Agreed Appeals from Interlocutory Orders
by Russell J. DePalma, Esq.
In the 2011 Texas Legislative session, the Legislature enacted, and Governor Rick Perry signed, House Bill 274. In the bill, the Legislature created new procedures intended to streamline the litigation process and lower costs.
The bill also revised a tool for parties to use the appeals process to hasten the conclusion of their case: the Appeal of Controlling Question of Law under Civil Practice and Remedies Code Section 51.014(d).
This option has existed in Texas since 2001, but has been of little use. Only about 80 appellate decisions in Texas since 2001 even mention the section, and many of those do so only to explain why the parties failed to meet its most stringent prerequisite--party agreement.
As originally enacted, the controlling question of law appeal allowed a district or county court to certify one of its orders for interlocutory appeal if:
(1) the parties agreed that the order “involves a controlling question of law as to which there is a substantial ground for difference of opinion” such that
(2) “an immediate appeal from the order may materially advance the ultimate determination of the litigation,” and,
(3) the parties agreed to the order allowing the appeal.
Effective for cases filed on or after September 1, 2011, Section 51.014(d) now allows any trial court, either on the motion of a party or its own initiative, to certify an interlocutory order for appeal if the order concerns a “controlling question of law for which there is a substantial ground for difference of opinion,” and resolving the issue on appeal “may materially advance the ultimate determination.” The necessity for the parties’ agreement to both availability and validity of the appeal has been eliminated--one party can no longer block an appeal by refusing to agree. Actions under the Family Code are exempt.
The courts of appeals now have a mandatory gatekeeper function in the process—newly enacted section 51.014(f) requires them to accept or deny the appeal.
To invoke the appellate court’s jurisdiction, the appealing party must file an application for interlocutory appeal in the appellate court by the 15th day after the trial court signs the appealable order. The appellant must also explain “why an appeal is warranted under Subsection (d).”
Thus, the appellant must show in a pleading akin to a petition for review that the order determines a controlling question of law, for which there is substantial ground for difference of opinion and resolution of the question can materially advance the determination of the case.
Appeals accepted under section 51.014(f) are accelerated appeals under the Texas Rules of Appellate Procedure. There is no automatic stay of the trial court proceedings although Section 51.014(e) allows the parties to agree to a stay or seek one from the Court of Appeals.
The substantive model for the original and current versions of Section 51.014(d)-(f) is 28 U.S.C. Section 1292(b), which contains the same three legal prerequisites as section 51.014(d). In the past three years, the Fifth Circuit has permitted about 70% of the requested appeals under section 1292(b) (35 of 51 from 2009 through August 2011).
Thus, Texas courts could look to federal court precedents to determine whether to allow appeals. This means practitioners should bear the following in mind: (1) a “controlling question of law” can mean outcome-determinative on the instant case or potentially precedential for many cases; (2) “substantial ground” for differing opinions exists where there is an existing conflict among courts of appeals, or the district court’s decision is contrary to precedent, if novel issues are presented or if the question concerns a complicated issue of non-Texas law; and (3) “materially advancing” the case should mean the interlocutory appeal will speed up trial court proceedings. See Ryan v. Flowserve Corp., 444 F. Supp 718, 723 (N.D. Tex. 2006) (citing references and applying the criteria).
Moreover, all possible reasons for overturning the trial court order should be presented in the court of appeals. This is because, like 28 U.S.C. section 1292(b), CPRC section 51.014(d) allows review of an order not just the controlling legal issue. See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996).
The revision of Section 51.014(d) and enactment of Section 51.014(f) now allow trial lawyers to seek meaningful interlocutory appeal of important trial court orders—an improved tool to streamline the litigation process.
Russell J. DePalma is a partner at FSB FisherBroyles, LLP, where he practices business litigation and appellate law. He can be reached at firstname.lastname@example.org.