Iris Dunham v. Charles Elizondo, Sharon Elizondo, Kenneth E. Davison and Bruce Elfant, Constable--Appeal from 201st District Court of Travis County

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State: Texas

Court: Texas Northern District Court

Docket No: 03-97-00771-CV

Case Date: 07/16/1998

Plaintiff: Iris Dunham

Defendant: Charles Elizondo, Sharon Elizondo, Kenneth E. Davison and Bruce Elfant, Constable--Appeal from 201s

Preview:Iris Dunham v. Charles Elizondo, Sharon Elizondo,
Kenneth E. Davison and Bruce Elfant, Constable--
Appeal from 201st District Court of Travis County
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00771-CV
Iris Dunham, Appellant
v.
Charles Elizondo, Sharon Elizondo, Kenneth E. Davison,
and Bruce Elfant, Constable, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. 97-02818, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING
Appellant, Iris Dunham, appeals from summary judgment rendered in favor of appellees, Charles Elizondo, Sharon
Elizondo, Kenneth E. Davison, and Bruce Elfant. We will affirm.
DISCUSSION
Dunham sued appellees and T.L. Partners for alleged damages she sustained from the 1995 foreclosure sale of a house
that she owned in Travis County, Texas. (1) Appellees moved for summary judgment at various times throughout the
trial court proceedings. On September 4, 1997, the court granted summary judgment in favor of the Elizondos and
Davison. The trial court did not sever the judgment from the remainder of the case involving Elfant; thus, the judgment
was interlocutory. See Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 324 S.W.2d 200, 201 (Tex.
1959) (absent order of severance, party against whom interlocutory summary judgment has been rendered will have
right to appeal when and not before the same is merged in final judgment disposing of entire case). The trial court
granted Elfant's summary judgment motion on October 22, 1997. With the granting of Elfant's motion, the trial court
disposed of all remaining issues, and the judgment became final. Therefore, appellant's right to appeal did not ripen
until entry of the last judgment on October 22, 1997.
On October 1, 1997, Dunham filed an instrument that could be construed as a notice of appeal. This instrument was
filed after the summary judgment in favor of the Elizondos and Davison but before the judgment in favor of Elfant. In
it, Dunham complains of the first judgment, which, as we have previously explained, was interlocutory and
nonappealable. Nevertheless, in an attempt to construe the effort broadly, we hold that her filing is a premature filing
within the scope of Texas Rule of Appellate Procedure 27.1. (2) Accordingly, we hold that Dunham has perfected her
appeal from the final judgment, and this Court has jurisdiction to consider her appeal. See Yoast v. Yoast, 649 S.W.2d
289, 291 (Tex. 1983).
We now examine Dunham's briefing on appeal. Following numerous extensions of time to file, appellant's "brief" was
received and filed in this Court on May 14, 1998. Dunham's briefing to the Court consists primarily of a long narrative
diary of events as she recalls them, beginning in 1989, full of editorial comments, opinions, and religious prayer.
Attached to the "brief" is a three-ring binder full of papers and information she has collected. She does not cite any
points of error or issues for us to consider. However, rule 38.9 of the Texas Rules of Appellate Procedure requires us
to construe the briefing rules liberally and consider briefs which substantially comply with the rules. See Tex. R. App.
P. 38.9. Following this principle, we will treat Dunham's filings as sufficient to challenge the trial court's granting of
summary judgment to appellees and reach the merits of her claim. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119
(Tex. 1970).
Although it is difficult to discern the cause of action Dunham alleges, it appears she has brought suit to recover money
damages for wrongful foreclosure. One of the elements of wrongful foreclosure is an irregularity in the sale. See
Charter Nat'l Bank--Houston v. Stevens, 781 S.W.2d 368, 371 (Tex. App.--Houston [14th Dist.] 1989, writ denied).
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Appellees moved for summary judgment on the ground that there was no irregularity in the sale. The only irregularity
Dunham seems to claim is a typographical error in the street address of the property listed in the Notice of Sale of
Real Property. (3) However, the Notice also contained a detailed description of the property, and the legal description
of real property controls over the street address of the real property. See National Convenience Stores, Inc. v Martinez,
784 S.W.2d 468, 471 (Tex. App.--Corpus Christi 1989, writ denied). The test for determining the sufficiency of a
property description is whether it so identifies the land that an officer charged with the duty of executing a writ of
possession could upon the ground, with the assistance of a competent surveyor, ascertain the locality of the lines. See
Dixon v. Bennett, 260 S.W.2d 372, 375 (Tex. Civ. App.--Waco 1953, no writ). After reviewing the description of the
property in the Notice, we conclude that the description satisfies this test. Having demonstrated that there was no
irregularity in the sale, appellees have negated an essential element of Dunham's cause of action and are entitled to
summary judgment. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991) (defendant can prevail on
summary judgment if it can disprove, as matter of law, at least one element of plaintiff's cause of action). The
judgment of the trial court is affirmed.
Marilyn Aboussie, Justice
Before Chief Justice Yeakel, Justices Aboussie and Jones
Affirmed
Filed: July 16, 1998
Do Not Publish
1. Original defendant T.L. Partners is not a party to this appeal. The district court granted T.L. Partners' motion for
summary judgment on June 30, 1997. The trial court severed the judgment in favor of T. L. Partners on July 2, 1997,
and appellant attempted to bring an appeal before this Court. However, appellant's notice of appeal was untimely, and
on January 29, 1998, the cause was dismissed on appellee's motion for want of jurisdiction in cause number 03-97-
00772-CV.
2. A premature filing of the notice of appeal is effective and deemed filed on the day of, but after, the event that begins
the period for perfecting the appeal. See Tex. R. App. P. 27.1; Chase Manhattan Bank, N.A. v. Lindsay, 787 S.W.2d
51, 53 (Tex. 1988) (summary judgment must dispose of all parties and issues in lawsuit to be final and appealable).
3. Specifically, the Notice listed the property for sale as 4505 Elwood instead of 4504 Elwood.
gly, we hold that Dunham has perfected her appeal from the final judgment, and this Court has jurisdiction to consider
her appeal. See Yoast v. Yoast, 649 S.W.2d 289, 291 (Tex. 1983).
We now examine Dunham's briefing on appeal. Following numerous extensions of time to file, appellant's "brief" was
received and filed in this Court on May 14, 1998. Dunham's briefing to the Court consists primarily of a long narrative
diary of events as she recalls them, beginning in 1989, full of editorial comments, opinions, and religious prayer.
Attached to the
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