IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 1, 2002
______________________________
MARY LEE HUDSPETH GUNNELS, APPELLANT
V.
CITY OF BROWNFIELD, TEXAS, EARL ELROD,
INDIVIDUALLY AND IN HIS CAPACITY AS CITY
INSPECTOR, R.C. FLETCHER, INDIVIDUALLY
AND IN HIS CAPACITY AS CITY MANAGER,
APPELLEES
_________________________________
FROM THE 121ST DISTRICT COURT OF TERRY COUNTY;
NO. 14,545; HONORABLE MACKEY HANCOCK, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
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.
On January 22, 2002, the trial court signed an "Amended Order Granting Summary Judgment" denying appellant's new trial motion, but amended its order to add the following language:
The Court finds that, without reliance upon Sovereign Immunity, there remains no genuine issue of material fact in connection with Plaintiff's claims, including 42 U.S.C. §1983 claims, and that summary judgment should be granted; . . . .
In all other respects, the order remained the same as the one signed on November 13, 2001. Appellant filed the notice of appeal giving rise to the question before us on March 11, 2002.
In seeking dismissal, appellees contend that when the trial court modified its final judgment and entered its amended order on January 22, 2002, it restarted the appellate timetable in accordance with Rule of Civil Procedure 329b(h). Thus, they reason, because appellant did not file any other pleading within 30 days after January 22, 2002, extending the appellate timetable, and did not file a notice of appeal or motion to extend the time for that filing, she did not timely prefect an appeal. In response, appellant argues that the second judgment did not substantially modify the first judgment and, because her motion for new trial was not granted in accordance with Texas Rule of Appellate Procedure 26.1(a)(1), the appellate timetable was extended for 90 days after the signing of the second judgment.
A timely filed notice of appeal is a prerequisite for jurisdiction of the appellate court. Bixby v. Bice, 992 S.W.2d 615, 616 (Tex.App.--Waco 1999, no pet.). A notice of appeal in a civil case must be filed within 30 days after the judgment is signed unless a party timely files a motion for new trial or a motion to modify the judgment, in which case the notice of appeal must be filed within 90 days after the judgment is signed. Tex. R. App. P. 26.1(a)(1) and (2).
Rules 329b(g) and (h) of the Rules of Civil Procedure further provide:
(g) A motion to modify, correct, or reform a judgment (as distinguished from motion to correct the record of a judgment under Rule 316), if filed, shall be filed and determined within the time prescribed by this rule for a motion for new trial and shall extend the trial court's plenary power and the time for perfecting an appeal in the same manner as a motion for new trial. Each such motion shall be in writing and signed by the party or his attorney and shall specify the respect in which the judgment should be modified, corrected, or reformed. The overruling of such a motion shall not preclude the filing of a motion for new trial, nor shall the overruling of a motion for new trial preclude the filing of a motion to modify, correct, or reform.
(h) If a judgment is modified, corrected or reformed in any respect, the time for appeal shall run from the time the modified, corrected, or reformed judgment is signed, but if a correction is made pursuant to Rule 316 after expiration of the period of plenary power provided by this rule, no complaint shall be heard on appeal that could have been presented in an appeal from the original judgment.
In Lane Bank Equipment Co. v. Smith Southern Equipment, Inc., 10 S.W.3d 308 (Tex. 2000), the court held that any change to a judgment made by the trial court while it retains plenary jurisdiction, by virtue of Rule 329b(h), will restart the appellate timetable. Even so, only a motion seeking a substantive change will operate to extend the appellate deadlines and the trial court's plenary power under Rule 329b(g). Id. at 313.
In this instance, although appellant's motion was not one which merely sought to correct a clerical error such as punctuation, grammar, or misspellings, neither did it seek to alter the outcome of the judgment. Rather, its effect was to clarify the grounds upon which the judgment was based. Nevertheless, since neither party has argued that because it did not seek a substantive change, the motion failed to extend the appellate deadlines, and that question is not before us.
The gist of the parties' disagreement, as we understand it, is that appellees contend that once the trial court executed its modification, the appellate time table started again and, in order to preserve her right to appeal, appellant had 30 days within which to file her notice of appeal or some other pleading which would extend the appellate deadline. On the other hand, appellant argues that her prior motion for new trial had the effect of extending the appellate deadline and she was still entitled to the 90-day period for filing her notice of appeal.
In Maddox v. Cosper, 25 S.W.3d 767 (Tex.App.--Waco 2000, no pet.), a motion to modify or set aside a judgment was filed in which the movant challenged an award of attorney fees in the judgment. On April 22, the trial court signed a nunc pro tunc summary judgment which only modified its prior judgment by ordering the clerk to distribute monies deposited in the registry of the court. A notice of appeal from the judgment was filed on May 28. The appellee in that case challenged the timeliness of the May 28 notice of appeal on the basis that it was not filed within 30 days from the date of the nunc pro tunc judgment. In a footnote, the court overruled that challenge, observing that in instances in which a motion to modify a judgment is filed before a corrected judgment is signed, it is sufficient to extend the time for filing a notice of appeal for 90 days after the corrected judgment is signed, "as long as the substance of the motion is such as could properly be raised with respect to the corrected judgment." Id. at 770 n.3 (citing Clark v. McFerrin, 760 S.W.2d 822, 825 (Tex.App.--Corpus Christi 1988, writ denied)).
Similarly, in Dunn v. City of Tyler, 848 S.W.2d 305 (Tex.App.--Eastland 1993, no writ), the court held that a motion for new trial relating to an earlier judgment may be considered as a premature motion, and thus be effective to extend the time for filing an appeal bond (then necessary to perfect appeal) for 90 days after the date of a corrected judgment when the substance of the motion was such as could properly be raised with respect to the corrected judgment. Id. at 306.
In A.G. Solar & Co., Inc. v. Nordyke, 744 S.W.2d 646 (Tex.App.--Dallas 1988, no writ), the court held that a motion for new trial that was overruled by operation of law prior to the entry of the corrected judgment was not sufficient to extend the appellate timetable because, if it had been overruled prior to the entry of a corrected judgment, "it can no longer 'assail' a subsequent judgment under rule 306c of the Texas Rules of Civil Procedure, and can no longer 'be properly applied' to that judgment . . . ." Id. at 647-48. In Harris Co. Hospital Dist. v. Estrada, 831 S.W.2d 876 (Tex.App.--Houston [1st Dist.] 1993, no writ), the court disagreed with the Dallas court's conclusion that to "assail" a subsequent corrected judgment, the motion for new trial must be a "live" pleading, and held that there was no reason for the distinction between a "live" prematurely filed new trial motion and one that had been overruled prior to the entry of a judgment. Id. at 879-80. (1) Although they disagreed as to the viability of a new trial motion overruled prior to the entry of a corrected judgment, the two courts both recognized the rule that if a motion for new trial is prematurely filed, to be sufficient to extend the time required to perfect the appeal (presently 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.
The motion for new trial filed by appellant, in addition to seeking the clarification as to the grounds for the rendition of summary judgment, also assailed the sufficiency of the evidence to support the summary judgment. That being so, it was sufficient to extend the time for the filing of a notice of appeal to 90 days from the date of the January 22, 2002 judgment. Because the notice of appeal was filed on March 11, 2002, it was filed within the allowable 90-day period of time.
Accordingly, we do have jurisdiction to consider the appeal and appellees' motion to dismiss must be, and is, overruled.
Per Curiam
Publish.
1. Parenthetically, the Texas Supreme Court has declined to address the differences
of opinion in Estrada and Solar as to the necessity of a "live" motion. See Fredonia State
Bank v. General American Life Ins. Co., 881 S.W.2d 279, 282 n.2 (Tex. 1994).