What is an Interlocutory Appeal?

How fast can a case be appealed in Texas? 

Immediate appeal from a case that is still pending vs appeal after a final judgment is entered. 

INTERLOCUTORY APPEAL

An interlocutory appeal can be defined as an immediate appeal, but that is not a satisfactory definition because other appeals can be “immediate” also, depending on how fast the attorney for an aggrieved client seeks relief in the higher court.

An interlocutory appeal, unlike a regular appeal, is a vehicle to obtain review by a higher court while a case is still pending in the trial court, i.e. there is no final ruling or judgment. In that sense, an interlocutory appeal has more in common with a petition for writ of mandamus, which is typically also filed while a case is still pending (though there are exceptions, such as when a trial court takes action to alter a judgment after the expiration of plenary power).

WHEN AND HOW QUICKLY CAN A CASE BE APPEALED?

Unlike an appellate brief, a notice of appeal has minimal content requirements and can be drafted and efiled in minutes, rather than days. That said, there are distinct deadlines: An interlocutory appeals is an accelerated appeal, and must be filed within twenty (20) days. A notice of appeal from a final judgment is generally due thirty days for the date the judgment is signed (not the date it is rendered); but the deadline can be extended by timely filing one or several post-judgment motions in the trial court instead. (Appeals from JP courts to county courts have different rules).

The distinguishing characteristic of an interlocutory appeal is that it is filed while a case remains pending in the trial court, whereas an ordinary appeal is taken from a final judgment or other case-terminating order.

Either type of appeal could be filed on the day the court below signs an order that one or both parties find fault with, as long as such an appeal is authorized. The question of authority to appeal is a second characteristic that distinguishes an interlocutory appeal from a regular appeal from a final judgment. Final judgments and equivalent orders (e.g., orders of dismissal that also terminate a case, but do not involve an award of money to one or the other) may be appealed as a matter of right as long as they result from a contested proceeding (agreed judgments are generally not appealable), but interlocutory appeals are only permitted if they are authorized by statute.

UNAUTHORIZED APPEALS DO GET FILED, BUT RESULT IN DWOJ

Lack of statutory authorization does not mean such interlocutory appeals will not be filed, but such appeals are subject to being dismissed for lack of jurisdiction without regard to the validity of the legal arguments that the appellant is eager to raise. This happens with some regularity. The clerk of the appellate court will normally send (mail or email) a notice regarding the apparent lack of jurisdiction, and offer the appellant an opportunity to show otherwise, before the court dismissed the appeal. à Dismissal for Want of Jurisdiction (DWOJ). Upon a finding that the court of appeals has no jurisdiction, the appeal is often labeled an “attempted appeal”.

NEW FACTS MAY RENDER AN APPEAL MOOT

There are other bases for jurisdictional dismissal, such as mootness, which may provide the court of appeals with an occasion to consider extrinsic and new evidence that could not otherwise be considered because an appeal is based on the record sent up from the trial court, and does not allow for the introduction of new evidence.

If an appeal becomes moot after the date of the judgment, it may be necessary for the appellate court to look into the facts pertaining to mootness even if they cannot be gleaned from the record on appeal. A common scenario resulting in mootness is an agreement by the parties to the appeal to resolve all issues and disagreements between them. Normally, the appellant will then file an unopposed motion to dismiss, or the parties will file a joint motion to dismiss, or a joint motion to reverse without regard to the merits and to remand for entry of an agreed order of dismissal in the court below, but this does not always happen. The court of appeal may eventually dismiss the case as moot if the court becomes aware of the settlement.

A pending interlocutory appeal may also be rendered moot if the trial court proceeds to trial or final hearing and enters a final judgment. A classic example of this scenario is an appeal of a temporary injunction. A final judgment, or a nonsuit, terminates the temporary order, and therefor eliminates the basis for the appeal.  

If there is new evidence that is material to the propriety of a final judgment, it must be presented to the trial court; either by motion for new trial (if it’s not too late); or in a bill-of-review proceeding, which is a new lawsuit to re-open a case that is too old to be amenable to a regular appeal or a restricted appeal, which can be brought up to 180 days after the judgment under certain circumstances.

‘’PERFECTION” OF APPEAL

In Texas, an appeal from a trial court to the court of appeals is taken, rather than made; and it is said to be “perfected” upon the filing of a notice of appeal. Strangely enough, the notice of appeal is filed in the trial court, and then forwarded to the court of appeals, rather than being filed with the clerk of the court of appeals in the first instance. Nor is the appeal “perfected” in the normal sense of the word, when the notice of appeal is file-stamped. The file-stamp is important as proof of timeliness, but the clerk of the trial court will not even collect the filing fee. If perfected means completed or made ready for the appellate court to rule on the merits, the real work begins after the notice of appeal has been filed; -- though astute attorneys will plan for a possible appeal while the case is still pending in the trial court, particularly when the case involves a lot of money (“amount in controversy”) or is otherwise a high-stakes case.   

HOW AN APPEAL IS INITIATED

The Notice of Appeal itself is a one-page or two-page document. Some attorneys include information about the issues in the case in the notice of appeal, but this is rare. If there were more than two parties in the case, it is particularly important to identify which one is appealing. The court of appeals may or may not grant leave to correct error in the notice of appeal, but if a party wanting to appeal is not even properly identified, it may be too late after the deadline has passed.

The notice is supposed to also identify the court of appeals to which the appeal is taken, but this is a meaningless form requirement because the appellant does not have a choice in the matter; not even in the ten counties in the first and fourteenth appellate district, which are co-extensive. Appeals from those counties are made to either the First or the Fourteenth Court of Appeals, but the assignment is made randomly by the clerk.  

What makes or breaks a timely-filed appeal are the record and the briefs. The record on appeal consists of two records, the Clerk’s Record and the Reporter’s Record.

An appellate brief is mandatory for the party that brings the appeal, and must strictly comply with numerous requirements as to form, format, length, and structure. Noncompliant briefs may be struck, or even rejected when e-filed. The efiling mandate added new requirements, such as searchable text pdf files rather than mere scans of paper documents, and required bookmarks for an appendix consisting of more than a single (i.e., more than the judgment or other order which is being appealed). The appellee is not absolutely required to file a brief, if they think the appeal will be unsuccessful, or do not want to spend the effort and money to prepare one. If they do file a brief, they are subject to the same formal requirements.

The Clerk’s Record, often abbreviated CR or C.R. in the required citations in briefs, is the compilation of papers from case file in the court below. The “papers” are now collated and forwarded electronically as a merged pdf file with bookmarks, rather than assembled into heavy volumes of photocopies of filed documents. Some trial court documents are required by the rules, while the inclusion of others is optional. Clerk in this context means the clerk of the court from which the appeal originates, which could the County Clerk or the District Clerk.

The Reporter’s Record, often abbreviated “RR” or “R.R.” in references to particular pages and lines, is the transcript of the in-court oral proceedings taken down by the Court Reporter. This can be the Official Court reporter of the particular court, or a substitute, or a combination of both. Not all appeals require a court reporter’s reporter, but the absence of one may very well doom an appeal because the court of appeals will assume that the unavailable record supports the judgment.

The classic example of an appeal that does not require a reporter’s record is an appeal of a summary judgment order, which may or may not have been granted following an oral hearing. Many summary judgments are “heard” by submission, meaning that the judge makes a ruling based on what has been filed only, i.e. the motion for summary judgment, the evidence filed in support it (consisting of affidavit(s) and documents) and the response by the non-movant, if any, including any counter-evidence. Even if there is an oral hearing on a motion for summary judgment, the hearing is only for legal argument, i.e. non-evidentiary, and it cannot generally be considered on appeal, because the essence of summary judgment is that it is based on what has been submitted in writing, and does not involve credibility determinations and resolution of contradictory testimony, at least in theory. à Summary judgment proceeding vs trial on the merits. Some attorneys nevertheless have a reporter’s record prepared for a summary judgment appeal, which may make sense if there is an issue as to whether error was preserved on particular evidentiary objections. Unlike federal district courts, trial judges in state courts typically do not explain their rulings on summary judgment motions. They rarely write opinions, and they do not file findings of facts and conclusions of law after a summary judgment order. Texas case law says that such findings are not appropriate in the summary judgment context. For the same reason, a request for findings after a summary judgment does not extend the deadline for an appeal. In order to obtain an extension, a post-judgment motion will be necessary.

Some types of summary judgment orders and similar types of interlocutory orders may be appealed by interlocutory appeal even if they do not resolve the entire case (e.g. denial of a motion to dismiss or jurisdictional plea by a governmental entity), but most rulings on summary judgment motions are not immediately appealable.

DOCUMENTS OUTSIDE THE RECORD ON APPEAL CANNOT BE CONSIDERED 

"The appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record." Tex. Rule App. P. 34.1. "The burden is on the appellant seeking review to see that a sufficient record is presented to show error requiring reversal." Henning v. Henning, 889 S.W.2d 611, 613 (Tex. App.-Houston [14th Dist.] 1994, writ denied). "[W]e cannot consider documents attached as appendices to briefs and must consider a case based solely upon the record filed." WorldPeace v. Comm'n for Lawyer Discipline, 183 S.W.3d 451, 465 n.23 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). 

STATUTORY AUTHORIZATION OF INTERLOCUTORY APPEALS

There is no one list that comprehensively covers all scenarios in which an interlocutory appeal is authorized. That said, many such appeals fall into one of the categories listed in Section 51.014 of the Civil Practice and Remedies Code (“CPRC”).

List of authorized interlocutory appeal at Tex. Civ.Prac & Rem. Code §51.014
See: Chapter 51 of the Texas Civil Practice and Remedies Code 

AMENDMENT PERMITTING INTERLOCUTORY APPEAL IN ARBITRATION CASES 

In 2009, the Texas Legislature amended the Texas Arbitration Act to permit interlocutory appeals of orders denying motions to compel arbitration pursuant to the Federal Arbitration Act (FAA). See Tex. Civ. Prac. & Rem. Code § 51.016 (West, Westlaw through 2013 3d C.S.); see also CMH Homes v. Perez, 340 S.W.3d 444, 448 (Tex. 2011) (construing section 51.016). If a dispute is subject to the FAA, section 51.016 of the Texas Civil Practice and Remedies Code authorizes interlocutory appeals "to the court of appeals from the judgment or interlocutory order of a district court . . . under the same circumstances that an appeal from a federal district court's order or decision would be permitted by 9 U.S.C. Section 16." Tex. Civ. Prac. & Rem. Code § 51.016. This authorization does not extend to motions that grant a motion to compel.

SHORTER DEADLINE FOR FILING OF NOTICE OF INTERLOCUTORY APPEAL 

In order to perfect an accelerated appeal of an interlocutory order, the party wishing to pursue the appeal is required to file a notice of appeal "within 20 days after the judgment or order is signed." TEX. R. APP. P. 28.1, 26.1(b).

Case snippet: Filing notice of appeal late has dire consequences 

DENIAL OF SUMMARY JUDGMENT GENERALLY NOT APPEALABLE

The denial of a summary judgment motion is generally not appealable even after the case is over, at least not if the case ended with a judgment after a bench trial or a judgment rendered upon the verdict of a jury. This is because the denial of summary judgment does not itself resolve the case, while the trial on the merits does, one way or the other.

By contrast, if a partial summary judgment is granted in the course of pretrial proceedings, it will generally be merged into the final judgment, and may thus become appealable, unless it is supplanted by a subsequent ruling while the trial court retains plenary power. 

A partial summary judgment may dispose of some claims, but not others, and may result in claims against one party being resolved, but leave the claims or defenses of other parties unaffected. Such partial dispositions can be severed from the main proceeding on motion of a party, and can thus be made final for purposes of appeal, while the remainder of the case remains pending in the trial court as an open case.