Opinion
04-21-00459-CV
12-29-2021
JAJ EQUIPMENT, INC. f/k/a Reeves Roofing Equipment Co., Inc.; JNR Enterprises, Inc.; Joe Reeves; John Reeves; and Amy Reeves-Perry, Appellants v. Refugio RAMOS, Appellee
From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2018-CI-06998 Honorable Martha Tanner, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
PER CURIAM.
In the underlying litigation, petitioners JAJ Equipment, Inc. f/k/a Reeves Roofing Equipment Co., Inc. a/k/a Reeves Roofing Company, LLC; JNR Enterprises, Inc; Joe Reeves; John Reeves; and Amy Reeves-Perry are the defendants (hereinafter "defendants"), and respondent Refugio Ramos is the plaintiff (hereinafter "plaintiff"). On October 21, 2021, defendants filed a petition for permission to appeal an interlocutory order. On October 29, 2021, plaintiff filed a response in opposition. On November 11, 2021, defendants filed a reply in support of their petition. We deny the petition for permission to appeal and dismiss the appeal for lack of jurisdiction. 1
Background
Plaintiff alleges tort claims, breach of warranty claims, and vicarious liability theories arising out of an alleged injury occurring on November 19, 2013, while working on a building's roof on the White Sands Missile Range ("WSMR") in New Mexico.
Plaintiff alleges his face, clothes, and shoes were burned by approximately 500 degree tar after a tar lugger tipped, causing molten tar to erupt out of the machine.
On April 7, 2021, the trial court conducted a hearing on plaintiff's motion arguing that New Mexico law governs all issues in the case because plaintiff's alleged injury occurred on an alleged federal enclave, WSMR. On May 11, 2021, the trial court granted plaintiff's motion and signed an order stating, "New Mexico Law shall govern all issues in this case."
On August 25, 2021, defendants filed a motion to reconsider and vacate or amend the May 11th order. Defendants' motion sought to establish that Texas law-not New Mexico law-should apply to all substantive and procedural aspects of the dispute and further requested permission to appeal the interlocutory order and a stay of trial court proceedings. The trial court heard defendants' motion on October 6, 2021, and signed an order granting in part and denying in part defendants' motion. Specifically, the October 6th order: (1) vacates the May 11th order; (2) determines, under 28 U.S.C. § 5001, the substantive laws of New Mexico apply to plaintiff's personal injury claims; (3) determines the substantive laws of Texas apply to plaintiff's vicarious liability theories; (4) determines, under Texas Civil Practice and Remedies Code section 71.031, Texas law governs "all matters pertaining to procedure in the prosecution or maintenance of the action"; (5) authorizes interlocutory appeal on the question, "What law governs the issues in this case?"; and (6) stays the trial court proceedings pending appeal. Defendants thereafter filed a petition with this court requesting permission to appeal. 2
Permissive Appeal Standard
Appellate courts do not have jurisdiction over interlocutory appeals in the absence of a statutory provision permitting such an appeal. CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). Defendants bring this appeal pursuant to section 51.014(d) of the Civil Practice and Remedies Code, which provides the following with respect to permissive interlocutory appeals:
(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.Tex. Civ. Prac. & Rem. Code § 51.014(d).
In its statement of permission granting an interlocutory appeal under section 51.014, a trial court must (1) identify the controlling question of law as to which there is a substantial ground for difference of opinion and (2) state why an immediate appeal may materially advance the ultimate termination of the litigation. Tex.R.Civ.P. 168; Gulf Coast Asphalt Co. v. Lloyd, 457 S.W.3d 539, 543-44 (Tex. App.-Houston [14th Dist.] 2015, no pet.). The proper scope of a permissive appeal is the determination of controlling legal issues, about which there are legitimate disagreements, necessary to the resolution of the case. Id. In Gulf Coast Asphalt, the court of appeals explained the following with respect to that standard:
[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. . . . Substantial grounds for disagreement exist when the question presented to the court is novel or difficult, when controlling3
circuit law is doubtful, when controlling circuit law is in disagreement with other courts of appeals, and when there simply is little authority upon which the district court can rely. . . . Generally, a district court will make [a finding that the appeal will facilitate final resolution of the case] when resolution of the legal question dramatically affects recovery in a lawsuit.Id. at 544-45 (quoting Renée Forinash McElhaney, Toward Permissive Appeal in Texas, 29 St. Mary's L.J. 729, 747-49 (1998)); see also Undavia v. Avant Med. Group, P.A., 468 S.W.3d 629, 632 (Tex. App.-Houston [14th Dist.] 2015, no pet.) (same).
When the trial court has permitted the appeal from an interlocutory order that would not otherwise be appealable, the party seeking to appeal must petition the court of appeals for permission to appeal. Tex.R.App.P. 28.3(a). The party filing the petition must "argue clearly and concisely why the order to be appealed involves a controlling issue 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)(4).
"A departure from the final judgment rule in the form of an interlocutory appeal must be strictly construed because it is 'a narrow exception to the general rule that interlocutory orders are not immediately appealable.'" Sabre Travel Int'l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 736 (Tex. 2019) (quoting CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011)). Even if the statutory requirements are satisfied, whether to accept a permissive appeal rests in our discretion. Id. at 731-32 (Tex. 2019); Tex. Civ. Prac. & Rem. Code § 51.014(f).
Analysis
Centrality of Fact Issues Weighs Against Accepting Interlocutory Review
The trial court determined Texas law applies to plaintiff's vicarious liability theories and matters pertaining to procedure in the prosecution or maintenance of the action, and New Mexico law applies to plaintiff's personal injury claims. Defendants correctly assert the decision about 4 what law governs an issue in a case is a question of law for the court. Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex. 2000) ("Which state's law governs an issue is a question of law for the court to decide."). However, resolving the legal question may entail issues of fact. Wellons v. Valero Ref.-New Orleans, L.L.C., 616 S.W.3d 220, 225 (Tex. App.-Houston [14th Dist.] 2020, pet. denied) (citing Sonat Expl. Co. v. Cudd Pressure Control, Inc., 271 S.W.3d 228, 231 (Tex. 2008)).
We exercise our discretion with an eye towards sparing parties the inevitable inefficiencies of the final judgment rule when we can quickly and efficiently resolve controlling, uncertain issues of law that are important to the outcome of the litigation. El Paso Tool & Die Co., Inc. v. Mendez, 593 S.W.3d 800, 805 (Tex. App.-El Paso 2019, no pet.) (citing Sabre Travel, 567 S.W.3d at 735). "But to that end, the controlling issue needs to be solely a question of law unconstrained by procedural or factual issues." Id. This is because "[f]act issues are not within the scope of a permissive appeal." Undavia, 468 S.W.3d at 634.
In arguing that New Mexico law does not apply to plaintiff's personal injury claims under section 5001, defendants assert, "the relevant issue is whether Plaintiff's personal injury claims arose on a particular part of WSMR constituting a federal enclave." Defendants likewise propose the following specific factual inquiries govern resolution of the question they seek permission to appeal: "(a) the address or location of the place where his injuries allegedly occurred; (b) when New Mexico may have ceded the particular property in question to the United States, if ever; (c) under what terms such cession was made by New Mexico and accepted by the United States, if at all; and (d) what New Mexico law was in effect at the time of cession and at the time of Plaintiff's alleged injury."
The centrality of these fact issues to the certified question weighs against our exercise of discretion to accept review. See, e.g., Estate of Barton, 06-21-00009-CV, 2021 WL 1031540, at *4 5 (Tex. App.-Texarkana Mar. 18, 2021, no pet.) (mem. op.) (determining certified question does not constitute controlling question of law because "the fact-intensive nature of the question before the trial court" resulted in "a controlling fact issue, not a legal one"). In other words, the legal question of what law governs appears constrained by complex factual issues.
This is particularly true given the procedural morass preceding this appeal. See El Paso Tool, 593 S.W.3d at 805 (controlling issue should be unconstrained by procedural issues). The record reflects the following procedural history. Plaintiff originally filed in New Mexico state district court. The case was removed to U.S. District Court for the District of New Mexico on the basis that the incident occurred on WSMR. Plaintiff's request for remand to New Mexico state court was denied. Defendants thereafter appeared in the New Mexico federal court proceeding. Defendants filed a motion to dismiss for lack of personal jurisdiction, expressly citing WSMR as the location where plaintiff was injured. The New Mexico federal court granted the motion to dismiss without prejudice. Plaintiff re-filed suit in Texas state court. Defendants sought to transfer venue on the basis that plaintiff was injured working on a building located at WSMR. The state court denied the motion to transfer venue. Defendants removed the case to federal court in the Western District of Texas. Plaintiff successfully sought a remand to state district court. Throughout the procedural maneuvering, the parties apparently took different positions regarding the status of WSMR. The record discloses legal and equitable doctrines arising throughout the proceedings potentially bearing on the choice of law analysis. We view the legal question of what law governs as again constrained by these procedural issues. 6
This history is primarily based on the Western District of Texas federal court's recitation of the procedural history in its order granting plaintiff's motion to remand to Texas state court.
Because the certified question is constrained by factual and procedural issues, we do not believe an interlocutory resolution of the certified question will materially advance the litigation's ultimate termination.
Controlling Question of Law
It is incumbent upon defendants to demonstrate to this court that the order to be appealed involves a controlling question of law. Tex.R.App.P. 28.3(e)(4) (requiring "petition" to "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"); see also Tex. Civ. Prac. & Rem. Code § 51.014(f) (same). Here, we construe defendants' burden to demonstrate a controlling question of law to include a showing of a material variance in the laws of the two forums. Absent a material variance in the laws of the two forums, the question of which law applies cannot be "controlling." Defendants did not show how the application of Texas substantive law to plaintiff's personal injury claims would dictate a different outcome than the application of New Mexico substantive law. For purposes of accepting interlocutory review, we conclude defendants have not met their burden.
Moreover, the question defendants seek to resolve appears to be whether plaintiff's claims are barred by limitations. To that end, defendants assert "some choice of law decisions in this case may be outcome-determinative." The "may" qualifier is important-one we cannot overlook in exercising our discretion. Rather than demonstrating to this court how the choice of law controls the outcome of this case in the context of limitations-for example, by setting forth the applicable limitations periods and dates-defendants rely on the mere suggestion that the choice of law may affect limitations. 7
Given petitioners' arguments, our review of the record before us, and the factual and procedural issues already discussed, we are not convinced "resolution of the question will considerably shorten the time, effort, and expense of fully litigating the case." See Gulf Coast Asphalt, 457 S.W.3d at 544-45. Therefore, we conclude defendants have failed to establish that the certified question is a controlling question of law.
Conclusion
Defendants have failed to demonstrate this case falls within the narrow exception under section 51.014 authorizing interlocutory appeals. Even if defendants satisfied the jurisdictional requirements for a permissive interlocutory appeal, the factual and procedural circumstances of this case weigh against accepting review. Accordingly, we deny the petition and dismiss the appeal for lack of jurisdiction. 8