Yolanda R. Balderas v. First Capital Interest, L.L.C. and Ronald J. Sommers, as Trustee for Major Funding Corporation Liquidating Trust--Appeal from County Civil Court at Law No. 4 of Harris County

11th Court of Appeals

Eastland, Texas

Opinion

Yolanda R. Balderas

Appellant

Vs. No. 11-02-00015-CV B Appeal from Harris County

First Capital Interest, L.L.C. and Ronald J. Sommers,

as Trustee for Major Funding Corporation Liquidating Trust

Appellees

Based on the jury=s verdict, the trial court entered a judgment that Yolanda R. Balderas take nothing on her claims against First Capital Interest, L.L.C. and against Ronald J. Sommers as Trustee for Major Funding Corporation Liquidating Trust. The trial court determined that First Capital would take nothing on its claims against Sommers and against Balderas. The trial court signed the judgment on September 20, 2001. Balderas filed a request for findings of fact and conclusions of law on September 21, 2001. Balderas then filed her notice of appeal on November 16, 2001, 57 days after the date the judgment was signed.

Sommers has filed in this court a motion to dismiss the appeal for want of jurisdiction because Balderas failed to timely perfect an appeal. Sommers argues that Balderas=s request for findings of fact and conclusions of law is not proper since a jury trial was conducted and, therefore, that Balderas=s request did not extend the time for filing a notice of appeal under TEX.R.APP.P. 26.1 from 30 days to 90 days. Balderas has filed a response contending that her request for findings of fact and conclusions of law is proper because the Acase was submitted to the jury on very limited special issues@ and because Athe trial court was required to make interpretation of the jury answers.@

In her first amended petition, Balderas alleged that she contracted with Major United Stell Siding Corp. in 1982 for Major United to install carpet and padding in her homestead. Major United assigned the contract and deed of trust to Bernard and Judith Wolstein who later assigned the contract to Major Funding Corporation, a defendant in Balderas=s suit. In 1992, Sommers Ainduced@ her to execute a promissory note payable to Sommers to renew and extend her obligation under the contract. Balderas=s homestead was sold in a forced sale in 1999.

Balderas sought to recover under the theories of usery, violation of the Deceptive Trade Practices-Consumer Protection Act (TEX. BUS. & COM. CODE ANN. ' 17.41 et seq. (Vernon 2002), violations of the TEX. FIN. CODE ANN. ' 392.001 et seq. (Vernon 1998 & Supp. 2002), and unlawful foreclosure. Balderas also sought to recover attorney=s fees under the Declaratory Judgment Act (TEX. CIV. PRAC. & REM. CODE ANN. ' 37.001 et seq. (Vernon 1997 & Supp. 2002).

The charge to the jury contained 14 questions. The questions addressed the cost of the materials and labor for installing the carpet, the notice Major Funding gave Balderas concerning foreclosure and right to remedy, the amount of money Sommer collected under the original 1982 contract, reasonable attorney=s fees for Balderas defending her rights against First Capital, First Capital=s reliance on Major Funding=s foreclosure on Balderas=s home, First Capital=s economic damages, reasonable attorney=s fees for First Capital, Balderas representations to First Capital, damages to be assessed against Balderas and Major Funding, and Balderas=s possible waiver of her right to claim that a lien did not attach to her homestead.

We disagree that the questions to the jury were Avery limited.@ The trial court=s judgment recites that it is based on the jury=s verdict.

TEX.R.CIV.P. 296 provides that A[i]n any case tried in the district or county court without a jury, any party may request...findings of fact and conclusions of law.@ Because this trial was not a nonjury trial within the meaning of Rule 296, the request for findings of fact and conclusions of law does not work to extend the appellate deadlines; and the notice of appeal was not timely filed.

Sommers=s motion to dismiss is granted. The appeal is dismissed for want of jurisdiction.

PER CURIAM

September 12, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.