### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00347-CV

WESCO Distribution, Inc., Appellant

v.

Commercial Indemnity Insurance Company, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT

NO. 01-686-C277, HONORABLE KEN ANDERSON, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Because appellant WESCO Distribution, Inc. failed to timely file its notice of appeal

and its m otion for extension of time to file a notice of appeal, we grant appellee Commercial

Indemnity Insurance Company’s motion to dismiss appeal and dismiss WESCO’s appeal for want

of juri sdiction. S ee Tex. R. App. P. 42.3(a). We also dismiss WESCO’s motion for extension of

time to file a notice of appeal.

A review of WESCO’s docketing statement filed with this Court reveals that the trial

court signed a final summary judgment in this cause on April 23, 2003. Thus, a notice of appeal was

due to be filed on or before May 23, 2003, within 30 days after the summary judgment was signed.

See id. 26.1(c). Any motion for extension of time to file the notice of appeal was due within fifteen

days of the due date of the notice of appeal, or June 9, 2003. See id. 26.3.2 WESCO filed its notice of appeal and a motion for extension of time to file its notice

of appeal on June 17, 2003. In its motion, WESCO explained that before the trial court signed the

final summary judgment, the parties and the trial court engaged in a telephonic hearing. During that

hearing, WESCO sought clarification of the trial court’s basis for granting summary judgment. It

informed the trial court that it intended to request findings of fact and conclusions of law. The trial

court informed WESCO that it would entertain the request and solicited proposed findings and

conclusions from the parties. WESCO therefore filed a request for findings of fact and conclusions

of law, mistakenly believin g that by filing the request it had extended its notice-of-appeal filing

deadlin e until 90 days after the final summary judgment was signed. See id. Acknowledging that

it is now aware that a request for findings of fact f ollowing the grant of a motion for summary

judg ment does not extend the appellate deadline, WESCO nevertheless argues that its request for

conclusions of law should be properly considered, and even if it is not, then equitable considerations

should apply to allow the late filing of its notice of appeal.

On June 2 7

, 2003, Commercial Indemnity filed its motion to dismiss this appeal,

pointing out that WESCO had failed to comply with the appellate deadlines. By letter dated July 1,

2003, this Court advised WESCO that unless it could explain how this Court has jurisdiction over

the appeal, this Court would dismiss the appeal for want of jurisdiction. S ee id. 42.3 (appellate court

must provide ten days’ notic e before dismissing for want of jurisdiction on its own motion).

WESCO responded, setting forth the same arguments it made in its motion for extension of time to

file notice of appeal.3 Rece ntly, this Court held in F oster v. Centex Capital Corp.

, 80 S.W.3d 140 (Tex.

App.—Austin 2002, pet. denied), that findings of fact are inappropriate after a trial court renders a

summary judgment. 80 S.W.3d at 144 (citing I KB Indus. v. Pro-Line Corp.

, 938 S.W.2d 440, 441

(Tex. 1997); Linwood v. NCNB Tex.

, 885 S.W.2d 102, 103 (Tex . 1994)). Although this Court’s

opinion addresses only findings of fact, the Texas Supreme Court opinion relied on by this Court,

IKB Industries , addresses both findings of fact and conclusions of law

, explaining that neither has

a purpose in summary judgment proceedings:

[I]f summary judgment is proper, there are no facts to find, and the legal conclusions

have already been stated in the motion and response. The trial court should not

make, and an appellate court cannot consider, findings of fact in connection with a

summary judgment. Because a request for findings a nd conclusions following

summary judgment can have no purpose, should not be filed, and if filed, should be

ignored by the trial court, such a request should not extend appellate deadlines.

IKB Indus.

, 938 S.W.2d at 441-42 (emphasis added). Thus, WESCO’s request for findings of fact

and conclusions of law did not extend its appellate deadline.

Because WESCO did not file its notice of appeal until more than 30 days after the

trial court signed the summary judgment, its notice of appeal was untimely. And because WESCO’s

motion for extension of time was filed more than 15 days after the deadline to file a notice of appeal,

the motion was also untimely. The time period for filing a perfecting instrument is jurisdictional.

Velasquez v. Harrison

, 934 S.W.2d 767, 770 (Tex. App.—Houston [1st Dist.] 1996, no writ). When

an appellant fails to file timely a perfecting instrument or properly seek an extension of time to file

a perfecting instrument, the appellate court must dismiss the cause for lack of jurisdiction. I d.4

Accordingly, we dismiss this appeal and all related motions for want of jurisdiction. S ee Tex. R.

App. P. 42.3(a).

W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Dismissed for Want of Jurisdiction on Appellee’s Motion

Filed: July 24, 2003