Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 67th District Court Tarrant County, Texas
Trial Court No. 067-285252-16
Gabriel, J.; Sudderth, C.J.; and Birdwell, J.
M.B., individually and as next friend of I.C., (Mother) filed
a petition for permissive appeal seeking interlocutory review
of the trial court's order granting appellee S.C.'s
(Father) plea to the jurisdiction. See Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(d), (f);
Tex.R.App.P. 28.3(e)(4). Because we conclude that the order
does not involve a controlling question of law, we deny the
and Father were divorced in 2013. The court that rendered the
decree of divorce was the 324th District Court (Family
Court). Mother alleges that before the divorce was finalized,
the community estate acquired interests in four real estate
development partnerships: Woodmont Duncanville, LP; Woodmont
Southlake, LP; an entity in Bismark, North Dakota; and a
Walgreens development in East Dallas. Mother asserts that the
Family Court rendered its final decree of divorce without
dividing these community property interests. She also alleges
that while the community estate had an interest in Woodmont
Duncanville, it made more than $1 million in distributions to
its partners but that she had not received any distribution.
filed suit against Father in the 67th District Court
(District Court). She brought several claims, three of which
are relevant here. One, she alleged a claim for money had and
received, asserting that Father had received and retained
distributions from Woodmont Duncanville, that those
distributions were community property, and that she therefore
was entitled to at least half of the distributions Father had
received. Two, she sought a declaration that she owned at
least a 50% interest in the four real-estate development
partnerships. And three, she brought a claim for partition
under chapter 23 of the property code, asking the trial court
to partition the community interests in the partnerships and
award her the shares to which she was entitled.
response, Father filed a plea to the jurisdiction alleging
that the District Court lacked jurisdiction over Mother's
partition claim because by it she sought a division of
allegedly undivided community property, and under section
9.203 of the family code, exclusive jurisdiction over that
claim was vested in the Family Court, which rendered the
divorce decree. Father also requested dismissal of "the
additional claims for damages of [Mother] relative to the
[allegedly undivided community property], on the basis of a
lack of ripeness and on the basis that such claims are
intertwined with and contingent on" the Family
Court's resolution of Mother's partition claim. The
District Court granted the plea and dismissed Mother's
partition, declaratory-judgment, and money-had-and-received
claims without prejudice. In its order, the District Court
stated that in granting the plea, it had found the following
to be a controlling question of law as to which there was a
substantial ground for difference of opinion:
Does the Court which rendered a decree of divorce have
exclusive jurisdiction under Texas Family Code Sees.
9.201-.203 to make a post-divorce division of community
property when the Court which issued the decree had
jurisdiction of the parties and the alleged property at the
time of the decree? Or, does a district court hold
jurisdiction over a cause of action brought under Texas
Property Code § 23.001 et seq. to divide
community property that was not divided in the divorce?
now seeks review of the District Court's interlocutory
order granting Father's plea to the jurisdiction by
permissive appeal. See Tex. Civ. Prac. & Rem.
Code Ann. § 51.014(d), (f); Tex.R.App.P. 28.3(a).
generally have jurisdiction over final judgments only.
See Sabre Travel Int'l, Ltd. v. Deutsche Lufthansa
AG, 567 S.W.3d 725, 730 (Tex. 2019). A narrow exception
to this general rule is that a party may appeal an
interlocutory order when authorized to do so by statute.
Eagle Gun Range, Inc. v. Bancalari, 495 S.W.3d 887,
889 (Tex. App.-Fort Worth 2016, no pet.). Sections 51.014(d)
and (f) of the Texas Civil Practice and Remedies Code provide
such an exception. Under those provisions, we may allow a
party to appeal an interlocutory order that otherwise would
not be immediately appealable where the party demonstrates
that (1) the trial court's order 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 § 51.014(d),
(f); see also Tex. R App. P. 28.3(a), (e)(4).
courts have generally regarded a controlling question of law
to be "one that deeply affects the ongoing process of
litigation." Workers' Comp. Sols. v. Tex.
Health, L.L.C., No. 05-15-01504-CV, 2016 WL 945571, at
*1 (Tex. App.-Dallas Mar. 14, 2016, no pet.) (mem. op.);
accord Austin Commercial, L.P. v. Tex. Tech Univ.,
No. 07-15-00296-CV, 2015 WL 4776521, at *1 (Tex. App.-Amanllo
Aug. 11, 2015, no pet.) (order); Undavia v. Avant Med.
Grp., 468 S.W.3d 629, 632 (Tex. App.-Houston [14th Dist]
2015, no pet.). Generally, if the viability of a claim rests
upon the court's determination of a question of law and
the resolution of the question will considerably shorten the
time, effort, and expense of fully litigating the case, the
question is controlling. See Workers' Comp.
Sols., 2016 WL 945571, at *1; Austin
Commercial, 2015 WL 4776521, at *1; Undavia,
468 S.W.3d at 632.