If you’ve got a pending interlocutory appeal from a temporary injunction, or if you are considering filing such an appeal, you will want to pay attention to this.

The Dallas Court of Appeals has held that interlocutory appeals of temporary injunctions should be dismissed because they seek advisory opinions.  In Dallas/Fort Worth International Airport Board v. Association of Taxicab Operators, USA, the Association of Taxicab Operators sought temporary and permanent injunctive relief against the Airport Board’s new airport policy favoring taxicabs with dedicated CNG-powered engines.  After the trial court granted a temporary injunction, the Airport Board appealed.  Notably, at the oral argument, the court of appeals panel asked about the status of the trial on the permanent injunction and the parties advised the court that they had agreed to continue the case because of the pendency of the appeal of the temporary injunction.

In reliance on prior authority (decided in 1993), the court of appeals holds that "[a] party may not use an appeal of a temporary injunction ruling to get an advance ruling on the merits."  Because there was no trial on the merits of the permanent injunction with a final judgment, the court of appeals holds that appeal seeks an improper advance ruling on the merits.

Separately, the Court cites Civil Procedure Rule 683’s requirement that the appeal of a temporary injunction "shall constitute no cause for delay of the trial" and reiterates its prior disapprovals of such tactics.  The court reasons that "[j]udicial economy dictates that we not reward such efforts" and dismisses the appeal.  The court’s opinion may be found here.

So, I’ve got three questions after reading this opinion (at least two).  First, how is it that an appeal of an interlocutory injunction seeks an advisory opinion, but the initial request in the district court does not?  The concept of an advisory opinion is not unique to courts of appeals.  See, e.g., Coulson v. City Council of Victoria, 610 S.W.2d 744, 747 (Tex. 1980) ("District courts, under our Constitution, do not give advice nor decide cases upon speculative, hypothetical, or contingent situations.").  Second, if neither party raises a complaint of a violation of Rule 683, can the court of appeals sua sponte raise such a violation as a basis for dismissal of the appeal without running afoul of the rule against raising issues that neither party raised?  Third, does this opinion effectively cut off a party’s right to an interlocutory appeal of a temporary injunction?