Vicente A. Menchaca v. Insurance Company of the State of Pennsylvania

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER AND NOTICE OF INTENT TO DISMISS FOR WANT OF JURISDICTION
Appellate case name: Vicente Menchaca v. Insurance Company of the State of
Pennsylvania
Appellate case number: 01-18-01122-CV
Trial court case number: 2017-04354
Trial court: 113th District Court of Harris County
On December 21, 2018, appellant, Vicente Menchaca, proceeding pro se, filed a
notice of appeal in the trial court from the trial court’s September 21, 2018 final judgment
in this workers’ compensation case. On January 22, 2019, appellant filed this pro se
“Motion to Supplement Record” contending that the reporter’s record was not included in
the CD that he picked up from the Clerk of this Court on January 18, 2019, and that the
clerk’s record is incomplete. Specifically, appellant claims that the trial court’s failure to
respond to his request for findings of fact and conclusions of law makes it difficult for him
to prepare a brief without it, and he requests to supplement the record and that he be granted
extra days to file his brief after the supplemental record is filed with this Court.
The reporter’s record of the August 24, 2018 hearing on the appellee’s motion for
entry of judgment was filed in this Court on December 31, 2018, and the clerk’s record
was filed on January 15, 2019. Appellant is notified that he must contact the court reporter
for the reporter’s record and that the records are complete based on the standard list of
documents required in civil appeals for the clerk’s record. See TEX. R. APP. P. 34.5(a). If
appellant seeks to supplement the record, he must file a written request with the district
clerk, and he should put an uncertified copy of the documents to be supplemented in the
appendix attached to his appellant’s brief, with a notation that the certified copies have
been requested from the district clerk. See TEX. R. APP. P. 34.5(c)(1), 38.1(k)(2).
Accordingly, appellant’s “Motion to Supplement Record” is dismissed as moot because
any record supplementation requests must be filed with the district clerk.
In addition, after a review of the district clerk’s letter of assignment, filed in this
Court on December 12, 2018, and the clerk’s record, filed on January 15, 2019, appellant
is notified that this Court may dismiss this appeal for want of jurisdiction as untimely. See
TEX. R. APP. P. 42.3(a), (c). Generally, a notice of appeal is due within thirty days after
the final judgment is signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of
appeal is extended to ninety days after the date the judgment is signed if, within thirty days
after the judgment is signed, any party timely files a motion for new trial, motion to modify
the judgment, motion to reinstate, or, under certain circumstances, a request for findings of
fact and conclusions of law within twenty days after the judgment is signed. See TEX. R.
APP. P. 26.1(a); TEX. R. CIV. P. 296, 329b(a), (g).
Here, because appellant’s notice of appeal was filed in the trial court on December
21, 2018, ninety-one days after the September 21, 2018 final judgment, it is untimely unless
a timely post-judgment motion or a proper request for findings and conclusions was timely
filed. See TEX. R. APP. P. 26.1(a)(1), (4), 26.3. The clerk’s record does not indicate that
any motion for new trial or motion to modify was timely filed within thirty days before or
after the September 21, 2018 final judgment was signed. See TEX. R. CIV. P. 329b(a), (g).
After the trial court’s order granting the appellee’s motion for summary judgment was
signed on June 29, 2018, appellee filed a request for entry of final judgment on August 8,
2018, as required under Texas Labor Code § 410.258(f). On August 15, 2018, appellant
filed a “Texas Rule of Civil Procedure 329b Motion to Modify Judgment,” in which he
asked the trial court to deny appellee’s notice of submission of its request for entry of final
judgment and proposed final judgment, and to enter a judgment in favor of appellant. On
September 21, 2018, the trial court signed the final judgment and stated that it made final
its earlier June 29, 2018 order granting the appellee’s motion for summary judgment and
that it was the appealable final judgment. On October 8, 2018, appellant timely filed a
request for findings of fact and conclusions of law from the September 21, 2018 final
judgment, but none were signed by the trial court. See TEX. R. CIV. P. 296, 297.
However, the September 21, 2018 final judgment was not rendered following a
bench trial as required by Rule 296 to request findings and conclusions, but instead after
granting appellee’s motion for summary judgment. See TEX. R. CIV. P. 296. “[F]indings
of fact and conclusions of law have no place in a summary judgment proceeding.” Linwood
v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994). The reason is that for summary judgment
to be rendered, there cannot be a “genuine issue as to any material fact,” TEX. R. CIV. P.
166a(c), and the legal grounds are confined to those stated in the motion and response.
Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993). Thus, with a summary
judgment, findings and conclusions were neither “required,” nor could they have properly
been “considered by the appellate court.” TEX. R. APP. P. 26.1(a)(4). Although appellant’s
request for findings and conclusions was timely, it was an improper request made after
summary judgment and, thus, did not extend his deadline for filing his notice of appeal.
See Wilson v. Jordan Mem. Church of God, No. 01-03-00844-CV, 2004 WL 253503, at *1
(Tex. App.—Houston [1st Dist.] Feb. 12, 2004, no pet.) (per curiam) (mem. op.) (granting
appellee’s motion to dismiss appeal for want of jurisdiction because improper request for
findings and conclusions following summary judgment did not extend time to file notice
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of appeal). Therefore, appellant’s notice of appeal was due thirty days after the September
21, 2018 final judgment, or by October 22, 2018, and his December 21, 2018 notice of
appeal was untimely. See TEX. R. APP. P. 4.1(a), 26.1.
Accordingly, the Court ORDERS appellant to file a response, providing a detailed
explanation, citing relevant portions of the record, statutes, rules, or case law, to show how
this Court has jurisdiction over this appeal. Any response must be filed with the Clerk of
this Court within 10 days of the date of this Order or this appeal may be dismissed for
want of jurisdiction without further notice. See TEX. R. APP. P. 42.3(a), (c).
It is so ORDERED.
Judge’s signature: ___/s/ Laura C. Higley__
x Acting individually Acting for the Court
Date: __January 29, 2019__
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