In the Estate of Walter Stanley Crane, Jr. v. the State of Texas ( 2023 )

Opinion issued May 11, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-21-00389-CV
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IN THE ESTATE OF WALTER STANLEY CRANE, JR.
On Appeal from the Probate Court No. 2
Harris County, Texas
Trial Court Case No. 478731
MEMORANDUM OPINION
Appellant, Aundra Higgins Crane, filed her notice of appeal 92 days after the
trial court signed an order granting summary judgment in favor of appellee, Dolores
Pilgrim Osteen. Appellee has filed a motion to dismiss this appeal for want of
jurisdiction because appellant’s notice of appeal is untimely. We grant appellee’s
motion to dismiss the appeal.
Background
The trial court signed an order granting appellee’s motion for summary
judgment on April 15, 2021 (the “Order”). The Order dismisses with prejudice “all
of Plaintiff Aundra Higgins Crane’s remaining claims asserted against Defendant
Dolores Osteen.” Appellant filed a Request for Findings of Fact and Conclusions of
Law on May 5, 2021. Appellee filed an objection to the request on May 25, 2021.
The trial court did not rule on the request, and appellant filed her notice of appeal on
July 16, 2021—92 days after the trial court signed the Order.
Discussion
Generally, the deadline to file a notice of appeal is 30 days after the judgment
is signed. TEX. R. APP. P. 26.1. The time period for filing a perfecting instrument is
jurisdictional. Velasquez v. Harrison, 934 S.W.2d 767, 770 (Tex. App.—Houston
[1st Dist.] 1996, no writ). If a reviewing court lacks jurisdiction because the notice
of appeal is untimely, it must dismiss the case. Wilkins v. Methodist Health Care
Sys., 160 S.W.3d 559, 564 (Tex. 2005).
The general 30-day deadline to file a notice of appeal can be extended if a
party timely files a request for findings of fact and conclusions of law. TEX. R. APP.
P. 26.1(a)(4). Rule 26.1(a)(4) provides that a timely-filed request extends the time
to file a notice of appeal to 90 days after the judgment is signed. Id. But this extension
applies only in cases where findings and conclusions are either required by the Rules
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of Procedure or could be properly considered by the appellate court. TEX. R. APP. P.
26.1(a)(4). The Texas Supreme Court has made clear that “findings of fact and
conclusions of law have no place in a summary judgment proceeding.” Linwood v.
NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (findings of fact are inappropriate in
summary judgment proceeding because there cannot be genuine issue as to any
material fact for summary judgment to be rendered); see also IKB Indus. (Nigeria)
Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997) (“The trial court should
not make, and an appellate court cannot consider, findings of fact in connection with
a summary judgment.”).
Here, appellant could not invoke the 90-day deadline in Rule 26.1(a)(4)
because this Court cannot properly consider any findings of fact or conclusions of
law in reviewing the order granting summary judgment. Linwood v. NCNB Tex., 885
S.W.2d 102, 103 (holding request for findings in case concluded by summary
judgment does not extend appellate deadlines). Moreover, appellant did not timely
file her request for findings of fact and conclusions of law under Rule 296 of the
Texas Rules of Civil Procedure. See TEX. R. APP. P. 26.1(a)(4). Appellant filed her
request on May 25, 2021, which is more than 20 days after the trial court signed the
Order on April 15, 2021. See TEX. R. CIV. P. 296 (requiring request for findings of
fact and conclusions of law to be filed within 20 days after judgment is signed).
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Conclusion
Appellant’s notice of appeal was due 30 days after the summary judgment
order was signed. See TEX. R. APP. P. 26.1. Because appellant’s notice of appeal was
untimely filed 92 days after the trial court signed its judgment, we lack jurisdiction
to consider appellant’s appeal. Accordingly, appellee’s motion to dismiss is granted,
and we dismiss the appeal for want of jurisdiction. See TEX. R. APP. 42.3(a). Any
other pending motions are dismissed as moot.
PER CURIAM
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
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