Jan Murray McDonald v. Wells Fargo Bank National as Trustee

• Court: Court of Appeals of Texas
• Decided: August 5, 2008
• Docket: 07-08-00252-CV
• Status: Published

Opinion

NO. 07-08-0252-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

AUGUST 5, 2008

______________________________

JAN MURRAY McDONALD, APPELLANT

V.

WELLS FARGO BANK NATIONAL AS TRUSTEE, ET AL., APPELLEES

_________________________________

FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

NO. 58985B; HONORABLE JOHN B. BOARD, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Proceeding pro se, Appellant, Jan Murray McDonald, brought this appeal from the

trial court’s final summary judgment in favor of Appellees, Wells Fargo Bank National as

Trustee, et al. (Wells Fargo). Pending before this Court is Wells Fargo’s Motion to Dismiss

for Want of Jurisdiction by which it contends that McDonald’s notice of appeal was

untimely. We agree and grant the motion and dismiss. Final summary judgment was signed by the trial court on March 12, 2008.

McDonald filed a request for findings of fact and conclusions of law on March 28, 2008.

He then filed his notice of appeal on June 9, 2008. Wells Fargo filed its motion to dismiss

on June 27, 2008. By letter dated July 10, 2008, this Court advised McDonald of the

untimely notice and directed that he demonstrate why this appeal should not be dismissed

for want of jurisdiction on or before July 21, 2008. Tex. R. App. P. 42.3(a). McDonald did

not respond.

A notice of appeal is due within thirty days after judgment is signed. Tex. R. App.

P. 26.1. The deadline is extended to ninety days under certain circumstances. Tex. R.

App. P. 26.1(a). One of those circumstances is timely filing a request for findings of fact

and conclusions of law “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;”

(emphasis added). Tex. R. App. P. 26.1(a)(4). However, findings of fact and conclusions

of law are not proper in reviewing a summary judgment and do not extend the time in which

to file a notice of appeal from thirty days to ninety days. See Linwood v. NCNB Texas, 885

S.W.2d 102, 103 (Tex. 1994). See also IKB Industries Ltd. v. Pro-Line Corp., 938 S.W.2d

440, 443 (Tex. 1997).

The summary judgment was signed on March 12, 2008, making the notice of appeal

due on or before April 11, 2008. The notice of appeal filed on June 9, 2008, eighty-nine

2 days after judgment was signed, is untimely. Consequently, this Court lacks jurisdiction

to review McDonald’s appeal.

Accordingly, Wells Fargo National Bank as Trustee, et al.’s Motion to Dismiss for

Want of Jurisdiction is granted and the appeal is dismissed for want of jurisdiction.

Patrick A. Pirtle Justice