Opinion
NO. 01-13-00058-CV
2013-09-17
EZY-LIFT OF CALIFORNIA, INC. AND EAGLE ELECTRONICS, INC., Appellants v. EZY ACQUISITION, LLC D/B/A EZY LIFT, Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2010-70596
MEMORANDUM OPINION
Appellants, EZY-Lift of California, Inc. (EZY-Lift) and Eagle Electronics, Inc. (Eagle), attempt to appeal from the trial court's judgment signed November 28, 2012. Appellee, EZY Acquisition, LLC d/b/a EZY Lift (EZY Acquisition), has moved to dismiss the appeal on the ground that the Court lacks jurisdiction over this appeal because EZY-Lift and Eagle's notice of appeal was untimely. EZY-Lift and Eagle respond that their request for findings of fact and conclusions of law extended the deadline for filing their notice of appeal, thereby making their notice of appeal timely. We dismiss the appeal.
Background
EZY Acquisition filed suit against Eagle alleging breach of contract for violating the terms of a distribution agreement and seeking a declaratory judgment that the distribution agreement was terminated. After EZY Acquisition instituted the suit, EZY-Lift intervened, alleging that, with EZY Acquisition's consent, Eagle assigned its rights under the distribution agreement to EZY-Lift. EZY-Lift also filed a counter-claim against EZY Acquisition, alleging breach of contract, breach of an implied duty of good faith and fair dealing, and fraudulent inducement and seeking a declaratory judgment against EZY Acquisition. EZY-Lift further sought reimbursement of its attorney's fees. After EZY-Lift's intervention, EZY Acquisition filed an amended petition, naming both Eagle and EZY-Lift as defendants, alleging causes of action for breach of contract and tortious interference with contracts and business relations, and seeking a declaratory judgment stating, inter alia, that the distribution agreement was terminated.
The case proceeded to a jury trial. During the trial, the parties stipulated that (1) the reasonable and necessary amount of any attorney's fees for either party would be $200,000, if attorney's fees should be awarded, and (2) EZY-Lift was entitled to damages of $46,040 against EZY Acquisition, which was to be added to any damages the jury awarded to EZY-Lift or subtracted from any damages awarded to EZY Acquisition. The jury found that Eagle did not breach the distribution agreement, that EZY-Lift and EZY Acquisition did breach the agreement, that EZY-Lift breached the agreement before EZY Acquisition, that no party suffered any damages as a result of any breach, and that both EZY-Lift and EZY Acquisition waived compliance with the agreement.
On November 28, 2012, the trial court entered a final judgment in the case, declaring the distribution agreement "terminated, void, and of no further effect," awarding judgment in favor of EZY-Lift and against EZY Acquisition in an amount of $46,040, and awarding pre-judgment interest on the $46,040.
EZY-Lift and Eagle filed a request for findings of fact and conclusions of law on December 11, 2012, seeking findings of fact and conclusions of law "as to the court-decided issues in the case." EZY-Lift and Eagle filed a notice of appeal on January 15, 2013, forty-eight days after the final judgment.
Analysis
In its motion to dismiss, EZY Acquisition contends that we lack jurisdiction over this appeal because the notice of appeal was not timely filed. EZY Acquisition further argues that EZY-Lift and Eagle's request for findings of fact and conclusions of law did not extend the deadline for filing a notice of appeal, because findings of fact and conclusions of law are not proper after a jury trial. EZY Acquisition requests dismissal of the appeal. EZY-Lift and Eagle respond that their request for findings of fact and conclusions of law was proper and extended the deadline for filing a notice of appeal, because they requested findings of fact in relation to issues tried to the bench, not to the jury. See TEX. R. APP. P. 26.1(a) (extending time for filing notice of appeal to 90 days from date of judgment if any party timely files motion for new trial, motion to modify the judgment, motion to reinstate, or, under certain circumstances, request for findings of fact and conclusions of law). We grant EZY Acquisition's motion and dismiss the appeal.
1. EZY-Lift and Eagle fail to show that findings of fact and conclusions of law were proper
Findings of fact and conclusions of law are generally not available after a jury trial. See TEX. R. CIV. P. 296; Roberts v. Roberts, 999 S.W.2d 424, 433 (Tex. App.—El Paso 1999, no pet.); John G. and Stella Kenedy Mem'l Found. v. Dewhurst, 994 S.W.2d 285, 308 (Tex. App.—Austin 1999), rev'd on othergrounds, 90 S.W.3d 268 (Tex. 2002); Rathmell v. Morrison, 732 S.W.2d 6, 16-17 (Tex. App.—Houston [14th Dist.] 1987, no writ). Findings may be available, however, if issues were submitted to the trial court for determination without submission to the jury or if the trial court's judgment substantially differs from or exceeds the scope of the jury's verdict. See Roberts, 999 S.W.2d at 433; see also Operation Rescue-Nat'l v. Planned Parenthood of Houston & Se. Tex., Inc., 937 S.W.2d 60, 82 (Tex. App.—Houston [14th Dist.] 1996), aff'd as modified, 975 S.W.2d 546 (Tex. 1998) ("When part of a cause is decided by a jury and part by the court, the party appealing the court-decided issue should request findings of fact and conclusions of law."); Heafner & Assocs. v. Koecher, 851 S.W.2d 309, 313 (Tex. App. —Houston [1st Dist.] 1992, writ denied) (holding that party has right to findings of fact and conclusions of law after judgment that resulted from findings made by trial court after bench trial and independent of jury's verdict).
As the appealing parties, EZY-Lift and Eagle have the burden to ensure that a sufficient record is presented on appeal to support their contention that issues were tried to the court and not to the jury. See Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004); Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex. 1968); see also TEX. R. APP. P. 34.6(b)(1) (requiring appellant to request reporter's record and designate proceedings to be included), 35.3(b)(2) (requiring appellant to request preparation of reporter's record before reporter is obligated to prepare or file record in appellate court). This Court has no duty to search a voluminous record to determine whether EZY-Lift and Eagle are correct that an issue was submitted to the trial judge for determination; EZY-Lift and Eagle must provide references to the record to demonstrate either that issues were tried to the bench and not to the jury or that the judgment substantially differed from or exceeded the jury's verdict. See Flume v. State Bar of Texas, 974 S.W.2d 55, 62 (Tex. App.—San Antonio 1998, no pet.); Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 305 (Tex. App.—Houston [14th Dist.] 1995, no writ).
EZY-Lift and Eagle do not provide us with any citations to any evidence or argument presented to the trial court that was not presented to the jury or to any evidence showing that a bench trial occurred. In fact, the only citation to the transcript EZY-Lift and Eagle provide is to a stipulation regarding the amount of reasonable and necessary attorney's fees to be awarded if such an award was appropriate. Contrary to their argument, however, this stipulation did not create an issue of fact for the trial court to decide; it removed an issue of fact from the case. See Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 161, 162 (Tex. 2004); Hot-Hed, Inc. v. Safehouse Habitats (Scotland), Ltd., 333 S.W.3d 719, 734 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
Further, none of the three issues EZY-Lift and Eagle argue were decided by the trial court—the parties' declaratory judgment claims, the date for accrual of prejudgment interest on the $46,040 damages award to EZY-Lift, and the issue of attorney's fees—involved a determination of fact involving conflicting evidence. First, although the trial court declared that the agreement between the parties was terminated, the declaration was a direct result of the jury's finding that both EZY-Lift and EZY Acquisition waived compliance with the agreement. With no party actually bound to perform under the agreement, the agreement was effectively terminated. Second, once the parties stipulated to the reasonable and necessary amount of attorney's fees, there was no factual issue for the court to decide regarding an award of attorney's fees. See Ridge Oil Co., 148 S.W.3d at 161, 162; Hot-Hed, Inc., 333 S.W.3d at 734. Finally, the accrual date for prejudgment interest on the damages award did not require the trial court to resolve conflicting evidence, because the evidence presented to the trial court was not conflicting. The trial included testimony by Steven Bischoff, EZY Acquisition's president at all times relevant to the trial, that EZY-Lift did not request delivery of the products on which the damages award was based until January 29, 2011. The evidence also included the testimony of Clayton Isemann, EZY-Lift's president and Eagle's vice-president, that he did not request delivery of the products until January 2011, and a letter from Mr. Isemann to Mr. Bischoff, dated January 29, 2011, requesting delivery of the products. As a result, the uncontradicted evidence before the trial court was that the $46,040 in damages, which was the value of products paid for by EZY-Lift but not delivered by EZY Acquisition, accrued on January 29, 2011, the date EZY-Lift first requested delivery of those products. And, because there was no conflicting evidence, the trial court's award of prejudgment interest from January 29, 2011 does not constitute a finding of fact upon which the trial court could have entered findings of fact and conclusions of law. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997); Chavez v. Housing Auth. of El Paso, 897 S.W.2d 523, 525 (Tex. App. —El Paso 1995, writ denied).
EZY-Lift placed an order for products from EZY Acquisition on November 9, 2009. Although EZY-Lift paid the total cost of approximately $91,000 at that time, it requested EZY Acquisition only deliver a portion of the order and hold the remainder of the order until EZY-Lift requested delivery of the remaining products. The value of the paid-for-but-undelivered products was $46,040.
Nor does the trial court's judgment substantially differ from or exceed the jury's verdict. In the judgment, the trial court declared the distribution agreement between Eagle and its assignee, EZY-Lift, and EZY Acquisition to be "terminated, void, and of no further effect" and ordered EZY Acquisition to pay $46,040 in damages to EZY-Lift. The first part of the judgment—the termination of the agreement—effectuates the jury's finding that both EZY-Lift and EZY Acquisition waived compliance with the agreement. The second part of the judgment, awarding $46,040 to EZY-Lift, resulted from the jury's verdict of $0 in damages to all parties and the parties' stipulation that $46,040 in damages owed by EZY Acquisition to EZY-Lift should be added to any damages the jury awarded to EZY-Lift. Therefore, the trial court's judgment followed the jury's verdict, as modified by the parties' stipulation, and did not exceed or differ from the verdict.
Because the $46,040 in damages was stipulated to by the parties, it did not require or involve any factual finding by the trial court and could not form the basis of a request for findings of fact and conclusions of law. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997)
The trial court's judgment did not substantially differ from or exceed the jury's verdict and, without evidence to support EZY-Lift and Eagle's contention that there were issues separately tried to the bench and not to the jury, we must presume that all issues actually litigated were submitted to the jury. See Barrios, 156 S.W.3d at 550; Kennedy, 428 S.W.2d at 806. Accordingly, EZY-Lift and Eagle's request for findings of fact and conclusions of law did not extend the deadline for filing their notice of appeal. See TEX. R. CIV. P. 296; Pro-Line Corp., 938 S.W.2d at 443; Dewhurst, 994 S.W.2d at 308; Rathmell, 732 S.W.2d at 16-17.
2. Without a timely filed notice of appeal, we have no jurisdiction
Generally, a notice of appeal is due within thirty days after the judgment is signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is extended to 90 days after the date the judgment is signed if any party timely files a motion for new trial, motion to modify the judgment, motion to reinstate, or, under certain circumstances, a request for findings of fact and conclusions of law. See TEX. R. APP. P. 26.1(a). The time to file a notice of appeal may also be extended if, within fifteen days after the deadline to file the notice of appeal, a party properly files a motion for extension. See TEX. R. APP. P. 10.5(b), 26.3. 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 extension period provided by rule 26.3. See TEX. R. APP. P. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).
The record reflects that the trial court signed the final judgment on November 28, 2012. As discussed above, EZY-Lift and Eagle's request for findings of fact and conclusions of law, though timely filed, did not extend the deadline for filing their notice of appeal. Therefore, their notice of appeal was due by December 28, 2012.
EZY-Lift and Eagle did not file a notice of appeal until January 15, 2013— eighteen days after the deadline. They did not file a motion to extend time to file their notice of appeal and did not file their notice of appeal within the Verburgt period.See TEX. R. APP. P. 4.1(a), 26.3; Verburgt, 959 S.W.2d at 617.
Although the Verburgt period ended on Saturday, January 12, 2013, EZY-Lift and Eagle's notice of appeal was not filed until Tuesday, January 15, 2013, one day after the extension of the Verburgt period provided by rule 4.1(a). See TEX. R. APP. P. 4.1(a); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).
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EZY Lift and Eagle's notice of appeal was untimely filed. Without a timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1.
Conclusion
Based on the foregoing, we grant EZY Acquisition's motion and dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a). We dismiss any other pending motions as moot.
PER CURIAM
Panel consists of Justices Jennings, Brown, and Huddle.