Estate of James Tenison, Diane Tenison, Administrator of Estate and Next of Kin, Diane Tenison, Individually, Margie Tenison, Individually v. Brookshire Grocery Company

Opinion

DISMISS and Opinion Filed July 26, 2021

S In The

Court of Appeals

Fifth District of Texas at Dallas No. 05-21-00455-CV

ESTATE OF JAMES TENISON, DIANE TENISON, ADMINISTRATOR OF ESTATE AND NEXT OF KIN, DIANE TENISON, INDIVIDUALLY, MARGIE TENISON, INDIVIDUALLY, AND JOHN ALFRED TENISON, INDIVIDUALLY, Appellants

V.

BROOKSHIRE GROCERY COMPANY, Appellee

On Appeal from the 160th Judicial District Court Dallas County, Texas

Trial Court Cause No. DC-19-08158

MEMORANDUM OPINION

Before Chief Justice Burns, Justice Molberg, and Justice Smith Opinion by Chief Justice Burns We questioned our jurisdiction over this appeal from the trial court’s partial

summary judgment order because the order did not dispose of all claims and appeared interlocutory. See Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (appeal may generally only be taken from final judgment that disposes of all parties and claims); Loy v. Harter, 128 S.W.3d 397, 409 (Tex. App.— Texarkana 2004, pet. denied) (partial summary judgment is interlocutory and does not become appealable unless it is severed from remaining portion of case or final

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judgment determining remaining portion of case is signed). Specifically, the record reflected appellant had asserted causes of action for negligence, premises liability, wrongful death, and survival. The order disposed of the negligence and wrongful death claims, but nothing in the record reflected the premises liability and survival claims had been determined.

In jurisdictional briefing filed at our request, appellant does not dispute the order is interlocutory but argues it is appealable under Texas Civil Practice and Remedies Code section 51.014(d). Section 51.014(d) allows an appeal from an otherwise unappealable interlocutory order if the order involves a controlling question of law as to which a substantial ground for difference of opinion exists and an immediate appeal might materially advance the ultimate termination of the litigation. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d). The order must explicitly state that the trial court grants permission to appeal and identify the controlling question of law. See id.; TEX. R. CIV. P. 168.

The order here does not grant permission or identify any controlling questions of law, but appellant asserts two controlling questions of law inherently arise from the order: (1) whether a claim for negligence can be dismissed as a matter of law when a premises liability claim remains viable; and, (2) whether a wrongful death action can be dismissed as a matter of law when a survival claim remains viable. As appellee notes in its response, however, an appeal under section 51.014(d) is allowed

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only upon the direction of the trial court. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d); TEX. R. CIV. P. 168.

Because the appealed order is interlocutory and not appealable, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a); Loy, 128 S.W.3d at 409.

/Robert D. Burns, III/

ROBERT D. BURNS, III

CHIEF JUSTICE

210455F.P05

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S

Court of Appeals

Fifth District of Texas at Dallas JUDGMENT

ESTATE OF JAMES TENISON, On Appeal from the 160th Judicial DIANE TENISON, District Court, Dallas County, Texas ADMINISTRATOR OF ESTATE Trial Court Cause No. DC-19-08158. AND NEXT OF KIN, DIANE Opinion delivered by Chief Justice TENISON, INDIVIDUALLY, Burns, Justices Molberg and Smith MARGIE TENISON, participating. INDIVIDUALLY, AND JOHN ALFRED TENISON, INDIVIDUALLY, Appellants

No. 05-21-00455-CV V.

BROOKSHIRE GROCERY COMPANY, Appellee

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

We ORDER that appellee Brookshire Grocery Company recover its costs, if any, of this appeal from appellants Estate of James Tenison, Diane Tenison, Administrator of Estate and Next of Kin, Diane Tenison, Individually, Margie Tenison, Individually, and John Alfred Tenison, Individually.

Judgment entered July 26, 2021.