Dismissed and Majority and Dissenting Opinions filed October 16, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-01084-CV
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INLINER AMERICAS, INC. N/K/A FIRSTLINER AMERICAS, INC., INLINER USA, INC., N/K/A FIRSTLINER USA, INC., AND CAT CONTRACTING, INC., Appellants
V.
MACOMB FUNDING GROUP, L.L.C., Appellee
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2003-14181
D I S S E N T I N G O P I N I O N
I respectfully dissent from the majority=s conclusion that appellants were obligated to file a notice of appeal from an interlocutory order before the order became appealable.
On May 17, 2006, the trial court signed an interlocutory order in a declaratory judgment action. On October 25, 2006, the parties filed an agreed motion requesting permission from the trial court to appeal the interlocutory order. On November 27, 2006, the trial court granted the motion and entered an order permitting the interlocutory appeal. Appellants filed notice of appeal on December 1, 2006. The majority concludes that appellants= notice of appeal was due twenty days after the May 17, 2006, order was signed. I disagree.
The rule at issue is deceptively simple: the notice of appeal in a permissive interlocutory appeal must be filed within twenty days after the judgment or order is signed. See Tex. R. App. P. 26.1. The difficulty arises in parsing that to which judgment or order signed refers. The majority concludes that the appellate timetable runs from the date the interlocutory order itself is signed. Based on my interpretation of judgment or order signed, as the signed written permission of the trial court to pursue the permissive interlocutory appeal, I part ways with the majority.
Appeals can be taken only from final judgments and appealable interlocutory orders. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Tex. Civ. Prac. & Rem. Code Ann. ' 51.014 (Vernon Supp. 2006). In this case, the partial summary judgment was not appealable until the trial court granted permission to appeal. See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(d) (AA district court, county court at law, or county court may issue a written order for interlocutory appeal in a civil action not otherwise appealable . . . .@). Therefore, the appellate timetable could not begin to run from the signing of an order not yet appealable.
The majority holds that this interpretation is Ainconsistent with the accelerated nature of the appeal and with the plain language of the Rules of Appellate Procedure that set forth appellate deadlines.@ However, the plain language of the Rule 26.1 requires that a notice of appeal be filed within twenty days after the judgment or order is signed. That language has consistently been applied to final judgments or other appealable orders. In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005).
I believe it instructive to analogize the appeal of a permissive interlocutory order to the context of a partial summary judgment. The partial summary judgment, as an interlocutory order, can be appealed only if it is made final by a severance order. In such a case, the appellate timetable begins from the date of the severance order. Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 313 (Tex. 1994). Conversely, the appellate timetable does not begin to run from the date of the interlocutory order because the order was not appealable at the time it was entered. The same reasoning applies here. At the time the partial summary judgment was signed, it was interlocutory; therefore, it was not appealable. The parties chose to seek a permissive appeal rather than sever the partial summary judgment from the remaining action. To interpret Rule 26.1 to require a different appellate timetable because the parties chose a different route to the appellate court would be inconsistent not only with prior interpretations of the rule, but with the design of the appellate rules in general. The appellate rules are designed to resolve appeals on the merits, and we must interpret and apply them whenever possible to achieve that aim. Michiana Easy Livin= Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005). I would hold that the appellate timetable in a permissive appeal under section 51.014(d) begins to run on the date the trial court signs an order granting permission to appeal. Because the majority does not do so, I respectfully dissent.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Majority and Dissenting Opinions filed October 16, 2007.
Panel consists of Chief Justice Hedges and Justices Hudson* and Guzman. (Guzman, J. majority).
* Senior Justice Hudson sitting by assignment.