Permissive Interlocutory Appeals

Introduction & Overview

As a general rule, Texas appellate courts may only hear a case after judgment is finalized at the trial level.[1]  Consequently, interlocutory orders are typically not immediately appealable.[2]  This prevents a party in trial from delaying the proceeding to seek an appellate court’s opinion.  However, § 51.014 of the Texas Civil Practice and Remedies Code enumerates different types of orders which a party may appeal prior to the final judgment at trial.[3]

The Texas Legislature also added permissive appeals to the statute.[4]  Permissive appeals are permissive because the appealing party must receive permission from the trial court before petitioning the court of appeals.[5]  Texas courts have strictly applied the statutory language regarding interlocutory appeals “because they are a narrow exception to the general rule.”[6]  As a result, courts do not leave much room for parties to argue around the statute.  Under § 51.014(d), an order must meet two requirements before a trial court can authorize an appeal: “(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.”[7]

Permissive appeals are reserved for legal issues—not fact issues.[8]  Texas courts have defined a controlling question of law as an issue that “(1) deeply affects the ongoing process of litigation, (2) the resolution of which will considerably shorten the time, effort and expense of fully litigating the case, and (3) the viability of the claim depends on the court’s determination of the question of law.”[9]  Further, an interlocutory appeal materially advances the ultimate termination of the litigation where resolution of the issue on appeal “greatly assist[s]” in resolving the underlying matter, and does not unnecessarily delay resolution of the lawsuit.[10]  The purpose of a permissive appeal is to promote efficiency.  Therefore, a trial court must consider whether the litigation will be more efficient if the legal issue is resolved now, rather than waiting for an appeal on the merits.

The Appeal Must Involve a Controlling Question of Law

Texas courts have routinely held fact issues are not controlling questions of law.[11]  For example, Diamond Prods. Int’l v. Handsel involved an employee, Arthur Handsel (“Handsel”), who was fired by his employer, Diamond Products International, Inc. (“DPI”).[12]  Handsel alleged DPI agreed to provide “a three-year written employment contract;” DPI disputed Handsel’s claim and contended it never made such promise.[13]  DPI filed for summary judgment on the grounds that Handsel did not reasonably rely on the alleged promise.[14]  The trial court denied DPI’s motion and authorized an interlocutory appeal on the issue.[15]

After reviewing arguments for appeal, The Fourteenth Court of Appeals rejected the petition and concluded that “[t]he statute does not contemplate permissive appeals of summary judgments where the facts are in dispute.  Instead, permissive appeals should be reserved for determination of controlling legal issues necessary to the resolution of the case.”[16]  Though the employment contract issue was crucial to DPI’s case, its resolution was conditioned on proof of fact, not law.  As such, DPI’s petition for appeal was properly denied.

In Undavia v. Avant Med. Group, P.A., appellants sought a permissive appeal on the issue of “whether a party qualifies as an agent of a signatory such that he is bound by a release.”[17]  The court held this issue hinged on the interpretation of “agent”.[18]  However, as in Diamond Prods. Int’l, the Fourteenth Court of Appeals determined the issue—whether one is an “agent”—was a question of fact, beyond the scope of a permissive appeal.[19]  Both, Undavia and Diamond Prods. Int’l, clearly articulate that fact issues do not meet the definition of a controlling question of law, and therefore, may not be the basis of a permissive appeal.

The Appeal Must Materially Advance the Ultimate Termination of Litigation

Progress and efficiency are crucial factors in determining whether an appeal will expedite the conclusion of the case—i.e., the issue on appeal must have the ability to terminate litigation, or substantially contribute to terminating litigation, in a timely, cost-effective manner.  While there is substantial analysis on this statutory requirement in federal court, there is almost no analysis in Texas state courts.  However, the federal and state statutes are nearly identical in language.[20]

In Coates v. Brazoria County, Texas, the court held the appeal would not eliminate the need for a trial because the appeal only involved a partial summary judgment.[21]  The court based its decision on the Fifth Circuit’s holding that “certification is particularly inappropriate when a party has claims remaining for adjudication by the finder of fact.”[22]  Stopping a trial to appeal denial of partial summary judgment would not be timely or cost-effective.  Rather, it would likely be more costly and time consuming.  As such, because the resolution of the issue would merely result in partial summary judgment, it could not reasonably advance the ultimate termination of litigation, and the permissive appeal was denied.[23]

Likewise, in Abecassis v. Wyatt, the court held, because there were multiple claims against multiple defendants, “an interlocutory appeal would only serve to delay, rather than materially advance litigation”, and a dismissal of one claim against one defendant would not resolve the litigation.[24]  Therefore, if resolution of the issue appealed would not finalize the litigation, or significantly expedite it, the issue fails to meet the statutory requirements of a permissive appeal.

Conclusion

If a party wishes to appeal an interlocutory order, which is otherwise unappealable, it must seek and receive the trial court’s approval before petitioning the court of appeals.  In such case, the trial court may permit the party to petition the court of appeals if (1) the order to be appealed involves a controlling question of law, which provides grounds for difference in opinion; and (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation.  However, the requirements of a permissive appeal have been narrowly interpreted by Texas courts.  As a result, a party seeking permissive appeal must ensure the issue on appeal explicitly adheres to the statutory language.


[1] CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); see generally Tex. Civ. Prac. & Rem. Code § 51.012.

[2] CMH Homes, 340 S.W.3d at 447.

[3] See generally Tex. Civ. Prac. & Rem. Code § 51.014.

[4] Diamond Prods. Int’l v. Handsel, 142 S.W.3d 491, 493 (Tex. App.—Houston [14th Dist.] 2004, no pet.); see Tex. Civ. Prac. & Rem. Code § 51.014(d).

[5] Tex. R. App. P. 28.3.

[6]  CMH Homes, 340 S.W.3d at 447.

[7] Tex. Civ. Prac. & Rem. Code § 51.014(d)(1)-(2)

[8] Undavia v. Avant Med. Group, P.A., 468 S.W.3d 629, 632 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

[9] Undavia, 468 S.W.3d at 633.

[10] In re Michael and Kathleen Watson, Debtors, No. RI-03-078, 2004 WL 7204484 ¶ 80,105 (B.A.P. 1st Cir., May 21, 2004).

[11] See Diamond Prods. Int'l, 142 S.W.3d at 494; see also Undavia, 468 S.W.3d 634.

[12] Diamond Prods. Int'l, 142 S.W.3d at 493.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at 494 (emphasis added).

[17] Undavia, 468 S.W.3d at 634.

[18] Id. at 633.

[19] Id. at 634.

[20] Compare Tex. Civ. Prac. & Rem. Code § 51.014 with 28 U.S.C. § 1292.

[21] Coates v. Brazoria Cty. Tex., 919 F. Supp. 2d 863, 867 (S.D. Tex. 2013).

[22] Id. (citing In re L.L.P. & D. Marine, Inc., Civ. Nos. 97–1668, 97–2992, 97–3349, 1998 WL 66100, at *2 (E.D. La. Feb. 13, 1998)).

[23] Coates, 919 F. Supp. 2d at 865.

[24] No. CIV.A. H-09-3884, 2014 WL 5483724, at *5 (S.D. Tex. Oct. 29, 2014).

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