Wednesday, August 21, 2013

Effect of interlocutory appeal on case pending the trial court

Can you stop the trial court from taking any further action in the case by filing an interlocutory appeal to challenge the denial of a motion to compel arbitration?  

The appeal does not stop the trial court in its tracks. Abatement may be sought, but is not automatic, as explained by Justice Karen Angelini of the San Antonio Court of Appeals in an August 15, 2013 order.  

4th Court of Appeals
in San Antonio 


Appellants seek to appeal from an interlocutory order denying a motion to compel arbitration. See TEX. CIV. PRAC. & REM. CODE ANN. 51.016 (West Supp. 2012) (providing that in a matter subject to the Federal Arbitration Act, a person may take an appeal from an interlocutory order under the same circumstances that an appeal from a federal court's order would be permitted). On August 6, 2013, appellants filed a motion to stay all trial court proceedings, including discovery and motion practice, until this appeal is resolved. On August 13, 2013, appellees filed a response to appellants' motion to stay all trial court proceedings. This response also contains a request that this appeal be dismissed for lack of jurisdiction.

While an appeal from an interlocutory order is pending, the trial court retains jurisdiction over the case and, unless prohibited by statute, may make further orders. TEX. R. APP. P. 29.5. If permitted by law, the trial court may even proceed with a trial on the merits. Id. However, the trial court must not make an order that interferes with or impairs the jurisdiction of the appellate court, or the effectiveness of any relief sought or that may be granted on appeal. Id.

In their notice of appeal, appellants claim they are entitled to an appeal of the trial court's interlocutory order based on section 51.016 of the Texas Civil Practice and Remedies Code. This statute, however, does not expressly require a stay of the trial court proceedings during the pendency of an appeal from an interlocutory order. See TEX. CIV. PRAC. & REM. CODE ANN. 51.016. Moreover, nothing indicates the appellants asked the trial court to stay its proceedings before asking this court to stay the trial court's proceedings. See id.; see also TEX. R. APP. P. 29.2 (providing that the trial court may permit an order granting interlocutory relief to be superseded and, if the trial court refuses, the appellate court may review the decision for an abuse of discretion).

Appellants' motion to stay all trial court proceedings is therefore DENIED. It is FURTHER ORDERED that appellees' request to dismiss this appeal for lack of jurisdiction is CARRIED WITH THIS APPEAL.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 15th day of August, 2013.

SOURCE:  SAN ANTONIO COURT OF APPEALS - Order in Cause No. 04-13-00525-CV issued 2013-08-15