The Toro Company v. Felix Lira, Sr., Maribel Lira, Crystal Lira, Michael Lira, Angel Lira, Daniel Lira, Felix Lira, Jr., and Maribel Lira as Next Friend of V.C., a Minor ( 2024 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
THE TORO COMPANY, § No. 08-24-00348-CV
Appellant, § Appeal from the
v. § 346th Judicial District Court
FILIX LIRA, SR., MARIBEL LIRA, § of El Paso County, Texas
CRYSTAL LIRA, MICHAEL LIRA,
ANGEL LIRA, DANIEL LIRA, FELIX § (TC# 2022DCV3393)
LIRA, JR., and MARIBEL LIRA AS NEXT
FRIEND OF V.C., A MINOR, §
Appellees. §
MEMORANDUM OPINION
Appellant, The Toro Company, filed a “Petition for Permissive Appeal Under TRAP 28.3
of Order Denying Defendant’s Rule 91A Motion to Dismiss” seeking to appeal an interlocutory
order denying Toro’s Rule 91a Motion to Dismiss. We deny the petition without prejudice.
Appellate jurisdiction over interlocutory appeals is limited by statute. CMH Homes v.
Perez, 340 S.W.3d 444, 447 (Tex. 2011). Permissive appeals of an interlocutory order are
governed by Texas Civil Practice and Remedies Code § 51.014(d) and (f) as well as Texas Rule
of Civil Procedure 168 and Texas Rule of Appellate Procedure 28.3.
When seeking review by permissive appeal, the petitioner must first obtain the trial court’s
permission to appeal. Tex. R. Civ. P. 168; Tex. Civ. Prac. & Rem. Code § 51.014(d). Civil Practice
and Remedies Code § 51.014(d) authorizes the trial court to permit an interlocutory appeal 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 §51.014(d);
Tex. R. Civ. P. 168 (same). The order granting permission to appeal “must identify the controlling
question of law as to which there is a substantial ground for difference of opinion and state why an
immediate appeal may materially advance the ultimate termination of the litigation.” Tex. R. Civ.
P. 168 (emphasis added); see also Tex. Civ. Prac. & Rem. Code § 51.014(d). If the trial court
properly grants permission to appeal, an appellate court may accept a timely appeal that comports
with § 51.014(d) if the appealing party explains why the appeal is warranted under that subsection.
Id. at § 51.014(f).
Here, the trial court’s order does not meet the requirements of Texas Rule of Civil
Procedure 168. Instead, the order merely states: “1) there is a controlling question of law as to
which there is a substantial ground for difference; and 2) an immediate appeal from the order may
materially advance the ultimate termination of litigation.” The petitioning party frames its issue
presented as: “Can a shipper be held liable to an injured motorist for the actions of a commercial
driver who was not its employee, over whom the shipper exercised no control, and someone the
shipper did not hire?” But in a permissive appeal, we are specifically tasked to resolve a controlling
question of law framed by the trial court in its order, which also explains why an immediate appeal
may materially advance the ultimate termination of the litigation. See, e.g., Feagan v. Wilson, No.
11-21-00032-CV, 2021 WL 1134804 at *1 (Tex. App.—Eastland Mar. 25, 2021, no pet.) (mem.
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op.) (denying a petition for permissive interlocutory appeal because the trial court’s order neither
identified the controlling question of law nor stated why an immediate appeal may materially
advance the litigation as compelled by Rule 168); Patel v. Nations Renovations, LLC, No. 02-21-
00031-CV, 2021 WL 832719 at *1 (Tex. App.—Fort Worth Mar. 4, 2021, no pet.) (mem. op.)
(same); Scarborough v. City of Houston, No. 01-16-00302-CV, 2017 WL 117329, at *1
(Tex. App.—Houston [1st Dist.] Jan. 12, 2017, no pet.) (per curiam) (mem. op.) (same).
Because the trial court order appealed from does not meet the requirements of Texas Rule
of Civil Procedure 168, we deny the petition. We do so without prejudice to either party timely
petitioning for permission to appeal from an amended order that complies with the permissive
interlocutory appeal rules and statutory requirements.
LISA J. SOTO, Justice
October 31, 2024
Before Alley, C.J., Palafox and Soto, JJ
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