by Ryan Philip Pitts, an associate in the appellate practice group of Haynes Boone, LLP’s Houston office.
Texas law authorizes a trial court to permit—and a court of appeals to accept—an interlocutory appeal from an otherwise unappealable order if the order “involves a controlling question of law as to which there is a substantial ground for difference of opinion,” and if “an immediate appeal from the order may materially advance the ultimate termination of the litigation.”[1]Tex. Civ. Prac. & Rem. Code § 51.014(d) (emphasis added).
The Texas courts have long drawn the scope of permissive appeals narrowly. Signs of change—albeit slow spreading—are on the horizon. This article briefly explores the scope of permissive appeals, the harbingers of the change, and some implications for you.[2]The rules that govern permissive interlocutory appeals are: Texas Civil Practice and Remedies Code § 51.014(d), (f); Texas Rule of Civil Procedure 168; and Texas Rule of Appellate Procedure 28.3. … Continue reading
Texas Permissive Interlocutory Appeals and Their Broader Federal Counterparts
Texas permissive appeals are narrow. Since their inception in Texas, the courts of appeals—including the First and Fourteenth—have restricted their review in permissive appeals to the discrete “controlling” issues that the trial court decided, identified as worthy of immediate appeal, and which a party then raised in petition for review, with review being cabined to the “issue(s)” identified.[3]E.g., City of Houston v. Hous. Prof’l Fire Fighters’ Assoc., Loc. 341, 626 S.W.3d 1, 23 (Tex. App.—Houston [14th Dist.] 2021, pet. filed); Lakes of Rosehill Homeowners Ass’n, Inc. v. Jones, … Continue reading
The Texas Legislature modeled the Texas permissive-appeal statute on the federal version and the two have nearly identical language.[4]Compare Tex. Civ. Prac. & Rem. Code § 51.014(d), (f), with 28 U.S.C. § 1292(b); see Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 731 (Tex. 2019) (“[T]he Legislature … Continue reading The Texas and federal judiciaries diverge, however, in their application of that language. In hearing permissive appeals, federal courts have held that they have authority over the entire “order.”[5]Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 398-99 (5th Cir. 2010) (en banc) (citing Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996). Irrespective of what issues the district court approved for appeal, the reviewing federal court may reach any issue material to or fairly included in the order appealed from.[6]Id. Texas courts, by contrast, construe the language to cover only discrete, stated issues.
Why does that difference matter? Well, because jurisdiction is everything.[7]The Texas courts discuss these limitations on permissive appeals in the absolute language of jurisdiction and authority, but their origin is rarely made express. It’s true that Texas courts could … Continue reading While permissive appeals fall within the reviewing court’s discretion, no discretion can exist where jurisdiction doesn’t. The federal courts, given their reading of the permissive-appeal statute, possess discretion within a broader jurisdictional field—the entire order, not enumerated issues. The Texas courts have confined themselves to a narrower jurisdiction; and their discretion is binary: yes-review or no-review to the issues as articulated. So permissive appeals in the Texas system have often been more restricted, technical, and dependent on what exactly the trial court said. (The purpose here is not to opine on the relative merits or demerits of these two approaches—but rather to draw their contours, letting you consider.)
Consider a comparison of Texas and federal rules on the scope of permissive appeals—which, to reiterate, arise from authorizing statutes with materially identical language.
Texas Law
1. A party cannot seek to appeal an interlocutory order on a ground or issue that differs from the basis on which the trial court ruled.[8]Orion Marine Constr., Inc. v. Cepeda, No. 01-18-00323-CV, 2018 WL 3059756, at *1 (Tex. App.—Houston [1st Dist.] June 21, 2018, no pet.) (mem. op.) (citing City of San Antonio v. Tommy Harral … Continue reading
2. The trial court order must have both (1) identified the controlling issues of law and (2) made express, substantive rulings on them.[9]Dafashy v. Jimenez, No. 01-17-00767, 2017 WL 6001526, at *1 (Tex. App.—Houston [1st Dist.] Dec. 5, 2017, no pet.) (mem. op.) (collecting cases); accord Mid-Continent Cas. Co. v. Harris Cnty. Mun. … Continue reading
3. The parties may not add to the trial court’s description of the controlling legal question.[10]Hous. Prof’l Fire Fighters’ Assoc., 626 S.W.3d at 23; accord Lakes of Rosehill, 552 S.W.3d at 418; Gulf Coast Asphalt Co. v. Lloyd, 457 S.W.3d 539, 544 (Tex. App.—Houston [14th Dist.] 2015, no … Continue reading
4. The controlling issue must be a question of law unconstrained by procedural or factual issues.[11]El Paso Tool & Die Co., Inc. v. Mendez, 593 S.W.3d 800, 805 (Tex. App.—El Paso 2019, no pet.); accord JAJ Equip., Inc. v. Ramos, No. 04-21-00459-CV, 2021 WL 6127925, at *3 (Tex. App.—San … Continue reading
Other, less widely adopted restrictions have been noted as well.[12]There are two other rules that have been crafted but which have questionable vitality. First, some courts have recited a rule that only one “controlling issue of law” may be considered on appeal. … Continue reading One might wonder why these limitations evolved in the Texas system. The answer does not take much digging. They descend from a Texas Supreme Court directive to “strictly apply statutes granting interlocutory appeals because they are a narrow exception to the general rule that interlocutory orders are not immediately appealable.”[13]See CMH Homes v. Perez, 340 S.W.3d 444, 447-48 (Tex. 2011) (citing Tex. A & M. Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007); Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 … Continue reading This led Texas courts to rigidly construe not only the permissive-appeal statute itself, but to insist on granular compliance with the court-made rules setting forth the procedural machinery for such appeals.[14]See Tex. R. Civ. P. 168; Tex. R. App. P. 28.3; supra notes 8-12.
Now, consider the federal rules.
Federal Law (Fifth Circuit)
1. It is the order—not a controlling question of law—that is appealable.[15]Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 398-99 (5th Cir. 2010) (en banc) (citing Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996); see also United States v. Stanley, 483 … Continue reading
2. Any questions material to or fairly included in the lower court’s certified order may be considered on appeal.[16]Castellanos-Contreras, 622 F.3d at 397-98; U.S. ex rel. Simoneaux v. E.I. duPont de Nemours & Co., 843 F.3d 1033, 1041 (5th Cir. 2016); accord Hernandez v. Results Staffing, Inc., 907 F.3d 354, … Continue reading
3. Review of interlocutory summary judgment orders extends only to controlling questions of law material to them.[17]Simoneaux, 843 F.3d at 1035 (quoting Castellanos-Contreras, 622 F.3d at 397).
One might also wonder at the origin of these more relaxed federal rules. It is no secret. They derive from a plain reading of the permissive-appeal statute. The United States Supreme Court explained: “As the text . . . indicates, appellate jurisdiction applies to the order certified to the court of appeals” and “is not tied to the particular question formulated by the district court.”[18]Yamaha Motor Corp., 516 U.S. at 205 (Ginsburg, J.). Thus, “the appellate court may address any issue fairly included within the certified order.”[19]Id.
To sum it up, the Texas courts have relied on a canon of construction to restrict permissive-interlocutory appeals as narrow exceptions to the final-judgment rule.[20]Questions might exist about the application of such a canon where the Legislature’s directive is clear in the plain text. Cf. State v. Schumake, 199 S.W.3d 279, 284 (Tex. 2006) (“If the statute … Continue reading The federal courts have taken their authority to be that plainly laid out in the statute.
Movement in the Law
Fairly recent decisions out of the Texas Supreme Court could lead an onlooker to reasonably believe that the scope of permissive appeals in Texas may—in a not-too-distant-future—come to mirror federal law. Two decisions in 2019 marked subtle but important shifts in assumptions.
In February 2019, Sabre Travel International, Ltd. v. Deutsche Lufthansa AG held that the Texas Supreme Court may hear a permissive appeal even if an intermediate court of appeals declined it.[21]567 S.W.3d 725, 730-32 (Tex. 2019). In reaching that conclusion, the Court made important observations. First, “the Legislature modeled section 51.014(d) after the federal counterpart to permissive interlocutory appeals.”[22]Id. at 731. Second, while permissive appeals are discretionary, the Texas courts of appeals should not decline to hear them when doing so would further their legislative purpose.[23]Id. at 732. This has led at least some jurists to urge the taking of more permissive appeals. See Moasic Baybrook One, L.P. v. Simien, No. 01-18-00995-CV, 2019 WL 2458991, at *3 (Tex. App.—Houston … Continue reading Third, “[t]he word ‘appeal,’ as used in [the permissive-appeal statute], is conditioned only on the trial court permitting an appeal” and when “the trial court issues an order certifying the case for interlocutory review, it becomes an ‘appeal.’”[24]567 S.W.3d at 734 (emphasis added). Sabre Travel thus analogized to federal law, encouraged permissive appeals, and painted them as broader than a set of certified issues. But the Sabre Travel Court also repeated the maxim that “[a] departure from the final judgment rule . . . must be strictly construed.”[25]Id. at 736.
The very next month, however—March 2019—the Texas Supreme Court abandoned that maxim. In Dallas Symphony Association, Inc. v. Reyes, the Court announced: “Limiting appeals to final judgments can no longer be said to be the general rule.”[26]571 S.W.3d 753, 759 (Tex. 2019). It concluded that the interlocutory-appeal statute should no longer be read strictly.[27]Id. The statute should instead receive a “fair reading” to give “effect to all its provisions.”[28]Id. While Reyes concerned an interlocutory appeal as of right, the Court’s pronouncement seems to cover interlocutory appeals in general—including permissive ones.[29]Id. at 759-60. Some courts seem to construe Reyes as narrowly concerning interlocutory appeals as of right. See Kosar v. KPH-Consol., Inc., No. 14-19-00401-CV, 2020 WL 7074223, at *2 (Tex. … Continue reading And perhaps as importantly, the Reyes Court went on to construe the scope of the appeal in that case as of an “order,” which encompassed the trial court’s “ruling on the entire motion, including nonconstitutional grounds, and that the defendants were entitled to summary judgment on all claims against them.”[30]571 S.W.3d at 755. The Texas Supreme Court’s construction seems in accord with the federal approach.
What happened next? Not a lot. About three years have passed since Sabre Travel and Reyes. But little has changed for permissive appeals. These two decisions did not trigger a reevaluation of the scope of permissive appeals by the intermediate courts of appeals. And the Texas courts have continued to invoke the strict construction rule rejected by Reyes.[31]See Mayfield v. Worthen, No. 01-20-00669, 2021 WL 5056650, at *2 (Tex. App.—Houston [1st Dist.] Nov. 2, 2021, no pet.) (mem. op.) (“We must strictly apply statutes granting interlocutory appeals … Continue reading Change, if it is coming, has been very slow.
There is one recent and important exception. In Kenyon v. Elephant Insurance Company, LLC—issued in April 2020—the en banc Fourth Court of Appeals addressed the scope of permissive appeals in light of Sabre Travel.[32]628 S.W.3d 868, 881-82 (Tex. App.—San Antonio 2020, pet. granted) (en banc) (opinion on rehearing). It recognized that Sabre Travel “implicitly abrogated . . . cases strictly confining the scope of review in permissive appeals” and acknowledged the federal standard.[33]Id. at 882. It thus broadened review of permissive appeals to: (1) “the order or part of the order the trial court granted permission to appeal,” and (2) the issues “identified in a petition for permissive review” to the appellate court.[34]The Texas Supreme Court has suggested that considering uncertified questions may be discretionary. See BPX Operating Co. v. Strickhausen, 629 S.W.3d 189, 195 (Tex. 2021) (“[T]he trial court’s … Continue reading The Fourth Court did not discuss Reyes. But it did abrogate a prior decision that had been widely relied upon.[35]The Fourth Court abrogated Gulley v. State Farm Lloyds, 350 S.W.3d 204 (Tex. App.—San Antonio 2011, no pet.), which had been widely cited. See, e.g., Orion Marine Constr., Inc. v. Cepeda, No. … Continue reading
More discussion from the Texas Supreme Court may soon be had. It granted a petition for review from Kenyon on September 3, 2021. Don’t get too excited. The parties did not brief permissive-appeal issues.[36]The briefing in Kenyon before the Texas Supreme Court may be accessed at the following link: https://search.txcourts.gov/Case.aspx?cn=20-0366&coa=cossup (However, that would not prevent the Texas Supreme Court from opining on issues deemed jurisdictional—so some hope persists.)
* * *
The status of Texas law on the scope of permissive appeals is as follows. Sabre Travel and Reyes suggest a standard that tracks the federal rule, under which review may encompass the entire order. The en banc Fourth Court of Appeals adopted a standard close to that. To date, no other Texas court of appeals has done so to this author’s knowledge. But it is an issue ripe for consideration.
Implications for You
In closing—and in light of the (perhaps) changing law—a few practical thoughts have been offered below:
• Consider a permissive appeal if you have an important issue of law that the case would benefit from by early resolution. In Sabre Travel, the Texas Supreme Court encouraged courts of appeals to hear such appeals when the criteria are met, and the Texas Supreme Court may hear the appeal even if the court of appeals declines.
• Assume strict limitations on the scope of permissive appeals. Ask the trial court to specifically identify and rule on each issue (and sub-issue) you want addressed in the permissive appeal, and then raise those issues in your petition for review to the court of appeals.
• If the trial court certifies some but not all the issues in an order that you seek early appellate review of—consider arguing that all issues material to or fairly included in the order should fall within the permissive appeal’s scope. It of course would remain subject to the court of appeals’ discretion whether to consider the uncertified question, or any question at all.
References
↑1 | Tex. Civ. Prac. & Rem. Code § 51.014(d) (emphasis added). |
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↑2 | The rules that govern permissive interlocutory appeals are: Texas Civil Practice and Remedies Code § 51.014(d), (f); Texas Rule of Civil Procedure 168; and Texas Rule of Appellate Procedure 28.3. This article does not focus on how to perfect a permissive appeal. For an excellent explanation of that, see Hebert v. JJT Construction, 438 S.W.3d 139, 141-42 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). |
↑3 | E.g., City of Houston v. Hous. Prof’l Fire Fighters’ Assoc., Loc. 341, 626 S.W.3d 1, 23 (Tex. App.—Houston [14th Dist.] 2021, pet. filed); Lakes of Rosehill Homeowners Ass’n, Inc. v. Jones, 552 S.W.3d 414, 418 (Tex. App.—Houston [14th Dist.] 2018, no pet.); see also infra notes 8-11. |
↑4 | Compare Tex. Civ. Prac. & Rem. Code § 51.014(d), (f), with 28 U.S.C. § 1292(b); see Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 731 (Tex. 2019) (“[T]he Legislature modeled section 51.014(d) after the federal counterpart to permissive interlocutory appeal.”). |
↑5 | Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 398-99 (5th Cir. 2010) (en banc) (citing Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996). |
↑6 | Id. |
↑7 | The Texas courts discuss these limitations on permissive appeals in the absolute language of jurisdiction and authority, but their origin is rarely made express. It’s true that Texas courts could decline to hear permissive appeals on pure discretion for these same reasons. But if the limitations are jurisdictional, there is no discretion. Their nature changes what the courts may do as well as what the parties argue (and advise their clients). So if the Texas strictures on permissive appeals do arise from discretion, not jurisdiction, that should be made clear. |
↑8 | Orion Marine Constr., Inc. v. Cepeda, No. 01-18-00323-CV, 2018 WL 3059756, at *1 (Tex. App.—Houston [1st Dist.] June 21, 2018, no pet.) (mem. op.) (citing City of San Antonio v. Tommy Harral Constr., 486 S.W.3d 77, 83-84 (Tex. App.—San Antonio 2016, no pet.); accord Hous. Prof’l Fire Fighters’ Assoc., 626 S.W.3d at 23; U.S. Bank Nat’l Assoc. v. H & H Pipe & Steel, No. 12-20-00142-CV, 2021 WL 922938, at *2 (Tex. App.—Tyler Mar. 10, 2021, pet. denied) (mem. op.); Lakes of Rosehill, 552 S.W.3d at 418; Tex. Windstorm Ins. Assoc. v. Jones, 512 S.W.3d 545, 552 (Tex. App.—Houston [1st Dist.] 2016, no pet.); AmeriGas Propane, L.P. v. Aboytes-Muniz, No. 09-18-00122-CV, 2019 WL 2127750, at *4 (Tex. App.—Beaumont May 16, 2019, pet. denied) (mem. op.); White Point Minerals, Inc. v. Swantner, 464 S.W.3d 884, 890-91 (Tex. App.—Corpus Christi 2015, no pet.). |
↑9 | Dafashy v. Jimenez, No. 01-17-00767, 2017 WL 6001526, at *1 (Tex. App.—Houston [1st Dist.] Dec. 5, 2017, no pet.) (mem. op.) (collecting cases); accord Mid-Continent Cas. Co. v. Harris Cnty. Mun. Util. Dist. No. 400, No. 09-21-00326-CV, 2021 WL 6138974, at *1 (Tex. App.—Beaumont Dec. 30, 2021, no pet.) (mem. op.); Feagan v. Wilson, No. 11-21-00032-CV, 2021 WL 1134804, at *1 (Tex. App.—Eastland Mar. 25, 2021, no pet.) (mem. op.); Patel v. Nations Renovations, LLC, No. 02-21-00031-CV, 2021 WL 832719, at *1 (Tex. App.—Fort Worth Mar. 4, 2021, no pet.) (mem. op.); Connor v. Hooks, No. 03-19-00571-CV, 2020 WL 5099967, at *1 (Tex. App.—Austin Aug. 27, 2020, no pet.) (mem. op.); Int’l Bus. Mach. Corp. v. Lufkin Indus., Inc., No. 12-20-00249-CV, 2020 WL 6788140, *2 (Tex. App.—Tyler Nov. 18, 2020, pet. dism’d) (mem. op.); Sealy Emergency Room, LLC v. Leschper, No. 01-19-00167-CV, 2019 WL 3293699, at *1 (Tex. App.—Houston [1st Dist.] July 23, 2019, no pet.) (mem. op.); Garcia v. Garcia, No. 14-19-00375-CV, 2019 WL 2426680, at *2 (Tex. App.—Houston [14th Dist.] June 11, 2019, no pet.) (mem. op.); Luccia v. City of Houston, No. 01–17–00378–CV, 2017 WL 2471107, at *1 (Tex. App.—Houston [1st Dist.] June 8, 2017, no pet.) (mem. op.); Eagle Gun Range, Inc. v. Bancalari, 495 S.W.3d 887, 889 (Tex. App.—Fort Worth 2016, no pet.); Isaac v. Burnside, No. 14-16-00728-CV, 2016 WL 6305206, at *2 (Tex. App.—Houston [14th Dist.] Oct. 27, 2016, pet. denied) (mem. op.); City of Houston v. Proler, No. 14-16-00030-CV, 2016 WL 1047889, at *4 (Tex. App.—Houston [14th Dist.] Mar. 15, 2016, no pet.) (mem. op.); Armour Pipe Line Co. v. Sandel Energy, Inc., No. 14-16-00010-CV, 2016 WL 514229, at *4 (Tex. App.—Houston [14th Dist.] Feb. 9, 2016, no pet.) (mem. op.); Borowski v. Ayers, 524 S.W.3d 292, 306 (Tex. App.—Waco 2016, pet. denied); Vestalia, Ltd. v. Taylor-Watson, No. 01-15-00332-CV, 2015 WL 3799505, at *1 (Tex. App.—Houston [1st Dist.] June 18, 2015, no pet.) (mem. op.); De La Torre v. AAG Props., Inc., No. 14-15-00874, 2015 WL 9308881, at *1 (Tex. App.—Houston [14th Dist.] Dec. 22, 2015, no pet.) (mem. op.); Fertitta Hospitality, LLC v. O’Balle, No. 01–14–00193–CV, 2014 WL 5780329, at *4-5 (Tex. App.–Houston [1st Dist.] Nov. 6, 2014, no pet.) (mem. op.); Great Am. E&S Ins. Co. v. Lapolla Indus., Inc., No. 01–14–00372–CV, 2014 WL 2895770, at *2 (Tex. App.—Houston [1st Dist.] June 24, 2014, no pet.) (mem. op.); Bank N.Y. Mellon v. Guzman, 390 S.W.3d 593, 597 (Tex. App.—Dallas 2012, no pet.). |
↑10 | Hous. Prof’l Fire Fighters’ Assoc., 626 S.W.3d at 23; accord Lakes of Rosehill, 552 S.W.3d at 418; Gulf Coast Asphalt Co. v. Lloyd, 457 S.W.3d 539, 544 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Swantner, 464 S.W.3d at 890–91. Note that the parties’ agreement on the issues is not enough. See Fertitta Hospitality, 2014 WL 5780329, at *3. |
↑11 | El Paso Tool & Die Co., Inc. v. Mendez, 593 S.W.3d 800, 805 (Tex. App.—El Paso 2019, no pet.); accord JAJ Equip., Inc. v. Ramos, No. 04-21-00459-CV, 2021 WL 6127925, at *3 (Tex. App.—San Antonio Dec. 29, 2021, no pet.) (mem. op.); Orion Marine, 2018 WL 3059756, at *1 (“[T]he question must be a legal one; a party cannot permissively appeal from a partial summary judgment if the parties dispute the material facts.”); Undavia v. Avant Med. Grp., P.A., 468 S.W.3d 629, 634 (Tex. App.—Houston [14th Dist.] 2015, no pet.); In re Estate of Fisher, 421 S.W.3d 682, 685 (Tex. App.—Texarkana 2014, no pet.); Fertitta Hospitality, 2014 WL 5780329, at *4; Diamond Prods. Int’l, Inc. v. Handsel, 142 S.W.3d 491, 494 (Tex. App.—Houston [14th Dist.] 2004, no pet.). |
↑12 | There are two other rules that have been crafted but which have questionable vitality. First, some courts have recited a rule that only one “controlling issue of law” may be considered on appeal. See Armour Pipe Line, 2016 WL 514229, at *3-4 (“The statute and rules use the singular, ‘a controlling question of law,’ which arguably reflects an intent to restrict permissive appeals to interlocutory judgments that involve one controlling question of law.”); Johnson v. Walters, No. 14-15-00759-CV, 2015 WL 9957833, at *1 (Tex. App.—Houston [14th Dist.] Nov. 17, 2015, no pet.) (mem. op.) (similar). But the Texas Supreme Court has addressed more than one “controlling question” on permissive appeals. See Shinogle v. Whitlock, 596 S.W.3d 772, 775-76 (Tex. 2020) (“The issues the parties raise are intertwined, so we address both.”). Second, other courts have held that allowing a permissive appeal may be improper if “other issues” would be left pending in the litigation. See, e.g., Estate of Barton, No. 06-21-00009-CV, 2021 WL 1031540, at *5 (Tex. App.—Texarkana Mar. 18, 2021, no pet.) (mem. op.) (citing Harden Healthcare, LLC v. OLP Wyo. Springs, LLC, No. 03-20-00275-CV, 2020 WL 6811994, at *1 (Tex. App.—Austin Nov. 20, 2020, no pet.) (mem. op.); ADT Sec. Servs., Inc. v. Van Peterson Fine Jewelers, No. 05-15-00646-CV, 2015 WL 4554519, at * 3 (Tex. App.—Dallas July 29, 2015, no pet.) (mem. op.). |
↑13 | See CMH Homes v. Perez, 340 S.W.3d 444, 447-48 (Tex. 2011) (citing Tex. A & M. Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007); Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001); e.g., Armour Pipe Line, 2016 WL 514229, at *3; Orion Marine Constr., 2018 WL 3059756, at *1 (“Because a permissive interlocutory appeal is not the norm, we strictly construe Section 51.014(d)’s requirements.”); Gulf Coast Asphalt, 457 S.W.3d at 545; Estate of Fisher, 421 S.W.3d at 685; CSFB 1998-PI Buffalo Speedway Office, Ltd. P’ship v. Amtech Elevator Servs., Co., No. 01-08-00639-CV, 2010 WL 3294287, at *4 (Tex. App.—Houston [1st Dist.] Aug. 19, 2010, no pet.) (mem. op.) (“Statutes authorizing interlocutory appeals are strictly construed.”); Swantner, 464 S.W.3d at 890 (“We strictly construe section 51.014(d) because it provides for an interlocutory appeal as an exception to the general rule that only final judgments are appealable.”). |
↑14 | See Tex. R. Civ. P. 168; Tex. R. App. P. 28.3; supra notes 8-12. |
↑15 | Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 398-99 (5th Cir. 2010) (en banc) (citing Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996); see also United States v. Stanley, 483 U.S. 669, 677 (1996); Luera v. M/V Alberta, 635 F.3d 181, 186 (5th Cir. 2011); Brabham v. A.G. Edwards & Sons Inc., 376 F.3d 377, 380 n.2 (5th Cir. 2004); 16 Charles Alan Wright et al., Federal Practice and Procedure § 3929 (3d ed. 2021) (“[T]he scope of the issues open to the court of appeals is closely limited to the order appealed from, but not to the specific stated question.”). |
↑16 | Castellanos-Contreras, 622 F.3d at 397-98; U.S. ex rel. Simoneaux v. E.I. duPont de Nemours & Co., 843 F.3d 1033, 1041 (5th Cir. 2016); accord Hernandez v. Results Staffing, Inc., 907 F.3d 354, 363 (5th Cir. 2018); Sprong v. Fid. Nat. Prop. & Cas. Inc. Co., 787 F.3d 296, 304 (5th Cir. 2015); Faulk v. Union Pac. R.R. Co., 576 F. App’x 345, 349 (5th Cir. 2014) (per curiam); Luera, 635 F.3d at 186. There has been recent debate among a Fifth Circuit panel about whether questions material to the certified order must be considered. Compare Gonzalez v. CoreCivic, Inc., 986 F.3d 536, 540 (5th Cir. 2021) (Ho, J., concurring) (“Nothing . . . suggests that courts are ever duty-bound to decide an uncertified issue.”), with id. at 543 (Oldham, J., concurring) (“The majority’s theory appears to be that we can choose, in our discretion, to limit ourselves to the question certified by the district court. There are courts that have such discretion, but ours is not one of them.”). Past decisions seem to support that it is discretionary. E.g., Hernandez, 907 F.3d at 364 n.17 (“[R]eview by appellate courts of noncertified questions is also discretionary, so long as the noncertified question is materially related to the order.” (quotation omitted); Kemp v. CTL Distrib., Inc., 440 F. App’x 240, 243 (5th Cir. 2011) (per curiam) (“[E]ven if we determine that we have the power to consider a question that is material to the certified order, we must nonetheless decide whether to exercise our discretion to consider those issues.”); In re Katrina Canal Breaches Litig., 613 F.3d 504, 509 n.5 (5th Cir. 2010) (declining to reach a limitations question that was not expressly certified); Hopkins v. Cornerstone Am., 545 F.3d 338, 343 n.1 (5th Cir. 2008) (“When a district court identifies a particular ‘controlling question of law’ from its order for interlocutory review, we have discretion to address any issue contained in the original order.”). |
↑17 | Simoneaux, 843 F.3d at 1035 (quoting Castellanos-Contreras, 622 F.3d at 397). |
↑18 | Yamaha Motor Corp., 516 U.S. at 205 (Ginsburg, J.). |
↑19 | Id. |
↑20 | Questions might exist about the application of such a canon where the Legislature’s directive is clear in the plain text. Cf. State v. Schumake, 199 S.W.3d 279, 284 (Tex. 2006) (“If the statute is clear and unambiguous, we must apply its words according to their common meaning without resort to rules of construction . . . .” (emphasis added). |
↑21 | 567 S.W.3d 725, 730-32 (Tex. 2019). |
↑22 | Id. at 731. |
↑23 | Id. at 732. This has led at least some jurists to urge the taking of more permissive appeals. See Moasic Baybrook One, L.P. v. Simien, No. 01-18-00995-CV, 2019 WL 2458991, at *3 (Tex. App.—Houston [1st Dist.] June 13, 2019, no pet.) (Keyes, J., dissenting from denial of en banc reconsideration) (“[I]n Sabre Travel . . . the Texas Supreme Court urged lower courts to grant permissive appeals in light of the legislative policies behind Section 51.014(d).” (quotation omitted); accord Devillier v. Leonards, No. 01-20-00224-CV, 2020 WL 7869217 (Tex. App.—Houston [1st Dist.] Dec. 31, 2020, no pet.) (Keyes, J., dissenting from a denial of rehearing). |
↑24 | 567 S.W.3d at 734 (emphasis added). |
↑25 | Id. at 736. |
↑26 | 571 S.W.3d 753, 759 (Tex. 2019). |
↑27 | Id. |
↑28 | Id. |
↑29 | Id. at 759-60. Some courts seem to construe Reyes as narrowly concerning interlocutory appeals as of right. See Kosar v. KPH-Consol., Inc., No. 14-19-00401-CV, 2020 WL 7074223, at *2 (Tex. App.—Houston [14th Dist.] Dec. 3, 2020, no pet.) (mem. op.) (construing Reyes as “abandoning strict construction of interlocutory appeal statute with respect to appeals under section 51.014(a)(6)”); Phillips v. Clark, 575 S.W.3d 882, 887 (Tex. App.—Dallas 2019, no pet.) (“The supreme court in . . . Reyes held that we are no longer to narrowly construe Civil Practice and Remedies Code § 51.014(a)(6). . . . Thus, we should interpret that statute according to normal statutory construction principles.”). |
↑30 | 571 S.W.3d at 755. |
↑31 | See Mayfield v. Worthen, No. 01-20-00669, 2021 WL 5056650, at *2 (Tex. App.—Houston [1st Dist.] Nov. 2, 2021, no pet.) (mem. op.) (“We must strictly apply statutes granting interlocutory appeals because they are a narrow exception to the general rule that interlocutory orders are not immediately appealable.” (quotation omitted); Thien Nguyen v. Garza, No. 01-19-00090-CV, 2019 WL 1940802, at *1 (Tex. App.—Houston [1st Dist.] May 2, 2019, pet. denied) (mem. op.) (same rule); Estate of Barton, 2021 WL 1031540, at *3 (same); TPCO Am. Corp. v. Castillo, No. 13-21-00088-CV, 2021 WL 1680203, at *1 (Tex. App.—Corpus Christi Apr. 29, 2021, pet. denied) (mem. op.) (same); JAJ Equip., 2021 WL 6127925, at *3 (same). |
↑32 | 628 S.W.3d 868, 881-82 (Tex. App.—San Antonio 2020, pet. granted) (en banc) (opinion on rehearing). |
↑33 | Id. at 882. |
↑34 | The Texas Supreme Court has suggested that considering uncertified questions may be discretionary. See BPX Operating Co. v. Strickhausen, 629 S.W.3d 189, 195 (Tex. 2021) (“[T]he trial court’s identification of the ‘controlling question[s] of law’ for the permissive appeal includes ratification but not estoppel. For that reason, the court of appeals declined to address BPX’s separate estoppel arguments, as do we.”). |
↑35 | The Fourth Court abrogated Gulley v. State Farm Lloyds, 350 S.W.3d 204 (Tex. App.—San Antonio 2011, no pet.), which had been widely cited. See, e.g., Orion Marine Constr., Inc. v. Cepeda, No. 01-18-00323-CV, 2018 WL 3059756, at *1 (Tex. App.—Houston [1st Dist.] June 21, 2018, no pet.) (mem. op.); De La Torre v. AAG Props., Inc., 2015 WL 9308881, at *1 (Tex. App.—Houston [14th Dist.] Dec. 22, 2015, no pet.) (mem. op.); Borowski v. Ayers, 432 S.W.3d 344, 347 (Tex. App.—Waco 2013, no pet.); Bank N.Y. Mellon v. Guzman, 390 S.W.3d 593, 597 (Tex. App.—Dallas 2012, no pet.); In re Estate of Fisher, 421 S.W.3d 682, 683-85 (Tex. App.—Texarkana 2014, no pet.); Colonial Cnty. Mut. Ins. Co. v. Amaya, 372 S.W.3d 308, 311 (Tex. App.—Dallas 2012, no pet.). |
↑36 | The briefing in Kenyon before the Texas Supreme Court may be accessed at the following link: https://search.txcourts.gov/Case.aspx?cn=20-0366&coa=cossup |