Mary Baxter and Neil Chavigny v. Presidio County, Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-25-00063-CV
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Mary Baxter and Neil Chavigny, Appellants

v.

Presidio County, Texas, Appellee

On Appeal from the 394th District Court
Presidio County, Texas
Trial Court No. 8199

M E MO RA N D UM O PI NI O N

Appellants, Mary Baxter and Neil Chavigny, seek to appeal from the trial court’s final

judgment rendered on November 9, 2024. Appellee, Presidio County, filed a motion to dismiss the
appeal for lack of jurisdiction, contending that Appellants’ notice of appeal was not timely filed.1

We summarily grant the motion and dismiss the appeal for want of jurisdiction.

I. BACKGROUND
Maria del Pilar Maurial, Pinto Canyon Ranch, LLC, and Fort Ranches LP filed a lawsuit

against Appellants, seeking, among other things, a declaration that Naegele Springs Road is a

County Road.2 Appellants, in turn, filed a Third-Party Plaintiffs’ Third-Party Original Petition,

joining Presidio County as a party to the case.

On December 12, 2023, Presidio County filed a motion for summary judgment. In its

motion, Presidio County requested a declaration that the road was a public road and an award of

attorney’s fees against Appellants.3

The trial court granted Presidio County’s motion for summary judgment on January 3,

2024, without holding a hearing and without addressing the county’s request for attorney’s fees.

On August 12, 2024, Presidio County filed a Motion for Summary Judgment on Attorney’s

Fees and Costs. The county attached an affidavit of its counsel, to which counsel attached copies

of billing invoices, as evidence regarding the reasonable and necessary amount of its attorney’s

fees and costs.

1
Although we originally granted Presidio County’s motion to dismiss in our March 25, 2025 opinion, thereby
disposing of the motion, we withdrew our prior opinion in our July 28, 2025 order granting Appellants’ motion for
rehearing, which had the effect of withdrawing our ruling on the motion. As a result, our July 28, 2025 order had the
effect of reinstating both the appeal and all motions pending at the time we issued our March 25, 2025 opinion,
including Presidio County’s motion to dismiss.
2
In their Fourth Amended Petition, the plaintiffs sought a declaration that “all of Ayres Road is a County Road.”
Beginning in their Fifth Amended Petition and in all subsequent petitions, however, the plaintiffs sought a declaration
that “all of Naegele Springs Road is a County Road.”
3
Presidio County incorporated two prior filings, the Plaintiffs’ Second Traditional Motion for Partial Summary
Judgment and its Response to the Plaintiffs’ Motion for Summary Judgment, in its summary judgment motion, relying
on the evidence presented with and attached to the motion and the response as its summary judgment evidence.

2
Appellants filed a response on October 11, 2024. In their response, Appellants argued that

the trial court should exercise its discretion to deny the request for attorney’s fees, that the trial

court should determine that an award of attorney’s fees would not be equitable or just, and that an

award of attorney’s fees to the county would provide the county with a “windfall.” Appellants did

not file a controverting affidavit by an attorney challenging the amount of fees sought by the

county.

The trial court held a hearing on Presidio County’s motion for summary judgment on

attorney’s fees on October 17, 2024. At the hearing, Appellants again argued that awarding

attorney’s fees to the county would not be equitable or just. Neither party called any witnesses nor

presented any evidence at the hearing. At the conclusion of the hearing, the trial court stated that

the court was “going to award [Presidio County] $30,157.50 in attorney’s fees and $3,581.65 in

cost” and was “severing the County from this case.”

On November 9, 2024, the trial court signed an order severing all claims involving Presidio

County from the remainder of the case. The court also issued its final judgment in the case

involving Presidio County, in which it granted the county’s request for attorney’s fees and costs.

On November 27, 2024, Appellants filed a request for findings of fact and conclusions of

law. Appellants subsequently filed a notice of past due findings of fact and conclusions of law on

December 20, 2024.

Finally, Appellants filed a notice of appeal on February 7, 2025.4

4
The original file stamp on Appellants’ notice of appeal indicates that the notice was filed on February 10, 2025. The
notice of appeal in the clerk’s record has the original file stamped date crossed through; the date February 7, 2025,
handwritten as the file date; a handwritten notation indicating that the notice was accepted by the clerk’s office on
February 10, 2025; and initials ostensibly written by a deputy clerk. Because Appellants’ notice of appeal was not
timely filed regardless of whether it was filed on February 7 or February 10, we will assume, for purposes of this
appeal and without deciding, that the notice was filed on February 7, 2025.

3
II. PROCEEDINGS IN THIS COURT
After receiving Appellants’ notice of appeal, the Clerk of this Court issued a notice

informing Appellants that the notice of appeal was not timely filed and that the Court intended to

dismiss the appeal unless any party showed grounds for continuing the appeal. In response,

Appellants filed letters to the Court on February 28, 2025, and on March 6, 2025, and a motion for

extension of time to file their notice of appeal on March 17, 2025, arguing in each that the

February 10, 2025 file stamp was a clerical error and that they timely filed their notice of appeal

on February 7, 2025.

On March 10, 2025, Presidio County filed a motion seeking dismissal of this appeal for

lack of jurisdiction, arguing that Appellants’ request for findings of fact and conclusions of law did

not extend the deadline for filing their notice of appeal because such a request does not extend the

deadline to appeal in a matter that is determined by summary judgment.

On March 25, 2025, we dismissed this appeal for want of jurisdiction. In our opinion, we

concluded that the findings of fact and conclusions of law requested by Appellants did not extend

the deadline for filing their notice of appeal, meaning that their notice of appeal was not timely

filed.

On April 10, 2025, Appellants filed a motion for rehearing, arguing that (1) their request

for findings of fact and conclusions of law was proper and extended the deadline for filing their

notice of appeal, because the trial court could have considered evidence at the final hearing in the

case; (2) there was evidence for the trial court to consider; and (3) the trial court “must have”

considered evidence in ruling on the county’s motion for summary judgment on attorney’s fees.

Appellants therefore sought reinstatement of this appeal.

4
On July 28, 2025, we found good cause for reinstating this appeal, because the appellate

record—which was necessary to properly evaluate Appellants’ argument that their request for

findings of fact and conclusions of law had extended the deadline for filing the notice of appeal—

had not yet been filed. We therefore granted Appellants’ motion for rehearing, reinstated the case,

and set deadlines for the filing of the clerk’s record and the reporter’s record.

Finally, the reporter’s record was filed on August 25, 2025, and the clerk’s record was filed

on September 15, 2025.

III. APPLICABLE LAW
Generally, a party seeking to appeal a trial court’s judgment must file a notice of appeal

within 30 days after the judgment is signed. Tex. R. App. P. 26.1. The deadline extends to 90 days

after the judgment is signed, however, “if any party timely files . . . a request for findings of fact

and conclusions of law 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.” Tex. R. App. P.

26.1(a)(4). We may also extend the deadline for filing a notice of appeal in a civil case by up to an

additional 15 days if a party, acting in good faith, files a notice of appeal within 15 days of the

deadline and provides a reasonable explanation for failing to file the notice of appeal by the

deadline.5 Tex. R. App. P. 26.3; see Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

“A request for findings of fact and conclusions of law does not extend the time for

perfecting an appeal of a judgment rendered as a matter of law, where findings and conclusions

5
Under Texas Rule of Appellate Procedure 26.3, the appellate court may only extend the time to file a notice of appeal
if a party files a motion for extension of time to file a notice of appeal in the appellate court within 15 days after the
deadline for filing the notice of appeal. Tex. R. App. P. 26.3(b). Nevertheless, in civil proceedings, “a motion for
extension of time is necessarily implied when an appellant acting in good faith files” a notice of appeal after the
deadline but within the 15-day extension period. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). But the
party must still provide a reasonable explanation for the party’s failure to timely file a notice of appeal. Tex. R. App. P.
10.5(b)(1)(C), (b)(2)(A), 26.3(a); see Verburgt, 959 S.W.2d at 617; Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003).

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can have no purpose and should not be requested, made, or considered on appeal.” IKB Indus.

(Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997). Therefore, “[b]ecause findings

of fact and conclusions of law have no place in a summary judgment proceeding, the” deadline for

filing a notice of appeal is not extended by the filing of a request for findings and conclusions in

summary judgment proceedings. Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994)

(per curiam); see IKB Indus., 938 S.W.2d at 441–42; Wilson v. Jordan Mem’l Church of God,

No. 01-03-00844-CV, 2004 WL 253503, at *1 (Tex. App.—Houston [1st Dist.] Feb. 12, 2004,

no pet.) (mem. op.).

Finally, a court may award costs and reasonable and necessary attorney’s fees that are

equitable and just to a party under the Uniform Declaratory Judgments Act. Tex. Civ. Prac. & Rem.

Code Ann. § 37.009. Under the act, the determination as to whether the attorney’s fees are

reasonable and necessary are matters of fact, and the determination whether the fees are equitable

and just are matters of law. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Nevertheless, a

trial court may grant summary judgment on the issue of attorney’s fees if the movant provides

uncontradicted summary judgment evidence regarding the movant’s attorney’s fees. See Bethel v.

Butler Drilling Co., 635 S.W.2d 834, 840, 841 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d

n.r.e.); Roth v. JPMorgan Chase Bank, N.A., 439 S.W.3d 508, 514 (Tex. App.—El Paso 2014,

no pet.); Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 373–74 (Tex. App.—

San Antonio 1999, pet. denied); Cap Rock Elec. Coop., Inc. v. Texas Util. Elec. Co., 874 S.W.2d

92, 101–02 (Tex. App.—El Paso 1994, no writ).

IV. DISCUSSION
The trial court rendered judgment in this case based on Presidio County’s traditional motion

for summary judgment and Presidio County’s motion for summary judgment on attorney’s fees.

6
We therefore held, in our original opinion in this appeal, that Appellants’ request for findings of

fact and conclusions of law did not extend their deadline for filing a notice of appeal and that

Appellants’ notice of appeal was not timely, and we dismissed the appeal for want of jurisdiction.

See Baxter v. Presidio Cnty., No. 08-25-00063-CV, 2025 WL 909230 (Tex. App.—El Paso

March 25, 2025, withdrawn) (mem. op.).

Nevertheless, Appellants filed a motion for rehearing, arguing that we should apply a two-

step inquiry established by the Texas Supreme Court in Phillips v. McNeill, 635 S.W.3d 620, 625

(Tex. 2021), to determine whether their request for findings of fact and conclusions of law

extended the deadline for filing a notice of appeal in this case. Specifically, Appellants contend

that because (1) the trial court must have considered evidence when it ruled on Presidio County’s

traditional motion for summary judgment, and (2) the trial court “granted an award of attorney’s

fees as a sanction in” its order granting Presidio County’s motion for summary judgment on

attorney’s fees, their requests for findings and conclusions should have extended the deadline

under the test announced in Phillips. We disagree.

In Phillips, the Texas Supreme Court adopted a “two-step inquiry for determining when

requests for findings and conclusions that are not required by the rules will trigger the extended

ninety-day filing deadline. First, was the non-jury proceeding a type in which the trial court could

consider evidence? Second, if so, was there evidence before the court?” Phillips, 635 S.W.3d at

625 (internal citations omitted). When applying the test, “[t]he first question is categorial, not case-

specific,” but the second question is case-specific. Id. Only when the answer to both questions is

yes will a request for findings of fact and conclusions of law extend the deadline for filing a notice

of appeal. See id. at 625–26.

7
Here, Appellants requested findings of fact and conclusions of law in connection with a

summary judgment proceeding. A trial court may only grant a motion for summary judgment when

“there is no genuine issue as to any material fact and the moving party is entitled to judgment as a

matter of law.” Tex. R. Civ. P. 166a(c); see IKB Indus., 938 S.W.2d at 441 (stating that “for

summary judgment to be rendered, there cannot be a genuine issue as to any material fact, and the

legal grounds are limited to those stated in the motion and response” (cleaned up)). As a result, a

trial court may not receive oral testimony or other evidence at a hearing on a motion for summary

judgment. Tex. R. Civ. P. 166a(c); see Cuellar v. City of San Antonio, 821 S.W.2d 250, 252

(Tex. App.—San Antonio 1991, writ denied) (“[T]he trial court may not receive extrinsic evidence,

either oral or documentary, at the hearing on the motion for summary judgment.”). “In other words,

summary judgment is only proper when there are no facts to find and the legal conclusions have

already been stated in the motion and response.” Balmorhea Ranches, Inc. v. Heymann, 656 S.W.3d

441, 447 (Tex. App.—El Paso 2022, no pet.); see IKB Indus., 938 S.W.2d at 441. A summary

judgment hearing is therefore not “a non-jury proceeding . . . in which the trial court could consider

evidence” under Phillips.6 See Phillips, 635 S.W.3d at 625 (stating that a non-jury proceeding is

the type in which a trial court could consider evidence for any “judgment that could be based in

any part on an evidentiary hearing” (emphasis added)); State v. Easley, 404 S.W.2d 296, 297

6
In their motion for rehearing, Appellants argue that “it is clear that evidence not only could have, but must have been,
[sic] considered in deciding” Presidio County’s traditional motion for summary judgment. Under this reasoning, every
non-jury proceeding would be one in which the trial court could consider evidence, because every trial court judgment
must be based on something—whether uncontradicted affidavits, stipulated facts, the documents in the record, or some
other document, record or piece of evidence. As a result, under Appellants’ argument, a request for findings of fact
and conclusions of law would always extend the appellate deadlines. But if the Texas Supreme Court had intended for
a request for findings and conclusions to always extend the deadlines, they could easily have said so without creating
a two-step inquiry for making that determination, and the fact that they created such a test indicates that the filing of
a request does not always extend the deadlines. Thus, we conclude that a non-jury proceeding, such as a summary
judgment proceeding, in which the trial court is not called upon, or even able, to resolve factual disputes or to consider
the credibility of witnesses or evidence is not a proceeding “in which the trial court could consider evidence.” Phillips
v. McNeill, 635 S.W.3d 620, 625 (Tex. 2021).

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(Tex. 1966) (holding that neither hearing extrinsic evidence nor filing findings of fact and

conclusions of law “has any place in a summary judgment proceeding”).

Further, the purpose of the two-step inquiry outlined in Phillips is to help a reviewing court

determine whether any findings of fact and conclusions of law by the trial court could properly be

considered on appeal. See Phillips, 635 S.W.3d at 626. But the Texas Supreme Court has explicitly

stated that “findings of fact and conclusions of law have no place in a summary judgment

proceeding,” Linwood, 885 S.W.2d at 103; “a request for findings and conclusions following

summary judgment . . . should be ignored by the trial court,” IKB Indus., 938 S.W.2d at 441–42;

and summary judgment is an example of “a judgment rendered as a matter of law, where findings

and conclusions can have no purpose and should not be requested, made, or considered on

appeal[,]” id. at 443. We find nothing in Phillips that would indicate an intent to overrule these

previous holdings. See Phillips, 635 S.W.3d at 624–27. In fact, the court’s opinion in Phillips relied

on IKB Industries as support for the first inquiry, related to whether “the non-jury proceeding [was]

a type in which the trial court could consider evidence[,]” and specifically cited the portion of IKB

Industries in which the court stated that summary judgment was an example of the types of

judgments for which findings and conclusions could not be considered on appeal and for which a

request for findings and conclusions does not extend the deadline for filing a notice of appeal. See

Phillips, 635 S.W.3d at 625 (citing IKB Indus., 938 S.W.2d at 443).

Finally, to the extent Appellants rely on Awde v. Dabeit, 938 S.W.2d 31 (Tex. 1997)

(per curiam), as support for their argument that their request for findings of fact and conclusions

of law operated to extend the deadlines in this case, we find that case to be easily distinguishable.

In Awde, the defendant in the trial court sought attorney’s fees as a sanction against the plaintiff,

and the trial court granted the request for attorney’s fees as a sanction after holding an evidentiary

9
hearing at which it heard sworn testimony. Awde, 938 S.W.2d at 32. The Texas Supreme Court

therefore held that, because the trial court awarded a sanction based on sworn testimony received

at an evidentiary hearing, the appellant’s “request for findings of fact and conclusions of law

extended the deadline for perfecting the appeal.” Id. at 33.

There are two key differences between the proceedings in Awde and the proceedings in this

case, however. First, the trial court in Awde awarded attorney’s fees to the defendant based on a

request for sanctions, and a judgment rendered as sanctions is a judgment for which a request for

findings and conclusions extends the deadline for filing a notice of appeal. IKB Indus., 938 S.W.2d

at 443. The trial court in this case, by contrast, awarded attorney’s fees to Presidio County based

on the county’s unchallenged evidence included with its motion for summary judgment on

attorney’s fees. And in cases where there are no controverted material facts, a summary judgment

is a judgment rendered as a matter of law, for which “[a] request for findings of fact and

conclusions of law does not extend the time for perfecting appeal[.]” Id. Second, the trial court in

Awde awarded attorney’s fees to the defendant after holding an evidentiary hearing, and a

“judgment based in any part on an evidentiary hearing” is a judgment for which the deadline for

filing a notice of appeal is extended by the filing of a request for findings and conclusions. Id. But

the trial court in this case awarded attorney’s fees based on a factually uncontroverted motion for

summary judgment and was therefore prohibited from holding an evidentiary hearing on the

motion, meaning that the trial court’s judgment could not have been based on an evidentiary

hearing and, again, was “rendered as a matter of law.”7 Id.; see Tex. R. Civ. P. 166a(c); Easley, 404

7
We note that whether or not the trial court actually held an evidentiary hearing is irrelevant, because (1) the first
inquiry in the two-step test under Phillips is categorical, not case-specific, and (2) the Texas Supreme Court has
specifically held that a request for findings of fact and conclusions of law does not extend the deadline to perfect an
appeal from a summary judgment proceeding. See Phillips, 635 S.W.3d at 625; IKB Indus. (Nigeria) Ltd. v. Pro-Line
Corp., 938 S.W.2d 440, 441–42, 443 (Tex. 1997); Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994)

10
S.W.2d at 297; Cuellar, 821 S.W.2d at 252. As a result, the court’s holding in Awde does not

support Appellants’ contention that their filing of a request for findings and conclusions extended

the deadline for filing a notice of appeal.

Accordingly, we find that Appellants’ request for findings of fact and conclusions of law

did not extend the deadline for filing their notice of appeal from the trial court’s summary

judgment. See IKB Indus., 938 S.W.2d at 441–42; Linwood, 885 S.W.2d at 103; Wilson, 2004 WL

253503, at *1; see also Ezy-Lift of Cal., Inc. v. EZY Acquisition, LLC, No. 01-13-00058-CV, 2014

WL 1516239, at *2–9 (Tex. App.—Houston [1st Dist.] April 17, 2014, pet. denied) (mem. op.)

(holding that request for findings of fact and conclusions of law did not extend deadline for filing

notice of appeal and dismissing the appeal for want of jurisdiction, because the parties had

stipulated to the amount of attorney’s fees that were reasonable and necessary, leaving no factual

dispute for the trial court to decide).

V. CONCLUSION
Because Appellants’ request for findings of fact and conclusions of law did not extend the

deadline for filing a notice of appeal in this case, the deadline for filing a notice of appeal from the

trial court’s November 9, 2024 final judgment was December 9, 2024. Tex. R. App. P. 26.1.

Appellants, however, did not file a notice of appeal until February 7, 2025—60 days after the

deadline. As a result, Appellants failed to invoke our jurisdiction in this case; we lack jurisdiction

(per curiam). Thus, a request for findings of fact and conclusions of law is not effective to extend the deadline for
filing a notice of appeal when the trial court grants a summary judgment motion, even if an appellant may be able to
raise an issue on appeal related to whether a trial court improperly considered evidence at a summary judgment
hearing.
Regardless, the appellate record here does not contain a reporter’s record of any hearing on Presidio County’s
traditional motion for summary judgment, and the reporter’s record of the hearing on Presidio County’s motion for
summary judgment on attorney’s fees and costs shows that the parties neither called witnesses nor offered any exhibits
during the hearing; instead, the parties merely argued the legal questions of whether an award of attorney’s fees and
costs would be equitable and just. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).

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and must dismiss this attempted appeal. See Tex. R. App. P. 25.1(b), 42.3(a); In re A.F.J.M., No.

08-24-00068-CV, 2024 WL 5065190, at *1, *3 (Tex. App.—El Paso Dec. 10, 2024, pet. denied)

(mem. op.); EZY Acquisition, 2014 WL 1516239, at *9.

Accordingly, we grant Presidio County’s motion to dismiss, and we dismiss this appeal.8

Any pending motions are dismissed as moot.

MARIA SALAS MENDOZA, Chief Justice

October 3, 2025

Before Salas Mendoza, C.J., Palafox and Soto, JJ.

8
In its motion, Presidio County “requests that the Court grant summary dismissal of this appeal or, alternatively, grant
this motion and dismiss the appeal and award damages for a frivolous appeal.” In light of our decision to “grant
summary dismissal of this appeal” and Presidio County’s failure to provide any argument or authority in support of
its alternative request for dismissal and an award of damages, we decline to consider the merits of, or even whether
we have jurisdiction over, Presidio County’s alternative request.

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