



   MARY'S OPINION HEADING                                           




NO. 12-01-00039-CV


IN THE COURT OF APPEALS


TWELFTH COURT OF APPEALS DISTRICT


TYLER, TEXAS



RUBY EDDINS, INDIVIDUALLY 
AND AS EXECUTOR OF 
THE ESTATE OF J.C. EDDINS,§
	APPEAL FROM THE 123RD
APPELLANT

V.§
	JUDICIAL DISTRICT COURT OF

GENE BORDERS AND TIMBER
HARVESTING CORPORATION §
	SHELBY COUNTY, TEXAS
OF SHELBY COUNTY, TEXAS
APPELLEES



PER CURIAM
 This appeal is being dismissed for want of jurisdiction pursuant to Texas Rule of Appellate
Procedure 42.3(a).  On September 28, 2000, the trial court signed an order granting Gene Borders
and Timber Harvesting Corporation of Shelby County, Texas, Inc.'s (collectively "Appellees")
Motion for Summary Judgment.  On October 16, 2000, Ruby Eddins, Individually and as Executor
of the Estate of J.C. Eddins, ("Eddins") filed a request for findings of fact and conclusions of law. 
Thereafter, on November 1, 2000, the trial court signed an order severing Eddins' claims against
Appellees from the rest of the case.  On December 30, 2000, Eddins filed a notice of appeal and a
motion for extension of time to file notice of appeal in the trial court.

Timeliness of Notice of Appeal

	Appellees have filed a motion to dismiss Eddins' appeal contending that this Court lacks
jurisdiction because Eddins' notice of appeal was untimely.  We agree.  The appellate timetable in
this case began to run on November 1, 2000, the date the trial court severed Eddins' claims against
Appellees.  See McRoberts v. Ryals, 863 S.W.2d 450, 452-53 (Tex. 1993) (". . . an order granting
a severance with a judgment in the cause ordered severed is effective when signed.").  Under Texas
Rule of Appellate Procedure 26.1(a), unless Eddins filed an instrument which extended the appellate
deadlines, the notice of appeal was due to have been filed "within 30 days after the judgment [was]
signed," i.e., December 1, 2000.  
	Eddins asserts that her request for findings of fact and conclusions of law extended the
appellate timetable from thirty days to ninety days. (1) See Tex. R. App. P. 26.1(a)(4).  A timely request
for findings of fact and conclusions of law will extend the time for perfecting the appeal when
findings and conclusions are required by Rule 296 of the Texas Rules of Civil Procedure or, if not
required, could properly be considered by the appellate court.  Id.; see IKB Industries (Nigeria) Ltd.
v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997).  A request for findings of fact and conclusions
of law will not extend the time for perfecting an appeal from a judgment rendered as a matter of law,
where findings and conclusions have no purpose and should not be requested, made or considered
on appeal.  IKB Industries, 938 S.W.2d at 443.  A summary judgment is one of several types of
cases in which findings of and conclusions of law have no place.  Id.; see Linwood v. NCNB Texas,
885 S.W.2d 102, 103 (Tex. 1994).  
	Eddins contends that their request for findings and conclusions was proper because Appellees
filed a no-evidence motion for summary judgment.  She argues that no-evidence motions for
summary judgment are reviewed on appeal in the same manner as a directed verdict and that findings
of fact and conclusions of law can be properly considered in an appeal from a directed verdict. 
While it is true that no-evidence motions for summary judgment are reviewed on appeal in the same
manner as a directed verdict, Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex. App.- Austin
1998, no pet.), the Texas Supreme Court has held that findings of fact and conclusions of law are
improper in an appeal from a judgment after a directed verdict.  IKB Industries, 938 S.W.2d at 443. 
Thus, we conclude that findings of fact and conclusions of law have no place in an appeal from a no-evidence motion for summary judgment and, therefore, Eddins' request for findings and conclusions
in this case did not extend the deadline for filing the notice of appeal.  See Id.  The notice of appeal
was due to have been filed on or before December 1, 2000.  Because Eddins did not file the notice
of appeal until December 30, 2000, this Court does not have jurisdiction to consider the appeal. 
Tex. R. App. P. 26.1(a); McCaskell v. The Methodist Hosp., 856 S.W.2d 519, 521 (Tex. App.- 
Houston [1st Dist.] 1993, no writ). (2) Furthermore, we note that, although we may extend the time
for filing a notice of appeal pursuant to Texas Rule of Appellate Procedure 26.3, Eddins' notice of
appeal and motion for extension of time to file notice of appeal were not filed within fifteen days
after the deadline for filing the notice of appeal.  Tex. R. App. P. 26.3. 
	On September 25, 2001, Eddins filed a "Motion for Protective Order for Appellant and
Objection to Involuntary Dismissal for Want of Jurisdiction" and an amended notice of appeal. (3)  In
her amended notice of appeal, Eddins seeks to amend the notice of appeal to reflect a restricted
appeal from the orders of September 28 and November 1, 2000.  We have previously held that
Eddins' December 30, 2000 notice of appeal was untimely and, therefore, this Court does not have
jurisdiction over the appeal.  In a restricted appeal, the notice of appeal must be filed within six
months after the judgment or order is signed.  Tex. R. App. P. 26.1(c).  Because Eddins did not
amend the notice of appeal within the time set forth in Rule 26.1(c), she has failed to bring a timely
restricted appeal.  We conclude that because this Court has never had jurisdiction over the appeal,
Eddins' amended notice of appeal does not retroactively confer jurisdiction on this Court.  Cf. State
v. Riewe, 13 S.W.3d 408, 413 (Tex. Crim. App. 2000) (". . . once jurisdiction is lost, the court of
appeals lacks the power to invoke any rule to thereafter obtain jurisdiction.").
	In her motion for protective order, Eddins asks that we consider this appeal a restricted
appeal.  For the reasons discussed above, we decline to do so.  In the alternative, Eddins asks that
we consider her appeal a request for extraordinary relief, i.e., a request for a writ of mandamus.  A
writ of mandamus will only issue when there is no other adequate remedy at law, such as an appeal.
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).  It is clear that Eddins had an appellate remedy,
but simply failed to timely file either an ordinary appeal or a restricted appeal.  Accordingly, we will
not consider Eddins' notice of appeal as a request for extraordinary relief.           

Conclusion

	Because Eddins' notice of appeal was untimely, we grant Appellees' motion and dismiss the
appeal for want of jurisdiction.  Tex. R. App. P. 42.3(a).    

Opinion delivered September 28, 2001.
Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.








 











PUBLISH





1.  Eddins has not filed a response to Appellees' motion to dismiss.  The contentions attributed to Eddins in
this opinion are contained in a copy of a "Response to Appellee's Objection for Extension of Time to File Notice of
Appeal," which was apparently filed in the trial court.
2.  In her response in the trial court, Eddins also questions whether the severance resulted in the summary
judgment being final and appealable.  Nothing in the record before us shows that Eddins sought clarification from
the trial court as to whether the severance resulted in a final appealable judgment.  Eddins obviously believed that
the summary judgment was appealable because she filed a notice of appeal.  We conclude that on this record,
Eddins' contentions concerning the finality of the judgment are not relevant to the issue presented by Appellees'
motion to dismiss, i.e., whether Eddins' notice of appeal was timely.  We also note that Eddins' assertions
concerning the finality of the judgment appear to relate to a different summary judgment, not the one before us in
this cause number.
3.  A portion of Eddins' contentions in these documents concern a notice this Court sent to the parties
concerning the absence of an appealable order.  On September 25, 2001, the district clerk filed a supplemental
clerk's record in this Court containing an appealable order.  Thus, we need not address Eddins' assertions concerning
the absence of an appealable order.

