Kathy C. Harris v. Larry E. Covey D/B/A American Pride Roofing

• Court: Court of Appeals of Texas
• Decided: December 12, 2023
• Docket: 05-23-01231-CV
• Status: Published

Opinion

DENIED and Opinion Filed December 12, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-01231-CV

KATHY C. HARRIS, Appellant V. LARRY E. COVEY D/B/A AMERICAN PRIDE ROOFING, Appellee

On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-22-03352-B

MEMORANDUM OPINION Before Justices Molberg, Pedersen, III, and Goldstein Opinion by Justice Goldstein Kathy C. Harris has filed a pro se petition for permission to appeal the trial

court’s order denying her motion for partial summary judgment. In that order, the

trial court denied Harris’s motion, but did not grant her permission to appeal, did not

identify the controlling issue of law as to which there is a substantial ground for

disagreement and did not state why an immediate appeal may materially advance the

outcome of the litigation. Because the complained-of order does not satisfy the

requirements of section 51.014(d), we deny the petition for permissive appeal.

Applicable Law Generally, appeals may be taken only from final judgments or interlocutory

orders for which appeal is authorized by statute. See Lehmann v. Har-Con Corp., 39

S.W.3d 191, 195 (Tex. 2001); Bank of N.Y. Mellon v. Guzman, 390 S.W.3d 593, 596

(Tex. App.—Dallas 2012, no pet.). Under certain circumstances, a trial court may allow

an appeal from an order that is otherwise not appealable. See Sabre Travel Int’l, Ltd. v.

Deutsche Lufthansa AG, 567 S.W.3d 725, 730 (Tex. 2019). When the trial court permits

an appeal from an interlocutory order, the party seeking to appeal must file a petition in

the court of appeals seeking permission to appeal. See TEX. R. APP. P. 28.3(a). We

strictly construe such requests because statutes allowing for interlocutory appeals are an

exception to the general rule that only final judgments are appealable. See Gulf Coast

Asphalt Co. v. Lloyd, 457 S.W.3d 539, 545 (Tex. App—Houston [14th Dist.] 2015, no

pet.); Rogers v. Orr, 408 S.W.3d 640, 642 (Tex. App—Fort Worth 2013, pet. denied).

Section 51.014(d) of the Texas Civil Practice and Remedies Code permits an

interlocutory appeal of an otherwise unappealable order, if several predicates are met.

See TEX. CIV. PRAC. & REM. CODE § 51.014(d). To qualify, the trial court must first

certify the order is immediately appealable, and expressly identify a controlling question

of law on which there is substantial ground for disagreement. Id.; see also TEX. R. CIV.

P. 168 (requirement that trial court’s order identifies a “controlling question of law on

which there is a substantial ground for difference of opinion[.]”). The trial court’s order

must also explain why an immediate appeal may materially advance the ultimate

resolution of the case. TEX. CIV. PRAC. & REM. CODE § 51.014(d); Hebert v. JJT Constr.

–2– 438 S.W.3d 139, 142 (Tex. App—Houston [14th Dist. 2014, no pet.). Finally, this Court

must then agree to hear the appeal. TEX. CIV. PRAC. & REM. CODE § 51.014(f).

Discussion

To satisfy the requirements of rule 51.014(d), the trial court’s order must

expressly grant permission to appeal, identify the controlling question of law as to which

there is a substantial ground for difference of opinion, and state why an immediate

appeal may materially advance the ultimate termination of the litigation. Tex. R. Civ. P.

168; Hebert v. JJT Constr. 438 S.W.3d 139, 142 (Tex. App—Houston [14th Dist. 2014,

no pet.). Harris has not alleged the trial court granted permission to appeal and she has

not provided a signed order granting permission. Larry Covey, appellee, filed a response

asserting the trial court has not granted permission and requesting this Court to dismiss

the petition.

Because Harris has not established she is entitled to an immediate appeal of the

trial court’s order pursuant to section 51.014(d) of the civil practices and remedies code,

we deny her petition for permissive appeal. See Hebert, 438 S.W.3d at 142. Having

done so, we deny appellee’s request to dismiss the petition as moot.

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE 231231F.P05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

KATHY C. HARRIS, Appellant On Appeal from the County Court at Law No. 2, Dallas County, Texas No. 05-23-01231-CV V. Trial Court Cause No. CC-22-03352- B. LARRY E. COVEY D/B/A Opinion delivered by Justice AMERICAN PRIDE ROOFING, Goldstein. Justices Molberg and Appellee Pedersen, III participating.

In accordance with this Court’s opinion of this date, we deny appellant’s petition for permissive appeal.

Judgment entered December 12, 2023

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