Asplundh Tree Expert Co. v. Bryan Goertz and Debbie Goertz

• Court: Court of Appeals of Texas
• Decided: December 1, 2016
• Docket: 03-16-00760-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-16-00760-CV

Asplundh Tree Expert Co., Appellant

v.

Bryan Goertz and Debbie Goertz, et al., Appellees

FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT NO. 2012-MCF-01, HONORABLE TERRY FLENNIKEN, JUDGE PRESIDING

ORDER GRANTING PETITION FOR PERMISSIVE APPEAL

PER CURIAM

Pending before this Court is the unopposed petition for permissive appeal filed by

Asplundh Tree Expert Co. Having considered the application, we grant the requested relief.

This appeal is related to the Bastrop County Complex Fire, which occurred in

September 2011. Within two years after the fire, hundreds of property owners and more than fifty

subrogation property insurers sued petitioner Asplundh.1 Those suits were consolidated under

Master Case No. 2012-MCF-01 for discovery and pretrial purposes, and the claims brought by the

individual and subrogation plaintiffs have since settled.

In May 2012, a class action was filed on behalf of other property owners in the area

who only suffered up to a 25% decrease in property valuation. After the trial court denied the class

1 The local electric utility company was also named as a defendant. certification in March 2015, more than 700 additional plaintiffs filed suit against Asplundh. Those

new lawsuits were also consolidated into Master Case No. 2012-MCF-01.

In September 2015, Asplundh filed a motion for summary judgment, asserting that

the new suits were barred by limitations. The new plaintiffs asserted that limitations were tolled

under American Pipe & Construction Co., Inc. v. Utah, 414 U.S. 538 (1974). On October 28, 2016,

the trial court signed an order denying Asplundh’s motion for summary judgment, concluding that

limitations were tolled under American Pipe, and granting permission for a permissive interlocutory

appeal to address the following two issues: (1) did the American Pipe tolling doctrine toll the statute

of limitations for the putative class members pending a ruling on class certification; and (2) if so,

was the statute of limitations tolled for plaintiffs’ claims in this case in respect to all causes of action

and remedies sought by plaintiffs, irrespective of whether those causes of action and remedies

were expressly included in the class petition. See Tex. Civ. Prac. & Rem. Code § 51.014(d); Tex.

R. App. P. 28.3.

We conclude that the order Asplundh seeks to appeal involves a controlling question

of law as to which there is a substantial ground for difference of opinion and that immediate appeal

from the order may materially advance the ultimate termination of the litigation. See Tex. Civ. Prac.

& Rem. Code § 51.014(d), (f). We grant Asplundh’s petition for permissive appeal of the trial

court’s order dated October 28, 2016. See id.

Notice of appeal is deemed to have been filed as of the date of this order. See id.

§ 51.014(f); Tex. R. App. P. 28.3(k). The clerk’s record and the reporter’s record, if applicable, are

due on or before December 12, 2016. See Tex. R. App. P. 28.3(k), 35.1(b). Asplundh’s brief will

2 be due twenty days after the appellate record is filed, and appellees’ briefs will be due twenty days

after Asplundh’s brief is filed. See Tex. R. App. P. 28.3(k), 38.6. The clerk of this Court shall file

a copy of this order with the trial court clerk. See Tex. R. App. P. 28.3(k).

It is ordered December 1, 2016.

Before Justices Puryear, Pemberton, and Field