Inliner Americas, Inc. v. MaComb Funding Group, L.L.C.

244 S.W.3d 427, 2007 WL 2990010
CourtCourt of Appeals of Texas
DecidedJanuary 10, 2008
Docket14-06-01084-CV
StatusPublished
Cited by9 cases

This text of 244 S.W.3d 427 (Inliner Americas, Inc. v. MaComb Funding Group, L.L.C.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Inliner Americas, Inc. v. MaComb Funding Group, L.L.C., 244 S.W.3d 427, 2007 WL 2990010 (Tex. Ct. App. 2008).

Opinions

MAJORITY OPINION

EVA M. GUZMAN, Justice.

This is an agreed interlocutory appeal of a summary judgment in a declaratory judgment action. Appellants contend the trial court erred in declaring that appellants validly assigned their legal malpractice claims to appellee. Specifically, appellants assert that the judgment contradicts established precedent and public policy. We conclude the appeal is untimely, and dismiss this case for lack of jurisdiction.

I. Factual and Procedural Background

In 1997, appellee MaComb Funding Group, L.L.C. (“MaComb”) loaned $1.5 million to appellants Inliner Americas, Inc. n/k/a Firstliner Americas, Inc., Inliner USA, Inc. n/k/a Firstliner USA, Inc., and CAT Contracting, Inc. (collectively, the “Debtors”). This debt was supported by a promissory note. The Debtors defaulted on the loan, and MaComb filed suit. The parties entered into an Agreed Interlocutory Judgment in January 2000 in which the Debtors “acknowledged joint and several liability and liability for all sums due and owing under the Note and all costs, attorneys’ fees, interest, and expenses pertaining thereto.... ”

In June 2000, MaComb and the Debtors executed a “Possession, Management, and Assignment Agreement” (“Assignment Agreement”) settling the January 2000 judgment. Under the Assignment Agreement, the Debtors assigned their assets to MaComb, but agreed to manage the assets for one year. The Debtors agreement to manage the assets continued unless Ma-[429]*429Comb terminated that portion of the Assignment Agreement.

On March 18, 2008, the Debtors sued their attorneys for legal malpractice concerning a federal patent lawsuit. The Debtors subsequently added MaComb as a defendant and sought a declaratory judgment that MaComb did not acquire their legal malpractice claims as part of the Assignment Agreement. MaComb asserted a counterclaim asking the court to declare that the legal malpractice claims and any resulting proceeds were transferred by the Assignment Agreement.

MaComb and the Debtors filed cross-motions for summary judgment, and on May 17, 2006, the trial court granted summary judgment in MaComb’s favor. Pursuant to a stipulation between the parties, the trial court awarded MaComb reasonable and necessary attorneys’ fees in the amount of $40,372.30 on September 22, 2006.

On October 25, 2006, the parties filed an agreed motion for a written order permitting an appeal of these interlocutory orders, and on November 27, 2006, the trial court granted the motion and entered an order permitting this agreed interlocutory appeal. Appellants filed their notice of appeal on December 1, 2006.

On February 1, 2007, we issued an order informing the parties that we would dismiss the appeal unless a response demonstrating grounds for jurisdiction was filed by February 15, 2007. The parties timely responded, and we include their arguments among the issues presented on appeal.

II. Issues Presented

The Debtors present five issues for review. In response to queries from the court, the Debtors’ first two issues address whether we have jurisdiction to consider this interlocutory appeal and whether, in an agreed interlocutory appeal, the deadline to file a notice of appeal is determined by the date of the challenged order or the date on which the trial court entered an order permitting the agreed interlocutory appeal. See Tex. Civ. Prac. & Rem.Code ANN. § 51.014(d) (Vernon Supp.2006). In their next three issues, the Debtors challenge the judgment against them and in MaComb’s favor, and argue that the documents on which MaComb relies to prove the assignment do not comply with governing law and that assignment of their legal malpractice claim is void or unenforceable. Because the jurisdictional issues are dis-positive, we do not reach the merits of the appeal.

III. Appellate Jurisdiction

A. Absence of Jurisdiction

All parties contend that this court has jurisdiction to consider this appeal. Because we conclude the appeal is untimely, we hold this Court lacks jurisdiction to consider the merits of the appeal. See Tex.R.App. P. 42.3(a).

This appeal is brought pursuant to section 51.014(d) of the Civil Practice and Remedies Code, which provides:

A district court, county court at law, or county court may issue a written order for interlocutory appeal in a civil action not otherwise appealable under this section if:
(1) the parties agree that the order involves a controlling question of law as to which there is a substantial ground for difference of opinion;
(2) an immediate appeal from the order may materially advance the ultimate termination of the litigation; and
(3) the parties agree to the order.

Tex. Civ. Prac. & Rem.Code Ann. § 51.014(d). Section 51.014 previously included another subsection that effectively [430]*430limited the time available for the parties to obtain a written order for interlocutory appeal. Subsection (f) provided as follows: “If application is made to the court of appeals that has appellate jurisdiction over the action not later than the 10th day after the date an interlocutory order under Subsection (d) is entered, the appellate court may permit an appeal to be taken from that order.”1

Although subsection (d) does not expressly limit the time for the trial court to issue a written order permitting an interlocutory appeal, subsection (f) required the appeal to be filed within ten days of the interlocutory order — i.e., the order being appealed. The application of this section produced contradictory results. Compare Stolte v. County of Guadalupe, 139 S.W.3d 406, 409-10 (Tex.App.-San Antonio 2004, no pet.) (implying a motion for extension of time and holding that a permissive interlocutory appeal was timely although it was filed nineteen days after the trial court’s order allowing the appeal) with In re D.B., 80 S.W.3d 698, 701-02 (Tex.App.-Dallas 2002, no pet.) (dismissing appeal filed twelve days after interlocutory order and holding that, unlike other interlocutory appeals, the ten-day deadline cannot be extended by fifteen days on proper motion). See also Diamond Prods. Int’l, Inc. v. Handsel, 142 S.W.3d 491, 495-96 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (Frost, J., concurring) (discussing procedural uncertainties associated with a permissive interlocutory appeal); Bill Analysis. S. 79-C.S.H.B. 1294, 1st Sess. (2005) (“Texas courts of appeals have shown confusion about the procedure for taking a permissive appeal under Section 51.014.”).

The repeal of subsection 51.014(f) changed the permissive nature of the appeal and removed the separate deadline for instituting a permissive interlocutory appeal, leaving only subsection 51.014(d) to govern agreed interlocutory appeals. In the absence of a separate deadline, these appeals are subject to the twenty-day deadline governing accelerated appeals generally. See Tex.R.App. P. 28.1 (“An appeal from an interlocutory order, when allowed, will be accelerated.

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244 S.W.3d 427, 2007 WL 2990010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/inliner-americas-inc-v-macomb-funding-group-llc-texapp-2008.