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Orion Marine Construction, Inc. v. Cepeda

Court of Appeals of Texas, First District

June 21, 2018

ORION MARINE CONSTRUCTION, INC., Appellant
v.
INOCENTE CEPEDA, Appellee

          On Appeal from the 190th District Court Harris County, Texas Trial Court Case No. 2012-24614

          Panel consists of Justices Higley, Bland, and Massengale.

          MEMORANDUM OPINION

          JANE BLAND JUSTICE

         Orion Marine Construction, Inc. has petitioned for permission to appeal from two interlocutory partial summary-judgment orders. See Tex. Civ. Prac. & Rem. Code § 51.014(d)-(f); Tex.R.App.P. 28.3(a). We deny the petition.

         BACKGROUND

         In an earlier appeal from a final judgment in this case, we reversed and remanded. See Cepeda v. Orion Marine Constr., 499 S.W.3d 579 (Tex. App.- Houston [1st Dist.] 2016, pet. denied). In that earlier appeal, Inocente Cepeda challenged the trial court's partial summary judgment in favor of Orion. Id. at 580- 81. In our opinion and judgment, we concluded that the trial court erred in ruling that Cepeda lost seaman status because Orion had fired him while he was on Orion's vessel and the alleged injury had occurred after Orion had fired him. Id. at 581-83. On appeal, Cepeda claimed that he was injured while riding a skiff during his transport from Orion's vessel to dry land, that his termination did not become effective until he reached dry land, and that, in any event, fact issues existed as to whether he was terminated aboard the vessel or two days later, after he reached dry land. See id. at 580, 583. In our opinion reversing the trial court's ruling, we agreed that Orion had failed to establish that Cepeda lacked seaman status as a matter of law. Id. at 583. The Supreme Court of Texas denied review, and the case thus returned to the trial court.

         Upon remand, Cepeda moved for partial summary judgment, seeking the reverse determination: that he was a seaman as a matter of law at the time of the alleged injury. The trial court granted the motion. The trial court also denied Orion's motion for summary judgment as to Cepeda's claims for negligence under the Jones Act and for maintenance and cure. In an amended order, the trial court granted Orion permission to file a permissive appeal from its interlocutory summary-judgment rulings. Orion has filed a petition requesting that we accept its permissive appeal. Cepeda has filed a response in opposition.

         DISCUSSION

         A. Permissive appeal standard

         A trial court may allow a party to appeal from an interlocutory order if the order involves a controlling question of law as to which there is a substantial ground for difference of opinion and an immediate appeal may materially advance the ultimate termination of the litigation. Tex. Civ. Prac. & Rem. Code § 51.014(d); Tex.R.Civ.P. 168. Because a permissive interlocutory appeal is not the norm, we strictly construe Section 51.014(d)'s requirements. Gulf Coast Asphalt Co. v. Lloyd, 457 S.W.3d 539, 545 (Tex. App.-Houston [14th Dist.] 2015, no pet.). The order must identify the controlling question of law at issue and state why an immediate appeal may materially advance the ultimate termination of the litigation. Tex.R.Civ.P. 168; Hebert v. JJT Constr., 438 S.W.3d 139, 141 (Tex. App.-Houston [14th Dist.] 2014, no pet.). The trial court must make a substantive ruling on the controlling question of law. Borowski v. Ayers, 432 S.W.3d 344, 347-48 (Tex. App.-Waco 2013, no pet.); Gulley v. State Farm Lloyds, 350 S.W.3d 204, 207-08 (Tex. App.-San Antonio 2011, no pet.). It cannot certify the question to the appellate court for decision. Bank of N.Y. Mellon v. Guzman, 390 S.W.3d 593, 597 (Tex. App.-Dallas 2012, no pet.); Gulley, 350 S.W.3d at 207.

         An unexplained ruling is not subject to permissive appeal if its substantive basis is unstated and not apparent from the appellate record. See Borowski, 432 S.W.3d at 347-48; see, e.g., Eagle Gun Range v. Bancalari, 495 S.W.3d 887, 889 (Tex. App.-Fort Worth 2016, no pet.) (denial of motion to dismiss without comment was not substantive ruling); City of San Antonio v. Tommy Harral Constr., 486 S.W.3d 77, 81-82 (Tex. App.-San Antonio 2016, no pet.) (denial of motion for partial summary judgment that identified controlling question of law but did not state basis for denial was not substantive ruling).[1]

         Further, a party cannot seek to appeal from an interlocutory order on a ground or issue that differs from the basis on which the trial court ruled. Tommy Harral, 486 S.W.3d at 83-84. It is not enough that the issue presented on appeal and the trial court's ruling concern the same general subject matter. See id. at 84. The controlling question of law presented to the court of appeals must be the same legal issue decided by the trial court. Id.; see also White Point Minerals v. Swantner, 464 S.W.3d 884, 890-91 (Tex. App.-Corpus Christi 2015, no pet.) (declining to address second issue presented in permissive appeal because trial court had not ruled on it).

         To be a controlling question of law, the question must deeply affect the ongoing litigation process. Undavia v. Avant Med. Grp., 468 S.W.3d 629, 632 (Tex. App.-Houston [14th Dist.] 2015, no pet.). In general, if the viability of a claim turns on the question and the resolution of the question will considerably shorten the time, effort, and expense of litigating the suit, it qualifies as a controlling question of law. Id. But the question must be a legal one; a party cannot permissively appeal from a partial summary judgment if the parties dispute the material facts. In re Estate of Fisher, 421 S.W.3d 682, 685 (Tex. App.-Texarkana 2014, no pet.); Diamond Prods. Int'l v. Handsel, 142 S.W.3d 491, 494 (Tex. App.-Houston [14th Dist.] 2004, no pet.).[2]

         Even if the statutory requirements are satisfied, whether to accept a permissive appeal rests in our discretion. Tex. Civ. Prac. & Rem. Code § 51.014(f); In re Volkswagen Clean Diesel Litig., ...


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