Harden Healthcare, LLC v. OLP Wyoming Springs, LLC

• Court: Court of Appeals of Texas
• Decided: November 20, 2020
• Docket: 03-20-00275-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-20-00275-CV

Harden Healthcare, LLC, Appellant

v.

OLP Wyoming Springs, LLC, Appellee

FROM THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 18-1511-C368, THE HONORABLE RICK J. KENNON, JUDGE PRESIDING

MEMORANDUM OPINION

Harden Healthcare, LLC (HH) petitions for permissive appeal from an

interlocutory order granting a motion for partial summary judgment filed by OLP Wyoming

Springs, LLC (OLP). OLP has filed a response opposing HH’s petition. When an interlocutory

order “involves a controlling question of law as to which there is a substantial ground for

difference of opinion” and “an immediate appeal from the order may materially advance the

ultimate termination of the litigation,” a trial court may permit an appeal from the interlocutory

order, and we have discretion to accept the appeal. Tex. Civ. Prac. & Rem. Code § 51.014(d),

(f); see Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 730–33 (Tex. 2019). Because we conclude that HH has not demonstrated “how an immediate appeal from the order

may materially advance the ultimate termination of the litigation,” we deny HH’s petition.1

In the underlying suit, OLP sued HH for breach of lease guaranties that were

signed by Benjamin Hanson, purportedly on HH’s behalf as its executive vice president and

general counsel. Based on Hanson’s deposition testimony, OLP moved for partial summary

judgment on HH’s liability on this claim, which the trial court granted. The interlocutory order

imposes liability on HH “with damages to be determined,” states that “immediate appeal of this

Order may materially advance the ultimate termination of the litigation as a decision from the

appellate court could advance settlement discussions and/or provide clarity as to whether [HH]

can be subject to liability,” and identifies two “controlling questions of law.” See Tex. R. Civ. P.

168 (requiring trial court order to identify controlling questions of law and state why immediate

appeal may advance ultimate termination of litigation). First, “is a company officer’s

representation of his authority to bind the company sufficient to establish actual or apparent

authority?” Second, “can a movant for summary judgment meet its burden to prove a company

officer had authority to execute an agreement, and therefore shift the burden to the non-movant,

where the movant relies only on the sworn deposition testimony of the company officer?”

Importantly, the trial court’s partial summary judgment concerned only HH’s

liability on OLP’s claim for breach of lease guaranties. And HH does not dispute OLP’s

representation in its response that the following issues remain pending for litigation: the amount

of damages arising from HH’s breach of lease guaranties; Hanson’s and HH’s competing breach

of fiduciary duty claims; and HH’s counterclaim against OLP for allegedly aiding and abetting

1 We express no opinion as to whether the order involves a controlling question of law as to which there is a substantial ground for difference of opinion. 2 Hanson’s purported breach of fiduciary duty. HH nevertheless argues that immediate review of

this issue “would materially advance the resolution of the litigation by removing an appealable

error that may lead this Court to later remand the litigation for a new trial.” But if we were to

grant permission to appeal and HH was successful on interlocutory appeal, we would reverse the

partial summary judgment. Thus, the issue of HH’s liability on OLP’s claim for breach of lease

guaranties would remain pending for litigation to be tried along with the other remaining

issues. See ADT Sec. Servs., Inc. v. Van Peterson Fine Jewelers, No. 05-15-00646-CV,

2015 WL 4554519, at *3 (Tex. App.—Dallas July 29, 2015, no pet.) (mem. op.) (concluding

interlocutory appeal would not materially advance ultimate termination of litigation because

even if permission were granted and regardless of result on appeal “neither party would seek

judgment without further litigation”). Rather than materially advancing the ultimate termination

of the litigation, we would be expanding the issues to be tried in the trial court that may or may

not be appealed post-trial. See Gulf Coast Asphalt Co. v. Lloyd, 457 S.W.3d 539, 545 (Tex.

App.—Houston [14th Dist.] 2015, no pet.) (denying permission for interlocutory appeal and

noting that trial court’s partial summary judgment concerned only “one legal question that

might possibly affect only one facet” of claim); Trailblazer Health Enters. v. Boxer F2, L.P.,

No. 05-13-01158-CV, 2013 WL 5373271, at *1 (Tex. App.—Dallas Sept. 23, 2013, no pet.)

(mem. op.) (noting that “there are several other issues in the litigation; there is no evidence that

the ultimate termination of the litigation would be advanced by allowing this appeal”);

cf. Armour Pipe Line Co. v. Sandel Energy, Inc., No. 14-16-00010-CV, 2016 WL 514229, at *4

(Tex. App.—Houston [14th Dist.] Feb. 9, 2016, no pet.) (per curiam) (mem. op.) (“Rule 168’s

purpose—to provide a means for expedited appellate disposition of focused and potentially

3 dispositive legal questions—is not served if this procedure is used to obtain piecemeal appellate

review of ordinary interlocutory summary judgment orders.”).

HH also argues that “because claims still remain challenging Hanson’s authority

to bind [HH], and discovery will finally become available to [HH] in the trial court, allowing the

underlying litigation to proceed without resolution of the questions presented will likely lead to

competing findings on the issue of Hanson’s authority.” But OLP based its motion for partial

summary judgment on discovery—i.e., Hanson’s deposition—and HH does not explain why

discovery was unavailable to it prior to the summary judgment proceeding. To the extent that

HH believes that discovery would lead to new evidence as to Hanson’s authority, HH has not

explained why the ultimate termination of litigation would be materially advanced by seeking an

interlocutory appeal in this Court prior to the discovery of such evidence rather than by filing in

the trial court a motion for new trial of the partial summary judgment upon the discovery of that

evidence. See Tex. R. App. P. 28.3(e)(4) (requiring petitioner to “argue clearly and concisely”

how immediate appeal from order may materially advance ultimate termination of litigation).

Finally, HH claims that “an immediate appeal now may obviate a long and costly

trial and appeal by restoring the status quo and enabling the parties to assess a reasonable and

amicable resolution of the Lawsuit.” But restoring the status quo by granting permission to

appeal—when HH’s requested appellate relief would not resolve the question of HH’s liability—

does not necessarily promote settlement; rather, it would redistribute the negotiating power of the

parties seeking settlement, while at the same time increasing their pretrial costs litigating the

interlocutory appeal. In this case, we cannot conclude that an immediate appeal would

materially advance the ultimate termination of litigation by promoting settlement. Cf. Oklahoma

Specialty Ins. v. St. Martin De Porres, Inc., No. 05-17-00194-CV, 2017 WL 1737997, at *1

4 (Tex. App.—Dallas May 4, 2017, no pet.) (mem. op.) (denying permissive appeal because it

“will not materially advance the ultimate termination of the litigation by considerably shortening

the time, effort, and expense involved in obtaining a final judgment”).

Having carefully reviewed the petition, the response, and the reply, we conclude

that HH did not establish the statutory requirements for a permissive appeal. See Tex. Civ. Prac.

& Rem. Code § 51.014(d)(2), (f). Accordingly, we deny HH’s petition for permissive appeal.

__________________________________________ Melissa Goodwin, Justice

Before Justices Goodwin, Triana, and Smith

Filed: November 20, 2020