Great American E&S Insurance Company v. Lapolla Industries, Inc.

Opinion issued June 24, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00372-CV
———————————
GREAT AMERICAN E&S INSURANCE COMPANY, Appellant
V.
LAPOLLA INDUSTRIES, INC., Appellee

On Appeal from the 270th District Court
Harris County, Texas
Trial Court Case No. 2013-41127

MEMORANDUM OPINION

Appellant, Great American E&S Insurance Company, has filed a petition

seeking permission to appeal an interlocutory order denying its motion for

summary judgment. See TEX. R. APP. P. 28.3(a); see also TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014(d) (West Supp. 2013). Appellee, Lapolla Industries, Inc., has
filed a motion to dismiss appellant’s petition for lack of jurisdiction. We grant the

motion to dismiss.

In its petition, appellant asserts that this case involves the interpretation of an

insurance policy appellant issued to appellee. Appellant filed the underlying

lawsuit seeking a declaratory judgment that it has no duty to defend or indemnify

appellee under the policy. On October 1, 2013, appellant filed a motion for

summary judgment.

On January 9, 2014, the trial court denied appellant’s motion, without

explanation. Subsequently, appellant moved for permission to appeal the

interlocutory summary judgment order pursuant to section 51.014(d) of the Texas

Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(d) (allowing appeal of otherwise not appealable order under certain

circumstances). The trial court signed an amended order on April 23, 2014. This

amended order again denied appellant’s motion without providing a basis for the

trial court’s ruling, but granted permission for appellant to file an interlocutory

appeal. The order also noted the following controlling question of law:

Did Great American E&S Insurance Company have a duty to defend
Lapolla Industries, Inc. in the matter styled Robert and Cynthia
Gibson v. Lapolla Industries, Inc. and Air Tight Insulation of Mid-
Florida, LLC, Case No.: 6:13-cv-646? Or, did the Great American
Policy’s “Total Pollution Exclusion” exclude coverage for Lapolla
based on Plaintiffs’ factual allegations in the Gibson lawsuit?

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Appellant timely filed its petition for permissive appeal in this Court. See TEX. R.

APP. P. 28.3(c).

Appellee has now filed a motion to dismiss the appeal for want of

jurisdiction. Appellee contends that the Court is without jurisdiction to consider

appellant’s appeal because the trial court did not rule on the controlling issue of

law, and the trial court’s denial of appellant’s motion for summary judgment,

without explanation, does not constitute such a ruling on the controlling issue of

law as required by section 51.014(d) of the Texas Civil Practice and Remedies

Code. Thus, appellee argues that any ruling from this Court would be an

impermissible advisory opinion. We agree.

An appeal may be taken only from a final summary judgment, unless a

statute specifically authorizes an interlocutory appeal. See Lehmann v. Har-Con

Corp., 39 S.W.3d 191, 195 (Tex. 2001). This Court strictly construes statutes

authorizing interlocutory appeals because they are a narrow exception to the

general rule that interlocutory orders are not immediately appealable. See CMH

Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); see also City of Hous. v. Estate

of Jones, 388 S.W.3d 663, 666 (Tex. 2012) (per curiam) (“[W]e also ‘strictly

construe Section 51.014[] as a narrow exception to the general rule that only final

judgments are appealable.’” (quoting Tex. A & M Univ. Sys. v. Koseoglu, 223

S.W.3d 835, 841 (Tex. 2007))).

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 An order denying a motion for summary judgment is generally not

appealable because it is an interlocutory order and not a final judgment.

Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (per curiam). However,

section 51.014(d) of the Texas Civil Practice and Remedies Code provides:

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.

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d).1

Notably though, “[t]he legislature’s institution of this procedure authorizing

a trial court to permit an immediate appeal of an interlocutory order is nevertheless

premised on the trial court having first made a substantive ruling on the controlling

legal issue being appealed.” Borowski v. Ayers, No. 10-13-00077-CV, 2013 WL

6388336, at *3 (Tex. App.—Waco Dec. 5, 2013, no pet.) (emphasis added); see

also McCroskey v. Happy State Bank, No. 07-14-00027-CV, 2014 WL 869577, at

1
Unless the statutory requirements found in section 51.014(d) of the Texas Civil
Practice and Remedies Code are met, this Court is without jurisdiction over the
permissive appeal. See Double Diamond Del., Inc. v. Walkinshaw, No. 05-13-
00893-CV, 2013 WL 5538814, at *2 (Tex. App.—Dallas Oct. 7, 2013, no pet.)
(mem. op.); State Fair of Tex. v. Iron Mountain Info. Mgmt., Inc., 299 S.W.3d 261,
262 (Tex. App.—Dallas 2009, no pet.).
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*1 (Tex. App.—Amarillo Feb. 28, 2014, no pet.) (mem. op.) (the record must show

“that the trial court ruled on the specific legal issues presented for [appellate court]

to decide”); Corp. of the President of the Church of Jesus Christ of Latter-Day

Saints v. Doe, No. 13-13-00463-CV, 2013 WL 5593441, at *2 (Tex. App.—

Corpus Christi Oct. 10, 2013, no pet.) (mem. op.) (“Without a substantive ruling by

the trial court as to why it denied the Church’s motion, no controlling question of

law has been presented for our analysis.”); Double Diamond Del., Inc. v.

Walkinshaw, No. 05-13-00893-CV, 2013 WL 5538814, at *2 (Tex. App.—Dallas

Oct. 7, 2013, no pet.) (mem. op.) (“Inherent in these jurisdictional requirements is

that the trial court make a substantive ruling on the specific legal question

presented on appeal.”); Bank of N.Y. Mellon v. Guzman, 390 S.W.3d 593, 597–98

(Tex. App.—Dallas 2012, no pet.) (there must be something in record showing

trial court made substantive ruling on any legal issues court of appeals is being

asked to decide); Gulley v. State Farm Lloyds, 350 S.W.3d 204, 207 (Tex. App.—

San Antonio 2011, no pet.) (trial court must first make substantive ruling on

controlling legal issue being appealed). “In other words, the interlocutory order

cannot ‘involve[] a controlling question of law’ [as required by section 51.014(d)]

until the trial court has made a substantive ruling on the controlling legal issue in

the order.” Borowski, 2013 WL 6388336, at *3 (first alteration in original); see

also Corp. of the President, 2013 WL 5593441, at *2.

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 In this case, the trial court did not substantively rule on the controlling legal

issue presented in this permissive appeal. As stated above, in its amended order,

the trial court denied appellant’s motion for summary judgment without

explanation. When a trial court in its order on a motion for summary judgment

provides no basis for its denial, the trial court fails to make substantive ruling on

the controlling question of law sought to be appealed.2 Here, because the trial

court did not make a substantive ruling on the controlling legal issue, the order

appellant is attempting to appeal does not involve a controlling question of law,

and section 51.014(d) does not authorize an interlocutory appeal in this case. See

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d); see also McCroskey, 2014 WL

869577, at *1–2 (finding court was without jurisdiction because trial court denied

summary judgment and order did not show that trial court expressly ruled on

substance of controlling questions of law); Borowski, 2013 WL 6388336, at *3

(trial court denied motion for summary judgment without explanation; thus, trial

court did not substantively rule on controlling legal issue presented and order to be

appealed did not involve controlling question of law); Corp. of the President, 2013

2
It does not matter that the trial court’s orders attempts to identify the controlling
legal issue if the order does not show that the trial court made a substantive ruling
on that controlling question of law. See Corp. of the President of the Church of
Jesus Christ of Latter-Day Saints v. Doe, No. 13-13-00463-CV, 2013 WL
5593441, at *2 (Tex. App.—Corpus Christi Oct. 10, 2013, no pet.) (mem. op.);
Borowski v. Ayers, No. 10-13-00077-CV, 2013 WL 6388336, at *3 (Tex. App.—
Waco Dec. 5, 2013, no pet.).
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WL 5593441, at *2 (finding case did not present controlling question of law when

trial court’s order did not provide a basis for denial of appellant’s motion for

summary judgment); Double Diamond, 2013 WL 5538814, at *2 (“The appealed

order is silent as to the basis for the trial court[’]s order, and nothing in the record

shows the trial court made a substantive ruling on any of the legal issues presented

to us”; thus, appeal does not meet requirements of section 51.014(d)).

Accordingly, we conclude that the Court has no jurisdiction over this appeal.

We grant appellee’s motion to dismiss and dismiss the appeal for want of

jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f); see also McCroskey, 2014 WL

869577, at *2 (dismissing for want of jurisdiction); Borowski, 2013 WL 6388336,

at *4 (same); Double Diamond, 2013 WL 5538814, at *2 (same). We dismiss any

pending motions as moot.

PER CURIAM
Panel consists of Justices Keyes, Sharp, and Huddle.

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