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Civil Litigation No. 02-0498, 3/27/2003. Click here for the full text of this decision FACTS: On July 14, 2000, the trial court rendered judgment in favor of Goodmark Corp., Richard C. Poe and Dick Poe Motors Inc., and against Michael Briscoe, based on jury findings after a trial on the merits. Briscoe filed a notice of appeal, but pointed out in his notice of appeal that he did not think he had a final judgment. The court of appeals agreed, and dismissed the appeal for want of jurisdiction. Back in the trial court, Goodmark moved for and obtained an order from the trial court declaring that its original judgment disposed of all parties and claims, and that the judgment was final and enforceable. Briscoe once again appealed; this time the court of appeals held that the original judgment had indeed been a final judgment, and dismissed the second appeal for want of jurisdiction because Briscoe’s second appeal had not been timely filed. HOLDING: Reversed and remanded. Under the law of the case doctrine, a court of appeals is ordinarily bound by its initial decision if there is a subsequent appeal in the same case. “The ‘law of the case’ doctrine is defined as that principle under which questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages. By narrowing the issues in successive stages of the litigation, the law of the case doctrine is intended to achieve uniformity of decision as well as judicial economy and efficiency. The doctrine is based on public policy and is aimed at putting an end to litigation.” Hudson v. Wakefield, 711 S.W.2d 628 (Tex. 1986). A decision rendered on an issue before the appellate court does not absolutely bar re-consideration of the same issue on a second appeal. Application of the doctrine lies within the discretion of the court, depending on the particular circumstances surrounding that case. The court has long recognized as an exception to the law of the case doctrine that if the appellate court’s original decision is clearly erroneous, the court is not required to adhere to its original rulings. Because application of the law of the case doctrine is discretionary, the court of appeals had the authority to re-visit its jurisdictional decision. Finding clear error in its first decision, it had the power to overturn that first decision on the second appeal. Based on the incomplete record before it at the time of the first appeal, and because it did not receive any additional briefing from the parties, the court of appeals dismissed for want of jurisdiction because it did not appear that there was a final judgment in the case. On the second appeal, armed with a complete record and more extensive briefing, as well as a positive statement from the trial court that its July 14, 2000, judgment was indeed final, the court of appeals was then able to hold that a final, appealable order had indeed been issued on July 14, 2000. Because its first decision was clearly erroneous, the law of the case doctrine did not apply and the court of appeals was not bound by its first decision. Being incorrect in that decision, however, does not mean that the court of appeals was correct in dismissing this appeal for want of jurisdiction. As incorrect as that decision was, as a matter of law, the judgment was then interlocutory. Consequently, the court should have asserted jurisdiction over Briscoe’s second appeal and considered his issues on the merits. This is consistent with the court’s oft-repeated position that a party should not lose the right to appeal because of an “overly technical” application of the law. Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). Here, Briscoe did everything that he possibly could to preserve his appellate rights. The court of appeals originally held that the July 2000 judgment was not final. Briscoe should not now have to lose his appellate rights because the court of appeals later found that its original decision was erroneous. OPINION: Enoch, J.; Phillips, C.J., Hecht, Owen, O’Neill, Schneider and Smith, JJ., join. Wainwright, J., did not participate. CONCURRENCE: Jefferson, J. “Although I agree with the Court that we should reverse the court of appeals’ judgment and remand the case for consideration of the merits, I write separately because I am concerned that the Court’s opinion might encourage other litigants to file “conditional” notices of appeal questioning the finality of patently final judgments. Such equivocal appeals would have a pernicious effect on our already troubled finality jurisprudence. In this case, for example, Briscoe’s conditional appeal delayed disposition of the merits and threatened to disturb what had always been a final judgment. Nevertheless, because the appellees declined the court of appeals’ invitation to address the judgment’s finality, they cannot now complain that the court accepted Briscoe’s faulty analysis.”

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