Waiver of appellate review by failure to bring interlocutory appeal
Does a party waive its right of appellate complaint by failing to bring an interlocutory appeal when a right of interlocutory appeal exists? At least one court of appeals has answered that question in the affirmative and one court has answered that question in the negative. It now appears that the Dallas Court of Appeals may have implicitly held that an interlocutory appeal is required.
In 2007, in Matis v. Golden, 228 S.W.3d 301, 305 (Tex. App.--Waco 2007, no pet) , the Waco Court of Appeals considered an appeal challenging the denial of a special appearance. Although there is a statutory right of interlocutory appeal under Texas Civil Practice and Remedies Code Section 51.014(a), the appellant did not bring an interlocutory appeal, instead waiting until the conclusion of the whole case. Waco considered whether the complaint was waived by virtue of the failure to bring an interlocutory appeal and concluded that there was waiver. The majority's opinion may be found at this link. Chief Justice Tom Gray's dissent may be found at this link.
The Austin Court of Appeals expressly rejected Waco's approach in GJP, Inc. v. Ghosh, 251 S.W.3d 854, 866-67 (Tex. App.--Austin 2008, no pet.). The court's opinion may be found at this link.
The Dallas Court of Appeals may have joined Waco's view. In TCI West End, Inc. v. City of Dallas, TCI brought an interlocutory appeal challenging the trial court's orders granting pleas to the jurisdiction filed by the City of Dallas and the Texas Historical Commission. As to the Texas Historical Commission, the trial court had granted pleas to the jurisdiction with respect to 3 of TCI's claims. In its interlocutory appeal, apparently TCI challenged the trial court's order with respect to 2 of the claims it asserted against the City, but TCI did not challenge the dismissal of its claim against the City under the Texas Private Real Property Rights Preservation Act. With respect to this latter unchallenged ruling, the court affirmed the dismissal, effectively precluding TCI from challenging the dismissal of that claim at the conclusion of the case. In support of its affirmance, the Court cites as an example Freeman v. Stephens Prod. Co., 171 S.W.3d 651, 657 (Tex. App.--Corpus Christi 2005, pet denied). However, Freeman is not an interlocutory appeal.
Assuming the Dallas Court of Appeals intended to find waiver of a challenge to the ruling on the Texas Private Real Property Rights Preservation Act claim, one might distinguish TCI on the basis that it involves a circumstance in which the appellant actually invoked its interlocutory appellate rights, and having done so, the appellant might be expected to challenge all rulings over which the appellate court would then have jurisdiction. The TCI opinion may be found at this link.
