The “General Rule” of Interlocutory Appeals

Will Haacker General Litigation

The term “general rule” can be, and often is, used to describe nearly every legal concept as an explanatory aid to designate the inception point or overarching principal of the law. However, in some scenarios, as the law develops the number of exceptions surrounding the “general rule” can become overwhelmed by the exceptions, reducing the use of the term “general rule” to a misnomer. While seemingly innocent, the rhetorical use of the ‘general rules’ past the point of its true meaning can have a lasting impression, as evidenced by the recent decision of the Supreme Court of Texas in Dallas Symphony Ass'n, Inc. v. Reyes interpreting an interlocutory appeals statute.1

Interlocutory appeals in Texas were long regarded as a novelty that rarely occurred. As a ‘general rule,’ it has been considered that “Texas appellate courts have jurisdiction only over final orders or judgments.”2 Before 1979, interlocutory appeals were only allowed from orders concerning the appointment of trustees or temporary injunctions. Since that time, legislation has provided for interlocutory appeals in thirteen specific procedural scenarios3, as well as a discretionary avenue when there is a controlling question of law recognized by both the trial court and court of appeals. 4

In Reyes, the court acknowledged this expansion of interlocutory appeals has grown to the point that “[l]imiting appeals to final judgments can no longer be said to be the general rule.”5 In that case, the Reyes court examined one of the thirteen procedural avenues, § 51.014(a)(6), which permits an appeal from a court that:

denies a motion for summary judgment . . . based in whole or in part upon a claim against or defense by a member of the . . . media . . . or a person [quoted] by the . . . media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73.6

Specifically, the issue concerned whether an interlocutory appeal under this statute would be limited to the constitutional claim(s) or defense(s) or encompass all claims asserted in the order denying summary judgment.7 Focusing on the principals of legislative intent, and particularly the plain language of the phrase “in whole or in part,” the court held that § 51.014(a)(6) allows for the appeal of the entire order denying summary judgment, including the non-constitutional claims and defenses.8

While this resolved the specific interpretation at issue, the bigger picture may indicate the current reality of interlocutory appeals—that they are simply not as limited or narrow as the long cited “general rule” would imply. The Dallas Court of Appeals, for instance, appeared tethered to the idea of a narrow rule, regardless of the plain language of the statute, reasoning “[t]he supreme court has directed courts to construe the provisions of section 51.014(a) narrowly.”9 As alluded to by both the Supreme Court and dissent in the lower court, though, strict adherence to a narrow interpretation should not come at the expense of statutory interpretation principals and, thus, the absence of reviewing the actual text of the statute.10 In essence, the problem with interpreting these interlocutory appeal statutes likely was not due to ambiguity of the language, but rather the lingering and outdated premise that interlocutory appeals are limited, narrow, and rare.

1 17-0835, 2019 WL 1090771, at *3 (Tex. Mar. 8, 2019).

2 Ogletree v. Matthews, 262 S.W.3d 316, 319 n. 1 (Tex.2007).

3 Tex. Civ. Prac. & Rem. Code § 51.014(a).

4 Tex. Civ. Prac. & Rem. Code § 51.014(d)–(f).

5 Reyes, 2019 WL 1090771, at *3.

6 Tex. Civ. Prac. & Rem. Code § 51.014(a)(6).

7 Compare Vice v. Kasprzak, 318 S.W.3d 1, 10 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (holding that a properly substantiated interlocutory appeal under § 51.014(a)(6) based on a denial of summary judgment for defamation also warranted interlocutory review for claims of conspiracy and invasion of privacy) with, D Magazine Partners, L.P. v. Reyes, 565 S.W.3d 38, 54 (Tex. App.—Dallas 2017), reconsideration en banc denied (Aug. 29, 2017), review granted (Aug. 31, 2018), aff'd in part, rev'd in part sub nom. Dallas Symphony Ass'n, Inc. v. Reyes, 17-0835, 2019 WL 1090771 (Tex. Mar. 8, 2019) (holding that a properly substantiated appeal under § 51.014(a)(6) included only the defamation claims because the statute should be narrowly interpreted to for its purpose allowing “immediate appeal of claims involving free speech or press issues that are directed at the press or those the press rely upon . . . .”

8 Reyes, 2019 WL 1090771, at *3.

9 Reyes, 565 S.W.3d at 54 (citing Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007)).

10 Reyes, 2019 WL 1090771, at *3; Reyes, 565 S.W.3d at 56–60 (J. Evan, dissenting)