Elliott, Joyce v. Kraft Foods North America, Inc.--Appeal from 11th District Court of Harris County

Affirmed in Part, Reversed and Remanded in part, and Majority and Concurring Opinions filed July 24, 2003

Affirmed in Part, Reversed and Remanded in part, and Majority and Concurring Opinions filed July 24, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00243-CV

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JOYCE ELLIOTT, Appellant

V.

KRAFT FOODS NORTH AMERICA, INC., Appellee

On Appeal from the 11th District Court

Harris  County, Texas

Trial Court Cause No. 01-29856

C O N C U R R I N G O P I N I O N

The trial judge did not make written findings of fact and conclusions of law as ordered by this court. Whether the judge=s conduct was deliberate or merely inadvertent cannot be determined from the record before us.

The press of business, particularly in a busy, urban trial court, is daunting. Thus, the trial judge=s failure to make findings of fact may have been unintentional. However, as the majority opinion makes clear, the circumstances surrounding the trial judge=s inaction, in the face of repeated requests, suggests his conduct may have been a deliberate refusal, as opposed to a negligent failure. In any event, because the trial judge did not make findings of fact, this court was forced to conduct an otherwise unnecessary harm analysis regarding the absence of written findings of fact, and, as the majority notes, this absence Amakes our review [of the appellate issues] somewhat awkward.@

The violation of a court=s order is an issue of contempt. In re Acceptance Ins., 33 S.W.3d 443, 449 (Tex. App.CFort Worth 2000, orig. proceeding). The power to punish a party who fails or refuses to obey an order or decree of the court is an inherent power of a court and is an essential element of judicial independence and authority. In re Reed, 901 S.W.2d 604, 611 (Tex. App.CSan Antonio 1995, orig. proceeding). If the trial judge intentionally refused to comply with our order, such an act tends to bring this court into disrespect. Id. at 612. It is the duty of this court to give the trial judge an opportunity to explain his actions, and if it should become apparent, after a hearing, that he acted intentionally and contemptuously, to punish him accordingly. Id. For these reasons, the court should schedule a show cause hearing to determine the issue.

While I concur in the majority=s disposition of appellant=s points of error, I first would have determined the underlying issue regarding the reasons for the want of written findings and conclusions. With these observations, I concur in this court=s judgment.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Majority and Concurring Opinions filed July 24, 2003.

Panel consists of Justices Yates, Hudson, and Frost.