McClaren, Bonnie v. McClaren, Haven--Appeal from County Court at Law No 5 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

BONNIE McCLAREN,

Appellant,

v.

HAVEN McCLAREN,

Appellee.

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No. 08-02-00019-CV

Appeal from the

County Court at Law No. 5

of El Paso County, Texas

(TC# 2001-1127)

O P I N I O N

Bonnie McClaren filed an application for writ of garnishment after judgment against Haven McClaren and the Social Security Administration as garnishee. Appellee then filed a motion to quash the application, claiming with particularity that the statute upon which appellant relied in bringing her application did not apply to him.

Judgment was entered in favor of appellee on October 23, 2001 and filed of record on October 25. The order was based on the trial court=s consideration of the pleadings, stipulations of record, arguments of counsel, and the memorandums of law provided by counsel.

On October 30, appellant filed a request for findings of fact and conclusions of law. A notice of past-due findings and conclusions was filed on November 27. Appellant then filed notice of appeal on January 15, 2002. She noted that the deadline for filing such notice was January 21, pursuant to Tex. R. App. P. 26.1(a)(4). Subsequently, appellee filed a motion to dismiss for want of jurisdiction claiming that appellant=s notice of appeal was untimely.

Generally, notice of appeal must be filed within thirty days after a judgment is signed. Tex. R. App. P. 26.1. However, the notice of appeal is not due until ninety days after the judgment is signed if a party timely files a request for findings and conclusions and such findings and conclusions either are required by the Rules of Civil Procedure or could properly be considered by the appellate court. Tex. R. App. P. 26.1(a)(4).

The Supreme Court stated in IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440 (Tex. 1997):

A timely filed request for findings of fact and conclusions of law extends the time for perfecting appeal when findings and conclusions are required by Rule 296, or when they are not required by Rule 296 but are not without purpose--that is, they could properly be considered by the appellate court.

Id.at 443. The Court included, as an example of the latter, any judgment based in any part on an evidentiary hearing. Then, in Awde v. Dabeit, 938 S.W.2d 31 (Tex. 1997), decided the same day as IKB, the Court held that where a court dismissed a case as without jurisdiction based on pleadings and arguments of counsel rather than on sworn testimony, findings and conclusions as to the court=s jurisdiction Awould not serve any purpose in the court of appeals.@ Id. at 33. But see id. (holding ultimately that the request for findings of fact and conclusions of law did extend the appellate timetable in that case because the court=s judgment regarding the award of attorney=s fees had been based on sworn testimony).

In the present case, the trial court granted the motion to quash and denied the application for writ of garnishment based on its Aconsider[ation] [of] the pleadings, stipulations of record, arguments of counsel, and the memorandums of law provided by respective counsel.@ There was no evidentiary hearing, as there were no facts in controversy. At the hearing on the motions, the parties stipulated that appellee was not a federal employee, and at no point was the issue in contention. Appellant did not contend in her application that appellee had been a federal employee. In appellee=s motion to quash, he denied that he had been. Rather, the main issue between the parties was whether appellee=s Social Security earnings were subject to garnishment under 42 U.S.C. ' 659(a) because he was not a federal employee.

The trial court=s decision was based solely on its construction of the law. Therefore, findings and conclusions would not be considered on appeal.

Conclusion

Appellant=s request for findings of fact and conclusions of law did not extend the appellate timetable. Notice of appeal was due November 22. Because notice was not

made until January of the following year, it was untimely. Accordingly, we grant appellee=s motion to dismiss the appeal, and dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 25.1(b).

SUSAN LARSEN, Justice

June 20, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)