Sabre Travel v. Lufthansa et al - Texas Supreme Court permits itself to entertain permissive interlocutory appeal in airline ticket booking dispute

TEXAS SUPREME COURT'S INCREMENTAL POWER GRAB NON-NEWS - SKILLFULLY CRAFTED OPINIONS, NEITHER SEXY, NOR HEADLINE-GRABBING 
Sabre Travel International, Ltd. v. Deutsche Lufthansa AG, Austrian Airlines AG, Brussels Airlines, NV/SA, 
and Swiss International Air Lines, Ltd. No. 17-0538 (Tex. Feb. 1, 2019) 

Sabre Logo

Texas Supreme Court asserts that it has jurisdiction to entertain permissive appeal that the intermediate court of appeals brushed away with a minimalist opinion 

Airlines Logos 

This morning (2/1/2019), the Texas Supreme issued its opinion in Sabre Travel International, Ltd v. Deutsche Lufthansa AG, et al, holding that it has jurisdiction over a permissive interlocutory appeal in a dispute over airlines ticket-booking that the intermediate court of appeals had rejected without delving into the merits. The legal and factual issues in the case are very complicated and can be summarized as a dispute over commissions to be paid or not paid depending on whether tickets are booked through a certain booking system as opposed to be booked through the airlines' own website, and related gaming of the system for some participants' own pecuniary benefit, but supposedly with no real impact on what the consumer pays for the ticket. In any event, the trial court had found the market participants' dispute over ticket-booking worthy enough to send it up for higher-court examination, and the Supremes today officially validated the trial judge's take on the worthiness issue by handing down a decision that gives the law firms on both sides at least something to show to their respective deep-pocket clients to justify their no doubt top-of-the-scale attorneys' fees.

On the legal merits, the Texas High Court holds that the federal Airlines Deregulation Act (ADA) does not preempt Lufthansa’s tortious interference claim against Sabre because the action does not relate to the airline’s prices, routes, or services.

Nor does the claim at issue in the case--a state tort claim--amount to any state law, regulation, or policy that would trigger ADA preemption. At least not at this stage of the proceedings, which is to say at the pleading stage. So the Court says. Perhaps, we will change our minds later (the court does not say, but arguably intimates), with the benefit of further high-powered lawyering to develop the record some further. All of which makes perfect political sense for a court in need of legitimacy accorded to it by its most captive audience, and such captive audience's need to maximize billable hours for profitability, here, of course, billable hours at top rates in the industry. The type of rates former justices of the court can command based on their unique insights into how sausage is made in the court of last resort.
 
For now, the connection to federal -- which is even more supreme than just state supreme -- was just too tenuous, in the Lone Star Supreme's collective estimation. The qualification is, of course, well in order, since this is an interlocutory appeal (interlocutory as in we-are-telling-the-trial-judge-what-to-do-now-rather-than-later). The Texas High Court Supremos accordingly affirm the trial court's order denying Sabre's motion to dismiss the airlines' claims against it, which it had brought under TRCP 91a, a state rule of procedure that allows defendants to kill a lawsuit as being baseless either in law or in fact, or in both regards, to the applause of the tort-deform lobby.
 
American Airlines filed an amicus curiae brief that foreshadowed the court's resolution of the federal preemption issue.

This is another case where a former chief justice of the Texas Supreme Court endeavored to impress his former colleagues with the stellar quality of his client's legal arguments, which always makes you wonder. But leaving aside such irreverent extra-judicial and non-doctrinal considerations, what does the resolution of the case, and the offered justification for it, boil down to?

If the statute is on our side, we go with the statute 

The High Court's ruling on the interlocutory jurisdiction issue purports to be a straightforward matter of statutory construction (under the statute governing interlocutory appeals that has since been amended). There is just a little bit more to it, though. 

First, in espousing the proposition that the Texas Supreme Court has jurisdiction even though the intermediate court declined to exercise discretion to take up the issue certified by the trial court as worthy of its and its staff attorney's attention (the trial courts have less of that luxury, if any), the High Court enlarged--or at least reasserted--its own prerogative to decide disputed legal issues that have not yet resulted in a final judgment.

In so doing, the Supremes rejected the alternative view: that the state Supreme Court does not get to weigh in when the intermediate court of appeals had decided not to take up a permissive appeal, which is essentially discretionary (as distinguished from an appeal that a party is entitled to have heard as a matter of right). The Supremes even acknowledge this point by analogizing the intermediate review or a permissive appeal to the petition-of-review process at the High Court, which is in turn comparable to the cert petition process in the Supreme Court of the United States, also known to court watchers as SCOTUS.

Second, the Texas Supreme Court's assertion of appellate jurisdiction over an interlocutory ruling based on a statute passed by the Texas Legislature stands in tension with the Court's use of mandamus power to get around those very limitations imposed by statutory authority. The general rule is that only final judgments can be appealed. It's called the final judgment rule. 

So today, in handing down a decision in an interlocutory appeal, the Supremos assert that they have the last word in interlocutory appeals thanks to statutory authorization even though the intermediate appellate court turned the impetuous appellants away, and had short-shrifted them with a two-sentence get-lost missive.

But don't be deceived into thinking that such is a firm rule of Texas jurisprudence. That would be naive.

For the Supremes also reserve the right to use a different vehicle -- a writ of mandamus -- to get around such statutory limitations on pronto appeals when they find such statutory limitations  irksome. This tool cannot be invoked by the Supremes on their own. But practitioners skilled in all ways supreme will know what it takes, especially if they previously clerked on the court to learn the ropes, not to mention having sat on it.

Supreme Power of Say-So and Partisan Politics 

As for today's decision in the bigger scheme of things, there is actually no contradiction. Both types of rulings by the Supremos (expansive on interlocutory jurisdiction when based on statute and expansive on the scope of mandamus power when not) have the gratifying effect of auto-enlarging the power of the all-Republican if not all-powerful Texas Supreme Court.

This is now even more critical, of course, given that Democrats have gained majority control of the courts of the major urban centers (Houston, Dallas, Austin, and San Antonio) in the November 2018 elections, and are assumed to be beholden to different interests than those that have called the shots at the state level for the last two decades or so.

JUSTICE GREEN delivered the opinion of the Court.

In this case, we consider whether an appellate court’s denial of a permissive interlocutory
appeal prevents this Court from reviewing the merits of the underlying interlocutory order. We hold that it does not under the plain language of former Texas Government Code section 22.225(d).
In addition, we consider whether the federal Airline Deregulation Act (ADA) preempts an airline’s claim for tortious interference with contract brought under state law. We hold that no preemption occurs because the tortious interference claim does not relate to the airline’s prices, routes, or services. Nor does the claim amount to the enforcement of a state law, rule, regulation, standard, or other provision having the force and effect of law that is within the ADA’s preemptive reach. Accordingly, we affirm the trial court’s denial of the motion to dismiss based on preemption

IV. Conclusion 

Under former Texas Government Code section 22.225(d), a trial court’s order that is certified under section 51.014(d) of the Texas Civil Practice and Remedies Code is the only jurisdictional predicate for a petition for review in this Court. The court of appeals’ decision to decline the permissive appeal has no bearing on our jurisdiction under section 22.225(d). Regarding the merits of the underlying interlocutory order, we hold that the ADA does not preempt Lufthansa’s tortious interference claim because the action does not relate to the airline’s prices, routes, or services. Nor does the claim amount to any state law, regulation, or policy that concerns ADA preemption. Accordingly, we affirm the trial court’s denial of Sabre’s motion to dismiss pursuant to Texas Rule of Civil Procedure 91a.
 ______________________________
Paul W. Green Justice
OPINION DELIVERED: February 1, 2019

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.