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Gunnels v. City of Brownfield

To be sufficient to extend the time required to perfect the appeal (currently by filing a notice of appeal) for 90 days from the date the corrected judgment is signed, the contents of the motion must be sufficient to "assail" the corrected judgment.

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ON MOTION TO DISMISS

Appellant Mary Lee Hudspeth Gunnels filed a notice of appeal from a summary judgment in favor of appellees City of Brownfield, Earl Elrod, individually and in his capacity as City Inspector, and R.C. Fletcher, individually and in his capacity as City Manager. We now have before us a motion to dismiss in which appellees assert appellant’s notice of appeal was not timely filed and we have no jurisdiction to consider her appeal. Disagreeing, we overrule the motion.

No clerk’s record has yet been filed in this matter. Thus, the only information before us is that contained in appellees’ motion with its attached documents. The documents show that the trial court signed a summary judgment in favor of appellees on November 13, 2001. Appellant then filed a motion for new trial and, alternatively, a motion to modify the terms of the summary judgment. Although the copy of the motion furnished to us is not file stamped, the parties agree it was filed on December 13, 2001, a date within the 30 days prescribed by Rule of Civil Procedure 329b. See Tex. R. Civ. P. 329b(a) and (g). With respect to the modification sought, appellant requested the trial court add certain language to comply with the court’s letter announcing its decision. The language sought was to the effect that in arriving at its decision, the trial court only ruled there were not material fact issues and did not rely upon appellees’ sovereign immunity claims in connection with appellant’s 42 U.S.C. � 1983 claims.

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