Summary
finding order that set forth four controlling issues insufficient for these purposes when court denied summary judgment without discussion
Summary of this case from Dafashy v. JimenezOpinion
NO. 01-17-00378-CV
06-08-2017
PAUL LUCCIA AND KATHLEEN POWELL, Appellants v. CITY OF HOUSTON, TEXAS, Appellee
On Appeal from the County Civil Court at Law No. 1 Harris County, Texas
Trial Court Cause No. 1043863
MEMORANDUM OPINION
Appellants, Paul Luccia and Kathleen Powell, and appellee, City of Houston, Texas, have filed an agreed joint petition for permissive interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (West 2015). We deny the petition.
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 ANN. § 51.014(d); see also TEX. R. APP. P. 28.3(e)(4); TEX. R. CIV. P. 168.
The petition fails to meet these requirements because, among other problems, the order appealed from, signed on May 16, 2017, does not explain why it denied both parties' motions for summary judgment, and though it identified four controlling questions of law, the trial court did not rule on any of them. See TEX. R. APP. P. 28.3(e)(4). Although finding that its denial of the parties' motions for summary judgment "involve[d] [the following] questions of law as to which there is a substantial ground for difference of opinion" and listing four questions, the trial court's order denied both parties' summary judgment motions without explanation. 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.) (denying petition for permissive appeal because order appealed from listed four questions of law, but did not explain denial of summary judgment motion and, thus, did not involve controlling question of law).
"'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. 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.)). Thus, because the trial court here did not make a substantive ruling on the four controlling legal issues, the order appealed from does not involve a controlling question of law, and section 51.014(d) does not authorize an interlocutory appeal in this case. See id.; see also 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, inter alia, § 51.014(d)).
Moreover, while the order appealed from states that "an immediate appeal of this order . . . may materially advance the ultimate termination of the litigation," it does not state why the trial court believes so. See TEX. R. APP. P. 28.3(e)(4); TEX. R. CIV. P. 168 ("Permission [to pursue a permissive appeal] must be stated in the order to be appealed . . . [and] must identify the controlling question of law as to which there is a substantial ground for different of opinion and must state why an immediate appeal may materially advance the ultimate termination of the litigation.") (emphasis added); see, e.g., Scarborough, et al. v. City of Houston, et al., No. 01-16-00302-CV, 2017 WL 117329, at *1 (Tex. App.—Houston [1st Dist.] Jan. 12, 2017, no pet.) (per curiam) (mem. op.) (denying permissive appeal petition because order did not identify the controlling legal issues or state why immediate appeal may materially advance ultimate termination of litigation).
Accordingly, we deny the joint petition for permissive interlocutory appeal. See TEX. R. APP. P. 28.3(e)(4); TEX. R. CIV. P. 168.
PER CURIAM Panel consists of Chief Justice Radack and Justices Keyes and Massengale.