Dismissed and Memorandum Opinion filed September 30, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-04-00865-CV
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WAYNE WARD, Appellant
V.
DENNIS SIEGMUND, Appellee
On Appeal from the 155th District Court
Waller County, Texas
Trial Court Cause No. 03-02-16692
M E M O R A N D U M O P I N I O N
This is an attempted appeal from a final judgment signed April 15, 2004 after a trial to the court. Appellant filed a timely motion for new trial and request for findings of fact and conclusions of law. When appellant has filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law, the notice of appeal must be filed within ninety days after the date the judgment is signed. See Tex. R. App. P. 26.1(a). Notice of appeal was therefore due on or before July 14, 2004. Appellant=s notice of appeal was not filed until August 2, 2004.
On September 10, 2004, notification was transmitted to all parties of the Court=s intention to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). Appellant filed a response to the court=s notice on September 21, 2004. Appellant=s response fails to demonstrate that this court has jurisdiction to entertain the appeal.
In his response, appellant asserts that the April 15, 2004 judgment was not final because the trial court did not specifically address appellant=s counterclaim. On July 14, 2004, the trial court entered its findings of fact and conclusions of law. Appellant contends that the court did not finally dispose of his counterclaim until it entered its findings and conclusions. In those findings and conclusions, the court stated, AWard=s request for damages is denied.@ Thus, appellant argues that the July 14, 2004 letter from the trial court containing its findings of fact and conclusions of law is the final judgment, making his notice of appeal timely.
The Texas Supreme Court has long recognized the presumption that a judgment rendered after a conventional trial on the merits is final and appealable. Moritz v. Preiss, 121 S.W.3d 715, 718 (Tex. 2003); see also Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 198-99 (Tex. 2001) (citing North E. I.S.D. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex. 1966) (holding judgment was presumed to dispose of cross-action)). The supreme court recently affirmed the finality presumption for judgments rendered after a full trial on the merits. See John v. Marshall Health Serv., Inc., 58 S.W.3d 738, 740 (Tex. 2001) (holding finality presumption applied to all parties even though judgment did not expressly dispose of all parties). Thus, issues and parties may be disposed of expressly or by necessary implication. See Aldridge, 400 S.W.2d at 895.
In addition, findings of fact and conclusions of law are to be entered in a separate document from the judgment. Rule 299a provides that A[f]indings of fact shall be filed with the clerk of the court as a document or documents separate and apart from the judgment.@ Tex. R. Civ. P. 299a. The findings and conclusions also explained that the court=s damages award took appellant=s counterclaim into consideration; thus, the judgment had impliedly ruled on the counterclaim. Therefore, we conclude that the judgment signed April 15, 2004 is a final judgment, and the appellate timetable is calculated from April 15, 2004.
Appellant=s notice of appeal was not filed timely. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1, but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 9 (1997) (construing the predecessor to Rule 26). Appellant=s notice of appeal was not filed within the fifteen-day period provided by rule 26.3
Accordingly, the appeal is ordered dismissed.
PER CURIAM
Judgment rendered and Memorandum Opinion filed September 30, 2004.
Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.