Mitschke v. Borromeo

• Decision Date: 13 May 2022
• Docket Number: 21-0326
• Parties: Edward James MITSCHKE, Jr., Individually and as a Representative of the Estate of Cody Mitschke, Deceased, Petitioner, v. Marida Faiva del Core BORROMEO and Blackjack Ranch, L.L.E., LLC, Respondents
• Court: Texas Supreme Court

645 S.W.3d 251

Edward James MITSCHKE, Jr., Individually and as a Representative of the Estate of Cody Mitschke, Deceased, Petitioner,

v.Marida Faiva del Core BORROMEO and Blackjack Ranch, L.L.E., LLC, Respondents

No. 21-0326

Supreme Court of Texas.

Argued February 3, 2022

OPINION DELIVERED: May 13, 2022

Kirk L. Pittard, Dana Brooke Levy, Thad D. Spalding, Durham, Pittard & Spalding, L.L.P., Dallas, J. Brent Goudarzi, Marty L. Young, Goudarzi & Young, L.L.P., Gilmer, for Petitioner.

Brantley Ross Pringle Jr., David Deaderick, Heidi Coughlin, Stephen Barron, Wright & Greenhill, P.C., Austin, for Respondents.

Elana S. Einhorn, Melissa A. Lorber, Enoch Kever PLLC, Austin, for Amicus Curiae Appellate Section of The State Bar of Texas.

Robert B. Gilbreath, Hawkins Parnell & Young LLP, Dallas, for Amicus Curiae Gilbreath, Robert B.

Justice Young delivered the opinion of the Court.

A properly filed motion for new trial extends a trial court's plenary power over the judgment and extends the time to file a notice of appeal. A timely notice of appeal is an essential prerequisite for the appellate court's jurisdiction. In this case, the notice of appeal was timely only if the deadlines were extended, which depended on whether petitioner's motion for new trial was effective. The court of appeals held that, under binding authority, the motion was ineffective because petitioner filed it under the wrong cause number. The court of appeals thus dismissed the appeal for lack of jurisdiction.

Bound up in our review of that decision are several important questions involving the doctrine of stare decisis. Based on our resolution of those questions, we conclude that petitioner's filing error did not deprive the court of appeals of subject-matter jurisdiction, and we therefore reverse and remand for consideration of the merits.

I

This case arises from the unfortunate death of Cody Mitschke, the son of petitioner Edward James Mitschke, Jr. Cody, a passenger in an all-terrain vehicle, died after the vehicle spun out of control. Petitioner brought multiple wrongful-death and survival claims against several defendants. Among those defendants were respondents Marida Borromeo and Blackjack Ranch. Respondents eventually moved for a take-nothing summary judgment and the trial court orally granted that motion. Mitschke's counsel then asked the court to sever the claims against respondents, which would allow an immediate appeal. The trial judge explained that he would sever those claims only if a separate written motion was filed; he then signed the summary-judgment order. Twenty-two days later, respondents—not Mitschke—filed a written motion to sever the claims.

The trial court granted the motion to sever the claims against Borromeo and Blackjack Ranch. The severance order was issued under the original cause number (No. 16,735), but in that order, the court also created a new cause number for the severed claims (No. 17,366). The severance transformed the interlocutory summary judgment into a final and appealable judgment, thus commencing the thirty-day period to file a notice of appeal in Cause No. 17,366. See Park Place Hosp. v. Estate of Milo , 909 S.W.2d 508, 510 (Tex. 1995) ; Tex. R. App. P. 26.1.

While the trial court still had plenary power, Mitschke moved for a new trial. Mitschke's written motion referenced the summary-judgment order by subject matter, title, and date; stated the purpose of extending the appellate deadlines; and certified service to all opposing counsel in both causes, including counsel for Borromeo and Blackjack Ranch. This routine procedure extends the trial court's plenary power and the appellate deadlines. See Tex. R. Civ. P. 329b ; Tex. R. App. P. 26.1(a)(1). At least, it does so if done correctly. But Mitschke filed his new-trial motion under the original cause (No. 16,735) instead of under the new, severed cause (No. 17,366). Three days before the extended deadlines under Rule 26.1(a) would have run, Mitschke filed a notice of appeal in both cause numbers.

The appeals were brought in the Third Court of Appeals in Austin. This Court then transferred them to the Seventh Court of Appeals in Amarillo for docket-equalization purposes. See Tex. Gov't Code § 73.001. A transferee court that receives an appeal "must decide the case in accordance with the precedent of the transferor court under principles of stare decisis ...." Tex. R. App. P. 41.3. As this Court's comment to the Rule explains, this requirement ensures that the "transfer will not produce a different outcome, based on application of substantive law, than would have resulted had the case not been transferred." Id. , cmt.

After receiving the appeals, the Seventh Court requested briefing on a jurisdictional question: whether Third Court precedent required dismissing the appeal in the severed cause as untimely. The Seventh Court received the requested briefing and identified what it regarded as a material conflict in the Third Court's precedent. The Seventh Court concluded that, if the Third Court followed two of its relatively recent cases, it would dismiss the appeal as untimely,¹ but that it would permit the appeal to proceed if it instead followed two of its earlier cases.² The Seventh Court noted that, under its own precedent, "a motion for new trial filed under the wrong cause number is effective to extend the appellate deadlines where the motion sufficiently identifies the order or judgment in question." In other words, Seventh Court precedent aligned with the earlier Third Court cases.

But the Seventh Court recognized that its obligation under Rule 41.3 required it to decide the case as if it were a Third Court panel. It thus had to decide, as a transferee court, how to resolve the material conflict in Third Court precedent. "[W]e have found no authority," the court wrote, that prescribes how to choose the proper rule of decision "when there is conflicting precedent within the transferor court." It expressed concern that applying the earlier cases—the ones that most aligned with the Seventh Court's own precedent—would be improper "[c]herry-picking" that "would interfere with [the Third Court's] independent judicial functions ...." It concluded that following "the most recent jurisprudence from the Third Court" best predicted how a Third Court panel would rule. Accordingly, the Seventh Court dismissed the appeal for want of jurisdiction.³

Mitschke sought rehearing and filed a motion to facilitate a retransfer of the case back to the Third Court, anticipating that the Third Court would consider the jurisdictional issue en banc. See Miles v. Ford Motor Co. , 914 S.W.2d 135, 137 n.2 (Tex. 1995) (explaining the procedure for a party to request such a transfer). After briefing, the Seventh Court consulted with the Third Court and then informed this Court that it did not believe there was good cause to retransfer the case. This Court denied the request to retransfer. The Seventh Court denied rehearing. Mitschke brought petitions for review to this Court, which we granted and consolidated for briefing and argument.⁴

II

For transferred cases, Rule 41.3 provides that "the court of appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court's decision otherwise would have been inconsistent with the precedent of the transferor court." The rule's text underscores that stare decisis is a mandatory tool for use in the transferee court's choice-of-law analysis.

But even absent the rule's express reference to stare decisis , that doctrine would still constrain a transferee court for the simple reason that stare decisis binds the transferor court. The Seventh Court had to confront this jurisprudential requirement at the outset of this case, and we therefore begin by addressing how a Texas appellate court, "under principles of stare decisis," should determine its own binding precedent.

Our common-law tradition was built on healthy respect for judicial precedent. As Blackstone put it, "it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion ...." 1 William Blackstone, Commentaries *69. Particularly in an era when judges made most of the law, the courts’ adherence to their own precedents was essential to building economic and social stability.⁵ Commercial and financial decisions would be far more challenging without confidence that courts would honor the legal framework within which those decisions are made. The same is true of any decision involving calculations about risk—decisions in virtually every corner of life, ranging from property, to family, to employment, and beyond.⁶ No society could flourish if its people's investments—in capital, or labor, or any other resource—were not backed by force of law. Stare decisis amounts to a judicial commitment to precedent, which is an essential ingredient in the rule of law itself.

One aspect of stare decisis —that lower courts must follow the precedents of all higher courts—is commonplace and uncontroversial. Sometimes called "vertical stare decisis ," this rule is inherent in the structure of "a hierarchical system" of courts. Ramos v. Louisiana , ––– U.S. ––––, 140 S. Ct. 1390, 1416 n.5, 206 L.Ed.2d 583 (2020) (Kavanaugh, J., concurring in part). "[H]orizontal stare decisis ," by contrast, addresses "the respect that [a] [c]ourt owes to its own precedents," id.⁷ Under this aspect of stare decisis , three-judge panels must follow materially indistinguishable decisions of earlier panels of the same court unless a higher authority has superseded that prior decision. Typically, higher authority includes a decision from the U.S. Supreme Court, this Court, or the Court of Criminal Appeals; an en banc decision of the court of appeals itself;⁸ or an applicable legislative...