July 13, 2020

Volume X, Number 195

July 10, 2020

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Why Wait To Appeal? Texas Has A Permissive Appeal Statute That Allows Parties To Appeal Interlocutory Orders If Certain Conditions Exist

I.     Introduction

In fiduciary litigation, parties often file motions that raise important legal issues before trial. For example, parties may file motions on preemption, the statute of limitations, exculpatory clauses, legal duties, legal construction of documents, etc. One party or the other may want to appeal a trial court’s decision on these important legal issues before trial to save the expense and delay of a trial on the merits. In fact, trial courts often prefer to have these fundamental legal issues resolved correctly before using judicial resources on a trial.

II.     Creation Of Permissive Appeal Statute

Historically, parties could not generally appeal an interlocutory order and had to wait until the end of the case. Generally, Texas appellate courts may review only final judgments, and there can be only one final judgment in any case. Colquitt v. Brazoria County, 324 S.W.3d 539 (Tex. 2010); Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985). “A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, except as necessary to carry out the decree.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). “There are, of course, exceptions to the final judgment rule that allow an immediate appeal before final judgment when the issue is so important that an answer should not wait until the case concludes.” Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 730 (Tex. 2019). The Texas Civil Practice and Remedies Code sets out thirteen different instances where a party can appeal an interlocutory order. “Colloquially, these instances are referred to as ‘interlocutory appeals as of right,’ because parties need not secure judicial permission before filing an interlocutory appeal. Intermediate appellate courts have no discretion to decline interlocutory appeals brought under section 51.014(a).” Id. These include orders on temporary injunctions, receiverships, certain jurisdictional challenges, class-action rulings, etc.

There is now a provision that allows parties to appeal almost any order so long as it involves a controlling question of law. An interlocutory order may be appealable in a permissive appeal. Tex. Civ. Prac. & Rem. Code Ann. §51.014(d). This device would allow a party to appeal a traditionally non-appealable interlocutory ruling when it involves a controlling issue of law as to which there is a substantial ground for difference of opinion and when an immediate appeal may materially advance the ultimate termination of the litigation. Id. If all conditions exist for its use, the permissive appeal is a method to appeal an otherwise unappealable interlocutory order, such as the denial of a motion for summary judgment or the granting of a partial motion.

Section 51.014 of the Texas Civil Practice and Remedies Code authorizes a court to accept a permissive appeal from an interlocutory order if (1) “the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion” and (2) “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Tex. Civ. Prac. & Rem. Code § 51.014(d), (f). The Legislature modeled section 51.014(d) after the federal counterpart to permissive interlocutory appeals. Compare 28 U.S.C. § 1292(b), with Tex. Civ. Prac. & Rem. Code § 51.014(d), (f). The statute further provides:

An appellate court may accept an appeal permitted by Subsection (d) if the appealing party, not later than the 15th day after the date the trial court signs the order to be appealed, files in the court of appeals having appellate jurisdiction over the action an application for interlocutory appeal explaining why  an appeal is warranted under Subsection (d). If the court of appeals accepts the appeal, the appeal is governed by the procedures in the Texas Rules of Appellate Procedure for pursuing an accelerated appeal. The date the court of appeals enters the order accepting the appeal starts the time applicable to filing the notice of appeal.

Tex. Civ. Prac. & Rem. Code § 51.014(f). By using the phrase “may accept” in section 51.014(f), the Legislature conveyed a discretionary function in the court of appeals. Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d at 731 (Tex. 2019). The same can be said for the trial court regarding the phrase “may . . . permit” in subsection (d). Id.

III.     Courts Of Appeals Have Discretion To Accept Appeal

The Texas Supreme Court has recently held that courts of appeals have wide discretion to grant or deny a request for permissive appeal. Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d at 732-33. The Court first stated: “The United States Supreme Court has interpreted section 1292(b) as providing federal circuit courts absolute discretion to accept or deny permissive appeals.” Id. The Court then held: “We agree that Texas courts of appeals have discretion to accept or deny permissive interlocutory appeals certified under section 51.014(d), just as federal circuit courts do.” Id. The Court then cautioned that courts of appeals should grant permissive appeals where appropriate:

We do caution, however, that while courts of appeals have discretion to deny acceptance of permissive interlocutory appeals, the Legislature in its enactment of section 51.014(d) and (f) has recognized the benefit of appellate courts accepting such appeals when the threshold for an exception to the final judgment rule is met. When courts of appeals accept such permissive appeals, parties and the courts can be spared the inevitable inefficiencies of the final judgment rule in favor of early, efficient resolution of controlling, uncertain issues of law that are important to the outcome of the litigation. Indeed, the Legislature enacted section 51.014 to provide “for the efficient resolution of certain civil matters in certain Texas courts” and to “make the civil justice system more accessible, more efficient, and less costly to all Texans while reducing the overall costs of the civil justice system to all taxpayers.” If all courts of appeals were to exercise their discretion to deny permissive interlocutory appeals certified under section 51.014(d), the legislative intent favoring early, efficient resolution of determinative legal issues in such cases would be thwarted. Just because courts of appeals can decline to accept permissive interlocutory appeals does not mean they should; in fact, in many instances, courts of appeals should do exactly what the Legislature has authorized them to do—accept permissive interlocutory appeals and address the merits of the legal issues certified.

Id. (internal citations omitted).

If a court of appeals denies a request to accept a permissive appeal, the proposed appellant can seek relief from the Texas Supreme Court, which will review the request de novo under the relevant factors. Id. However, a party may not directly appeal to the Texas Supreme Court and must first seek relief from the court of appeals. Id. (“Nor does our interpretation of section 22.225(d) create a direct appeal to this Court. Nothing we have said alters the requirement that a party advancing a permissive appeal must first petition the court of appeals for review before petitioning this Court.”).

IV.     Procedure For Permissive Appeal

Pursuant to this statute, the Texas Supreme Court created rules to effectuate a permissive appeal procedure. See Tex. R. Civ. P. 168 (“On a party’s motion or on its own initiative, a trial court may permit an appeal from an interlocutory order that is not otherwise appealable, as provided by statute.”); Tex. R. App. P. 28.3(a) (“When a trial court has permitted an appeal from an interlocutory order that would not otherwise be appealable, a party seeking to appeal must petition the court of appeals for permission to appeal.”). Texas Rule of Civil Procedure 168 states:

On a party’s motion or on its own initiative, a trial court may permit an appeal from an interlocutory order that is not otherwise appealable, as provided by statute. Permission must be stated in the order to be appealed. An order previously issued may be amended to include such permission. The permission must identify the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why an immediate appeal may materially advance the ultimate termination of the litigation.

Tex. R. Civ. P. 168. Under this rule, the order must identify the controlling question of law, and there should not be a discrepancy between the trial court’s order and the arguments contained in the petition seeking permission to appeal the interlocutory order. Long v. State, 2012 Tex. App. LEXIS 6201 (Tex. App.—Austin July 25 2012, no pet.). Further, the trial court should actually rule on the substantive issue; it cannot simply seek an advisory opinion. The Corp. of the President of the Church of Jesus Christ of Latter-Day Saints v. Doe, 2013 Tex. App. LEXIS 12543 (Tex. App.—Corpus Christi Oct. 10 2013, no pet.); Double Diamond Del., Inc. v. Walkinshaw, 2013 Tex. App. LEXIS 12447 (Tex. App.—Dallas Oct. 7 2013, no pet.).

The Rule states that the order previously issued may be amended. This is important. If a party has an adverse ruling, it may not immediately have time to include the necessary language for a permissive appeal. The Rule allows the party to file a motion to request the trial court to certify the legal issue(s) for appeal, and then if granted, the trial court can enter an amended order that includes the necessary language. The clock to appeal only starts to tick after the amended order is signed.

Texas Rule of Appellate Procedure 28.3 provides:

(a)  Petition Required.  –When a trial court has permitted an appeal from an interlocutory order that would not otherwise be appealable, a party seeking to appeal must petition the court of appeals for permission to appeal.

(b)  Where Filed.  –The petition must be filed with the clerk of the court of appeals having appellate jurisdiction over the action in which the order to be appealed is issued. The First and Fourteenth Courts of Appeals must determine in which of those two courts a petition will be filed.

(c)  When Filed.  –The petition must be filed within 15 days after the order to be appealed is signed. If the order is amended by the trial court, either on its own or in response to a party’s motion, to include the court’s permission to appeal, the time to petition the court of appeals runs from the date the amended order is signed.

(d)  Extension of Time to File Petition.  –The court of appeals may extend the time to file the petition if the party: (1)  files the petition within 15 days after the deadline, and (2)  files a motion complying with Rule 10.5 (b).

(e)  Contents.  –The petition must: (1)  contain the information required by Rule 25.1 (d) to be included in a notice of appeal; (2)  attach a copy of the order from which appeal is sought; (3)  contain a table of contents, index of authorities, issues presented, and a statement of facts; and (4)  argue clearly and concisely why the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion and how an immediate appeal from the order may materially advance the ultimate termination of the litigation.

(f)  Response; Reply; Cross-Petition; Time for Filing.  –If any party timely files a petition, any other party may file a response or a cross-petition within 10 days. A party may file a response to a cross-petition within 10 days of the date the cross-petition is filed. A petitioner or cross-petitioner may reply to any matter in a response within 7 days of the date the response is filed. The court of appeals may extend the time to file a response, reply, and cross-petition.

(j)  Time for Determination.  –Unless the court of appeals orders otherwise, a petition, and any cross-petition, response, and reply, will be determined without oral argument, no earlier than 10 days after the petition is filed.

(k)  When Petition Granted.  –If the petition is granted, a notice of appeal is deemed to have been filed under Rule 26.1 (b) on that date, and the appeal is governed by the rules for accelerated appeals. A separate notice of appeal need not be filed. A copy of the order granting the petition must be filed with the trial court clerk.

Tex. R. App. P. 28.3.

The comments to Rule 28.3 explain that amendments to section 51.014 “eliminated the prior requirement that the parties agree to the appeal and reinstated a requirement that the court of appeals also permit the appeal.” Tex. R. App. P. 28.3 cmt. So, a party seeking a permissive appeal does not have to obtain the other party’s consent; the trial court can simply certify the relevant legal issues upon one party’s request. Further, “[t]he petition procedure in Rule 28.3 is intended to be similar to the Rule 53 procedure governing petitions for review in the [Texas] Supreme Court,” meaning the courts of appeals can similarly accept or deny a permissive interlocutory appeal as the Texas Supreme Court can a petition for review. Id.; see also Tex. R. App. P. 28.3(k) (clarifying that if a petition seeking interlocutory appeal is granted, the appeal is thereby perfected in the court of appeals).

An appeal from an interlocutory order, when allowed, will be accelerated and the filing a motion for new trial will not extend the time to perfect the appeal. Smith v. Adair, 96 S.W.3d 700 (Tex. App.—Texarkana 2003, no pet.).

V.     Controlling Legal Issue Is Required

Permissive appeals are intended in situations where the trial court has made a substantive ruling on a pivotal issue of law. One commentator has stated:

[A] controlling question of law is one that deeply affects the ongoing process of litigation. If resolution of the question will considerably shorten the time, effort, and expense of fully litigating the case, the question is controlling. Generally, if the viability of a claim rests upon the court’s determination of a question of law, the question is controlling. . . . Substantial grounds for disagreement exist when the question presented to the court is novel or difficult, when controlling circuit law is doubtful, when controlling circuit law is in disagreement with other courts of appeals, and when there simply is little authority upon which the district court can rely. . . . Generally, a district court will make [a finding that the appeal will facilitate final resolution of the case] when resolution of the legal question dramatically affects recovery in a lawsuit.

ADT Sec. Servs. v. Van Peterson Fine Jewelers, No. 05-15-00646-CV, 2015 Tex. App. LEXIS 7831 (Tex. App.—Dallas July 29, 2015, no pet.) (citing Gulf Coast Asphalt Co. v. Lloyd, 457 S.W.3d 539, 543-44 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (quoting Renee Forinash McElhaney, Toward Permissive Appeal in Texas, 29 ST. MARY’S L.J. 729, 747-49 (1998))).

For example, due to the “controlling issue of law” requirement, many permissible appeals come from denials of summary judgment motions and other similar dispositive motions. See, e.g., Orca Assets, G.P. v. Dorfman, 470 S.W.3d 153, 164, 167 (Tex. App.—Fort Worth 2015, pets. denied) (permissive appeal from interlocutory summary judgment); State v. Ledrec, Inc., 366 S.W.3d 305 (Tex. App.—Fort Worth 2012, no pet.) (granting interlocutory appeal from denial of partial summary judgment motion where there was a difference of expert opinion on measure of damages); Cole v. Anadarko Petroleum Corp., 331 S.W.3d 30 (Tex. App.—Eastland 2010, pet. denied) (granting interlocutory appeal from rulings on multiple motions for partial summary judgment regarding surface use); Placette v. M.G.S.L., No. 09-09-00410-CV, 2010 Tex. App. LEXIS 2935 (Tex. App.—Beaumont Apr. 22, 2010) (granting interlocutory appeal from ruling denying motion for summary judgment regarding whether statute of limitations applied to bar plaintiff’s claim);  Kimbrell v. Molinet, 288 S.W.3d 464, 465-66 (Tex. App.—San Antonio 2008), aff’d, No. 09-0544, 2011 Tex. LEXIS 68, 2011 WL 182230 (Tex. Jan. 21, 2011) (addressing agreed interlocutory appeal from trial court’s denial of a summary judgment motion asserting physician-defendant’s joinder in medical malpractice case was barred by limitations, and determining the controlling question of law as to which statute of limitations applied);  Northside Indep. Sch. Dist. v. Dubose, No. 04-06-00517-CV, 2007 Tex. App. LEXIS 3937, 2007 WL 1481661, at *1 (Tex. App.—San Antonio May 23, 2007, no pet.) (mem. op.) (on cross-motions for summary judgment the trial court held that school district had waived its right to contest compensability of employee’s workers’ compensation claim, and thereafter certified the issue of waiver as the controlling question on agreed interlocutory appeal); Stolte v. County of Guadalupe, No. 04-04-00083-CV, 2004 Tex. App. LEXIS 10236, 2004 WL 2597443 (Tex. App.—San Antonio 2004, no pet.) (agreed interlocutory appeal from denial of summary judgment in which trial court concluded county had inherent authority to reject plat application in the interest of public health);  Enterprise Products Partners, L.P. v. Mitchell, No. 01-09-00653-CV, 340 S.W.3d 476, 2011 Tex. App. LEXIS 953, 2011 WL 693700 (Tex. App.—Houston [1st Dist.] Feb. 10, 2011, no pet.) (trial court ruled Texas, not Mississippi, law applied to lawsuit and certified choice-of-law question as the controlling legal question for agreed interlocutory appeal); Comcast Cable of Plano, Inc. v. City of Plano, 315 S.W.3d 673 (Tex. App.—Dallas 2010, no pet.) (on agreed interlocutory appeal, court of appeals addressed the controlling question of law as to whether the city’s claim for breach of a franchise agreement was preempted by federal law after trial court denied Comcast’s summary judgment motion based on preemption).

Courts of appeals typically deny petitions for permissive appeal where they feel that the case involves a fact issue. See, e.g., King-A Corp. v. Wehling, 2013 Tex. App. LEXIS 2761 (Tex. App.—Corpus Christi Mar. 14 2013, no pet.). For example, in an undue influence case, an appellate court refused a permissive appeal after a trial court granted a partial no-evidence summary judgment motion because it did not necessarily decide a controlling issue of law. In re Estate of Fisher, 421 S.W.3d 682 (Tex. App.—Texarkana 2014, no pet.).

VI.     Conclusion

So, a party in fiduciary litigation should consider its appellate rights for an immediate review of controlling legal issues that a trial court may have erred in resolving. This procedure may save the parties and the court the expense and time of trying a case that is based on a faulty ruling on a controlling issue of law.

© 2020 Winstead PC.National Law Review, Volume X, Number 85

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About this Author

David Johnson Financial Litigator Winstead Law Firm

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the Texas Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. 

David's financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class...

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