Frieda Wesson Bosh v. Christopher Wesson Bosh

Opinion

DISMISS and Opinion Filed September 13, 2018

S In The

Court of Appeals

Fifth District of Texas at Dallas No. 05-18-00958-CV

FRIEDA WESSON BOSH, Appellant V.

CHRISTOPHER WESSON BOSH, Appellee

On Appeal from the 193rd Judicial District Court Dallas County, Texas

Trial Court Cause No. DC-18-01821

MEMORANDUM OPINION

Before Chief Justice Wright, Justice Evans, and Justice Brown Opinion by Chief Justice Wright Appellant appeals from a summary judgment granted in favor of appellee. Before the Court

is appellee’s August 27, 2018 motion to dismiss the appeal for want of jurisdiction. Appellee contends the appeal should be dismissed because appellant’s notice of appeal was untimely. Appellant did not file a response to the motion.

Without a timely post-judgment motion extending the appellate timetable, a notice of appeal is due thirty days after the date the judgment is signed. See Tex. R. App. P. 26.1. A request for findings of fact and conclusions of law will extend the time for perfecting an appeal if they are required by the rules of civil procedure or may properly be considered by the appellate court. See TEX. R. APP. P. 26.1(4). Such a request extends the time for filing a notice of appeal only where a judgment is rendered following an evidentiary hearing. See IKB Industries, Ltd. v.

Pro–Line Corp., 938 S.W.2d 440, 443 (Tex. 1997). A request for findings of fact and conclusions of law following a summary judgment is not appropriate and does not extend appellate deadlines. See Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (per curiam). Without a timely filed notice of appeal, this Court lacks jurisdiction. See Tex. R. App. P. 25.1(b).

The trial court signed the summary judgment on June 25, 2018. Appellant filed a request for findings of fact and conclusions of law. Because the trial court granted a summary judgment, the request for findings was inappropriate and did not extend the time to file a notice of appeal. See Linwood, 885 S.W.2d at 103; TEX. R. APP. P. 26.1(4). Accordingly, the notice of appeal was due on July 25, 2018, thirty days after the date the judgment was signed. Appellant filed a notice of appeal on August 22, 2018.

Because the notice of appeal was untimely, this Court lacks jurisdiction over this appeal.

We grant appellee’s motion and dismiss the appeal. See TEX. R. APP. P. 42.3(a). We deny appellee’s request for damages for frivolous appeal.

/Carolyn Wright/

CAROLYN WRIGHT

CHIEF JUSTICE

180958F.P05

3

S

Court of Appeals

Fifth District of Texas at Dallas JUDGMENT

FRIEDA WESSON BOSH, Appellant On Appeal from the 193rd Judicial District Court, Dallas County, Texas No. 05-18-00958-CV V. Trial Court Cause No. DC-18-01821.

Opinion delivered by Chief Justice Wright.

CHRISTOPHER WESSON BOSH, Justices Evans and Brown participating. Appellee

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellee CHRISTOPHER WESSON BOSH recover his costs of this appeal from appellant FRIEDA WESSON BOSH.

Judgment entered September 13, 2018.