Charles Hebert and Treasa Anthony v. JJT Construction, JJT Construction Inc., Emmanuel D. Watson D/B/A JJT Construction, Gulf Coast Claims Service, William "Bill" Brooks & Underwriters at Lloyds, London

Petition for Permission to Appeal Denied and Opinion filed July 10, 2014.

In The

Fourteenth Court of Appeals

NO. 14-14-00430-CV

CHARLES HEBERT AND TREASA ANTHONY, Appellants

V.
JJT CONSTRUCTION, JJT CONSTRUCTION INC., EMMANUEL D.
WATSON D/B/A JJT CONSTRUCTION, GULF COAST CLAIMS
SERVICE, WILLIAM “BILL” BROOKS AND UNDERWRITERS AT
LLOYDS, LONDON, Appellees

On Appeal from the 125th District Court
Harris County, Texas
Trial Court Cause No. 2012-65266

OPINION
Before this court is a petition for permission to appeal an interlocutory order
that is not otherwise appealable. Charles Hebert and Treasa Antony, referred to as
appellants, filed a petition under Texas Rule of Appellate Procedure 28.3 seeking
permission from this court for an interlocutory appeal under Texas Civil Practice
and Remedies Code section 51.014(d) from an interlocutory order signed May 13,
2014, denying their motion for partial summary judgment. 1 See Tex. Civ. Prac. &
Rem. Code § 51.014(d) (specifying circumstances under which trial court may
grant written permission to appeal an otherwise unappealable order); see also Tex.
R. App. P. 28.3; Tex. R. Civ. P. 168. On June 9, 2014, JJT Construction, JJT
Construction, Inc., and Emmanuel D. Watson, referred to as appellees, filed a
response in opposition to the petition. In the response, appellees assert (1) the trial
court has not granted permission to appeal; (2) the order to be appealed does not
comply with Texas Rule of Civil Procedure 168; (3) the application does not
comply with Texas Rule of Appellate Procedure 28.3(e); and (4) the application
does not comply with Texas Civil Practice and Remedies Code Section 51.014(d).

PERMISSIVE APPEALS

Courts of appeals do not have jurisdiction over appeals from interlocutory
orders unless a statute provides for an interlocutory appeal from such orders. See
Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). Section
51.014 of the Texas Civil Practice and Remedies Code lists several types of
interlocutory orders that may be immediately appealed. See Tex. Civ. Prac. &
Rem. Code § 51.014. In 2011, section 51.014 was amended to provide:

(d) On a party’s motion or on its own initiative, a trial court in a civil
action may, by written order, permit an appeal from an order that is
not otherwise appealable if:
(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.

1
The petition, referred to as an application, was filed with the Harris County District
Clerk on May 28, 2014, and assigned to this court on June 3, 2014.

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Tex. Civ. Prac. & Rem. Code § 51.014(d).2 In addition, subsection (f) specifies the
procedure for bringing a permissive interlocutory appeal under subsection (d),
providing:

An appellate court may accept an appeal permitted by Subsection (d)
if the appealing party, not later than the 15th day after the date the
trial court signs the order to be appealed, files in the court of appeals
having appellate jurisdiction over the action an application for
interlocutory appeal explaining why an appeal is warranted under
Subsection (d). If the court of appeals accepts the appeal, the appeal is
governed by the procedures in the Texas Rules of Appellate Procedure
for pursuing an accelerated appeal. The date the court of appeals
enters the order accepting the appeal starts the time applicable to
filing the notice of appeal.
Tex. Civ. Prac. & Rem. Code § 51.014(f).

The rules of procedure were also amended in 2011 to address the changes to
the statute governing permissive appeals. See Tex. R. App. P. 28.3 cmt. (noting the
amendment to the statute necessitated the addition of Rule 28.3 and the adoption of
Rule of Civil Procedure 168). Appellate Rule 28.3 was added to provide in part:

(a) Petition Required. When a trial court has permitted an appeal from
an interlocutory order that would not otherwise be appealable, a party
seeking to appeal must petition the court of appeals for permission to
appeal.
(b) Where Filed. The petition must be filed with the clerk of the court
of appeals having appellate jurisdiction over the action in which the
order to be appealed is issued. The First and Fourteenth Courts of
Appeals must determine in which of those two courts a petition will
be filed.

2
The 2011 amendments eliminated the prior requirement that the parties agree to the
appeal and reinstated a requirement that the court of appeals grant permission for the appeal. Act
of May 25, 2011, 82nd Leg., R.S., ch. 203, §§ 3.01, 6.01, 2011 Tex. Gen. Laws 758, 761.
amending Act of May 27, 2005, 79th Leg. R.S., ch. 1051, §§ 1–2, 2005 Tex. Gen. Laws 3512,
3512–13 and Act of May 17, 2001, 77th Leg., R.S., ch. 1389, § 1, 2001 Tex. Gen. Laws 3575.

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Tex. R. App. P. 28.3(a), (b). In addition, Rule 28.3 specifies the required contents
of a petition for permission to appeal.

The petition 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).

Texas Rule of Civil Procedure 168 is a new rule, added in 2011 to
implement amendments to section 51.014(d)–(f) of the Texas Civil Practice and
Remedies Code.3 The rule 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. Thus, under this rule, the trial court’s permission, the
controlling legal issue, and the reasons why an immediate appeal will materially
advance the litigation must be stated in the order to be appealed.

In summary, following the 2011 amendments to section 51.014 of the Texas
3
Subsection (e) of section 51.014,, addressing a stay of the underlying proceedings, was
amended at the same time, but it is not at issue here.

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Civil Practice and Remedies Code, the related enactment of Texas Rule of Civil
Procedure 168 and amendment to Texas Rule of Appellate Procedure 28, the
following must occur in order for all applicable procedures for a permissive appeal
to be satisfied: (1) on a party’s motion or on its own initiative, the trial court must
issue a written order that includes both an interlocutory order that is not otherwise
appealable and a statement of the trial court’s permission to appeal this order under
Texas Civil Practice and Remedies Code section 51.014(d); (2) in this statement of
permission, the trial court 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; (3) after the trial court signs an order granting permission in accordance
with Texas Civil Practice and Remedies Code section 51.014(f) and Texas Rule of
Appellate Procedure 28.3, the appellant must timely file a petition seeking
permission from the court of appeals to appeal; and (4) the court of appeals must
grant the petition for permission to appeal. See Tex. Civ. Prac. & Rem. Code §
51.014(d)–(f); Tex. R. App. P. 28.3 & cmt. 4

THE UNDERLYING PROCEEDINGS

Appellants claim that JJT Construction entered into a contract with them to
build a finished asphalt parking lot and modular building on appellants’ property.
JJT Construction removed an existing unfinished building located on the same
property. The parties dispute whether JJT Construction had permission to do so.
Appellants sued appellees for damages, alleging several causes of action.

4
In this appeal, we base our decision only on the absence of permission by the trial court
for an interlocutory appeal under Texas Civil Practice and Remedies Code section 51.014(d). We
do not address whether any of the other procedures from these statutes and rules are necessary
for appellate jurisdiction or are a proper basis for denying a petition to the court of appeals for
permission to appeal under section 51.014(d).

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 At issue here is the May 13, 2014 order in which the trial court denied
appellants’ motion for partial summary judgment on their claims for negligence
and gross negligence against appellees.5 Appellants assert they provided summary
proof that appellees breached a duty to appellants and proximately caused their
damages. Appellants argue in their petition for permission to appeal that appellees
may not assert a lack of damages as their sole defense based on appellants’ earlier
pleading that the demolished building had no market value when it was removed.

APPELLANTS’ PETITION

We now review appellants’ petition for permission to bring an interlocutory
appeal of this interlocutory summary judgment order. The 2011 amendments to the
permissive appeal statute and procedural rules apply to this case, which was filed
in 2012. See Act of May 25, 2011, 82nd Leg., R.S., ch. 203, § 6.01 (stating the
amendments to section 51.014(d)–(f) apply to cases commenced on or after
September 1, 2011). Appellate courts must construe section 51.014 of the Texas
Civil Practice and Remedies Code to give effect to the Legislature’s intent, but
they also strictly construe this statute as an exception to the general rule that only
final judgments are appealable. See City of Houston v. Estate of Jones, 388 S.W.3d
663, 666 (Tex. 2012) (per curiam); State Farm Lloyds v. Gulley, 399 S.W.3d 242,
246 (Tex. App.—San Antonio 2012, no pet.) (strictly construing former section
51.014(d)).

No Trial Court Permission

Appellees assert the trial court has not granted appellants permission to
appeal. Appellants have not alleged the trial court granted permission and they

5
Other defendants were joined in the suit, but they have not responded to appellants’
petition. It is unclear from the limited record before us whether appellants’ motion for partial
summary judgment may have addressed claims against these other defendants.

6
have provided no signed order granting permission. The trial court’s permission
must be stated in a written order. See Tex. Civ. Prac. & Rem. Code § 51.014(d);
Tex. R. Civ. P. 168. Because appellants have not shown that the trial court granted
permission to appeal under Texas Civil Practice and Remedies Code section
51.014(d), there is no basis for an appeal under this statute, and we deny
appellants’ petition for permission to appeal.

CONCLUSION

Appellants have not established that they are entitled to an immediate appeal
under Section 51.014(d) of the trial court’s May 13, 2013, order denying their
motion for partial summary judgment. We deny the petition for permission to bring
an interlocutory appeal under Section 51.014(d).

/s/ John Donovan
Justice

Panel consists of Chief Justice Frost and Justices Donovan and Wise.

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