Smith v. Adair

• Decision Date: 24 January 2003
• Docket Number: No. 06-02-00163-CV.,06-02-00163-CV.
• Citation: 96 S.W.3d 700
• Parties: A.O. SMITH, et al., Appellants, v. John ADAIR, et al., Appellees.
• Court: Texas Court of Appeals

96 S.W.3d 700

A.O. SMITH, et al., Appellants, v. John ADAIR, et al., Appellees.

No. 06-02-00163-CV.

Court of Appeals of Texas, Texarkana.

Submitted January 23, 2003.

Decided January 24, 2003.

Rehearing Overruled February 11, 2003.

C. Patrick Waites, Strong, Pipkin, Bissell & Ledyard, LLP, Houston, for appellants.

Bruce A. Craig, David C. Carlile, D. Scott Carlile, The Carlile Law Firm, LLP, Marshall, for appellees.

Before ROSS, CARTER, and GRANT,^* JJ.

OPINION

Opinion by Justice ROSS.

A.O. Smith appeals from an order which found that permissive joinder had been established as to "Group C" plaintiffs and denied his motions to transfer venue as to that group of plaintiffs. The order was signed July 25, 2002. An agreed order was entered pursuant to TEX.R. CIV. P. 306a October 2, which stated that those parties or their representatives first received or acquired knowledge of the order September 17, 2002. Thereafter, Smith filed his notice of interlocutory appeal as allowed by TEX. CIV. PRAC. & REM.CODE ANN. § 15.003(c) (Vernon 2002) September 30, within the mandatory twenty-day time period.

The first question raised is whether this Court has jurisdiction over this appeal. John Adair and others, appellees, have filed a motion asking us to dismiss this interlocutory appeal for want of jurisdiction. The appeal was brought by Adair and others from an interlocutory ruling on joinder and intervention, pursuant to TEX. CIV. PRAC. & REM.CODE ANN. § 15.003(c). The Legislature has provided that no interlocutory appeal is available from a trial court's determination of a venue question. TEX. CIV. PRAC. & REM.CODE ANN. § 15.064(a) (Vernon 2002). Generally, a party must await a final judgment to appeal a venue ruling. TEX. CIV. PRAC. & REM.CODE ANN. § 15.064(b) (Vernon 2002); Am. Home Prods. Corp. v. Clark, 38 S.W.3d 92, 95-96 (Tex.2000). In Section 15.003(c), the Legislature established a limited right of interlocutory appeal in a case involving multiple plaintiffs, but only as to issues involving joinder and intervention. TEX. CIV. PRAC. & REM.CODE ANN. § 15.003(c); Elec. Data Sys. Corp. v. Pioneer Elecs. (USA) Inc., 68 S.W.3d 254, 257 (Tex.App.-Fort Worth 2002, no pet.).

That section of the Code permits an appeal as follows:

(c) Any person seeking intervention or joinder, who is unable to independently establish proper venue, or a party opposing intervention or joinder of such a person may contest the decision of the trial court allowing or denying intervention or joinder by taking an interlocutory appeal to the court of appeals district in which the trial court is located under the procedures established for interlocutory appeals. The appeal must be perfected not later than the 20th day after the date the trial court signs the order denying or allowing the intervention or joinder. The court of appeals shall:

(1) determine whether the joinder or intervention is proper based on an independent determination from the record and not under either an abuse of discretion or substantial evidence standard; and

(2) render its decision not later than the 120th day after the date the appeal is perfected by the complaining party.

TEX. CIV. PRAC. & REM.CODE ANN. § 15.003(c).

The trial court signed its order on joinder/intervention July 25, 2002. Smith filed his notice of appeal September 27, 2002 (and an amended notice November 12, 2002). Under the statute quoted above, the notice of appeal was due to be filed no later than August 14, 2002. The statute provides no means to extend time for filing beyond the twenty-day time period.

Smith agrees the twenty-day time period applies, but argues that TEX.R. CIV. P. 306a should apply to the implementation of the statute to extend the time for filing a notice of appeal in a situation where the complaining party did not receive notice of the order. Smith also suggests that this is not a matter of first impression and that Rule 306a clearly applies to this statute.

In support of his position, Smith cites Dayco Prods., Inc. v. Ebrahim, 10 S.W.3d 80 (Tex.App.-Tyler 1999, no pet.). In that case, the Tyler court dealt with an order followed by multiple motions for reconsideration which were ultimately overruled by the trial court months later. The Tyler court held that the appeal was necessarily from the original order and that the notice of appeal was untimely. The Tyler court then went on, however, after applying the statute's twenty-day time period (instead of the rule's time period) to say that the filing of a motion for new trial did not extend the appellate timetable. The court relied on TEX.R.APP. P. 28.1, which provides that a motion for new trial does not extend the time for filing an interlocutory appeal, and cited Iron Mountain Bison Ranch, Inc. v. Easley Trailer Mfg., Inc., 964 S.W.2d 762, 763 (Tex.App.-Amarillo 1998, no pet.), for the proposition that an interlocutory appeal is considered as an accelerated appeal under Rule 28.1. Rule 28.1 is written in general terms. It states that an appeal from an interlocutory order, when allowed, will be accelerated and that filing a motion for new trial will not extend the time to perfect the appeal.

Smith argues that this holding shows the Tyler court treated the statute as not the complete controlling authority on appeals and that we should therefore also combine the application of the statute with the Rules of Appellate Procedure that control perfection of interlocutory appeals. That is not correct. The Tyler court simply applied the statute without addressing the issue, which apparently was not before them in that case.

In O'Quinn v. Hall, 77 S.W.3d 438, 445-47 (Tex.App.-Corpus Christi 2002, no pet.), the Corpus Christi court also found it unnecessary to address this issue. In O'Quinn, the court simply treated a Section 15.003(c) appeal in precisely the same fashion as one brought as an interlocutory appeal under the Rules of Appellate Procedure and applied Rule 306a to allow a date for notice or actual knowledge to be used as the operative date in beginning the appeal. Like Dayco, the Corpus Christi court applied the statute without addressing the issue.

Appellants direct this Court to In re D.B., 80 S.W.3d 698 (Tex.App.-Dallas 2002, no pet.). That case does not involve the particular statute addressed in this appeal. However, unlike the cases cited above, the analysis of the Dallas court is aimed directly at the problem before us. In D.B., the court reviewed a statute that provided an internal time for appeal, as does this statute. After summarizing several cases that also addressed the application of the Rules of Appellate Procedure in situations where a statute provides its own appellate timetable,¹ the court said:

Because the deadline for perfecting an appeal from an interlocutory order pursuant to section 51.014(d) is specifically stated in section 51.014(f), the deadline and extension for perfecting an appeal in the rules of appellate procedure do not apply.

D.B., 80 S.W.3d at 702.

The cases cited by the Dallas court support this position.

None of these cases, however, are directly on point. In re D.B. analyzes a part of the issue before us — which is whether the statutory deadline without provision for extension of time excludes the Rule's deadlines which does provide for extensions — but does not go on to discuss whether other, ancillary rules of procedure should or can apply. O'Quinn and Dayco both discuss the exact statute before us and apply ancillary rules to the statute. However, the question of whether they should apply those ancillary rules was evidently never broached and was not analyzed in either opinion.

The real question before us is whether Section 15.003, a statute that allows an interlocutory appeal but does not contain a comprehensive appellate timetable, functions outside the remaining rules-based framework for appeals.

The Texas Supreme Court has repeatedly stated that the Rules of Civil Procedure have the same force and effect as statutes. In re City of Georgetown, 53 S.W.3d 328, 332 (Tex.2001); Mo. Pac. R.R. Co. v. Cross, 501 S.W.2d 868, 872 (Tex.1973); Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, 433 (1959). Thus, it is appropriate to apply the analytical framework supplied by the Legislature in TEX. GOV'T CODE ANN. § 311.016 (Vernon 1998).

It is a fundamental rule of statutory construction that, when two statutes conflict, the specific statute controls over the general. Howell Aviation Servs. v. Aerial Ads, Inc., 29 S.W.3d 321, 323 (Tex. App.-Dallas 2000, no pet.); see City of Dallas v. Mitchell, 870 S.W.2d 21, 23 (Tex. 1994); see also TEX. GOV'T CODE ANN. § 311.026(b) (Vernon 1998). However, when a rule of procedure conflicts with a statute, the statute prevails unless the rule has been passed subsequent to the statute and repeals the statute as provided by TEX. GOV'T CODE ANN. § 22.004 (Vernon Supp. 2003). Johnstone v. State, 22 S.W.3d 408, 409 (Tex.2000). There are problems on both sides of this equation.

On one side, the concept of fairness and equity militate toward applying Rule 306a when a party can legitimately complain it has not received notice of an order on joinder. The statute says we are to consider the case under the procedural rules for interlocutory appeals. However, the notice of appeal must be filed within twenty days, and if it is not timely filed, then we have no jurisdiction over the appeal. The real issue is whether the time to perfect appeal can be extended by lack of notice, even though the parties agree it cannot be extended by any other method.

On the other side, it is clear from the statutory language that the Legislature intended this sort of proceeding to have an exceedingly short fuse. This is most clearly seen by the fact the Legislature not only provided a short fuse for the notice of appeal, but also a 120-day deadline for the court of appeals to render its opinion in the case. The time limitation on this Court, more than anything else, clearly...