Michael J. Ritter and Ben Allen 2017-08-23 14:50:21
Preparing a trial court’s order to avoid dismissal of your permissive appeal. A new view of the Texas permissive appeal statute is emerging.1 Courts are more frequently dismissing permissive appeals for lack of jurisdiction—even after accepting them—because the trial court did not make a substantive ruling on the controlling question of law presented.2 Such dismissals likely surprise and frustrate practitioners who strictly complied with the statute’s and rules’ requirements because neither the statute nor the corresponding rules expressly require a trial court to make a substantive ruling. Although a party may appeal an order granting a dispositive motion if it is a final judgment, appeals of interlocutory orders denying such motions are not appealable unless provided by statute.3 Section 51.014(d) of the Civil Practice & Remedies Code provides that a party may appeal an otherwise non-appealable interlocutory order if the trial court grants permission.4 The trial court may grant permission to 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.”5 The permissive appeal statute does not expressly require a trial court to make a substantive ruling on the controlling question of law.6 To implement the permissive appeal statute, the Texas Supreme Court adopted Texas Rule of Civil Procedure 168 and Texas Rule of Appellate Procedure 28.3.7 TRCP Rule 168 requires the trial court’s order to “identify the controlling question of law as to which there is a substantial ground for difference of opinion, and to state why an immediate appeal may materially advance the ultimate termination of the litigation.” 8 TRAP Rule 28.3 includes numerous requirements regarding the filing of the petition for permissive appeal in the court of appeals but does not require the trial court’s order to contain a substantive ruling.9 The “substantive ruling” requirement first appeared in Gulley v. State Farm Lloyds .10 In Gulley, the trial court permitted an appeal after denying competing motions for summary judgment, but the trial court expressly declined to make a substantive ruling on the legal issue presented in the parties’ motions. Instead, the trial court ministerially denied the motions and permitted an appeal for the appellate court to decide the legal issue in the first instance. The court of appeals held the trial court erred by permitting an appeal without first having made a substantive ruling on the controlling question of law. To support its holding, the court of appeals quoted a legislative bill analysis stating that the statute promotes judicial efficiency by allowing an immediate appeal when “the trial court rules on an issue that is pivotal in a case.” The Gulley court concluded it had jurisdiction over the permissive appeal but held the trial court’s failure to rule was error, reversed the trial court’s order, and remanded the case for further proceedings.11 After Gulley, many courts of appeals now require the trial court’s order permitting an appeal not only to identify the controlling question of law as required by TRCP Rule 168, but also to state affirmatively the trial court’s substantive ruling on that question.12 But despite the Gulley court’s conclusion that it had urisdiction in the clear absence of a substantive ruling, courts of appeals have extended the “substantive ruling” requirement and held that the absence of an affirmative statement of the trial court’s ruling on the controlling question of law is a jurisdictional defect.13 Because appellate courts have urisdictionalized the “substantive ruling” requirement, this latent stipulation can—at any stage of the appeal—surprise unwitting practitioners who strictly complied with all of the statute’s and rules’ requirements.14 Such dismissals can occur as early as the petition stage15 and even after the court has heard oral argument on merits of the appeal.16 The most in-depth explanation of the “substantive ruling” requirement is contained in City of San Antonio v. Tommy Harral Construction, Inc.17 The trial court’s order denying a motion for summary judgment identified two controlling questions of law as required by TRCP 168 but did not state how the trial court ruled on those questions. After granting the petition for permissive appeal, the court reviewed the record for some indication that the trial court had made a substantive ruling on the controlling questions of law. The court held that an order decreeing a summary judgment motion is denied is not a substantive ruling on the controlling questions of law because the trial court might have (1) ministerially denied the motion without making any legal conclusions, (2) concluded that fact issues preclude summary judgment, (3) reached some other legal conclusion that precluded summary judgment, or (4) found one of the controlling questions to be true and the other not true (when both needed to be true to grant summary judgment). The court went further to state that even if the trial court had made a substantive ruling, there were slight distinctions in how the controlling questions of law are phrased in the trial court pleadings, the motion for summary judgment, the trial court’s order granting permission to appeal, the petition for permissive appeal, and the appellant’s brief. Thus, the “substantive ruling” requirement requires the trial court’s order to affirmatively state the trial court’s substantive ruling on the precise controlling question of law stated in the trial court’s order. Even slight variations can result in a dismissal.18 The two opinions in Borowski v. Ayers provide a good example of how a party can satisfy the “substantive ruling” requirement.19 The court of appeals in Borowski I initially granted the appellants’ petition for permissive appeal but then dismissed for lack of jurisdiction because the trial court’s order did not contain a substantive ruling. The court reasoned that the trial court’s order could have been based on multiple different questions of law, or it could have been based on a latent conclusion that a fact issue precluded summary judgment. 20 After the appeal was dismissed, the trial court signed an amended order denying summary judgment, granting permission to appeal again, and affirmatively stating that two conclusions of law comprised its “sole basis” for denying the summary judgment motion. The two conclusions directly answered the precise controlling questions of law identified in the order. The court of appeals accepted the appellants’ second petition for permissive appeal in Borowski II, concluded that the trial court’s conclusions of law were sufficient substantive rulings, and disposed of the appeal on the merits.21 If a trial court denies a motion important to the case, and if seeking an immediate resolution of the issue on appeal fits within your litigation strategy, Tommy Harral and Borowski I and II provide some guidance in drafting a proposed order. To satisfy the “substantive ruling” requirement, the proposed order should: (1) identify the controlling question(s) of law, (2) affirmatively state the trial court’s substantive ruling on each controlling question of law identified in the order, (3) contain no variation in the phrasing of the controlling question(s) of law and the trial court’s substantive ruling(s), and (4) state that the trial court’s substantive rulings are the “sole basis” for the trial court’s interlocutory order. To satisfy the other requirements for a permissive appeal, the order must also expressly state the trial court is permitting the appeal and explain why a permissive appeal may materially advance the litigation’s ultimate termination. Drafting the proposed order with care and particularity with these issues in mind will give parties a better chance to avoid dismissal of the permissive appeal based on the “substantive ruling” requirement. This article, which was originally published in part in the Review of Litigation, has been edited and reprinted with permission. The original article can be found using the citation 36 Rev. Litig. 55. NOTES 1) See, generally Michael J. Ritter, Permissive Appeals in Texas Courts: Reconciling Judicial Procedure with Legislative Intent, 36 Rev. Litig. 55 (2017) (explaining that appellate courts now impose a “substantive ruling” requirement based on an emerging, yet implied, view of the permissive appeal statute as a “certified question” statute). 2) E.g., Isaac v. Burnside, No. 14-16-00728-CV, 2016 WL 6305206 (Tex. App.— Houston [14th Dist.] Oct. 27, 2016, no. pet. h.) (mem. op.) (dismissing petition); Hartford Accident & Indem. Co. v. Seagoville Partners, No. 05-15-00760-CV, 2016 WL 3199003, at *4 (Tex. App.—Dallas June 9, 2016, no pet.) (mem. op.) (dismissing after accepting the permissive appeal and hearing oral argument). 3) Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). 4) Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (West 2014). 5) Id. 6) Id. § 51.014(d)-(f). 7) Tex. R. Civ. P. 168; Tex. R. App. P. 28.3. 8) Tex. R. Civ. P. 168. 9) Tex. R. App. P. 28.3. 10) Gulley v. State Farm Lloyds, 350 S.W.3d 204 (Tex. App.—San Antonio 2011, no pet.). 11) Id. at 206–08 & n.2. 12) E.g., Colonial Cty. Mut. Ins. Co. v. Amaya, 372 S.W.3d 308, 311 (Tex. App.— Dallas 2012, no pet.). 13) Compare Gulley, 350 S.W.3d at 208 n.2 (concluding “we do have jurisdiction over this appeal” because “the statutory requirements . . . have technically been met”), with Amaya, 372 S.W.3d at 311 (holding the absence of a substantive ruling deprived the court of appeals of jurisdiction). 14) Tullos v. Eaton Corp., 695 S.W.2d 568 (Tex. 1985) (per curiam) (holding the absence of appellate jurisdiction may be raised at any time). 15) E.g., Eagle Gun Range, Inc. v. Bancalari, 495 S.W.3d 887 (Tex. App.—Fort Worth 2016, no pet.). 16) E.g., Hartford Accident & Indem. Co. v. Seagoville Partners, No. 05-15-00760-CV, 2016 WL 3199003, at *4 (Tex. App.—Dallas June 9, 2016, no pet.) (mem. op.) 17) City of San Antonio v. Tommy Harral Constr., Inc., 486 S.W.3d 77 (Tex. App.— San Antonio 2016, no pet.). 18) Id. at 80-84. 19) Borowski v. Ayers, 432 S.W.3d 344, 345 (Tex. App.—Waco 2013, no pet.) (Borowski I);—S.W.3d—, No. 10-15-00239-CV, 2016 WL 5944769 (Tex. App.— Waco Oct. 12, 2016, pet. filed.) (Borowski II). 20) 432 S.W.3d at 347-48. 21) 2016 WL 5944769 at *1-2. MICHAEL J. RITTER is a staff attorney for the 4th Court of Appeals. He is also a director of the San Antonio Young Lawyers Association and president-elect of the San Antonio LGBT Bar Association. He can reached at firstname.lastname@example.org. BEN ALLEN is a partner in the law firm of Feldman & Feldman. He is a young trial lawyer who specializes in commercial and government-related litigation. He can be reached at email@example.com.
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