Interlocutory Appeal Update

Transcription

1 Interlocutory Appeal Update Rich Phillips DBA Appellate Section October 15,

2 Texas Appellate Watch Blog 2

3 3

4 CASELAW UPDATE 4

5 Appeal or Mandamus? If there is any doubt about the propriety of an interlocutory appeal, consider filing a protective mandamus petition as well. An appellant can also ask the appellate court to treat the interlocutory appeal as a mandamus petition, if necessary. In re Estate of Aguilar, 435 S.W.3d 831, 833 (Tex. App. San Antonio 2014, no pet.). 5

6 Use it or lose it? Supreme Court has focused on statutory use of may BUT if later order in the case moots the appeal, then ability to appeal interlocutory order is lost 6

7 Use it or lose it? Not waived: Adequacy of expert report in healthcareliability case Waived: Class-certification Temporary injunctions 7

8 Use it or lose it? May be waived: Venue Order appointing receiver Special appearance 8

9 Procedural Issues Statute controls deadlines. Permissive interlocutory appeals have their own set of deadlines. Motion for new trial, request for findings of fact and conclusions of law or other post-trial motion will not extend deadlines. 9

10 Procedural Issues Renewing motion or filing a motion for reconsideration will not reset time for appeal BUT if the motion presents a new ground for relief, that new ground may be appealable 10

11 Procedural Issues Cross-appeal deadline applies to interlocutory appeals. See Fjell Tech. Grp. v. Unitech Int l, Inc., No CV, 2015 WL at *1 (Tex. App. Houston [14th Dist.] Feb. 3, 2015, no pet.) Appellate court can grant extensions of time to perfect appeal. TRCP 306a(4) can extend deadline. 11

12 Procedural Issues Statutory stay is not jurisdictional and can be waived if no party objects to the trial court acting while the appeal is pending. See Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 923 (Tex. 2011) 12

13 Taking it to Austin Generally, the court of appeals judgment is final. TEX. GOV T CODE (b)(3) But Specific grant of jurisdiction in the Supreme Court for class-certification orders, media defendants, and permissive interlocutory appeals Dissent or conflicts jurisdiction Jurisdiction to decide jurisdiction 13

14 Temporary Injunction What is the effect of the order? Appealable An order styled as an order granting a motion to compel but requiring the defendant to provide maintenance and cure payments under the Jones Act. An order requiring parties to comply with terms of a mediated settlement agreement, including noncompetition provisions. 14

15 Temporary Injunction Not appealable An order abating a case without addressing the plaintiff s request for a temporary injunction. An order enforcing a previously entered temporary injunction. An order denying a request for a temporary restraining order. 15

16 Official Immunity Denial of a plea to the jurisdiction is appealable even though statute refers only to denial of summary-judgment motion Can be invoked by the official s employer to pursue an appeal 16

17 Official Immunity Employee or official Designated state employee by statute Really depends on statute Peace officer employed by a private, nonprofit hospital state official Peace office employed by private university = state official 17

18 Media defendants (a)(6) Primary business is reporting the news and being sued for acting in that business Member of the Media Physician who published editorials in a weekly newspaper, hosted a radio broadcast, and had thirty years experience as a political writer and journalist Book authors and book publishers 18

19 Sovereign and Governmental Immunity No particular procedure for asserting immunity is required Order on jurisdictional challenge may be implied in some circumstances 19

20 Sovereign and Governmental Immunity Jurisdictional issues can be raised for the first time on interlocutory appeal Governmental unit Open-enrollment charter school Municipal economic development corporation Local workforce development board Not a governmental unit Electric Reliability Council of Texas 20

21 Texas Citizens Participation Act Statute now makes clear that order denying a motion to dismiss may be immediately appealed. No interlocutory appeal from an order that grants the motion to dismiss but refuses to award attorneys fees. 21

22 Venue in Multi-Plaintiff Cases Split of authority San Antonio COA limited to appeals of the joinder requirements of (a) Other courts applies to any multiplaintiff case in which motion to transfer venue is denied 22

23 Arbitration CPRC closed a gap for appeals under the FAA Hart v. Flagship Homes, Ltd., Nos CV, CV & CV, 2014 WL at *1 (Tex. App. San Antonio Dec. 10, 2014, pet. denied) 23

24 LEGISLATIVE UPDATE 24

25 SB 455 Creates a three-judge panel for schoolfinance and redistricting suits Government Code Chapter 22A Doesn t make any new interlocutory orders immediately appealable, but provides that any interlocutory appeal goes directly to the Supreme Court 25

26 SB 1296 Recodification bill Fixes the problem of two different bills that added provisions at CPRC (a)(12) Adopts a conforming version of section (b) 26

27 PERMISSIVE INTERLOCUTORY APPEALS 27

28 CPRC (d) Appeal of an order that involves a controlling question of law as to which there is a substantial ground for difference of opinion if an immediate appeal from the order may materially advance the ultimate termination of the litigation 28

29 Procedure CPRC (f) TRAP 28.3 TRCP

30 Procedure Trial Court Order Amended Trial Court Order??????? Motion to Amend Order 30

31 Trial Court s Permission Must be stated in order being appealed Identify the controlling legal question as to which there is a substantial basis for difference of opinion Must substantively rule on the controlling issue of law State why an immediate appeal may materially advance the termination of the litigation 31

32 Procedure Trial Court Order??????? Amended Trial Court Order 15 Days Motion to Amend Order Petition for Permission to Appeal 32

33 Petition for Permission to Appeal Include information required for a notice of appeal in TRAP 25 Attach a copy of the order from which appeal is sought Contain a table of contents, an index of authorities, issues presented, and a statement of facts 33

34 Petition for Permission to Appeal Argue clearly and concisely why the order at issue involves a controlling question of law as to which there is a substantial ground for difference of opinion. Explain how an immediate appeal from the order may materially advance the ultimate termination of the litigation. 34

35 Procedure Trial Court Order??????? Amended Trial Court Order 15 Days Response to Petition for Permission to Appeal 10 Days 7Days Motion to Amend Order Petition for Permission to Appeal Reply 35

36 A FEW (d) STATISTICS 36

37 Statewide Denied 65% Granted 35% 37

38 By Court of Appeals District 12 Filed st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 11th 12th 13th 14th 38

39 By Court of Appeals District 12 Filed Granted st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 11th 12th 13th 14th 39

40 Reasons for Denial No Substantial Difference of Opinion 9% Problem with Trial Court Procedure 15% Family Code 7% No Controlling Question of Law 30% Unstated 4% Order Non- Compliant 35% 40

41 Controlling Question of Law Must be a question of law, not a question of fact Viability of the claim depends on resolution of the issue Not one of several major issues Explain how resolution will shorten the litigation 41

42 Difference of Opinion Trial court s disagreement with the petitioner s argument is not sufficient Unlikely to be found where issue has already been fully resolved by Texas courts Highlight split of authority or novelty of the issue to be addressed on appeal 42

43 Does amended (d) apply? Applies to cases filed after September 1, 2011 (not just to orders signed after effective date) See Cooke v. Karlseng, No CV, 2015 WL , at *1 (Tex. App. Dallas May 7, 2015, no. pet. h.) 43

44 Outcome in Granted Appeals Other 24% Affirmed in part, Reversed in part 16% Reversed 20% Affirmed 40% 44