In the Court of Appeals For the Fifth Court of Appeals District Dallas, Texas

Transcription

1 No CV In the Court of Appeals For the Fifth Court of Appeals District Dallas, Texas ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 April 30 P3:13 Lisa Matz CLERK COLONIAL COUNTY MUTUAL INSURANCE COMPANY, v. Appellant DALIA AMAYA, Appellee on interlocutory appeal from the 162nd Judicial District Court of Dallas County, Texas (Cause No. DC I) Honorable Lorraine A. Raggio, Presiding APPELLEE S AMENDED OPENING BRIEF Adam R. Hardison HARDISON LAW FIRM 5050 Quorum Drive, Suite 700 Dallas, Texas phone fax Counsel for Appellee ORAL ARGUMENT REQUESTED

2 No CV In the Court of Appeals For the Fifth Court of Appeals District Dallas, Texas COLONIAL COUNTY MUTUAL INSURANCE COMPANY, v. Appellant DALIA AMAYA, Appellee on interlocutory appeal from the 162nd Judicial District Court of Dallas County, Texas (Cause No. DC I) Honorable Lorraine A. Raggio, Presiding APPELLEE S AMENDED OPENING BRIEF Respectfully submitted, /s/ Adam R. Hardison Adam R. Hardison HARDISON LAW FIRM 5050 Quorum Drive, Suite 700 Dallas, Texas phone fax Counsel for Appellee i

3 IDENTITY OF PARTIES AND COUNSEL Appellee adopts the disclosures and the naming references of the Appellant. ii

4 TABLE OF CONTENTS Identity of Parties and Counsel... ii Table of Contents... iii Index of Authorities... v Statement of Jurisdiction... vi Statement of Case... vii Citations to the Record... vii Issue presented... viii Statement of Facts... 1 Summary of Argument... 1 Argument... 3 A. Colonial failed to invoke this Court s appellate jurisdiction... 3 B. Colonial s obligation to comply with the Texas Insurance Code and fulfill its duty of good faith and fair dealing when determining whether an applicable insuring agreement is in place does not disappear when such determination later reveals that there is no such insuring agreement Prayer... 9 Certificate of Service iii

5 INDEX OF AUTHORITIES CASES Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352 (Tex. 2001)... 5 Baylor College of Med. v. Camberg, 247 S.W.3d 342 (Tex. App. Houston [14th Dist.] 2008) Diamond Products International, Inc. v. Handsel, 2004 WL (Tex. App. [14th Dist.] July 20,2004)... 4 E. Tex. Salt Water Disposal Co. v. Werline, 307 S.W.3d 267 (Tex. 2010)... 5 Geisler v. Mid-Century Ins. Co., 712 S.W.2d 184 (Tex. App. Houston [14th Dist.] 1986) Guarantee Ins. Co. of Texas v. Boggs, 527 S.W.2d 265 (Tex. Civ. App. Amarillo 1975)... 6 In re D.B., 80 S.W.3d 698 (Tex. App. Dallas 2002)... 4 Moon v. Guarantee Ins. Co., 764 P.2d 1331 (Okla. 1988)... 8 Ortiz v. State Farm Mut. Auto. Ins. Co., 955 S.W.2d 353 (Tex. App. San Antonio 1997).... 6, 7 Republic Ins. Co. v. Stoker, 903 S.W.2d 338 (Tex. 1995) Sentry Ins. v. R.J. Weber Co., 2 F.3d 554 (5th Cir. 1993)... 7 Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007)... 5 iv

6 Trahan v. Prudential Prop. & Cas. Ins. Co., 739 So. 2d 811 (La. App. [1 Cir.] 1999)... 8 U.S. Sec. Ins. Co. v. Doss, 764 So. 2d 885 (Fla. Dist. Ct. App. [4th Dist.] 2000);... 8 Zurcher v. Nat'l Sur. Corp., 2002 Ohio 901 (Ohio Ct. App. 2002, app. denied.)... 8 OTHER TEX. CIV. PRAC. & REM. CODE (f)... 3 v

7 STATEMENT OF JURISDICTION This is an interlocutory appeal brought under sections (d-f) of the Texas Civil Practice and Remedies Code. [Appendix, p.1-3 at 2.] Both Amaya and Colonial agreed to the interlocutory appeal, as required under the version of the Code in effect prior to September 1, Regrettably, Amaya cannot represent to this Court that Colonial has properly invoked appellate jurisdiction. Amaya s disclosure in this regard is set forth on page 3 of her brief. vi

8 STATEMENT OF CASE This is an interlocutory appeal of the trial court s denial of Colonial s motion for summary judgment. The issue in the summary judgment was whether Colonial s conduct in handling a PIP claim could never constitute a violation of the Texas Insurance Code or could never expose Colonial to extra contractual damages upon a showing that there was not a PIP insuring agreement in place. Amaya s amended pleadings abandoned her quest for benefits under the insurance contract, and she did not respond to Colonial s summary judgment grounds on those issues. CITATIONS TO THE RECORD The record in this case consists of a one-volume, sequentially numbered Clerk s Record and a one volume, sequentially numbered Supplemental Clerk s Record. Citations to this record are in the format [CR:pp and SCR:pp, as appropriate.]. This appeal does not have a Reporter s Record. vii

9 ISSUE PRESENTED A. Whether, as a matter of law, an insurer is never obligated to comply with the Texas Insurance Code and an insurer never owes a claimant the duty of good faith and fair dealing in determining whether an applicable insuring agreement is in place when such determination later reveals that there is no such insuring agreement. viii

10 STATEMENT OF FACTS Amaya offers the following Statement of Facts under TRAP 38.1(f): On May 17, 2009, Amaya had a car accident while she was the permissive user of a motor vehicle owned by Colonial's named insured, Antonio Orellana. [CR:89]. Mr. Orellana is not a party. At the time of the accident, Mr. Orellana s insurance information revealed a policy number of 7842A [CR:98]. On August 13, 2009, Amaya s attorney contacted Colonial requiting either an application for PIP benefits or a signed written rejection of PIP coverage. [CR:112]. The next day, August 14, 2009, Colonial replied to Amaya s letter stating, Personal Injury Protection... is optional and requires an endorsement to the initial policy. Research of your policy revealed that you did not carry Personal Injury Protection (PIP)... coverage. Therefore, there is no first party coverage for any medical bills under this automobile policy and your injury claim must be denied. [CR:113]. Colonial s reply did not contain a written PIP rejection. Amaya wrote again to Colonial on September 3, 2009, asking that Colonial deliver either a PIP application or a written rejection of PIP. [CR:114]. Colonial responded that same day by providing a signed waiver for a policy different from the policy in question. [CR: at 117]. The document provided was for Policy Number 7894A , but Colonial did not provide a signed waiver for the policy in question and did not offer an explanation for this variance. [CR:117]. Amaya acknowledged receipt of Colonial s earlier response, notified Colonial that the rejection was for a different policy number, and asked for a correct rejection or confirmation that the two policies are the same. [CR:118]. Amaya 1

11 made additional attempts to obtain either PIP benefits or a written rejection on September 15, 2009 [CR:122], September 23, 2009 [CR:123], September 28, 2009 [CR:124]. Colonial responded on September 30, 2009 with a declarations page but still did not provide a written rejection. [CR:126-28]. Amaya made her sixth request for a written rejection of PIP on October 5, [CR:129]. She made her seventh request for a written rejection on October 12, 2009 [CR: ]. Colonial never produced a written rejection in response to Amaya s seven requests, and Amaya filed suit on or about October 30, 2009 seeking PIP benefits and extra-contractual damages. After Amaya had incurred attorney s fees and expenses in filing and serving Colonial with her lawsuit, Colonial finally produced a written rejection of PIP for the policy in question on November 11, SUMMARY OF ARGUMENT Contrary to each precedent relied upon as authority by Colonial, the underlying facts in this case do not concern an insurer s determination of whether, under a specified insuring agreement, a claim was a Covered Claim or the claimant was a Covered Person. Each of those determinations requires analysis and investigation of facts external to the insurer itself. Here, by contrast, the question is whether a PIP insuring agreement is in place. Texas law is clear that, absent a written rejection of such coverage, each Texas auto policy provides PIP coverage. The existence or absence of a written 2

12 rejection was a fact uniquely within the purview of Colonial, yet Colonial required Amaya to file a lawsuit to obtain that written rejection. ARGUMENT A. Colonial failed to invoke this Court s appellate jurisdiction. This appeal is brought under (d-f) of the Texas Civil Practice and Remedies Code. Prior to September 1, 2011, this section required an agreement of the parties along with other prerequisites. H.B. 274 (the loser pays bill) eliminated the requirement for an agreement and allowed for such appeals upon a party s motion or on the trial court s own initiative. See H.B. 274, 3.01, 82nd Leg. Section was subjected to many changes over the years. From its enactment in 1985 until a modification in 2005, section (f) read as follows: If application is made to the court of appeals that has appellate jurisdiction over the action not later than the 10 th day after the date an interlocutory order under Subsection (d) is entered, the appellate court may permit an appeal to be taken from that order. TEX. CIV. PRAC. & REM. CODE (f)(As it existed prior to enactment of H.B. 1294, 79 th Leg., effective June 1, 2005). Thus, prior to June 1, 2005, the parties had 10 days to make application to the Court of Appeals for review under this section. H.B. 1294, however, completely eliminated section (f) in Presumably, the requirement for an application was no longer in effect and the time to perfect appeal defaulted to the standard 20 days for accelerated appeals under TRAP 26.1(b). 3

13 Section (f) was reinstated with the Loser Pays bill, marking the return of the concept of an application for interlocutory appeal and specifying a 15-day window for filing. See TEX. CIV. PRAC. & REM. CODE (f)(2011). For the following reasons, Amaya cannot represent to this Court that its jurisdiction has been invoked by Colonial. 1. The version of in effect at the time the trial court made its order under that section, and at the time the notice of appeal was filed, specified a 15-day time period for such filings. The trial court s order was dated September 12, 2011 and the notice of appeal was filed 18 days later on September 30, [CR:276-77; 280]. The lack of timeliness casts doubt on appellate jurisdiction. Amaya is aware of later-drafted commentary to the Rule enacted pursuant to this legislation which specifies the operative date is the date the action was filed in the trial court, but nothing in the legislation itself which solely concerns appellate jurisdiction supports this expansive interpretation. 2. Colonial never made application for interlocutory appeal. While the version of section (f) that existed prior to 2005 referenced an application, some courts of appeal gave an expansive definition to this term and allowed a notice of appeal to serve as an application. See Diamond Products International, Inc. v. Handsel, No CV, 2004 WL (Tex. App. [14th Dist.] July 20,2004, no pet.); Compare In re D.B., 80 S.W.3d 698 (Tex. App. Dallas 2002, no pet.)(dismissing appeal for want of jurisdiction upon holding that a notice of appeal could not substitute for an application and finding that, regardless, the notice was filed two days late.) Justice Frost, 4

14 concurring in Diamond Products, identified the need for procedural clarification in this area. The Texas Legislature responded in 2011, and the current (and controlling) version of (f) clearly requires a separate application for interlocutory appeal within 15 days. Upon grant of that application, the TRAP 20-day time period for accelerated appeals commences. Because Colonial never made application, appellate jurisdiction is in doubt. 3. Finally, and distinct from the procedural shortcomings listed above, section (d) requires that the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion. While this is an issue of first impression in Texas courts, Amaya has doubts whether the jurisdiction contemplated over pure questions of law extends to the mixed question of law and fact raised in Colonial s first, second, third, fourth, and sixth Issues Presented. [Appellant s Brief at p. 2]. Jurisdiction over interlocutory appeals must be narrowly construed. See E. Tex. Salt Water Disposal Co. v. Werline, 307 S.W.3d 267, 277 (Tex. 2010), citing Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007)(Observing that courts strictly construe the general interlocutory appeals statute as a narrow exception to the general rule that only final judgments are appealable. (quoting Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001)). 5

15 B. Colonial s obligation to comply with the Texas Insurance Code and fulfill its duty of good faith and fair dealing when determining whether an applicable insuring agreement is in place does not disappear when such determination later reveals that there is no such insuring agreement. [A]bsent a written rejection, UM/UIM and PIP coverage exist as a matter of law. Ortiz v. State Farm Mut. Auto. Ins. Co., 955 S.W.2d 353, (Tex. App. San Antonio 1997, pet denied.); see also Howard v. INA County Mutual Ins. Co., 933 S.W.2d 212, 218 (Tex. App. Dallas 1996, n.w.h.); Guarantee Ins. Co. of Texas v. Boggs, 527 S.W.2d 265, 268 (Tex. Civ. App. Amarillo 1975, writ dism'd); Geisler v. Mid-Century Ins. Co., 712 S.W.2d 184, 187 (Tex. App. Houston [14th Dist.] 1986, writ ref'd n.r.e.). No other automobile coverages have this opt-out requirement. In the trial court, Amaya raised the issue that the written rejection Colonial finally produced bore indicia of forgery. For purposes of the narrow issue before this Court, however, Amaya will presume the rejection is valid to focus the question on whether a subsequent determination that PIP coverage was rejected will excuse misconduct in delivering that rejection. Regarding that conduct, Colonial agreed it owed Amaya the same duty it owes to a named insured [SCR:38], that its adjuster made multiple misrepresentations to Amaya [SCR:41, 44, 46, 47-48, 56], and that the first indication in its records that an attempt was made to investigate coverage was two weeks after the claim was made, and 13 days after it was denied [SCR:458]. Colonial further agreed that it did not provide a rejection for the policy number listed in the policy report, did not explain why it did not, that this failure was a violation of its internal policies, and this failure was a breach of its duty to 6

16 Amaya. [SCR:54, 55, 56, 68-69]. Colonial knew of no reason why the written rejection could not have been delivered to Amaya months earlier, in response to her repeated requests. [SCR:63, 64]. Colonial further agree that its actions damaged Amaya. [SCR:60-61, 65, 66]. Colonial cites Republic Ins. Co. v. Stoker as the sole source for an exception to the general rule that bad faith will not be found when the claim was not covered. 903 S.W.2d 338, 341 (Tex. 1995). As a threshold observation, the language in Stoker and its progeny concerns a claim that is promptly denied. Colonial s own admissions show that the denial was not prompt and was not in accordance with Colonial s polices. All authority cited by Colonial share a common theme that is absent in the case at bar. Specifically, in each case, an insurance policy and insuring agreement were in place, but disputes arose as to whether a particular claim was within the ambit of the coverage provided by that insuring agreement. Here, by contrast, Colonial did not make a factspecific denial of a claim on its merits; rather, Colonial s sole task was to determine whether PIP coverage was rejected. Generally, an insured bears the burden of showing that a claim against an insurer is within the policy s coverage. See Sentry Ins. v. R.J. Weber Co., 2 F.3d 554, 556 (5th Cir. 1993) (interpreting Texas law). But this is a PIP claim, and absent a written rejection, UM/UIM and PIP coverage exist as a matter of law. Ortiz v. State Farm Mut. Auto. Ins. Co., 955 S.W.2d 353, 357 (Tex. App. San Antonio 1997). The existence of a written rejection is uniquely within the knowledge of Colonial, and Colonial has exclusive access to the sole document that would reject coverage. As such, this case is 7

17 distinguishable from Colonial s cited authority were claims analysis required the insured to come forth with facts demonstrating the existence of a covered claim. As the Appellant, Colonial bears the burden to provide this Court with authority supporting its position. See Baylor College of Med. v. Camberg, 247 S.W.3d 342, 349 (Tex. App. Houston [14th Dist.] 2008, pet. denied). It has not done so. While the issue of coverage rejections (whether UM or PIP), and potential bad faith findings and statutory violations for a failure to timely deliver proof of rejection, is an issue of first impression in Texas, states with similar statutory schemes have spoken clearly on the issue: The burden of proof is upon the insurer to come forward with a written rejection in order to relieve the insurer from its duty to provide the statutory uninsured motorist coverage. Moon v. Guarantee Ins. Co., 764 P.2d 1331, 1335 (Okla. 1988); A review of the record supports the trial court's conclusion, in directing a verdict in favor of the insureds, that the insurer failed to meet its burden to prove, absent a written rejection, that there was an informed knowing rejection of uninsured motorist coverage. U.S. Sec. Ins. Co. v. Doss, 764 So. 2d 885 (Fla. Dist. Ct. App. [4th Dist.] 2000); The insurer bears the burden of proving any insured named in the policy rejected in writing UM coverage equal to bodily injury limits or selected lower limits. Trahan v. Prudential Prop. & Cas. Ins. Co., 739 So. 2d 811, 814 (La. App. [1 Cir.] 1999, writ denied); Under Ohio Law, insurance companies bear the burden of showing that any rejection of UM/UIM coverage was knowingly made by the customer. Zurcher v. Nat'l Sur. Corp., 2002 Ohio 901 (Ohio Ct. App. 2002, app. denied.) Notably, no state with an opt out statute for PIP or UM/UIM has placed the burden on the insured to prove the negative; that is, no state requires an insured to prove the absence of a written rejection. 8

18 Amaya agrees that, in those coverage analyses where the insured bears the burden to prove coverage, bad faith claims will only follow once the insured has successfully met that burden. Here, Amaya met her burden and Colonial s corporate representative admits Colonial did not timely provide proof of written rejection. Colonial cites no authority that, contrary to cases where a duty had not yet attached, it can breach its duty and remain immunized for bad faith claims. And of course, Colonial s arguments touch only bad faith claims and not claims for breaches of duties under the Insurance Code. CONCLUSION; PRAYER Based on the forgoing, Colonial has not established that, as a matter law, an insurer will never owe a duty to its insureds, or will never be required to comply with the Texas Insurance Code, in cases where it eventually delivers a written rejection of otherwise mandatory coverage. By extension, of course, Colonial also has not established that it is immunized from traditional remedies availed to its insureds for such breaches and violations. Amaya prays that this Court affirm the trial court s denial of summary judgment. 9

19 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing document has been served on all counsel of record on this the 30th day of April 2012, in accordance with the rules. MR. RANDALL G. WALTERS WALTERS BALIDO & CRAIN 900 JACKSON STREET, SUITE 600 DALLAS, TX /s/ Adam R. Hardison Adam R. Hardison 10

20 APPENDIX 11

21 Page 1 LexisNexis (R) Texas Annotated Statutes Copyright 2012 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved. *** This document is current through the 2011 First Called Session *** *** Federal case annotations: Jan. 3, 2012 postings on Lexis *** *** State case annotations: Dec. 16, 2011 postings on Lexis *** CIVIL PRACTICE AND REMEDIES CODE TITLE 2. TRIAL, JUDGMENT, AND APPEAL SUBTITLE D. APPEALS CHAPTER 51. APPEALS SUBCHAPTER B. APPEALS FROM COUNTY OR DISTRICT COURT Appeal from Interlocutory Order GO TO TEXAS CODE ARCHIVE DIRECTORY Tex. Civ. Prac. & Rem. Code (2012) (a) A person may appeal from an interlocutory order of a district court, county court at law, or county court that: (1) appoints a receiver or trustee; (2) overrules a motion to vacate an order that appoints a receiver or trustee; (3) certifies or refuses to certify a class in a suit brought under Rule 42 of the Texas Rules of Civil Procedure; (4) grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction as provided by Chapter 65; (5) denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state; (6) denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73; (7) grants or denies the special appearance of a defendant under Rule 120a, Texas Rules of Civil Procedure, except in a suit brought under the Family Code; (8) grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section ; (9) denies all or part of the relief sought by a motion under Section (b), except that an appeal may not be taken from an order granting an extension under Section ; (10) grants relief sought by a motion under Section (l); or (11) denies a motion to dismiss filed under Section Appendix - Page 1

22 Tex. Civ. Prac. & Rem. Code Page 2 (b) An interlocutory appeal under Subsection (a), other than an appeal under Subsection (a)(4), stays the commencement of a trial in the trial court pending resolution of the appeal. An interlocutory appeal under Subsection (a)(3), (5), or (8) also stays all other proceedings in the trial court pending resolution of that appeal. (c) A denial of a motion for summary judgment, special appearance, or plea to the jurisdiction described by Subsection (a)(5), (7), or (8) is not subject to the automatic stay under Subsection (b) unless the motion, special appearance, or plea to the jurisdiction is filed and requested for submission or hearing before the trial court not later than the later of: (1) a date set by the trial court in a scheduling order entered under the Texas Rules of Civil Procedure; or (2) the 180th day after the date the defendant files: (A) the original answer; (B) the first other responsive pleading to the plaintiff's petition; or (C) if the plaintiff files an amended pleading that alleges a new cause of action against the defendant and the defendant is able to raise a defense to the new cause of action under Subsection (a)(5), (7), or (8), the responsive pleading that raises that defense. (d) On a party's motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if: (1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation. (d-1) Subsection (d) does not apply to an action brought under the Family Code. (e) An appeal under Subsection (d) does not stay proceedings in the trial court unless: (1) the parties agree to a stay; or (2) the trial or appellate court orders a stay of the proceedings pending appeal. (f) An appellate court may accept an appeal permitted by Subsection (d) if the appealing party, not later than the 15th day after the date the trial court signs the order to be appealed, files in the court of appeals having appellate jurisdiction over the action an application for interlocutory appeal explaining why an appeal is warranted under Subsection (d). If the court of appeals accepts the appeal, the appeal is governed by the procedures in the Texas Rules of Appellate Procedure for pursuing an accelerated appeal. The date the court of appeals enters the order accepting the appeal starts the time applicable to filing the notice of appeal. HISTORY: Enacted by Acts 1985, 69th Leg., ch. 959 (S.B. 797), 1, effective September 1, 1985; am. Acts 1987, 70th Leg., ch. 167 (S.B. 892), 3.10, effective September 1, 1987; am. Acts 1989, 71st Leg., ch. 915 (S.B. 908), 1, effective June 14, 1989; am. Acts 1993, 73rd Leg., ch. 855 (S.B. 76), 1, effective September 1, 1993; am. Acts 1997, 75th Leg., ch (S.B. 453), 1, effective June 20, 1997; am. Acts 2001, 77th Leg., ch (H.B. 978), 1, effective September 1, 2001; am. Acts 2003, 78th Leg., ch. 204 (H.B. 4), 1.03, effective September 1, 2003; am. Acts 2005, 79th Leg., ch. 97 (S.B. 15), 5, effective September 1, 2005; am. Acts 2005, 79th Leg., ch (H.B. 1294), 1, 2, effective June 18, 2005; am. Acts 2011, 82nd Leg., ch. 203 (H.B. 274), 3.01, effective September 1, NOTES: 2001 Note: This Act applies only to a suit that is commenced on or after the effective date of this Act. A suit that is commenced before the effective date of this Act is governed by the law applicable to the suit immediately before the effective date of this Act, and that law is continued in effect for that purpose. Acts 2001, 77th Leg., ch. 1389, Note: The changes in law made by Section 1.03 of Ch. 204 to Sections (b) and (c), Civil Practice and Remedies Code, apply to any case in which an appeal allowed by Section (a), Civil Practice and Remedies Code, as amended by ch. 204, is taken and the notice of appeal is filed on or after September 1, Acts 2003, 78th Leg., ch. 204, 1.05(b). Appendix - Page 2

23 Tex. Civ. Prac. & Rem. Code Page 3 * See Texas Litigation Guide, Ch. 153, Accelerated Appeals. * See also Texas Rules of Appellate Procedure Editor's Notes. -- A former (f) was repealed by Acts 2005, 79th Leg., ch (H.B. 1294), effective June 18, Applicability. -- Acts 2005, 79th Leg., ch. 97 (S.B. 15), 10 provides: "There is a direct appeal to the supreme court from an order, however characterized, of a trial court granting or denying a temporary or otherwise interlocutory injunction or a permanent injunction on the grounds of the constitutionality or unconstitutionality, or other validity or invalidity, under the state or federal constitution of all or any part of this Act. The direct appeal is an accelerated appeal." Acts 2011, 82nd Leg., ch. 203 (H.B. 274), 6.01 provides: "The changes in law made by this Act apply only to a civil action commenced on or after the effective date of the change in law as provided by this article [September 1, 2011]. A civil action commenced before the effective date of the change in law as provided by this article is governed by the law in effect immediately before the effective date of the change in law, and that law is continued in effect for that purpose." 2005 amendment, by ch. 97, added (a)(11) amendment, by ch. 1051, added "county court at law, or county court" after "A district court" in (d); substituted "trial court" for "district court" or variants in (e); and repealed (f), which read: "If application is made to the court of appeals that has appellate jurisdiction over the action not later than the 10th day after the date an interlocutory order under Subsection (d) is entered, the appellate court may permit an appeal to be taken from that order." 2011 amendment, in the introductory language of (d), substituted "On a party's motion or on its own initiative, a trial court in a civil action may, by" for "A district court, county court at law, or county court may issue a," substituted "permit an appeal from an order that is" for "for interlocutory appeal in a civil action," and deleted "under this section" after "appealable"; in (d)(1), deleted "the parties agree that" from the beginning and added "to be appealed"; deleted former (d)(3), which read: "the parties agree to the order"; added (d-1); added the (e)(1) and (e)(2) designations; added "to a stay; or" in (e)(1); in (e)(2), deleted "and" from the beginning, added "or appellate," deleted "the court of appeals, or a judge of the court of appeals" before "orders," and added "pending appeal"; added (f); and made related changes. LexisNexis (R) Notes: CASE NOTES 1. Where a former school district employee did not initiate grievance proceedings as required by Tex. Gov't Code Ann because she immediately withdrew the grievance filed after her first termination by the district without ever attempting to reinstitute it prior to filing suit and did not institute a grievance of any kind after her involuntary separation from employment occurring three months later, those omissions were jurisdictional defects that precluded the employee from bringing her whistleblower claim. Midland Indep. Sch. Dist. v. Watley, 216 S.W.3d 374, 2006 Tex. App. LEXIS 4499 (Tex. App. Eastland 2006). 2. Should a state district court refuse a requested order restraining implementation of an agency order, that denial is itself appealable pursuant to former Tex. Rev. Civ. Stat. Ann. art (see Tex. Civ. Prac. & Rem. Code Ann ); therefore, a car manufacturer was not deprived of due process rights where a mechanism existed for review of Texas Motor Vehicle Commission decisions that complied with the Administrative Procedure and Texas Register Act. Chrysler Corp. v. Texas Motor Vehicle Com., 755 F.2d 1192, 1985 U.S. App. LEXIS 28490, Trade Cas. (CCH) P66498, 51 A.L.R.4th 845 (5th Cir. Tex. 1985). Appendix - Page 3