Dismissed and Memorandum Opinion filed September 19, 2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00508-CV

              MATTHEW AND KELLY CUBBAGE, Appellants

                                         V.
            HARRIS COUNTY APPRAISAL DISTRICT, Appellee

                    On Appeal from the 189th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2012-53986

               MEMORANDUM                          OPINION
      On June 7, 2013, appellants filed a notice of appeal from an order granting
appellee’s motion for summary judgment signed March 18, 2013. The clerk’s
record in this appeal was filed August 9, 2013. The clerk’s record does not contain
a motion for new trial, or other post-judgment motion, to extend the time to file a
notice of appeal. See Tex. R. App. P. 26.1(a). Appellants’ request for findings of
fact and conclusions of law filed April 2, 2013, is included in the record. See id.
(stating that a request for findings and conclusions extends the time to file a notice
of appeal until ninety days after the judgment is signed if findings and conclusions
either are required by the Rules of Civil Procedure or, if not required, could
properly be considered by the appellate court[.]”). It is well settled that findings of
fact and conclusions of law have no place in a summary judgment proceeding;
therefore, a request for findings does not extend the appellate timetable. See
Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994).

      A request for findings of fact and conclusions of law does not extend the
appellate deadline when findings and conclusions have no purpose and should not
be requested, made, or considered on appeal. IKB Industries (Nigeria) Ltd. v. Pro–
Line Corp., 938 S.W.2d 440, 443 (Tex. 1997). The Texas Supreme Court has cited
examples of types of judgments for which findings are inappropriate, including
summary judgment, judgment after directed verdict, judgment non obstante
veredicto, default judgment awarding liquidated damages, dismissal for want of
prosecution without an evidentiary hearing, dismissal for want of jurisdiction
without an evidentiary hearing, dismissal based on pleadings or special exceptions
and any judgment rendered without an evidentiary hearing. See id.

      In the absence of a post-judgment filing to extend the appellate timetable,
appellants’ notice of appeal was due April 17, 2013, thirty days after the final order
was signed. See Tex. R. App. P. 26.1. 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 grace period provided by
Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959
S.W.2d 615, 617-18 (1997) (construing the predecessor to Rule 26). The notice of
appeal in this case was filed June 7, 2013, well beyond the fifteen-day period for
an extension of time.

      Because it appeared from the record that appellants’ notice of appeal is
untimely, this court notified appellants that we would consider dismissing this
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appeal for want of jurisdiction unless appellants filed a response within ten days
demonstrating this court’s jurisdiction over the appeal. See Tex. R. App. P. 42.3(a).

      Appellants filed a response to this court’s notice, arguing that because
appellee’s motion for summary judgment included a jurisdictional argument, the
motion was in effect a plea to the jurisdiction. Appellants state that findings of fact
are proper when a court rules on a jurisdictional challenge after receiving evidence,
citing Hernandez v. Tex. Dep’t of Ins., 923 S.W.2d 192, 194 (Tex. App.—Austin
1996, no writ).

      The motion for summary judgment in this case raised a single issue,
asserting that appellants were not entitled to bring an appeal de novo from an
Appraisal Review Board determination of their property’s appraised value because
the ARB had agreed with appellants’ sworn value and granted their requested
relief. Appellee raised judicial estoppel as a bar to appellants’ attempt to take a
position in district court that is inconsistent with their sworn representation before
the ARB. See Swilley v. McCain, 374 S.W.2d 871, 875-76 (Tex. 1964) (setting out
the elements of judicial estoppel). Appellee also argued that appellants were
required to request any different relief at the administrative level, and their failure
to do so amounts to a failure to exhaust administrative remedies, depriving them of
the right to appeal to district court. Appellants point to this argument to support the
claim that the summary judgment order is actually an order granting a plea to the
jurisdiction for which findings of fact and conclusions of law would be
appropriate.

      Even if we accept appellants’ assertion that appellee’s argument constitutes
a plea to the jurisdiction, findings of fact are not appropriate in this case. Whether a
court has subject matter jurisdiction is a question of law. Tex. Natural Res.
Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002). Whether a
pleader has alleged facts that affirmatively demonstrate a trial court’s subject
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matter jurisdiction is also a question of law reviewed de novo. Tex. Dep’t of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If the relevant evidence
is undisputed or fails to raise a fact question on the jurisdictional issue, the trial
court rules on the plea to the jurisdiction as a matter of law. Id.

      To the extent that the trial court may have granted a plea to the jurisdiction
in this case, it was granted as a matter of law without an evidentiary hearing.
Therefore, findings of fact and conclusions of law are not required and cannot
properly be considered, and the deadline for filing the notice of appeal is not
extended. See Ford ex rel. Williams v. City of Lubbock, 76 S.W.3d 795, 796 (Tex.
App.—Dallas 2002, no pet.).

      In response to this court’s notice that no reporter’s record had been filed,
appellants advised this court that the trial court’s order was the result of a motion
for summary judgment. Appellants stated, “As Motions for Summary Judgment are
argued on and gra[n]ted or denied based upon the merits of the motion and
response, a record of any such hearing was not necessary.” The official court
reporter also notified this court there is no reporter’s record from a hearing in this
case. The order recited that “[o]n this day came on to be considered Defendant’s
Motion for Summary Judgment, and the Court, having considered same and any
responses thereto, finds that said Motion should be in all things granted.” Because
there was no evidentiary hearing, findings of fact are not appropriate in this case
and do not operate to extend time to file the notice of appeal.

      Appellants’ notice of appeal is untimely, and we lack jurisdiction over this
appeal. Accordingly, the appeal is ordered dismissed.

                                       PER CURIAM

Panel consists of Justices Brown, Christopher, and Donovan.
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