DISMISS; Opinion Filed June 27, 2013.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00265-CV
JOHN T. JENKINS, Appellant
V.
COUNSELORS LINDSAY L. LAMBERT AND CHERYL R. WORLEY, ET AL.,
Appellees
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-12-04402
MEMORANDUM OPINION
Before Justices Lang, Myers, and Evans
Opinion by Justice Evans
Before the Court are appellees Lindsay Lambert’s and Cheryl Worley’s motions to
dismiss for want of jurisdiction. Both assert we should dismiss the appeal because it was
untimely filed. We agree.
Our jurisdiction is fundamental and invoked only upon the timely filing of a notice of
appeal from a final judgment or appealable interlocutory order. See TEX. RS. APP. P. 25.1(b),
26.1; Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); K & S Interests, Inc. v. Tex.
Am. Bank/Dallas, 749 S.W.2d 887, 890 (Tex. App.—Dallas 1988, writ denied). Generally, a
notice of appeal must be filed within thirty days of judgment. TEX. R. APP. P. 26.1. Under rule
of appellate procedure 26.1(a), this deadline is extended to ninety days if any party timely files a
(1) motion for new trial, (2) motion to modify the judgment, or (3) motion to reinstate under
Texas Rule of Civil Procedure 165a. See TEX. R. APP. P. 26.1(a). The deadline is also extended
in cases tried before the bench if any party timely files a request for findings of fact and
conclusions of law, and findings and conclusions either are required by the rules of civil
procedure or could properly be considered by the appellate court. TEX. R. CIV. P. 296; TEX. R.
APP. P. 26.1(a); IKB Indus. Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997).
The record here reflects the trial court signed its judgment December 12, 2012, and the
notice of appeal was filed February 6, 2013. No party filed any of the post-judgment motions
listed in rule 26.1(a), but appellant John Jenkins timely filed a request for findings of fact and
conclusions of law. As Lambert and Worley point out in their motions, however, findings and
conclusions in an appeal from a summary judgment are not appropriate and a request for them
does not extend appellate deadlines. See Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex.
1994) (per curiam). As such, Jenkins’s notice of appeal was due January 11, 2013 or, with a
timely extension motion, January 28, 2013. See TEX. RS. APP. P. 4.1(a), 26.1, 26.3. Jenkins’s
February 6th notice failed to invoke our jurisdiction.1 Accordingly, we grant Lambert’s and
Worley’s motions and dismiss the appeal. See id. 42.3(a).
130265F.P05
/David Evans/
DAVID EVANS
JUSTICE
1
In response to Worley’s motion, Jenkins, who is appearing pro se, asserts he filed an extension motion with the trial court on January 9,
2013. The record reflects that motion was filed pursuant to Federal Rule of Civil Procedure 6(b)(1)(B). That rule concerns motions in all civil
actions and proceedings in the United States district court. See FED. R. CIV. P. 1, 6(b)(1)(B). Even if we were to construe that motion as an
extension motion under our rule of appellate procedure 26.3, his appeal would still be untimely. See TEX. R. APP. P. 26.3.
–2–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN T. JENKINS, Appellant On Appeal from the 191st Judicial District
Court, Dallas County, Texas
No. 05-13-00265-CV V. Trial Court Cause No. DC-12-04402.
Opinion delivered by Justice Evans. Justices
COUNSELORS LINDSAY L. LAMBERT Lang and Myers participating.
AND CHERYL R. WORLEY, ET AL.,
Appellees
In accordance with this Court’s opinion of this date, we DISMISS the appeal.
We ORDER that appellees Counselors Lindsay L. Lambert and Cheryl R. Worley, et al.
recover their costs of this appeal from appellant John T. Jenkins.
Judgment entered this 27th day of June, 2013.
/David Evans/
DAVID EVANS
JUSTICE
–3–
John T. Jenkins v. Lindsay L. Lambert, Cheryl R. Worley
Combined Opinion