Town’s Interlocutory appeal timely under scheduling order, but permissive appeal by Plaintiff was untimely

Sarah Swanson v. Town of Shady Shores, 02-15-00351-CV (Tex.App— Fort Worth, August 18,2016)

This is a Texas Whistleblower Act, Texas Open Meetings Act, due process, free speech and Sabine Pilot case, but the main thrust of the appeal is litigation/appellate procedure. So, this case will be of primary focus to litigators.

Swanson is the former Town Secretary for Shady Shores. She brought claims asserting she was wrongfully discharged. The Town filed a plea to the jurisdiction on the Sabine Pilot and Whistleblower Act claims. After Swanson amended, the Town filed traditional and no-evidence summary judgment motions for the remaining claims. The trial court granted the Town’s plea to the jurisdiction and Swanson did not file an interlocutory appeal. In separate orders, the trial court denied the Town’s traditional and no-evidence motions for summary judgment.  The Town filed an interlocutory appeal and asserted the automatic stay was in place. On October 30, 2015, the Town filed a motion requesting the trial court to enter an order acknowledging that all of the trial court proceedings had been stayed since Swanson was continuing to file motions and request hearings. According to the Town, during one hearing, the trial court granted Swanson leave to file a motion for a permissive interlocutory appeal. When Swanson attempted to hold further proceedings and obtain an order on the permissive appeal the Town filed a separate mandamus action (which was consolidated for purposes of appeal). The San Antonio Court of Appeals stayed all proceedings during the appeal.

In its mandamus petition, the Town asks this court to direct the trial court to stay the underlying proceedings and to enter an order voiding all actions taken in the trial court since the Town filed its notice of interlocutory appeal. The Town is appealing the denial of the summary judgment motions on immunity grounds. As a result, the automatic stay applies. The automatic stay is only available, however, if the jurisdictional motion was filed and a hearing requested within a defined timeframe. The scheduling order required all dispositive motions be filed and heard by October 1, 2015. The Town filed its motions for summary judgment and a hearing was set for September 23, 2015. Even though the motions were not heard until October 21, the motions were filed and a hearing was requested prior to October 1. Thus, the automatic stay was triggered. The trial court abused its discretion in conducting hearings in violation of the automatic stay.  However, the trial court did not sign any orders. Therefore, there is nothing in the record indicating any relief can be granted, even though a violation occurred in this case. The mandamus is therefore denied.

Swanson claims that regardless of the fact she filed her appeal over forty days after the order granting the Town’s plea to the jurisdiction was signed, her appeal is timely under rule 26.1(d), which provides that “if any party timely files a notice of appeal, another party may file a notice of appeal within the applicable period stated above or 14 days after the first filed notice of appeal, whichever is later.”  Swanson asserts that she filed her notice of appeal (for the plea to the jurisdiction) within 14 days of the Town’s notice of appeal for the summary judgments. However, Swanson cites no cases nor did the court find any authority supporting her contention that she can utilize Rule 26.1(d) in this way.  As a result, her appeal is untimely. Swanson also filed a petition for permission to appeal, but it did not contain an order signed by the trial court granting her permission to appeal (mainly because the court of appeals stayed any further proceedings). Swanson failed to comply with the requirements for bringing a permissive appeal from an interlocutory order because she failed to obtain a written order granting permission to appeal.

If you would like to read this opinion click here. The Panel includes Justice Gardner, Justice Walker and Justice Gabriel. Justice Gardner delivered the opinion of the court. Attorney for the Appellant: Grace a. Weatherly. Attorney for Appellee: Thomas P. Brandt.