Many interlocutory orders in Texas state court can be immediately appealed¹, but only if a notice of appeal is filed within 20 days. The Texas Supreme Court, in City of Magnolia 4A Development Corporation v. Smedley², recently addressed how a later motion on the same issue can reopen the time for such an appeal after the 20-day deadline has passed.

In Smedley, the plaintiff sued two municipal development corporations (“MDCs”), which promptly filed motions to dismiss on immunity grounds. The trial court denied the motions and the MDCs did not appeal. Later, the MDCs moved for summary judgment on some of the same grounds. The trial court denied the motion, and the MDCs appealed.

The court of appeals held that because the summary judgment motion asserted “essentially the same immunity-based arguments,” it was merely a motion for reconsideration and did not restart the clock for an interlocutory appeal.

The Texas Supreme Court reversed, holding that because a motion to dismiss is based on pleadings, and a motion for summary judgment is based on evidence, each motion is independently appealable.

Smedley illustrates how the same case can give rise to multiple interlocutory appeals. If a later motion asserts the same grounds in the same procedural posture, it is a motion to reconsider – the denial of which is not appealable. But if the later motion differs – either procedurally (e.g., a motion to dismiss versus a motion for summary judgment) or substantively (by asserting different grounds) – a new opportunity for appellate review may arise.

Don’t miss opportunities for immediate appellate relief.  Consider “another bite at the apple” in the trial court to expedite a decision in a higher court.

[1] For examples of interlocutory orders that can be immediately appealed, check out this post from a few years ago: Looks Appealing to Me: Trial court orders that can be reviewed immediately.

[2] No. 16-0718, 61 Tex. Sup. J. 85 (Tex. Oct. 27, 2017).