The Dallas Court of Appeals recently held that a notice of past due findings of fact and conclusions of law filed prematurely is ineffective and does not preserve error. Here, the trial court issued a final judgment and the defendant timely requested findings and conclusions and past due findings. The trial court subsequently entered a modified second final judgment from which the defendant appealed. The defendant, however, did not file a new request for findings or past due findings after the second judgment. One of the issues raised on appeal was the trial court’s failure to file findings of fact and conclusions of law as requested. Based on TRCP 306c, the Court held that the defendant’s premature request for findings was effective as to the second judgment. The harder question was whether or not the prematurely-filed notice of past due findings was effective.
After reviewing the purpose of the notice of past due findings, as well as existing case authority, the Court, in an opinion by Justice Evans, held that despite Rule 306c, a prematurely-filed notice of past due findings was not effective, and, thus, did not preserve error for review. Specifically, the Court stated: “If a notice of past due findings were allowed to be prematurely filed, it would defeat the purpose of reminding the trial court that it has been requested to file findings and has not done so by the time prescribed by the rules of procedure.” The Court noted that if a party was free to file the notice of past due findings prematurely, “it would become standard practice to file such notice together with the original request for findings of fact and conclusions of law. . . .” Because the defendant failed to properly file a notice of past due findings as required by Rule 297, the issue was not preserved. Consequently, the Court affirmed the judgment. The Court’s opinion in Nisby v. Dentsply Int’l, Inc. can be found here.