Gwendolyn Bush O'Brien Marsh, as of the Estate of Stanley Marsh 3 v. Stanton Coldiron

• Court: Court of Appeals of Texas
• Decided: August 29, 2016
• Docket: 07-16-00319-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-16-00319-CV

GWENDOLYN BUSH O'BRIEN MARSH, AS EXECUTOR OF THE ESTATE OF STANLEY MARSH 3, DECEASED, APPELLANT

V.

STANTON COLDIRON, APPELLEE

On Appeal from the 181st District Court Potter County, Texas Trial Court No. 105,475-B, Honorable John B. Board, Presiding

August 29, 2016

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Gwendolyn Bush O'Brien Marsh, as executor of the estate of Stanley Marsh 3,

has filed with this Court her petition for permissive appeal. In her petition, she asks this

Court to review the basis of the trial court’s interlocutory order denying her motion for

summary judgment filed as defendant below. We will deny her petition. Discussion

Generally, appellate courts have jurisdiction only over appeals from final

judgments. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). That

being so, a party may not appeal an interlocutory order unless specifically authorized by

statute. See Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001)

(citing Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985) (per curiam)).

Because interlocutory appeals are allowed only in limited circumstances, we strictly

construe statutory provisions permitting interlocutory appeals. See id. at 355; State Fair

of Tex. v. Iron Mountain Info. Mgmt., Inc., 299 S.W.3d 261, 262–63 (Tex. App.—Dallas

2009, no pet.).

Here, Marsh relies on the Texas Civil Practice and Remedies Code as the basis

for her petition for permissive appeal of the trial court’s interlocutory order. See TEX.

CIV. PRAC. & REM. CODE ANN. § 51.014(d), (f) (West Supp. 2016). An appellate court

may accept an interlocutory appeal permitted by Subsection (d) of Section 51.014. See

id. § 51.014(f); TEX. R. APP. P. 28.3(k). Subsection (d) allows a trial court to 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. See TEX. CIV. PRAC. & REM. CODE

ANN. § 51.014(d); Undavia v. Avant Med. Grp., P.A., 468 S.W.3d 629, 632 (Tex. App.—

Houston [14th Dist.] 2015, no pet.). Appellate courts have discretion to accept or refuse

to hear a permissive appeal. See Ho v. Johnson, No. 09-15-0077-CV, 2016 Tex. App.

LEXIS 1668, at *2 (Tex. App.—Beaumont Feb. 18, 2016, pet. denied) (mem. op.); see

2 also TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(f) (providing that “[a]n appellate court

may accept an appeal permitted by Subsection (d)”) (emphasis added).

Conclusion

We have carefully considered the petition and the supporting documents

submitted by Marsh. After having done so, we deny Marsh’s petition for permissive

appeal.1

Per Curiam

Pirtle, J., would grant petition.

1 The Court hereby suspends the operation of the ten-day waiting period for disposition of this petition provided in Rule 28.3. See TEX. R. APP. P. 28.3(j) (providing that, “[u]nless the court of appeals orders otherwise, a petition . . . will be determined . . . no earlier than 10 days after the petition is filed”); see also TEX. R. APP. P. 2 (permitting appellate court to suspend operation of certain procedural rules “to expedite a decision or for other good cause”).