September 23, 2015 Opinions.
by Robert Clore
Clore Appeals & Litigation Support [email protected]
The Fourth Court of Appeals handed down one significant civil opinion this week, which is discussed below. The relative lack of material presents an opportunity to discuss statistical data from the court for the fiscal year 2014, ending August 31, 2014.
Although it may seem like it takes a long time to receive an opinion, the Fourth Court of Appeals is a model of efficiency among the fourteen intermediate appellate courts. The Court had the highest number of cases filed per justice at 126, partly due to the fact that it has only seven justices (Dallas has thirteen and both Houston courts have nine). Further, Bexar County accounted for the third most appeals in the state (7.5%) behind only Harris County (18.6%) and Dallas County (14.2%).
Yet, the average time between filing of a civil appeal and disposition was 6.3 months, second best only to Texarkana (4.5 months) among the courts of appeals. Similarly, the average time between submission of the case (meaning all briefs have been filed and oral argument has been heard), and disposition was 1.2 months, also second best among the courts of appeals, with Waco finishing first (0.4 months).
Overall, the court added 523 civil cases and disposed 609, with a clearance rate of 102.5%. The court issued a total of 1,722 opinions, including criminal and civil cases. It published 56.5% of its opinions (973).
A relatively scant percentage, 7.1%, of petitions for review granted by the Texas Supreme Court originated in the Fourth Court. This puts the court tenth out of the fourteen courts.
Considering the dollars at stake, I am always surprised attorneys do not take greater efforts to accumulate statistical data on courts and judges to evaluate cases. Presumably, this type of data mining could yield positive results. If you are interested in viewing more statistics from Texas courts, the Office of Court Administration's annual statistical report can be accessed at:
http://www.txcourts.gov/judicial-data.aspx
Now on to the opinion of the week…
1. Interlocutory Appeal from the Granting of a Motion to Dismiss in a Health Care Liability Claim and Permissive Appeals.
Harper v. Texas Tech Health Science Cntr., No. 04-15-00489-CV (Tex. App.—San Antonio, Sept. 23, 2015, no pet. h.) (mem. op.).
Author: Per Curiam.
Panel: Marion, C.J., Angelini, J., Barnard, J.
Originating Court: 251st District Court, Potter County.
Trial Judge: Estevez, J.
This opinion serves as a reminder to make sure a judgment disposes of all parties and claims before attempting to appeal, assuming interlocutory appeal is not available. It also instructs that a verbal recitation that an appeal will be allowed is not sufficient for a permissive appeal under section 51.014(d) of the Texas Civil Practice and Remedies Code.
The 4th Court of Appeals dismissed this attempted interlocutory appeal of an order granting a motion to dismiss under section 74.351(b) of the Texas Civil Practice and Remedies Code for lack of jurisdiction. The trial court granted the motion after the plaintiff failed to timely serve an expert report as required in health care liability claims.
The order granting the motion was not a final judgment because it did not dispose of all parties, and the trial court did not enter a severance order. Although a party may appeal an interlocutory order denying a motion to dismiss filed pursuant to section 74.351(b), no interlocutory appeal is permitted from an order granting such a motion.
The plaintiff/appellant maintained that the court of appeals could hear the case under section 51.014(d) of the Texas Civil Practice and Remedies Code, which allows for permissive appeals by written order. The trial court, however, failed to issue any written order authorizing an appeal, but simply stated during the hearing that the parties would have the right to appeal. The court of appeals observed that, “[a]lthough the trial court’s statement generally acknowledges appellant will have a right to appeal its ruling, the statement does not constitute an order signed by the trial court authorizing an interlocutory appeal pursuant to section 51.014(d).” The court thus dismissed the appeal without prejudice.
OPINION