Badger Tavern LP, 1676 Regal JV, and 1676 Regal Row, Dallas, Texas, IN REM v. City of Dallas

• Court: Court of Appeals of Texas
• Decided: April 20, 2023
• Docket: 05-23-00299-CV
• Status: Published

Opinion

DISMISS and Opinion Filed April 20, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00299-CV

BADGER TAVERN LP, 1676 REGAL JV, AND 1676 REGAL ROW, DALLAS, TEXAS, IN REM, Appellants V. CITY OF DALLAS, Appellee

On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-22-16151

MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Goldstein Opinion by Chief Justice Burns Before the Court is appellants’ petition for permissive appeal of the trial

court’s March 15, 2023 interlocutory order denying their motion to dismiss

pursuant to rule of civil procedure 91a. See TEX. R. CIV. P. 91a (concerning

dismissal of baseless causes of action). We strictly construe a statute authorizing

an interlocutory appeal because it is an exception to the general rule that only final

judgments are appealable. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d

835, 841 (Tex. 2007); see also TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (requirements for permissive appeal); TEX. R. APP. P. 28.3 (same); TEX. R. CIV. P.

168 (same).

Rule of Civil Procedure 168 requires that a trial court’s permission to appeal

an otherwise unappealable interlocutory order must be stated in the appealed order.

See TEX. R. CIV. P. 168. Here, the appealed order does not include the trial court’s

permission to appeal. Rather, the trial court signed a separate order on April 17,

2023 granting permission to appeal. This order is not an amended order denying

the rule 91a motion. Moreover, the April 17th order does not reference the

appealed order. As such, the separate order of permission does not comply with

rule 168. See Heinrich v. Strasburger & Price, L.L.P., No. 01-15-00473-CV, 2015

WL 5626507, at *1 (Tex. App.—Houston [1st Dist.] Sept. 24, 2015, no pet.)

(dismissing petition for permissive appeal for want of jurisdiction because trial did

not sign a single order that both granted the plea to jurisdiction and granted

permission to appeal in violation of rule 168); Fox v. Buckland, No. No. 02-16-

00453-CV, 2017 WL 1018594 (Tex. App.—Fort Worth Mar. 16, 2017, no pet.)

(rehearing granted after appellant obtained an amended single order that included

permission); Connor v. Hooks, No. 03-19-00571-CV, 2020 WL 5099967, at *1

(Tex. App.—Austin Aug. 27, 2020, no pet.) (denying petition for permissive

appeal where permission granted in separate order in violation of rule 168 and also

failed to identify controlling question of law).

–2– Because the trial court did not sign a single order that both denied

appellants’ rule 91a motion to dismiss and granted permission to appeal the order,

this Court has no jurisdiction over this appeal. Accordingly, we dismiss the

petition for permissive appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

/Robert D. Burns, III/ ROBERT D. BURNS, III 230299F.P05 CHIEF JUSTICE

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BADGER TAVERN LP, 1676 On Appeal from the 134th Judicial REGAL JV, AND 1676 REGAL District Court, Dallas County, Texas ROW, DALLAS, TEXAS, IN REM, Trial Court Cause No. DC-22-16151. Appellants Opinion delivered by Chief Justice Burns. Justices Molberg and Goldstein No. 05-23-00299-CV V. participating.

CITY OF DALLAS, Appellee

In accordance with this Court’s opinion of this date, the petition for permissive appeal is DISMISSED.

It is ORDERED that appellee CITY OF DALLAS recover its costs of this appeal from appellants BADGER TAVERN LP, 1676 REGAL JV, AND 1676 REGAL ROW, DALLAS, TEXAS, IN REM.

Judgment entered April 20, 2023

–4–