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ACE American Insurance Co. v. Guerra

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

March 9, 2017

ACE AMERICAN INSURANCE COMPANY AS SUCCESSOR OF INA OF TEXAS, Appellant,
v.
GUADALUPE GUERRA JR., Appellee.

         On appeal from the 319th District Court of Nueces County, Texas.

          Before Chief Justice Valdez and Justices Benavides and Hinojosa

          MEMORANDUM OPINION

          ROGELIO VALDEZ Chief Justice

         Appellant, Ace American Company, as successor of INA of Texas, filed a petition requesting permission to appeal an interlocutory order denying its motion for summary judgment, which is in favor of appellee, Guadalupe Guerra Jr. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (West, Westlaw through 2015 R.S.). We deny the petition and dismiss the appeal for want of jurisdiction.[1]

         I. Discussion

         Section 51.014 of the Texas Civil Practices and Remedies Code and rule 168 of the Texas Rules of Civil Procedure provide a very "[n]arrow exception to the general rule that only final judgments and orders are appealable, " and we must strictly construe those jurisdictional requirements. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001); see Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007); see also King-A Corp. v. Wehling, No. 13-13-00100-CV, 2013 WL 1092209, at *3 (Tex. App.-Corpus Christi Mar.14, 2013, no pet.) (mem. op.) (per curiam). Section 51.014 states:

On a party's motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if:
(1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and
(2) an immediate appeal from the order may materially advance the ultimate termination of the litigation.

Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d); see also Tex. R. App. P. 28.3. ("When a trial court has permitted an appeal from an interlocutory order that would not otherwise be appealable, a party seeking to appeal must petition the court of appeals for permission to appeal.").

         To determine whether there is a substantial ground for difference of opinion, we can consider whether: (1) the question presented to the court is novel or difficult; (2) controlling law is doubtful; (3) controlling law is in disagreement with other courts of appeals; and (4) there simply is little authority upon which the district court can rely. Gulf Coast Asphalt Co., L.L.C. v. Lloyd, 457 S.W.3d 539, 544 (Tex. App.-Houston [14th Dist.] 2015, no pet.). And, rule 168 of the Texas Rules of Civil Procedure requires that the trial court's order granting permission to appeal "identify the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why an immediate appeal may materially advance the ultimate termination of the litigation." Tex.R.Civ.P. 168 (West, Westlaw through 2015 R.S.).

         A petition for permissive appeal filed in this Court must contain a clear and concise argument regarding why the order to be appealed meets the requirements of section 51.014. See Tex. R. App. P. 28.3. The requesting party must establish that: (1) the order subject to appeal involves "a controlling question of law as to which there is a substantial ground for difference of opinion"; and (2) an immediate appeal "may materially advance the ultimate termination of the litigation." Id.; see Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d); Tex.R.Civ.P. 168.

         "The legislature's institution of the procedure authorizing a trial court to certify an immediate appeal of an interlocutory order was premised on the trial court having first made a substantive ruling on the controlling legal issue being appealed." In re Estate of Fisher, 421 S.W.3d 682, 684-85 (Tex. App.-Texarkana 2014, no pet.) (citing Gulley v. State Farm Lloyds, 350 S.W.3d 204, 207-08 (Tex. App.-San Antonio 2011, no pet.); Borowski v. Ayers, 432 S.W.3d 344, 347 (Tex. App.-Waco 2013, no pet.)). "In other words, the interlocutory order cannot 'involve [ ] a controlling question of law' until the trial court has made a substantive ruling on the controlling legal issue in the order." Borowski, 432 S.W.3d at 347. We are required to dismiss the appeal if the record fails to show the propriety of appellate jurisdiction. Gulf Coast Asphalt Co., 457 S.W.3d at 541.

         Here, the record contains the trial court's order permitting an appeal from this non-appealable order.[2] However, the trial court's order does not identify any controlling legal issues presented or state that the trial court substantively ruled on any controlling legal issues presented as required by rule 168.[3]See Tex. R. Civ. P. 168 ("The permission must identify the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why an immediate appeal may materially advance the ultimate termination of the litigation."); see also Armour Pipe Line Co. v. Sandel Energy, Inc., No. 14-16-00010-CV, 2016 WL 514229, at *2 (Tex. App.-Houston [14th Dist.] Feb. 9, 2016, no pet.) (mem. op.) (dismissing appeal because the court was unable to determine whether the trial court agreed with the appellant's alleged controlling questions of law because "rule 168 specifically requires the court to not only identify the questions of law, but to find that these questions are controlling and that there is a substantial ground for a difference of opinion"). In addition, the trial court's order permitting this appeal does not state that an immediate appeal from the underlying ...


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