JETX Energy, LLC v. Lonestar Operating, LLC Eagleford Gas 5, LLC And Lonestar Resources US Inc.

• Court: Court of Appeals of Texas
• Decided: May 10, 2023
• Docket: 10-23-00073-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-23-00073-CV

JETX ENERGY, LLC, Appellant v.

LONESTAR OPERATING, LLC; EAGLEFORD GAS 5, LLC; AND LONESTAR RESOURCES US INC., Appellees

From the 272nd District Court Brazos County, Texas Trial Court No. 20-000872-CV-272

MEMORANDUM OPINION

Before the Court is Appellant JETX Energy’s petition for a permissive appeal to

challenge the trial court’s orders granting three motions for partial summary judgment.

We will deny the petition and dismiss the appeal.

Six days before the scheduled trial date, the trial court granted three motions for

partial summary judgment, each filed by one or more plaintiffs, seeking resolution of

certain questions of contract interpretation. After the three orders issued, JETX Energy asked the trial court to amend each of the respective orders to include language

allowing for permissive appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d)

(setting forth requirements). The trial court did so, and JETX Energy filed timely notice

with this Court. The plaintiffs oppose the petition.

Permissive appeals are allowed under limited circumstances. “A trial court in a

civil action may, by written order, permit an appeal from an order that is not otherwise

appealable” if “the order to be appealed 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.” Id. While a court of appeals enjoys broad discretion in evaluating and

disposing of petitions for permissive appeal, see Sabre Travel Int’l Ltd. v. Deutsche

Lufthansa AG, 567 S.W.3d 725, 732 (Tex. 2019), the court must expressly advise the

parties of the basic reasons for its decision, see Valero Refin. Tex., LP v. Vela, 647 S.W.3d

709, 710 (citing TEX. R. APP. P. 47.4). We will strictly construe any statute authorizing

interlocutory appeal as an exception to the general rule that only final judgments are

appealable, see Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007)

(referring to such statutes in general); Borowski v. Ayers, 432 S.W.3d 344, 347 (Tex.

App.—Waco 2013, no pet.) (referring to permissive appeals).

An order appealable under Section 51.014(d) “must identify the controlling

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

JETX Energy v. Lonestar Operating Page 2 and must state why an immediate appeal may materially advance the ultimate

termination of the litigation.” TEX. R. CIV. P. 168. In this case, each of the orders at issue

includes the following language: “An immediate appeal from this order may materially

advance the ultimate termination of the litigation because a final resolution of the

contract construction issues inherent in this summary judgment order should be

resolved before trial for the reasons stated in [JETX Energy’s] Motion to Amend Summary

Judgment Orders, Permit Interlocutory Appeal, and Stay Trial Court Proceedings.” (Emphasis

added.) That motion, which is included as an appendix to the briefing before this

Court, summarizes JETX Energy’s understanding of the arguments the plaintiffs raised

in their three motions for partial summary judgment. 1 But examination of those

arguments reveals that the trial court could have granted each motion based on one or

more conclusions of law. Thus, we cannot discern an eligible controlling question of

law with any specificity. See Borowski, 432 S.W.3d at 347–48 (dismissing appeal where

unable to determine basis for denial of summary judgment); accord QBE Ins. Corp. v.

Prop. Damage Appraisers, Inc., No. 02-22-00322-CV, 2022 WL 3716487 (Tex. App.—Fort

Worth Aug. 29, 2022, no pet.) (mem. op.) (denying petition “because the record is

ambiguous as to whether the trial court reached—much less ruled on—the question

presented for our review, and because ‘permissive appeals should be limited to those

cases where we can resolve controlling legal issues necessary to the resolution of the case’”

1 The motions for partial summary judgment are not part of the limited record before this Court.

JETX Energy v. Lonestar Operating Page 3 (quoting and adding emphasis to El Paso Tool & Die Co. v. Mendez, 593 S.W.3d 800, 809

(Tex. App.—El Paso 2019, no pet.))); Feagan v. Wilson, No. 11-21-00032-CV, 2021 WL

1134804, at *1 (Tex. App.—Eastland Mar. 25, 2021, no pet.) (mem. op.) (denying petition

where order “merely state[d] that ‘the Plaintiffs are granted permission to seek

interlocutory appeal of this Order, including the court's substantive ruling that res

judicata bars parts of Plaintiffs' claims’”).

After reviewing the petition and the record before this Court, we conclude JETX

Energy has not met its burden to show eligibility for permissive appeal. We therefore

deny the petition and dismiss this appeal for want of jurisdiction.

MATT JOHNSON Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed May 10, 2023 [CV06]

JETX Energy v. Lonestar Operating Page 4