Opinion
NUMBER 13-19-00027-CV
02-14-2019
SANDRA WILLIAMS, DESTINY WILLIAMS, KEVIN GRAHAM, KALEB WILLIAMS, DANIAL WILLIAMS, AND LAMONT WILLIAMS, Appellants, v. FIESTA TEXAS, INC., Appellee.
On appeal from the 438th District Court of Bexar County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Hinojosa
Memorandum Opinion by Chief Justice Contreras
Appellants Sandra Williams, Destiny Williams, Kevin Graham, Kaleb Williams, Danial Williams, and Lamont Williams attempted to perfect an appeal from a judgment entered by the 438th District Court of Bexar County, Texas, in cause number 2017CI10259. On September 13, 2018, the trial court granted summary judgment in this case in favor of appellee, Fiesta Texas, Inc. On September 28, 2018, appellants filed a request for findings of fact and conclusions of law. On October 12, 2018, appellants filed a motion to reconsider the summary judgment. On January 2, 2019, appellants filed their notice of appeal in the appellate court. See TEX. R. APP. P. 25.1(a).
Their appeal was transferred to this Court from the Fourth Court of Appeals by order of the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 22.220(a) (West, Westlaw through 2017 1st C.S.) (delineating the jurisdiction of appellate courts); Id. § 73.001 (West, Westlaw through 2017 1st C.S.) (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is "good cause" for the transfer).
On January 15, 2019, the Clerk of this Court notified appellants of various defects in their notice of appeal and notified them that it appeared that the appeal had not been timely perfected so that steps could be taken to correct the defects, if it could be done. Appellants were advised that the appeal would be dismissed if the defect pertaining to timeliness was not corrected within ten days from the date of receipt of this Court's letter. To date, no response has been received from appellants providing a reasonable explanation for the late filing of the notice of appeal.
Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when the notice of appeal is filed within thirty days after the judgment is signed, unless the appellant files a specified post-judgment motion, such as a motion for new trial. TEX. R. APP. P. 26.1(a)(1). Where a timely motion for new trial or other appropriate post-judgment motion has been filed, the notice of appeal must be filed within ninety days after the judgment is signed. Id. R. 26.1(a). A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Rule 26.1, but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18, 619 (Tex. 1997) (construing the predecessor to Rule 26). However, the appellant must provide a reasonable explanation for the late filing: it is not enough to simply file a notice of appeal. Id.; Woodard v. Higgins, 140 S.W.3d 462, 462 (Tex. App.—Amarillo 2004, no pet.); In re B.G., 104 S.W.3d 565, 567 (Tex. App.—Waco 2002, no pet.).
Here, in terms of post-judgment motions, appellants filed a request for findings of fact and conclusions of law. A request for findings of fact and conclusions of law will extend the time for perfecting an appeal if the findings and conclusions are required by the rules of civil procedure or may properly be considered by the appellate court. See TEX. R. APP. P. 26.1(a)(4); TEX. R. CIV. P. 296. The Texas Supreme Court has held that a request for findings of fact and conclusions of law "does not extend the time for perfecting appeal of a judgment rendered as a matter of law, where findings and conclusions can have no purpose and should not be requested, made, or considered on appeal." IKB Indus., (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997). For instance, findings and conclusions have no place in a case resolved by summary judgment because, "if summary judgment is proper, there are no facts to find, and the legal conclusions have already been stated in the motion and response." Id. at 441. Because an appellate court cannot consider findings of fact in connection with a summary judgment, a request for findings in such a case will not serve to extend the appellate deadlines. Id. at 441-42; Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (per curiam); Flathers v. Tex. Dept. of Pub. Safety, 279 S.W.3d 789, 790 (Tex. App.—Amarillo 2007, no pet.). This case is appealed from a summary judgment, and accordingly, appellants' request for findings of fact and conclusions of law did not extend the deadline to file the notice of appeal.
Appellants also filed a motion to reconsider the summary judgment. In determining the nature of a motion, we look to the "substance of the relief sought despite the formal styling of the pleading." Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 666 (Tex. 2011) (per curiam); see State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); TEX. R. CIV. P. 71. Any motion which assails the trial court's judgment, meaning which if granted would render a substantive change in the judgment entered, is a deadline-extending motion. See Ryland, 355 S.W.3d at 666; Gomez v. Tex. Dep't of Criminal Justice, Institutional Div., 896 S.W.2d 176, 177 (Tex. 1995) (per curiam). Appellants' motion to reconsider requested the trial court to set aside its order granting summary judgment. Accordingly, the motion "assailed" the trial court's judgment and extends the appellate deadline in the same manner as a motion for new trial. See Ryland, 355 S.W.3d at 666; Gomez, 896 S.W.2d at 176-77.
Because the motion to reconsider extended the appellate deadline, appellants' notice of appeal was due within ninety days after the judgment was signed on September 13, 2018, or by December 12, 2018. See TEX. R. APP. P. 26.1(a). The notice of appeal was not filed until January 2, 2019. And, while appellants did not file a motion for extension of time to file the notice of appeal, the fifteen-day period in which to obtain an extension expired prior to that date on December 27, 2018. See id. R. 26.3; Verburgt v. Dorner, 959 S.W.2d at 617-18.
The Court, having examined and fully considered the documents on file, appellants' failure to timely perfect their appeal, and appellants' failure to respond to this Court's notice, is of the opinion that the appeal should be dismissed for want of jurisdiction. Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a)(c).
DORI CONTRERAS
Chief Justice Delivered and filed the 14th day of February, 2019.