Preview
Electronically Filed
1/6/2023 9:59 AM
Laura Richard
County Clerk
Fort Bend County, Texas
CASE NO: 22-CCV-071305
LAKELAND WEST CAPITAL 41,LLC § IN THE COUNTY COURT AT LAW
1415 LOUISIANA 36TH FL §
HOUSTON TX 77002 §
Vv § COURT NUMBER 4
DIOGU KALU DIOGU II § FORT BEND COUNTY, TEXAS
NOTICE OF FILING: ORDER PLEA TO JURISDICTION
Defendant now files this Proposed Order regarding his Plea to Jurisdiction. Filed
concurrently are materials to assist the Court with the request to make this a FINAL
JUDGEMENT or to permit either party to commence an Interlocutory Appeal of the
Order.
Respectfully Submitted,
/s/ James Okorafor
JAMES O. OKORAFOR
SBOT #: 15241710
10101 FONDREN #260
HOUSTON, TEXAS 77097
TEL NO: (713) 839-9700
EMAIL: laws@joolaws.com
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
| certify that this Motion was served on all counsels of record in the manner
provided by the rules 21 and 21a, Electronic Case Manager, on 01/06/22.
\s\ James O. Okorafor
James O. Okorafor.
ay Gdn 7 eed
22 C
Beware the “Substantive Ruling” Requirement
PREPARING A TRIAL COURT’S ORDER TO AVOID DISMISSAL OF YOUR PERMISSIVE APPEAL.
By MichaelJ. Ritter and Ben Allen
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EXHIBIT 5
A new view of the Texas permissive appeal statute is emerging. Courts are more frequently dismissing permissive appeals for
lack of jurisdiction—even after accepting them—because the trial court did not make a substantive ruling on the controlling
question of law presented.2 Such dismissals likely surprise and frustrate practitioners who strictly complied with the statute's
and rules’ requirements because neither the statute nor the corresponding rules expressly require a trial court to make a
substantive ruling.
Although a party may appeal an order granting a dispositive motion if it is a final judgment, appeals of interlocutory orders
denying such motions are not appealable unless provided by statute.> Section 51.014(d) of the Civil Practice & Remedies Code
provides that a party may appeal an otherwise non-appealable interlocutory order if the trial court grants permission.* The trial
court may grant permission to appeal 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”> The permissive appeal statute does not expressly require a trial court to make a
substantive ruling on the controlling question of law®
To implement the permissive appeal statute, the Texas Supreme Court adopted Texas Rule of Civil Procedure 168 and Texas
Rule of Appellate Procedure 28.3.7 TRCP Rule 168 requires the trial court’s order to “identify the controlling question of law as
to which there is a substantial ground for difference of opinion, and to state why an immediate appeal may materially advance
the ultimate termination of the litigation”® TRAP Rule 28.3 includes numerous requirements regarding the filing of the petition
for permissive appeal in the court of appeals but does not require the trial court’s order to contain a substantive ruling?
The “substantive ruling” requirement first appeared in Gulley v. State Farm Lloyds.1° In Gulley, the trial court permitted an appeal
after denying competing motions for summary judgment, but the trial court expressly declined to make a substantive ruling on
the legal issue presented in the parties’ motions. Instead, the trial court ministerially denied the motions and permitted an
appeal for the appellate court to decide the legal issue in the first instance. The court of appeals held the trial court erred by
permitting an appeal without first having made a substantive ruling on the controlling question of law. To support its holding,
the court of appeals quoted a legislative bill analysis stating that the statute promotes judicial efficiency by allowing an
immediate appeal when “the trial court rules on an issue that is pivotal in a case.” The Gulley court concluded it had jurisdiction
over the permissive appeal but held the trial court’s failure to rule was error, reversed the trial court’s order, and remanded the
case for further proceedings.'+
After Gulley, many courts of appeals now require the trial court's order permitting an appeal not only to identify the controlling
question of law as required by TRCP Rule 168, but also to state affirmatively the trial court’s substantive ruling on that
question.12 But despite the Gulley court’s conclusion that it had jurisdiction in the clear absence of a substantive ruling, courts
of appeals have extended the “substantive ruling” requirement and held that the absence of an affirmative statement of the
trial court's ruling on the controlling question of law is a jurisdictional defect.!> Because appellate courts have
jurisdictionalized the “substantive ruling” requirement, this latent stipulation can—at any stage of the appeal—surprise
unwitting practitioners who strictly complied with all of the statute’s and rules’ requirements.!+ Such dismissals can occur as
early as the petition stage! and even after the court has heard oral argument on merits of the appeal.'6
The most in-depth explanation of the “substantive ruling” requirement is contained in City of San Antonio v. Tommy Harral
Construction. Inc.” The trial court’s order denvina a motion for summary iudament identified two controllina auestions of law as
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EXHIBIT 5
legal conclusions, (2) concluded that fact issues preclude summary judgment, (3) reached some other legal conclusion that
precluded summary judgment, or (4) found one of the controlling questions to be true and the other not true (when both
needed to be true to grant summary judgment). The court went furtherto state that even if the trial court had made a
substantive ruling, there were slight distinctions in how the controlling questions of law are phrased in the trial court
pleadings, the motion for summary judgment, the trial court’s order granting permission to appeal, the petition for permissive
appeal, and the appellant's brief. Thus, the “substantive ruling” requirement requires the trial court's order to affirmatively state
the trial court’s substantive ruling on the precise controlling question of law stated in the trial court's order. Even slight
variations can result in a dismissal.1®
The two opinions in Borowski v. Ayers provide a good example of how a party can satisfy the “substantive ruling” requirement.!?
The court of appeals in Borowski / initially granted the appellants’ petition for permissive appeal but then dismissed for lack of
jurisdiction because the trial court’s order did not contain a substantive ruling. The court reasoned that the trial court's order
could have been based on multiple different questions of law, or it could have been based on a latent conclusion that a fact
issue precluded summary judgment.2° After the appeal was dismissed, the trial court signed an amended order denying
summary judgment, granting permission to appeal again, and affirmatively stating that two conclusions of law comprised its
“sole basis” for denying the summary judgment motion. The two conclusions directly answered the precise controlling
questions of law identified in the order. The court of appeals accepted the appellants’ second petition for permissive appeal in
Borowski I/, concluded that the trial court’s conclusions of law were sufficient substantive rulings, and disposed of the appeal on
the merits.”
If a trial court denies a motion important to the case, and if seeking an immediate resolution of the issue on appeal fits within
your litigation strategy, Tommy Harral and Borowski I and I! provide some guidance in drafting a proposed order. To satisfy the
“substantive ruling” requirement, the proposed order should:
(1) identify the controlling question(s) of law,
(2) affirmatively state the trial court’s substantive ruling on each controlling question of law identified in the order,
(3) contain no variation in the phrasing of the controlling question(s) of law and the trial court's substantive ruling(s), and
(4) state that the trial court's substantive rulings are the “sole basis” for the trial court's interlocutory order.
To satisfy the other requirements for a permissive appeal, the order must also expressly state the trial court is permitting the
appeal and explain why a permissive appeal may materially advance the litigation’s ultimate termination. Drafting the proposed
order with care and particularity with these issues in mind will give parties a better chance to avoid dismissal of the permissive
appeal based on the “substantive ruling” requirement. "2!
This article, which was originally published in part in the Review of Litigation, has been edited and reprinted with permission. The
original article can be found using the citation 36 Rev. Litig. 55.
Notes
1. See, generally Michael J. Ritter, Permissive Appeals in Texas Courts: Reconciling Judicial Procedure with Legislative Intent, 36 Rev. Litig. 55
(2017) (explaining that appellate courts now impose a “substantive ruling” requirement based on an emerging, yet implied, view of the
permissive appeal statute as a “certified question” statute).
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EXHIBIT 5
5. Id.
6. Id. § 51.014(d)-(f).
7. Tex. R. Civ. P. 168; Tex. R. App. P. 28.3.
8. Tex. R. Civ. P. 168.
9. Tex. R. App. P. 28.3.
10. Gulley v. State Farm Lloyds, 350 SW.3d 204 (Tex. App.—San Antonio 2011, no pet.).
11. /d. at 206-08 & n.2.
12. E.g., Colonial Cty. Mut. Ins. Co. v. Amaya, 372 SW.3d 308, 311 (Tex. App.—Dallas 2012, no pet.).
13. Compare Gulley, 350 S.W.3d at 208 n.2 (concluding “we do have jurisdiction over this appeal” because “the statutory requirements . .
have technically been met”), with Amaya, 372 S.W.3d at 311 (holding the absence of a substantive ruling deprived the court of appeals of
jurisdiction).
14. Tullos v. Eaton Corp., 695 S.W.2d 568 (Tex. 1985) (per curiam) (holding the absence of appellate jurisdiction may be raised at any time).
15. E.g., Eagle Gun Range, Inc. v. Bancalari, 495 SW.3d 887 (Tex. App.—Fort Worth 2016, no pet.).
16. E.g., Hartford Accident & Indem. Co. v. Seagoville Partners, No. 05-15-00760-CV, 2016 WL 3199003, at *4 (Tex. App.—Dallas June 9, 2016,
no pet.) (mem. op.)
17. City of San Antonio v. Tommy Harral Constr, Inc., 486 S.W.3d 77 (Tex. App.—San Antonio 2016, no pet.).
18. /d. at 80-84.
19. Borowski v. Ayers, 432 S.W.3d 344, 345 (Tex. App.—Waco 2013, no pet.) (Borowski /);—S.W.3d—, No. 10-15-00239-CV, 2016 WL 5944769
(Tex. App.—Waco Oct. 12, 2016, pet. filed.) (Borowski I/).
20. 432 SW.3d at 347-48.
21. 2016 WL 5944769 at “1-2.
MICHAEL J. RITTER is a staff attorney for the 4th Court of Appeals. He is also a director of the San Antonio
Young Lawyers Association and president-elect of the San Antonio LGBT Bar Association. He can reached at
michaeljamesritter@gmail.com.
BEN ALLEN is a partner in the law firm of Feldman & Feldman. He is a young trial lawyer who specializes in
commercial and government-related litigation. He can be reached at ben.allen@feldman.law.
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EXHIBIT 5
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EXHIBIT 5
Tex. Civ. Prac. & Rem. Code § 51.014
Section 51.014 - Appeal From Interlocutory Order
(a) A person may appeal from an interlocutory order of a district court, county court at law,
statutory probate court, or county court that:
(1) appoints a receiver or trustee;
(2) overrules a motion to vacate an order that appoints a receiver or trustee;
(3) certifies or refuses to certify a class in a suit brought under Rule 42 of the Texas Rules
of Civil Procedure;
(4) grants or refuses a temporary injunction or grants or overrules a motion to dissolve a
temporary injunction as provided by Chapter 65;
(5) denies a motion for summary judgment that is based on an assertion of immunity by
an individual who is an officer or employee of the state or a political subdivision of the
state;
(6) denies a motion for summary judgment that is based in whole or in part upon a claim
against or defense by a member of the electronic or print media, acting in such capacity,
or a person whose communication appears in or is published by the electronic or print
media, arising under the free speech or free press clause of the First Amendment to the
United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter
73;
(7) grants or denies the special appearance of a defendant under Rule 120a, Texas Rules
of Civil Procedure, except in a suit brought under the Family Code;
(8) grants or denies a plea to the jurisdiction by a governmental unit as that term is
defined in Section 101.001;
(9) denies all or part of the relief sought by a motion under Section 74.351(b), except that
an appeal may not be taken from an order granting an extension under Section 74.351;
(10) grants relief sought by a motion under Section 74.351(1);
(11) denies a motion to dismiss filed under Section 90.007;
(12) denies a motion to dismiss filed under Section 27.003;
(13) denies a motion for summary judgment filed by an electric utility regarding liability
in a suit subject to Section 75.0022;
(14) denies a motion filed by a municipality with a population of 500,000 or more in an
action filed under Section 54.012(6) or 214.0012, Local Government Code; or
@ casetext
Section 51.014 - Appeal From Interlocutory Order Tex. Civ. Prac. & Rem. Code § 51.014
(15)[Added by Acts 2021, Texas Acts of the 87th Leg. - Regular Session, ch. TBD]
overrules an objection filed under Section 148.003(d) or denies all or part of the relief
sought by a motion under Section 148.003(f).
(15)[Added by Acts 2021, Texas Acts of the 87th Leg. - Regular Session, ch. TBD]
makes a preliminary determination on a claim under Section 74.353.
(b) An interlocutory appeal under Subsection (a), other than an appeal under Subsection (a)
(4) or in a suit brought under the Family Code, stays the commencement of a trial in the
trial court pending resolution of the appeal. An interlocutory appeal under Subsection (a)
(3), (5), (8), or (12) also stays all other proceedings in the trial court pending resolution of
that appeal.
(c) A denial of a motion for summary judgment, special appearance, or plea to the
jurisdiction described by Subsection (a)(5), (7), or (8) is not subject to the automatic stay
under Subsection (b) unless the motion, special appearance, or plea to the jurisdiction is
filed and requested for submission or hearing before the trial court not later than the later of:
(1) a date set by the trial court in a scheduling order entered under the Texas Rules of
Civil Procedure; or
(2) the 180th day after the date the defendant files:
(A) the original answer;
(B) the first other responsive pleading to the plaintiff's petition; or
(C) if the plaintiff files an amended pleading that alleges a new cause of action against
the defendant and the defendant is able to raise a defense to the new cause of action
under Subsection (a)(5), (7), or (8), the responsive pleading that raises that defense.
(d-1) Subsection (d) does not apply to an action brought under the Family Code.
(e) An appeal under Subsection (d) does not stay proceedings in the trial court unless:
(1) the parties agree to a stay; or
(2) the trial or appellate court orders a stay of the proceedings pending appeal.
(f) An appellate court may accept an appeal permitted by Subsection (d) if the appealing
party, not later than the 15th day after the date the trial court signs the order to be appealed,
files in the court of appeals having appellate jurisdiction over the action an application for
interlocutory appeal explaining why an appeal is warranted under Subsection (d). If the
court of appeals accepts the appeal, the appeal is governed by the procedures in the Texas
Rules of Appellate Procedure for pursuing an accelerated appeal. The date the court of
@ casetext
Section 51.014 - Appeal From Interlocutory Order Tex. Civ. Prac. & Rem. Code § 51.014
appeals enters the order accepting the appeal starts the time applicable to filing the notice of
appeal.
Tex. Civ. Prac, and Rem. Code § 51.014
Amended by Acts 2021, Texas Acts of the 87th Leg. - Regular Session, ch. TBD,See. 1, eff.
9/1/2021.
Amended by Acts 2021, Texas Acts of the 87th Leg. - Regular Session, ch. TBD,Sec. 1, eff.
6/14/2021.
Amended by Acts 2019, Texas Acts of the 86th Leg.- Regular Session, ch. 1273,Sec. 1, eff.
6/14/2019.
Amended by Acts 2015, Texas Acts of the 84th Leg. - Regular Session, ch. 1236,Sec. 3.001,
eff. 9/1/2015.
Amended by Acts 2015, Texas Acts of the 84th Leg. - Regular Session, ch. 1236,Sec. 3.002,
eff. 9/1/2015.
Amended by Acts 2015, Texas Acts of the 84th Leg. - Regular Session, ch. 1236,Sec. 3.002,
eff. 9/1/2015.
Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 604,Sec. 1, eff. 9/1/2013.
Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 961,Sec. I, eff. 9/1/2013.
Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 916,Sec. 1, eff. 9/1/2013.
Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 1042,Sec. 4, eff. 6/14/2013.
Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 44,Sec. 1, eff. 5/16/2013.
Amended by Acts 2011, 82nd Leg., R.S., Ch. 203, Sec. 3.01, eff. September 1, 2011.
Amended by Acts 2005, 79th Leg., Ch. 97, Sec. 5, eff. September 1, 2005.
Amended by Acts 2005, 79th Leg., Ch. 1051, Sec. 1, eff. June 18, 2005.
Amended by Acts 2005, 79th Leg., Ch. 1051, Sec. 2, eff. June 18, 2005.
Amended by Acts 2003, 78th Leg., ch. 204, Sec. 1.03, eff. Sept. 1, 2003.
Amended by Acts 2001, 77th Leg., ch. 1389, Sec. 1, eff. Sept. 1, 2001
Amended by Acts 1997, 75th Leg., ch. 1296, Sec. 1, eff. June 20, 1997
Amended by Acts 1993, 73rd Leg., ch. 855, Sec. 1, eff. Sept. 1, 1993
Amended by Acts 1989, 71st Leg., ch. 915, Sec. 1, eff. June 14, 1989
Amended by Acts 1987, 70th Leg., ch. 167, Sec. 3.10, eff. Sept. 1, 1987
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
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Tex. R. Civ. P. 168
As amended through January 31, 2022
Previous Section
Rule 168 - Permission to Appeal Rule 167a - Repealed
effective January 1, 1999
Ona party’s motion or on its own initiative, a trial court Next Section
may permit an appeal from an interlocutory order that is Rule 169 - Expedited Actions
not otherwise appealable, as provided by statute. Permission
must be stated in the order to be appealed. An order
previously issued may be amended to include such
permission. The permission must identify the controlling
question of law as to which there is a substantial ground for
difference of opinion, and must state why an immediate
appeal may materially advance the ultimate termination of
the litigation.
Tex. R. Civ. P. 168
Comment to 2011 change: Rule 168 is a new rule, added to
implement amendments to section §1.014(d)-(f) of the
Texas Civil Practice and Remedies Code. Rule 168 applies
only to cases filed on or after September 1, 2011. Rule 168
clarifies that the trial court’s permission to appeal should
be included in the order to be appealed rather than in a
separate order. Rule of Appellate Procedure 28.3 sets out
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Envelope ID: 71547455
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Associated Case Party: Lakeland West Capital 41, LLC
Name BarNumber | Email TimestampSubmitted Status
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Preview
Electronically Filed 1/6/2023 9:59 AM Laura Richard County Clerk Fort Bend County, Texas CASE NO: 22-CCV-071305 LAKELAND WEST CAPITAL 41,LLC § IN THE COUNTY COURT AT LAW 1415 LOUISIANA 36TH FL § HOUSTON TX 77002 § Vv § COURT NUMBER 4 DIOGU KALU DIOGU II § FORT BEND COUNTY, TEXAS NOTICE OF FILING: ORDER PLEA TO JURISDICTION Defendant now files this Proposed Order regarding his Plea to Jurisdiction. Filed concurrently are materials to assist the Court with the request to make this a FINAL JUDGEMENT or to permit either party to commence an Interlocutory Appeal of the Order. Respectfully Submitted, /s/ James Okorafor JAMES O. OKORAFOR SBOT #: 15241710 10101 FONDREN #260 HOUSTON, TEXAS 77097 TEL NO: (713) 839-9700 EMAIL: laws@joolaws.com ATTORNEY FOR DEFENDANT CERTIFICATE OF SERVICE | certify that this Motion was served on all counsels of record in the manner provided by the rules 21 and 21a, Electronic Case Manager, on 01/06/22. \s\ James O. Okorafor James O. Okorafor. ay Gdn 7 eed 22 C Beware the “Substantive Ruling” Requirement PREPARING A TRIAL COURT’S ORDER TO AVOID DISMISSAL OF YOUR PERMISSIVE APPEAL. By MichaelJ. Ritter and Ben Allen fyeesinA a ese oe be al ess zk' a ae | We use cookies to analyze our traffic and enhance functionality. More Information EE EXHIBIT 5 A new view of the Texas permissive appeal statute is emerging. Courts are more frequently dismissing permissive appeals for lack of jurisdiction—even after accepting them—because the trial court did not make a substantive ruling on the controlling question of law presented.2 Such dismissals likely surprise and frustrate practitioners who strictly complied with the statute's and rules’ requirements because neither the statute nor the corresponding rules expressly require a trial court to make a substantive ruling. Although a party may appeal an order granting a dispositive motion if it is a final judgment, appeals of interlocutory orders denying such motions are not appealable unless provided by statute.> Section 51.014(d) of the Civil Practice & Remedies Code provides that a party may appeal an otherwise non-appealable interlocutory order if the trial court grants permission.* The trial court may grant permission to appeal 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”> The permissive appeal statute does not expressly require a trial court to make a substantive ruling on the controlling question of law® To implement the permissive appeal statute, the Texas Supreme Court adopted Texas Rule of Civil Procedure 168 and Texas Rule of Appellate Procedure 28.3.7 TRCP Rule 168 requires the trial court’s order to “identify the controlling question of law as to which there is a substantial ground for difference of opinion, and to state why an immediate appeal may materially advance the ultimate termination of the litigation”® TRAP Rule 28.3 includes numerous requirements regarding the filing of the petition for permissive appeal in the court of appeals but does not require the trial court’s order to contain a substantive ruling? The “substantive ruling” requirement first appeared in Gulley v. State Farm Lloyds.1° In Gulley, the trial court permitted an appeal after denying competing motions for summary judgment, but the trial court expressly declined to make a substantive ruling on the legal issue presented in the parties’ motions. Instead, the trial court ministerially denied the motions and permitted an appeal for the appellate court to decide the legal issue in the first instance. The court of appeals held the trial court erred by permitting an appeal without first having made a substantive ruling on the controlling question of law. To support its holding, the court of appeals quoted a legislative bill analysis stating that the statute promotes judicial efficiency by allowing an immediate appeal when “the trial court rules on an issue that is pivotal in a case.” The Gulley court concluded it had jurisdiction over the permissive appeal but held the trial court’s failure to rule was error, reversed the trial court’s order, and remanded the case for further proceedings.'+ After Gulley, many courts of appeals now require the trial court's order permitting an appeal not only to identify the controlling question of law as required by TRCP Rule 168, but also to state affirmatively the trial court’s substantive ruling on that question.12 But despite the Gulley court’s conclusion that it had jurisdiction in the clear absence of a substantive ruling, courts of appeals have extended the “substantive ruling” requirement and held that the absence of an affirmative statement of the trial court's ruling on the controlling question of law is a jurisdictional defect.!> Because appellate courts have jurisdictionalized the “substantive ruling” requirement, this latent stipulation can—at any stage of the appeal—surprise unwitting practitioners who strictly complied with all of the statute’s and rules’ requirements.!+ Such dismissals can occur as early as the petition stage! and even after the court has heard oral argument on merits of the appeal.'6 The most in-depth explanation of the “substantive ruling” requirement is contained in City of San Antonio v. Tommy Harral Construction. Inc.” The trial court’s order denvina a motion for summary iudament identified two controllina auestions of law as We use cookies to analyze our traffic and enhance functionality. More Information AGREE EXHIBIT 5 legal conclusions, (2) concluded that fact issues preclude summary judgment, (3) reached some other legal conclusion that precluded summary judgment, or (4) found one of the controlling questions to be true and the other not true (when both needed to be true to grant summary judgment). The court went furtherto state that even if the trial court had made a substantive ruling, there were slight distinctions in how the controlling questions of law are phrased in the trial court pleadings, the motion for summary judgment, the trial court’s order granting permission to appeal, the petition for permissive appeal, and the appellant's brief. Thus, the “substantive ruling” requirement requires the trial court's order to affirmatively state the trial court’s substantive ruling on the precise controlling question of law stated in the trial court's order. Even slight variations can result in a dismissal.1® The two opinions in Borowski v. Ayers provide a good example of how a party can satisfy the “substantive ruling” requirement.!? The court of appeals in Borowski / initially granted the appellants’ petition for permissive appeal but then dismissed for lack of jurisdiction because the trial court’s order did not contain a substantive ruling. The court reasoned that the trial court's order could have been based on multiple different questions of law, or it could have been based on a latent conclusion that a fact issue precluded summary judgment.2° After the appeal was dismissed, the trial court signed an amended order denying summary judgment, granting permission to appeal again, and affirmatively stating that two conclusions of law comprised its “sole basis” for denying the summary judgment motion. The two conclusions directly answered the precise controlling questions of law identified in the order. The court of appeals accepted the appellants’ second petition for permissive appeal in Borowski I/, concluded that the trial court’s conclusions of law were sufficient substantive rulings, and disposed of the appeal on the merits.” If a trial court denies a motion important to the case, and if seeking an immediate resolution of the issue on appeal fits within your litigation strategy, Tommy Harral and Borowski I and I! provide some guidance in drafting a proposed order. To satisfy the “substantive ruling” requirement, the proposed order should: (1) identify the controlling question(s) of law, (2) affirmatively state the trial court’s substantive ruling on each controlling question of law identified in the order, (3) contain no variation in the phrasing of the controlling question(s) of law and the trial court's substantive ruling(s), and (4) state that the trial court's substantive rulings are the “sole basis” for the trial court's interlocutory order. To satisfy the other requirements for a permissive appeal, the order must also expressly state the trial court is permitting the appeal and explain why a permissive appeal may materially advance the litigation’s ultimate termination. Drafting the proposed order with care and particularity with these issues in mind will give parties a better chance to avoid dismissal of the permissive appeal based on the “substantive ruling” requirement. "2! This article, which was originally published in part in the Review of Litigation, has been edited and reprinted with permission. The original article can be found using the citation 36 Rev. Litig. 55. Notes 1. See, generally Michael J. Ritter, Permissive Appeals in Texas Courts: Reconciling Judicial Procedure with Legislative Intent, 36 Rev. Litig. 55 (2017) (explaining that appellate courts now impose a “substantive ruling” requirement based on an emerging, yet implied, view of the permissive appeal statute as a “certified question” statute). Fm benaets Direneida Ma 4A 16 ANTIO AV INTL ANN CZACINE (Taw Ann Untictan Ath Mick 1 Ant 97 NIE na nat h\ mam and We use cookies to analyze our traffic and enhance functionality. More Information AGREE EXHIBIT 5 5. Id. 6. Id. § 51.014(d)-(f). 7. Tex. R. Civ. P. 168; Tex. R. App. P. 28.3. 8. Tex. R. Civ. P. 168. 9. Tex. R. App. P. 28.3. 10. Gulley v. State Farm Lloyds, 350 SW.3d 204 (Tex. App.—San Antonio 2011, no pet.). 11. /d. at 206-08 & n.2. 12. E.g., Colonial Cty. Mut. Ins. Co. v. Amaya, 372 SW.3d 308, 311 (Tex. App.—Dallas 2012, no pet.). 13. Compare Gulley, 350 S.W.3d at 208 n.2 (concluding “we do have jurisdiction over this appeal” because “the statutory requirements . . have technically been met”), with Amaya, 372 S.W.3d at 311 (holding the absence of a substantive ruling deprived the court of appeals of jurisdiction). 14. Tullos v. Eaton Corp., 695 S.W.2d 568 (Tex. 1985) (per curiam) (holding the absence of appellate jurisdiction may be raised at any time). 15. E.g., Eagle Gun Range, Inc. v. Bancalari, 495 SW.3d 887 (Tex. App.—Fort Worth 2016, no pet.). 16. E.g., Hartford Accident & Indem. Co. v. Seagoville Partners, No. 05-15-00760-CV, 2016 WL 3199003, at *4 (Tex. App.—Dallas June 9, 2016, no pet.) (mem. op.) 17. City of San Antonio v. Tommy Harral Constr, Inc., 486 S.W.3d 77 (Tex. App.—San Antonio 2016, no pet.). 18. /d. at 80-84. 19. Borowski v. Ayers, 432 S.W.3d 344, 345 (Tex. App.—Waco 2013, no pet.) (Borowski /);—S.W.3d—, No. 10-15-00239-CV, 2016 WL 5944769 (Tex. App.—Waco Oct. 12, 2016, pet. filed.) (Borowski I/). 20. 432 SW.3d at 347-48. 21. 2016 WL 5944769 at “1-2. MICHAEL J. RITTER is a staff attorney for the 4th Court of Appeals. He is also a director of the San Antonio Young Lawyers Association and president-elect of the San Antonio LGBT Bar Association. He can reached at michaeljamesritter@gmail.com. BEN ALLEN is a partner in the law firm of Feldman & Feldman. He is a young trial lawyer who specializes in commercial and government-related litigation. He can be reached at ben.allen@feldman.law. {Back to top} We use cookies to analyze our traffic and enhance functionality. More Information AGREE EXHIBIT 5 We use cookies to analyze our traffic and enhance functionality. More Information AGREE EXHIBIT 5 Tex. Civ. Prac. & Rem. Code § 51.014 Section 51.014 - Appeal From Interlocutory Order (a) A person may appeal from an interlocutory order of a district court, county court at law, statutory probate court, or county court that: (1) appoints a receiver or trustee; (2) overrules a motion to vacate an order that appoints a receiver or trustee; (3) certifies or refuses to certify a class in a suit brought under Rule 42 of the Texas Rules of Civil Procedure; (4) grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction as provided by Chapter 65; (5) denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state; (6) denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73; (7) grants or denies the special appearance of a defendant under Rule 120a, Texas Rules of Civil Procedure, except in a suit brought under the Family Code; (8) grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001; (9) denies all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351; (10) grants relief sought by a motion under Section 74.351(1); (11) denies a motion to dismiss filed under Section 90.007; (12) denies a motion to dismiss filed under Section 27.003; (13) denies a motion for summary judgment filed by an electric utility regarding liability in a suit subject to Section 75.0022; (14) denies a motion filed by a municipality with a population of 500,000 or more in an action filed under Section 54.012(6) or 214.0012, Local Government Code; or @ casetext Section 51.014 - Appeal From Interlocutory Order Tex. Civ. Prac. & Rem. Code § 51.014 (15)[Added by Acts 2021, Texas Acts of the 87th Leg. - Regular Session, ch. TBD] overrules an objection filed under Section 148.003(d) or denies all or part of the relief sought by a motion under Section 148.003(f). (15)[Added by Acts 2021, Texas Acts of the 87th Leg. - Regular Session, ch. TBD] makes a preliminary determination on a claim under Section 74.353. (b) An interlocutory appeal under Subsection (a), other than an appeal under Subsection (a) (4) or in a suit brought under the Family Code, stays the commencement of a trial in the trial court pending resolution of the appeal. An interlocutory appeal under Subsection (a) (3), (5), (8), or (12) also stays all other proceedings in the trial court pending resolution of that appeal. (c) A denial of a motion for summary judgment, special appearance, or plea to the jurisdiction described by Subsection (a)(5), (7), or (8) is not subject to the automatic stay under Subsection (b) unless the motion, special appearance, or plea to the jurisdiction is filed and requested for submission or hearing before the trial court not later than the later of: (1) a date set by the trial court in a scheduling order entered under the Texas Rules of Civil Procedure; or (2) the 180th day after the date the defendant files: (A) the original answer; (B) the first other responsive pleading to the plaintiff's petition; or (C) if the plaintiff files an amended pleading that alleges a new cause of action against the defendant and the defendant is able to raise a defense to the new cause of action under Subsection (a)(5), (7), or (8), the responsive pleading that raises that defense. (d-1) Subsection (d) does not apply to an action brought under the Family Code. (e) An appeal under Subsection (d) does not stay proceedings in the trial court unless: (1) the parties agree to a stay; or (2) the trial or appellate court orders a stay of the proceedings pending appeal. (f) An appellate court may accept an appeal permitted by Subsection (d) if the appealing party, not later than the 15th day after the date the trial court signs the order to be appealed, files in the court of appeals having appellate jurisdiction over the action an application for interlocutory appeal explaining why an appeal is warranted under Subsection (d). If the court of appeals accepts the appeal, the appeal is governed by the procedures in the Texas Rules of Appellate Procedure for pursuing an accelerated appeal. The date the court of @ casetext Section 51.014 - Appeal From Interlocutory Order Tex. Civ. Prac. & Rem. Code § 51.014 appeals enters the order accepting the appeal starts the time applicable to filing the notice of appeal. Tex. Civ. Prac, and Rem. Code § 51.014 Amended by Acts 2021, Texas Acts of the 87th Leg. - Regular Session, ch. TBD,See. 1, eff. 9/1/2021. Amended by Acts 2021, Texas Acts of the 87th Leg. - Regular Session, ch. TBD,Sec. 1, eff. 6/14/2021. Amended by Acts 2019, Texas Acts of the 86th Leg.- Regular Session, ch. 1273,Sec. 1, eff. 6/14/2019. Amended by Acts 2015, Texas Acts of the 84th Leg. - Regular Session, ch. 1236,Sec. 3.001, eff. 9/1/2015. Amended by Acts 2015, Texas Acts of the 84th Leg. - Regular Session, ch. 1236,Sec. 3.002, eff. 9/1/2015. Amended by Acts 2015, Texas Acts of the 84th Leg. - Regular Session, ch. 1236,Sec. 3.002, eff. 9/1/2015. Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 604,Sec. 1, eff. 9/1/2013. Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 961,Sec. I, eff. 9/1/2013. Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 916,Sec. 1, eff. 9/1/2013. Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 1042,Sec. 4, eff. 6/14/2013. Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 44,Sec. 1, eff. 5/16/2013. Amended by Acts 2011, 82nd Leg., R.S., Ch. 203, Sec. 3.01, eff. September 1, 2011. Amended by Acts 2005, 79th Leg., Ch. 97, Sec. 5, eff. September 1, 2005. Amended by Acts 2005, 79th Leg., Ch. 1051, Sec. 1, eff. June 18, 2005. Amended by Acts 2005, 79th Leg., Ch. 1051, Sec. 2, eff. June 18, 2005. Amended by Acts 2003, 78th Leg., ch. 204, Sec. 1.03, eff. Sept. 1, 2003. Amended by Acts 2001, 77th Leg., ch. 1389, Sec. 1, eff. Sept. 1, 2001 Amended by Acts 1997, 75th Leg., ch. 1296, Sec. 1, eff. June 20, 1997 Amended by Acts 1993, 73rd Leg., ch. 855, Sec. 1, eff. Sept. 1, 1993 Amended by Acts 1989, 71st Leg., ch. 915, Sec. 1, eff. June 14, 1989 Amended by Acts 1987, 70th Leg., ch. 167, Sec. 3.10, eff. Sept. 1, 1987 Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. @ casetext Deal: 25% off if you purchase by Thursday 4/21. Z «> casetext Search all cases and statutes... Ix Statutes, codes, and regulations / Texas Court Rules / | / Section 8 - Pre-Trial ... / Rule 168 - Permissio... Tex. R. Civ. P. 168 As amended through January 31, 2022 Previous Section Rule 168 - Permission to Appeal Rule 167a - Repealed effective January 1, 1999 Ona party’s motion or on its own initiative, a trial court Next Section may permit an appeal from an interlocutory order that is Rule 169 - Expedited Actions not otherwise appealable, as provided by statute. Permission must be stated in the order to be appealed. An order previously issued may be amended to include such permission. The permission must identify the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why an immediate appeal may materially advance the ultimate termination of the litigation. Tex. R. Civ. P. 168 Comment to 2011 change: Rule 168 is a new rule, added to implement amendments to section §1.014(d)-(f) of the Texas Civil Practice and Remedies Code. Rule 168 applies only to cases filed on or after September 1, 2011. Rule 168 clarifies that the trial court’s permission to appeal should be included in the order to be appealed rather than in a separate order. Rule of Appellate Procedure 28.3 sets out Deal: 25% off if you purchase by Thursday 4/21. GF casetext JX Make your practice more Casetext research About us effective and efficient with Parallel Search Jobs Casetext’s legal research Compose Blog suite. Podcast Pricing Get a Demo | News Switch Big firm Twitter Coverage Facebook SmartCite LinkedIn Instagram Public records Partnerships and Resources Law school Bar associations Help articles Customer support Contact sales Privacy Terms © 2021 Casetext Inc. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. 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Envelope ID: 71547455 Status as of 1/11/2023 3:09 PM CST Associated Case Party: Lakeland West Capital 41, LLC Name BarNumber | Email TimestampSubmitted Status Michael Durrschmidt mdurrschmidt@hirschwest.com 1/6/2023 9:59:15 AM SENT Kim Lewinski klewinski@hirschwest.com 1/6/2023 9:59:15 AM SENT Anne Weiler aweiler@hirschwest.com 1/6/2023 9:59:15 AM SENT Associated Case Party: Diogu KaluDiogu Name BarNumber Email TimestampSubmitted | Status James Okorafor laws@joolaws.com 1/6/2023 9:59:15 AM SENT Diogu KaluDiogu diogu.diogu.law.firm@gmail.com 1/6/2023 9:59:15 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Diogu Kalu Diogu li 24000340 diogu.diogu.law.firm@gmail.com 1/6/2023 9:59:15 AM SENT Sonya Chandler-Anderson | 24067951 sonya@chandlerandersonlaw.com 1/6/2023 9:59:15 AM SENT Carolyn Okorafor cokorafor@coandcolaw.com 1/6/2023 9:59:15 AM SENT