Michelle Heinrich, Mandy So and Naim El-Aswad, M.D., Individually and Derivatively as Members of Victory's Bioethical Anatomics, LLC and Victory's Advanced Centers for Surgical Education, LLC v. Strasburger & Price, L.L.P., Stuart Farrell Miller and Jana H. Woelfel

Opinion

Opinion issued September 24, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-00473-CV ——————————— MICHELLE HEINRICH, MANDY SO, AND NAIM EL-ASWAD, M.D., INDIVIDUALLY AND DERIVATIVELY AS MEMBERS OF VICTORY’S BIOETHICAL ANATOMICS, LLC AND VICTORY’S ADVANCED CENTERS FOR SURGICAL EDUCATION, LLC, Appellants V. STRASBURGER & PRICE, L.L.P., STUART FARRELL MILLER, AND JANA H. WOELFEL, Appellees

On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2013-74218

MEMORANDUM OPINION

The trial court dismissed the plaintiffs’ underlying claims against some, but

not all, of the named defendants. That order is an interlocutory order that is not immediately appealable. Cf. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West

2015). The plaintiffs sought the trial court’s permission to seek a permissive appeal

with this Court. See TEX. R. CIV. P. 168; TEX. R. APP. P. 28.3. The dismissed

defendants responded by arguing that this Court lacks jurisdiction to grant the

petition. Because the trial court’s order granting permission to seek a permissive

appeal does not meet all necessary requirements to confer jurisdiction on this

Court, we dismiss the petition for want of jurisdiction.

Texas Rule of Civil Procedure 168 sets forth the process for initiating a

permissive appeal. It provides that the trial court “may permit an appeal from an

interlocutory order that is not otherwise appealable,” but it also specifies that

“[p]ermission must be stated in the order to be appealed.” TEX. R. CIV. P. 168

(emphasis added). The comment to the rule states that “the trial court’s permission

to appeal should be included in the order to be appealed rather than in a separate

order.” Id., cmt. (emphasis added).

Recognizing that an interlocutory order may issue without the necessary

permission having been included, the rule further provides that “[a]n order

previously issued may be amended to include such permission.” TEX. R. CIV. P.

168. Texas Rule of Appellate Procedure 28.3(c) provides that, if an interlocutory

order is amended to include the requisite permission, “the time to petition the court

of appeals runs from the date the amended order is signed.” TEX. R. APP. P.

2 28.3(c); see Colvin v. B. Spencer & Assocs., P.C., No. 01-15-00247-CV, 2015 WL

2228728, at *2 (Tex. App.—Houston [1st Dist.] May 12, 2015, no pet.) (mem. op.)

(per curiam).

Here, the orders issued by the trial court fail to comply with Rule 168. By

order dated April 17, the defendants were dismissed. In a separate order dated May

5, the plaintiffs were granted permission to seek a permissive appeal. These are

two distinct orders; the second does not incorporate the first. Thus, they violate

Rule 168’s mandate that permission to seek a permissive appeal “must be stated in

the order to be appealed,” not in a separate order. TEX. R. CIV. P. 168.

Plaintiffs rely on a number of federal cases holding that the federal statute

for permissive appeals, 28 U.S.C.A. § 1292 (West 2003), is satisfied when the trial

court signs a separate order for certification for immediate appeal. See, e.g., Matter

of Hamilton, 122 F.3d 13, 14 (7th Cir. 1997). They argue that Texas courts also

should permit this practice. But we must strictly construe language authorizing

interlocutory appeals because they are a narrow exception to the general rule that

interlocutory orders are not immediately appealable. See City of Houston v. Estate

of Jones, 388 S.W.3d 663, 666 (Tex. 2012) (per curiam); CMH Homes v. Perez,

340 S.W.3d 444, 447 (Tex. 2011); Great Am. E&S Ins. Co. v. Lapolla Indus., Inc.,

No. 01-14-00372-CV, 2014 WL 2895770, at *1 (Tex. App.—Houston [1st Dist.]

June 24, 2014, no pet.) (mem. op.); King-A Corp. v. Wehling, No. 13-13-00100-

3 CV, 2013 WL 1092209, at *2 (Tex. App.—Corpus Christi Mar. 14, 2013, no pet.)

(mem. op.). The authorizing language explicitly requires that both the substantive

ruling and the permission to appeal be in the same order, and we are bound by

those requirements; therefore, we lack jurisdiction to receive this appeal, in which

the two matters have been divided into two separate orders. See Great Am. E&S

Ins. Co., 2014 WL 2895770, at *2 n.1.

Because the trial court did not sign an order that both granted the plea to the

jurisdiction and granted permission to appeal, this Court has no jurisdiction over

this appeal. We therefore dismiss the petition for want of jurisdiction. See TEX. R.

APP. P. 42.3(a), 43.2(f); see also Great Am. E&S Ins. Co., 2014 WL 2895770, at *3

(dismissing for want of jurisdiction).

PER CURIAM Panel consists of Justices Jennings, Higley, and Brown.