"ORDER CLARIFYING SUMMARY JUDGMENT ORDERS," the district court "GRANTED" JLMH's "[r]equest for a [p]ermissive [i]nterlocutory appeal." It then "DECREED that all proceedings in the above-entitled and numbered cause are hereby stayed pending the interlocutory appeal of the [s]ummary [j]udgment [o]rder[s]."
None of these things are consistent with a final judgment. The district court couldn't "stay[]" the proceedings unless there was a claim left to stay. Likewise, JLMH could take an "interlocutory appeal" only
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if at least one of its claims was still alive. And despite acknowledging Family Dollar's pending "request [for] final disposal of all parties and claims," the district court didn't grant that motion. It's a basic principle of language to presume that someone is trying to say something when they speak. We don't lightly conclude that everything coming from someone's mouth (or pen) is nonsense. See, e.g., M.B.W. Sinclair, Law and Language: The Role of Pragmatics in Statutory Interpretation, 46 U. Pitt. L. Rev. 373, 377-78, 394 (1985) (relying on Paul Grice's work on linguistics and philosophy of language). That intuition is amplified in legal proceedings, for it's even less likely than normal that a statute, contract, or similar text will be meaningless, in whole or even in part. See, e.g., id. at 395 ("[W]e can likewise presume that each enacted provision of a statute says something . . . ."); Bexar Appraisal Dist. v. Johnson, 691 S.W.3d 844, 856 (Tex. 2024) ("If possible, every word and every provision is to be given effect . . . . None should be ignored." (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012))); In re J.S., 670 S.W.3d 591, 599 (Tex. 2023) ("Adopting an interpretation . . . that renders the sentence 'pointless' would run afoul of the presumption against surplusage."); Lenape Res. Corp. v. Tenn. Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex. 1996) ("In construing a contract, we strive to give meaning to each provision."). As far as I can tell, we've never applied this principle to court orders. But I see no reason why we shouldn't, given that the surplusage canon and related doctrines are simply outgrowths of bedrock linguistic principles.
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III
So why, then, is the Court willing to treat an entire court order as so much gibberish? The plurality relies on an opinion that's older than me, in which we wrote that, "[d]uring the time in which a court may vacate, set aside, modify or amend its previous order, such action must, to be effective, be by written order that is express and specific."
McCormack v. Guillot, 597 S.W.2d 345, 346 (Tex. 1980) (quoting Poston Feed Mill Co. v. Leyva, 438 S.W.2d 366, 368 (Tex. App.—Houston [14th Dist.] 1969, writ dism'd)). The plurality focuses on those last three words—"express and specific." Ante at 11. On this view, it's not enough that the order now before us clearly (but implicitly) unwinds finality. If the order didn't "express[ly]" do so, the argument goes, then it did nothing.
McCormack is too thin a reed to bear the weight the plurality places on it, for several reasons. For one thing, the quoted passage is dicta. What mattered in that case was that the district court had orally granted a motion for a new trial, but didn't sign an order to that effect until after the deadline had passed. 597 S.W.2d at 345. The problem wasn't a lack of express language, but a lack of paper and ink. We correctly held that orders granting Rule 329b motions must be put in writing and signed before the district court loses jurisdiction. Id. at 346. What we said about the requisite level of clarity was unnecessary to our holding and so was dicta. See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 406 (Tex. 1997).
Even if McCormack's dicta were something more, the three words on which the plurality relies—"express and specific"—don't get it all the
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way home. The plurality apparently reads McCormack to say that an order must state that it's unwinding finality to have that effect. That's a clear implication, but we didn't actually say so. It's at least a little bit ironic to rely on the implication that implications aren't enough. Given McCormack's own lack of perfect clarity, I'd forgive the same sin in the district court's clarifying order and construe our precedent to follow the natural law of language.
Finally, even if I thought those three words announced a clear holding, I'd be inclined to overrule them. McCormack drew from an even older court of appeals opinion that cited nothing. See 597 S.W.2d at 346 (quoting Poston Feed Mill, 438 S.W.2d at 366). "Stare decisis does not warrant an obstinate insistence on precedent that appears to be plainly incorrect." Mitschke v. Borromeo, 645 S.W.3d 251, 266 (Tex. 2022) (quoting Sw. Bell Tel. Co. v. Mitchell, 276 S.W.3d 443, 448 (Tex. 2008)). To the extent McCormack constitutes precedent at all, it is only of the most ephemeral variety. There's no wizard behind this curtain. In sum, I see no reason to give more weight to a single line of dubious dicta relying on nonbinding precedent that in turn cited nothing at all, than to an ancient and venerable principle like the one that courts disfavor interpretations resulting in surplusage. That's like betting on a lemur in a fight with a silverback gorilla.2
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* * * Be careful what you wish for, as the saying goes. JLMH asked the district court to clarify that its permanent-injunction claim was still alive, and to let it take an interlocutory appeal rather than a conventional appeal. That wish came true, unless we're to believe (as the Court does) that the district court's clarifying order did nothing at all. I don't share that belief because, to quote a fellow jurist who predates anyone reading my little opinion, "verba cum effectu sunt accipienda"—"Words are to be taken as having an effect." Scalia & Garner, supra, at 174 & n.1 (quoting Ulpian, Digest 2.7.5.2). Given JLMH's failure to perfect its desired interlocutory appeal, combined with the final-judgment vacuum that JLMH itself engineered, the court of appeals lacked jurisdiction. Because the Court affirms the judgment below on the merits, instead of vacating it for want of appellate jurisdiction, I respectfully dissent.
James P. Sullivan
Justice
OPINION FILED: June 26, 2026