Dov Avni Kaminetzky A/K/A Dov K. Avni v. David A. Newman, Individually

• Court: Court of Appeals of Texas
• Decided: November 10, 2005
• Docket: 13-05-00465-CV
• Status: Published

Opinion

               NUMBER 13-05-465-CV

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

___________________________________________________________________

DOV AVNI KAMINETZKY A/K/A DOV K. AVNI,                                          Appellant,

                                           v.

DAVID A. NEWMAN, INDIVIDUALLY, ET AL.,               Appellees.

___________________________________________________________________

                  On appeal from the 333rd District Court

                            of Harris County, Texas.

___________________________________________________________________

                     MEMORANDUM OPINION

               Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion Per Curiam

Appellant, Dov Avni Kaminetzky a/k/a Dov K. Avni, attempts to appeal a judgment entered in a property dispute in favor of appellees, David A. Newman and Eleanor Newman, deceased.  We dismiss the appeal for want of jurisdiction.

In the instant case, the trial court entered final judgment granting defendant=s motion for summary judgment on March 10, 2005.  The trial court did not hold an evidentiary hearing prior to the entry of judgment.  Appellant requested findings of fact and conclusions of law on March 22, 2005.  The trial court denied the request that same day.  Appellant filed a notice of appeal and an amended notice of appeal on June 8, 2005.  On June 15, 2005, the trial court entered a judgment nunc pro tunc correcting the amount of funds that had been deposited into the registry of the court.  Appellant filed a second amended notice of appeal on June 26, 2005. 

On July 26, 2005,  the Clerk of this Court notified appellant, in accordance with Texas Rule of Appellate Procedure 42.3, that this Court may not have jurisdiction over this appeal because it appeared the notice of appeal was not timely filed.  Appellant was advised that the appeal would be dismissed if the defect were not corrected within ten days from the date of receipt of this Court's letter.  See Tex. R. App. P. 10.5(b), 26.3(b), 42.3(a).  Appellant's response, filed with this Court on August 15, 2005,  fails to offer a reasonable explanation for the late filing of the notice of appeal.          A notice of appeal is generally due within thirty days after a final judgment is signed.  See Tex. R. App. P. 26.1.  A timely request for findings of fact and conclusions of law will extend the time for perfecting an appeal when findings and conclusions are required by Rule 296 of the Texas Rules of Civil Procedure or, if not required, could properly be considered by the appellate court.  Id.; IKB Ind. (Nigeria) Ltd. v. Pro‑Line Corp., 938 S.W.2d 440, 443 (Tex. 1997); see Gene Duke Builders, Inc. v. Abilene Hous. Auth., 138 S.W.3d 907, 908 (Tex. 2004).  A request for findings of fact and conclusions of law will not extend the time for perfecting an appeal from a judgment rendered as a matter of law, where findings and conclusions have no purpose and should not be requested, made or considered on appeal. IKB Ind., 938 S.W.2d at 443.  Findings of fact and conclusions of law have no place in a summary judgment proceeding. Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994); Golden v. McNeal, 78 S.W.3d 488, 495 (Tex. App.BHouston [14th Dist.] 2002, pet. denied).  Accordingly, a  request for findings of fact and conclusions of law does not extend the time for filing a notice of appeal from an order granting summary judgment.  IKB Ind., 938 S.W.2d at 443; Linwood, 885 S.W.2d 102, 103 (Tex. 1994); Eddins v. Borders, 71 S.W.3d 368, 370 (Tex. App.BTyler 2001, pet. denied).

Appellant=s request for findings of fact and conclusions of law did not extend the appellate timetable.  Therefore, the time for filing the notice of appeal expired thirty days after the judgment was signed.  See Tex. R. App. P.  26.1.  Appellant=s notice of appeal was untimely, and, accordingly, we dismiss the appeal for want of jurisdiction.  See Tex. R. App. P. 42.3(a).  Any pending motions are dismissed as moot.

PER CURIAM

Memorandum Opinion delivered and filed

this the 10th day of November, 2005.