Edward James Mitschke, Jr., Individually and as a Representative of the Estate of Cody Mitschke v. Marida Favia Del Core Borromeo and Blackjack Ranch, L.L.E., Llc

Supreme Court of Texas

══════════

No. 21-0326

══════════

Edward James Mitschke, Jr., Individually and as a

Representative of the Estate of Cody Mitschke, Deceased,

Petitioner,

v.

Marida Faiva del Core Borromeo and Blackjack Ranch, L.L.E.,

LLC,

Respondents

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Seventh District of Texas

═══════════════════════════════════════

Argued February 3, 2022

JUSTICE YOUNG delivered the opinion of the Court.

A properly filed motion for new trial extends a trial court’s

plenary power over the judgment and extends the time to file a notice of

appeal. A timely notice of appeal is an essential prerequisite for the

appellate court’s jurisdiction. In this case, the notice of appeal was

timely only if the deadlines were extended, which depended on whether

petitioner’s motion for new trial was effective. The court of appeals held

that, under binding authority, the motion was ineffective because

petitioner filed it under the wrong cause number. The court of appeals

thus dismissed the appeal for lack of jurisdiction.

Bound up in our review of that decision are several important

questions involving the doctrine of stare decisis. Based on our resolution

of those questions, we conclude that petitioner’s filing error did not

deprive the court of appeals of subject-matter jurisdiction, and we

therefore reverse and remand for consideration of the merits.

I

This case arises from the unfortunate death of Cody Mitschke, the

son of petitioner Edward James Mitschke, Jr. Cody, a passenger in an

all-terrain vehicle, died after the vehicle spun out of control. Petitioner

brought multiple wrongful-death and survival claims against several

defendants. Among those defendants were respondents Marida

Borromeo and Blackjack Ranch. Respondents eventually moved for a

take-nothing summary judgment and the trial court orally granted that

motion. Mitschke’s counsel then asked the court to sever the claims

against respondents, which would allow an immediate appeal. The trial

judge explained that he would sever those claims only if a separate

written motion was filed; he then signed the summary-judgment order.

Twenty-two days later, respondents—not Mitschke—filed a written

motion to sever the claims.

The trial court granted the motion to sever the claims against

Borromeo and Blackjack Ranch. The severance order was issued under

the original cause number (No. 16,735), but in that order, the court also

created a new cause number for the severed claims (No. 17,366). The

severance transformed the interlocutory summary judgment into a final

2

and appealable judgment, thus commencing the thirty-day period to file

a notice of appeal in Cause No. 17,366. See Park Place Hosp. v. Estate

of Milo, 909 S.W.2d 508, 510 (Tex. 1995); Tex. R. App. P. 26.1.

While the trial court still had plenary power, Mitschke moved for

a new trial. Mitschke’s written motion referenced the summary-judgment

order by subject matter, title, and date; stated the purpose of extending

the appellate deadlines; and certified service to all opposing counsel in

both causes, including counsel for Borromeo and Blackjack Ranch. This

routine procedure extends the trial court’s plenary power and the

appellate deadlines. See Tex. R. Civ. P. 329b; Tex. R. App. P. 26.1(a)(1).

At least, it does so if done correctly. But Mitschke filed his new-trial

motion under the original cause (No. 16,735) instead of under the new,

severed cause (No. 17,366). Three days before the extended deadlines

under Rule 26.1(a) would have run, Mitschke filed a notice of appeal in

both cause numbers.

The appeals were brought in the Third Court of Appeals in

Austin. This Court then transferred them to the Seventh Court of

Appeals in Amarillo for docket-equalization purposes. See Tex. Gov’t

Code § 73.001. A transferee court that receives an appeal “must decide

the case in accordance with the precedent of the transferor court under

principles of stare decisis . . . .” Tex. R. App. P. 41.3. As this Court’s

comment to the Rule explains, this requirement ensures that the

“transfer will not produce a different outcome, based on application of

substantive law, than would have resulted had the case not been

transferred.” Id., cmt.

After receiving the appeals, the Seventh Court requested briefing

3

on a jurisdictional question: whether Third Court precedent required

dismissing the appeal in the severed cause as untimely. The Seventh

Court received the requested briefing and identified what it regarded as

a material conflict in the Third Court’s precedent. The Seventh Court

concluded that, if the Third Court followed two of its relatively recent

cases, it would dismiss the appeal as untimely,1 but that it would permit

the appeal to proceed if it instead followed two of its earlier cases.2 The

Seventh Court noted that, under its own precedent, “a motion for new

trial filed under the wrong cause number is effective to extend the

appellate deadlines where the motion sufficiently identifies the order or

judgment in question.” In other words, Seventh Court precedent aligned

with the earlier Third Court cases.

But the Seventh Court recognized that its obligation under Rule

41.3 required it to decide the case as if it were a Third Court panel. It

thus had to decide, as a transferee court, how to resolve the material

conflict in Third Court precedent. “[W]e have found no authority,” the

court wrote, that prescribes how to choose the proper rule of decision

“when there is conflicting precedent within the transferor court.” It

expressed concern that applying the earlier cases—the ones that most

aligned with the Seventh Court’s own precedent—would be improper

1 See Crown Equity LLLP v. Parker, No. 03-16-00389-CV, 2016 WL

3917203, at *1–2 (Tex. App—Austin July 13, 2016, no pet.); Levin v. Espinosa,

No. 03-14-00534-CV, 2015 WL 690368, at *2–3 (Tex. App.—Austin Feb. 13,

2015, no pet.).

2 See Blizzard v. Select Portfolio Servicing, No. 03-13-00716-CV, 2014

WL 2094324, at *1 (Tex. App.—Austin May 13, 2014, order) (per curiam); see

also Torres v. Scott & White Clinic, No. 03-04-00575-CV, 2006 WL 1126221, at

*2 (Tex. App.—Austin Apr. 28, 2006, no pet.).

4

“[c]herry-picking” that “would interfere with [the Third Court’s]

independent judicial functions . . . .” It concluded that following “the

most recent jurisprudence from the Third Court” best predicted how a

Third Court panel would rule. Accordingly, the Seventh Court dismissed

the appeal for want of jurisdiction.3

Mitschke sought rehearing and filed a motion to facilitate a

retransfer of the case back to the Third Court, anticipating that the Third

Court would consider the jurisdictional issue en banc. See Miles v. Ford

Motor Co., 914 S.W.2d 135, 137 n.2 (Tex. 1995) (explaining the procedure

for a party to request such a transfer). After briefing, the Seventh Court

consulted with the Third Court and then informed this Court that it did

not believe there was good cause to retransfer the case. This Court denied

the request to retransfer. The Seventh Court denied rehearing. Mitschke

brought petitions for review to this Court, which we granted and

consolidated for briefing and argument.4

II

For transferred cases, Rule 41.3 provides that “the court of

appeals to which the case is transferred must decide the case in

accordance with the precedent of the transferor court under principles

of stare decisis if the transferee court’s decision otherwise would have

3 No. 07-20-00283-CV, 2021 WL 386429 (Tex. App.—Amarillo Feb. 3,

2021).

As noted, Mitschke appealed under both the new and the original

4

cause numbers, which led to two appeals in the Seventh Court and two

petitions for review. In this Court, No. 21-0326 seeks review of the dismissal

of the appeal in the severed cause that includes the final judgment, and No.

21-0331 concerns the original cause, in which Mitschke mistakenly filed the

motion for new trial.

5

been inconsistent with the precedent of the transferor court.” The rule’s

text underscores that stare decisis is a mandatory tool for use in the

transferee court’s choice-of-law analysis. But even absent the rule’s

express reference to stare decisis, that doctrine would still constrain a

transferee court for the simple reason that stare decisis binds the

transferor court. The Seventh Court had to confront this jurisprudential

requirement at the outset of this case, and we therefore begin by

addressing how a Texas appellate court, “under principles of stare

decisis,” should determine its own binding precedent.

Our common-law tradition was built on healthy respect for judicial

precedent. As Blackstone put it, “it is an established rule to abide by

former precedents, where the same points come again in litigation; as

well to keep the scale of justice even and steady, and not liable to waver

with every new judge’s opinion . . . .” 1 William Blackstone, Commentaries

*69. Particularly in an era when judges made most of the law, the courts’

adherence to their own precedents was essential to building economic

and social stability.5 Commercial and financial decisions would be far

more challenging without confidence that courts would honor the legal

framework within which those decisions are made. The same is true of

any decision involving calculations about risk—decisions in virtually

5 As Dean Henry G. Manne put it, the ability to “rely upon future courts

to apply the law in the same way they have in the past—that is, in accordance

with the doctrine of precedent or stare decisis,” generates the concomitant

ability “to make business decisions with less uncertainty and therefore lower

transaction costs.” Henry G. Manne, The Judiciary and Free Markets, 21 Harv.

J. L. & Pub. Pol’y 11, 18 (1997). The “strong sense” of the role of precedent, he

added, has contributed to why many view “[t]he common law . . . as the

ultimate accomplishment of Anglo-American jurisprudence.” Id. at 20.

6

every corner of life, ranging from property, to family, to employment,

and beyond.6 No society could flourish if its people’s investments—in

capital, or labor, or any other resource—were not backed by force of law.

Stare decisis amounts to a judicial commitment to precedent, which is

an essential ingredient in the rule of law itself.

One aspect of stare decisis—that lower courts must follow the

precedents of all higher courts—is commonplace and uncontroversial.

Sometimes called “vertical stare decisis,” this rule is inherent in the

structure of “a hierarchical system” of courts. Ramos v. Louisiana, 140

S. Ct. 1390, 1416 n.5 (2020) (Kavanaugh, J., concurring in part).

“[H]orizontal stare decisis,” by contrast, addresses “the respect that [a]

[c]ourt owes to its own precedents,” id.7 Under this aspect of stare

decisis, three-judge panels must follow materially indistinguishable

decisions of earlier panels of the same court unless a higher authority

has superseded that prior decision. Typically, higher authority includes

a decision from the U.S. Supreme Court, this Court, or the Court of

Criminal Appeals; an en banc decision of the court of appeals itself;8 or

6See, e.g., Kimble v. Marvel Ent., LLC, 576 U.S. 446, 457 (2015); Randy

J. Kozel, Settled Versus Right: A Theory of Precedent 29 (2017)

(“Notwithstanding the Court’s emphasis on expectations surrounding contract

and property rights, reliance interests extend beyond the domain of

commercial activities. They can also attach to decisions involving other rights,

such as the freedom of speech and the protection against unreasonable

searches and seizures.”).

7Texas intermediate appellate courts also have used and explained the

terms “vertical” and “horizontal” stare decisis. See, e.g., Phelps v. State, 532

S.W.3d 437, 443 n.6 (Tex. App.—Texarkana 2017, pet. ref’d).

The Sixth, Eighth, Tenth, and Twelfth Courts of Appeals each has only

8

three members. With respect to precedent, at least, there is essentially no

7

an applicable legislative or constitutional provision. In other contexts,

regulatory enactments or executive-branch decisions may qualify.9

Courts widely follow this understanding of stare decisis. We

identified several courts that have adopted practices designed to ensure

their fidelity to stare decisis in Brazos Electric Power Cooperative, Inc.

v. TCEQ, 576 S.W.3d 374, 383 n.6 (Tex. 2019). We favorably quoted a

decision of the Fourteenth Court of Appeals, which formalized the

requirement that one panel remains bound by a prior panel’s holdings

in Chase Home Financial, L.L.C. v. Cal Western Reconveyance Corp., 309

S.W.3d 619, 630 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The

Fifth Circuit refers to this principle as the “rule of orderliness.” See, e.g.,

Jacobs v. Nat’l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (“It is

a well-settled Fifth Circuit rule of orderliness that one panel of our court

may not overturn another panel’s decision, absent an intervening change

in the law, such as by a statutory amendment, or the Supreme Court, or

difference between sitting en banc or as a panel. But all courts, regardless of

the procedure used, should still make clear when they are repudiating their

own case law. Doing so avoids any confusion about what the current law is; it

also helps all courts remain cautious about exercising that authority too freely.

A single panel of a multi-member court lacks the power to overrule a precedent—

but even when a court has that power, it should exercise it with restraint and

only under proper circumstances, which we address in Part III, below.

9 How a judicial opinion may be “superseded” depends on context. This

Court, for example, may reverse a lower court’s interpretation of a statute,

whereas the legislature might amend the statute. In the former instance, the

lower court’s interpretation is altogether invalid. In the latter, the

interpretation of the original text remains valid; the legislature can change

statutory text, but cannot revise the judiciary’s construction of text. Thus, a

judicial interpretation would be persuasive authority if the legislature uses

that original text in a different context. Said differently, a legislative body does

not “overrule” or “reverse” judicial decisions—but its actions can certainly have

that practical effect by changing the law.

8

our en banc court.”). Every federal appellate court respects these

underlying legal principles.10

The requirement that we are formalizing today, therefore, is

hardly novel. At bottom, it is nothing more than a manifestation of our

commitment to precedent in the first place. If one appellate panel

decides a case, and another panel of the same court differently resolves

a materially indistinguishable question in contravention of a holding in

the prior decision, the second panel has violated the foundational rule of

stare decisis.11 Affording stare decisis authority to the second case would

be tantamount to eliminating stare decisis altogether, as nothing would

stop a third panel from returning to the initial outcome, or going yet

another way. For our legal system, the result would not be order and

stability, but chaos and unpredictability. Every day would be a new day

in the life of the law; every case would present an opportunity to refashion

settled principles and a temptation both for parties and courts to

disregard disliked precedent. The very concept of “settled principles”

10 Kozel, supra, at 20–21 (“When a panel of three judges issues a

decision on behalf of a federal court of appeals, . . . . [t]he decision is also

binding on future three-judge panels of the court that issued it. It can be

overruled only if the appellate judges agree to rehear the case en banc . . . .”);

Joseph W. Mead, Stare Decisis in the Inferior Courts of the United States, 12

Nev. L.J. 787, 794–95 (2012) (“[E]ach circuit court has adopted some version of

‘law of the circuit.’”).

11 Most such “violations” are presumably inadvertent, as when parties

fail to identify binding precedents. Despite lawyers’ and judges’ best efforts,

deviations of that sort are inevitable, especially in busy and large appellate

courts. If last-in-time decisions trumped earlier decisions, the public writ large

would unfairly bear the consequences of departures from stare decisis. But

nothing is unfair about making a party bear the consequences of a result that

would have been different had the court been aware of a binding precedent that

the party did not invoke.

9

would eventually be eroded.

The Seventh Court reached the conclusion that it should follow

the second line of cases, and not the first, for a very respectable reason:

its prediction that a Third Court panel would have followed the more

recent cases. We emphasize that the Seventh Court noted that its own

precedent would have compelled the contrary result.

The Seventh Court sought to replicate the likely decision of a

Third Court panel. As a general matter, that approach is exactly what

Rule 41.3 requires. But Rule 41.3’s text, and the core principle of stare

decisis even without Rule 41.3’s express admonition, directs an objective

and not a subjective analysis. Transferee courts must follow whatever

law binds the transferor court, even if there is reason to suspect that a

transferor court might disregard that law. Because a Third Court panel

would have been objectively bound to follow the earliest non-superseded

line of cases, the Seventh Court was required to do so as well in a

transferred appeal. The court of appeals erred by not following the

requirements of stare decisis.

III

We cannot resolve the case solely by concluding that the Seventh

Court erred under Rule 41.3 and general principles of stare decisis. In

this Court, unlike in the Seventh Court, this case also presents the

substantive question of whether that error was harmless. The Seventh

Court thought that the later Third Court cases were erroneous, but still

applied them. If it turns out that those later cases were correct, then we

would affirm the judgment below despite the Seventh Court’s

10

methodological error.12

We conclude, however, that the earlier cases better reflect this

Court’s decisions that require courts of appeals to find appellate

jurisdiction even in the face of minor and non-prejudicial technical or

clerical defects. We acknowledge that Philbrook v. Berry, 683 S.W.2d

378 (Tex. 1985) (orig. proceeding), appears to point in the other direction.

Although we could distinguish that case—yet again—we conclude that

the sounder course is to apply the principles of stare decisis and overrule

that decision.

A

The argument against the Seventh Court’s appellate jurisdiction

is that the motion for new trial was ineffective because it was filed in

the original cause (No. 16,735) rather than in the new cause (No.

17,366). If the motion was ineffective, it was ineffective only for that

reason; other than the incorrect docket number, the motion contained

everything that was required. Nonetheless, if the procedural defect in

the filing prevents the motion from extending the trial court’s plenary

power or the appellate deadlines, then it is uncontested that the eventual

12 We emphasize that transferee courts have no authority to deviate

from the procedural requirements of Rule 41.3 even if they are convinced that

this Court would disagree with the transferor court’s precedent. A transferee

court must follow the transferor court’s jurisprudence just as it must follow a

precedent of this Court. “It is not the function of a court of appeals to abrogate

or modify established precedent.” Lubbock County v. Trammel’s Lubbock Bail

Bonds, 80 S.W.3d 580, 585 (Tex. 2002). Transferee courts instead may state

that “the outcome would have been different” absent the duty to follow “the

transferor court’s precedent.” Tex. R. App. P. 41.3. Respectful observations of

that sort are salutary because they help identify inconsistencies in Texas law,

which in turn assists this Court in determining whether resolving an issue is

important to the jurisprudence of the State.

11

notice of appeal that Mitschke filed was untimely. And if the notice of

appeal was untimely, then the appeal is jurisdictionally barred. In other

words, appellate jurisdiction hinges on the effectiveness of the motion

for new trial.

Respondents’ chief authority for deeming that motion to be

ineffective is Philbrook v. Berry, which we agree has many parallels to

this case.13 In Philbrook, a plaintiff obtained a default judgment against

a defendant and then successfully severed that default judgment into a

new cause with a final judgment. 683 S.W.2d at 379. When the defendant

became aware of the default judgment, it filed a motion for new trial—

but, as in this case, it filed that motion in the original rather than the

new cause. Id. The trial court eventually granted the motion for new

trial to set aside the default judgment, but it did so fifty-three days after

the default judgment. Id. That would have been no problem if the motion

for new trial had been effective, but this Court held that the filing defect

in that motion was fatal: “[T]he motion for new trial must be filed in the

same cause as the judgment the motion assails.” Id. The motion,

therefore, could not extend the trial court’s plenary power beyond the

thirty-day period following entry of the default judgment. Id. The default

judgment had become final before the trial court signed the new-trial

order, rendering that order invalid. Id.

Following Philbrook, this Court has confronted a series of cases,

13 Respondents also point us to our holding in In re K.A.F., 160 S.W.3d

923, 926–27 (Tex. 2005). But K.A.F. stands for a proposition that we reaffirm—

that timeliness remains essential in any appeal. In ordinary appeals (like this

one), but not in accelerated appeals (like K.A.F.), a motion for new trial affects

that timeliness.

12

typically involving severance orders, in which the lower courts dismissed

appeals as untimely. In each case, we have refused to find Philbrook

controlling. We have repeatedly cast doubt on “whether Philbrook was

correctly decided . . . .” Tex. Instruments, Inc. v. Teletron Energy Mgmt.,

Inc., 877 S.W.2d 276, 278 (Tex. 1994); accord City of San Antonio v.

Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992). We have said that Philbrook

“is not to be given an expansive reading that invalidates bona fide

attempts to appeal,” McRoberts v. Ryals, 863 S.W.2d 450, 455 (Tex.

1993), and praised lower courts that “correctly . . . limited [Philbrook’s]

holding to substantially the same facts,” id. at 455 n.8. We continually

distinguished Philbrook, despite each case having what appeared to be

the characteristic that Philbrook described as fatal: the key filing was in

the wrong cause.14

Respondents do not attack our decisions to restrict and distinguish

Philbrook. They instead contend that this case is far closer to Philbrook

than our other precedents, and that there is no basis to distinguish

14 See Blankenship v. Robins, 878 S.W.2d 138, 138–39 (Tex. 1994)

(motion for new trial was filed under wrong cause number because of conflicting

information in the court’s order and the abstract of judgment, but all parties

and the court proceeded as if the motion was properly filed); Tex. Instruments,

877 S.W.2d at 278 (extension of time filed in wrong cause number due to court

of appeals’ clerical error); Mueller v. Saravia, 826 S.W.2d 608, 609 (Tex. 1992)

(motion for new trial filed under original rather than severed cause number,

but all parties’ motions and filings were made under the original number and

the judgment assailed was under the original cause number); Ryals, 863

S.W.2d at 451, 454–55 (notice of appeal filed in original rather than severed

cause when clerk had delayed alerting the parties to the severed cause’s

number); Rodriguez, 828 S.W.2d at 417–18 (after a motion to modify or correct

the judgment and the notice of appeal both had the correct style but wrong

cause number, the district clerk substituted the correct cause number and

notified the parties that they did not need to file a new motion).

13

Philbrook here even though we did so there. Respondents’ arguments

have considerable persuasive force. Yet while this case may present a

closer call than some of our past cases, the difference is one of degree and

not of kind. We are confident that we could again distinguish Philbrook,

particularly given our admonitions to confine that case to its precise

context.

On the other hand, we recognize that ever finer distinctions at

some point undermine respect for precedent more than they advance it.

Distinguishing Philbrook yet again, while purporting to leave it intact,

may reasonably convey a sense that we are sporting with that case rather

than honoring it. Philbrook is a precedent of this Court and warrants

respect. That does not mean that it must survive scrutiny under our

current law. If it should not survive, however, we should give it a decent

and honorable burial, and not treat it with nominal deference even as

we whittle it away.

Accordingly, we turn back to the law of stare decisis. Our

discussion above concerned when appellate courts even have the power

to overturn or disregard precedents. This Court always has that power

for our own cases. Rather, the question is when a court with that power

should exercise it.

B

“Stare decisis is not an inexorable command,” Payne v. Tennessee,

501 U.S. 808, 828 (1991), but it is far more than a mere presumption.

After all, the doctrine exists to protect wrongly decided cases. We hardly

need stare decisis to adhere to precedents that we regard as correct; we

would do that anyway. Rather, one key advantage of stare decisis, for

14

the public and the courts, is that settled law generally may be taken as

a given without continually subjecting each precedent to renewed

scrutiny. That 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. “The whole function

of the doctrine is to make us say that what is false under proper analysis

must nonetheless be held to be true, all in the interest of stability.”

Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law

139 (1997). “Respecting stare decisis means sticking to some wrong

decisions.” Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455 (2015).

For a case to be a candidate for overruling, it is therefore necessary,

but not nearly sufficient, for that case to be wrong. We therefore first

examine whether Philbrook is indeed wrong, and then, if it is, consider

whether stare decisis nonetheless saves it. This case turns on Philbrook

one way or another; if the misfiled motion for new trial here caused the

notice of appeal to be untimely, it was only because of authority that

traces to Philbrook.

Texas law greatly favors resolving litigation on the merits rather

than on procedural technicalities. But the lack of a timely notice of

appeal is the most fundamental procedural error that can lead to a total

loss—and that is because the absence of a timely notice of appeal prevents

the appellate court from ever exercising jurisdiction in the first place.

See, e.g., In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005). Without

jurisdiction, the court of appeals is powerless to entertain an appeal, no

matter how grave the error.

Philbrook was decided in an era full of “[s]nares and [t]raps” that

15

could doom an appeal. Jack Pope & Steve McConnico, Practicing Law

with the 1981 Texas Rules, 32 Baylor L. Rev. 457, 492 (1980).15 “Texas

appellate practice ha[d] been mired in the nineteenth century’s in

terrorem philosophy, which has often caused harsh dispositions without

regard to the merits of the cause.” Id. (collecting cases to detail various

jurisdictional pitfalls). The landscape was already changing, however.

For example, “[t]he 1981 revisions of the appellate rules remove[d] many

life-or-death links in the appellate time chain.” Id. at 493.16

Many of these changes related to the circumstances surrounding

bringing appeals. Under our current rules, just filing a notice of appeal—

even if too early, or even in the appellate court (instead of the trial court,

where it is supposed to be filed)—suffices to bring the appeal within the

appellate court’s jurisdiction. Tex. R. App. P. 25.1(a), (b). By no means

should parties or counsel disregard the rules, but failure to comply with

elaborate (or even not-so-elaborate) formalities need not cause inevitable

dismissal: “In cases challenging the validity of a notice of appeal, ‘this

Court has consistently held that a timely filed document, even if defective,

invokes the court of appeals’ jurisdiction.’” In re J.M., 396 S.W.3d 528,

530 (Tex. 2013) (quoting Sweed v. Nye, 323 S.W.3d 873, 875 (Tex. 2010)).

15 For example, in Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex. 1977),

this Court held that a request for and complaint about late findings of fact and

conclusions of law could not extend appellate deadlines because they were filed

with the clerk and not the judge himself. We overruled that decision in Cherne

Industries, Inc. v. Magallanes, 763 S.W.2d 768, 770–72 (Tex. 1989).

16 See, e.g., B. D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 861

(Tex. 1982) (“The laudable goal of these revisions was to eliminate, insofar as

practical, the jurisdictional requirements which sometimes resulted in

disposition of appeals without consideration of the merits.”) (emphasis

original).

16

Being timely, though, is no mere technicality; it remains essential.

In re K.A.F., 160 S.W.3d at 927. The timing requirements are laid out in

Texas Rule of Appellate Procedure 26.1, which authorizes an extension—

even a retroactive one—under narrow circumstances. See Tex. R. App.

P. 26.3. When those periods have run, however, the appeal is over—in

truth, it never began. That outcome is legitimate. Parties and courts are

entitled to a degree of certainty about whether a judgment is in fact

final.17

But conflating non-prejudicial, minor errors of form with

altogether failing to file a document is not legitimate. Since Philbrook

was decided, we have repeatedly reversed courts of appeals for deploying

unduly technical readings of the rules to block merits consideration of

an appeal. “[W]e have instructed the courts of appeals to construe the

[rules] reasonably, yet liberally, so that the right to appeal is not lost by

imposing requirements not absolutely necessary to effect the purpose of

a rule.” Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997); accord

In re R.D., 304 S.W.3d 368, 370 (Tex. 2010) (quoting Verburgt in a case

17 Notices of appeal are especially important, but other rules must be

followed as well, and failing to do so may engender serious consequences. For

example, it is true that “briefs are to be liberally, but reasonably, construed so

that the right to appeal is not lost by waiver.” Horton v. Stovall, 591 S.W.3d

567, 569 (Tex. 2019). But a complete failure to preserve an issue may leave a

court no choice but deem it waived: “A brief must provide citations or argument

and analysis for the contentions and failure to do this can result in waiver.”

RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 126 (Tex. 2018). If such an

issue was central to the case, the result may be comparable to the failure to

have perfected an appeal.

17

involving the rules of civil procedure).18 In this context, being

“reasonable” leads to being “liberal”: “It seems to me, moreover, that we

should seek to interpret the rules neither liberally nor stingily, but only,

as best we can, according to their apparent intent. Where that intent is

to provide leeway, a permissive construction is the right one.” Torres v.

Oakland Scavenger Co., 487 U.S. 312, 319 (1988) (Scalia, J., concurring).

This approach was taking form to some degree even before

Philbrook, casting even further doubt on that precedent.19 But, in

fairness, it was only in the years after Philbrook that our insistence on

reading the rules in this way became dominant and systematic, so that

we now can affirm that “[t]his Court has consistently treated minor

procedural mishaps with leniency, preserving the right to appeal.”

Ryland Enters., Inc. v. Weatherspoon, 355 S.W.3d 664, 665 (Tex. 2011).

In this case, however, we do not need a particularly “liberal,”

“permissive,” or “lenient” construction to confirm that a motion for new

18 See also, e.g., Higgins v. Randall Cnty. Sheriff’s Off., 257 S.W.3d 684,

688–89 (Tex. 2008) (permitting leniency when application for indigency filing

failed to comply with the rules); Hone v. Hanafin, 104 S.W.3d 884, 887–88 (Tex.

2003) (allowing appellate-deadline extension when litigant did not adequately

explain the reason for an untimely notice of appeal); Gomez v. Tex. Dep’t of Crim.

Just., Inst’l Div., 896 S.W.2d 176, 176–77 (Tex. 1995) (allowing appellate-

deadline extension with a post-judgment motion not mentioned in Rule 26.1);

Grand Prairie Indep. Sch. Dist. v. S. Parts Imports, Inc., 813 S.W.2d 499, 500

(Tex. 1991) (“[A] court of appeals may not dismiss an appeal when the appellant

filed the wrong instrument required to perfect the appeal without giving the

appellant an opportunity to correct the error.”). This list is, of course,

incomplete.

19See, e.g., Smirl v. Globe Labs., 188 S.W.2d 676, 678 (Tex. 1945) (“The

object of the new rules is ‘to obtain a just, fair, equitable and impartial

adjudication of the rights of litigants’, Rule 1, and where this can be done

without doing violence to the rules or injustice to the rights of the parties, it is

the duty of the court to do so.”).

18

trial with an error like Mitschke’s was timely filed (and that, derivatively,

so was his notice of appeal). Our rules only require a motion for new

trial to be (1) written, (2) signed, and (3) filed within thirty days of the

judgment. Tex. R. Civ. P. 320, 329b. Here, the judgment was originally

an interlocutory summary judgment (filed under the original cause

number) because it disposed of the claims as to two of several parties—

Borromeo and Blackjack Ranch. That interlocutory order only became

a final judgment upon those parties’ motion (also filed under the original

cause number, of course) to sever from the original cause. See Park Place

Hosp., 909 S.W.2d at 510. The severance order was granted (and it too

was filed under the original cause number). Twenty days after that,

within Rule 329b’s thirty-day deadline, Mitschke filed a motion for new

trial—under the original cause number. Mitschke also complied with

Rule 320 because the motion was “in writing” and “signed by [Mitschke’s]

attorney.”

The motion unnecessarily listed all the original parties.20 But it

expressly described the severance order and made clear that it was the

summary-judgment order—now final with the severance—that the

motion was attacking. It was served on counsel for respondents. Nothing

suggests that the misfiling was done from trickery or to mislead anyone,

and respondents have presented no argument about how Mitschke’s filing

the motion in the original docket number could have prejudiced them.

20 Borromeo and Blackjack Ranch point to this overabundance as

evidence that the mistake was more an error of judgment than a clerical error.

We see no material difference, particularly without any showing of bad faith

or prejudice.

19

It seems implausible that prejudice was even possible under these facts.21

We have no difficulty in concluding that the motion met the rules’ spare

requirements, which extended the trial court’s plenary power and the

appellate deadlines. Tex. R. Civ. P. 329b.

To the extent that Philbrook can be read to create the foundation

for a lack of appellate jurisdiction in a case like this one—with a timely

and compliant motion for new trial that suffers only from a docket-

number error in the context of severance that caused no prejudice to any

party—we readily conclude that Philbrook is inconsistent with our

jurisprudence. If the question presented in Philbrook arose for the first

time today, we would decide that case differently, and for that reason we

deem Philbrook to be wrong.

C

Philbrook may be wrong, but that is not enough to jettison it.

Adherence to precedent remains the touchstone of a neutral legal system

that provides stability and reliability. Departures from precedent must

be carefully considered and should be rare. When we contemplate

overruling a precedent, we must consider whether doing so serves—or

instead undermines—the underlying purposes of stare decisis. See, e.g.,

21 Borromeo and Blackjack Ranch had notice of what was happening.

Mitschke’s motion identified the summary-judgment order and the severance

order that made it final. There was no final judgment to assail in the original

cause, so there was no confusion regarding which order he was assailing. See

Gomez, 896 S.W.2d at 176–77 (any motion that “assail[s] the trial court’s

judgment” extends the appellate timetable). Borromeo and Blackjack Ranch

have not disputed Mitschke’s certification that they were served. Nor have

they identified any other prejudice, aside from their understandable desire to

win by default. Prejudice, however, requires a distinct showing of harm, which

respondents do not assert.

20

Payne, 501 U.S. at 827–28; Sw. Bell Tel. Co., L.P. v. Mitchell, 276 S.W.3d

443, 447 (Tex. 2008). In Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex.

1995), we explained that “we adhere to our precedents for reasons of

efficiency, fairness, and legitimacy.” We reiterated that rationale in

other cases. E.g., Mitchell, 275 S.W.3d at 447; Grapevine Excavation,

Inc. v. Maryland Lloyds, 35 S.W.3d 1, 5 (Tex. 2000).

These general categories overlap to some extent, but each focuses

on distinct features relevant to whether a court should overrule its own

precedent.22

1

“Efficiency” reflects the central role of precedent—to provide clear

and settled law. We cannot agree that retaining Philbrook in an ever-

diminishing form provides efficiency. Indeed, the “courts of appeals in

Texas have demonstrated confusion about the continued viability of

Philbrook,” as Justice Field accurately observed in Levin, one of the

Third Court decisions at issue in this case. 2015 WL 690368 at *3 (Field,

J., concurring) (collecting cases). Justice Field concluded by explaining

that he “wr[o]te separately to ask the supreme court to clarify its

position on the ongoing viability of Philbrook,” id. at *4—which we may

have done had a party brought a petition in that case to this Court.

A precedent that becomes less useful over time and continues to

generate confusion among parties and the judiciary cannot be regarded

as “efficient.” The opposite is true. Especially for procedural or remedial

22A court of appeals sitting en banc does not need to accord deference to

a panel opinion. If the en banc court is considering the validity of an en banc

precedent, however, it should exercise the same caution that this Court exercises

before overruling one of its own precedents, as today’s opinion reflects.

21

issues that should be clear, the continuing need to expend judicial

resources affirmatively indicates inefficiency. See Moragne v. State

Marine Lines, Inc., 398 U.S. 375, 404 (1970) (decrying a past precedent

for “produc[ing] litigation-spawning confusion in an area that should be

easily susceptible of more workable solutions”). New precedents, of

course, often require follow-on cases to refine their contours. But the

passage of time should make a precedent less susceptible to confusion,

not more. Efficiency considerations favor overruling Philbrook.

Distinguishing it once again would only deepen the existing confusion.

Overruling a precedent also contributes to instability and

confusion, however, particularly if it is perceived as part of a pattern of

disrespect for precedent. But preserving Philbrook without

distinguishing it would exacerbate, not mitigate, any confusion. Applying

Philbrook as respondents urge might be faithful to Philbrook—but it

would inject massive cognitive dissonance into the past three decades of

consistent procedural law. At best, Philbrook “stands as an outlier in

our [procedural] jurisprudence, particularly when compared to more

recent decisions.” Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1499

(2019) (denying stare decisis effect for a federal sovereign-immunity

precedent that, like Philbrook, was an outlier). Worse than that,

Philbrook relies on principles that are irreconcilable with current law

that we have repeatedly affirmed and extended. Philbrook’s foundational

premise—that the misfiled motion for new trial was ineffective—is

therefore worse than being “merely” wrong.

Overruling Philbrook advances efficiency. Further distinguishing

that case would undermine efficiency, and fully applying it would wreak

22

havoc. Philbrook “has had a long opportunity to prove its acceptability,

and instead has suffered universal criticism and wide repudiation. To

supplant the present disarray in this area with a rule both simpler and

more just will further, not impede, efficiency in adjudication.” Moragne,

398 U.S. at 404–05.

2

“Fairness” in the context of stare decisis does not concern whether

any individual outcome is just. Instead, it reflects whether overruling a

precedent would be unfair to the public or the government that relies on

the precedent’s stability. The greater the settled and reasonable reliance

interests that flow from a precedent, the greater our reluctance to

overrule it. Payne, 501 U.S. at 827–28. Our reluctance is particularly

acute in property and contract cases—indeed, anywhere “parties are

especially likely to rely on such precedents when ordering their affairs.”

Kimble, 576 U.S. at 457.

But “the opposite is true in cases such as the present one involving

procedural and evidentiary rules.” Payne, 501 U.S. at 828.23 It is

fanciful to imagine arranging one’s affairs in “reliance” on the remote

possibility that, should litigation ever arise, one’s opponent may make a

fatal procedural error. True, we must dismiss an appeal that was not

preceded by a timely notice of appeal—but not because the non-

23 Payne, a criminal-procedure case, concerned whether victim-impact

statements could be used in sentencing. To put it mildly, one is unlikely to rely

on the inadmissibility of victim-impact statements when choosing to murder

someone. Likewise, the rule governing extensions of a trial court’s plenary

power and appellate deadlines is unlikely to affect any primary conduct. Both

are procedural issues where reliance interests are negligible in comparison

with, for example, property or contract rights.

23

appealing party had relied on that rule when entering into a contract,

purchasing real property, deciding whether to commit a tort, or

undertaking any other primary conduct. Such a party is merely the

adventitious beneficiary of a larger purpose: our need to uphold clear

rules, some of which are jurisdictional and require finality.

To facilitate the “efficient and uniform administration of justice,”

the Constitution authorizes this Court to craft procedural and evidentiary

rules. Tex. Const. art. V, § 31. We frequently modify those rules, which

reflects a continuing focus on the system as a whole. By contrast,

overruling precedents that govern private contractual or property rights

(among others) might unsettle the expectations that underlie long-term

investments or decisions.

Likewise, we have long held that “in the area of statutory

construction, the doctrine of stare decisis has its greatest force,”

Mitchell, 276 S.W.3d at 447 (quoting Marmon v. Mustang Aviation, Inc.,

430 S.W.2d 182, 186 (Tex. 1968)). Even there, circumstances may require

the correction of seriously mistaken and harmful precedents. 24 We are

especially alert to the need for stability in this context, however, even

where private reliance interests might be absent. After all, the

legislature itself is entitled to rely on our settled construction of its

enactments and to modify any statute if a different result is desirable.

Id. at 447–48. Vacillating constructions of an unchanged statutory text,

24Both this Court and the U.S. Supreme Court are particularly cautious

about overruling statutory constructions, but circumstances have led both

courts to do so. See, e.g., Hohn v. United States, 524 U.S. 236, 253 (1998)

(overruling a prior construction of 28 U.S.C. § 1254(1)); Tooke v. City of Mexia,

197 S.W.3d 325, 342 (Tex. 2006) (overruling a prior reading of the Local

Government Code).

24

absent truly compelling justifications, would unfairly create a moving

target, which would undermine the legislature’s task of making the public

policy of the State. But no statute has codified Philbrook’s principle, and

so we can perceive neither private nor public reliance on its retention.

Finally, we have applied (rather than distinguished) Philbrook

only twice, and for a proposition coextensive with Rule 329b: that a trial

court loses its plenary power thirty days after the judgment, or after

seventy-five additional days if a timely motion for new trial was filed. 25

Philbrook need not remain on the books for that elementary proposition

to remain true. The rule itself is enough. Even if it were not, more recent

and more clearly reasoned cases, which lack Philbrook’s baggage, better

support that proposition. See, e.g., In re Elizondo, 544 S.W.3d 824, 829

(Tex. 2018) (orig. proceeding). There is no unfairness in overruling

Philbrook.

3

“Legitimacy” concerns focus on the judiciary’s appropriate role

within the government. We have no authority to decide cases based on

political or policy factors that are entirely appropriate for the other

branches of government. Our judgments, which become precedents,

should be based on reason, law, and not political whim; new decisions

should therefore comport with precedents. One important value of stare

decisis is that it justifiably “permits society to presume that bedrock

principles are founded in the law rather than in the proclivities of

individuals . . . .” Vasquez v. Hillery, 474 U.S. 254, 265 (1986). Respecting

25In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d

827, 829 (Tex. 2005); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d

308, 310 (Tex. 2000).

25

precedent conveys to the public that the courts are neutral and

disciplined.

On the other hand, adhering to or entrenching a precedent that

is egregiously wrong or that has lost its underpinnings does not foster

legitimacy. “Stare decisis does not warrant an obstinate insistence on

precedent that appears to be plainly incorrect,” particularly when the

other stare decisis concerns point against retaining the precedent.

Mitchell, 276 S.W.3d at 448. A case that is always distinguished but

never followed is more likely to generate cynicism than legitimacy.

It therefore sometimes advances legitimacy to overrule rather than

to sustain a precedent. Such a determination always requires careful and

respectful analysis, including genuine openness to retaining the

challenged precedent.26 Here, that analysis points in only one direction.

Philbrook can coexist uneasily, if at all, with our more recent and better

reasoned cases. The costliest step in terms of legitimacy would be to

uphold Philbrook, not overrule it.

* * *

We have long retained Philbrook despite misgivings almost from

the beginning. We now conclude that continuing to do so serves none of

the values of stare decisis. Philbrook v. Berry is overruled.

D

We turn, finally, to the application of these principles to this case.

Mitschke’s motion for new trial, even if misfiled, clearly identified the

26See, e.g., Artis v. District of Columbia, 138 S. Ct. 594, 608 (2018)

(Gorsuch, J., dissenting) (“Chesterton reminds us not to clear away a fence just

because we cannot see its point. Even if a fence doesn’t seem to have a reason,

sometimes all that means is we need to look more carefully . . . .”).

26

judgment it assailed. Refusing to find appellate jurisdiction here is

inconsonant with our cases—except Philbrook. With that case overruled,

we now hold that when a party timely attacks an order that grants a

final judgment and then files a notice of appeal that is otherwise timely,

the court of appeals must deem the appeal to have been timely perfected

despite a non-prejudicial procedural defect.27 Mitschke’s motion for new

trial effectively extended the trial court’s plenary power under Rule

329b and, correspondingly, the appellate timelines under Rule 26.1(a).

Mitschke’s appeal therefore was timely, and the Seventh Court may now

resolve the merits.

IV

In Eberhart v. United States, 546 U.S. 12 (2005) (per curiam), the

U.S. Supreme Court considered a similar question of appellate

jurisdiction based on procedural requirements that, under that Court’s

precedent, seemed to be jurisdictional. The lower court in that case, as

it happens, was the Seventh Circuit; our case comes from the Seventh

Court. In Eberhart, the Seventh Circuit followed what it took to be settled

law despite misgivings in light of later Supreme Court cases. Both the

Seventh Circuit there and the Seventh Court here easily could have

sublimated the procedural issue and evaded review, but neither did.

The Supreme Court expressed its appreciation for how the Seventh

Circuit proceeded, and we now borrow its language for the same

27 We reserve for any future case, if necessary, whether a misfiling that

is objectively prejudicial would require a different outcome. In any event,

Texas courts will properly regard with great disfavor any indication that a

party made any filing under the wrong docket number with the purpose of

causing litigation harm to the other side. No such indication exists here.

27

purpose:

We finally add a word about the approach taken by the

[Seventh Court]. Although we find its disposition to have

been in error, we fully appreciate that it is an error . . .

caused in large part by [Philbrook and the Third Court cases

that relied on it]. . . . Convinced, therefore, that [the later

Third Court cases] governed this case, the Seventh [Court]

felt bound to apply them, even though it expressed grave

doubts in light of [later jurisprudential developments]. This

was a prudent course. It neither forced the issue by upsetting

what the Court of Appeals took to be [the Third Court’s]

settled precedents, nor buried the issue by proceeding in a

summary fashion. By adhering to its understanding of

precedent, yet plainly expressing its doubts, it facilitated

our review.

Id. at 19–20.

* * *

We reverse the judgment below and remand for the court of

appeals to address the merits, on which we express no opinion.28

Evan A. Young

Justice

OPINION DELIVERED: May 13, 2022

28As Mitschke requests, we dismiss his petition in No. 21-0331—which

arose from the appeal in the original cause and did not challenge a final

judgment—for lack of jurisdiction.

28