BERRY CONTRACTING BAY LTD AND JUAN TOMAS HERNANDEZ ALVAREZ v. GERNAL RANDOLPH MANN AND JENNIFER MANN

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Court of Appeals of Texas, Corpus Christi-Edinburg.

BERRY CONTRACTING, L.P., D/B/A BAY LTD. AND JUAN TOMAS HERNANDEZ ALVAREZ, Appellants, v. GERNAL RANDOLPH MANN AND JENNIFER MANN, Appellees.

NUMBER 13-17-00063-CV

Decided: April 01, 2018

Before Justices Rodriguez, Benavides, and Longoria

DISSENTING OPINION

I write separately because I believe that the granting of the petition for permissive appeal in this case is improper, and the petition should have been denied.

Permissive interlocutory appeals are provided by statute in section 51.014(d) of the civil practice and remedies code. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (West, Westlaw through 2017 1st C.S.). This statute has been strictly construed as a “narrow exception to the general rule that only final judgments are appealable.” City of Houston v. Estate of Jones, 388 S.W.3d 663, 666 (Tex. 2012) (per curiam) (internal quotations omitted).

The procedures that govern the filing of permissive appeals are provided for by the civil practice and remedies code, Texas Rule of Civil Procedure 168, and Texas Rule of Appellate Procedure 28.3. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d), (e), (f); TEX. R. CIV. P. 168; TEX. R. APP. P. 28.3. Specifically, Texas Rule of Civil Procedure 168 states:

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.

TEX. R. CIV. P. 168. Among other filing requirements, Texas Rule of Appellate Procedure 28.3 states that a petition for permissive appeal in a civil case must: (1) contain the information required by Rule 25.1(d) to be included in a notice of appeal; (2) attach a copy of the order from which appeal is sought; (3) contain a table of contents, index of authorities, issues presented, and a statement of facts; and (4) argue clearly and concisely why the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion and how an immediate appeal from the order may materially advance the ultimate termination of the litigation. TEX. R. APP. P. 28.3(e); see id. R. 25.1(d).

In their petition, appellants Berry Contracting, L.P., d/b/a Bay Ltd. and Juan Tomas Hernandez Alvarez (Bay) fail to meet their burden entitling them to a permissive appeal. Berry asserts that the requirement that there is substantial ground for difference of opinion on the controlling question of law is “obvious from the fact that [appellees] Gernal Randolph Mann and Jennifer Mann and Bay have taken diametrically opposed legal positions on the exclusive remedy defense.” Such an argument is unpersuasive.

With regard to the “substantial grounds for disagreement” requirement for permissive appeals, one commentator has noted that

Substantial grounds for disagreement exist when the question presented to the court is novel or difficult, when controlling circuit law is doubtful, when controlling circuit law is in disagreement with other courts of appeals, and when there simply is little authority upon which the district court can rely.

Renee Forniash McElhaney, Toward Permissive Appeal in Texas, 29 ST. MARY'S L.J. 729, 749 (1998).

I agree with Judge McElhaney's 1 observations regarding the “substantial grounds for disagreement” standard, and courts should take these observations into account when deciding whether to grant a petition for permissive appeal. Nothing in this record, including Bay's petition, demonstrates a substantial ground for disagreement in the exclusive remedy defense. The fact that the parties have taken “diametrically opposed legal positions” is not enough for me to agree that a permissive appeal should be granted. Parties taking opposite legal positions is but one of the joys of litigation, and, in my opinion, simply not enough to warrant a permissive appeal. If we are to utilize that low standard to decide whether substantial grounds for disagreement exists in order to grant a permissive appeal, appellate courts need to brace for an influx of permissive appeals.

Furthermore, nothing in the majority's decision today “materially advance[s] the ultimate termination of the litigation.” To the contrary, the majority concludes that neither side “conclusively proved its case with regard to the exclusive-remedy defense,” leaving the question to be decided by a jury and remanded the case for trial. This type of protracted litigation should be discouraged and not serve as a basis for permissive appeals.

Accordingly, because I believe that this petition for permissive appeal was improvidently granted in this case, I respectfully dissent.

FOOTNOTES

1.   The Honorable Renee (McElhaney) Yanta now presides over the 150th Civil District Court in Bexar County.

GINA M. BENAVIDES, Justice