Opinion
NO. 01-19-00196-CV
07-23-2019
SEALY EMERGENCY ROOM, LLC AND CHAETHANA YALAMANCHILI, M.D., Appellants v. SUSAN BROWN LESCHPER, AS JOINT MANAGING CONSERVATOR OF CHRISTIAN CARL GAITAN, MINOR CHILD, Appellee
On Appeal from the 155th District Court Austin County, Texas
Trial Court Case No. 2017V-0028
MEMORANDUM OPINION
Appellants, Sealy Emergency Room, LLC and Chaethana Yalamanchili, M.D., have filed a joint petition for permissive appeal, seeking to appeal an interlocutory order denying their motions for traditional and no-evidence summary judgment. We deny the petition.
To be entitled to a permissive appeal from an interlocutory order that would not otherwise be appealable, the requesting party must establish that (1) the order "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); see TEX. R. APP. P. 28.3(e)(4); TEX. R. CIV. P. 168. Inherent in these requirements is a requirement that the trial court must make a substantive ruling on the controlling question of law that is presented to the appellate court for review. See Orion Marine Constr., Inc. v. Cepeda, No. 01-18-00323-CV, 2018 WL 3059756, at *1 (Tex. App.—Houston [1st Dist.] June 21, 2018, no pet.) (mem. op.); Eagle Gun Range, Inc. v. Bancalari, 495 S.W.3d 887, 889 (Tex. App.—Fort Worth 2016, no pet.); Great Am. E & S Ins. Co. v. Lapolla Indus., Inc., No. 01-14-00372-CV, 2014 WL 2895770, at *2-3 (Tex. App.—Houston [1st] Dist. June 24, 2014, no pet.) (mem. op.).
Here, the trial court's order identified "the controlling question[] of law decided by the [c]ourt" but did not include a substantive ruling on that issue. See Safeco Ins. Co. of Ind. v. Rodriguez, No. 07-18-00150-CV, 2018 WL 3031597, at *2 (Tex. App.—Amarillo June 13, 2018, order); cf. D.A. v. Tex. Health Presbyterian Hosp., 514 S.W.3d 431, 433 (Tex. App.—Fort Worth 2017), rev'd, 569 S.W.3d 126 (Tex. 2018) (stating trial court ruled plaintiffs had to prove their claims "under a 'wilful and wanton negligence' standard"). Absent a substantive ruling, a permissive interlocutory appeal is inappropriate. See Orion Marine Constr., 2018 WL 3059756, at *3; Safeco Ins. Co., 2018 WL 3031597 at *2; see also City of San Antonio v. Tommy Harral Constr., Inc., 486 S.W.3d 77, 80 (Tex. App.—San Antonio 2016, no pet.) (explaining because court of appeals may only address action taken by trial court, record must reflect that court's substantive ruling on legal issue presented for determination).
Accordingly, we deny the petition. We dismiss all pending motions as moot.
PER CURIAM Panel consists of Justices Lloyd, Landau, and Countiss.