Appellate Self-Care: Attorney, Don’t Forget Your Own Notice of Appeal

Townsend v. Air Bon Air Conditioning Co. 

Dallas Court of Appeals, No. 05-24-00884-CV (February 9, 2026)

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

 

Ken Carroll

The Townsends sued three HVAC contractors, alleging they had negligently performed maintenance on the Townsends’ home that caused carbon-monoxide poisoning. One defendant, Hatley Brothers, responded with a combined motion for summary judgment and for sanctions pursuant to Tex. R. Civ. P. 13 and TCPRC Chapter 10. The trial court granted summary judgment to Hatley Brothers and also ordered the Townsends “and [their] counsel” to pay Hatley Brothers $10,000 in attorney’s fees as a monetary sanction.

The Townsends appealed both the summary judgment and the sanctions award, contending, among other things, that the trial judge erred by imposing sanctions without conducting an evidentiary hearing. The Court of Appeals affirmed summary judgment, but reversed and remanded the sanctions order against the Townsends. The Court held, “It is settled law in this Court that a trial judge must hold an evidentiary hearing before imposing sanctions under either Rule 13 or Chapter 10,” and the trial court had not done so in this case.

The Court of Appeals noted, however, that the Townsends’ counsel had not filed his own notice of appeal from the sanctions order or included himself as an appellant in the notice he filed for the Townsends. So, the Court held it “lacked appellate jurisdiction to review the sanctions order as to him” and therefore affirmed that part of the trial court’s order. Yikes!

This holding and result are not novel or unique. The Austin Court of Appeals, for example, has held that, “When an attorney and his client are both sanctioned, and both wish to appeal the sanctions order, this Court and other courts of appeals have held that it is essential that both the client and the attorney be named as appellants in the notice of appeal. This is because a client lacks standing to appeal sanctions imposed on her attorney.” Cortez v. Brown, 2019 WL 961672, at *2 (Tex. App.—Austin Feb. 28, 2019, pet. denied). Moral: where sanctions orders are concerned, attorneys must take care of themselves as well as their clients.

The Mandate: Wait for it ….

 In re Madison

Supreme Court of Texas, No. 24-1073 (October 31, 2025)

Per Curiam Opinion (linked here)

 

Ken Carroll

“When a party appeals the denial of a motion to dismiss under the Texas Citizens Participation Act, all trial court proceedings are stayed by operation of law, and the statutory stay remains in effect until the appeal has been resolved”—more specifically, until the Court of Appeals “signals that the appeal is resolved” by issuing its mandate. Parties must wait until the mandate issues before resuming proceedings in the trial court—a lesson learned the hard way here. 

Madison sued an HOA and a law firm. The law firm filed a motion to dismiss under the TCPA, which the trial court denied. But the law firm appealed that denial pursuant to TCPRC § 51.014(a)(12), and the Court of Appeals reversed, rendered judgment for the firm, and remanded. After the appeals court denied her motion for rehearing and for reconsideration en banc, Madison timely sought review in the Texas Supreme Court. Even before Madison filed her petition for review, however, the law firm moved for an award of attorney fees under the TCPA, relying on the appeals court’s judgment, and the trial court granted that motion.

The court of appeals declined to set aside the attorney-fees order on mandamus, but the Supreme Court disagreed. Under TCPRC § 51.014(b), the appeal of an order denying a motion to dismiss under the TCPA “stays all … proceedings in the trial court pending resolution of that appeal.” The Supreme Court explained that an appellate court’s judgment “takes effect” and the appeal is resolved “when the mandate is issued” (quoting Tex. R. App. P. 18.6)—not upon issuance of the appeals court’s opinion and judgment. “When the appellate mandate issues, the automatic stay [under TCPRC § 15.014(b)] expires,” not before. And under Tex. R. App. P. 18.1, a court of appeals cannot issue its mandate until after the Supreme Court has completed or denied a review that has been timely requested or the time to seek such review has expired.

Here, the law firm moved for its fees under the TCPRC, and the trial court granted that motion before the appeals court issued its mandate—even before it could have issued its mandate, since Madison timely sought Supreme Court review of the appeals court’s decision on the merits, and the Supreme Court had not yet ruled. As a result, “the court of appeals’ judgment was not final and had not yet taken effect, so the automatic stay remained operative, and the trial court had no authority to act.” The Supreme Court held, therefore, that “[e]ntertaining and granting the motion for attorney’s fees before the court of appeals’ mandate had issued—indeed, before the court of appeals was authorized to issue its mandate—was an abuse of discretion,” and so the Court granted Madison’s mandamus petition. 

Before Filing an Appeal, Remember Your Fundamentals

LRH Real Estate, LLC v. Dallas County

Dallas Court of Appeals, No. 05-25-00771-CV (October 17, 2025)

Chief Justice Koch (Order, linked here) 

Ken Carroll

Rashad Haiddar, a non-attorney acting pro se, filed an appeal and an appellants’ brief on behalf of himself, LRH Real Estate, LLC, and Autochoice Garland TX, LLC. But neither Haiddar, individually, nor Autochoice was a party to the judgment from which Haiddar appealed. In an order striking appellants’ brief and threatening dismissal of the appeal, the Dallas Court of Appeals reminded the parties and practitioners of two fundamental rules:

• “Generally, only parties of record who have been personally aggrieved by the trial court’s judgment have standing to appeal the judgment,” citing State v. Naylor, 466 S.W.3d 783, 787 (Tex. 2015); and

• “[A]ny aggrieved corporate party must be represented by counsel,” citing Kunstoplast of Am., Inc. v. Formosa Plastics Corp., 937 S.W.2d 455, 456 (Tex. 1996) (per curiam).

The Court warned that the appeal would be dismissed unless (a) the corporate parties, LRH Real Estate and Autochoice, retained an attorney to represent them in the appeal, and (b) Haiddar and Autochoice demonstrated that, contrary to the general rule, they do somehow have standing to pursue the appeal of a judgment to which they were not parties.

BONDie & Clyde: Superseding a Non-Monetary Judgment

In re Bonnie Elizabeth Parker

Dallas Court of Appeals, No. 05-24-00809-CV (August 27, 2025)

Chief Justice Koch (Opinion, linked here), and Justices Goldstein and Garcia

 

Ken Carroll

In memory and in lore, Bonnie Parker and Clyde Barrow are inseparable. In fact, however, Bonnie was interred at Crown Hill Memorial Park, while Clyde rests in a Western Heights Cemetery plot several miles away. Invoking Texas Health & Safety Code § 711.004, Bonnie’s niece sought to reunite the two by having Bonnie’s remains removed from Crown Heights and reinterred next to Clyde at Western Heights. But § 711.004(a) allows for disinterment only “with the written consent of the cemetery organization operating the cemetery,” and Crown Hill refused. Subsection 711.004(c), however, provides nevertheless that, when the consents required by subsection 711.004(a) cannot be obtained, remains “may be removed by permission of a county court of the county in which the cemetery is located.” So, off to county court went Bonnie’s niece, where she obtained a permanent injunction ordering Crown Hill to enter into arrangements for Bonnie’s disinterment within 10 days after the judgment.

Crown Hill appealed. When the trial court refused to stay its judgment pending appeal, Crown Hill sought emergency relief in the Dallas Court of Appeals, and that Court obliged.

Treating Crown Hill’s filing as a motion for review under TRAP 24.4, the appeals court held that when a judgment is for something other than money or an interest in property, the trial court ordinarily “must set the amount and type of security that the judgment debtor must post” and allow the appellant to supersede, per TRAP 24.2(a)(3). Here, the Court said, the “appeal will become moot if Crown Hill is not permitted to suspend enforcement of the judgment.” By contrast, allowing Bonnie’s remains to remain at Crown Hill where they have been since 1945 “perfectly preserves the status quo and the parties’ rights pending appeal.” So, the Court reversed the trial court’s order denying a stay, set the amount of Crown Hill’s bond at $0, and suspended enforcement of the trial court’s judgment pending disposition of the appeal—leaving Bonnie and Clyde apart, at least for a little while longer. 

Another Permissive Appeal Bites the Dust

FCA US LLC v. Adient US, LLC

Dallas Court of Appeals, No. 05-25-00836-CV (July 28, 2025)

Justices Smith, Clinton (Opinion, linked here), and Barbare

 

Ken Carroll

Petitions to pursue permissive appeals continue to fare poorly, with the Courts of Appeals insisting on strict compliance with TRCP 168 and TCPRC § 51.014(d) and denying petitions that don’t dot every “i” and cross every “t.” 

Adient secured a summary judgment dismissing FCA’s claims against it. The trial court denied FCA’s motion to reconsider, but granted its request for leave to pursue a permissive interlocutory appeal pursuant to TRCP 168 and TCPRC § 51.014(d). The court found (1) that its “rulings involve a controlling question of law on which there is substantial ground for difference of opinion”—specifically, the scope and application of “the component-part-supplier doctrine, announced in Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681 (Tex. 2004)” and an exception to that doctrine—and also (2) that an interlocutory appeal of the issue “may materially advance the ultimate termination of this litigation”—i.e., it addressed both prongs of Rule 168 and § 51.014(d), or so it thought.

The Dallas Court of Appeals rejected FCA’s petition to pursue its permissive interlocutory appeal. The Court explained that it “strictly construe[s] applications for permissive appeals because statutes allowing for interlocutory appeals are an exception to the general rule that only final judgments are appealable.” Here, the Court said, the trial court’s order did not comply with Rule 168’s requirement that it “state why an immediate appeal may materially advance the ultimate termination of the litigation.” It just broadly asserted that an interlocutory appeal might advance ultimate termination of the litigation, without saying why that was so.  The appeals court held that, “The order’s rote recitation of possible material advancement—without an explanation of ‘why’ immediate appeal may advance ultimate termination of the litigation—fails to satisfy an express requirement of Rule 168.” The appeals court rejected FCA’s argument that the “why” could be inferred from the trial court’s order and its context—i.e., that absent an interlocutory appeal, the purported “summary-judgment error could result in an unnecessary trial without Adient as a party.” Strict compliance with Rule 168 requires that the trial court’s order “state” why an interlocutory appeal may materially advance termination of the litigation. 

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.”