In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-15-00296-CV
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AUSTIN COMMERCIAL, L.P., PETITIONER
V.
TEXAS TECH UNIVERSITY, RESPONDENT
On Petition for Permissive Appeal from the 99th District Court
Lubbock County, Texas
Trial Court No. 2014-511,045; Honorable William C. Sowder, Presiding
August 11, 2015
ORDER DENYING PERMISSIVE APPEAL
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Pending before this court is the Petition for Permissive Interlocutory Appeal filed
by Petitioner, Austin Commercial, L.P., and the Motion to Dismiss filed by Respondent,
Texas Tech University. Finding the dispute at issue is not one appropriate for
permissive interlocutory appeal, we deny the petition and dismiss this proceeding for
want of jurisdiction.
The underlying dispute involves an interpretation of the payment provisions of a
multi-million dollar construction contract between Austin and Texas Tech. Austin
contends the payment provisions of the contract call for a lump sum amount, whereas
Texas Tech contends the payment provisions call for a cost-plus amount. Following a
summary judgment motion filed by Austin, the trial court determined that the payment
provisions of the contract were ambiguous. In its Second Amended Order on Austin’s
Motion for Summary Judgment, the trial court stated that it denied summary judgment
due to its finding of ambiguity pertaining to “whether payment is called for on a lump
sum or for reimbursement on a „cost of the work‟ basis.” The court further stated that its
ambiguity determination was a “controlling question of law as to which there was a
substantial difference of opinion” and that an immediate appeal of its decision “may
materially advance the ultimate termination of litigation because the interpretation of the
method of payment . . . forms the basis of each parties‟ claims . . . .”
In its petition for permissive appeal filed pursuant to section 51.014(d) of the
Texas Civil Practice and Remedies Code, Austin contends the trial court‟s determination
of ambiguity is a question of law appropriate for permissive appeal because it involves a
controlling question of law as to which there is a substantial ground for a difference of
opinion and the resolution of that issue will materially advance the ultimate termination
of this litigation. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (West 2015). On
the other hand, Texas Tech contends the trial court‟s preliminary determination of
ambiguity is not a controlling question of law.
Since the enactment of section 51.014(d), there has been little development in
the case law regarding just what constitutes a controlling legal issue. At least one
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Texas commentator has suggested that we should look to federal cases interpreting
similar language in the federal counterpart to section 51.014, contained at 28 U.S.C. §
1292(b). See Renée Forinash McElhaney, Toward Permissive Appeal in Texas, 29 St.
Mary's L. J. 729, 747-49 (1998). In that law review article, McElhaney concludes that:
[A] controlling question of law is one that deeply affects the ongoing process
of litigation. If resolution of the question will considerably shorten the time,
effort, and expense of fully litigating the case, the question is controlling.
Generally, if the viability of a claim rests upon the court‟s determination of a
question of law, the question is controlling . . . . Generally, a district court will
make [a finding that a permissive appeal is appropriate] when resolution of
the legal question dramatically affects recovery in a lawsuit.
Id. (citations and paragraphing omitted).
In its order permitting an interlocutory appeal, the trial court must identify the
controlling question of law as to which there is a substantial ground for difference of
opinion and state why an immediate appeal may materially advance the ultimate
termination of the litigation. See TEX. R. CIV. P. 168; Gulf Coast Asphalt Co., L.L.C. v.
Lloyd, 457 S.W.3d 539, 543-44 (Tex. App.—Houston [14th] 2015, no pet.). See also
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d). Here, the trial court stated that its
finding on ambiguity “as to whether payment is called for on a lump sum or for
reimbursement on a „cost of the work‟ basis” was the controlling question of law as to
which there was a substantial difference of opinion. While we agree that an actual
interpretation of the contract as to whether it called for a lump sum payment or a
payment based on a cost-plus basis would be a controlling question of law as to which
the parties have a substantial difference of opinion—that is not what the trial court
decided. The trial court merely decided that the contract provision was ambiguous.
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While the issue of ambiguity is an important question of law affecting the
presentation of evidence during any ultimate trial of this dispute, it is not a “controlling
question of law” as contemplated by section 51.014(d) of the Texas Civil Practice and
Remedies Code and Rule 28.3 of the Texas Rules of Appellate Procedure because it
does not dispose of a controlling question in the case. In finding that the contract
payment provisions were ambiguous, the trial court ruled on only one facet of the
dispute. It did not interpret the disputed contract provisions; it merely left open the issue
of resolving the intent of the parties. Even if the trial court‟s ruling of ambiguity was
erroneous (a matter we do not address) it is not determinative of the ultimate dispute
between the parties.
Given the limited nature of permissive appeals and the requirement that we must
construe statutes authorizing such appeals strictly, we conclude Austin has not satisfied
the statutory requirements of section 51.014(d). See Gulf Coast Asphalt, 457 S.W.3d at
545. Specifically, Austin has failed to demonstrate that the trial court determined a
controlling question of law about which there is a substantial ground for difference of
opinion or that the appeal might materially advance the ultimate termination of this
litigation. Accordingly, we deny the petition for permissive appeal and dismiss this
proceeding for want of jurisdiction. Our decision renders moot Texas Tech‟s motion to
dismiss.
Per Curiam
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