In an opinion by newly minted (and elected) Justice Evan Young, the Texas Supreme Court has rid itself of a troublesome precedent from a bygone era in which minor technical errors could well cost a party its opportunity for appellate review.
The case, Edward James Mitschke, Jr., Individually and as a Representative of Cody Mitschke, Deceased v. Marida Faiva del Core Borromeo and Blackjack Ranch, L.L.E. (No. 21-0326) arose from the death of the plaintiff’s son in an accident involving an all-terrain vehicle. The plaintiff filed wrongful death and survival actions against several defendants, including respondents Borromeo and the Blackjack Ranch. Respondents moved for a take-nothing summary judgment, which the trial court orally granted. Plaintiff’s counsel requested the court to sever the claims against them for purposes of an immediate appeal. Three weeks thereafter, respondents filed a written motion to sever the claims. The trial court issued an order under the original cause number, but in the same order created a new cause number for the severed claims. The order further converted the interlocutory summary judgment order into a final and appealable judgment, triggering the 30-day period to file a notice of appeal in the new cause. Plaintiff moved for a new trial in accordance with the rules with one exception: the motion contained the original cause number, not the new one created by the severance order and final judgment. Nevertheless, assuming that the motion extended the trial court’s plenary power and appellate deadlines as dictated by TRCP 329b and TRAP 26.1(a)(1), plaintiff filed a notice of appeal in both cause numbers three days before the extended deadlines.
SCOTX transferred the appeal from the Austin Court of Appeals to the Amarillo Court of Appeals under its docket equalization order. In the event of a transfer, the transferee court (Amarillo) is bound to follow the applicable precedent of the transferor court (Austin). After receiving briefing on the issue, the Amarillo Court of Appeals concluded that the Austin court would dismiss plaintiff’s appeal as untimely based on the erroneous cause number on the motion for new trial, despite the fact that so ruling would contradict the Amarillo court’s own precedent. The court thus dismissed the appeal as untimely, though reluctantly. Plaintiff sought review, which SCOTX granted.
This case would seem on its face to involve such a minor technical error that one might wonder what all the fuss is about. Clearly, everybody—the trial court, the court of appeals, and the parties—knew which cause for which the plaintiff sought a new trial. No one was surprised or prejudiced by the plaintiff putting the wrong cause number on the motion. Nevertheless, a single SCOTX precedent stood in the way of an easy, common-sense resolution in line with recent jurisprudence requiring “courts of appeals to find appellate jurisdiction even in the face of non-prejudicial or clerical defects.” That case, Philbrook v. Berry, 683 S.W.2d 378 (Tex. 1985) (orig. proceeding), held on similar facts that the “motion for new trial must be filed in the same cause as the judgment the motion assails.” Though SCOTX has subsequently distinguished Philbrook and narrowed its application, the decision has stood—until now.
The importance of Justice Young’s opinion lies not in the result—that the plaintiff’s error was harmless and should not bar appellate review—but in its analysis of the purposes of the rule of stare decisis and the circumstances under which a court should overrule its own precedent. As Justice Young points out, the rule dictates that a court adhere to a prior case even if it considers the case as wrongly decided. “Rather, one key advantage of stare decisis, for the public and the courts,” Justice Young writes, “is that settled law generally may be taken as a given without continually subjecting each precedent to renewed scrutiny. The benefit would disappear if stare decisis only protected correctly decided cases, because every time a precedent arose, we would labor from scratch to decide whether it was correct.”
A decision to overrule a binding precedent requires more: a determination of whether the precedent any longer serves the policy purposes of the rule, which are to promote efficiency, fairness, and legitimacy. “Efficiency” means that a precedent provides “clear and settled law,” rather than sowing confusion and uncertainty. “Fairness” involves whether overruling a precedent would “be unfair to the public or the government that relies on the precedent’s stability,” such that the “greater the settled and reasonable reliance interests that flow from a precedent, the greater our reluctance to overrule it.” “Legitimacy” implicates the role of the judiciary as an impartial arbiter, not a policymaker; overruling prior cases willy-nilly undermines public confidence in the judiciary. Applying these principles to the Philbrookdecision, Justice Young concluded that holding fast to this particular case did nothing but create confusion as to the state of the law. He further opined that any fairness concerns are in the opposite direction and that maintaining a clearly erroneous and whittled down precedent cast more doubt on the legitimacy of a court than it fosters. The Court thus reversed the Amarillo court, while simultaneously praising it for following the binding rule that a transferee court must do what the transferor court would have done.
Justice Young’s opinion, in our view, rightly observes that stare decisis is particularly important when it comes to matters involving property, contractual rights, and statutory interpretation. Conversely, it is weakest in the case of procedural and evidentiary rules. The opinion does not directly address (nor should it under the particular circumstances of the case) how a court should proceed when dealing with precedents involving highly contentious and disputed questions, such as the extent and nature of constitutional protections or the distribution of power among the branches of government. More specifically to the business of TCJL and our allied organizations, how should a court approach precedents involving constitutional, substantive, and procedural issues (for as we know, sometimes a decision about procedure can have dramatic consequences for substantive law) upon which liability may turn? The answer likely lies in Justice Young’s three-pronged test for the continuing viability of the precedent in question, although it is not quite clear precisely how the elements of the test, whose application seems so clear in this context, would be applied under those circumstances. Fortunately, courts are rarely called upon, at least directly, to confront such issues, but finessing a way around a prior ruling, as Justice Young points out, can only go so far.