’s motion at which Silverman

testified as to the facts concerning the assignment. In the course of his testimony,

Silverman said he had told Contrarez he would charge between $1,000 and $2,000 to

handle the recovery of the excess. When asked if he had told Contrarez that other

attorneys might charge less, Silverman responded that he did not know what other


       2
       All statutory references will be to the Texas Tax Code Ann. (Vernon 2002), unless
otherwise specifically noted.

                                             2
attorneys would charge. The trial judge then inquired why Contrarez was not present at

the hearing. Silverman responded that it was because he did not believe Contrarez had

any claim to the excess proceeds. Although Contrarez’s signature on the assignment was

notarized, the trial judge said he wanted to speak to him “to confirm that he did, in fact,

sign this document. Silverman provided the judge with Contrarez’s address and the

telephone number of Contrarez’s daughter.


       On March 18, 2002, Silverman filed a motion to enter judgment on his pleading.

That motion was heard on March 29, 2002. Contrarez did not appear at the hearing. The

trial judge opened the hearing by remarking:


       Mr. Silverman, the court has visited with Mr. Contrarez. The court is of the
       opinion that you can do one of two things. You can work something out with
       Mr. Contrarez, or I will refer you to the grievance board because it is the
       court’s opinion that you committed fraud in the conversation you had with Mr.
       Contrarez.


The trial judge signed an order denying Silverman’s motion the same day. Silverman filed

a request for findings of fact and conclusions of law and, when they were not timely filed,

a notice of past due findings of fact and conclusions of law pursuant to Rule of Civil

Procedure 297. However, no such findings and conclusions were ever filed.


       Silverman duly perfected this appeal and, in doing so, presents two issues for our

determination. They are whether the trial court reversibly erred by failing to 1) release the

excess proceeds to him, and 2) file findings of fact and conclusions of law. The District is

not a party to the appeal.

                                             3
       We initially address Silverman’s second issue. A trial court has a mandatory duty

to file findings of fact and conclusions of law when they are requested in compliance with

Rule 297 and the failure to do so is presumed to be harmful. Cherne Industries, Inc. v.

Magallenes, 763 S.W.2d 768, 772 (Tex. 1989). The test for harm depends upon the

circumstances of the case and whether an appellant would have to guess the reasons for

the trial judge’s ruling. Elizando v. Gomez, 957 S.W.2d 862, 865 (Tex. App.–San Antonio

1997, pet. denied).


       Ordinarily, the remedy for the erroneous failure to file findings of fact and

conclusions of law is to abate the appeal for entry of findings and conclusions. See

Rothwell v. Rothwell, 775 S.W.2d 888, 890 (Tex. App.–El Paso 1989, no writ). However,

in this particular instance, there is no need for such an abatement because 1) the reason

for the court’s ruling is clear from the record, and 2) the record fails to show any disputed

fact issue for the court’s resolution. See City of Galveston v. Giles, 902 S.W.2d 167, 170

n.2 (Tex. App.–Houston [1st Dist.] 1995, no writ) (holding findings of fact are not

appropriate in a trial on stipulated facts).


       The evidence is undisputed that Silverman is the assignee of Contrarez’s claim to

the excess proceeds and that he claimed those proceeds in compliance with the applicable

statutory requirements.3 The trial court’s stated reasons for denying Silverman’s claim was


       3
        Section 34.04 of the Tax Code was amended after the foreclosure and sale but
before the assignment to Silverman. The amendment added subsections (e) through (l).
Silverman’s assignment contains each of the additional requirements imposed by
subsection (f) of the current statute.

                                               4
that Silverman had committed fraud in connection with obtaining the assignment. The

judge’s conclusion was apparently based upon an ex parte conversation with Contrarez.

The contents of the conversation are not shown in the record, nor does it show that the

statement was made under oath. In reviewing the trial court’s actions, we may not

consider matters that are outside the record. Cushnie v. State Bar of Texas, 845 S.W.2d

358, 361 (Tex. App.–Houston [1st Dist.] 1992, writ denied).


      Because the only record before us conclusively establishes Silverman’s right to the

excess proceeds, we must, and do, hereby reverse the trial court’s order and render

judgment for Silverman for the excess proceeds held by the district clerk. Tex. R. App. P.

43.2(c).



                                                John T. Boyd
                                                Senior Justice




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