Eagle Gun Range, Inc., David L. Prince, Justin Pollard, Mark Sliger, Jeffrey D. Saupp, and Bill Scott v. Quinn Bancalari, Individually and in His Capacity as Administrator of the Estate of Alessandro Jon Bancalari, and for and on Behalf of All Those Entitled to Recover for the Death of Alessandro Jon Bancalari

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00135-CV
EAGLE GUN RANGE, INC., DAVID APPELLANTS
L. PRINCE, JUSTIN POLLARD,
MARK SLIGER, JEFFREY D.
SAUPP, AND BILL SCOTT
V.
QUINN BANCALARI, APPELLEES
INDIVIDUALLY AND IN HIS
CAPACITY AS ADMINISTRATOR
OF THE ESTATE OF
ALESSANDRO JON BANCALARI,
DECEASED, AND FOR AND ON
BEHALF OF ALL THOSE ENTITLED
TO RECOVER FOR THE DEATH
OF ALESSANDRO JON
BANCALARI, UNDER THE TEXAS
WRONGFUL DEATH AND
SURVIVAL STATUTES AND CAVI
BANCALARI AND NICOLE
BANCALARI
----------
FROM THE 442ND DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 15-07779-442
----------
OPINION
----------
Eagle Gun Range, Inc., David L. Prince, Justin Pollard, Mark Sliger, Jeffrey
D. Saupp, and Bill Scott, filed a “Petition for Order Permitting Interlocutory
Appeal.” We dismiss their petition for want of jurisdiction.
Background
According to the petition, Allessandro Jon Bancalari (the deceased) went
to Eagle Gun Range, Inc., rented a gun, purchased some ammunition, and
committed suicide by shooting himself. Quin Bancalari (individually and as
administrator of the estate of Allessandro Jon Bancalari, deceased, and for and
on behalf of all those entitled to recover for the death of Alessandro Jon
Bancalari under the Texas Wrongful Death and Survival Statutes), Cavi
Bancalari, and Nicole Bancalari (collectively “the Bancalaris”) brought suit against
Eagle Gun Range, Inc., David L. Prince (the owner), Justin Pollard (an
employee), Mark Sliger (an employee), Jeffrey D. Saupp (an employee), and Bill
Scott (an employee) (collectively “the Eagle Gun Range defendants”). The Eagle
Gun Range defendants responded by filing a “Rule 91a Motion to Dismiss
Plaintiffs’ First Amended Petition.” Rule 91a of the Texas Rules of Civil
Procedure is a recent rule; it became effective in 2013. Tex. R. Civ. P. 91a
(“Dismissal of Baseless Causes of Action”).
The trial court denied the Eagle Gun Range defendants’ rule 91a motion
without specifying any basis for its ruling. The order thereafter provides,
2
It is further ORDERED that [the Eagle Gun Range
defendants], if desired, shall have the permission of the Court to
pursue an interlocutory appeal on the controlling issue(s) of law that
were the subject of [their] Motion to Dismiss to which there is a
substantial ground for difference of opinion, including the following:
1. Whether [the Bancalaris’] claims, as a matter of law, are
preempted by federal statute, the Protection of Lawful
Commerce in Arms Act, 15 U.S.C. § 7901, et seq.?
2. Whether, as a matter of law, [the Bancalaris’] have alleged
facts that, if true, state a cause of action for individual liability
against the employee-Defendants Prince, Pollard, Sliger,
Saup[p,] and Scott?
3. Whether, as a matter of law, [the Bancalaris] have alleged
facts that, if true, state a cause of action for premises liability?
The Court finds that an interlocutory appeal will materially advance
the ultimate termination of the litigation by narrowing the issues,
claims[,] and causes of action in dispute and subject to trial.
The additional language is intended to fit within the framework of a permissive
interlocutory appeal. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d)(1), (2)
(West Supp. 2015) (authorizing permissive interlocutory appeal).
Jurisdiction
We are required to review sua sponte jurisdictional issues. Bank of N.Y.
Mellon v. Guzman, 390 S.W.3d 593, 596 (Tex. App.—Dallas 2012, no pet.).
Appellate courts have jurisdiction over final judgments only, absent specific
statutory authorization of an interlocutory appeal. Id. Courts strictly apply
statutes granting interlocutory appeals because they are a narrow exception to
3
the general rule that interlocutory orders are not immediately appealable. CMH
Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011).
Section 51.014(d) of the Texas Civil Practice and Remedies Code provides
such an exception to the general rule; it provides that a trial court may permit an
appeal from an otherwise non-appealable interlocutory order 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)(1), (2).
To invoke this court’s permissive-appeal jurisdiction, the trial court must
make a substantive ruling on the controlling legal issue being appealed so that
the legal issue presented to this court is the same legal issue determined by the
trial court. See City of San Antonio v. Tommy Harral Constr., Inc., 486 S.W.3d
77, 84 (Tex. App.—San Antonio 2016, no pet.). It does not matter that the trial
court’s order attempts to identify the controlling issue if the order does not show
that the trial court made a substantive ruling on that controlling question of law.
See Great Am. E & S Ins. Co. v. Lapolla Indus., Inc., No. 01-14-00372-CV, 2014
WL 2895770, at *1–3 (Tex. App.—Houston [1st Dist.] June 24, 2014, no pet.)
(mem. op.). The interlocutory order cannot involve a controlling question of law
until the trial court itself has made a substantive ruling on the controlling legal
issue in the order. See Tommy Harral Constr., Inc., 486 S.W.3d at 80.
4
The trial court’s order here does not contain any substantive ruling on any
of the legal issues it has asked us to decide. See Bank of N.Y. Mellon, 390
S.W.3d at 596. It simply denies the Eagle Gun Range defendants’ rule 91a
motion to dismiss without further comment. Without any indication in the
appellate record of the trial court’s substantive ruling on the specific legal issues
presented for our determination, this permissive appeal does not meet the strict
jurisdictional requirements of section 51.014(d). See Tommy Harral Constr., Inc.,
486 S.W.3d at 84. As presented, the trial court has done nothing more than
attempt to certify these legal questions for our review. Section 51.014(d) does
not contemplate using an interlocutory appeal as a mechanism to present
certified questions. See Bank of N.Y. Mellon, 390 S.W.3d at 597 (quoting Gulley
v. State Farm Lloyds, 350 S.W.3d 204, 207 (Tex. App.—San Antonio 2011, no
pet.)). Without any indication in the order or otherwise in the appellate record of
the trial court’s substantive ruling on the specific legal issues presented for our
determination, this permissive appeal does not meet the strict jurisdictional
requirements of section 51.014(d). See Tommy Harral Constr., Inc., 486 S.W.3d
at 84. Accordingly, we conclude that any opinion issued by this Court would
necessarily be advisory because there is nothing in the record showing that the
trial court ruled on the specific legal issues that are presented to us to decide.
See id.; Bank of N.Y. Mellon, 390 S.W.3d at 597.
We dismiss the petition for want of jurisdiction.
5
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: GARDNER, GABRIEL, and SUDDERTH, JJ.
DELIVERED: June 22, 2016
6