A. In general, a party may only take an appeal from a final judgment. Northeast Independent School District v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966); see generally Tex. Civ. Prac. & Rem. Code Section 51.012 (jurisdiction of court of appeals). A few years ago, the courts were faced with a “persistent problem of determining when a judgment rendered without a conventional trial on the merits is final for purposes of appeal.” Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). The use of a “Mother Hubbard” clause in a judgment caused some confusion about whether a judgment was final, because the trial court often did not intend to dispose of all parties and all issues in the order even though the court stated that “all relief not specifically granted is denied.” Mafrige v. Ross, 866 S.W.2d 590 (Tex. 1993). As a result of this confusion, the Court issued its opinion in Lehmann v. Har-Con Corp., supra which set forth the general rules for finality of judgments.
1. If the trial court signs a judgment after a conventional trial on the merits, the court of appeals will presume that the judgment is final. Northeast Independent School District v. Aldridge, supra; Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003).
2. If the trial court signs a judgment without a conventional trial on the merits, such as a summary or default judgment, there is no presumption of finality. In re: Burlington Coat Factory Warehouse of McAllen, 167 S.W.3d 827 (Tex. 2005); Stephens v. Dallas Area Rapid Transit, 50 S.W.3d 621 (Tex. App.—Dallas 2001, pet. denied). However, a judgment will be considered final without a conventional trial on the merits under two circumstances:
a. If the record reflects that the trial court actually disposed of all parties and all issues, the judgment is final, regardless of the language in the judgment. “A judgment that actually disposes of every remaining issue in a case is not interlocutory merely because it recites that it is partial or refers to only some of the parties or claims.” Lehmann v. Har-Con Corp., supra at 200; Farmer v. Ben E. Keith, Co., 907 S.W.2d 495, 496 (Tex. 1995). In short, the language of the order or judgment cannot make it interlocutory when it is a final disposition of the case based on the record.
b. The court may make an order or judgment final, even though it should have been interlocutory, as long as the language expressly disposes of all claims and all parties. If the trial court renders a final judgment in error, the judgment may be wrong, but it is final. “A judgment that grants more relief than a party is entitled to is subject to reversal, but it is not, for that reason alone, interlocutory.” Lehmann v. Har-Con Corp., supra at 200. The Court did not give specific language that might make a judgment final, but it did make a few suggestions, for example, the trial court may indicate that: “The Court intends to dispose of all parties and all issues. This judgment is final and appealable.” See id. at 206.
B. Under certain circumstances, a party may challenge an order in the trial court by petition for writ of mandamus. See generally Rule 52, Tex. R. App. P. In general, the appellate court should not grant a petition for writ of mandamus if there is an adequate remedy on appeal. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1986); In Re: Roberts, 18 S.W.3d 736 (Tex. App.—San Antonio 2000, orig. proceeding). The courts are fond of writing that “mere increased cost and delay” are not sufficient to justify a writ of mandamus. Walker v. Packer, 833 (Tex. 1992); but see CSR Limited v. Link, 925 S.W.2d 591 (Tex. 1996)(special appearance in mass tort case before enactment of § 51.014(a)(7)).
C. Texas law allows appeals of interlocutory orders only if authorized by statute. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266 (Tex. 1992); Story v. DeBord, 967 S.W.2d 352 (Tex. 1998). The primary statute that authorizes interlocutory appeals is Tex. Civ. Prac. & Rem. Code § 51.014. However, there are statutes that allow such appeals by their terms. For purposes here, other relevant statutes include appeals related to arbitration and venue.
1. Under Section 171.098, a party may take an appeal from an order denying a motion to compel arbitration or granting a motion to stay arbitration. In re: Valero Energy Corp., 968 S.W.2d 916 (Tex. 1998). This section is an attempt to emphasize and confirm the public policy in favor of arbitration which would be defeated if a party seeking arbitration had to wait until the court conducted a trial on the merits to appeal an order denying arbitration.
a. Note there is no provision for an interlocutory appeal from an order granting a motion to compel arbitration. Materials Evolution Development v. Jablonowski, 949 S.W.2d 31 (Tex. App.—San Antonio 1997, no writ); Lipshy Motorcars v. Soverign Associates, 944 S.W.2d 68 (Tex. App.—Dallas 1997, no writ). This statutory scheme is similar under federal law. 9 U.S.C. § 16 (prevents appellate process from impeding arbitration).
b. The statute only applies to interlocutory appeals from an order denying arbitration under the Texas Arbitration Act. A party may challenge an order denying arbitration under the Federal Arbitration Act in state court by petition for writ of mandamus. In re: L & L Kempwood Associates, 9 S.W.3d 125 (Tex. 1999); Jack B. Anglin Co. v. Tipps, supra at 271. If the federal arbitration statute applies, it may preempt the state arbitration statue. In such cases, the court of appeals may then dismiss the appeal for lack of jurisdiction. In re: Mony Securities Corp., 83 S.W.3d 279 (Tex. App.—CorpusChristopherti 2002, orig. proceeding); Pennzoil Co. v. Arnold Oil Co., 30 S.W.3d 494 (Tex. App.—San Antonio 2000, no pet.); but see Texas Commerce Bank v. Universal Technical Institute, 985 S.W.2d 678 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d); see generally Roger Hughes, Interlocutory Appeals From Order Denying Arbitration, XVIII Appellate Advocate 18 (Fall 2005).
2. Usually, rulings on venue matters are not subject to interlocutory appeal. Labrador Oil Co. v. Northern Drilling Co., 10 S.W.3d 717 (Tex. App.—Amarillo 1999, no pet.). However, under Section 15.003(b), a party may take an appeal from a venue order dealing with joinder of multiple or intervening plaintiffs. Ramirez v. Collier, Shannon, Scott, 123 S.W.3d 43 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).
D. Interlocutory appeals are an exception to the general rule that a party may take an appeal only from final judgments or orders, so the courts generally strictly construe statutes that allow Interlocutory appeals. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352 (Tex. 2001).
The Legislature provided an exception to the general rule of finality in Section 51.014, which allows appeals from interlocutory orders under certain circumstances. Texas law has allowed such appeals more or less for about 100 years. Acts 1907, 30th Leg., ch. 107, pg. 206. However, recently, the Legislature has used the statute on interlocutory appeals to emphasize the importance of recent tort reform legislation. Although the Legislature has amended the statute a number of times since it was passed, the most recent amendments have the most impact on trial practice.
A. In 1997, the Legislature added sections to the statute that provided for a stay of a trial pending resolution of an interlocutory appeal from certain orders. Acts 1997, 75th Leg., ch. 1296. Depending on the nature of the order, the stay may apply to the trial only, or may stay all proceedings in the trial court. The amendment applied only to a civil action that was filed or commenced trial after the effective date of the Act, which was June 20, 1997. See Section IV, infra.
B. In 2001, the Legislature modified the sections of the statute dealing with stay orders. Depending on the nature of the interlocutory order, the order may not be subject to an automatic stay unless the motion in the trial court giving rise to the interlocutory order is filed within a certain time. The amendment also included a section that essentially allowed an agreed interlocutory appeal. This section is very similar to the procedure under federal law. 28 U.S.C. § 1292(b). The amendment applied to actions that were filed after the effective date of the Act, which was September 1, 2001.
C. In 2003, the Legislature included sections that allow an interlocutory appeal from certain orders denying motions to dismiss for failure to provide a proper report in a medical malpractice case under Section 74.351. Clearly, the legislature wanted to give healthcare providers a fast and relatively cheap way to enforce their rights under the tort reform legislation. The amendment also revised the section dealing with the stay of proceedings in the trial court pending resolution of the interlocutory appeal.
D. In 2005, the Legislature added a provision for an interlocutory appeal from an order that denied a motion to dismiss filed under Section 90.007, which deals with medical reports in asbestos and silica cases. The new act applies to interlocutory orders issued after the effective date of the Act, which was September 1, 2005.
A. 51.014(a)(1): an order that appoints a receiver or trustee. The right of the court of appeals to review an order appointing a receiver or trustee is clear. However, parties often try to include other rulings in the interlocutory appeal. See, e.g., Krumnow v. Krumnow, – S.W.3d -, 2005 WL 2044854 (Tex. App.—Waco 2005, no pet. history)(court of appeals had jurisdiction to review order with respect to appointment of receiver, but could not review on interlocutory appeal an order with respect to the vacating of a deed of trust); In Re: Estate of Trevino, 2005 WL 2012663 (Tex. App.—San Antonio 2005 no pet. history)(order appointing receiver properly before the Court, but order on motion to recuse in same case is not subject to review by interlocutory appeal); Mueller v. Beamalloy, Inc., 994 S.W.2d 855 (Tex. App.—Houston [1st Dist.] 1999, no pet.)(order that appointed a receiver or liquidate a corporation is subject to interlocutory appeal); Holman v. Stephen F. Austin Hotel, 599 S.W.2d 679 (Tex. App.—Austin 1980, writ dism’d)(order that denies the appointment of a receiver is not subject to interlocutory appeal).
B. 51.014(a)(2): an order that overrules a motion to vacate an order that appoints a receiver or trustee is subject to interlocutory appeal.
C. 51.014(a)(3): an order that certifies or refuses to certify a class brought under Rule 42, Tex. R. Civ. P. Orders dealing with a motion to certify a class under Rule 42 are subject to review generally by interlocutory appeal. Grant Thornton v. Suntrust Bank, 133 S.W.3d 342 (Tex. App.—Dallas 2004, pet. pending)(appeal proper when trial court certified two of the causes of action by bank as a class action in an amended order); McAllen Medical Center v. Cortez, 66 S.W.3d 227 (Tex. 2001)(order that certified a settlement class subject to interlocutory appeal); De Los Santos v. Occidental Chemical Corp., 933 S.W.2d 493 (Tex. 1996)(order that changed a permissive class to a mandatory class subject to interlocutory appeal). However, there are some exceptions to the general rule. Coach Gathering Systems, Inc. v. Harms, 946 S.W.2d 453 (Tex. App.—Corpus Christopherti 1997, writ denied)(order that changed class members based on geographic area not subject to interlocutory appeal); Pierce Mortuary Colleges, Inc. v. Bjerke, 841 S.W.2d 878 (Tex. App.—Dallas 1992, writ denied)(amended order expanding size of class not subject to interlocutory appeal when original order not challenged).
D. 51.014(a)(4): an order that grants or refuses to grant a temporary injunction, or grants or overrules a motion to dissolve a temporary injunction. This section includes interlocutory review of an order that makes a substantive modification to a temporary injunction. City of Lancaster v. Texas Motor Transportation Association, 2005 WL 2303415 (Tex. App.—Dallas 2005, no pet. history). However, this section does not allow an interlocutory appeal of an order granting a temporary restraining order. Lord v. Clayton, 352 S.W.2d 718 (Tex. 1961).
E. 51.014(a)(5): an order that denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state. Texas A&M University System v. Koseoglu, 167 S.W.3d 374 (Tex. App.—Waco 2005, pet. pending)(court discusses types of employees subject to interlocutory appeal); Dallas County v. Halsey, 87 S.W.3d 552 (Tex. 2002) (Court allows interlocutory appeal by official court reporter).
F. 51.014(a)(6): an order that denies a motion for summary judgment based on a member of the media arising under the first amendment or Article 1, Section 8 of the Texas Constitution, or Chapter 73 of the Tex. Civ. Prac. & Rem. Code. Unlike other sections, the courts have expanded the scope of this section to allow review of all grounds in the motion for summary judgment, even though some of those grounds may not be based on the constitutional protection for free speech. Hearst Corp. v. Skeen, 159 S.W.3d 633 (Tex. 2005)(Court has jurisdiction over interlocutory appeal when trial judge denies media defendant’s motion for summary judgment in a defamation case); Turner v. KTRK TV, Inc., 38 S.W.3d 103 (Tex. 2000). A plaintiff may not appeal the denial of a summary judgment under this section. Evans v. Dolcefino, 986 S.W.2d 69 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
G. 51.014(a)(7): an order that grants or denies a special appearance under Rule 120a, except for cases brought under the Family Code. This section was added in 1997. Prior to that time, there was some confusion about when a defendant could challenge a special appearance by petition for writ of mandamus. Compare CSR Limited v. Link, 925 S.W.2d 591 (Tex. 1996) with Canadian Helicopters v. Wittig, 876 S.W.2d 304 (Tex. 1994). An order that grants a special appearance may be a final order if there is only one defendant, or if the court severs the claim against the defendant who was dismissed.
H. 51.014(a)(8): an order that grants or denies a plea to the jurisdiction by a governmental unit as defined in Section 101.001. See Texas Department of Transportation v. Ramirez, 74 S.W.3d 864 (Tex. 2002); Longview Independent School District v. Vibra-Whirl, 169 S.W.3d 511 (Tex. App.—Texarkana 2005, no pet. history).
I. 51.014(a)(9): an order that denies all or part of the relief sought by a motion to dismiss under Section 74.351(b), although that interlocutory appeal is not available from an order granting an extension under Section 74.351. Section 74.351(b) provides that the court must dismiss a plaintiff’s claim with prejudice in a healthcare liability case if the plaintiff does not serve an expert report within the time period set forth in the statute.
J. 51.014(a)(10): an order that grants relief sought by a motion under Section 74.351(l), which is an order that grants a motion that challenges the adequacy of an expert report in a healthcare liability case. In many cases, the order that grants a motion to dismiss for failure to provide an adequate medical report would be subject to a regular appeal because the case would be over, assuming that the healthcare provider that filed the motion is the only remaining defendant in the case. However, this section would apply if there are multiple defendants, and the court grants a motion to dismiss as to only one defendant in the case.
1. Prior to the 2003 amendments to Section 51.014, there was a conflict in the court of appeals on whether a healthcare provider could challenge the adequacy of an expert report by petition for writ of mandamus. That option was probably foreclosed by the order of the Supreme Court in In re: Woman’s Hospital of Texas, 141 S.W.3d 144 (Tex. 2004) (Owens, J., concurring and dissenting). Although the majority did not expressly reject the use of mandamus in this context, the tenor of the minority opinion leaves little doubt that the Court did not believe that mandamus was available.
2. The recent opinion in Academy of Oriental Medicine v. Andra, 173 S.W.3d 184 (Tex. App.—Austin 2005, no pet. history) discussed the issue of jurisdiction of the court of appeals over an interlocutory appeal when the trial court denied a motion to dismiss based on a failure to provide an adequate report. The Court concluded that Section 51.014(a)(10) did not give the court jurisdiction over an interlocutory appeal although the opinion is confusing.
a. Section 51.014(a)(9) allows an interlocutory appeal from an order denying a motion to dismiss under Section 74.351(b), which requires a trial court to dismiss a case when a plaintiff fails to file an expert report. The Court found that the defendant did not file its motion to dismiss under Section 74.351(b), although it is not clear if the basis for this ruling is that the defendant did not make an argument under Section 74.351(b) in the trial court, or if Section 74.351(b) only requires dismissal when no report is filed rather than an inadequate report. The language in the opinion is not clear.
1. Other courts have held that a failure to file an adequate report is the functional equivalent of filing no report for purposes of Sections 74.351(b) and 51.014(a)(9). Group v. Vincento, 164 S.W.3d 724 (Tex. App.—Houston [1st Dist.] 2005, pet. pending)(expert report has not been served under Section 74.351(b) if elements of report are found deficient); Carreras v. Marroquin, 2005 WL 2461744 (Tex. App.—Corpus Christopherti 2005, no pet. history)(Court simply states it has jurisdiction over interlocutory appeal when defendant claimed report not adequate).
2. Court appeared to reach conclusion based on strict reading of the motion in the trial court. This opinion may have been written to reach a certain result.
b. Section 51.014(a)(10) allows an interlocutory appeal from an order granting, but not denying, relief sought by a motion under Section 74.351(l), which deals with motions challenging the adequacy of a report. The Court found the statute did not allow an interlocutory appeal because it found defendant sought relief under Section 74.351(l), not 74.351(b).
1. The Court was probably correct in its reading of Section 51.014(a)(10).
2. The issue is really whether Section 74.351(b) deals with inadequate reports as well as no reports. An argument can be made both ways.
a. There is no reason for Section 51.014(a)(10) if a defendant can take an interlocutory appeal involving a motion to dismiss for an inadequate report under Section 74.351(b).
b. The definition of expert report in Section 74.351(r)(6) includes a requirement of adequacy, so an inadequate expert report is no report by definition.
3. The Legislature probably did not intend the result that the court reached given the scope and purpose of the tort reform legislation. The omission of language in Section 51.014(a)(10) dealing with orders denying relief under Section 74.351(l) was probably an oversight.
4. The case was decided in late August. It is not clear if a motion for rehearing is pending. The defendant has not yet filed a petition for review, although there is a question if the Supreme Court has jurisdiction. See Section VI, infra.
K. 51.014(a)(11): an order that denies a motion to dismiss filed under Section 90.007, which is the new statute dealing with medical reports in asbestos and silica litigation. Because the statute is so new, there have not been any reported cases under this section. However, the appellate courts are probably nervous about the number of interlocutory appeals that may be filed under this section. The MDL courts for both asbestos and silica are trying to develop a form that can be used in order to give some guidance as to the adequacy of these reports so the appellate courts can deal with the issue a limited number of times.
L. 51.014(d): this section applies to interlocutory orders issued on or after June 18, 2005. This section provides for interlocutory appeal in a civil action not otherwise appealable if certain conditions are met: (1) the parties agree that the order involves a controlling question of law as to which there is substantial ground for difference of opinion; (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation; and (3) the parties agree to the order.
1. Prior to the 2005 amendments, the court of appeals had to agree to hear the case. The courts of appeal did not uniformly grant applications for an interlocutory appeal, even if the parties and the trial court agreed. E.g. Farmer, Fuqua & Huff v. Abrams Centre National Bank, 2003 WL 588726 (Tex. App.—Dallas 2003, no pet.); Mikey’s Houses v. Bank of America Corp., 2005 WL 2044850 (Tex. App.—Fort Worth 2005, no pet. history)(court of appeals denies application even though trial court issued order when not all defendants agreed to interlocutory appeal); Remuda Ranch v. Archer-Daniels-Midland Co., 2004 WL 2965460 (Tex. App.—Amarillo 2004, no pet.)(court denies application for interlocutory appeal even with agreement of parties and trial court); Diamond Products International v. Handsel, 142 S.W.3d 491 (Tex. App.—Houston [14th Dist.] 2004, no pet.)(court denies application for interlocutory appeal because statute does not contemplate permissive appeals of summary judgments where the facts are in dispute); Stolte v. County of Guadalupe, 139 S.W.3d 406 (Tex. App.—San Antonio 2004, no pet.).
2. The Supreme Court has not yet enacted rules of procedure to implement the permissive interlocutory appeals, and there has been some speculation as to the rules that may be applied.
3. Section 51.014(d) is similar to the procedure under federal law. 28 U.S.C. Section 1292(b). Under the federal statute, the parties need not agree to the appeal; the appeal must only be approved by the trial judge and the appellate court. Conversely, under the current state statute, the court of appeals need not agree to hear the case, but the parties need to agree that an appeal is appropriate.
A. Under Section 51.014(b), an interlocutory appeal will stay the commencement of a trial pending resolution of the appeal with the exception of an interlocutory appeal under 51.014(a)(4) which deals with temporary injunctions. An interlocutory appeal under Sections 51.014(a)(3) (class actions); 51.014(a)(5) (denial of motions for summary judgment based on government immunity); or 51.014(a)(8) (order on plea to the jurisdiction by a governmental unit) stays all proceedings in the trial court pending resolution of the appeal subject to certain time limits.
1. An order under 51.014(a)(5) (governmental immunity); 51.014(a)(7) (special appearance) or 51.014(a)(8) (plea to the jurisdiction) is not subject to an automatic stay for any purpose unless the motion, special appearance or plea to the jurisdiction is filed and requested for submission or hearing before the trial court no later than:
a. The date set by the trial court in a scheduling order; or
b. The 180th day after the date the defendant filed: (1) the original answer; (2) the first other responsive pleading to the petition; or (3) the response to the first pleading that alleges a new cause of action against the defendant and that defendant is able to raise the defenses to the new cause of action under those sections.
2. It appears that an interlocutory order under 51.014(a)(3) (class actions) is subject to a stay regardless of when the matter is heard by the trial court.
B. An appeal under Section 51.014(d) (permissive appeal) does not stay proceedings in the trial court unless the parties agree, and the trial court, the court of appeals or a judge of the court of appeals orders a stay of the proceedings. Section 51.014(e).
A. Under Rule 28.1, Tex. R. App. P., an interlocutory appeal is accelerated. Filing a motion for new trial will not extend the time to perfect the appeal. That rule also provides that a trial court may, but is not required to file findings of fact and conclusions of law. Entex v. City of Pearland, 990 S.W.2d 904 (Tex. App. — Houston [14th Dist.] 1999, no writ).
1. Under Rule 26.1(b), the notice of appeal must be filed within 20 days after the judgment or order is signed. This requirement is jurisdictional. Federated Mutual Insurance Co. v. Davenport, 85 S.W.3d 837 (Tex. App.—Waco 2002, no pet.).
2. Under Rule 35.1(b), the record must be filed in the appellate court within ten days after the notice of appeal is filed. The clerk and the court reporter have the responsibility for filing the record timely as long as the appellant has filed a notice of appeal, and made arrangements to pay the fees.
3. Under Rule 38.6, the brief for appellant is due within 20 days after the appellate record is filed.
4. The brief for appellee is due 20 days after the appellant’s brief is filed. Under Rule 40.1, an accelerated appeal has precedence over other cases, although there is no deadline for the court to reach a decision.
B. Rule 29 has provisions for orders pending interlocutory appeals in civil cases. In general, perfecting an appeal from an order granting interlocutory relief does not suspend the order appealed from unless the order is superseded in accordance with Rule 29.2, or the appellant is entitled to supersede the order without security by filing a notice of appeal.
1. The appellate court may make any temporary orders necessary to preserve the parties’ rights until the appeal is resolved. The court may require appropriate security before making such an order. A party challenging entry of a temporary injunction probably does not need to seek a stay from the trial court before seeking a stay from the court of appeals. Maples v. Muscletech, Inc., 74 S.W.3d 429 (Tex. App. — Amarillo 2002, no pet.).
2. The court of appeals may not suspend the trial court’s order if the appellant’s rights would be protected by supersedes or another order with security.
A. Under Tex. Gov’t Code Section 22.225, the judgment of the court of appeals is final in an appeal from an interlocutory order with some exceptions. The Supreme Court may hear a case involving an interlocutory order if:
a. There is a dissenting opinion in the court of appeals on an issue of law material to the decision. It appears that the dissenting Justice need not write a substantive opinion. See Bishop v. Bishop, 359 S.W.2d 869 (Tex. 1962)(dissenting Justice in court of appeals simply stated he would “affirm the judgment of the trial court”); see also Brown v. Todd, 53 S.W.3d 297, 301 (Tex. 2001)(Supreme Court has jurisdiction over entire case if jurisdiction invoked on one issue).
b. One of the courts of appeal holds differently from a prior decision of another court of appeals or of the Supreme Court on a question of law material to a decision of the case. See Tex. Gov’t Code Section 22.001 (jurisdiction of Supreme Court). The conflict between the decisions requires that the decision in one case is necessarily conclusive of the decision in the other case. Henry Schein Inc. v. Stromboe, 102 S.W.3d 675 (Tex. 2002).
B. The statute on jurisdiction was amended recently to specifically allow the Supreme Court to hear an appeal from an interlocutory order if the order deals with Section 51.014(a)(3) (class actions); 51.014(a)(6) (free speech rights of media defendant) or 51.014(a)(11) (denial of a motion to dismiss based on medical reports in asbestos and silica litigation). Tex. Gov’t Code § 22.225.
C. The Supreme Court has held that it generally does not have jurisdiction over interlocutory appeals under the Texas Arbitration Act. Certain Underwriters at Lloyds v. Celebrity, Inc., 988 S.W.2d 731 (Tex. 1998). It would have such jurisdiction if there is a dissenting opinion in the court of appeals, or if there is a conflict in decisions.