stating trial court ruled plaintiffs had to prove their claims “under a ‘wilful and wanton negligence’ standard”
How later courts described this case
- stating trial court ruled plaintiffs had to prove their claims “under a ‘wilful and wanton negligence’ standard”
Written by the judges who cited it.
The opinion
Opinion issued July 23, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00196-CV
———————————
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
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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.
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