Is a Judgment That Says That It Is Final and Appealable, Final and Appealable? Not Necessarily So; Not in Texas: The Problem of Jurisdictional Dismissals Based on Nonfinality, and Two Possible Solutions

As a general rule, appeals can only be taken from a final judgment unless a statute authorizes an early appeal, which is called interlocutory. Nevertheless, Texas courts of appeals regularly dismiss appeals for want of appellate jurisdiction even when the judgment says—falsely, as later determined by the higher court—that it is final when it is not. The appellant then becomes a non-prevailing party even if the jurisdictional dismissal resulted from a judicial error for which she bore no responsibility. She then suffers the consequences of being a loser with no immediate remedy to correct the trial court's error or the higher court's dismissal, and will have to come back to the court of appeals again after a judgment is entered that is really final, as opposed to a judgment that false states or appears to be final when it is not. Intermediate appellate courts do have other options when a judgment is falsely denominated final and appealable or when there is a question as to whether the judgment is really final: (1) They may abate the appellate case and send it back to the trial court to make it final, such as by severance of remaining claims and parties into a new cause number, or by rendering a superseding final judgment that fixes the nonfinality defect in the original one; (2) They may treat the notice of appeal as prematurely filed and keep the appellate case on hold while awaiting entry of the final judgment; (3) They may request that the trial court clarify the matter of whether the judgment was intended to be final, or instruct the trial court to sign a final judgment when there is none (such as when the trial court judge granted a dispositive motion orally, as noted no the docket, but has not signed an order officially memorializing the ruling). Texas appellate courts' handling of appeals with finality issues, however, is inconsistent, and may result in disparate treatment of litigants based on who they are, whether they are represented by counsel, and who represents them. This undermines the principle of equal application of the law and demonstratively results in inequitable results on some cases, but not in others. This paper proposes two alternative solutions to the problem of finality determinations and jurisdictional dismissals to mitigate the problem of multiple appeals and the inefficiencies and costs associated with multiple appellate proceedings involving the same underlying case.