CHAPTER 4 Appealability and Notice of Appeal

JurisdictionUnited States


Appealability and Notice of Appeal

4-1 Introduction

Generally, judgments and orders become appealable only when they are final. There are exceptions for certain types of judgments and orders, including interlocutory orders made appealable by statute.

To appeal a judgment, the first step is perfecting the appeal. Perfecting the appeal means invoking the jurisdiction of the court of appeals over the judgment or order appealed from.

4-2 Appealable Final Judgments or Orders

4-2:1 General Requirements for Finality

4-2:1.1 Express Statement or Actual Accomplishment of Finality

A judgment or order is final for purposes of appeal if it either (1) disposes of all claims and parties, or (2) expressly states that it disposes of all claims and parties, even if it does not actually do so.1 An example of an express statement is: "This judgment finally disposes of all parties and all claims and is appealable."2 If that precise language is present, the judgment or order constitutes a final judgment and is appealable, even if evidence indicates that the finality language was included by mistake and that the order was intended to be interlocutory.3 Even without those words, if the judgment "states with unmistakable clarity that it is a final judgment as to all claims and parties," then it will begin the timetable for filing an appeal.4

4-2:1.2 Definiteness

To be final, a judgment must be definite. It cannot condition recovery on uncertain events.5 If further proceedings are necessary, the judgment is final only if the ancillary matters are ministerial.6 For instance, a judgment may be final, even it does not state the amount or means for calculating prejudgment interest so long as the rate and means of calculating interest are matters of law.7 But prejudgment interest is not ministerial, and a judgment therefore is not final, if the record reflects facts that support the tolling of interest or if the award of interest is within the court's discretion.8

Also, a court has held that a judgment is final when it allows a party to obtain a credit on the judgment by reinstating an insurance policy because it concerns the form, not the value, of the compensation awarded.9 Thus, the clerk preparing a writ of execution could ascertain the proper amount of the judgment.10 As another court observed, "[a]lthough the amount of compensation differed depending on the circumstances, the amount was certain under all possible circumstances."11 By contrast, a judgment that could be certain only if a single, uncertain event (e.g., the failure to object to an accounting) occurred is not final.12

A court has held that a judgment is not final when it does not include the amount recoverable, but incorporates a prior order that provides a range of recovery, but no certain amount and no manner for ascertaining it.13 Interestingly, in this case the judgment also included the finality language that the Supreme Court of Texas, two years later, held established finality beyond doubt.14 The Blankenhagen court resolved this conflict by concluding that an indefinite judgment was an exception that overrode finality language. It is unclear whether this conclusion survives the Supreme Court's decision in Elizondo.

4-2:2 Requirements for Specific Types of Judgments and Orders

4-2:2.1 Judgment After Conventional Trial on the Merits

There is a presumption that a judgment after a conventional trial on the merits disposes of all parties and claims and is final, even if there is no express statement to that effect.15 If a judgment after trial contains a "Mother Hubbard" clause ("all relief not granted is denied"), that indicates finality.16 But a "Mother Hubbard" clause does not establish finality when there has not been a conventional trial on the merits.17

4-2:2.2 Interlocutory Orders

Interlocutory orders are by definition not final and, thus, are not appealable unless statute or rule provides otherwise.18 But interlocutory orders generally become final, and thus appealable, upon merger or severance.

Merger. An interlocutory order is merged into a final judgment when all remaining claims are resolved on the merits or dismissed.19 Merger occurs even when the interlocutory orders are not mentioned in the judgment.20

Severance. An interlocutory order also becomes final if it is severed from unadjudicated claims.21 Upon severance, the judgment is final even if there is no separate file or cause number.22 If a party discovers that the judgment being appealed is interlocutory, it can ask the appellate court to abate the appeal to allow the trial court to sever.23

If finality unclear. If finality is not clear, then the appellate court can review the record to determine finality.24 An appellate court also can abate an appeal to allow the trial court to clarify whether a judgment or order was intended to be final.25

Exception for mandatory interlocutory appeals. An exception to appealability occurs when an interlocutory order has been made appealable by statute or rule, and interlocutory appeal is mandatory. In that circumstance, the interlocutory order will not be appealable if merged or severed into a final judgment.26

4-2:2.3 Summary Disposition

There is no presumption that a judgment signed after summary disposition (e.g., summary judgment, default judgment, orders of dismissal) is final.27 Such judgments are final if they actually dispose of all parties and all claims, or if they state unequivocally that they do.28

For example, if a defendant moves for summary judgment on only one claim, but the trial court signs a judgment that the plaintiff take nothing, then the judgment is erroneous but final.29 A judgment granting more relief than a party is entitled to is not necessarily interlocutory, although it is erroneous.30 A "Mother Hubbard" clause in a summary judgment is not an unequivocal expression of finality.31

Bottom line. Does the order or judgment say "This judgment finally disposes of all parties and all claims and is appealable?" If so, then it is a final and appealable judgment, no matter the character or intent behind it. And, if that precise language is not present, does the language of the judgment and the record as a whole indicate that the trial court intended to dispose of all parties and claims? If so, then the judgment is also final and appealable.

4-2:2.4 Bill of Review

A bill of review that does not dispose of all issues in the underlying case on the merits is interlocutory and not a final, appealable order.32

4-2:3 Certain Probate, Receivership, and Partition Orders

Generally, only one final judgment can be signed in a case.33 But there are exceptions. The most common proceedings with multiple final judgments are probate, receivership, and partition cases.

If a statute provides that a discrete phase of a proceeding is final and appealable, the judgment or order signed in that phase is final.34 If there is no statute, a judgment or order regarding a discrete phase can be appealable if it is not part of an unadjudicated phase.35 Such orders often must be appealed immediately—not after the entire proceeding.36

4-2:4 Judgment or Order Not Appealable

If a judgment or order is not final and cannot be severed, there may be other options for an immediate appeal.

4-2:4.1 Options for Immediate Review

Interlocutory appeal as of right. First, the order may fall within one of the substantive categories for which interlocutory appeal is permitted by statute or rule.37

Permissive interlocutory appeal. Second, the court of appeals still may consider an interlocutory appeal if the trial court certifies it for interlocutory appeal and the court of appeals exercises its discretionary jurisdiction.38

Mandamus. Finally, the order may be reviewable by a petition for writ of mandamus. Generally, mandamus is not permitted to correct incidental trial court rulings, but rather is allowed only if the trial court commits a clear abuse of discretion for which there is no adequate remedy by appeal.39

4-2:4.2 Practical Considerations

Cost, delay, and unintended consequences. As a practical matter, even if an interlocutory order is appealable or otherwise reviewable, should you seek such review? Sometimes parties or attorneys are so incensed by an adverse ruling that they rush to file an interlocutory appeal or mandamus petition without carefully thinking through the implications. Sometimes, tens of thousands of dollars and several years later, the decision to seek such review may seem, in hindsight, to have been misguided. Although it can be difficult to predict the future, a cold assessment of the importance of the issue, the likely outcome, and the costs of pursuing immediate review will diminish the chances of buyer's remorse.

If the issue is not potentially case-dispositive or vitally important to damages, it is probably not worth pursuing a costly, lengthy interlocutory appeal or mandamus. Of course, if an interlocutory appeal is mandatory, it cannot be avoided.40

If the case is even moderately complex, costs can reach six figures in both the court of appeals and in the Texas Supreme Court. And these proceedings can take years. The costs and delay should be weighed against the likelihood of success. Also, there is always the possibility of unintended negative consequences. For example, in resolving a threshold issue on interlocutory appeal, an appellate court might include dicta that prejudices the client's position in the main case.

The record in the trial court. Finally, before deciding to file an interlocutory appeal or a mandamus petition, make sure the record will support a decision in your favor. Failure to make the proper record in the trial court can doom your appeal or mandamus, or, if you are defending an interlocutory order, could result in reversal.41

Often, deficiencies in the record can be corrected by submitting a new motion (or, in some cases, asking for reconsideration) and obtaining a ruling. If this opportunity exists, it is always best to take it...

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