BEWARE: An Order that Disposes of All Claims Starts the Appellate Clock Whether the Order Says It’s Final or Not

Parker v. Wisehouse Investment Group, LLC

Dallas Court of Appeals, No. 05-24-00104-CV (June 18, 2025) 

Justices Garcia, Miskel (Opinion, linked here), and Lee

Ken Carroll

A court order meant to be a final judgment will usually say so. The order may be labeled as “Final,” include a “Mother Hubbard Clause,” or expressly state that it’s appealable. But even if an order doesn’t include such explicit indicia of finality, it still can constitute a final judgment—and the deadline to appeal will be triggered—if the order disposes of all claims and all parties. The defendants in a procedurally complicated dispute learned that the hard way when the Dallas Court of Appeals dismissed for want of jurisdiction because it held they filed their notice of appeal too late. 

The trial court granted summary judgment to the plaintiff and awarded them attorneys’ fees under the Declaratory Judgments Act. One of the plaintiffs moved to have the court award costs and post-judgment interest, but waited 44 days after the summary-judgment orders to do so. The trial court nevertheless obliged, issuing judgments that included those additional items and labeling them as “final” and “appealable.” The defendants appealed. 

The Dallas Court of Appeals dismissed for want of jurisdiction. The Court held that the original summary judgment orders constituted final judgments. It explained that “a summary-judgment order” will be deemed “final when (1) it actually disposes of every pending claim and party or (2) it clearly and unequivocally states that it finally disposes of all claims and parties, even if it does not actually do so.” The summary-judgment orders here did not contain any indicia of finality—they were not labeled as final or appealable, and they did not state that they disposed of all claims and all parties. Nevertheless, the appeals court held, the summary-judgment orders did in fact dispose of all claims, and that started the clock on the defendants’ 30-day deadline to file either their appeal or post-judgment motions that would extend the time to appeal. Unfortunately, the defendants did neither before the deadline ran. Although one of the plaintiffs had moved the court to add costs and interest—arguably a motion to modify judgment—that motion came after the deadline had already passed for post-judgment motions. The motion therefore had no effect and the purported “final judgments” that followed therefore were void and did not re-start the appellate clock. 

The defendants tried to salvage their appeal by arguing that the summary-judgment orders were not final because they did not award costs and because they did not expressly dispose of the defendants’ cursory pleas for costs and fees in the prayers that concluded their answers. But, the Court said, “a request for costs is not a claim for affirmative relief, and ‘a trial court is not required to assess costs for its judgment to be final.’” Further, the defendants did not state a cognizable basis for an award of fees and, in any event, the award of fees to the plaintiffs as prevailing parties constituted an implied rejection of defendants’ reciprocal prayers for fees. 

“There Is No Such Thing as a Public-Interest Exception to Mootness in Texas.”

Texas Dep’t of Family and Protective Services v. Grassroots Leadership, Inc.

Supreme Court of Texas, No. 23-0192  (May 30, 2025) 

Opinion by Justice Young (linked here)

Ken Carroll

Faced with deciding “whether Texas courts are constitutionally authorized to adjudicate moot cases that raise questions of considerable public importance,” the Supreme Court of Texas emphatically said, “No.” 

The Texas Department of Family and Protective Services adopted a rule that authorized state licenses for two residential facilities at which the federal government detained mothers and children after their illegal entry into the United States. Grassroots, a nonprofit civil-rights organization, and several mothers detained in the licensed facilities sued to challenge that rule under the Administrative Procedure Act, seeking to prohibit the detention of children there. The trial court granted summary judgment, declaring the rule invalid, and enjoined the department from granting licenses under it. The State appealed. 

The Texas Department of Family and Protective Services adopted a rule that authorized state licenses for two residential facilities at which the federal government detained mothers and children after their illegal entry into the United States. Grassroots, a nonprofit civil-rights organization, and several mothers detained in the licensed facilities sued to challenge that rule under the Administrative Procedure Act, seeking to prohibit the detention of children there. The trial court granted summary judgment, declaring the rule invalid, and enjoined the department from granting licenses under it. The State appealed. 

By the time that appeal neared resolution, however, the plaintiffs were no longer detained at the facilities. The court of appeals therefore concluded that the entire case was “moot by definition.” But rather than dismissing, the appeals court invoked a “so-called ‘public-interest exception’ to mootness, under which it could reach the merits despite having no live dispute [before it] involving the parties to the litigation.” The public-interest exception, the court explained, “allows appellate review of a question of considerable public importance if that question is capable of repetition between either the same parties or other members of the public but for some reason evades appellate review.” Here, “the evidence establishe[d] that the average length of detention [at the facilities] is eleven days, a period too short to complete litigation.” So, the court ruled, the exception applied. It then agreed with the trial court on the merits, finding the rule invalid. 

The Supreme Court of Texas reversed, holding that a “‘public-interest exception’ violates the Texas Constitution’s justiciability limitations.” “Mootness is a constitutional limitation on judicial authority,” the Court emphasized, and not “a matter of judicial administration or prudence.” The Court provided a lengthy analysis of the concept of constitutional justiciability, of which mootness and “the core requirement of a live dispute” (and the corollary ban on advisory judicial opinions) are one part. “[T]he only proper judgment in a moot case,” the Supreme Court said, “is one of dismissal for lack of jurisdiction”—regardless of whether the case is on appeal or still in the trial court—which the Court ruled is the disposition the court of appeals should have reached in this case. 

The Court explained that the “capable-of-repetition-yet-evading-review exception” also did not allow the court of appeals to proceed to the merits. That exception, the Supreme Court said, “applies only in rare circumstances.” Specifically, “a plaintiff must prove that ‘(1) the challenged action was too short in duration to be litigated fully before the action ceased or expired; and (2) a reasonable expectation exists that the same complaining party will be subjected to the same action again.’” The Court rejected application of that doctrine where, as here, the identical question is capable of repetition, even likely to be repeated, but involving other persons. 

Prior Cash Deposit Fulfills the Purpose of a Supersedeas Bond

Harris v. Covey

Dallas Court of Appeals, No. 05-24-01291-CV

Justices Goldstein (opinion available here), Garcia, and Clinton

Kelli Hinson

After a justice court rendered judgment against Harris in a breach-of-contract suit, Harris appealed to the county court and deposited $7,838.93 in lieu of a bond pursuant to TRCP 506.1. Under that rule, “a judgment debtor may appeal by depositing cash in lieu of an appeal bond that is ‘payable to the appellee’ and is ‘conditioned on the appellant’s prosecution of its appeal to effect and payment of any judgment and all costs rendered against it on appeal.’” Following a trial de novo, the county court also rendered judgment against Harris, awarding Covey $3,919.46 in damages, $14,000 in attorney’s fees, interest, and costs of court. Harris appealed again but did not file a supersedeas bond to suspend enforcement of the judgment.

Attempting to stave off post-judgment discovery, Harris filed a motion to stay in the appellate court. Covey objected, arguing Harris had failed to supersede the judgment. Under TRAP 24, a judgment debtor may supersede a money judgment by depositing with the trial court clerk cash in lieu of bond in an amount equal to the sum of compensatory damages and costs awarded as well as interest for the estimated duration of the appeal. Attorneys’ fee awards do not need to be superseded. 

Harris argued that, even though she had not literally superseded the judgment, “the purpose of a supersedeas bond has been fulfilled” by the cash she deposited to appeal from justice court to county court. The Dallas Court of Appeals agreed, concluding that the cash deposit rule, TRCP 506.1, and the supersedeas rule, TRAP 24, served the same purpose of ensuring the judgment creditor is paid if the appeal is resolved in the judgment creditor’s favor. It therefore granted Harris’s motion to stay. 

Summary Judgment Evidence Need Not Be Attached to Summary Judgment Response

State v. $3,774.28 U.S. Currency

Supreme Court of Texas, Nos. 24-0258 (May 16, 2025)

Opinion by Justice Lehrmann (linked here)

Ken Carroll

The Supreme Court of Texas holds that a party opposing a no-evidence motion for summary judgment need not actually attach to its MSJ response controverting evidence that is already contained in the record, as long as the response specifically points out and discusses that evidence. 

In a civil-forfeiture action growing out of alleged opioid trafficking, the owners of the funds at issue filed a no-evidence summary judgment motion against the State. The State submitted a short response that attached no controverting evidence but that referenced and discussed a 44-page affidavit that had been filed with the Notice of Seizure and Intended Forfeiture that commenced the case. The trial court granted summary judgment, saying it “could not consider the affidavit as summary judgment evidence because it understood the rules to require that the nonmovant attach its evidence to the initial response for the trial court’s consideration.” The court of appeals agreed. 

The Supreme Court did not. The Court noted that TRCP 166a(i) “requires a nonmovant to ‘produce’ evidence, not ‘attach’ it,” in responding to a no-evidence MSJ. Further, the comment to that rule“ explains that the nonmovant ‘need only point out’ the evidence that raises a fact issue.” The Supreme Court therefore held that “a response to a no-evidence motion for summary judgment that discusses and calls the court’s attention to evidence already in the court’s record ‘points out’ and thus ‘produces’ that evidence,” as required by Rule 166a(i), and that a trial court abuses its discretion by not considering such evidence. Because the State’s response sufficiently “pointed out” the controverting affidavit that was already in the trial court’s file, the Court reversed and vacated the summary judgment.

SCOTx: A Motion for Sanctions Is Not a “Legal Action” Subject to the TCPA

Ferchichi v. Whataburger Restaurants LLC

Supreme Court of Texas, Nos. 23-0568 & 23-0993 (May 9, 2025) 

Opinion by Justice Lehrmann (linked here)

Ken Carroll

Resolving a disagreement among the State’s courts of appeals, the Supreme Court of Texas holds that “a motion to compel and for sanctions does not present a substantive underlying claim for relief and therefore is not a ‘legal action’ subject to dismissal under the TCPA.” 

Under the TCPA, a party may move to dismiss a “legal action” that “is based on or is in response to” a TCPA-protected right or that “arises from” certain protected communications or conduct. TCPRC § 27.003(a). “The TCPA defines ‘legal action’ as ‘a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal, declaratory, or equitable relief.’” Id. § 27.001(6). 

The Supreme Court acknowledged that the catch-all phrase at the end of § 27.001(6)—“any other judicial pleading or filing that requests legal, declaratory, or equitable relief”—is  “undeniably broad.” “But,” the Court said, “broad is not limitless.”

Applying the doctrine of ejusdem generis—i.e., that “when ‘more specific items are followed by a catchall “other,” ... the latter must be limited to things like the former’”—the Court concluded that “the catch-all phrase … should be limited to filings that are ‘like’” the specific items listed in the statute—“a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim.” It  explained that the specifically enumerated filings “are connected by their function of commencing (or materially amending) a proceeding on a substantive legal claim—e.g., negligence, fraud, or deceptive trade practices—against another party.” By contrast, the Court said, motions to compel and for sanctions “are not remotely ‘like’ a ‘lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim.’ Rather, they are ‘based on conduct ancillary to the substantive claims in the case’ and cannot stand on their own.” The fact that motions for sanctions seek monetary relief does not alter that analysis. Consequently, the Supreme Court held, a “motion to compel and for sanctions … is not a ‘legal action’ subject to dismissal under the TCPA.”  

SCOTx: Trial Court Can Reconsider and Grant TCPA Motion to Dismiss after that Motion Has Been Denied by Operation of Law

First Sabrepoint Capital Management, L.P. v. Farmland Partners Inc. 

Supreme Court of Texas, No. 23-0634 (April 24, 2025) 

Opinion by Justice Huddle (linked here)

Ken Carroll

Applying and extending its ruling in In re Panchakarla, 602 S.W.3d 536 (Tex. 2020), the Supreme Court of Texas holds that a trial court retains jurisdiction to grant a motion to dismiss under the TCPA even after that motion has been denied by operation of law, per statute.

Sabrepoint moved to dismiss Farmland’s claims under the TCPA, which requires the trial court to rule not later than 30 days after the hearing on such a motion. TCPRC § 27.005(a). The trial court didn’t rule before the 30-day deadline expired, and so the motion was deemed to have been denied by operation of law pursuant to TCPRC § 27.008(a). Five days after that deadline, however, the trial court issued an order granting the TCPA motion to dismiss. Farmland appealed, and the court of appeals held the trial court’s order granting the TCPA motion was void because it was issued after the statutory deadline and after the motion was deemed to have been denied by operation of law. TCPRC §§ 27.005(a) & .008(a). 

The Supreme Court disagreed, however. Referencing its decision in Panchakarla, the Court explained that “the expiration of the deadline for a trial court to rule on a TCPA motion does not extinguish the court’s plenary power to later reconsider that ruling.” And the text of TCPRC § 27.008(a), providing that motions not ruled on within 30 days after hearing are denied by operation of law, does not change that. The Court noted that when the trial court issued its order granting Sabrepoint’s TCPA motion, five days after the deadline, no appeal had been taken and there was no final judgment. “Under those circumstances,” the Court said, “nothing in the TCPA extinguished the trial court’s plenary power to reconsider the TCPA motion’s merits”—which, in practical effect, is what happened here. The Supreme Court therefore reversed and remanded for the court of appeals to reconsider the TCPA dismissal on the merits.  

Can a Defendant Appeal When the Trial Court Orally Denies a TCPA Motion to Dismiss, But Doesn’t Sign an Order?

Eichner v. Ocwen Financial Corp.

Dallas Court of Appeals, No. 05-23-00623-CV (February 27, 2025)

Justices Goldstein, Kennedy (Opinion, linked here), and Clinton

Ken Carroll

Adding to an existing split among Texas Courts of Appeals, the Dallas Court holds that when a trial court orally denies a TCPA motion to dismiss but never signs an order to that effect, the movant can appeal, treating the motion as having been overruled by operation of law. 

Ocwen and others sued Eichner, alleging he had breached an employment separation agreement and release. Eichner moved to dismiss under the TCPA. The trial court held a timely hearing, as required by TCPA § 27.004, at which it orally denied Eichner’s motion to dismiss. But the trial court never signed an order denying the motion to dismiss. 

Eichner appealed. Ocwen moved to dismiss, arguing TCPRC § 51.014(a)(12) authorizes an interlocutory appeal only from an “order … that … denies a motion to dismiss filed under [the TCPA],” and that Eichner could not appeal because the trial court had issued no such “order” in this case. 

Despite the wording of § 51.014(a)(12), the Dallas Court of Appeals denied Ocwen’s motion to dismiss and held that Eichner could appeal. The Court noted that, while a party ordinarily may bring an interlocutory appeal only from a written order, TCPA § 27.008(a) provides an exception to that rule: “If a court does not rule on a [TCPA] motion to dismiss … in the time prescribed by [TCPA § 27.005], the motion is considered to have been denied by operation of law and the moving party may appeal.” The Dallas Court went on to hold that “by not signing a written order the trial judge did not ‘rule’ on Eichner’s motion to dismiss within the meaning of [TCPA §] 27.008(a), which means that the motion was overruled by operation of law, and that [there is] appellate jurisdiction under [TCPA §] 27.008(a).” 

In so ruling, Dallas followed the Fourteenth Court, which had explained that, “The purpose of the TCPA is to encourage and safeguard constitutional rights [and t]hat purpose would be thwarted if a trial court could insulate its decision from appellate review by refusing to sign a written order and choosing instead to orally deny a motion that should have been granted.” Simmons v. Taylor, 651 S.W.3d 499, 503 (Tex. App.—Houston [14th Dist.] 2022, no pet.). The Dallas Court rejected decisions by the Houston 1st District and Beaumont Courts of Appeals, which had held to the contrary. Casillas v. M & S Concrete, No. 01-19-00145-CV, 2020 WL 2026367, at *3-4 (Tex. App.—Houston [1st Dist.] Apr. 28, 2020, no pet.); Clark v. Paddington British Priv. Sch., Inc., No. 09-19-00056-CV, 2016 WL 4247963, at *2-3 (Tex. App.—Beaumont Aug. 11, 2016, no pet.).

Res Judicata Bars Dec Action Asserting Limitations to Prevent Foreclosure

Castaneda v. Abacus Funding Group, LLC

Dallas Court of Appeals, No. 05-23-00623-CV (February 4, 2025)

Justices Smith, Miskel (Opinion, linked here), and Breedlove

Ken Carroll

A cautionary tale about the scope of res judicata: Final judgment on the merits bars not just claims actually litigated, but also other claims arising from the same transaction or subject matter that were not asserted but could have been. And that’s true even with respect to a claim for declaratory relief that anticipates an affirmative defense.

The Castanedas purchased a house in 1997 using seller-financing. In 2018, a dispute arose about the mortgage; the Castanedas believed it was paid off, but the sellers contended a significant balance remained unpaid. With that dispute unresolved, the sellers sold the mortgage to Abacus. Abacus then sent the Castanedas a notice of non-judicial foreclosure. The Castanedas responded by suing the sellers and Abacus, arguing generally that the loan was paid in full and asserting that Abacus had committed statutory real estate fraud by sending them a proposed “Modification and Extension Agreement” even though it knew, or should have known, that they had already paid the note in full. Abacus secured a summary judgment denying the Castanedas’ statutory fraud claim against it, as well as an order severing Abacus from the remainder of the case, resulting in a final take-nothing judgment for Abacus. 

Abacus then served the Castanedas with another notice of non-judicial foreclosure. Again, the Castanedas filed a declaratory judgment action to prevent the foreclosure, arguing both that the note was paid in full—as they had in the first lawsuit—and, for the first time, that limitations barred Abacus from enforcing the mortgage lien. Abacus responded with another summary judgment motion, arguing that the Castanedas’ declaratory claims were barred by res judicata, based on the first judgment. The trial court granted that motion, and the Dallas Court of Appeals affirmed. 

The Castanedas argued that res judicata could not bar their claim for declaratory relief based on limitations, which they had not asserted in the first lawsuit. The Court of Appeals disagreed, explaining that “Texas follows the transactional approach to res judicata, under which ‘a subsequent suit is barred if it arises out of the same subject matter as the prior suit, and that subject matter could have been litigated in the prior suit,’” quoting Citizens Ins. Co. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007). “[A] final judgment on an action extinguishes the right to bring suit on the transaction, or series of connected transactions, out of which the action arose,” regardless of the specific claims asserted in either case. The appeals court concluded that the “First and Second Lawsuits arise out of the same facts and are based on the same subject matter,” and that “the Castanedas could have asserted their limitations claim in the First Lawsuit.” It rejected the Castanedas’ argument that they should not be expected to have “preemptively file[d] an affirmative defense of limitations” to a claim that Abacus had not yet asserted. But, of course, they did just that in the second lawsuit—filing suit and asserting their claim for declaratory relief based on limitations before Abacus filed any counterclaim of its own. 

SCOTx: Separation of Powers Bars Disciplinary Commission’s “Collateral” Review of Attorney Conduct by AG’s Office

Webster v. Commission for Lawyer Discipline

Supreme Court of Texas, No. 23-0694 (December 31, 2024) 

Opinion by Justice Young (linked here); Dissent by Justice Boyd (linked here)

Ken Carroll

Unwilling to abide the results of the 2020 presidential election, the State of Texas tried to invoke the original jurisdiction of the United States Supreme Court to challenge the election processes and results in Pennsylvania, Georgia, Michigan, and Wisconsin. The bill of complaint and other filings were signed by Ken Paxton as Texas Attorney General and also listed Brent Webster, his First Assistant, as counsel of record.

Four days after Texas filed, the Supreme Court dismissed for lack of standing. Soon thereafter, various individuals filed grievances against Paxton and Webster with the Commission for Lawyer Discipline, alleging they had violated Disciplinary Rule 8.04(a)(3)—which prohibits Texas lawyers from “engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation”—by making false statements in the Supreme Court filings. The Commission then filed a disciplinary petition against Webster in state district court in Williamson County. Webster responded with a plea to the jurisdiction, arguing the Commission’s petition was barred by the separation-of-powers doctrine and by sovereign immunity. The district court ruled that separation of powers deprived it of subject-matter jurisdiction, but the El Paso Court of Appeals (to which the case had been transferred for docket-equalization purposes) reversed. 

The Supreme Court, however, agreed with the trial court and ordered the case dismissed for lack of jurisdiction. “The separation-of-powers problem in this case involves two specific powers, both of which are valid,” the Court said: “[1] the judiciary’s authority to regulate the practice of law and [2] the attorney general’s exclusive authority to determine the arguments and assess the evidence that warrant bringing suit on behalf of the State.” Seeking to reconcile these competing powers, the Court drew a distinction between review and sanctions by a court in which alleged misrepresentations are made—what the Court characterized as “direct scrutiny”—and a challenge by the Commission in a separate proceeding and a different court—which the Court labeled “purely collateral review.” The Court held that in “the narrow circumstances before [it],” attacks on allegations in initial pleadings, “direct scrutiny by a court to whom representations are made wholly accommodates the legitimate interests of all branches of government,” while “collateral attacks like the Commission’s lawsuit … would improperly invade the executive branch’s prerogatives and risk the politicization and thus the independence of the judiciary.” 

Justice Boyd, joined by Justice Lehrmann, dissented. While the “disciplinary proceeding against … Webster could easily fail for many reasons,” Justice Boyd said, “separation of powers is not one of them.” He argued the majority’s “freshly minted direct/collateral distinction is unheard of in separation-of-powers jurisprudence” and “lacks both legal support and logical sense.” “If the United States Supreme Court had decided to sanction Webster for filing the pleading at issue here (as the [majority] concedes it could have done without violating the separation of powers),” Justice Boyd explained, “its actions would have interfered with Webster’s attempt to discharge his duties at least as significantly as this ‘collateral’ disciplinary proceeding.”

On a related note, a parallel disciplinary proceeding against Paxton is pending review before the Texas Supreme Court on similar issues. Paxton v. Commission for Lawyer Discipline, No. 24-0452 (Tex.). It’s a fair bet that matter will soon be summarily disposed of in the same manner as the Webster case.  

Deadlines After Untimely Notice of Judgment: Follow Rule 306a(5) Very Carefully

Leal v. Besfki

Dallas Court of Appeals, No. 05-23-00117-CV (November 20, 2024)

Justices Partida-Kipness (Opinion, linked here), Goldstein, and Miskel

Ken Carroll

Ordinarily, a notice of appeal must be filed no later than 30 days after a judgment is signed, unless that deadline is extended by the filing of a qualifying post-trial motion in that same 30-day period. When a party and his or her attorney don’t receive timely notice that a judgment has been signed, however, Rule of Civil Procedure 306a(4) allows the deadline for filing an appeal or post-judgment motion to be calculated from the date the party or attorney does receive notice or gain actual knowledge that a judgment has been signed. See also Tex. R. App. P. 4.2.

Rule 306a(5) provides that, to invoke the grace period of Rule 306a(4), “the party adversely affected [by the judgment] is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing ….” The Dallas Court of Appeals and others have construed this to mean the movant must prove and include in its sworn motion both “(1) the specific date the party first either (a) received the clerk’s notice of the judgment, or (b) acquired actual knowledge of the judgment; and (2) the specific date the party’s attorney [did so].“

Leal’s counsel did not receive timely notice of an adverse, take-nothing judgment. When counsel discovered the problem, he sought to invoke the Rule 306a(4) extension for post-judgment motions or the notice of appeal. But Leal’s sworn Rule 306a(5) motion established only the dates when his attorney received notice and learned of the judgment. It did not say when Leal, himself, got notice or first knew of the judgment. The Dallas Court of Appeals held that omission to be fatal and dismissed Leal’s appeal for want of jurisdiction, as untimely filed.