Opinion
NO. 01-17-00767-CV
12-05-2017
DEYA DAFASHY, M.D., Appellant v. ANA LAURA JIMENEZ, Appellee
On Appeal from the 270th District Court Harris County, Texas
Trial Court Case No. 2017-01669
MEMORANDUM OPINION
Appellant, Deya Dafashy, M.D., has filed a petition for permissive interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(d); TEX. R. APP. P. 28.3(a). We deny the petition.
Appeals from interlocutory orders are only permitted when authorized by statute. See Bally Total Fitness v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001). We strictly construe statutes allowing interlocutory appeals because they comprise a narrow exception to the rule disallowing appeals from interlocutory orders. See CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011).
Under Civil Practice and Remedies Code section 51.014(d), to be entitled to a permissive appeal from an interlocutory order that would not otherwise be appealable, the requesting party must establish that (1) the order to be appealed involves "a controlling question of law as to which there is 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); see also TEX. R. APP. P. 28.3(e)(4); TEX. R. CIV. P. 168.
The petition in this case fails to meet the first statutory requirement. It is well settled in Texas that an order does not satisfy the first statutory requirement if the order merely identifies a controlling issue of law but fails to rule on it. See, e.g., Luccia v. City of Houston, No. 01-17-00378-CV, 2017 WL 2471107, at *1 (Tex. App. June 8, 2017) (finding order that set forth four controlling issues insufficient for these purposes when court denied summary judgment without discussion); Vestalia, Ltd. v. Taylor-Watson, et al., No. 01-15-00332-CV, 2015 WL 3799505, at *1 (Tex. App.-Houston [1st Dist.] June 18, 2015, no pet.) (per curiam) (mem. op.) (similar); Great Am. E & S Ins. Co. v. Lapolla Indus., Inc., No. 01-14-00372-CV, 2014 WL 2895770, at *2 (Tex. App.-Houston [1st Dist.] June 24, 2014, no pet.) (per curiam) (mem. op.) (same). "'When a trial court in its order on motion for summary judgment provides no basis for its denial, the trial court fails to make [a] substantive ruling on the controlling question of law sought to be appealed.'" Vestalia, 2015 WL 3799505, at *1 (quoting Great Am. E & S Ins. Co, 2014 WL 2895770, at *2).
The order here presents no controlling question of law because it does not explain why the court denied the motion for summary judgment. See TEX. R. APP. P. 28.3(e)(4). Yes, the trial court did identify in its amended order a controlling question of law. But the trial court did not rule on that question; it instead denied summary judgment without discussion. Thus, because the trial court here did not make a substantive ruling on the controlling legal issue, the order appealed from does not involve a controlling question of law, and section 51.014(d) does not authorize an interlocutory appeal. See Vestalia, 2015 WL 3799505, at *1; see also Luccia, 2017 WL 2471107, at *1 (denying petition for permissive appeal because order stated controlling questions of law, but denied motion for summary judgment without explaining basis and thus, did not present controlling questions of law); Fertitta Hosp., LLC v. O'Balle, No. 01-14-00193-CV, 2014 WL 5780329, at *4-5 (Tex. App.-Houston [1st Dist.] Nov. 6, 2014, no pet.) (mem. op.) (dismissing agreed interlocutory appeal for want of jurisdiction, under former section 51.014(d), because "[t]he legislature's institution of this procedure authorizing a trial court to permit an immediate appeal of an interlocutory order is . . . premised on the trial court having first made a substantive ruling on the controlling legal issue being appealed.") (internal quotation marks and citation omitted); Great Am. E & S Ins. Co., 2014 WL 2895770, at *2-3 (granting appellee's motion to dismiss permissive appeal petition for want of jurisdiction because trial court did not make substantive ruling on controlling legal issue in order) (citing § 51.014(d)).
Accordingly, we deny the petition for permissive interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(d); TEX. R. APP. P. 28.3(e)(4).
PER CURIAM Panel consists of Chief Justice Radack and Justices Keyes and Caughey.