Opinion issued December 15, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-20-00714-CV
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HOUSTON FOAM PLASTICS, INC., Appellant
V.
MARCUS ANDERSON, Appellee
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2018-55510
MEMORANDUM OPINION
Appellant, Houston Foam Plastics, Inc., has filed a petition for permissive
appeal from an interlocutory order denying its motion for summary judgment. See
TEX. CIV. PRAC. & REM. CODE § 51.014(d) (authorizing trial court to permit
interlocutory appeal from otherwise unappealable interlocutory order under certain
circumstances), (f) (requiring party seeking to appeal to petition appellate court for
permission); TEX. R. CIV. P. 168 (governing procedure for trial court granting
permission to appeal); TEX. R. APP. P. 28.3 (governing procedure for filing petition
for permissive appeal).
Under Texas Rule of Civil Procedure168, a trial court may permit an appeal
from an otherwise unappealable interlocutory order. TEX. R. CIV. P. 168. To do so,
the trial court must sign a written order stating, in relevant part, its permission to
appeal. See id. Without a written order stating the trial court’s permission, no basis
for filing a petition for permissive appeal exists. See Hebert v. JJT Constr., 438
S.W.3d 139, 142 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Here, appellant acknowledges that it has not obtained the trial court’s
permission to appeal the interlocutory order. Instead, appellant asserts in its petition
that (1) appellant is in the process of requesting an order from the trial court granting
permission to appeal and (2) it was necessary for appellant to file its petition now
because the fifteen-day time period provided under Section 51.014(d) for filing the
petition with our Court runs from the signing of the “the order to be appealed.” TEX.
CIV. PRAC. & REM. CODE § 51.014(f). As discussed below, appellant’s attempt to
justify the premature filing of its petition prior to obtaining the trial court’s
permission ignores the applicable rules.
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Rule 168 provides that the trial court “may permit an appeal from an
interlocutory order that is not otherwise appealable,” but it also specifies that
“[p]ermission must be stated in the order to be appealed.” TEX. R. CIV. P. 168.
Recognizing that an interlocutory order may issue without the necessary permission
having been included, the rule further provides that “[a]n order previously issued
may be amended to include such permission.” Id. Texas Rule of Appellate Procedure
28.3(c) provides that, if an interlocutory order is amended by the trial court to include
the requisite permission, “the time to petition the court of appeals runs from the date
the amended order is signed.” TEX. R. APP. P. 28.3(c); see Colvin v. B. Spencer &
Assocs., P.C., No. 01–15–00247–CV, 2015 WL 2228728, at *2 (Tex. App.—
Houston [1st Dist.] May 12, 2015, no pet.) (mem. op.) (per curiam).
Accordingly, we deny appellant’s petition for permissive appeal because
appellant has not obtained the required permission from the trial court. We express
no opinion on the merits of the petition. Any pending motions are dismissed as moot.
PER CURIAM
Panel consists of Justices Goodman, Landau, and Adams.
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