Scott Ewing, D.O. v. Margaret Ann Colia, Individually and as Representative of the Estate of Milton Colia

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00315-CV
___________________________
SCOTT EWING, D.O., Appellant
V.
MARGARET ANN COLIA, INDIVIDUALLY AND AS REPRESENTATIVE OF
THE ESTATE OF MILTON COLIA, Appellee
On Appeal from the 342nd District Court
Tarrant County, Texas
Trial Court No. 342-298286-18
Before Walker, Gabriel, and Pittman, JJ.
Memorandum Opinion by Justice Pittman
MEMORANDUM OPINION
On October 5, 2018, Scott Ewing, D.O. filed a petition for permission to
appeal the trial court’s September 21, 2018 interlocutory order denying his motion for
summary judgment. Given the requirement that we strictly construe Texas Civil
Practice and Remedies Code Section 51.014’s permissive appeal requisites, we decline
to entertain this appeal, and we hereby dismiss it for lack of jurisdiction. See Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(d)–(f) (West Supp. 2018); Rogers v. Orr, 408 S.W.3d
640, 642 (Tex. App.—Fort Worth 2013, pet. denied) (“We strictly construe a statute
authorizing an interlocutory appeal because it is an exception to the general rule that
only final judgments are appealable.”).
Here, the order entered by the trial court denying Ewing’s motion for summary
judgment did not specify the basis for its ruling and merely stated that Ewing had
“permission” to “pursue an interlocutory appeal.” It is well-settled that 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.” Eagle Gun Range, Inc. v.
Bancalari, 495 S.W.3d 887, 889 (Tex. App.—Fort Worth 2016, no pet.); see City of San
Antonio v. Tommy Harral Constr., Inc., 486 S.W.3d 77, 84 (Tex. App.—San Antonio
2016, no pet.); Tex. R. Civ. P. 168 (“The permission must identify the controlling
question of law as to which there is a substantial ground for difference of opinion,
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and must state why an immediate appeal may materially advance the ultimate
termination of the litigation.”) (emphasis added).
Simply put, the trial court’s order does not contain any substantive ruling on
any of the legal issues it has asked us to decide. See Eagle Gun Range, 495 S.W.3d at
889; Bank of N.Y. Mellon v. Guzman, 390 S.W.3d 593, 596 (Tex. App.—Dallas 2012, no
pet.). As a result, the requested permissive appeal does not meet the strict
jurisdictional requirements of section 51.014(d). See Eagle Gun Range, 495 S.W.3d at
889; Tommy Harral Constr., Inc., 486 S.W.3d at 84. We therefore conclude that any
opinion issued by this Court would be advisory because there is nothing in the record
showing that the trial court ruled on the specific legal issues we are being asked to
decide. See Eagle Gun Range, 495 S.W.3d at 889–90; Tommy Harral Constr., Inc.,
486 S.W.3d at 84; Bank of N.Y. Mellon, 390 S.W.3d at 597.
Accordingly, we dismiss the petition for want of jurisdiction.
Mark T. Pittman
Justice
Delivered: October 25, 2018
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