Milburn Vernor, et al. v. Zavala County Appraisal District and Wintergarden Groundwater Conservation Water District--Appeal from 293rd Judicial District Court of Zavala County

MEMORANDUM OPINION
No. 04-04-00228-CV
Milburn VERNOR et al.,
Appellants
v.
ZAVALA COUNTY APPRAISAL DISTRICT

and Wintergarden Groundwater Conservation Water District,
Appellees
From the 293rd Judicial District Court, Zavala County, Texas
Trial Court No. 97-06-0602-TX
Honorable Amado Abascal, III, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: August 18, 2004

DISMISSED FOR LACK OF JURISDICTION

In this case, the trial court signed a final summary judgment on January 8, 2004. Because appellants did not file any post-judgment motions attacking the summary judgment, the notice of appeal was due to be filed February 9, 2004. Appellants filed their notice of appeal on April 2, 2004. On July 23, 2004, we ordered appellants to show cause in writing why this appeal should not be dismissed for lack of jurisdiction. On August 4, 2004, appellants responded to our order. Appellants respond that their notice of appeal is timely because they had timely filed a request for fact findings and legal conclusions, which allegedly extended the deadline to perfect appeal to 90 days from the final judgment's signing. (1) 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 .").

Fact findings and legal conclusions, however, have no place in a summary judgment proceeding. 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. 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). Appellants' request for findings and conclusions thus did not extend the deadline for filing the notice of appeal. Eddins, 71 S.W.3d at 370. Therefore, appellants' notice of appeal was due 30 days after January 8, 2004, the date of the judgment's signing. See id. Appellants filed their notice of appeal almost two months after that deadline. Accordingly, the appeal is dismissed for want of jurisdiction. See Tex. R. App. P. 42.3(a).

PER CURIAM

1. Appellants filed their request for fact findings and legal conclusions on January 13, 2004.