Progressive County Mutual Insurance Company v. John G. McCormack ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-21-00001-CV
PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY,
Appellant
v.
John G. MCCORMACK,
Appellee
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2019CI00469
Honorable Cathleen M. Stryker, Judge Presiding
PER CURIAM
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: January 20, 2021
PETITION FOR PERMISSIVE APPEAL DENIED; REMANDED
Petitioner Progressive County Mutual Insurance Company seeks permission to appeal the
trial court’s denial of its motion for summary judgment. Because the petition does not meet the
applicable requirements, we deny the petition and remand this cause to the trial court.
BACKGROUND
Progressive County Mutual Insurance Company was sued by John G. McCormack, its
insured, after Progressive denied coverage for an automobile accident in which McCormack’s
vehicle was struck by an underinsured tortfeasor driving a rental car. In its motion for summary
04-21-00001-CV
judgment, which included traditional and no-evidence grounds, Progressive argued that the Auto
Policy’s Self-Insurer Exception “precludes UM/UIM benefits when the tortfeasor is operating a
rental car owned by a self-insurer.”
On October 9, 2020, the trial court heard the motion; four days later, it issued a
memorandum ruling denying the motion. On October 27, 2020, Progressive filed a “Motion for
Reconsideration and/or Motion to Certify Interlocutory Appeal.” On November 10, 2020, the trial
court signed an order denying Progressive’s motion for summary judgment. On December 17,
2020, the trial court signed one order denying Progressive’s motion for reconsideration and another
order granting Progressive’s request for permission to seek interlocutory appeal.
APPLICABLE LAW
Under certain conditions, “a trial court in a civil action may, by written order, permit an
appeal from an order that is not otherwise appealable.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 51.014(d); accord Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 730 (Tex.
2019). “Permission [to appeal] must be stated in the order to be appealed.” TEX. R. CIV. P. 168;
see Hebert v. JJT Const., 438 S.W.3d 139, 141 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
“An appellate court may accept an appeal permitted by Subsection (d) if the appealing
party, not later than the 15th day after the date the trial court signs the order to be appealed, files
in the [proper] court of appeals . . . an application for interlocutory appeal . . . .” TEX. CIV. PRAC.
& REM. CODE ANN. § 51.014(f); accord TEX. R. APP. P. 28.3(c); Sabre Travel, 567 S.W.3d at 730–
31; see BPHC, LLC v. Perkins, No. 03-18-00717-CV, 2019 WL 304417, at *1 (Tex. App.—Austin
Jan. 24, 2019, no pet.) (mem. op.). A “court of appeals may extend the time to file the petition if
the party . . . (1) files the petition within 15 days after the deadline, and (2) files a motion
complying with Rule 10.5(b).” TEX. R. APP. P. 28.3(d); accord Romero v. Gonzalez, No. 13-16-
00172-CV, 2018 WL 771893, at *1 (Tex. App.—Corpus Christi Feb. 8, 2018, no pet.) (mem. op.).
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04-21-00001-CV
“We strictly apply statutes granting interlocutory appeals because they are a narrow
exception to the general rule that interlocutory orders are not immediately appealable.” CMH
Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); accord Eagle Gun Range, Inc. v. Bancalari,
495 S.W.3d 887, 889 (Tex. App.—Fort Worth 2016, no pet.).
DISCUSSION
In this case, we must deny Progressive’s petition for at least two independently dispositive
reasons. See CMH Homes, 340 S.W.3d at 447; Eagle Gun Range, 495 S.W.3d at 889.
First, the petition was not filed within fifteen days “after the date the trial court sign[ed]
the order to be appealed.” See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(f); BPHC, 2019 WL
304417, at *1. The trial court signed the order to be appealed from on November 10, 2020, but
Progressive did not file its petition in this court until January 4, 2021, more than thirty days after
the order to be appealed was signed. Contra TEX. R. APP. P. 28.3(c). Even if the petition met the
other permissive appeal requirements, an untimely petition cannot invoke this court’s jurisdiction.
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(f); BPHC, 2019 WL 304417, at *1.
Second, the order to be appealed—the trial court’s November 10, 2020 order denying
Progressive’s motion for summary judgment—does not include the trial court’s permission to
appeal. Contra TEX. R. CIV. P. 168; Hebert, 438 S.W.3d at 141 (“[T]he trial court must issue a
written order that includes both an interlocutory order that is not otherwise appealable and a
statement of the trial court’s permission to appeal this order under Texas Civil Practice and
Remedies Code section 51.014(d).” (emphasis added)).
CONCLUSION
Because Progressive’s petition did not comply with the applicable statute and rules, we
necessarily deny its petition for permissive appeal, and we remand this cause to the trial court.
PER CURIAM
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