Gary L. Colvin v. Lennar Homes of Texas

• Court: Court of Appeals of Texas
• Decided: March 23, 2006
• Docket: 11-05-00366-CV
• Status: Published

Opinion

Opinion filed March 23, 2006

Opinion filed March 23, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00366-CV

                                      GARY  L. COLVIN, Appellant

                                                             V.

                         LENNAR HOMES OF TEXAS ET AL, Appellees

                                         On Appeal from the 277th District Court

                                                      Williamson County, Texas

                                              Trial Court Cause No. 04-176-C277

                                             M E M O R A N D U M   O P I N I O N

The trial court granted appellees= motion for a no-evidence summary judgment and entered a judgment that Gary L. Colvin take nothing.  The judgment was signed on June 22, 2005.  A motion for new trial was not filed.  Colvin filed his notice of appeal on September 19, 2005, eighty-nine days after the date the judgment was signed.  We dismiss.

Appellees have filed in this court a motion to dismiss the appeal.  Appellees argue that Colvin did not timely perfect this appeal.  We agree and grant the motion.

Tex. R. App. P. 26.1 provides that the notice of appeal must be filed within thirty days of the date the judgment was signed unless a timely motion for new trial or a timely request for findings of fact and conclusions of law is filed.  In his response, Colvin contends that his request for findings of fact and conclusions of law extended the appellate timetable and that his notice of appeal was timely filed.

However, in order for the filing of a request for findings of fact and conclusions of law to extend the appellate timetable, such findings and conclusions must be appropriate for the judgment being appealed.  IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440 (Tex. 1997).  Findings of fact and conclusions of law are not appropriate for the June 22, 2005, judgment.  Tex. R. Civ. P. 166a; Baker Hughes Oilfield Operations, Inc. v. Hennig Prod. Co., 164 S.W.3d 438 (Tex. App.CHouston [14th Dist.] 2005, no pet.): Stangel v. Perkins, 87 S.W.3d 706 (Tex. App.CDallas 2002, no pet.).  Therefore, Colvin=s request did not extend the appellate timetable; and Colvin has not timely perfected an appeal. 

Colvin withdrew the appellate record from this court pursuant to Tex. R. App. P. 12.4.  Colvin is now directed to return the appellate record to this court at the office of the clerk of this court on the third floor of the Eastland County Courthouse, Suite 300, Eastland, Texas, on or before April 3, 2006, at 5:00 p.m.  Tex. R. App. P. 9.2(b)(1) does not apply.

The appeal is dismissed for want of jurisdiction.

PER CURIAM

March 23, 2006

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.