Lushann Energy International Incorporated v. General Electric Energy Rentals Incorporated--Appeal from 157th District Court of Harris County

Dismissed and Memorandum Opinion filed August 26, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-04-00652-CV

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LUSHANN ENERGY INTERNATIONAL INC., Appellant

V.

GENERAL ELECTRIC ENERGY RENTALS INC., Appellee

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 04-03924

M E M O R A N D U M O P I N I O N

This is an attempted accelerated appeal from an interlocutory order granting a temporary injunction signed April 23, 2004. See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(4) (Vernon Supp. 2004). Appellant timely filed a motion for reconsideration and request for findings of fact and conclusions of law. Appellant=s notice of appeal was not filed until July 1, 2004.

On August 16, 2004, appellee filed a motion to dismiss the appeal for want of jurisdiction. In its motion, appellee asserts that appellant=s notice of appeal is untimely because neither a motion for reconsideration nor a request for findings of fact and conclusions of law extends the time to perfect an accelerated appeal.

Appeals from interlocutory orders are accelerated. Tex. R. App. P. 28.1. In an accelerated appeal, the notice of appeal must be filed within twenty days after the judgment or order is signed. Tex. R. App. P. 26.1(b). Filing a motion for new trial will not extend the time to perfect the appeal. Tex. R. App. P. 28.1. A motion for reconsideration is the equivalent of a motion for new trial. The twenty-day period for filing a notice of appeal in accelerated cases is not extended by the filing of post-judgment motions or requests for findings of fact and conclusions of law. See In re D.K.P., No. 07-03-0356-CV, 2003 WL 22175937 (Tex. App.CAmarillo Sept. 17, 2003, no pet.) (mem. op.) (holding motion to modify and request for findings of fact and conclusions of law do not extend timetable in accelerated appeal); Vaughn v. Sawyer, No. 04-03-00297-CV, 2003 WL 21338615 (Tex. App.CSan Antonio June 11, 2003, no pet.) (mem. op.) (holding motion for new trial and request for findings of fact and conclusions of law do not extend timetable in accelerated appeal). Texas Rule of Appellate Procedure 26.1(a)(4), which extends the time to perfect an appeal to ninety days after judgment when findings of fact and conclusions of law are requested, applies only to final judgments. Hone v. Hanafin, 105 S.W.3d 15, 18 (Tex. App.CDallas 2002), rev=d on other grounds, 104 S.W.3d 884 (Tex. 2003); Lipshy Motorcars, Inc. v. Sovereign Assocs. Inc., 944 S.W.2d 68, 70 n.3 (Tex. App.CDallas 1997, no writ) (holding predecessor to Rul 26.1(a) applies to final judgments, not interlocutory orders).[1] Therefore, we hold that appellant=s request for findings of fact and conclusions of law does not extend the time to perfect this accelerated appeal. To hold otherwise, would defeat the purpose of acceleration. Accordingly, appellant=s notice of appeal was not filed timely.

Pursuant to Texas Rule of Appellate Procedure 26.3, an appellate court may extend the time to file a notice of appeal if, within fifteen days after the deadline for filing the appeal notice, the party files a notice of appeal in the trial court and a motion for extension of time in the court of appeals. Hone v. Hanafin, 104 S.W.3d 884, 885-86 (Tex. 2003) (holding belief that request for findings of fact and conclusions of law extended time to perfect accelerated appeal constituted reasonable explanation for late filing entitling appellant to extension of time). Appellant=s notice of appeal was not filed within the fifteen-day period for extensions, however.

Accordingly, we grant appellee=s motion. The appeal is ordered dismissed for want of jurisdiction. Tex. R. App. P. 42.3(a).

PER CURIAM

Judgment rendered and Memorandum Opinion filed August 26, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

[1] The Texas Supreme Court has not determined whether a request for findings of fact and conclusions of law extends the appellate timetable in an interlocutory appeal under Rule 26.1(b). See Hone, 104 S.W.3d at 888 n. 2.