Scott Ewing, D.O. v. Margaret Ann Colia, Individually and as Representative of the Estate of Milton Colia

• Court: Court of Appeals of Texas
• Decided: October 25, 2018
• Docket: 02-18-00315-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00315-CV ___________________________

SCOTT EWING, D.O., Appellant

V.

MARGARET ANN COLIA, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF MILTON COLIA, Appellee

On Appeal from the 342nd District Court Tarrant County, Texas Trial Court No. 342-298286-18

Before Walker, Gabriel, and Pittman, JJ. Memorandum Opinion by Justice Pittman MEMORANDUM OPINION

On October 5, 2018, Scott Ewing, D.O. filed a petition for permission to

appeal the trial court’s September 21, 2018 interlocutory order denying his motion for

summary judgment. Given the requirement that we strictly construe Texas Civil

Practice and Remedies Code Section 51.014’s permissive appeal requisites, we decline

to entertain this appeal, and we hereby dismiss it for lack of jurisdiction. See Tex. Civ.

Prac. & Rem. Code Ann. § 51.014(d)–(f) (West Supp. 2018); Rogers v. Orr, 408 S.W.3d

640, 642 (Tex. App.—Fort Worth 2013, pet. denied) (“We strictly construe a statute

authorizing an interlocutory appeal because it is an exception to the general rule that

only final judgments are appealable.”).

Here, the order entered by the trial court denying Ewing’s motion for summary

judgment did not specify the basis for its ruling and merely stated that Ewing had

“permission” to “pursue an interlocutory appeal.” It is well-settled that to invoke this

court’s permissive-appeal jurisdiction, “the trial court must make a substantive ruling

on the controlling legal issue being appealed so that the legal issue presented to this

court is the same legal issue determined by the trial court.” Eagle Gun Range, Inc. v.

Bancalari, 495 S.W.3d 887, 889 (Tex. App.—Fort Worth 2016, no pet.); see City of San

Antonio v. Tommy Harral Constr., Inc., 486 S.W.3d 77, 84 (Tex. App.—San Antonio

2016, no pet.); Tex. R. Civ. P. 168 (“The permission must identify the controlling

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

2 and must state why an immediate appeal may materially advance the ultimate

termination of the litigation.”) (emphasis added).

Simply put, the trial court’s order does not contain any substantive ruling on

any of the legal issues it has asked us to decide. See Eagle Gun Range, 495 S.W.3d at

889; Bank of N.Y. Mellon v. Guzman, 390 S.W.3d 593, 596 (Tex. App.—Dallas 2012, no

pet.). As a result, the requested permissive appeal does not meet the strict

jurisdictional requirements of section 51.014(d). See Eagle Gun Range, 495 S.W.3d at

889; Tommy Harral Constr., Inc., 486 S.W.3d at 84. We therefore conclude that any

opinion issued by this Court would be advisory because there is nothing in the record

showing that the trial court ruled on the specific legal issues we are being asked to

decide. See Eagle Gun Range, 495 S.W.3d at 889–90; Tommy Harral Constr., Inc.,

486 S.W.3d at 84; Bank of N.Y. Mellon, 390 S.W.3d at 597.

Accordingly, we dismiss the petition for want of jurisdiction.

Mark T. Pittman Justice

Delivered: October 25, 2018