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. Ã 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. Ã 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”).
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.
.JPG)
.JPG)
.JPG)
