In the Estate of Walter Stanley Crane, Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 11, 2023
• Docket: 01-21-00389-CV
• Status: Published

Opinion

Opinion issued May 11, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-21-00389-CV ——————————— IN THE ESTATE OF WALTER STANLEY CRANE, JR.

On Appeal from the Probate Court No. 2 Harris County, Texas Trial Court Case No. 478731

MEMORANDUM OPINION

Appellant, Aundra Higgins Crane, filed her notice of appeal 92 days after the

trial court signed an order granting summary judgment in favor of appellee, Dolores

Pilgrim Osteen. Appellee has filed a motion to dismiss this appeal for want of

jurisdiction because appellant’s notice of appeal is untimely. We grant appellee’s

motion to dismiss the appeal. Background

The trial court signed an order granting appellee’s motion for summary

judgment on April 15, 2021 (the “Order”). The Order dismisses with prejudice “all

of Plaintiff Aundra Higgins Crane’s remaining claims asserted against Defendant

Dolores Osteen.” Appellant filed a Request for Findings of Fact and Conclusions of

Law on May 5, 2021. Appellee filed an objection to the request on May 25, 2021.

The trial court did not rule on the request, and appellant filed her notice of appeal on

July 16, 2021—92 days after the trial court signed the Order.

Discussion

Generally, the deadline to file a notice of appeal is 30 days after the judgment

is signed. TEX. R. APP. P. 26.1. The time period for filing a perfecting instrument is

jurisdictional. Velasquez v. Harrison, 934 S.W.2d 767, 770 (Tex. App.—Houston

[1st Dist.] 1996, no writ). If a reviewing court lacks jurisdiction because the notice

of appeal is untimely, it must dismiss the case. Wilkins v. Methodist Health Care

Sys., 160 S.W.3d 559, 564 (Tex. 2005).

The general 30-day deadline to file a notice of appeal can be extended if a

party timely files a request for findings of fact and conclusions of law. TEX. R. APP.

P. 26.1(a)(4). Rule 26.1(a)(4) provides that a timely-filed request extends the time

to file a notice of appeal to 90 days after the judgment is signed. Id. But this extension

applies only in cases where findings and conclusions are either required by the Rules

2 of Procedure or could be properly considered by the appellate court. TEX. R. APP. P.

26.1(a)(4). The Texas Supreme Court has made clear that “findings of fact and

conclusions of law have no place in a summary judgment proceeding.” Linwood v.

NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (findings of fact are inappropriate in

summary judgment proceeding because there cannot be genuine issue as to any

material fact for summary judgment to be rendered); see also IKB Indus. (Nigeria)

Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997) (“The trial court should

not make, and an appellate court cannot consider, findings of fact in connection with

a summary judgment.”).

Here, appellant could not invoke the 90-day deadline in Rule 26.1(a)(4)

because this Court cannot properly consider any findings of fact or conclusions of

law in reviewing the order granting summary judgment. Linwood v. NCNB Tex., 885

S.W.2d 102, 103 (holding request for findings in case concluded by summary

judgment does not extend appellate deadlines). Moreover, appellant did not timely

file her request for findings of fact and conclusions of law under Rule 296 of the

Texas Rules of Civil Procedure. See TEX. R. APP. P. 26.1(a)(4). Appellant filed her

request on May 25, 2021, which is more than 20 days after the trial court signed the

Order on April 15, 2021. See TEX. R. CIV. P. 296 (requiring request for findings of

fact and conclusions of law to be filed within 20 days after judgment is signed).

3 Conclusion

Appellant’s notice of appeal was due 30 days after the summary judgment

order was signed. See TEX. R. APP. P. 26.1. Because appellant’s notice of appeal was

untimely filed 92 days after the trial court signed its judgment, we lack jurisdiction

to consider appellant’s appeal. Accordingly, appellee’s motion to dismiss is granted,

and we dismiss the appeal for want of jurisdiction. See TEX. R. APP. 42.3(a). Any

other pending motions are dismissed as moot.

PER CURIAM

Panel consists of Chief Justice Adams and Justices Kelly and Goodman.