with David Keltner

Findings of fact and conclusions of law (“FFCL”) play a crucial role in error preservation following a bench trial. This post addresses some of the procedural snares and substantive traps that continue to catch skilled attorneys.

Four of the most common snares and traps leading to waiver include:
(1) failure to meet all FFCL deadlines; (2) failure to properly object and seek additional or amended findings or conclusions; (3) attempting to rely on FFCL for interlocutory orders; and (4) failing to show that an inconsistent FFCL caused harm, the rendition of an improper judgment, or an inability to adequately present the appeal.

1.       Failure to meet all FFCL deadlines results in waiver.

      Texas Rule of Civil Procedure 296 makes securing FFCL sound easy: “in any case. . . tried without a jury, any party may request the court to state in writing its findings of fact and conclusions of law.” See Tex. R. Civ. P. 296 (providing that the request “shall be entitled ‘Request for Findings of Fact and Conclusions of Law’”). Yet, the post-judgment deadlines to seek FFCL are likely the least straight-forward or routine of all appellate deadlines. The deadlines are swift and courts of appeals are typically unforgiving of parties that fail to timely request FFCL. See Fleming v. Taylor, 814 S.W.2d 89, 91 (Tex. App.—Corpus Christi-Edinburg 1991, no writ) (“The appellant did not comply with the . . . time period set forth in Rule 297, and, as such, has waived his complaint on appeal that the trial court failed to file the findings of fact and conclusions of law.”).

First, unlike the deadline for a notice of appeal, the deadline to request FFCL is 20 days after judgment. See id. Because of the time-sensitive nature, the clerk of the court “shall immediately call such request to the attention of the judge who tried the case.” See id.

Then, the requesting party has additional deadlines that are contingent upon if and when the trial court issues FFCL. If the trial court fails to issue FFCL within 20 days after the request, the requesting party must file a notice of overdue FFCL within 30 days of the original request. See Tex. R. Civ. P. 297. Note that unlike the extended deadlines following a motion for new trial, the date of the original request (rather than the judgment itself) controls this subsequent FFCL deadline. If and when the trial court does issue FFCL, the complaining party must again preserve error by submitting proposed additions or amendments to the FFCL within 10 days. See Tex. R. Civ. 298.

2.       Failure to object and seek amended findings and conclusions waives error on appeal.

Rule 298 proves especially problematic for parties when they initially requested specific FFCL, but subsequently fail to object or seek amended or additional FFCL. See Guerrero v. Salinas, 2023 WL 2483542, at *5 (Tex. App.—Houston Mar. 14, 2023, no pet.) (“Because she did not comply with Rule 298, Guerrero waived her complaint that the probate court erred when it did not make findings regarding any element of her forgery or res judicata theories.”). Rule 298 is likely the most important step in the multi-step FFCL procedure because it is the objecting party’s opportunity to specifically assert the FFCL that it proposes are proper.

Once a court has issued unfriendly FFCL, parties must sufficiently object, including not only the basis of the objection, but the proposed findings of fact and conclusions of law that the court should issue. See Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex. App.—Houston [14th Dist.] 1999, pet.denied) (noting that FFCL are “equivalent to a jury verdict on special issues and permit the parties, as well as the reviewing court, to ascertain the true basis for the trial court’s decision”).For instance, if the case turns on a specific element of a cause of action, the objecting party must object to any adverse finding related to that element and propose an amended FFCL on that element. See Vickery, 5 S.W.3d at 252. Without presenting their specific objections to the original FFCL to the trial court, parties wholly waive these points and the appellate court will not consider these complaints on appeal. See Howe v. Howe, 551 S.W.2d 236, 247 (Tex. App.—El Paso 2018, no pet.) (holding that any omitted findings will be presumed in favor of the judgment when parties fail to request additional or amended findings).

3.      Complaints related to findings of fact and conclusions of law for an interlocutory order present nothing for review on appeal.

Pursuant to Texas Rule of Appellate Procedure 28.1(c), a trial court may file FFCL, but is not required to do so. See Serafine v. Crump, 665 S.W.3d 93, 102 (Tex. App.—Austin 2023, pet. filed).While a party may request FFCL for interlocutory orders, they do not carry the same weight as FFCL related to a final judgment. See id. (“Although findings and conclusions may be helpful in an interlocutory appeal, ‘they do not carry the same weight on appeal as findings made under rule 296, and are not binding when we are reviewing a trial court’s exercise of discretion.’”) (citing Chrysler Corp. v. Blackmon, 841 S.W.2d 8544, 852 (Tex. 1992)). The appellate court is “not limited to reviewing the sufficiency of the evidence to support the findings of fact made or limited to the specific legal conclusions reached by the trial court.” See Doran v. ClubCorp USA, Inc., 174 S.W.3d 883, 887 (Tex. App.—Dallas 2005, no pet.). Consequently, challenging a trial court’s FFCL supporting an interlocutory order will garner no substantive review on appeal. See id. (finding that the appellant’s challenge to findings of fact and conclusions of law related to an interlocutory order presented “nothing for review”).

4.       The appealing party must show error in any conflicting findings of fact and conclusions of law.

Even when a finding is omitted or conflicts with other findings or the judgment itself, parties must ensure that they show those omissions or conflicts caused harmful error. See Gutierrez v. Rios, 621 S.W.3d 907, 920 (Tex. App.—El Paso 2021, no pet.). In Gutierrez, the trial court’s judgment found that no agreement to lease or sell a property existed between the parties because there had been no meeting of the minds. See id. The trial court later filed FFCL that included a finding that Gutierrez was a holdover tenant. Id. When FFCL conflict with a judgment, the latter-filed FFCL will control. See id. Gutierrez argued on appeal that the trial court’s finding that there was a holdover tenancy conflicted with the judgment and was, therefore, reversible error. See id. The court of appeals disagreed and noted that any finding that Gutierrez was a holdover tenant was against the great weight of the evidence because Gutierrez did not dispute that no lease existed. See id. Gutierrez had failed to demonstrate “any harm resulting from this error.” See id. (noting that the “trial court’s finding that there was no meeting of the minds on a sale of the house controls and renders any error in the conflicting finding harmless”). Consequently, omitted or conflicting findings of fact is not enough on its own to warrant reversal. The complaining party must show that the omitted or conflicting finding caused harm, such as the rendition of an improper judgment or the party’s inability to adequately present its appeal.


Ultimately, parties must preserve error following bench trials by specifically seeking and objecting to findings of fact and conclusions of law. The procedure requires repeat requests and objections to avoid waiver. Problematically, the deadlines are somewhat complex and do not coincide with other appellate deadlines—at times, leading to missed opportunity to preserve error. Further, if findings and conclusions are not required, such as after the grant of summary judgment, the request for FFCL does not extend the appellate timetable. Consequently, parties must carefully consider and plan for necessary error preservation in preparation of an appeal of a bench trial to avoid waiver.

Please note that an entire post could be devoted to the intricacies of providing proposed or amended FFCL. Perhaps we can convince Mr. Keltner to return in the future to discuss the importance of properly seeking amended FFCL.