Appeal from the 190th District Court Harris County, Texas
Trial Court Case No. 2012-24614
consists of Justices Higley, Bland, and Massengale.
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.
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.
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.
Permissive appeal standard
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.
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
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.).
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., ...