Opinion
No. 01-03-00844-CV.
Opinion issued February 12, 2004.
On Appeal from the 189th District Court Harris County, Texas, Trial Court Cause No. 2000-19305.
Douglas Moran, Law Office of Douglas Moran for Appellant.
Bruce D. Mosier, Mosier McEnrue, P.C. for Appellee.
Panel consists of Justices TAFT, KEYES, and BLAND.
MEMORANDUM OPINION
Appellee, Jordan Memorial Church of God ("the church"), has moved to dismiss the appeal for want of subject-matter jurisdiction. See Tex.R.App.P. 42.3.
Appellant, Willie M. Wilson, has responded to the dismissal motion.
With certain exceptions, a party wishing to appeal a judgment must file its notice of appeal within 30 days after the judgment is signed. See Tex.R.App.P. 26.1. In this case, the trial court signed a final summary judgment on May 31, 2003.
Wilson filed his notice of appeal on August 13, 2003. The record does not reveal that any post-judgment motions attacking the summary judgment were filed. The church argues that Wilson's notice of appeal is untimely because he filed it more than 30 days after the trial court signed the judgment.
Wilson responds that his notice of appeal is nonetheless timely because he had timely filed a request for fact findings and legal conclusions, which request allegedly extended the deadline to perfect appeal to 90 days from the judgment's signing. See Tex.R.App.P. 26.1(a)(4) ("[T]he notice of appeal must be filed within 90 days after the judgment is signed if any party timely files: . . . a request for findings of fact and conclusions of law if findings and conclusions either are required . . . or, if not required, could properly be considered by the appellate court.").
Wilson filed his request for fact findings and legal conclusions on June 12, 2003, and the trial court refused it on June 24, 2003.
The final judgment was rendered on cross-motions for summary judgment.
Fact findings and legal conclusions have no place in a summary judgment proceeding. See, e.g., Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (considering predecessor to rule 26.1(a)(4)); Eddins v. Borders, 71 S.W.3d 368, 370 (Tex. App.-Tyler 2001, pet. denied) (considering rule 26.1(a)(4)). If findings and conclusions are filed in connection with a summary judgment, an appellate court may not consider them. See Ross v. Guerra, 83 S.W.3d 899, 900 (Tex. App.-Texarkana 2002, no pet.). Accordingly, fact findings and legal conclusions were neither "required," nor could they have properly been "considered by the appellate court" within the meaning of rule 26.1(a)(4). See Tex.R.App.P. 26.1(a)(4). Wilson's request for findings and conclusions thus did not extend the deadline for filing a notice of appeal. See Eddins, 71 S.W.3d at 370. Therefore, Wilson's notice of appeal was due 30 days after May 31, 2003, the date of the judgment's signing. See Tex.R.App.P. 26.1(a)(4). Wilson filed his notice of appeal more than a month after that deadline.
Accordingly, we grant the motion to dismiss the appeal. The appeal is hereby dismissed for want of jurisdiction. See Tex.R.App.P. 42.3(a).
It is so ORDERED.