Opinion
No. 05-12-00542-CV
08-30-2012
IN THE INTEREST OF Z.E., A CHILD
DISMISS;
On Appeal from the 256th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 98-00424-Z
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Francis and Lang-Miers
Opinion By Chief Justice Wright
By letter dated June 21. 2012, this Court questioned its jurisdiction over the appeal. Specifically, it appeared the notice of appeal was untimely because appellant's request for findings of fact and conclusions of law was ineffective to extend the appellate timetable. We requested the parties to file jurisdictional letter briefs addressing whether the trial court's December 21, 2011 order followed an evidentiary hearing. Appellant filed a jurisdictional brief that did not address the jurisdictional issue. Appellee filed a jurisdictional letter brief stating that the trial court's order did not follow an evidentiary hearing and attaching a copy of the trial court's order.
A request for findings of fact and conclusions of law will extend the appellate deadline for perfecting an appeal if they are required by the rules of civil procedure or may properly be considered by the appellate court. See Tex. R. App. P. 26.1(b)(4). Such a request extends the time for filing a notice of appeal only where a judgment is rendered following an evidentiary hearing. See IKB Industries, Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997); Foster v. Williams, 74 S.W.3d 200, 204 (Tex. App.-Texarkana 2002, pet. denied).
The trial court signed the order of dismissal on December 21, 2011. Appellee states that the case was dismissed because appellant failed to replead adequately after the trial court sustained special exceptions. The order states that "[t]he Court after reviewing the filings of [appellant] and hearing the arguments of the parties Hereby DISMISSES WITHOUT PREJUDICE all claims for relief plead for by [appellant], as said filings and pleadings do not comply with the Court's special exceptions granted on November 4, 2011." Appellant filed his request for findings of fact and conclusions of law on December 29, 2011.
Because the order of dismissal did not follow an evidentiary hearing, appellant's request for findings of fact and conclusions of law was ineffective to extend the appellate timetable. IKB Industries, Ltd., 938 S.W.2d at 443; Foster, 74 S.W.3d at 204. Accordingly, appellant's notice of appeal was due on January 20, 2012. See Tex. R. App. P. 26.1. Without a timely filed notice of appeal, this Court lacks jurisdiction. See Tex. R. App. P. 25.1(b).
Appellant filed his notice of appeal on March 30, 2012, more than sixty days past the deadline. For this reason, this Court lacks jurisdiction over the appeal. Accordingly, we dismiss the appeal. See Tex. R. App. P. 42.3(a).
CAROLYN WRIGHT
CHIEF JUSTICE
120542F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN THE INTEREST OF Z.E., A CHILD
No. 05-12-00542-CV
Appeal from the 256th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 98- 00424-Z).
Opinion delivered by Chief Justice Wright, Justices Francis and Lang-Miers, participating.
Based on the Court's opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellee, Djuna Edmon, recover her costs of the appeal from appellant, Troy Randell Edmon.
Judgment entered August 30, 2012.
CAROLYN WRIGHT
CHIEF JUSTICE