M.B., Individually and as Next Friend of I.C. v. S.C. and Spirit of St. Louis Outlets, GP, LLC ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00168-CV
___________________________
M.B., INDIVIDUALLY AND AS NEXT FRIEND OF I.C., Appellant
V.
S.C. AND SPIRIT OF ST. LOUIS OUTLETS, GP, LLC, Appellees
On Appeal from the 67th District Court
Tarrant County, Texas
Trial Court No. 067-285252-16
Before Gabriel, J.; Sudderth, C.J.; and Birdwell, J.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
Appellant M.B., individually and as next friend of I.C., (Mother) filed a petition
for permissive appeal seeking interlocutory review of the trial court’s order granting
appellee S.C.’s (Father) plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(d), (f); Tex. R. App. P. 28.3(e)(4). Because we conclude that the order does
not involve a controlling question of law, we deny the petition.
I. BACKGROUND
Mother and Father were divorced in 2013. The court that rendered the decree
of divorce was the 324th District Court (Family Court). Mother alleges that before
the divorce was finalized, the community estate acquired interests in four real estate
development partnerships: Woodmont Duncanville, LP; Woodmont Southlake, LP;
an entity in Bismark, North Dakota; and a Walgreens development in East Dallas.
Mother asserts that the Family Court rendered its final decree of divorce without
dividing these community property interests. She also alleges that while the
community estate had an interest in Woodmont Duncanville, it made more than
$1 million in distributions to its partners but that she had not received any
distribution.
Mother filed suit against Father in the 67th District Court (District Court). She
brought several claims, three of which are relevant here. One, she alleged a claim for
money had and received, asserting that Father had received and retained distributions
from Woodmont Duncanville, that those distributions were community property, and
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that she therefore was entitled to at least half of the distributions Father had received.
Two, she sought a declaration that she owned at least a 50% interest in the four real-
estate development partnerships. And three, she brought a claim for partition under
chapter 23 of the property code, asking the trial court to partition the community
interests in the partnerships and award her the shares to which she was entitled.
In response, Father filed a plea to the jurisdiction alleging that the District
Court lacked jurisdiction over Mother’s partition claim because by it she sought a
division of allegedly undivided community property, and under section 9.203 of the
family code, exclusive jurisdiction over that claim was vested in the Family Court,
which rendered the divorce decree. Father also requested dismissal of “the additional
claims for damages of [Mother] relative to the [allegedly undivided community
property], on the basis of a lack of ripeness and on the basis that such claims are
intertwined with and contingent on” the Family Court’s resolution of Mother’s
partition claim. The District Court granted the plea and dismissed Mother’s partition,
declaratory-judgment, and money-had-and-received claims without prejudice. In its
order, the District Court stated that in granting the plea, it had found the following to
be a controlling question of law as to which there was a substantial ground for
difference of opinion:
Does the Court which rendered a decree of divorce have exclusive
jurisdiction under Texas Family Code Secs. 9.201–.203 to make a post-
divorce division of community property when the Court which issued
the decree had jurisdiction of the parties and the alleged property at the
time of the decree? Or, does a district court hold jurisdiction over a
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cause of action brought under Texas Property Code § 23.001 et seq. to
divide community property that was not divided in the divorce?
Mother now seeks review of the District Court’s interlocutory order granting
Father’s plea to the jurisdiction by permissive appeal. See Tex. Civ. Prac. & Rem.
Code Ann. § 51.014(d), (f); Tex. R. App. P. 28.3(a).
II. APPLICABLE LAW
We generally have jurisdiction over final judgments only. See Sabre Travel Int’l,
Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 730 (Tex. 2019). A narrow exception
to this general rule is that a party may appeal an interlocutory order when authorized
to do so by statute. Eagle Gun Range, Inc. v. Bancalari, 495 S.W.3d 887, 889 (Tex.
App.—Fort Worth 2016, no pet.). Sections 51.014(d) and (f) of the Texas Civil
Practice and Remedies Code provide such an exception. Under those provisions, we
may allow a party to appeal an interlocutory order that otherwise would not be
immediately appealable where the party demonstrates that (1) the trial court’s 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
§ 51.014(d), (f); see also Tex. R. App. P. 28.3(a), (e)(4).
Texas courts have generally regarded a controlling question of law to be “one
that deeply affects the ongoing process of litigation.” Workers’ Comp. Sols. v. Tex.
Health, L.L.C., No. 05-15-01504-CV, 2016 WL 945571, at *1 (Tex. App.—Dallas Mar.
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14, 2016, no pet.) (mem. op.); accord Austin Commercial, L.P. v. Tex. Tech Univ., No. 07-
15-00296-CV, 2015 WL 4776521, at *1 (Tex. App.—Amarillo Aug. 11, 2015, no pet.)
(order); Undavia v. Avant Med. Grp., 468 S.W.3d 629, 632 (Tex. App.—Houston [14th
Dist.] 2015, no pet.). Generally, if the viability of a claim rests upon the court’s
determination of a question of law and the resolution of the question will considerably
shorten the time, effort, and expense of fully litigating the case, the question is
controlling. See Workers’ Comp. Sols., 2016 WL 945571, at *1; Austin Commercial,
2015 WL 4776521, at *1; Undavia, 468 S.W.3d at 632.
III. DISCUSSION
We begin by observing that Mother’s entire explanation for how the questions
the District Court certified are controlling questions of law is that “[b]ecause the
questions the trial court certified are jurisdictional” they “represent controlling
questions of law.” We certainly agree that whether a court has subject-matter
jurisdiction is a question of law. See Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004). But Mother does not explain how the questions the
trial court certified are controlling here. See Tex. Civ. Prac. & Rem. Code § 51.014(d),
(f). That is, she does not explain how the viability of any of her claims that are
affected by the District Court’s order rests on its determination that the Family Court
has exclusive jurisdiction over them. See Workers’ Comp. Sols., 2016 WL 945571, at *1;
Austin Commercial, 2015 WL 4776521, at *1; Undavia, 468 S.W.3d at 632. And given
the facts here, we cannot see how it would. The District Court’s ruling only
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determines where Mother’s claims for partition, declaratory judgment, or money had
and received are tried; it has no impact on their viability.
The District Court’s resolution of the certified questions merely means that
Mother must maintain the affected claims in the Family Court instead of the District
Court. And Mother does not argue that the Family Court lacks jurisdiction over those
claims. Accordingly, because Mother has not shown that the viability of any of the
claims the District Court dismissed rests on its determination of the legal questions it
certified for permissive review, those questions are not controlling questions of law.
See Workers’ Comp. Sols., 2016 WL 945571, at *1; Austin Commercial, 2015 WL 4776521,
at *1; Undavia, 468 S.W.3d at 632. Given the limited nature of interlocutory appeals
and the requirement that we strictly construe statutes authorizing such appeals, we
conclude that Mother’s attempted permissive appeal does not satisfy the requirements
of section 51.014(d) or rule 28.3(e)(4). See State Fair of Tex. v. Iron Mountain Info. Mgmt.,
Inc. 299 S.W.3d 261, 264 (Tex. App—Dallas 2009, no pet).1
Because the District Court’s order granting Father’s plea to the jurisdiction
does not involve a controlling question of law, we cannot review that order under our
permissive-appeal jurisdiction.2 See Tex. Civ. Prac. & Rem. Code § 51.014(d), (f); see
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Although it appears that the parties may have initially agreed to this permissive
appeal, we may not disregard the permissive-appeal requirements to enlarge our
jurisdiction. See State Fair of Tex., 299 S.W.3d at 264.
Mother has not requested that we treat her petition for permissive appeal as
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presenting an alternative request for mandamus relief. We decline to do so sua
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also Tex. R. App. P. 28.3(e)(4). Accordingly, we deny Mother’s petition for permissive
appeal.
Per Curiam
Delivered: June 27, 2019
sponte, and we express no opinion as to whether such relief would be appropriate had
it been requested.
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