Dismissed and Opinion and Concurring Opinion filed July 20, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00998-CV
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DIAMOND PRODUCTS INTERNATIONAL, INC., Appellant
V.
ARTHUR M. HANDSEL, Appellee
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On Appeal from the 280th District Court
Harris County, Texas
Trial Court Cause No. 02‑38531
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O P I N I O N
In this permissive interlocutory appeal, we address whether this court may consider the appeal in the absence of a timely‑filed application for permission to appeal as required by section 51.014(f) of the Texas Civil Practice and Remedies Code, and, if so, whether this appeal meets the standards for permissive appeals contemplated by the statute. We deny the application for interlocutory appeal and dismiss the appeal.
Discussion
Appellant, Diamond Products International, Inc. (ADPI@) terminated the employment of appellee, Arthur M. Handsel. Appellee sued DPI for common law fraud and promissory estoppel, claiming DPI had promised to provide him a three-year written employment contract, which it had not done. DPI disputes appellee=s claim and contends it never made the alleged employment promises. DPI filed a motion for summary judgment on the ground that appellee did not reasonably rely on a promise as required to sustain his claims. The trial court denied the motion and signed an order authorizing this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(d)(Vernon Supp. 2004).
Traditionally, interlocutory appeals have been limited to appeals of certain types of orders specifically set forth by statute. See id. ' 51.014(a). In 2001, however, the Texas Legislature amended section 51.014 to allow permissive appeals. Section 51.014(d), which applies to cases filed on or after September 1, 2001, provides:
A district court may issue a written order for interlocutory appeal in a civil action not otherwise appealable under this section if:
(1) the parties agree that the order involves a controlling question of law as to which there is a substantial ground for difference of opinion;
(2) an immediate appeal from the order may materially advance the ultimate termination of the litigation; and
(3) the parties agree to the order.
Id. ' 51.014(d). AIf application is made to the court of appeals that has appellate jurisdiction over the action not later than the 10th day after the date an interlocutory order under Subsection (d) is entered, the appellate court may permit an appeal to be taken from that order.@ Id. ' 51.014(f).
On July 2, 2003, the trial court denied appellant=s motion for summary judgment and signed an order authorizing an interlocutory appeal of its order. Appellant did not file an application for permission to appeal in this court. Instead, within ten days after the trial court=s order was signed, on July 11, 2003, appellant filed a notice of appeal.
In ordinary civil appeals, the appellate court=s jurisdiction is invoked when an appellant timely files Aan instrument in a bona fide attempt to invoke the appellate court=s jurisdiction.@ Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997) (citing Grand Prairie I.S.D. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991)). It is clear that a notice of appeal is a bona fide attempt to invoke this court=s jurisdiction. See Stolte v. County of Guadalupe, No. 04-04-00083-CV, 2004 WL 1159388, at *2 (Tex. App.CSan Antonio May 26, 2004, no pet. h.). Therefore, when an appellant has filed a timely notice of appeal, the failure to file an application for permission to appeal pursuant to section 51.014(f) does not deprive this court of jurisdiction over the appeal.
An appellant should be given an opportunity to correct a defect in the perfecting instrument before an appeal is dismissed. Verburgt, 959 S.W.2d at 616. However, in this case, the parties have fully briefed the issues in the appeal. Accordingly, we find it unnecessary under these circumstances to require appellant to file an application for permission to appeal. Instead, we review the issues presented in the briefs to determine if the standards contemplated under section 51.014(f) have been satisfied.
Section 51.014(f) does not specify the contents of an application for permission to appeal, and the supreme court has not yet enacted rules of procedure to implement the statute. However, to persuade the court of appeals to grant permission to appeal, appellant should include facts and argument addressing the requirements of section 51.014(d): that the order Ainvolves a controlling question of law as to which there is a substantial ground for difference of opinion@ and that Aan immediate appeal . . . may materially advance the ultimate termination of the litigation.@ Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(d) cf. Fed. R. App. P. 5(b)(1) (providing petition for permission to appeal must include Athe facts necessary to understand the question presented@ and Athe reasons why the appeal should be allowed and is authorized@); see Richardson v. Kays, No. 02‑03‑241‑CV, 2003 WL 22457054, at *2 (Tex. App.CFort Worth Oct. 30, 2003, no pet.) (mem. op.) (denying application to appeal that did Anot mention, discuss, or analyze why the issue . . . involves a controlling question of law as to which there is a substantial ground for difference of opinion@).
The parties did not present facts or argument explaining why we should grant permission to appeal; however, the reasoning of the parties is apparent from the briefing. In effect, the parties desire to obtain an advance ruling on the summary judgment ground alleged in the motion before proceeding to trial. The 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. While the issue in the summary judgment is central to appellee=s claim, its resolution does not rest on a controlling legal issue or materially advance the termination of the litigation. See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(d).
Accordingly, we deny permission to appeal the interlocutory order and dismiss the appeal.
/s/ Charles W. Seymore
Justice
Judgment rendered and Opinion and Concurring Opinion filed July 20, 2004. (Frost, J., concurring.) (Edelman, J., concurs in result only).
Panel consists of Justices Frost, Edelman and Seymore.