Use it or Lose it: By Choosing Not to Pursue A Statutory Interlocutory Appeal, Do You Waive Appellate Review after Final Judgment?
Appellate Advocate, Vol. 22, No. 134, Winter 2009
11 Pages Posted: 29 Aug 2010 Last revised: 22 Dec 2015
Date Written: August 27, 2010
Suppose you are considering whether to file an interlocutory appeal in Texas. There is a lot to consider: (1) what is the likelihood of success, (2) will it forestall or hasten final resolution, (3) will the underlying proceeding(s) be stayed, and (4) how might the appellate court’s ruling affect the rest of the case? To these considerations, add one more; if you choose to bypass interlocutory appeal, do you waive appellate review of the issue altogether? This paper dissects a recent Texas Supreme Court decision that suggests failure to pursue statutory interlocutory appeal results in waiver of that issue on final appeal.
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