ADT Security Services, Inc. v. Van Peterson Fine Jewelers ( 2015 )

DISMISS; and Opinion Filed July 29, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00646-CV
ADT SECURITY SERVICES, INC., Appellant
V.
VAN PETERSON FINE JEWELERS, Appellee
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. 09-12111
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart
Opinion by Chief Justice Wright
This is an agreed appeal from an interlocutory order pursuant to former civil practice and
remedies code section 51.014(d). We dismiss the appeal for want of jurisdiction.
Appellant ADT Security Services, Inc. provided commercial alarm services to appellee
Van Peterson Fine Jewelers. Van Peterson filed suit against ADT after a 2007 burglary. In a
previous interlocutory appeal, we reversed the trial court’s denial of ADT’s traditional motion
for summary judgment as to Van Peterson’s claims for negligence, gross negligence, breach of
contract, and negligent misrepresentation, and rendered judgment in favor of ADT on those
claims. ADT Sec. Servs., Inc. v. Van Peterson Fine Jewelers, 390 S.W.3d 603, 607–08 (Tex.
App.—Dallas 2012, no pet.). Our opinion did not address the trial court’s denial of ADT’s
motions for summary judgment with respect to Van Peterson’s claims for civil conspiracy, fraud,
or violations of the DTPA. Id. at 608 n.1.
On remand, the case proceeded to trial before a jury. The jury made findings in favor of
Van Peterson on one of its DTPA claims, but did not award all of the damages Van Peterson
sought. Both parties filed post-verdict motions. Van Peterson moved to disregard the jury’s
award of damages, and ADT filed a motion to disregard certain jury findings and for judgment
notwithstanding the verdict (JNOV). In a single order, the trial court (1) denied Van Peterson’s
motion; (2) denied ADT’s motion; and (3) sua sponte granted a new trial. In this interlocutory
appeal, the parties and the trial court request review by this Court of each of these rulings.
Pursuant to former 1 section 51.014(d) of the Texas Civil Practice and Remedies Code, the
parties agreed to file an interlocutory appeal from the trial court’s order, and the trial court by
written order permitted the appeal. See Act of May 25, 2005, 79th Leg., R.S., ch. 1051, 2005
Tex. Gen. Laws 3512–13 (amended 2011) (current version at TEX. CIV. PRAC. & REM. CODE
ANN. § 51.014(d) (West 2015)). Former section 51.014(d) provided:
(d) A district court . . . may issue a written order for interlocutory appeal in
a civil action not otherwise appealable under this section if:
(1) the parties agree that the order involves a controlling question of
law as to which there is a substantial ground for difference of opinion;
(2) an immediate appeal from the order may materially advance the
ultimate termination of the litigation; and
(3) the parties agree to the order.
Id.
In its “Order Permitting Agreed Interlocutory Appeal and Staying Trial Court
Proceedings,” the trial court identified “controlling questions of law to which there are
substantial grounds for difference of opinion” in accordance with the requirements of section
51.014(d). The trial court grouped the questions into three categories: (1) ADT’s issues
1
The parties agree that because suit was filed in 2009, the former law applies.
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challenging the jury charge, the verdict, and the sufficiency of the evidence; (2) Van Peterson’s
issue challenging the jury’s damages award; and (3) the trial court’s sua sponte grant of a new
trial.
Because interlocutory appeals are allowed “in only narrow situations permitted by
statute,” we strictly construe section 51.014(d). State Fair of Tex. v. Iron Mountain Info. Mgmt.,
299 S.W.3d 261, 264 (Tex. App.—Dallas 2009, no pet.). Even where the parties agree, we have
declined to exercise jurisdiction where we have determined there is no “controlling question of
law as to which there is a substantial ground for difference of opinion.” See id. A sister court
recently proffered an explanation of the standard, quoting a commentator:
[A] controlling question of law is one that deeply affects the ongoing
process of litigation. If resolution of the question will considerably shorten
the time, effort, and expense of fully litigating the case, the question is
controlling. Generally, if the viability of a claim rests upon the court’s
determination of a question of law, the question is controlling. . . .
Substantial grounds for disagreement exist when the question presented to
the court is novel or difficult, when controlling circuit law is doubtful, when
controlling circuit law is in disagreement with other courts of appeals, and
when there simply is little authority upon which the district court can
rely. . . . Generally, a district court will make [a finding that the appeal will
facilitate final resolution of the case] when resolution of the legal question
dramatically affects recovery in a lawsuit.
Gulf Coast Asphalt Co. v. Lloyd, 457 S.W.3d 539, 543–44 (Tex. App.—Houston [14th Dist.]
2015, no pet.) (quoting Renee Forinash McElhaney, Toward Permissive Appeal in Texas, 29 ST.
MARY’S L.J. 729, 747–49 (1998)).
Because the trial court has granted a new trial, the parties’ issues pointing out specific
problems with the charge and the jury’s verdict are not controlling questions of law. Our
opinions on those questions would “affect the ongoing process of litigation” only if the case was
again submitted to a jury. See id. We have rejected an agreed interlocutory appeal where we
concluded that any opinion we issued “would necessarily be advisory.” See Colonial Cnty. Mut.
Ins. Co. v. Amaya, 372 S.W.3d 308, 310–11 (Tex. App.—Dallas 2012, no pet.). And there is no
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“novel or difficult” question presented about the trial court’s authority to grant new trial on its
own motion. Texas Rule of Civil Procedure 320 expressly provides that “[n]ew trials may be
granted and judgment set aside for good cause, on motion or on the court’s own motion on such
terms as the court shall direct.” TEX. R. CIV. P. 320 (emphasis added). We have limited
mandamus jurisdiction to address the propriety of the trial court’s order granting new trial. See,
e.g., In re Zimmer, Inc., 451 S.W.3d 893, 898 (Tex. App.—Dallas 2014, orig. proceeding). But
because neither Van Peterson nor ADT contends the amount of damages awarded by the jury is
correct and should stand, there is no “substantial ground for difference of opinion” even between
the parties on the propriety of the trial court’s setting the award aside. The “difference of
opinion” arises in the proposed solutions to the jury’s alleged error: disregard of its affirmative
findings (ADT), modification of the damages award (Van Peterson), or new trial (trial court).
This is not a disagreement about a question of law on which “the viability of a claim rests.” See
Gulf Coast Asphalt Co., 457 S.W.3d at 543–44.
We further conclude that interlocutory appeal would not “materially advance the ultimate
termination of the litigation” as required by section 51.014(d)(2). In Gulf Coast Asphalt, the
court concluded that an interlocutory appeal of a partial summary judgment order would not
materially advance the ultimate termination of the litigation where the trial court “ruled on only
one legal question that might possibly affect only one facet” of one claim. See Gulf Coast
Asphalt, 457 S.W.3d at 545 (noting that “[n]either party argues that this appeal will considerably
shorten final resolution of the case”).
In the previous appeal of this case, we concluded an interlocutory appeal of the trial
court’s denial of summary judgment “may materially advance the ultimate termination of the
litigation.” ADT Sec. Servs., Inc., 390 S.W.3d at 604–05. That interlocutory appeal resolved Van
Peterson’s claims for negligence, gross negligence, breach of contract, and negligent
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misrepresentation as a matter of law, because we concluded those claims were barred by a
disclaimer in the parties’ contract. Id. at 606–07.
The issues raised in this interlocutory appeal, in contrast, address errors in the submission
of the case to the jury and the trial court’s grant of a new trial based on its own finding of a
different error. It is not clear how resolving these questions will materially advance the ultimate
termination of the litigation. Whether or not we conclude the trial court’s grant of a new trial
was an abuse of discretion, neither party would seek judgment without further litigation. And
reviewing errors in a jury charge and a damages award that have been set aside by the trial court
may result only in the remedy the trial court has already granted, a new trial.
We conclude that the questions presented are not controlling questions of law as to which
there is a substantial ground for difference of opinion and their resolution would not materially
advance the termination of the litigation as required by section 51.014(d). The parties and the
trial court do not ask us to resolve a discrete legal issue as they did in the previous appeal. Here,
Van Peterson seeks a judgment for more damages than the jury awarded, but ADT seeks to set
aside the liability findings on which a judgment for any damages would rest. ADT and the trial
court request an advisory opinion on charging the jury on retrial. And a ruling on the trial
court’s grant of a new trial would result only in further issues to be resolved. We conclude there
is no controlling question of law we could resolve which would materially advance the
termination of the ligation. Accordingly, we dismiss this appeal for want of jurisdiction.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
150646F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ADT SECURITY SERVICES, INC., On Appeal from the 191st Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. 09-12111.
No. 05-15-00646-CV V. Opinion delivered by Chief Justice Wright;
Justices Lang-Miers and Stoddart
VAN PETERSON FINE JEWELERS, participating.
Appellee
In accordance with this Court’s opinion of this date, the appeal is DISMISSED for want
of jurisdiction.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 29th day of July, 2015.
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