Texas’ rule against the appeal of interlocutory orders has a long and colorful history of exceptions to that rule (a story well told by Lee Thompson in her recent law review article about our interlocutory-appeal statute). The increased number of permissible interlocutory appeals can produce procedural friction with the standard appellate process; the supreme court recently granted review of a Dallas case involving such friction on a fundamental jurisdictional point:
By a 5-4 margin, the supreme court dismissed a closely-watched case about ERCOT’s sovereign immunity on jurisdictional grounds: “[A]fter the court of appeals rendered its decision, and before the parties asked us to review that decision, the trial court entered a final judgment in the underlying suit, and that judgment is now the subject of a separate appeal pending in the court of appeals. Because the trial court’s interlocutory order merged into the final judgment and no longer exists, we cannot grant the relief the parties seek. As a result, any decision we might render would constitute an impermissible advisory opinion, and these consolidated causes are moot.”
A dissent by Chief Justice Hecht–no judicial activist, and no frequent user of exclamation points or italics–took issue with this result: “[T[]e court of appeals has already had the opportunity to review the dismissal. Indeed, it was the court of appeals that ordered the dismissal! And by ruling on immunity, this Court would not be infringing on the court of appeals’ judicial power. The court of appeals has already ruled on that issue. There is no reason for the court to reiterate its ruling in a second appeal. It is waiting on this Court to rule. The Court can resolve the parties’ dispute and grant relief, however it decides the immunity issue, but instead it chooses delay and wasting more of the parties’ and judicial system’s time and resources.” (emphasis and exclamation mark in original).
Another concurrence and dissent elaborated further on the themes in these two opinions. ERCOT v. Panda Power, No. 18-0781 (March 19, 2021).
Justice Busby wrote for the majority in Bonsmara Natural Beef Co. v. Hart of Texas Cattle Feeder: “[A] person ‘may appeal from’ certain types of interlocutory orders, including an order denying a motion to compel arbitration. Does this language mean that if the losing party chooses not to take an interlocutory appeal from such an order, it forfeits the ability to challenge that order on appeal from a final judgment? According to the [plaintiff] cattle owner, the mere availability of an interlocutory appeal demonstrates that the losing party must appeal the order within twenty days of its issuance. Because the [defendant] cattle feeder failed to appeal the order denying its motion to compel arbitration within that period, the owner contends the appellate court lacked jurisdiction to overturn the trial court’s denial postjudgment. This argument is incorrect: our rule has long been that ‘a party against whom an interlocutory [order] has been rendered will have his right of appeal when . . . the same is merged in a final judgment disposing of the whole case.'” He was joined by Justices Guzman, Lehrmann, Boyd, Blacklock, and Bland.
Justice Green dissented in no uncertain terms: “[B]y applying a myopically permissive interpretation of the interlocutory appeal statute, the Court concludes—in defiance of all common sense—that an interlocutory appeal of a trial court’s denial of a motion to compel arbitration is not required, and a challenge to such an order can wait until after a trial on the merits.” He was joined by Chief Justice Hecht and Justice Devine.
