Appellate Law

Interlocutory Appeal After Final Judgment?

By D. Todd Smith

Although appeal is generally not available absent a final judgment, Texas law allows parties to bring accelerated interlocutory appeals in several circumstances.  In most cases, the trial is stayed by statute until the interlocutory appeal is resolved,  But sometimes the trial court renders a final judgment before then.

What does one do in that situation?  File an amended notice of appeal?

No, says Isuani v. Manske-Sheffield Radiology Group, 802 S.W.2d 235 (Tex. 1991) (per curiam).  Under this decision, the interlocutory appeal has become moot and must be dismissed to prevent premature review of the merits.

Filing an amended notice of appeal wouldn't work because it wouldn't "correct[] a defect or omission in an earlier filed notice . . . ."  TRAP 25.1(f); see Rainbow Group, Ltd. v. Wagoner, 219 S.W.3d 485, 492-93 (Tex. App.—Austin 2007, no pet.). If the losing party wants to appeal the final judgment, it must file a new notice of appeal complying with TRAP 25.1.

Full post as published by Texas Appellate Law Blog on February 05, 2009 (boomark / email).