Hartline Barger LLP v. Denson Walker Properties, LLC D/B/A Hilton Garden Inn Denison/Sherman

Opinion

Dismiss and Opinion Filed December 11, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00126-CV

HARTLINE BARGER LLP, Appellant V. DENSON WALKER PROPERTIES, LLC D/B/A HILTON GARDEN INN DENISON/SHERMAN, Appellee

On Appeal from the 15th Judicial District Court Grayson County, Texas Trial Court Cause No. CV-20-0984

MEMORANDUM OPINION Before Justices Molberg, Pedersen, III, and Goldstein Opinion by Justice Goldstein Hartline Barger LLP has filed a petition seeking permission to appeal the trial

court’s amended order denying Hartline’s partial summary judgment motion on its

declaratory judgment on contract claim and granting Denson Walker Properties,

LLC d/b/a Hilton Garden Inn Denison/Sherman’s partial summary judgment motion

on Hartline’s claims for violations of the Deceptive Trade Practices Act (“DTPA”)

and Texas Theft Liability Act (“TTLA”). See TEX. R. APP. P. 28.3 (providing

procedure for permissive appeal). Hartline’s claims are part of a suit it filed against

Hilton following a dispute over room cancellation fees. At the center of the dispute is whether a contract was formed for the use of hotel guest and conference rooms

anticipated to be needed by a Hartline litigation team while in trial. For the reasons

that follow, we deny the petition. See id.

A permissive appeal is appropriate when, among other requirements, the

otherwise unappealable interlocutory order sought to be appealed involves a

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

of opinion.” See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d). A “controlling

question of law as to which there is a substantial ground for difference of opinion”

is an “uncertain” issue of law, unconstrained by procedural or factual issues, that is

“important to the outcome of the litigation.” See Sabre Travel Int’l, Ltd. v. Deutsche

Lufthansa AG, 567 S.W.3d 725, 732 (Tex. 2019); El Paso Tool & Die Co., Inc. v.

Mendez, 593 S.W.3d 800, 805 (Tex. App.—El Paso 2019, no pet.).

The order Hartline seeks to appeal involves, according to the trial court, three

controlling legal issues on which substantial disagreement exists:

•whether Hartline raised a fact issue on its TTLA claim for lack of effective consent;

•whether Hartline raised a fact issue on its DTPA claim, both as to identification of a deceptive act and causation; and

•whether “there exists a March 8, 2019 oral contract between the parties.”

See TEX. R. CIV. P. 168 (requiring trial court to identify controlling legal issue);

Thornton v. Dobbs, 355 S.W.3d 312, 316 (Tex. App.—Dallas 2011, no pet.)

(contract formed when (1) offer is made, (2) offer is accepted in strict compliance

–2– with its terms, (3) meeting of minds occurs, (4) parties consent to terms, and (5)

contract is executed and delivered with intent that it be mutually binding); Tex.

Integrated Conveyor Syst., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d

348, 366 (Tex. App.—Dallas 2009, pet. denied) (op. on reh’g) (TTLA claim requires

showing that property was appropriated without owner’s effective consent); Sparks

v. Booth, 232 S.W.3d 853, 864 (Tex. App.—Dallas 2007, no pet.) (DTPA claim

requires showing of false, misleading, or deceptive act and resulting damages). The

determination of these questions, however, is constrained by the facts. Although the

possibility exists that a controlling legal question as to which a substantial ground

for disagreement exists might arise in determining whether a fact issue exists in the

context of a summary judgment, it is rare, and this fact-intensive case is not that rare

occurrence. See Diamond Prod. Int’l, Inc. v. Handsel, 142 S.W.3d 491, 496 (Tex.

App.—Houston [14th Dist.] 2004, no pet.) (Frost, J., concurring); see also In re

Estate of Fisher, 421 S.W.3d 682, 684-85 (Tex. App.—Texarkana 2014, no pet.)

(denying petition for permissive appeal because controlling issue in will contest–-

whether undue influence was exerted–-involved factual issues); Borowski v. Ayers,

432 S.W.3d 344, 348 (Tex. App.—Waco 2013, no pet.) (noting permissive appeal

would be inappropriate if summary judgment motion was denied based on

conclusion that genuine issue of material fact was raised). Accordingly, we deny

the petition. See Gulf Coast Asphalt Co. v. Lloyd, 457 S.W.3d 539, 545 (Tex. App.—

Houston [14th Dist.] 2015, no pet.) (concluding that, because interlocutory orders

–3– are generally not immediately appealable and requirements for permissive appeal

are strictly construed, failure to satisfy one requirement precludes petition from

being granted); see also Sabre Travel Int’l, 567 S.W.3d at 732 (noting appellate court

may deny petition for permissive appeal under authority that interlocutory appeal

statute must be strictly construed).

/Bonnie Lee Goldstein/. 230126f.p05 BONNIE LEE GOLDSTEIN JUSTICE

–4– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

HARTLINE BARGER LLP, On Appeal from the 15th Judicial Appellant District Court, Grayson County, Texas No. 05-23-00126-CV V. Trial Court Cause No. CV-20-0984. Opinion delivered by Justice DENSON WALKER PROPERTIES, Goldstein, Justices Molberg and LLC D/B/A HILTON GARDEN Pedersen, III participating. INN DENISON/SHERMAN, Appellee

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

We ORDER that appellee Denson Walker Properties, LLC d/b/a Hilton Garden Inn Denison/Sherman recover its costs, if any, of this appeal from appellant Hartline Barger LLP.

Judgment entered this 11th day of December 2023.

–5–