Sealy Emergency Room, LLC and Chaethana Yalamanchili, M.D. v. Susan Brown Leschper, as Joint Managing Conservator of Chrisitan Carl Gaitan, Minor Child

• Court: Court of Appeals of Texas
• Decided: July 23, 2019
• Docket: 01-19-00196-CV
• Status: Published

Opinion

Opinion issued July 23, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00196-CV ——————————— SEALY EMERGENCY ROOM, LLC AND CHAETHANA YALAMANCHILI, M.D., Appellants V. SUSAN BROWN LESCHPER, AS JOINT MANAGING CONSERVATOR OF CHRISTIAN CARL GAITAN, MINOR CHILD, Appellee

On Appeal from the 155th District Court Austin County, Texas Trial Court Case No. 2017V-0028

MEMORANDUM OPINION

Appellants, Sealy Emergency Room, LLC and Chaethana Yalamanchili,

M.D., have filed a joint petition for permissive appeal, seeking to appeal an interlocutory order denying their motions for traditional and no-evidence summary

judgment. We deny the petition.

To be entitled to a permissive appeal from an interlocutory order that would

not otherwise be appealable, the requesting party must establish that (1) the order

“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.” TEX. CIV. PRAC. & REM. CODE

ANN. § 51.014(d); see TEX. R. APP. P. 28.3(e)(4); TEX. R. CIV. P. 168. Inherent in

these requirements is a requirement that the trial court must make a substantive

ruling on the controlling question of law that is presented to the appellate court for

review. See Orion Marine Constr., Inc. v. Cepeda, No. 01-18-00323-CV, 2018 WL

3059756, at *1 (Tex. App.—Houston [1st Dist.] June 21, 2018, no pet.) (mem. op.);

Eagle Gun Range, Inc. v. Bancalari, 495 S.W.3d 887, 889 (Tex. App.—Fort Worth

2016, no pet.); Great Am. E & S Ins. Co. v. Lapolla Indus., Inc., No. 01-14-00372-

CV, 2014 WL 2895770, at *2–3 (Tex. App.—Houston [1st] Dist. June 24, 2014, no

pet.) (mem. op.).

Here, the trial court’s order identified “the controlling question[] of law

decided by the [c]ourt” but did not include a substantive ruling on that issue. See

Safeco Ins. Co. of Ind. v. Rodriguez, No. 07-18-00150-CV, 2018 WL 3031597, at *2

(Tex. App.—Amarillo June 13, 2018, order); cf. D.A. v. Tex. Health Presbyterian

2 Hosp., 514 S.W.3d 431, 433 (Tex. App.—Fort Worth 2017), rev’d, 569 S.W.3d 126

(Tex. 2018) (stating trial court ruled plaintiffs had to prove their claims “under a

‘wilful and wanton negligence’ standard”). Absent a substantive ruling, a

permissive interlocutory appeal is inappropriate. See Orion Marine Constr., 2018

WL 3059756, at *3; Safeco Ins. Co., 2018 WL 3031597 at *2; see also City of San

Antonio v. Tommy Harral Constr., Inc., 486 S.W.3d 77, 80 (Tex. App.—San

Antonio 2016, no pet.) (explaining because court of appeals may only address action

taken by trial court, record must reflect that court’s substantive ruling on legal issue

presented for determination).

Accordingly, we deny the petition. We dismiss all pending motions as moot.

PER CURIAM

Panel consists of Justices Lloyd, Landau, and Countiss.