                              NUMBER 13-14-00058-CV

                               COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG
____________________________________________________________

MERCEDES GARZA PAREDES,                                                           Appellant,

                                               v.

SERGIO GARZA AND JANAHI CRUZ,                      Appellees.
____________________________________________________________

              On appeal from the 93rd District Court
                   of Hidalgo County, Texas.
____________________________________________________________

                           MEMORANDUM OPINION
                   Before Justices Rodriguez, Benavides, and Perkes
                        Memorandum Opinion Per Curiam

       Appellant Mercedes Garza Paredes brought suit against appellees Sergio Garza

and Janahi Cruz “for [r]ecission of [f]raudulent [t]ransfer of [c]ommunity [p]roperty and

[p]ost-[d]ivorce [d]ivision of [p]roperty.” After a bench trial, the trial court entered an order
denying Paredes’s petition. Paredes attempted to appeal this order. Subsequently, we

abated the appeal for findings of fact and conclusions of law and for clarification of the

finality of the order. Because not all parties appeared at the hearing on our abatement

order, the trial court reasoned that it was unable to respond. Now, as the trial court's

order from which Paredes appeals does not dispose of all claims and all parties, we

reinstate the appeal and dismiss it for want of jurisdiction.

                                            I.       BACKGROUND

        The underlying events concern the June 23, 2010 divorce of Paredes and Garza

and property that Paredes asserts was not divided or awarded to either party in the final

divorce decree. In her December 30, 2010 original petition, Paredes complained of

Garza’s allegedly fraudulent transfer of community funds from his retirement account.

Paredes asserted that she had no knowledge of the transfer. She claimed that Garza

used these funds to purchase, in Cruz’s name, a house located at 5104 N. 38th Street,

McAllen, Texas, and a 2008 Chrysler. Garza filed no responsive pleadings. Cruz filed

an answer generally denying all claims. On January 12, 2011, the trial court issued

temporary orders enjoining Cruz from disposing of, selling, removing, encumbering,

transferring, and harming the real and personal property at issue in this case.

        On September 6, 2011, the trial court held a bench trial on this matter. All parties

testified, Paredes and Cruz represented by their respective counsel and Garza appearing

pro se. In her appellate brief, Paredes sets out the following facts from the testimony

presented at the hearing1:


         1 Appellees did not file briefs to assist us in this matter. And in this civil case we will accept as true

the facts Paredes set out in her statement of facts because no other party contradicted them and because
Paredes supported them with record references. See TEX. R. APP. P. 38.1(g) (“In a civil case, the court will

                                                        2
              Appellee Garza . . . stated that the retirement money . . . which was
       accumulated for the last twenty years was money that accrued during the
       marriage. There was no contrary evidence presented at trial which
       indicated that the retirement money of Appellee Garza was [not] community
       property of Appellant and Appellee Garza.

               ....

              At trial Appellee Garza stated that he transferred during his marriage
       to Appellant property to Appellee Cruz. Appellee Garza transferred a car
       and a house to Appellee Cruz that was purchased with money from his
       retirement account which was community property of Appellant and
       Appellee Garza. Appellee Garza stated that he did this without Appellant’s
       knowledge or permission.

                 [T]he General Warranty Deed dated December 2, 2009 [showed
       that] Grantor Yolanda Garcia deed[ed] on December 3, 2009 All of Lot 106,
       BROOKWOOD SUBDIVISION UNIT 1, an Addition to the City of McAllen,
       Hidalgo County, Texas [to] Appellee Cruz. Appellee Garza stated that
       Yolanda Garcia was the owner of the real property, and he purchased the
       real property with two certified checks one for five thousand dollars
       ($5,000.00) and the other for sixty four thousand dollars
       ($64,000.00). . . . [T]he 2008 Chrysler 300 with VIN 2C3KA43R38H122015
       . . . is registered to Appellee Cruz. . . . The sale price for the vehicle . . . is
       thirteen thousand four hundred sixty and 32/100 dollars ($13,460.32).

              Appellee Garza stated that he purchased the real property with his
       retirement money that was accumulated during his marriage. Appellee
       Garza was still married to Appellant when he took the money from his
       retirement fund and purchased the house for Appellee Cruz. Appellee
       Garza stated that Appellant had no knowledge that he was withdrawing
       money from his retirement fund to purchase real and personal property for
       Appell[ee] Cruz. Appellee Garza stated that he didn’t tell Appellant about
       the withdrawing of money from the retirement fund and purchasing the real
       and personal property for Appellee Cruz because Appellee Garza did not
       want Appellant to get the money or the house. Appellee Garza indicated
       that he bought the house so he could have something after the divorce
       without his wife, Appellant, knowing about it.

             Appellee Garza indicated that Appellee Cruz was his girlfriend.
       Appellee Garza state[d] that it was not his intent to give Appellee Cruz the
       house as a gift. The plan was to place it under Appellee Cruz[‘s] name first
       and then after the divorce the house was to be placed under his name. The

accept as true the facts stated unless another party contradicts them. The statement must be supported
by record references.”).

                                                  3
plan was for Appellee Garza and Appellee Cruz to live together and then to
get married. Appellee Garza indicated that “things changed” between him
and Appellee Cruz because the money started to run out. Appellee Garza
stated that he put the property under Appellee Cruz’s name to defraud his
wife.

      Appellee Garza indicated that he bought the 2008 Chrysler 300 on
or about April or May in 2009. Appellee Garza state[d] that he paid fifteen
thousand dollars ($15,000.00) cash for the vehicle and spent three
thousand dollars ($3,000.00) for rims and a chrome kit for the vehicle.
Appellee Garza state[d] that the money came from the retirement fund that
was community money of his marriage to Appellant.

       Appellee Garza indicate[d] that he took out approximately one
hundred thousand dollars ($100,000.00) from his retirement fund without
Appellant’s knowledge. Appellee state[d] that sixty nine thousand dollars
($69,000.00) [was] for the house that is under Appellee Cruz’s name.
Appellee Garza state[d] that he had the house painted inside and outside
[at the] cost of eight hundred dollars ($800.00), tile at [the] cost of
approximately one thousand two hundred dollars ($1,200.00), and a new
air conditioner and compressor. Appellee Garza state[d] he placed a new
sink, new faucet, and he purchased a refrigerator for the house. Appellee
Garza state[d] that Appellee Cruz did not contribute any money to the
house. Appellee Garza also state[d] the Appellee Cruz did not put any
money down on the Chrysler vehicle.

         Appellee Garza stated that he talked to Appellee Cruz to transfer the
real property and the car back to his name, and that caused Appellee Cruz
to kick him out of the house. Appellee Cruz told Appellee Garza that he
was not going to get anything back, and that Appellee Cruz already had
plans to sell the house. Appellee Garza state[d] that he told Appellee Cruz
before he bought the house that he discussed with Appellee Cruz . . . his
intent to buy the house and put it under her name and then after the divorce
put it in his name.

       [The evidence traced] the A.G. Edward Jones account and transfers
to the International Bank of Commerce account. Appellee [Garza]
demonstrated . . . [how] the funds [were] used to buy the house and the
personal property for Appellee Cruz, and that this money was from his
retirement from his place of employment. Appellee Garza stated that his
Edward Jones account only had money from his retirement from his
employment. Appellee Garza stated that Appellee Cruz [knew] that the
money to make the purchases to her were [sic] coming from the A.G.
Edward’s Account. Appellee Garza[’s] retirement fund in A.G. Edward
Jones would be transferred to his International Bank of Commerce account


                                      4
to make the payments for Appellee Cruz. . . . Appellee Garza stated that
Yolanda Garcia placed the house under Appellee Cruz name because he
told Yolanda Garcia to do it.

        Appellee Garza stated that his retirement was from the Wornick
Company in which he received six hundred five thousand dollars
($605,000.00) which was community property. The trial court questioned
Appellee Garza during the trail [sic]. The trial court stated that [it] had no
doubt that Appellee Garza purchase[d] the house from Yolanda Garcia, and
the trial court stated that [it] had no doubt that Appellee Garza gave it [to]
Janahi Cruz. The trial court asked Appellee Garza why he gave the house
to Appellee Cruz, and Appellee Garza stated because he wanted to have it
after the divorce under his name. Appellee Garza stated he put it under
Appellee Cruz name because he was dating her at the time. The trial court
stated that “I don’t believe that Ms. Mercedes Garza (Appellant) ought to be
the loser from what would have been the community estate.”

       Appellant stated at trial that she had no knowledge that Appellee
Garza bought a house during the marriage or the Chrysler motor vehicle
during the marriage. Appellant stated at trial that she was not aware of the
money transfers from the A.G. Edward’s account to International Bank of
Commerce account. Appellant had to clarify at trial that the items
purchased for Appellee Cruz were purchased during the marriage and
before the divorce.

         Appellee Cruz stated that she did have a relationship with Appellee
Garza, and that she was given a car, a house, and a few personal things.
Appellee Cruz denie[d] that Appellee Garza told her that he was buying her
the property to harm or defraud Appellant. Appellee Cruz stated that she
did not put any money for the purchase of the real property given to her by
Appellee Garza. Appellee Cruz stated that for the 2008 Chrysler 300 she
did not put any money down for the purchase. Appellee Cruz stated that
Appellee Garza purchased the real and personal property for her as gifts.
Appellee Cruz stated that she knew Appellee Garza for a short time before
the house was given to her. Appellee Cruz state[d] the “short time” was
maybe six, seven, or eight months. Appellee Cruz stated that during this
time from of six, seven, or eight months she knew that Appellee Garza was
married and that Appellee Garza and Appellant were going through a
divorce. Appellee Cruz knew that Appellee Garza was going to court to
finalize his divorce. Appellee Cruz stated that Appellee Garza got the
money to purchase the house and the car from his retirement. Appellee
Cruz state[d] that she earned the house and car because she was the
girlfriend of Appellee Garza. Appellee Cruz state[d] that the car and house
were just given to her and that she didn’t ask for anything. . . . [T]he house



                                      5
      was tax appraised at seventy nine thousand dollars ($79,000.00)
      and . . . Appellee Cruz was putting the house [up] for sale.

             After Cruz testified, the trial court commented as follows:

             Ms. Cruz, . . . the question here is not whether there was a fraud
      committed, because there was. I'm absolutely positive that Mr. Garza
      sought to defraud Mrs. Garza. . . . I don't know that there may have been a
      genuine relationship growing between you and Mr. Garza. Whatever it is,
      Mr. Garza did convey this to you, and you are the lawful owner but for the
      fraud.

             I can do a number of things. One is that I can do what the lawyers
      are asking me to do and find it was a fraudulent transfer vis-a-vis Ms.
      Mercedes Garza, in which case Mr. Garza would have somehow made
      amends to Mrs. Garza and you'd be out whatever you did to earn, as
      [counsel] asked you, for the love and affection that this gift was conveyed
      to you. Or I could find that there was fraud and order this property sold, not
      as you have it for sale but by the Court, and try to do equity.

              . . . And the other thing is to put the blame where it lies, with Mr.
      Garza. And your windfall would be to the detriment of Mr. Garza's share of
      the community estate, not Mrs. Garza, in which case the question does
      become did whatever you did for this relationship with Mr. Garza amount to
      the level where you ought have received this as a gift, because I have
      conflicting testimony. You tell me it was a gift to you, and maybe the love
      and affection was so great that it warranted such a gift. Mr. Garza tells me
      that it wasn't a gift but rather a conspiracy between you and him to defraud
      Mrs. Garza.

            What I do know is that Mrs. Garza ought not be on the losing end of
      whatever it is that occurred between Mr. Garza and yourself. . . .

              Okay. Both sides want it all. I understand that. Should the Court
      consider doing something other than ruling for one or the other, I want you
      to write me a letter, each side, proposing something either way, recognizing
      that there are arguments to be made for Ms. Mercedes Garza's position and
      also for Ms. Cruz's position. It actually does help the Court that Ms. Cruz
      already has the property up for sale. Probably she's unable to afford the
      upkeep. I don't know. And then I'll decide. I'll be deciding this case in ten
      days.

      The trial court did not, however, issue its order until November 18, 2013. On that

day, following counsels’ arguments and without further testimony, the trial court orally


                                            6
denied Paredes the relief she sought, commenting that she had “Mr. Garza to look to for

what he did to you.” The trial court’s written order, dated November 18, 2013, generally

denied Paredes’s petition and then specifically ordered the following:

              [T]he Original Petition for Rescission of Fraudulent Transfer of
        Community Property and Post-Divorce Division of Property is DENIED as
        to Respondent, JANAHI CRUZ.

               [T]he General Warranty Deed dated December 2, 2009, wherein the
        Grantor is Yolanda Garcia and the Grantee is Janahi Cruz is VALID and the
        following property shall remain as Respondent, JANAHI CRUZ’[s] sole and
        separate property, and Petitioner, SERGIO GARZA and Respondent,
        MERCEDES D[.] GARZA, are hereby divested of all rights, title, interest and
        claim in which to such property located at: 5104 N. 38th St. McAllen,
        Texas[.]

                ....

               [T]he following property shall remain Respondent, JANAHI CRUZ’[s]
        sole and separate property, and Petitioner, MERCEDES D. GARZA and
        Respondent, SERGIO GARZA, are hereby divested of all rights, title,
        interest and claim in and to such property: 2008 Chrysler 300 VIN #
        2C3KA43R38H122015.

The trial court also denied “all relief requested in this cause and not expressly granted.”

Finally, it set out, under the heading “Date of Judgment,” the following: “This order judicially

PRONOUNCED AND RENDERED in this court on SEPTEMBER 6, 2011 and further noted

on the court's docket sheet on the same date, but signed on: November 18, 2013.”2 Paredes

filed a motion for new trial, which was overruled by operation of law.




        2 Our review of the record of the September 6, 2011 hearing reveals that the trial court informed

counsel that it would rule within ten days. We find no order, judicially pronounced and rendered, at the
hearing. And we find no docket entry reflecting such a ruling.



                                                   7
       Pursuant to Texas Rule of Civil Procedure 296, Paredes filed her timely request

for findings of fact and conclusions of law on December 6, 2013. The trial court failed to

file findings and conclusions. On January 7, 2014, pursuant to Texas Rule of Civil

Procedure 297, Paredes filed her notice of past-due findings of fact and conclusions of

law, which was brought to the trial court’s attention on January 29, 2014. The trial court

did not respond to this second request.

                     II.    APPLICABLE LAW AND STANDARD OF REVIEW

A.     Findings of Fact and Conclusions of Law

       After a bench trial, a trial court must file written findings of fact and conclusions of

law when timely requested by a party. See TEX. R. CIV. P. 296, 297; Cherne Indus., Inc.

v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). We presume that the trial court's failure

to respond to a timely request is harmful error unless the record affirmatively shows that

the complaining party has suffered no harm. Cherne Indus., 763 S.W.2d at 772. An

appellant is harmed if there are two or more possible grounds on which the court could

have ruled and the appellant is left to guess the basis of the trial court's ruling. See Liberty

Mutual Fire Ins. v. Laca, 243 S.W.3d 791, 794 (Tex. App.—El Paso 2007, no pet.);

Anzaldua v. Anzaldua, 742 S.W.2d 782, 783–84 (Tex. App.—Corpus Christi 1988, writ

denied). Generally, the proper remedy in that situation is to abate the appeal and direct

the trial court to correct its error. Cherne Indus., 763 S.W.2d at 773; Zieba v. Martin, 928

S.W.2d 782, 786 (Tex. App.—Houston [14th Dist.] 1996, no pet.).

B.     Final or Interlocutory Judgment

       Unless an interlocutory appeal is authorized by statute, an appeal may only be

taken from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001).


                                               8
“[W]hen there has not been a conventional trial on the merits, an order or judgment is not

final for purposes of appeal unless it actually disposes of every pending claim and party

or unless it clearly and unequivocally states that it finally disposes of all claims and all

parties.” Id.

                              III.   ABATEMENT OF APPEAL

A.     Findings of Fact and Conclusions of Law

       On appeal, Paredes claimed that, because the trial court failed to file findings of

fact and conclusions of law in response to her requests, she was forced to guess the

reason or reasons why the trial court ruled against her. See Laca, 243 S.W.3d at 794;

Limbaugh v. Limbaugh, 71 S.W.3d 1, 7 (Tex. App.—Waco 2002, no pet.); Anzaldua, 742

S.W.2d at 783–84. Specifically, Paredes argued that she did not know whether “a

fraudulent transfer . . . occurred by Appellee Garza to Appellee Cruz in order to defraud

Appellant.”     Although the trial court awarded the property to Cruz, it made no

determination of fraud on the part of any party. Paredes claimed that, based on the trial

court’s statements, she could only assume that the conveyance of the real and personal

property to Cruz by Garza was fraudulent. Yet she “d[id] not know whether the fraud

committed involved only Appellee Garza or Appellee Cruz or both.”            Paredes also

asserted that she did not know “if the court disagree[d] with the facts alleged by her

concerning whether community funds [were] used to pay for the real and personal

property; whether the real or personal property was purchased during the marriage or

after the marriage; [whether] Appellee Cruz earned the real and personal property[; or

whether] the house or motor vehicle [were] properties not divided at the time of the

divorce.” Paredes contended that she “d[id] not know whether to focus her appellate


                                             9
claims against Appellee Cruz or Appellee Garza or both.” She claimed that “[t]he trial

court further confuse[d] [her] by stating that she should not be the losing party because

of the actions of Appellee Garza and Appellee Cruz. The trial court ma[de] a final ruling

that completely befuddle[d] [her].”

        After reviewing the record and Paredes’s contentions that she was harmed when

the trial court failed to file findings of facts and conclusions of law in response to her

requests, we concluded that the trial court’s failure to make the requested findings of fact

and conclusions of law was error and harmful because the record did not affirmatively

show that Paredes had suffered no harm. See Cherne Indus., 763 S.W.2d at 771–72.

We further reasoned that Paredes was left to guess the basis for the trial court’s ruling

because there were two or more possible grounds on which the court could have ruled.3

See Laca, 243 S.W.3d at 794; Anzaldua, 742 S.W.2d at 783–84. And on November 17,

2014, we abated the appeal and directed the trial court to correct its error by making and

filing appropriate findings of fact and conclusions of law so that the appeal could be

handled in a normal manner. See Cherne Indus., 763 S.W.2d at 773; Zieba, 928 S.W.2d

at 786.




         3 At the end of the testimony on September 6, 2011, the trial court concluded that it was “absolutely

positive that Mr. Garza sought to defraud Mrs. Garza.” The trial court stated that Cruz was “the lawful
owner but for the fraud.” The trial court recognized conflicting testimony: Cruz saying the real property and
the personal property given to her by Garza were gifts; and Garza saying that it was a conspiracy to defraud
Paredes. The court said that it could try to do equity by finding fraud and ordering the property sold by the
trial court. It stated that Paredes should not be the losing party because of the actions of Cruz and Garza.
The statements by the trial court at this September 2011 hearing provide no support for the court’s final
November 18, 2013 written order, which offered no explanation for granting the property to Cruz and for
denying all other requested relief. Instead, after the trial court announced its ruling at the November 18
hearing, it commented, “And, Ms. [Paredes], you know this was Mr. Sergio Garza’s doing. I’m signing the
Final Order Denying Petitioner’s Original Petition for Rescission of Fraudulent Transfer of Community
Property and Post-Divorce Division of Property,” and “You have Mr. Garza to look to for what he did to you.”

                                                     10
B.     Finality of Order

       We also abated the appeal to permit clarification by the trial court of the finality of

the order—specifically to address whether it intended the November 18, 2013 order to

completely dispose of all claims and all parties. See TEX. R. APP. P. 27.2, 44.3, 44.4;

Lehmann, 39 S.W.3d at 206.          Although the order from which Paredes appealed

specifically denied her petition as to Cruz, concluded that the general warranty deed was

valid as to Cruz, and divested Garza’s and Paredes’s “rights, title, interest and claim in”

the real property at issue, it did not specifically address the claims that Paredes asserted

against Garza, including but not limited to her allegations of fraud and her request for a

post-divorce division of any previously undivided community property.

                   IV.   TRIAL COURT PROCEEDINGS FOLLOWING ABATEMENT

       On December 1, 2014, the trial court held a hearing on our abatement order. At

the hearing, the trial court stated that the lawyers representing the various parties had

been noticed. The trial court further indicated that it was prepared to “address whether it

intended the November 18th, 2013 order to completely dispose of all claims and all

parties,” and “to make findings and recommendations and all appropriate orders.”

However, only counsel for appellee Cruz appeared at the hearing. No other party was

present or as represented by counsel before the trial court.          The record from the

December 1 proceedings reveals that because neither appellant Paredes, her counsel,

nor appellee Garza appeared at the hearing, the trial court passed the case until further

orders of this Court. The trial court reasoned that, under the circumstances, it could not

“proceed to [f]indings of [f]act and [c]onclusions of [l]aw and clarification of the previous

[c]ourt orders.”


                                             11
                                      V.     Analysis

       Without clarification of the trial court’s order and without findings of fact regarding

Paredes’s concerns about her claims against Garza, including her allegations of fraud

and her request for a post-divorce division of any previously undivided community

property, we cannot conclude that the trial court’s order in this case disposes of all

pending claims and parties in the underlying proceeding. See Lehmann, 39 S.W .3d at

200. Our review of the appellate record confirms that the November 18, 2013 order is not

a final judgment. Instead, because claims against Garza remain pending before the trial

court, the order is interlocutory. And no statute provides for an interlocutory appeal of an

order such as the one in this case. Therefore, we must dismiss this appeal. See id.

                                    VI.    CONCLUSION

       Accordingly, we reinstate this appeal that we abated on November 17, 2014, and

we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).



                                                                        PER CURIAM


Delivered and filed the 22nd
day of January, 2015.




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