Patrick Lee Mullins v. Hector Ortiz, Darrel Sutton, Robert Jenkins, Steven Rich, John Porter, and T. Roddey ( 2009 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00225-CV

Patrick Lee Mullins,

                                                                                    Appellant

 v.

Hector Ortiz, Darrel Sutton,

Robert Jenkins, Steven Rich,

John Porter, and T. Roddey,

                                                                                    Appellees

From the County Court at Law

Walker County, Texas

Trial Court No. 8898CV

DISSENT TO ABATEMENT ORDER

When the question of the finality of an order or judgment from which an appeal is attempted is before us, there are essentially three alternatives.  Those three alternatives are:  1) the judgment or order is final; 2) the judgment or order is not final; and 3) we are uncertain or unable to determine, based on the information before us, whether the judgment or order is final.

If the third situation presents itself, it is clear that we can inquire and make the findings necessary to determine whether the judgment or order is final.  American Home Prods. Corp. v. Clark, 3 S.W.3d 57 (Tex. App.—Waco 1999, order).  In American Home Products, the proceeding was abated to the trial court for clarification of its order where the Court was unable to tell if the trial court’s ruling was a venue ruling, over which we had no jurisdiction of an interlocutory order, or the improper joinder of third parties, over which we had jurisdiction of the interlocutory order.  Id.  After clarification, the judgment or order will necessarily fall into one of the other two categories. 

If the judgment or order is final, and the other requirements for an appeal are met, we have jurisdiction to review it.

If, however, the judgment or order is not final, including that it is determined under the third alternative to not be final, or is not an interlocutory order over which we have jurisdiction, there is only one thing to do—dismiss the attempted appeal.  “The very balance of state governmental power imposed by the framers of the Texas Constitution depends on each branch, and particularly the judiciary, operating within its jurisdictional bounds.  The power of government emanates from the people's delegation of power to government.  [Emphasis in original opinion].  The checks and balances inherent in our form of government depend upon the judiciary's equanimity and particularly upon our self-restraint.  When a court lacks jurisdiction, its only legitimate choice is to dismiss.”  State v. Morales, 869 S.W.2d 941, 949 (Tex. 1994) (emphasis added).  See also Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996) (“Jurisdiction of a court must be legally invoked, and when not legally invoked, the power of the court to act is as absent as if it did not exist.”).

In this proceeding, we are unanimous in our determination that the order from which the appeal is attempted is not a final order or judgment.  Thus, I am confused as to the source of the Court’s authority to issue an abatement order to allow the trial court to possibly take some action that will create a final judgment from which an appeal can then be taken.  We have no jurisdiction to render an abatement order.  Id.  We have no jurisdiction to order the trial court to take some action to create a final judgment which, if not taken, will require that the attempted appeal be dismissed. 

The majority, however, abates the appeal purportedly because they can tell that, although the trial court did not render a final judgment, the trial court intended to render a final judgment.  The authorities cited for the majority to take this action are a couple of cases from this Court which cite and rely upon the Texas Supreme Court case of Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001), specifically at page 205.  On page 205 of Lehmann, there is a discussion about the trial court’s intent.  But it is inapplicable to the situations for which this Court has used it.

In Lehmann, the Texas Supreme Court stated as follows.

An order must be read in light of the importance of preserving a party's right to appeal.  If the appellate court is uncertain about the intent of the order, it can abate the appeal to permit clarification by the trial court.  But if the language of the order is clear and unequivocal, it must be given effect despite any other indications that one or more parties did not intend for the judgment to be final.  An express adjudication of all parties and claims in a case is not interlocutory merely because the record does not afford a legal basis for the adjudication.  In those circumstances, the order must be appealed and reversed.

Id. at 206 (emphasis added) (footnote omitted).

            In this appeal, none of the justices are uncertain about the intent of the order.  We all agree that the trial court’s intent was to sign an order that was final and be done with the trial court proceeding.  We all also agree that the trial court failed to accomplish that intent.  The disagreement is over whether we can render an abatement order to allow the trial court to make final what we all agree is not final.  A majority thinks we can.  I disagree.  We do not need clarification of the order to see if we have jurisdiction.  What we need to have is a final judgment over which we have jurisdiction.  In accordance with the Texas Supreme Court’s holding in State v. Morales, I would do all that we can do when we have determined that the order is not a final appealable order—dismiss the appeal.  See e.g., Kirk v. Lucas, No. 02-04-00295-CV, 2004 Tex. App. LEXIS 10149 (Tex. App.­—Fort Worth Nov. 12, 2004, no pet.) (mem. op.) (appeal dismissed because order declaring appellant a vexatious litigant not appealable); see also Phillips v. Phillips, No. 01-03-00676-CV, 2004 Tex. App. LEXIS 11300 (Tex. App.—Houston [1st Dist.] Dec. 16, 2004, no pet.) (mem. op.) (same).

            By dismissing the appeal because there is not a final appealable order or judgment, we have given effect to our determinations that the trial court’s order is not uncertain and it is not final.  This proceeding is unlike the judgment discussed in In re Robertson. In re Robertson, No. 10-09-00005-CV, 2009 Tex. App. LEXIS 2641 (Tex. App.—Waco April 15, 2009, orig. proceeding) (mem. op.).  In that proceeding, we were asked by a petition for writ of mandamus to compel the trial court to enforce our judgment from the prior direct appeal.  See Hix v. Robertson, 211 S.W.3d 423 (Tex. App.—Waco 2006, pet. denied).  The real-party-in-interest responded that the prior trial court judgment was not final and, therefore, the judgment from the prior appeal was unenforceable because it was void, having been rendered by this Court when we had no jurisdiction because we did not have a final judgment to review.  We unanimously disagreed holding that the judgment was final, erroneously final, but nevertheless final, for purposes of appeal.  Because the erroneously final character of the judgment was not the subject of any alleged error, having jurisdiction of the appeal, we proceeded to decide the issues presented, render a judgment, and ultimately our mandate issued.  In the subsequent mandamus proceeding, because the prior judgment had not been properly attacked and overturned at that time, we held the trial court had no authority to refuse to enforce the mandate.

            In this proceeding, however, notwithstanding that we all agree the trial court intended to render a final judgment, he did not do so.  This is not a situation where we have a judgment that is final, erroneously final, but nevertheless final.  Rather, it is clearly a case in which the order the trial court signed, thinking it was final, is not final--not even erroneously final.  The distinction is subtle, but real.  The distinction is why, in this proceeding, unlike what we did in In re Robertson, the most we can do is send a letter inquiring about our jurisdiction.   See Tex. R. App. P. 42.3 (a).  But we certainly cannot decide on our own motion that we have no jurisdiction, as the majority has done, and then order the proceeding abated so the trial court can take some further action not simply to clarify action already taken but to take action that will give us jurisdiction in the future.

            To reach its conclusion, the majority must overrule recent precedent from this Court.  I am reluctant to overrule precedent of this Court without a full discussion of the relevant factors. Established precedent should not be lightly overruled.  See Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex. 1995).  When overruling precedent we should explain the basis of our decision.

Under the doctrine of stare decisis, it is often "better to be consistent than right."  This doctrine "promotes judicial efficiency and consistency, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process."  However, overruling precedent is acceptable under certain circumstances.  Some factors that support overruling precedent are: (1) when the original rule is flawed from the outset, (2) when older precedent conflicts with a newer decision that is found to be more soundly reasoned, and (3) when the rule consistently creates unjust results or places unnecessary burdens upon the system.   

Bawcom v. State, 78 S.W.3d 360, 363 (Tex. Crim. App. 2002) (footnotes omitted).

Thus, if I was going to overrule McCray v. Allee, 10-07-00013-CV, 2008 Tex. App. LEXIS 5752 (Tex. App.—Waco July 30, 2008, no pet.) (mem. op.), I would articulate the underlying reasons for doing so.  And if I were going to overrule it, I would, nevertheless, apply it to this proceeding and apply the holding overruling it prospectively only.  In this manner, we would not create uncertainty for the finality of other judgments already rendered which, under prior precedent were final, but which are not final when tested against the majority’s  new holding.

For the foregoing reasons, I respectfully dissent from the abatement order.[1]

                                                            TOM GRAY

                                                            Chief Justice

Dissent to abatement order issued and filed April 29, 2009

---

[1]  Another problem in the abatement order is the overly broad statement that “[i]n every other instance of which we are aware the appellate timetables run from the date the trial court signs a written judgment or other appealable order.”  Maj. op. at 2. With regard to appeals in most criminal proceedings, the appellate timetables run from the date the sentence is imposed or suspended in open court.  Tex. R. App. P. 26.2(a).

ances, on any party’s motion—or on its own initiative after giving ten days’ notice to all parties—the appellate court may dismiss the appeal or affirm the appealed judgment or order.  Dismissal or affirmance may occur if the appeal is subject to dismissal:

          (a) for want of jurisdiction;

          (b) for want of prosecution; or

          (c) because the appellant has failed to comply with a requirement of these rules, a court order, or a notice from the clerk requiring a response or other action within a specified time.

          If we had notified the Libbys that the appeal was going to be dismissed for failing to file a brief on June 7, 2006, then we could dismiss it for that failure.  But while we notified the Libbys that the brief was overdue, we notified the Libbys that the appeal would be dismissed only for the failure to explain why no brief had been filed.

          Now comes the ironic twist in the notice and rules.  We only gave them notice that dismissal would follow if the explanation was not forthcoming within 14 days.  The explanation is now past due.  We have not notified the Libbys that the explanation is past due and that we intend to dismiss the appeal if this is not corrected.

          By failing to give the Libbys a reasonable opportunity to cure a defect or irregularity in appellate procedure, failing to file the explanation for why no brief was filed, we have failed to comply with Rule 44.3.  Tex. R. App. P. 43.3.  This rule provides:

44.3.   Defects in Procedure

   A court of appeals must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities.

Id.

          This entire problem between the result the majority wants to accomplish and what I believe is necessary to comply with the rules and minimum due process could have been cured long before now if the majority would have allowed the proper notice to be sent.  Alternatively, if the original notice had specifically informed the Libbys that because the brief had not been filed the appeal would be dismissed unless the brief and the explanation were received within 14 days, the appeal could be properly dismissed because the brief has still not been filed.  Further, if the notice had simply provided, as many of our notices do, that “The failure to timely file a response to this letter (or notice) constitutes an independent ground for dismissal of this appeal.  Tex. R. App. P. 42.3(c).” then we could properly dismiss this appeal without further notice.

          However, because we have not advised the Libbys of the specific defect and given them the opportunity to cure the defect specified, we should not, at this juncture, dismiss this appeal.  The majority dismisses the appeal.  I respectfully dissent.

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed August 9, 2006

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