rychelle-l-mccroskey-michael-felix-and-brandon-fraser-v-happy-state ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00027-CV
RYCHELLE L. MCCROSKEY, MICHAEL FELIX
AND BRANDON FRASER, APPELLANTS
V.
HAPPY STATE BANK, IN ITS CORPORATE CAPACITY AND AS TRUSTEE FOR THE
BERTHA MCLAIN IRREVOCABLE TRUST "A", HESTER, MCGLASSON & COX, A
GENERAL PARTNERSHIP, CHARLES HESTER, DARRELL CAREY, JASON S. CHISUM
AND ROBERT TANNER BURNES, APPELLEES
On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 100,778-E, Honorable Douglas Woodburn, Presiding
February 28, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellants, Rychelle L. McCroskey, Michael Felix, and Brandon Fraser, have
filed in this Court what purports to be an agreed interlocutory appeal, substantially
conforming to the technical requirements of such an appeal and citing jurisdictional
authority for such an appeal. See TEX. R. APP. P. 28.2; TEX. CIV. PRAC. & REM. CODE
ANN. § 51.014(d) (West Supp. 2013). We will treat the notice as the parties’ petition
seeking this Court’s permission to appeal the trial court’s interlocutory order. See TEX.
R. APP. P. 28.3.1 We will refuse the petition and dismiss the appeal for want of
jurisdiction.
The Trial Court’s Order
In the interlocutory order from which the parties have attempted to appeal, the
trial court expressly denied the parties’ competing motions for summary judgment
and/or partial summary judgment filed in the course of litigation. The trial court goes on
to grant permission to the parties to appeal the interlocutory order and recites the
findings “that the issues presented involve controlling questions of law as to which there
are substantial grounds for differences of opinion and an immediate appeal from this
Court will materially advance the ultimate termination of the litigation.” See TEX. CIV.
PRAC. & REM. CODE ANN. § 51.014(d)(1)–(2); TEX. R. APP. P. 28.3(e)(4). The trial court
further identifies what it deems the controlling questions of law.2 Nowhere, however, in
the trial court’s order or in the appellate record, do we find where the trial court
expressly ruled on the substance of those controlling questions of law.
Agreed Interlocutory Appeals under Section 51.014(d)
Section 51.014 provides as follows:
1
We note that Rule 28.3(e) outlines the requirements for the petition with which the parties’
notice of appeal substantially complies. Rule 28.3 is applicable to cases filed in the trial court after
September 1, 2011. See TEX. R. APP. P. 28.3 cmt. Rule 28.2 applies to cases filed in the trial court
before September 1, 2011. See id. From the clerk’s record, it appears this case was filed in the trial
court in August 2012.
2
From what appears to be rather complex, multi-party litigation, the trial court identified eight
multi-faceted “controlling questions of law,” which involve substantive issues concerning contingent fees,
doctrines of merger and estoppel, subject-matter jurisdiction of the trial court, standing, relationship of the
case below to a case filed in federal court, enforcement of contingent fee agreements and settlement
agreements, statute of frauds, and interpretation of a spendthrift clause in a revocable trust.
2
On a party’s motion or on its own initiative, a trial court in a civil action
may, by written order, permit an appeal from an order that is not otherwise
appealable if:
(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.
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d). We strictly construe this section
permitting interlocutory appeal. See Gulley v. State Farm Lloyds, 350 S.W.3d 204, 206
(Tex. App.—San Antonio 2011, no pet.); State Fair of Tex. v. Iron Mountain Info. Mgmt.,
Inc., 299 S.W.3d 261, 262–63 (Tex. App.—Dallas 2009, no pet.).
In the absence of the trial court’s rulings on the substantive questions of law
presented to it, we are without jurisdiction to hear this interlocutory appeal. See Bank of
N.Y. Mellon v. Guzman, 390 S.W.3d 593, 597–98 (Tex. App.—Dallas 2012, no pet.);
see also 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.) (per curiam) (mem. op.) (“Without a substantive ruling by
the trial court as to why it denied the Church’s motion, no controlling question of law has
been presented for our analysis.”). If this Court were to address the merits of the
several controlling questions here, any opinion we were to issue in this interlocutory
appeal would necessarily be advisory because there is nothing in the record showing
that the trial court ruled on the specific legal issues presented for us to decide. See
Guzman, 390 S.W.3d at 597; Colonial Cnty. Mut. Ins. Co. v. Amaya, 372 S.W.3d 308,
310–11 (Tex. App.—Dallas 2012, no pet.).
3
Much like the case before the Dallas Court of Appeals, here, “the trial court did
not substantively rule on the controlling legal issues presented in the agreed
interlocutory appeal and, instead, submitted the issues to this Court for a decision.”
Guzman, 390 S.W.3d at 597. We join our sister courts in concluding that the
Legislature did not intend the parties to use Section 51.014(d) of the Texas Civil
Practice and Remedies Code for such a purpose. See, e.g., Guzman, 390 S.W.3d at
597; Amaya, 372 S.W.3d at 311; Gulley, 350 S.W.3d at 207.
Conclusion
We refuse the petition seeking permissive appeal from this interlocutory order
and dismiss the appeal for want of jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN. §
51.014(f); TEX. R. APP. P. 28.3(j), 43.2(f).
Mackey K. Hancock
Justice
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