AL FOX III APPELLANT v. MARK BUCKLAND AND VIRGINIA BUCKLAND APPELLEES (2017)

MEMORANDUM OPINION 1

I. INTRODUCTION

Al Fox III seeks to pursue a permissive interlocutory appeal from the trial court's September 29, 2016 partial summary judgment order in favor of Mark Buckland and Virginia Buckland. We will deny Fox's petition for permissive appeal.

II. FACTUAL AND PROCEDURAL BACKGROUND

Anita Fox was Al Fox III and Virginia Buckland's mother. Virginia Buckland is married to Mark Buckland. Between 2003 and 2007, the Bucklands purchased five term life-insurance policies on Anita's behalf with a combined value of $5,000,000 and named themselves as beneficiaries. In 2013, Mark Buckland transferred one of the policies (valued at $1,000,000) to Patrick Gorman and listed Gorman as the beneficiary. Gorman's brother later murdered Anita.

Several lawsuits relating to the policies have ensued. In this lawsuit, Fox has brought the following claims against the Bucklands: (1) breach of fiduciary duty, (2) wrongful death, (3) negligence, and (4) violation of the slayer statute.² The Bucklands moved for summary judgment on Fox's negligence and slayer-statute claims. The trial court denied the motion with respect to the slayer-statute claim but granted the motion with respect to the negligence claim, finding as a matter of law that “no duty exists in the transfer and/or [sale] of a life insurance policy to a third party.”

Over a month after the trial court issued the summary judgment order, it issued a separate order granting Fox's motion to seek a permissive interlocutory appeal. Notably, this second order did not incorporate or purport to amend the summary judgment order. Rather, the second order is a stand-alone order granting Fox's request to pursue an interlocutory appeal.

III. RULE 168'S REQUIREMENT THAT PERMISSION MUST BE STATED IN THE ORDER BEING APPEALED

Rule 168 of the Texas Rules of Civil Procedure sets forth the process for initiating a permissive appeal. See Tex. R. Civ. P. 168. That rule provides:

On a party's motion or on its own initiative, a trial court may permit an appeal from an interlocutory order that is not otherwise appealable, as provided by statute. Permission must be stated in the order to be appealed. An order previously issued may be amended to include such permission. The permission must identify the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why an immediate appeal may materially advance the ultimate termination of the litigation.

Id. (emphasis added).

Here, Fox seeks a permissive interlocutory appeal from the trial court's order granting partial summary judgment in favor of the Bucklands. Permission to appeal, however, is not included in the summary judgment order. Permission to appeal is given, instead, in a separate order. The separate order does not amend or incorporate the summary judgment order.

The circumstances presented here are similar to the circumstances presented in Heinrich v. Strasburger & Price, L.L.P., No. 01-15-00473-CV, 2015 WL 5626507 (Tex. App.—Houston [1st Dist.] Sept. 24, 2015, no pet.) (mem. op.). In Heinrich, the trial court signed an order dismissing some, but not all, of the defendants. Id. at *1. The trial court later signed a second order granting the plaintiffs permission to seek an interlocutory appeal of the dismissal order. Id. The two orders were separate and distinct; the second order did not incorporate or amend the first. Id. The court of appeals held that the two orders “violate Rule 168's mandate that permission to seek a permissive appeal ‘must be stated in the order to be appealed,’ not in a separate order.” Id. (quoting Tex. R. Civ. P. 168).

Like the orders at issue in Heinrich, the orders here violate rule 168's requirement that permission to seek a permissive interlocutory appeal “must be stated in the order to be appealed.” Tex. R. Civ. P. 168; see Heinrich, 2015 WL 5626507, at *1–2. Accordingly, we will deny Fox's petition. See Hebert v. JJT Constr., 438 S.W.3d 139, 142 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“Because appellants have not shown that the trial court granted permission to appeal ․ there is no basis for an appeal under this statute, and we deny appellants' petition for permission to appeal.”); Hernandez v. Dep't of Family & Protective Servs., 392 S.W.3d 188, 190 (Tex. App.—El Paso 2012, no pet.) (“[W]e would deny the petition because Hernandez has not obtained the trial court's permission to appeal.”).

IV. CONCLUSION

Because the order being appealed does not give permission to seek an interlocutory appeal, we deny Fox's petition for permissive interlocutory appeal.

FOOTNOTES

1.   See Tex. R. App. P. 47.4.

2.   See Tex. Ins. Code Ann. § 1103.151 (West 2009) (“A beneficiary of a life insurance policy or contract forfeits the beneficiary's interest in the policy or contract if the beneficiary is a principal or an accomplice in willfully bringing about the death of the insured.”).

PER CURIAM