Judy Freeman v. Kundu Johnson, as Independent Administrator of the Estate James Phillip Johnson

Court of Appeals of Texas

Judy Freeman v. Kundu Johnson, as Independent Administrator of the Estate James Phillip Johnson

DecidedJanuary 26, 2021

Docket04-20-00594-CV

StatusPublished

This text of Judy Freeman v. Kundu Johnson, as Independent Administrator of the Estate James Phillip Johnson (Judy Freeman v. Kundu Johnson, as Independent Administrator of the Estate James Phillip Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Judy Freeman v. Kundu Johnson, as Independent Administrator of the Estate James Phillip Johnson, (Tex. Ct. App. 2021).

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Fourth Court of Appeals San Antonio, Texas January 26, 2021

No. 04-20-00594-CV

Judy FREEMAN, Appellant

v.

Kundu JOHNSON, as Independent Administrator of the Estate James Phillip Johnson, Appellee

From the County Court At Law No. 10, Bexar County, Texas Trial Court No. 2020CV01100 Honorable David J. Rodriguez, Judge Presiding

ORDER On December 28, 2020, appellee Kundu Johnson, as Independent Administrator of the Estate of Phillip P. Johnson, Deceased, filed a motion to dismiss, arguing this court should dismiss this appeal because appellant Judy Freeman filed an untimely notice of appeal. Johnson argues that Freeman’s notice of appeal was due by September 25, 2020, and was untimely because Freeman did not file it until November 13, 2020. Johnson further argues that because findings of fact and conclusions of law cannot be considered in appeals from summary judgment orders, Freeman’s request for findings and conclusions did not extend her notice of appeal deadline. See IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997). In general, a notice of appeal must be filed within thirty days after the judgment is signed. TEX. R. APP. P. 26.1. If a party timely files a motion for new trial, then the deadline to file the notice of appeal is extended to ninety days from the date of the judgment. See id. R. 26.1(a)(4). A review of the clerk’s record shows the trial court signed its summary judgment and severance orders on August 26, 2020. Freeman then filed a request for findings and conclusions and a motion for new trial on August 28, 2020. Although Johnson is correct that Freeman’s request for findings and conclusions did not extend the appellate deadline to file her notice of appeal, her motion for new trial did. See id.; IKB Indus., 938 S.W.2d at 442. Accordingly, Freeman’s notice of appeal, which was filed within ninety days of the judgment, was timely filed. Johnson’s motion to dismiss is therefore DENIED. FILE COPY

_________________________________ Beth Watkins, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 26th day of January, 2021.

___________________________________ MICHAEL A. CRUZ, Clerk of Court

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Fourth Court of Appeals San Antonio, Texas January 26, 2021

No. 04-20-00594-CV

Judy FREEMAN, Appellant

v.

Kundu JOHNSON, as Independent Administrator of the Estate James Phillip Johnson, Appellee

From the County Court At Law No. 10, Bexar County, Texas Trial Court No. 2020CV01100 Honorable David J. Rodriguez, Judge Presiding

ORDER On December 28, 2020, appellee Kundu Johnson, as Independent Administrator of the Estate of Phillip P. Johnson, Deceased, filed a motion to dismiss, arguing this court should dismiss this appeal because appellant Judy Freeman filed an untimely notice of appeal. Johnson argues that Freeman’s notice of appeal was due by September 25, 2020, and was untimely because Freeman did not file it until November 13, 2020. Johnson further argues that because findings of fact and conclusions of law cannot be considered in appeals from summary judgment orders, Freeman’s request for findings and conclusions did not extend her notice of appeal deadline. See IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997). In general, a notice of appeal must be filed within thirty days after the judgment is signed. TEX. R. APP. P. 26.1. If a party timely files a motion for new trial, then the deadline to file the notice of appeal is extended to ninety days from the date of the judgment. See id. R. 26.1(a)(4). A review of the clerk’s record shows the trial court signed its summary judgment and severance orders on August 26, 2020. Freeman then filed a request for findings and conclusions and a motion for new trial on August 28, 2020. Although Johnson is correct that Freeman’s request for findings and conclusions did not extend the appellate deadline to file her notice of appeal, her motion for new trial did. See id.; IKB Indus., 938 S.W.2d at 442. Accordingly, Freeman’s notice of appeal, which was filed within ninety days of the judgment, was timely filed. Johnson’s motion to dismiss is therefore DENIED. FILE COPY

_________________________________ Beth Watkins, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 26th day of January, 2021.

___________________________________ MICHAEL A. CRUZ, Clerk of Court

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Judy Freeman v. Kundu Johnson, as Independent Administrator of the Estate James Phillip Johnson, Counsel Stack Legal Research, https://law.counselstack.com/opinion/judy-freeman-v-kundu-johnson-as-independent-administrator-of-the-estate-texapp-2021.

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