Opinion
No. 11-02-00268-CV.
May 8, 2003.
Appeal from Taylor County.
Memorandum Opinion
The trial court dismissed appellant's suit for lack of subject matter jurisdiction. Because appellant has not timely perfected this appeal, we dismiss the appeal for lack of jurisdiction.
Gene Duke Builders, Inc. (Duke) and Abilene Housing Authority (AHA) entered into a construction contract in July 1999. The contract contained a provision that the parties would submit any disputes to arbitration. When a dispute arose, AHA resisted Duke's attempts to submit the dispute to arbitration. Duke later filed a lawsuit to enforce arbitration. Initially, the trial court entered an order compelling arbitration. Subsequently, AHA filed a plea to the jurisdiction and a plea in abatement. The trial court then found that TEX. GOV'T CODE ANN. ch. 2260 (Vernon 2000 Supp. 2003) applied to Duke's claim; and, on May 28, 2002, it entered an order dismissing the cause for lack of subject matter jurisdiction. Duke filed a request for findings of fact and conclusions of law on June 17, 2002. The trial court entered findings of fact and conclusions of law on July 10, 2002. Duke then filed its notice of appeal on August 22, 2002.
AHA has brought one cross-point in which it urges this court to dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely. While we initially overruled AHA's motion to dismiss for lack of jurisdiction, after further consideration and after further briefing by the parties, we find that the notice of appeal was not timely and that this court lacked jurisdiction of this appeal. Because we lack jurisdiction, we do not reach appellant's issues on appeal.
In its cross-point, AHA first raises the issue that an appeal from the order granting the plea to the jurisdiction is interlocutory and is an accelerated appeal. See TEX. CIV. PRAC. REM. CODE ANN. § 51.014 (Vernon Supp. 2003). Therefore, AHA claims that the time within which Duke should have filed its notice of appeal was 20 days from the date of the judgment. See TEX.R.APP.P. 26.1(b) 28.1. AHA further argues that, even if the appeal is not interlocutory, under the procedure used by the trial court in this case, the notice of appeal should have been filed within 30 days of the date of the judgment; and it was not. AHA also argues that findings of fact and conclusions of law could not be properly considered by this court; therefore, the time for the filing of the notice of appeal was not extended as provided in TEX.R.APP.P. 26.1(a)(4).
A court of appeals has jurisdiction over an appeal when an appellant files an instrument in a bona fide attempt to invoke the appellate court's jurisdiction. Linwood v. NCNB Texas, 885 S.W.2d 102 (Tex. 1994). The granting of a plea to the jurisdiction filed by a governmental unit in some circumstances may result in an interlocutory appeal. Section 51.014. However, an order that the trial court had no subject matter jurisdiction of the whole case is not interlocutory and is final and appealable. Speer v. Stover, 685 S.W.2d 22 (Tex. 1985). A judgment is final and appealable when it disposes of all parties and claims. Lehmann v. Har-Con Corporation, 39 S.W.3d 191 (Tex. 2001).
Once a judgment is final, a party has 30 days in which to file a notice of appeal unless the party has filed an appropriate request for findings of fact and conclusions of law. Rule 26.1(a)(4). The deadline for filing a notice of appeal and securing the jurisdiction of the appellate court will be extended to 90 days if:
(4) [F]indings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court.
Rule 26.1(a)(4). Findings of facts and conclusions of law are required upon request in any case tried in the district or county court without a jury. TEX.R.CIV.P. 296. A case is "tried" when the court holds an evidentiary hearing upon conflicting evidence. Chavez v. Housing Authority of the City of El Paso, 897 S.W.2d 523 (Tex.App.-El Paso 1995, pet'n den'd), cert. den'd, 517 U.S. 1188 (1996). Where a trial court dismisses a case for want of jurisdiction and does not conduct an evidentiary hearing, findings of fact and conclusions of law would serve no purpose. IKB Industries v. Pro-Line Corporation, 938 S.W.2d 440 (Tex. 1997). A request for findings of fact and conclusions of law in an inappropriate case will not extend the appellate timetable. IKB Industries v. Pro-Line Corporation, supra at 443; Ford ex rel. Williams v. City of Lubbock, 76 S.W.3d 795 (Tex.App.-Amarillo 2002, no pet'n).
Although it is proper for a trial court to conduct an evidentiary hearing on a plea to the jurisdiction, it is not always necessary. Bland Independent School District v. Blue, 34 S.W.3d 547 (Tex. 2000). In Ford ex rel. Williams, the trial court granted a plea to the jurisdiction without holding an evidentiary hearing. On appeal, the court discussed whether findings properly could be considered by the appellate court in an appeal from an order granting a plea to the jurisdiction without an evidentiary hearing; deposition testimony was attached to the plea, but the factual statements were not contested by the non-movant. The court found that the trial court could have reached the same conclusions based on the pleadings and that there were no fact issues to resolve. The court also found that findings of fact and conclusions of law did not serve a purpose in that case. Ford ex rel. Williams v. City of Lubbock, supra.
Here, the trial court dismissed the action because it had no jurisdiction over the subject matter of the case. The order disposed of all the parties and all the issues in the case. The appeal was not interlocutory.
Further, like Ford ex rel. Williams, there was no evidentiary hearing in this case. The trial court heard arguments of counsel, but no evidence was offered. Duke, as non-movant, attached a deposition of Frances Gonzalez to its response to the plea to the jurisdiction to show that AHA was a part of the City of Abilene. No contradicting evidence was offered by AHA. Section 2260.001(4) defines a "unit of state government." Determining if AHA fits into this definition is a matter of statutory construction and a matter of law. Therefore, the trial court could have reached its decision based on the pleadings of the parties. There were no fact issues to decide. Findings of fact are appropriate only in those circumstances in which the trial court is called upon to determine questions of fact. Chavez v. Housing Authority of the City of El Paso, supra. Duke's request for findings of fact and conclusions of law did not extend the appellate timetable from 30 days to 90 days. Because Duke filed its notice of appeal more than 30 days after the trial court signed the judgment and because there was no extension of time to file the notice of appeal, this court has no jurisdiction to decide this case. AHA's cross-point is well taken, and this appeal is dismissed for lack of jurisdiction.