Lone Star Sportsman, Inc. D/B/A Alan Warren Outdoors v. Mike Malik D/B/A Paradice Hunt Club

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Mike Malik Fourth Court of Appeals San Antonio, Texas October 9, 2013 No. 04-13-00541-CV LONE STAR SPORTSMAN, INC. d/b/a Alan Warren Outdoors, Appellant v. Mike MALIK d/b/a Paradice Hunt Club, Appellee From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2012-CI-19979 Honorable Laura Salinas, Judge Presiding ORDER Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice This is an appeal from a final judgment dismissing claims brought by appellant Lone Star Sportsman, Inc. against appellee Mike Malik d/b/a Paradice Hunt Club. Three motions have been filed in this appeal. After considering the motions and the responses to the motions, we make the following rulings. First, appellant filed a motion to refer this appeal to mediation. Appellee, however, filed an Alternative Dispute Resolution Addendum indicating his belief that mediation would not be a beneficial tool in the resolution of this appeal. We, therefore, DENY appellant’s motion to refer this appeal to mediation. Second, appellant filed a motion to direct the trial court to file findings of fact and conclusions of law. We conclude the trial court was not required to file findings of fact and conclusions of law in this case. See In re Estate of Davis, 216 S.W.3d 537, 542 (Tex. App.— Texarkana 2007, pet. denied) (concluding the trial court was not required to file findings of fact and conclusions of law on a special appearance ruling); Niehaus v. Cedar Bridge, Inc., 208 S.W.3d 575, 579 n.5 (Tex. App.—Austin 2006, no pet.) (“Texas Rules of Civil Procedure 296 and 297 do not impose any duty on the trial court to file findings of fact and conclusions of law where there has been no trial…”). We, therefore, DENY appellant’s motion to direct the trial court to file findings of fact and conclusions of law. Finally, appellee filed a request to dismiss this appeal, alleging that the notice of appeal was untimely. Appellee’s request is based on the premise that this is an accelerated appeal from an interlocutory order. See TEX. R. APP. P. 26.1(b) (stating the notice of appeal in an accelerated appeal must be filed within 20 days after the judgment or order is signed). Appellee is mistaken. This appeal is an appeal from a final judgment. Appellee filed a special appearance that was sustained by the trial court on May 14, 2013. The trial court signed a final judgment dismissing appellant’s cause on May 15, 2013. Appellant then filed a timely request for findings of fact and conclusions of law and a timely motion for new trial, which extended the time for filing the notice of appeal until 90 days after the judgment was signed. See TEX. R. APP. P. 26.1(a). Appellant filed its notice of appeal on August 9, 2013. Appellant’s notice of appeal was therefore timely. See id. We, therefore, DENY appellee’s motion to dismiss this appeal. Appellant’s brief is due no later than October 17, 2013. See TEX. R. APP. P. 38.6(a). PER CURIAM Attested to: _____________________________ Keith E. Hottle Clerk of Court MINUTES Court of Appeals Fourth Court of Appeals District San Antonio, Texas October 9, 2013 No. 04-13-00541-CV LONE STAR SPORTSMAN, INC. d/b/a Alan Warren Outdoors, Appellant v. Mike MALIK d/b/a Paradice Hunt Club, Appellee From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2012-CI-19979 Honorable Laura Salinas, Judge Presiding ORDER Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice This is an appeal from a final judgment dismissing claims brought by appellant Lone Star Sportsman, Inc. against appellee Mike Malik d/b/a Paradice Hunt Club. Three motions have been filed in this appeal. After considering the motions and the responses to the motions, we make the following rulings. First, appellant filed a motion to refer this appeal to mediation. Appellee, however, filed an Alternative Dispute Resolution Addendum indicating his belief that mediation would not be a beneficial tool in the resolution of this appeal. We, therefore, DENY appellant’s motion to refer this appeal to mediation. Second, appellant filed a motion to direct the trial court to file findings of fact and conclusions of law. We conclude the trial court was not required to file findings of fact and conclusions of law in this case. See In re Estate of Davis, 216 S.W.3d 537, 542 (Tex. App.— Texarkana 2007, pet. denied) (concluding the trial court was not required to file findings of fact and conclusions of law on a special appearance ruling); Niehaus v. Cedar Bridge, Inc., 208 S.W.3d 575, 579 n.5 (Tex. App.—Austin 2006, no pet.) (“Texas Rules of Civil Procedure 296 and 297 do not impose any duty on the trial court to file findings of fact and conclusions of law where there has been no trial…”). We, therefore, DENY appellant’s motion to direct the trial court to file findings of fact and conclusions of law. Finally, appellee filed a request to dismiss this appeal, alleging that the notice of appeal was untimely. Appellee’s request is based on the premise that this is an accelerated appeal from an interlocutory order. See TEX. R. APP. P. 26.1(b) (stating the notice of appeal in an accelerated appeal must be filed within 20 days after the judgment or order is signed). Appellee is mistaken. This appeal is an appeal from a final judgment. Appellee filed a special appearance that was sustained by the trial court on May 14, 2013. The trial court signed a final judgment dismissing appellant’s cause on May 15, 2013. Appellant then filed a timely request for findings of fact and conclusions of law and a timely motion for new trial, which extended the time for filing the notice of appeal until 90 days after the judgment was signed. See TEX. R. APP. P. 26.1(a). Appellant filed its notice of appeal on August 9, 2013. Appellant’s notice of appeal was therefore timely. See id. We, therefore, DENY appellee’s motion to dismiss this appeal. Appellant’s brief is due no later than October 17, 2013. See TEX. R. APP. P. 38.6(a). PER CURIAM Attested to: _/s/ Keith E. Hottle Keith E. Hottle Clerk of Court ENTERED THIS 9TH DAY OF OCTOBER, 2013. VOL. _____ PAGE ______