Opinion filed September 26, 2013




                                     In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-13-00256-CV
                                  __________

                 DAVID MICHAEL BROOKS, Appellant

                                        V.

                   WAL-MART STORES, INC., Appellee


                     On Appeal from the 35th District Court
                               Brown County, Texas
                          Trial Court Cause No. 1210368


                     MEMORANDUM OPINION
      David Michael Brooks, Appellant, attempts to appeal from a May 28, 2013
summary judgment rendered in favor of Wal-Mart Stores, Inc. Upon reviewing the
documents on file in this case, this court wrote the parties and informed them that
the motion for new trial appeared to be untimely, thereby making the notice of
appeal untimely.    We requested that Appellant respond and show grounds to
continue the appeal. Appellant filed a response urging that his notice of appeal
was timely pursuant to TEX. R. APP. P. 26.1(a)(4) because he timely filed a request
for findings of fact and conclusions of law. See TEX. R. CIV. P. 297. Because Rule
26.1(a)(4) is not applicable in this case, we dismiss the appeal for want of
jurisdiction pursuant to TEX. R. APP. P. 42.3(a).
      The judgment from which Appellant attempts to appeal is a summary
judgment. Findings of fact and conclusions of law are not proper when the appeal
is from a summary judgment. Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex.
1994). Thus, a request for findings of fact and conclusions of law does not extend
the time in which to file a notice of appeal. Id.; Scott v. Wood Cnty. Comm’rs
Court, No. 12-13-00037-CV, 2013 WL 776660 (Tex. App.—Tyler Feb. 28, 2013,
no pet.) (mem. op.).
      In his response to our letter, Appellant did not address the timeliness of his
motion for new trial as requested by this court. Our records reflect that the motion
for new trial was filed on June 28, 2013, which was thirty-one days after the date
that the trial court signed the order granting summary judgment. The motion for
new trial was filed one day late. See TEX. R. CIV. P. 329b(a). Absent a timely filed
motion for new trial, the notice of appeal was due to be filed on June 27, 2013,
thirty days after the summary judgment was signed. See TEX. R. APP. P. 26.1.
However, Appellant did not file his notice of appeal until August 26, 2013, ninety
days after the summary judgment was signed. Appellant’s notice of appeal was,
therefore, untimely.
      Absent a timely notice of appeal, this court is without jurisdiction to
consider this appeal. See Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559,
563 (Tex. 2005); Garza v. Hibernia Nat’l Bank, 227 S.W.3d 233 (Tex. App.—
Houston [1st Dist.] 2007, no pet.); see also Verburgt v. Dorner, 959 S.W.2d 615,


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617 (Tex. 1997). Because Appellant did not timely file a notice of appeal, we have
no jurisdiction to entertain this appeal.
      We dismiss this appeal for want of jurisdiction.


                                                   PER CURIAM


September 26, 2013
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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