Linwood v. NCNB Texas

• Citation: 885 S.W.2d 102
• Decision Date: 13 October 1994
• Docket Number: No. 94-0364,94-0364
• Parties: 38 Tex. Sup. Ct. J. 30 Algie LINWOOD, Petitioner, v. NCNB TEXAS, Respondent.
• Court: Supreme Court of Texas

Page 102

885 S.W.2d 102

38 Tex. Sup. Ct. J. 30

Algie LINWOOD, Petitioner, v. NCNB TEXAS, Respondent.

No. 94-0364.

Supreme Court of Texas.

Oct. 13, 1994.

Don Black, Dallas, for petitioner.

Donald W. Hill, Dallas, for respondent.

PER CURIAM.

This case presents the question of whether the court of appeals has jurisdiction to hear the appeal. The court of appeals, holding that it did not, dismissed for want of jurisdiction. Without hearing oral argument a majority of the court reverses the judgment of the court of appeals and remands to that court for further proceedings. TEX.R.APP.P. 170.

Algie Linwood sued NCNB of Texas, asserting contract and tort claims arising out of the repossession of two trucks. The trial court granted summary judgment in favor of NCNB on September 23, 1991. Linwood requested findings of fact and conclusions of law on September 26. He filed his notice of appeal on October 3 and a notice of past-due findings of fact and conclusions of law on October 22. On November 15, after the trial court failed to produce findings of fact and conclusions of law and fifty-three days after the summary judgment was signed, Linwood filed his cost bond. The court of appeals dismissed for want of jurisdiction because it held that Linwood's request for findings of fact and conclusions of law did not extend the appellate timetable in a summary judgment case and Linwood's notice of appeal was not a bona fide attempt to invoke the court's jurisdiction. 876 S.W.2d 393. Consequently, the court of appeals concluded the appeal was not timely perfected.

Absent a filing that extends the deadline, a party has thirty days from the date the judgment is signed to file his cost bond to perfect his appeal. TEX.R.APP.P 41(a)(1). Linwood filed a request for findings of fact and conclusions of law in an attempt to extend the appellate timetable. TEX.R.APP.P. 41(a)(1). Because findings of fact and conclusions of law have no place in a summary judgment proceeding, the timetable was not extended. We agree with the court of appeals holding that the language "tried without a jury" in rule 41(a)(1) does not include a summary judgment proceeding. The court of appeals, however, has jurisdiction over the appeal if a party files an instrument in a bona fide attempt to invoke the appellate court's jurisdiction. Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex.1991); Walker v. Blue Water Garden Apartments, 776 S.W.2d 578, 581 (Tex....