Texas Health Harris Methodist Hospital Alliance, Texas Health Presbyterian Hospital Allen, Texas Health Arlington Memorial Hospital, Texas Health Harris Methodist Hospital Azle, Texas Health Harris Methodist Hospital Cleburne, Texas Health Presbyterian Hospital Dallas, Texas Health Presbyterian Hospital Denton, Texas Health Harris Methodist Hospital Fort Worth, Texas Health Hospital Frisco v. Celtic Insurance Company

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00294-CV
___________________________
TEXAS HEALTH HARRIS METHODIST HOSPITAL ALLIANCE, TEXAS
HEALTH PRESBYTERIAN HOSPITAL ALLEN, TEXAS HEALTH ARLINGTON
MEMORIAL HOSPITAL, TEXAS HEALTH HARRIS METHODIST HOSPITAL
AZLE, TEXAS HEALTH HARRIS METHODIST HOSPITAL CLEBURNE, TEXAS
HEALTH PRESBYTERIAN HOSPITAL DALLAS, TEXAS HEALTH
PRESBYTERIAN HOSPITAL DENTON, TEXAS HEALTH HARRIS METHODIST
HOSPITAL FORT WORTH, TEXAS HEALTH HOSPITAL FRISCO, TEXAS
HEALTH HARRIS METHODIST HOSPITAL HURST-EULESS-BEDFORD,
TEXAS HEALTH HEART & VASCULAR HOSPITAL ARLINGTON, TEXAS
HEALTH PRESBYTERIAN HOSPITAL KAUFMAN, TEXAS HEALTH
PRESBYTERIAN HOSPITAL PLANO, AND TEXAS HEALTH HARRIS
METHODIST HOSPITAL SOUTHWEST FORT WORTH, Appellants
V.
CELTIC INSURANCE COMPANY, Appellee
On Appeal from the 141st District Court
Tarrant County, Texas
Trial Court No. 141-318459-20
Before Sudderth, C.J.; Birdwell and Wallach, JJ.
Memorandum Opinion by Chief Justice Sudderth
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MEMORANDUM OPINION
Appellants have filed a petition for permissive interlocutory appeal, arguing that
the trial court ruled on a “controlling question of law as to which there is a substantial
ground for difference of opinion.” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d)(1);
Tex. R. App. P. 28.3(a); see Tex. R. Civ. P. 168. The relevant trial court orders identify
the “controlling question of law” as a jurisdictional, standing-related issue allegedly
raised by the “Consolidated Plaintiffs’ Second Amended Original Petition.”1 But the
Consolidated Second Amended Original Petition raises no such issue. See Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(d)(1); Tex. R. Civ. P. 168.
In its three orders authorizing this permissive appeal, the trial court notes that
“Plaintiffs [i.e., Appellants] pleaded Count Three of their Consolidated Plaintiffs’
Second Amended Original Petition as one for damages . . . under Chapter 541 of the
Texas Insurance Code,” and it asks this court to decide whether “Plaintiffs have
direct, independent standing in their own right, independently of any assignment to
them of benefits under such policies, to bring against Celtic [Insurance Company] an
action under Chapter 541.” But the Consolidated Second Amended Original Petition
1
Appellants identify the “controlling question of law” by quoting from the trial
court orders authorizing this permissive appeal. Cf. Tex. Civ. Prac. & Rem. Code
Ann. § 51.014(f) (requiring appellants to “explain[] why an appeal is warranted under
Subsection (d)”); Indus. Specialists, LLC v. Blanchard Ref. Co., No. 20-0174, 2022 WL
2082236, at *4 (Tex. June 10, 2022) (plurality op.) (noting that Section 51.014
“implicitly charge[s] courts of appeals with the duty to consider the party’s
explanation”).
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does not contain a Chapter 541 claim pleaded “in [Plaintiffs’] own right,
independently of any assignment to them.” Appellants pleaded a Chapter 541 claim
as an assignee—not “in their own right.”2
Because the independent-standing issue presented for our review is expressly
grounded in “Count Three of the[] Consolidated Plaintiffs’ Second Amended Original
Petition,” and because count three of that petition does not allege independent
standing under Chapter 541, the issue before us is entirely hypothetical. A
hypothetical legal question in a case is not a “controlling question of law.” See ADT
Sec. Servs., Inc. v. Van Peterson Fine Jewelers, No. 05-15-00646-CV, 2015 WL 4554519, at
*2–3 (Tex. App.—Dallas July 29, 2015, no pet.) (mem. op.) (holding that a “request
[for] an advisory opinion on charging the jury on retrial” was not a controlling
question of law and dismissing permissive interlocutory appeal for want of
jurisdiction). Plus, even outside the context of permissive interlocutory appeals on
“controlling question[s] of law,” we lack subject matter jurisdiction to issue advisory
2
In their petition for permissive interlocutory appeal, Appellants state that, after
the trial court rejected their Chapter 541 assignee claims, they filed a motion for new
trial and “argued that even if they did not have standing via assignment to bring a
Chapter 541 claim against Defendant . . . , Plaintiffs still had direct and independent
standing on their own to bring such a claim for damages caused by Defendant’s unfair
settlement practices.” Regardless, Appellants did not incorporate any of their
independent-standing arguments into their Consolidated Second Amended Original
Petition, and the narrow issue presented for our review turns on the standing as
pleaded in “Count Three of the[] Consolidated Plaintiffs’ Second Amended Original
Petition.”
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opinions. See Tex. Const. art. II, § 1; Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d
821, 822 (Tex. 2000).
We therefore deny Appellants’ petition for permissive interlocutory appeal for
want of jurisdiction. See Indus. Specialists, 2022 WL 2082236, at *3 (plurality op.) (“The
courts have no discretion to permit or accept an appeal if the two requirements [in
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d)] are not satisfied.”); id. at *12 (Busby,
J., dissenting) (agreeing “with the plurality that courts of appeals have no discretion to
permit or accept an appeal when section 51.014(d)’s requirements are not satisfied,”
but opining that courts of appeals must explain why the statutory requirements are
not satisfied (internal quotation marks omitted)).
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: August 8, 2022
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