Bruce Wayne Long v. TDCJ-ID, R. Gunnels, C. Popp, and T. Puckett

• Court: Court of Appeals of Texas
• Decided: November 10, 2010
• Docket: 10-10-00199-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-10-00199-CV

BRUCE WAYNE LONG, Appellant v.

TDCJ-ID, R. GUNNELS, C. POPP, AND T. PUCKETT, Appellees

From the 12th District Court Walker County, Texas Trial Court No. 24,230

MEMORANDUM OPINION

Bruce Wayne Long filed suit against TDCJ, R. Gunnels, T. Puckett, and C. Popp

alleging wrongful confiscation of his personal property. On March 28, 2010, the trial

court signed an order granting TDCJ’s Motion to Strike its Answer, Motion to Dismiss,

and Motion to Sever, thereby dismissing TDCJ from the lawsuit. On March 26, 2010,

the trial court signed an order granting the Motion to Dismiss and No Evidence Motion

for Summary Judgment filed by Gunnels, Puckett, and Popp. Long seeks to appeal

from the March 26 order. We dismiss for want of jurisdiction. Long filed his notice of appeal on May 20, 2010. The notice of appeal was more

than 30 days after the trial court signed the judgment and was not timely. TEX. R. APP.

P. 26.1. In his brief, Long states that he is appealing pursuant to TEX. R. APP. P. 26.1(a),

26.1(c), and 30. The notice of appeal was also not timely under TEX. R. APP. P. 26.1(a)

because Long did not file a motion for new trial, a motion to modify the judgment,

motion to reinstate under Texas Rule of Civil Procedure 165a, or a request for findings

of fact and conclusions of law.

In his brief, Long states that he is filing a restricted appeal. To prevail on a

restricted appeal, Long must show: (1) the notice of restricted appeal was filed within

six months of the date of the judgment or order; (2) he was a party to the suit; and (3) he

did not participate in the hearing that resulted in the judgment complained of and did

not timely file a post-judgment motion or request for findings of facts and conclusions

of law. TEX. R. APP. P. 26.1(c); TEX. R. APP. P. 30. In addition, the error complained of

must be apparent on the face of the record. Alexander v. Lynda’s Boutique, 134 S.W.3d

845, 848 (Tex. 2004).

To determine whether Long meets the non-participation requirement of a

restricted appeal, we ask whether he took part in the decision-making event that

resulted in the adjudication of his rights. Texaco, Inc. v. Central Power & Light Co., 925

S.W.2d 586, 589 (Tex. 1996). The nature and extent of participation necessary to

preclude a restricted appeal in any particular case is a matter of degree because trial

courts decide cases in a wide variety of procedural settings. Texaco, Inc v. Central Power

& Light Co., 925 S.W.2d at 589. The decision-making event is the proceeding in which

Long v. TDCJ Page 2 the questions of law and fact are decided. Id. In a summary judgment case, the

decisions are made on the evidence presented to the trial court prior to the actual

summary judgment hearing; thus a party who has taken part in all steps of a summary

judgment proceeding except the hearing on the motion has participated in the decision-

making event. Id.

Gunnels, Puckett, and Popp filed a Motion to Dismiss Under Chapter Fourteen

and No Evidence Motion for Summary Judgment. Long filed a motion to deny the

defendants’ Motion to Dismiss Under Chapter Fourteen and No Evidence Motion for

Summary Judgment. Filing a response to a motion for summary judgment is sufficient

participation to deny a restricted appeal. See Bowles v. Cook, 894 S.W.2d 65, 68 (Tex.

App.—Houston [14th Dist.] 1995, no writ). By filing his response to the Motion to

Dismiss and No Evidence Motion for Summary Judgment, Long participated in the

decision-making event and does not meet the requirements for a restricted appeal.

Therefore, we dismiss the appeal for lack of jurisdiction.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Reyna, and Justice Davis Dismissed Opinion delivered and filed November 10, 2010 [CV06]

Long v. TDCJ Page 3