Opinion issued June 24, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00372-CV ——————————— GREAT AMERICAN E&S INSURANCE COMPANY, Appellant V. LAPOLLA INDUSTRIES, INC., Appellee
On Appeal from the 270th District Court Harris County, Texas Trial Court Case No. 2013-41127
MEMORANDUM OPINION
Appellant, Great American E&S Insurance Company, has filed a petition
seeking permission to appeal an interlocutory order denying its motion for
summary judgment. See TEX. R. APP. P. 28.3(a); see also TEX. CIV. PRAC. & REM.
CODE ANN. § 51.014(d) (West Supp. 2013). Appellee, Lapolla Industries, Inc., has filed a motion to dismiss appellant’s petition for lack of jurisdiction. We grant the
motion to dismiss.
In its petition, appellant asserts that this case involves the interpretation of an
insurance policy appellant issued to appellee. Appellant filed the underlying
lawsuit seeking a declaratory judgment that it has no duty to defend or indemnify
appellee under the policy. On October 1, 2013, appellant filed a motion for
summary judgment.
On January 9, 2014, the trial court denied appellant’s motion, without
explanation. Subsequently, appellant moved for permission to appeal the
interlocutory summary judgment order pursuant to section 51.014(d) of the Texas
Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 51.014(d) (allowing appeal of otherwise not appealable order under certain
circumstances). The trial court signed an amended order on April 23, 2014. This
amended order again denied appellant’s motion without providing a basis for the
trial court’s ruling, but granted permission for appellant to file an interlocutory
appeal. The order also noted the following controlling question of law:
Did Great American E&S Insurance Company have a duty to defend Lapolla Industries, Inc. in the matter styled Robert and Cynthia Gibson v. Lapolla Industries, Inc. and Air Tight Insulation of Mid- Florida, LLC, Case No.: 6:13-cv-646? Or, did the Great American Policy’s “Total Pollution Exclusion” exclude coverage for Lapolla based on Plaintiffs’ factual allegations in the Gibson lawsuit?
2 Appellant timely filed its petition for permissive appeal in this Court. See TEX. R.
APP. P. 28.3(c).
Appellee has now filed a motion to dismiss the appeal for want of
jurisdiction. Appellee contends that the Court is without jurisdiction to consider
appellant’s appeal because the trial court did not rule on the controlling issue of
law, and the trial court’s denial of appellant’s motion for summary judgment,
without explanation, does not constitute such a ruling on the controlling issue of
law as required by section 51.014(d) of the Texas Civil Practice and Remedies
Code. Thus, appellee argues that any ruling from this Court would be an
impermissible advisory opinion. We agree.
An appeal may be taken only from a final summary judgment, unless a
statute specifically authorizes an interlocutory appeal. See Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001). This Court strictly construes statutes
authorizing interlocutory appeals because they are a narrow exception to the
general rule that interlocutory orders are not immediately appealable. See CMH
Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); see also City of Hous. v. Estate
of Jones, 388 S.W.3d 663, 666 (Tex. 2012) (per curiam) (“[W]e also ‘strictly
construe Section 51.014[] as a narrow exception to the general rule that only final
judgments are appealable.’” (quoting Tex. A & M Univ. Sys. v. Koseoglu, 223
S.W.3d 835, 841 (Tex. 2007))).
3 An order denying a motion for summary judgment is generally not
appealable because it is an interlocutory order and not a final judgment.
Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (per curiam). However,
section 51.014(d) of the Texas Civil Practice and Remedies Code provides:
On a party’s motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if:
(1) the order to be appealed involves a controlling question of law as to which there is a 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).1
Notably though, “[t]he legislature’s institution of this procedure authorizing
a trial court to permit an immediate appeal of an interlocutory order is nevertheless
premised on the trial court having first made a substantive ruling on the controlling
legal issue being appealed.” Borowski v. Ayers, No. 10-13-00077-CV, 2013 WL
6388336, at *3 (Tex. App.—Waco Dec. 5, 2013, no pet.) (emphasis added); see
also McCroskey v. Happy State Bank, No. 07-14-00027-CV, 2014 WL 869577, at
1 Unless the statutory requirements found in section 51.014(d) of the Texas Civil Practice and Remedies Code are met, this Court is without jurisdiction over the permissive appeal. See Double Diamond Del., Inc. v. Walkinshaw, No. 05-13- 00893-CV, 2013 WL 5538814, at *2 (Tex. App.—Dallas Oct. 7, 2013, no pet.) (mem. op.); State Fair of Tex. v. Iron Mountain Info. Mgmt., Inc., 299 S.W.3d 261, 262 (Tex. App.—Dallas 2009, no pet.). 4 *1 (Tex. App.—Amarillo Feb. 28, 2014, no pet.) (mem. op.) (the record must show
“that the trial court ruled on the specific legal issues presented for [appellate court]
to decide”); Corp. of the President of the Church of Jesus Christ of Latter-Day
Saints v. Doe, No. 13-13-00463-CV, 2013 WL 5593441, at *2 (Tex. App.—
Corpus Christi Oct. 10, 2013, no pet.) (mem. op.) (“Without a substantive ruling by
the trial court as to why it denied the Church’s motion, no controlling question of
law has been presented for our analysis.”); Double Diamond Del., Inc. v.
Walkinshaw, No. 05-13-00893-CV, 2013 WL 5538814, at *2 (Tex. App.—Dallas
Oct. 7, 2013, no pet.) (mem. op.) (“Inherent in these jurisdictional requirements is
that the trial court make a substantive ruling on the specific legal question
presented on appeal.”); Bank of N.Y. Mellon v. Guzman, 390 S.W.3d 593, 597–98
(Tex. App.—Dallas 2012, no pet.) (there must be something in record showing
trial court made substantive ruling on any legal issues court of appeals is being
asked to decide); Gulley v. State Farm Lloyds, 350 S.W.3d 204, 207 (Tex. App.—
San Antonio 2011, no pet.) (trial court must first make substantive ruling on
controlling legal issue being appealed). “In other words, the interlocutory order
cannot ‘involve[] a controlling question of law’ [as required by section 51.014(d)]
until the trial court has made a substantive ruling on the controlling legal issue in
the order.” Borowski, 2013 WL 6388336, at *3 (first alteration in original); see
also Corp.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion issued June 24, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00372-CV ——————————— GREAT AMERICAN E&S INSURANCE COMPANY, Appellant V. LAPOLLA INDUSTRIES, INC., Appellee
On Appeal from the 270th District Court Harris County, Texas Trial Court Case No. 2013-41127
MEMORANDUM OPINION
Appellant, Great American E&S Insurance Company, has filed a petition
seeking permission to appeal an interlocutory order denying its motion for
summary judgment. See TEX. R. APP. P. 28.3(a); see also TEX. CIV. PRAC. & REM.
CODE ANN. § 51.014(d) (West Supp. 2013). Appellee, Lapolla Industries, Inc., has filed a motion to dismiss appellant’s petition for lack of jurisdiction. We grant the
motion to dismiss.
In its petition, appellant asserts that this case involves the interpretation of an
insurance policy appellant issued to appellee. Appellant filed the underlying
lawsuit seeking a declaratory judgment that it has no duty to defend or indemnify
appellee under the policy. On October 1, 2013, appellant filed a motion for
summary judgment.
On January 9, 2014, the trial court denied appellant’s motion, without
explanation. Subsequently, appellant moved for permission to appeal the
interlocutory summary judgment order pursuant to section 51.014(d) of the Texas
Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 51.014(d) (allowing appeal of otherwise not appealable order under certain
circumstances). The trial court signed an amended order on April 23, 2014. This
amended order again denied appellant’s motion without providing a basis for the
trial court’s ruling, but granted permission for appellant to file an interlocutory
appeal. The order also noted the following controlling question of law:
Did Great American E&S Insurance Company have a duty to defend Lapolla Industries, Inc. in the matter styled Robert and Cynthia Gibson v. Lapolla Industries, Inc. and Air Tight Insulation of Mid- Florida, LLC, Case No.: 6:13-cv-646? Or, did the Great American Policy’s “Total Pollution Exclusion” exclude coverage for Lapolla based on Plaintiffs’ factual allegations in the Gibson lawsuit?
2 Appellant timely filed its petition for permissive appeal in this Court. See TEX. R.
APP. P. 28.3(c).
Appellee has now filed a motion to dismiss the appeal for want of
jurisdiction. Appellee contends that the Court is without jurisdiction to consider
appellant’s appeal because the trial court did not rule on the controlling issue of
law, and the trial court’s denial of appellant’s motion for summary judgment,
without explanation, does not constitute such a ruling on the controlling issue of
law as required by section 51.014(d) of the Texas Civil Practice and Remedies
Code. Thus, appellee argues that any ruling from this Court would be an
impermissible advisory opinion. We agree.
An appeal may be taken only from a final summary judgment, unless a
statute specifically authorizes an interlocutory appeal. See Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001). This Court strictly construes statutes
authorizing interlocutory appeals because they are a narrow exception to the
general rule that interlocutory orders are not immediately appealable. See CMH
Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); see also City of Hous. v. Estate
of Jones, 388 S.W.3d 663, 666 (Tex. 2012) (per curiam) (“[W]e also ‘strictly
construe Section 51.014[] as a narrow exception to the general rule that only final
judgments are appealable.’” (quoting Tex. A & M Univ. Sys. v. Koseoglu, 223
S.W.3d 835, 841 (Tex. 2007))).
3 An order denying a motion for summary judgment is generally not
appealable because it is an interlocutory order and not a final judgment.
Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (per curiam). However,
section 51.014(d) of the Texas Civil Practice and Remedies Code provides:
On a party’s motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if:
(1) the order to be appealed involves a controlling question of law as to which there is a 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).1
Notably though, “[t]he legislature’s institution of this procedure authorizing
a trial court to permit an immediate appeal of an interlocutory order is nevertheless
premised on the trial court having first made a substantive ruling on the controlling
legal issue being appealed.” Borowski v. Ayers, No. 10-13-00077-CV, 2013 WL
6388336, at *3 (Tex. App.—Waco Dec. 5, 2013, no pet.) (emphasis added); see
also McCroskey v. Happy State Bank, No. 07-14-00027-CV, 2014 WL 869577, at
1 Unless the statutory requirements found in section 51.014(d) of the Texas Civil Practice and Remedies Code are met, this Court is without jurisdiction over the permissive appeal. See Double Diamond Del., Inc. v. Walkinshaw, No. 05-13- 00893-CV, 2013 WL 5538814, at *2 (Tex. App.—Dallas Oct. 7, 2013, no pet.) (mem. op.); State Fair of Tex. v. Iron Mountain Info. Mgmt., Inc., 299 S.W.3d 261, 262 (Tex. App.—Dallas 2009, no pet.). 4 *1 (Tex. App.—Amarillo Feb. 28, 2014, no pet.) (mem. op.) (the record must show
“that the trial court ruled on the specific legal issues presented for [appellate court]
to decide”); Corp. of the President of the Church of Jesus Christ of Latter-Day
Saints v. Doe, No. 13-13-00463-CV, 2013 WL 5593441, at *2 (Tex. App.—
Corpus Christi Oct. 10, 2013, no pet.) (mem. op.) (“Without a substantive ruling by
the trial court as to why it denied the Church’s motion, no controlling question of
law has been presented for our analysis.”); Double Diamond Del., Inc. v.
Walkinshaw, No. 05-13-00893-CV, 2013 WL 5538814, at *2 (Tex. App.—Dallas
Oct. 7, 2013, no pet.) (mem. op.) (“Inherent in these jurisdictional requirements is
that the trial court make a substantive ruling on the specific legal question
presented on appeal.”); Bank of N.Y. Mellon v. Guzman, 390 S.W.3d 593, 597–98
(Tex. App.—Dallas 2012, no pet.) (there must be something in record showing
trial court made substantive ruling on any legal issues court of appeals is being
asked to decide); Gulley v. State Farm Lloyds, 350 S.W.3d 204, 207 (Tex. App.—
San Antonio 2011, no pet.) (trial court must first make substantive ruling on
controlling legal issue being appealed). “In other words, the interlocutory order
cannot ‘involve[] a controlling question of law’ [as required by section 51.014(d)]
until the trial court has made a substantive ruling on the controlling legal issue in
the order.” Borowski, 2013 WL 6388336, at *3 (first alteration in original); see
also Corp. of the President, 2013 WL 5593441, at *2.
5 In this case, the trial court did not substantively rule on the controlling legal
issue presented in this permissive appeal. As stated above, in its amended order,
the trial court denied appellant’s motion for summary judgment without
explanation. When a trial court in its order on a motion for summary judgment
provides no basis for its denial, the trial court fails to make substantive ruling on
the controlling question of law sought to be appealed.2 Here, because the trial
court did not make a substantive ruling on the controlling legal issue, the order
appellant is attempting to appeal does not involve a controlling question of law,
and section 51.014(d) does not authorize an interlocutory appeal in this case. See
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d); see also McCroskey, 2014 WL
869577, at *1–2 (finding court was without jurisdiction because trial court denied
summary judgment and order did not show that trial court expressly ruled on
substance of controlling questions of law); Borowski, 2013 WL 6388336, at *3
(trial court denied motion for summary judgment without explanation; thus, trial
court did not substantively rule on controlling legal issue presented and order to be
appealed did not involve controlling question of law); Corp. of the President, 2013
2 It does not matter that the trial court’s orders attempts to identify the controlling legal issue if the order does not show that the trial court made a substantive ruling on that controlling question of law. See Corp. of the President of the Church of Jesus Christ of Latter-Day Saints v. Doe, No. 13-13-00463-CV, 2013 WL 5593441, at *2 (Tex. App.—Corpus Christi Oct. 10, 2013, no pet.) (mem. op.); Borowski v. Ayers, No. 10-13-00077-CV, 2013 WL 6388336, at *3 (Tex. App.— Waco Dec. 5, 2013, no pet.). 6 WL 5593441, at *2 (finding case did not present controlling question of law when
trial court’s order did not provide a basis for denial of appellant’s motion for
summary judgment); Double Diamond, 2013 WL 5538814, at *2 (“The appealed
order is silent as to the basis for the trial court[’]s order, and nothing in the record
shows the trial court made a substantive ruling on any of the legal issues presented
to us”; thus, appeal does not meet requirements of section 51.014(d)).
Accordingly, we conclude that the Court has no jurisdiction over this appeal.
We grant appellee’s motion to dismiss and dismiss the appeal for want of
jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f); see also McCroskey, 2014 WL
869577, at *2 (dismissing for want of jurisdiction); Borowski, 2013 WL 6388336,
at *4 (same); Double Diamond, 2013 WL 5538814, at *2 (same). We dismiss any
pending motions as moot.
PER CURIAM Panel consists of Justices Keyes, Sharp, and Huddle.