Gladine Lane, Nell Harper v. Steve Burkett, Individually and D/B/A Burkett & Associates, Inc.

• Court: Court of Appeals of Texas
• Decided: July 29, 2004
• Docket: 13-04-00290-CV
• Status: Published

Opinion

NUMBER 13-04-290-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

GLADINE LANE, NELL HARPER, ET AL.,                             Appellants,

v.

STEVE BURKETT, INDIVIDUALLY AND

D/B/A BURKETT & ASSOCIATES, INC.,                                Appellee.

___________________________________________________________________

On appeal from the 214th District Court

of Nueces County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Justices Hinojosa, Rodriguez, and Castillo

Memorandum Opinion Per Curiam

         Gladine Lane, Nell Harper, et al., attempt to appeal a summary judgment rendered against them and in favor of appellee, Steve Burkett, individually and d/b/a Burkett & Associates, Inc. Pending before the Court is appellee’s motion to dismiss the appeal on grounds that the notice of appeal was not timely filed. Through their response, appellants contend that their notice of appeal was timely filed because they filed a request for findings of fact and conclusions of law, thereby extending the deadline to perfect appeal to within ninety days after the judgment was signed.

         The record shows that the trial court granted summary judgment on February 17, 2004. Appellants filed their notice of appeal on May 14, 2004.

         With certain exceptions, a party wishing to appeal a judgment must file its notice of appeal within thirty days after the judgment is signed. See Tex. R. App. 26.1. A request for findings of fact and conclusions of law can extend this period of time to ninety days “if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court.” Id. 26.1(a)(4); see IKB Ind. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997). However, 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. (Nigeria) Ltd., 938 S.W.2d at 443. Because findings of fact serve no purpose in a summary judgment proceeding, a request for findings of fact will not extend the deadline for filing a notice of appeal from a case decided by summary judgment. Id.; see Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994); Eddins v. Borders, 71 S.W.3d 368, 370 (Tex. App.–Tyler 2001, pet. denied). Accordingly, appellants’ 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.

         Appellants nevertheless contend that they made a bona fide attempt to invoke this Court’s jurisdiction through their request for findings of fact, and direct the Court’s attention to language therein that they “hereby inform the court of their intent to appeal this order based on the Court’s failure to consider the points raised in their response to defendant’s motion for summary judgment.” As an initial matter, we note that the record on appeal neither contains a file-stamped copy of the request for findings of fact nor does the docket sheet reflect that such a document was filed with the trial court. Moreover, even if such document had been properly filed, we would construe it as a prerequisite to appeal, not an effort to invoke appellate jurisdiction. See C. Chambers Ents., Inc. v. 6250 West Park L.P., 97 S.W.3d 333, 334 (Tex. App.–Houston [14th Dist.] 2003, pet. denied).

         Accordingly, appellee’s motion to dismiss the appeal is granted. This appeal is dismissed for want of jurisdiction. See Tex. R. App. P. 42.3(a).

                                                                                 PER CURIAM

Memorandum Opinion delivered and

filed this 29th day of July, 2004.