Mid-Continent Casualty Company v. Harris County Municipal Utility District No. 400

• Court: Court of Appeals of Texas
• Decided: December 30, 2021
• Docket: 09-21-00326-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00326-CV __________________

MID-CONTINENT CASUALTY COMPANY, Appellant

V.

HARRIS COUNTY MUNICIPAL UTILITY DISTRICT NO. 400, Appellee

__________________________________________________________________

Original Proceeding 457th District Court of Montgomery County, Texas Trial Cause No. 19-10-13793-CV __________________________________________________________________

MEMORANDUM OPINION

Mid-Continent Casualty Company (“Mid-Continent”) petitioned this Court to

allow a permissive appeal of the trial court’s October 5, 2021 Amended Order

Denying Defendant’s Motion for Summary Judgment. See Tex. R. App. P. 28.3(a).

Mid-Continent filed a traditional and no-evidence motion for summary judgment.

The trial court denied the motion for summary judgment without explanation, but

noted

1 [t]he controlling questions of law include, but are not limited to: (1) whether insurer, Mid-Continent Casualty Company, had a duty to reimburse its insureds for fees and expenses incurred by attorneys chosen by the insureds, and not by Mid-Continent, to defend the insureds in an underlying lawsuit; and (2) whether Mid-Continent had a duty to reimburse its insureds for the costs they incurred in hiring separate counsel to defend each insured in an underlying case.

To perfect a permissive appeal from an interlocutory order that is not

otherwise appealable, the appellant, when in the trial court, must establish “(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.” See Tex.

Civ. Prac. & Rem. Code Ann. § 51.014(d). Here, the trial court in its order on the

motion for summary judgment provides no basis for its denial, and the record before

us fails to show that the trial court made a substantive ruling on the alleged

controlling questions of law sought to be appealed. “The legislature’s institution of

this procedure authorizing a trial court to permit an immediate appeal of an

interlocutory order is [] premised on the trial court having first made a substantive

ruling on the controlling legal issue being appealed.” Borowski v. Ayers, 432 S.W.3d

344, 347 (Tex. App.—Waco 2013, no pet.); see also Luccia v. City of Houston, No.

01-17-00378-CV, 2017 Tex. App. LEXIS 5273, at *1 (Tex. App.—Houston [1st

Dist.] June 8, 2017, no pet.) (per curiam) (mem op.) (“The petition fails to meet these

requirements because, among other problems, the order appealed from [] does not

2 explain why it denied both parties’ motions for summary judgment, and though it

identified four controlling questions of law, the trial court did not rule on any of

them.”); McCroskey v. Happy State Bank, No. 07-14-00027-CV, 2014 Tex. App.

LEXIS 2382, at **3-4 (Tex. App.—Amarillo Feb. 28, 2014, no pet.) (mem. op.) (the

record must show “that the trial court ruled on the specific legal issues presented for

[appellate court] to decide.”); The Corp. of the President of the Church of Jesus

Christ of Latter-Day Saints v. Doe, No. 13-13-00463-CV, 2013 Tex. App. LEXIS

12543, at *8 (Tex. App.—Corpus Christi Oct. 10, 2013, no pet.) (mem. op.)

(“Without a substantive ruling by the trial court as to why it denied the [] motion, no

controlling question of law has been presented for our analysis.”); Double Diamond

Del., Inc. v. Walkinshaw, No. 05-13-00893-CV, 2013 Tex. App. LEXIS 12447, at

*4 (Tex. App.—Dallas Oct. 7, 2013, no pet.) (mem. op.) (“Inherent in these

jurisdictional requirements is that the trial court make a substantive ruling on the

specific legal question presented on appeal.”).

The order denying the motion for summary judgment in our record is silent as

to the basis for the trial court’s denial and nothing in the record shows the trial court

made a substantive ruling on any of the legal issues presented. Therefore, this

interlocutory appeal does not meet the requirements of section 51.014(d).

Additionally, even if the statutory requirements are satisfied, whether to accept a

permissive appeal rests in our discretion. Tex. Civ. Prac. & Rem. Code Ann.

3 § 51.014(f); In re Volkswagen Clean Diesel Litig., 504 S.W.3d 547, 549 (Tex.

App.—Austin 2016, no pet.).

After reviewing the Amended Order Denying Defendant’s Motion for

Summary Judgment, as well as the petition and the response filed by Harris County

Municipal Utility District No. 400, and the record before us, we conclude that Mid-

Continent’s petition for permissive appeal fails to establish the grounds necessary to

support a permissive appeal. See Tex. R. App. P. 28.3(e)(4). We deny Mid-

Continent’s petition for a permissive appeal.

PETITION DENIED.

PER CURIAM

Submitted on December 29, 2021 Opinion Delivered December 30, 2021

Before Golemon, C.J., Horton and Johnson, JJ.