Dismissed and Majority and Dissenting =
Opinions=20
filed October 16, 2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-06-01084-CV
____________
INLINER=20
AMERICAS, INC. N/K/A FIRSTLINER AMERICAS, INC., INLINER USA, INC., =
N/K/A=20
FIRSTLINER USA, INC., AND CAT CONTRACTING, =
INC., =
Appellants
V.
MACOMB=20
FUNDING GROUP, L.L.C., =
Appellee
On Appeal from the =
127th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2003-14181
M A J O R=20
I T Y O P I N I O N
This is an=20
agreed interlocutory appeal of a summary judgment in a declaratory =
judgment action. Appellants contend the trial court erred in =
declaring that appellants validly assigned their legal malpractice =
claims=20
to appellee. Specifically, appellants assert that the =
judgment=20
contradicts established precedent and public policy. We =
conclude the=20
appeal is untimely, and dismiss this case for lack of =
jurisdiction.=20
I. =20
Factual and Procedural Background
In 1997,=20
appellee MaComb Funding Group, L.L.C. (AMaComb@) loaned=20
$1.5 million to appellants Inliner Americas, Inc. n/k/a Firstliner =
Americas, Inc., Inliner USA, Inc. n/k/a Firstliner USA, Inc., and =
CAT=20
Contracting, Inc. (collectively, the ADebtors@). =20
This debt was supported by a promissory note. The Debtors =
defaulted=20
on the loan, and Macomb filed suit. The parties entered into =
an=20
Agreed Interlocutory Judgment in January 2000 in which the Debtors =
Aacknowledged=20
joint and several liability and liability for all sums due and =
owing under=20
the Note and all costs, attorneys=3D =
fees,=20
interest, and expenses pertaining thereto . . . .@
In June 2000, MaComb =
and the=20
Debtors executed a APossession, =
Management, and=20
Assignment Agreement@ (AAssignment=20
Agreement@) settling the =
January 2000=20
judgment. Under the Assignment Agreement, the Debtors =
assigned their=20
assets to MaComb, but agreed to manage the assets for one =
year. The=20
Debtors agreement to manage the assets continued unless MaComb =
terminated=20
that portion of the Assignment Agreement.
On March=20
18, 2003, the Debtors sued their attorneys for legal malpractice=20
concerning a federal patent lawsuit. The Debtors =
subsequently added=20
MaComb as a defendant and sought a declaratory judgment that =
MaComb did=20
not acquire their legal malpractice claims as part of the =
Assignment=20
Agreement. MaComb asserted a counterclaim asking the court =
to=20
declare that the legal malpractice claims and any resulting =
proceeds were=20
transferred by the Assignment Agreement.
Macomb and=20
the Debtors filed cross-motions for summary judgment, and on =
May 17, =
2006, the=20
trial court granted summary judgment in MaComb=3Ds=20
favor. Pursuant to a stipulation between the parties, the =
trial=20
court awarded MaComb reasonable and necessary =
attorneys=3D =
fees in=20
the amount of $40,372.30 on September 22, =
2006. =20
On October 25, 2006, =
the=20
parties filed an agreed motion for a written order permitting an =
appeal of=20
these interlocutory orders, and on November 27, 2006, the trial =
court=20
granted the motion and entered an order permitting this agreed=20
interlocutory appeal. Appellants filed their notice of =
appeal on=20
December 1, 2006.
On February 1, 2007, =
we issued=20
an order informing the parties that we would dismiss the appeal =
unless a=20
response demonstrating grounds for jurisdiction was filed by =
February 15,=20
2007. The parties timely responded, and we include their =
arguments=20
among the issues presented on appeal.
II. =20
Issues Presented
The Debtors present =
five issues=20
for review. In response to queries from the court, the=20
Debtors=3D first two issues =
address=20
whether we have jurisdiction to consider this interlocutory appeal =
and=20
whether, in an agreed interlocutory appeal, the=20
deadline to file a notice of appeal is determined by the date of =
the=20
challenged order or the date on which the trial court entered an =
order=20
permitting the agreed interlocutory appeal. See Tex. Civ. Prac. & Rem. =
Code=20
Ann. ' =
51.014(d)=20
(Vernon Supp. 2006). In their next three issues, the Debtors =
challenge the judgment against them and in MaComb=3Ds favor,=20
and argue that the documents on which MaComb relies to prove the=20
assignment do not comply with governing law and that assignment of =
their=20
legal malpractice claim is void or unenforceable. Because =
the=20
jurisdictional issues are dispositive, we do not reach the merits =
of the=20
appeal.
III. =20
Appellate Jurisdiction
A. =20
Absence of Jurisdiction
All=20
parties contend that this court has jurisdiction to consider this=20
appeal. Because we conclude =
the appeal=20
is untimely, we hold this Court lacks jurisdiction to consider the =
merits=20
of the appeal. See Tex. R. App. P.=20
42.3(a). =20
This=20
appeal is brought pursuant to section 51.014(d) of the Civil =
Practice and=20
Remedies Code, which provides:
A district court, =
county=20
court at law, or county court may issue a written order for =
interlocutory=20
appeal in a civil action not otherwise appealable under this =
section=20
if:
(1) =20
the parties agree that the order involves a controlling question =
of law as=20
to which there is a substantial ground for difference of=20
opinion;
(2) =20
an immediate appeal from the order may materially advance the =
ultimate=20
termination of the litigation; and
(3) =20
the parties agree to the order.
Tex.=20
Civ. Prac. & Rem. Code Ann. =
' =
51.014(d). Section 51.014 previously included another =
subsection=20
that effectively limited the time available for the parties to =
obtain a=20
written order for interlocutory appeal. Subsection (f) =
provided as=20
follows: AIf=20
application is made to the court of appeals that has appellate=20
jurisdiction over the action not later than the 10th day after the =
date an=20
interlocutory order under Subsection (d) is entered, the appellate =
court=20
may permit an appeal to be taken from that order.@ =20
Although=20
subsection (d) does not expressly limit the time for the trial =
court to=20
issue a written order permitting an interlocutory appeal, =
subsection (f)=20
required the appeal to be filed within ten days of the=20
interlocutory orderCi.e., the=20
order being appealed. The application of this section =
produced=20
contradictory results. Compare Stolte v. County of =
Guadalupe, 139 S.W.3d 406, 409B10 (Tex.=20
App.CSan=20
Antonio 2004, no pet.) (implying a motion for extension of time =
and=20
holding that a permissive interlocutory appeal was timely although =
it was=20
filed nineteen days after the trial court=3Ds order=20
allowing the appeal) with In re D.B., 80 S.W.3d 698, =
701B02 (Tex.=20
App.CDallas=20
2002, no pet.) (dismissing appeal filed twelve days after =
interlocutory=20
order and holding that, unlike other interlocutory appeals, the =
ten-day=20
deadline cannot be extended by fifteen days on proper =
motion). =20
See also Diamond Prods. Int=3Dl, Inc. v.=20
Handsel, 142=20
S.W.3d 491, 495B96 (Tex.=20
App.CHouston=20
[14th Dist.] 2004, no pet.) (Frost, J., concurring) (discussing =
procedural=20
uncertainties associated with a permissive interlocutory appeal); =
Bill Analysis, S. =
79-C.S.H.B.=20
1294, 1st Sess. (2005) (ATexas=20
courts of appeals have shown confusion about the procedure for =
taking a=20
permissive appeal under Section 51.014.@).=20
The repeal=20
of subsection 51.014(f) changed the permissive nature of the =
appeal and=20
removed the separate deadline for instituting a permissive =
interlocutory=20
appeal, leaving only subsection 51.014(d) to govern agreed =
interlocutory=20
appeals. In the absence of a separate deadline, these =
appeals are=20
subject to the twenty-day deadline governing accelerated appeals=20
generally. See Tex.=20
R. App. P. 28.1 (AAn appeal=20
from an interlocutory order, when allowed, will be accelerated.=20
Filing a motion for new trial will not extend the time to =
perfect=20
the appeal.@); Tex. R. App. P. 26.1(b) =
(A[I]n an=20
accelerated appeal, the notice of appeal must be filed within 20 =
days=20
after the judgment or order is=20
signed . . . .@).
Here, the=20
order granting summary judgment was signed on May 17, 2006 and =
entered on=20
May 18, 2006. An additional order signed on September 22, =
2006=20
awarded attorneys=3D =
fees to=20
MaComb. The parties filed an agreed motion for written order =
of=20
interlocutory appeal on October 25, 2006, and the trial court =
signed the=20
order on November 27, 2006. Appellants filed a notice of =
appeal on=20
December 1, 2006. The parties contend this court has=20
jurisdiction to consider the appeal because litigants must take an =
agreed=20
interlocutory appeal within twenty days of the written order =
permitting=20
the appeal, rather than within twenty days from the interlocutory =
order=20
that is the subject of the appeal. We disagree. A =
trial=20
court=3Ds written=20
order permitting an interlocutory appeal is not itself an =
interlocutory=20
order, and the parties have cited no authority enlarging the time =
to file=20
an agreed interlocutory appeal beyond the time limits provided for =
other=20
accelerated appeals.
Moreover,=20
under the interpretation urged by the parties, litigants could =
extend the=20
time available to Astart the=20
appellate clock@ =
by=20
postponing the filing of a motion for an order permitting the=20
appeal. This interpretation is inconsistent with the =
accelerated=20
nature of the appeal and with the plain language of the Rules of =
Appellate=20
Procedure that set forth appellate deadlines. It is also=20
inconsistent with the intent of the legislature as expressed in =
the words=20
of the statute: significantly, the legislature permits an agreed=20
interlocutory appeal if Aan=20
immediate appeal from the order may materially advance the =
ultimate=20
termination of the =
litigation . . . .@ =20
Tex. Civ. Prac. & =
Rem. Code=20
Ann. ' 51.014(d)(2)=20
(emphasis added). This appeal was not Aimmediate.@ As=20
succinctly stated by the Texas Supreme Court, A[I]n an=20
accelerated appeal, absent a rule 26.3 motion [to extend the time =
to file=20
the notice of appeal], the deadline for filing a notice of appeal =
is=20
strictly set at twenty days after the judgment is signed, =
with no=20
exceptions . . . .@ =20
In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005) (emphasis =
added),=20
cert. denied, 546 U.S. 961, 126 S. Ct. 483, 163 L. Ed. 2d =
364=20
(2005). Thus, we conclude this appeal is untimely. =
See=20
Tex. R. App. P. =
26.1(b).=20
B. =20
Request for Abatement
The=20
Debtors ask that, if we conclude we lack jurisdiction over this =
appeal, we=20
abate the appeal to allow a reasonable time for the Debtors to =
obtain a=20
ruling from the trial court severing the declaratory judgment on =
the=20
assignment of the legal malpractice claim and the trial =
court=3Ds award of=20
attorneys=3D =
fees from=20
the remaining issues. We do not agree that abatement is an=20
appropriate remedy. First, an appeal following severance =
would be an=20
appeal of a final order, and unlike the appeal presented, would no =
longer=20
be an accelerated interlocutory appeal entitled to precedence over =
other=20
similar cases. See Tex. R. App. P. =
40.1(b). =20
Moreover, the Debtors=3D =
lengthy=20
delay in seeking an order for interlocutory appeal is not a mere =
formal=20
defect or an irregularity in appellate procedure. Cf. =
Tex. R. App. P. 44.3 =
(allowing=20
parties a reasonable time to correct or amend such defects or=20
irregularities). It also is not an error attributable to the =
trial=20
court. Cf. Tex. R.=20
App. P. 44.4. Finally, having failed to bring an =
agreed=20
interlocutory appeal in a timely fashion, the parties nevertheless =
are=20
free to pursue a severance order and appeal the judgment as a =
final=20
order.
IV. =20
CONCLUSION
Because this appeal =
is=20
untimely, we conclude we lack jurisdiction. See Tex. R. App. P. =
42.3(a). We=20
therefore dismiss the appeal without reaching the merits of=20
appellants=3D arguments concerning =
the=20
interlocutory orders at issue.
/s/ =20
Eva M. Guzman
Justice
Judgment=20
rendered and Majority and Dissenting Opinions filed October 16,=20
2007.
Panel=20
consists of Chief Justice Hedges, Justice Guzman, and Senior =
Justice=20
Hudson. (Chief =
Hedges, J.,=20
dissenting)
Act of May 17, 2001, 77th Leg., =
R.S., ch.=20
1389, ' 1(f), 2001 Tex. Gen. Laws 3575, =
3575,=20
repealed by Act of May 25, 2005, 79th Leg., R.S., ch. 1051, =
' 2, 2005 Tex. Gen. Laws 3512, 3513, =
eff. June=20
18, 2005.
This timeline also accords with =
the=20
analogous federal appellate rule. See Fed. R. App. P. 5(a)(2) =
(stating=20
that, unless otherwise specified by statute or rule, a petition =
for=20
permissive appeal must be filed Awithin the time provided by Rule 4(a) =
for filing a=20
notice of appeal@); Fed. R.=20
App. P. 4(a) (stating that, with certain exceptions, a =
notice of=20
appeal Amust be filed with the district clerk =
within 30=20
days after the judgment or order appealed from is=20
entered@) (emphasis added).
Our analysis is unaffected by =
cases that=20
address the circumstances under which an order disposes of =
Aall parties or issues in a particular =
phase of the=20
proceedings.@ De Ayalya v. Mackie, 193 =
S.W.3d 575,=20
579 (Tex. 2006) (holding that an order in an ancillary probate =
proceeding=20
denying a plea to the jurisdiction and refusing to remove an =
executor is=20
interlocutory).
Senior Justice J. Harvey Hudson =
sitting by=20
=
assignment. |