Texas Appellate Law Blog : Texas Appellate Lawyer & Attorney : D. Todd Smith Law Firm : Appeals, Sanctions, Summary Judgment : Austin, Texas

Although appeal is generally not available absent a final judgment, Texas law allows parties to bring accelerated interlocutory appeals in several circumstances.  In most cases, the trial is stayed by statute until the interlocutory appeal is resolved,  But sometimes the trial court renders a final judgment before then.

What does one do in that situation?  File an amended notice of appeal?

No, says Isuani v. Manske-Sheffield Radiology Group, 802 S.W.2d 235 (Tex. 1991) (per curiam).  Under this decision, the interlocutory appeal has become moot and must be dismissed to prevent premature review of the merits.

Filing an amended notice of appeal wouldn't work because it wouldn't "correct[] a defect or omission in an earlier filed notice . . . ."  TRAP 25.1(f); see Rainbow Group, Ltd. v. Wagoner, 219 S.W.3d 485, 492-93 (Tex. App.—Austin 2007, no pet.). If the losing party wants to appeal the final judgment, it must file a new notice of appeal complying with TRAP 25.1.

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This is the third installment of my series entitled "20 Questions About Texas Appellate Practice."  The question answered here is:  "What is required to perfect appeal?"  Visit the original post (linked above) for the list of questions updated with links to their respective answers.

In Texas, an appeal is perfected by filing a notice of appeal.  Timely filing is jurisdictional, but jurisdiction attaches so long as the appellant files an instrument representing a bona fide attempt to appeal.  No bond is required.

The notice of appeal must be in writing and filed with the trial court clerk.  A copy should be sent to the appellate clerk along with the docketing fee.  An original notice mistakenly filed with appellate clerk is deemed to have been filed that day with the trial court clerk.  The appellant must serve the notice on all parties to the trial court’s judgment or appealable order.

The notice must contain:  (1) the identity of the trial court and style and cause number of the case; (2) the date of the order being appealed; (3) a statement that the party filing the notice desires to appeal; (4) the identity of the court to which the appeal is taken; and (5) the name of each party filing the notice.  In accelerated appeals, the notice must also state that the appeal is accelerated.

Any party who wants to alter the trial court’s judgment must file its own notice of appeal.  But an appellee need not file its own notice of appeal to request an equal or lesser judgment based on an independent ground of recovery or defense or to assail the jury’s findings when the trial court granted judgment notwithstanding the verdict.

In appeals from jury trials, a notice of appeal must be filed within 30 days after the judgment was signed unless a party filed certain kinds of post-judgment motions (usually a motion for new trial, to disregard jury findings, or for JNOV) within that same period.  If the proper post-judgment motion has been filed, or in some circumstances, if a request for findings of fact and conclusions of law was made within 20 days, the notice of appeal will be due 90 days after the judgment was signed.

For an interlocutory appeal, the appellant must file its notice within 20 days after the order was signed.  Post-judgment motions/requests do not extend this date.

A premature notice of appeal is deemed filed immediately after the trial court signs the judgment or order being appealed. If the order at issue is interlocutory, the notice is deemed filed immediately after the ruling is made final and appealable.

The court of appeals may grant the appellant an extension of time to file its notice of appeal under certain circumstances.

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In Finney v. Vanderbilt Mortgage & Finance, Inc. (No. 03-07-00329-CV), the Third Court of Appeals reminds us that a request for findings of fact and conclusions of law does not extend the deadline for filing a notice of appeal from a summary judgment.  Other than for accelerated appeals, such requests push the deadline from 30 days to 90 days after the judgment is signed if "findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court."  TRAP 26.1(a)(4).

Because findings and conclusions are neither required nor properly considered on appeal in the summary judgment context, and because the appellant in Finney did not file his notice of appeal within 30 days after the judgment was signed, the notice was not timely.  The court therefore dismissed the appeal for want of jurisdiction.

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In AXA Financial, Inc. v. Roberts, a consolidated interlocutory appeal and mandamus proceeding previously discussed here, the Third Court of Appeals has turned away efforts to compel arbitration under both the Texas and federal statutes.  The court first held that it lacked jurisdiction over the interlocutory appeal because the notice of appeal was not filed timely (within 20 days of the district court's order denying the motion to compel arbitration) and because a "motion to reconsider" neither extended the appellate timetable nor qualified as an independently appealable order.  Considering the mandamus petition, the court of appeals concluded that the relator failed to establish the existence of an arbitration agreement covering the dispute and that the district court acted within its discretion in refusing to consider "new" evidence submitted with the motion to reconsider.

This opinion contains a good summary of Texas arbitration law, particularly the procedure and burdens of proof relating to a motion to compel arbitration.  The lessons learned are (1) remember that an appeal from an order denying a motion to compel arbitration is accelerated, making the notice of appeal due in 20 days rather than the usual 30; and (2) if you are the movant, gather and present your evidence on the first go-round because you might not get a second chance.

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In Charles v. Texas Property & Casualty Insurance Guaranty Association, the Third Court of Appeals has held that the trial court's signing of an order nunc pro tunc to correct the cause number in a dismissal order did not extend the deadline for filing a notice of appeal.  Accordingly, the appellate court determined that it lacked jurisdiction to consider the appellant's complaints about the original order, which were raised in a restricted appeal from the order nunc pro tunc.  The court of appeals affirmed the dismissal after rejecting the appellant's challenges to the corrected version.

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With today's orders, the Texas Supreme Court has issued per curiam opinions in six cases.

In Zipp v. Wuemling, the Court held that an appeal from the district court's guardianship decision was not rendered moot merely because the ward had died while the appeal was pending.  Because issues remained with respect to who should settle the estate and whether the appellant has a legally cognizable interest in attorney's fees and costs, the supreme court reversed the court of appeals' judgment of dismissal and remanded to that court for further proceedings.

In City of Dallas v. Saucedo-Falls, the Court remanded the case to the trial court after determining that police officers and firefighters who sued the City alleging they were entitled to a pay raise "should have the opportunity to argue any grounds for waiver of immunity remaining under this Court's decisions [after the new opinion in Reata Construction Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006)], including whether the City's immunity from suit is waived by sections 271.151-.160 of the Local Government Code, enacted while this case has been pending on appeal."

In another immunity case, City of Sweetwater v. Waddell, the Court concluded that the court of appeals' reliance on "sue and be sued" language in the City's charter as a waiver was inconsistent with Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) and remanded to the trial court for further proceedings.

In In re Texas Department of Transportation and In re Gillespie County, separate mandamus actions originating from the same dispute, the Court conditionally granted mandamus relief directing a Travis County probate court to transfer venue of the plaintiffs' claims against certain defendants to Gillespie County, a county of mandatory venue.

In Doe v. Pilgrim Rest Baptist Church, the Court treated as timely a notice of appeal filed more than 90 days after the trial court signed a severance order conditioned on payment of a filing fee.

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In Rainbow Group, Ltd. v. Wagoner, the Third Court of Appeals has dismissed a class action defendant's interlocutory appeal from an order denying its motion to decertify the class and an order granting the plaintiffs' motion to amend the certification.  The court of appeals held that it lacked jurisdiction becausethe first order was not subject to an interlocutory appeal and because the defendant failed to timely file a notice of appeal from the second order.

Disputing discusses the case here.

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