Hebert v. JJT Construction

438 S.W.3d 139, 2014 WL 3368190, 2014 Tex. App. LEXIS 7463
CourtCourt of Appeals of Texas
DecidedJuly 10, 2014
DocketNo. 14-14-00430-CV
StatusPublished
Cited by21 cases

This text of 438 S.W.3d 139 (Hebert v. JJT Construction) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hebert v. JJT Construction, 438 S.W.3d 139, 2014 WL 3368190, 2014 Tex. App. LEXIS 7463 (Tex. Ct. App. 2014).

Opinion

OPINION

JOHN DONOVAN, Justice.

Before this court is a petition for permission to appeal an interlocutory order that is not otherwise appealable. Charles Hebert and Treasa Antony, referred to as appellants, filed a petition under Texas Rule of Appellate Procedure 28.3 seeking permission from this court for an interlocutory appeal under Texas Civil Practice and Remedies Code section 51.014(d) from an interlocutory order signed May 13, 2014, denying their motion for partial summary judgment.1 See Tex. Civ. Prac. & Rem.Code § 51.014(d) (specifying circum[140]*140stances under which trial court may grant written permission to appeal an otherwise unappealable order); see also Tex.R.App. P. 28.3; Tex.R. Civ. P. 168. On June 9, 2014, JJT Construction, JJT Construction, Inc., and Emmanuel D. Watson, referred to as appellees, filed a response in opposition to the petition. In the response, ap-pellees assert (1) the trial court has not granted permission to appeal; (2) the order to be appealed does not comply with Texas Rule of Civil Procedure 168; (3) the application does not comply with Texas Rule of Appellate Procedure 28.3(e); and (4) the application does not comply with Texas Civil Practice and Remedies Code Section 51.014(d).

PERMISSIVE APPEALS

Courts of appeals do not have jurisdiction over appeals from interlocutory orders unless a statute provides for an interlocutory appeal from such orders. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.2007). Section 51.014 of the Texas Civil Practice and Remedies Code lists several types of interlocutory orders that may be immediately appealed. See Tex. Civ. Prac. & Rem. Code § 51.014. In 2011, section 51.014 was amended to provide:

(d) 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 ap-pealable 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 § 51.014(d).2 In addition, subsection (f) specifies the procedure for bringing a permissive interlocutory appeal under subsection (d), providing:

An appellate court may accept an appeal permitted by Subsection (d) if the appealing party, not later than the 15th day after the date the trial court signs the order to be appealed, files in the court of appeals having appellate jurisdiction over the action an application for interlocutory appeal explaining why an appeal is warranted under Subsection (d). If the court of appeals accepts the appeal, the appeal is governed by the procedures in the Texas Rules of Appellate Procedure for pursuing an accelerated appeal. The date the court of appeals enters the order accepting the appeal starts the time applicable to filing the notice of appeal.

Tex. Civ. Prac. & Rem.Code § 51.014(f).

The rules of procedure were also amended in 2011 to address the changes to the statute governing permissive appeals. See Tex.R.App. P. 28.3 cmt. (noting the amendment to the statute necessitated the addition of Rule 28.3 and the adoption of Rule of Civil Procedure 168). Appellate Rule 28.3 was added to provide in part:

(a) Petition Required. When a trial court has permitted an appeal from an interlocutory order that would not otherwise be appealable, a party seeking to appeal must petition the court of appeals for permission to appeal.
[141]*141(b) Where Filed. The petition must be filed with the clerk of the court of appeals having appellate jurisdiction over the action in which the order to be appealed is issued. The First and Fourteenth Courts of Appeals must determine in which of those two courts a petition will be filed.

Tex.R.App. P. 28.3(a), (b). In addition, Rule 28.3 specifies the required contents of a petition for permission to appeal.

The petition must:

(1) contain the information required by Rule 25.1(d) to be included in a notice of appeal:
(2) attach a copy of the order from which appeal is sought:
(3) contain a table of contents, index of authorities, issues presented, and a statement of facts; and
(4) argue clearly and concisely why the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion and how an immediate appeal from the order may materially advance the ultimate termination of the litigation.

Tex.R.App. P. 28.3(e).

Texas Rule of Civil Procedure 168 is a new rule, added in 2011 to implement amendments to section 51.014(d)-(f) of the Texas Civil Practice and Remedies Code.3 The rule states:

On a party’s motion or on its own initiative, a trial court may permit an appeal from an interlocutory order that is not otherwise appealable, as provided by statute. Permission must be stated in the order to be appealed. An order previously issued may be amended to include such permission. The permission must identify the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why an immediate appeal may materially advance the ultimate termination of the litigation.

Tex.R. Civ. P. 168. Thus, under this rule, the trial court’s permission, the controlling legal issue, and the reasons why an immediate appeal will materially advance the litigation must be stated in the order to be appealed.

In summary, following the 2011 amendments to section 51.014 of the Texas Civil Practice and Remedies Code, the related enactment of Texas Rule of Civil Procedure 168 and amendment to Texas Rule of Appellate Procedure 28, the following must occur'in order for all applicable procedures for a permissive appeal to be satisfied: (1) on a party’s motion or on its own initiative, the trial court must issue a written order that includes both an interlocutory order that is not otherwise appealable and a statement of the trial court’s permission to appeal this order under Texas Civil Practice and Remedies Code section 51.014(d); (2) in this statement of permission, the trial court must identify the controlling question of law as to which there is a substantial ground for difference of opinion and must state why an immediate appeal may materially advance the ultimate termination of the litigation; (3) after the trial court signs an order granting permission in accordance with Texas Civil Practice and Remedies Code section 51.014(f) and Texas Rule of Appellate Procedure 28.3, the appellant must timely file a petition seeking permission from the court of appeals to appeal; and (4) the court of appeals must grant the petition for permission to appeal. See Tex. Civ. Prac. & Rem.Code § 51.014(d)-(f); Tex.RApp. P. [142]*14228.8 & cmt.4

THE UNDERLYING PROCEEDINGS

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Cite This Page — Counsel Stack

Bluebook (online)
438 S.W.3d 139, 2014 WL 3368190, 2014 Tex. App. LEXIS 7463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hebert-v-jjt-construction-texapp-2014.