Debra Ann Holland v. William Dallas Holland, Jr.

• Court: Court of Appeals of Texas
• Decided: August 25, 2021
• Docket: 10-21-00144-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00144-CV

DEBRA ANN HOLLAND, Appellant v.

WILLIAM DALLAS HOLLAND, JR., Appellee

From the 413th District Court Johnson County, Texas Trial Court No. DC-C202000541

MEMORANDUM OPINION

Debra Ann Holland has attempted to appeal the trial court’s summary judgment

rendered against her on March 8, 2021. By letter dated July 26, 2021, the Clerk of this

Court notified Holland that her appeal appeared untimely because even if findings of fact

and conclusions of law were timely requested, they would not extend the time to file a

notice of appeal and because Holland’s motion for new trial was not timely filed. In the

same letter, the Clerk warned Holland that the appeal would be dismissed unless, within

14 days from the date of the letter, Holland filed a response with the Court showing grounds for continuing the appeal.

Fourteen days passed, and Holland did not file a response. However, Holland

filed a response, postmarked August 10, 2021, one day beyond the 14-day window.

Even if Holland’s response had been timely filed, it did not show grounds for

continuing the appeal. Holland contended in her response that both her request for

findings of fact and conclusions of law and her motion for new trial were timely filed.

She attached postal receipts in an attempt to prove the documents’ timeliness by showing

when the documents were mailed. However, these receipts only show that unknown

items were mailed. There is no showing, other than Holland’s handwritten notations, as

to what was mailed and to whom it was sent.

The Texas Supreme Court has said that a party is not entitled to findings of fact

and conclusions of law following summary judgment, and a request in that situation does

not extend the time for perfecting an appeal of the summary judgment. Ikb Indus. v. Pro-

Line Corp., 938 S.W.2d 440, 442-443 (Tex. 1997). Thus, even if Holland’s request for

findings of fact and conclusions of law was timely filed, it does not extend the time for

Holland to file a notice of appeal.

Further, because we could not determine the timeliness of Holland’s motion for

new trial from her response or from other documents on file, we requested a clerk’s

record from the trial court clerk, limited to a docket sheet or index and the motion for

new trial filed allegedly by Holland, including a copy of any envelope or container in

which the motion for new trial was received.

Holland v. Holland Page 2 Upon receipt of the limited clerk’s record, we learned that Holland’s motion for

new trial was signed on April 7, 2021, but not received and filed until April 19, 2021.

Although the clerk did not copy the entire postmark on the envelope, we are able to

discern that the envelope was postmarked on April 12, 2021, and the postage was printed

on April 12, 2021. The envelope is filed as part of the motion for rehearing based on the

limited clerk’s record (it is not indexed in any way as being a separate document of any

type). Moreover, we specified that the limited record include the mail receptacle in which

the motion for new trial was received. Based on the docket sheet, which was also

specifically requested and made part of the limited clerk’s record, the envelope could

have been for nothing else. Also based on the docket sheet, nothing else was received

from the time of the filing of the request for findings of fact and conclusions of law and

the motion for new trial.

To the extent Holland has argued that, under Rule 4 of the Texas Rules of Civil

Procedure, she has an additional 10 days, that rule only applies if the postage cancellation

stamp indicates it was timely mailed; and in this instance, it does not. The postage

cancellation stamp indicates that it was mailed 5 days after the due date. Accordingly,

the motion for new trial was not timely filed and, therefore, cannot operate to extend the

time in which to file a notice of appeal to invoke this Court’s jurisdiction.

There being nothing timely filed to extend the time to file a notice of appeal,

Holland’s notice of appeal was due on April 7, 2021. See TEX. R. APP. P. 26.1. It was not

filed until June 28, 2021. This date being more than 15 days from the date the notice of

appeal was due, Holland’s motion for extension of time to file her notice of appeal cannot

Holland v. Holland Page 3 extend the time to file her notice of appeal and is, therefore, denied. See TEX. R. APP. P.

26.3.

Accordingly, we have no jurisdiction of this appeal, and it is dismissed. TEX. R.

APP. P. 42.3 (a), (c).

Any other outstanding motions or requests are dismissed as moot.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Jim R. Wright 1 Appeal dismissed Motions denied and dismissed as moot Opinion delivered and filed August 25, 2021 [CVO6]

1 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.

Holland v. Holland Page 4