The Vast Discretion in the Denial of Permissive Interlocutory Appeals

After even a few years of practice, most attorneys have experienced that case that really should only reach a trial after a preliminary legal issue is decided. It just seems that the expense and time for trial is wasteful if ultimately, the controlling issue on appeal is the preliminary question before ever touching on the factual dispute. But Texas attorneys have been perplexed and frustrated when a court of appeals simply denies hearing that very case through a permissive interlocutory appeal.

Section 51.014(d) of the Texas Civil Practice and Remedies Code provides litigants a mechanism for permissive interlocutory appeals when the trial court’s order affirmatively shows that it actually ruled on the controlling question of law as to which there is a substantial ground for difference of opinion, and it explains the reason that an immediate appeal from the order may materially advance the ultimate termination of the litigation.  Tex. Civ. Prac. & Rem. Code § 51.014(d)(1)-(2).

The statute further provides:

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 appeals enters the order accepting the appeal starts the time applicable to filing the notice of appeal.

Id. § 51.014(f) (emphasis added).

            We can all agree that by including the words “may accept,” the Legislature conveyed a discretionary function to state appellate courts. Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 731 (Tex. 2019). But, up until recently, litigants often thought that if all parties (and even the trial court) agreed the issue presented a controlling question of law and the appeal would advance the ultimate termination of the dispute, the appellate court should take it, or at least explain why it disagreed. Were the elements to seek permissive interlocutory appeal really elements at all? Or simply threshold requirements that may not get you there regardless?

            Recently, in Industrial Specialists, LLC v. Blanchard Refining Co., the Texas Supreme Court characterized the discretion as “vast—indeed, unfettered.” Indus. Specialists, LLC v. Blanchard Ref. Co. LLC, 652 S.W.3d 11, 16 (Tex. 2022) (plurality op.). There, a dispute arose over an eighty-six-million-dollar settlement of personal injury claims. Id. at 13. Industrial Specialists filed an unopposed motion to pursue a permissive interlocutory appeal under section 51.014(d). Id. The trial court granted the motion, but the court of appeals declined to accept the appeal and issued a short one-page memorandum opinion stating, “This petition fails to establish each requirement,”—leaving the litigants with little information on what was missing. Id.

            Interestingly, both parties argued it was an abuse of discretion for the appellate court to pass on this “quintessential case.” After all, the statute purportedly favors early, efficient resolution, and at least for them, the resolution to a years-long litigation was not “early” or “efficient.”

            The Texas Supreme Court offered no immediate resolution by taking the case. Worried that taking the case on appeal would morph the permissive appeals process “into an alternative process for direct appeals,” the Texas Supreme Court declined to exercise jurisdiction. Id. at 21. The plurality relied on the plain language of 51.014(f). Id. at 15. Accordingly, the appellate court may accept an appeal if the elements of 51.014(d) are met. Not “shall” or “must” or “should.” And for those same reasons, the statute does not require the court of appeals to produce lengthy opinions detailing its reasoning. Id.

            As Justice Blacklock points out, “[o]ne word” could be a sufficient explanation. Id. (Blacklock, J., concurring) (quoting Sabre Travel Int’l, Ltd., 567 S.W.3d at 732) (analogizing the discretion awarded under 51.014(d) to its federal counterpart 1292(b), which provides circuit courts “absolute” discretion to accept or deny permissive appeals).

            Justice Busby disagreed. Writing a lengthy 30-page dissent, he argued that merely providing “boilerplate conclusions” does not satisfy Rule 47.1’s requirement that the court of appeals issue a written opinion “address[ing] every issue raised and necessary to final disposition of the appeal.” Id. at 28-29. He analogized the discretion to factual sufficiency challenges, in which an appellate court could abuse its discretion by failing to provide reason. The ruling provides no way for the Court to decide if the appellate court acted properly. See also In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 683 (Tex. 2007) (orig. proceeding) (Willett, J., concurring) (“Permissive does not mean limitless, and while appellate courts should not second-guess trial court rulings cavalierly, the word ‘may’ does not render such rulings bulletproof and unreviewable.”).

            Looking into the history of the permissive appeal statute, it appears as though the Legislature has increasingly broadened the scope of the statute. However, the plurality clearly declined to “rewrite the statute” and suggests that such matters should be left to the Legislature if it wants to require courts of appeals to take more interlocutory appeals. Specialists, LLC, 652 S.W.3d at 16, 22.

            Regardless, litigants can rest assured that the earlier and quicker appellate review of dispositive legal issues is still supported. The Court has previously cautioned that permissive appeals should be granted where appropriate:

We do caution, however, that while courts of appeals have discretion to deny acceptance of permissive interlocutory appeals, the Legislature in its enactment of section 51.014(d) and (f) has recognized the benefit of appellate courts accepting such appeals when the threshold for an exception to the final judgment rule is met. When courts of appeals accept such permissive appeals, parties and the courts can be spared the inevitable inefficiencies of the final judgment rule in favor of early, efficient resolution of controlling, uncertain issues of law that are important to the outcome of the litigation. Indeed, the Legislature enacted section 51.014 to provide “for the efficient resolution of certain civil matters in certain Texas courts” and to “make the civil justice system more accessible, more efficient, and less costly to all Texans while reducing the overall costs of the civil justice system to all taxpayers.” If all courts of appeals were to exercise their discretion to deny permissive interlocutory appeals certified under section 51.014(d), the legislative intent favoring early, efficient resolution of determinative legal issues in such cases would be thwarted. Just because courts of appeals can decline to accept permissive interlocutory appeals does not mean they should; in fact, in many instances, courts of appeals should do exactly what the Legislature has authorized them to do—accept permissive interlocutory appeals and address the merits of the legal issues certified.

Sabre Travel Int’l, Ltd., 567 S.W.3d at 731.

           Ultimately, parties should not be discouraged from taking a stab at a permissive interlocutory appeal. It can possibly save the parties and the court the expense and time of trying a case. But parties should also keep in mind that appellate courts enjoy “vast” discretion in granting permission to appeal. And “may” does not equate to “shall,” even if your case meets all the elements outlined in 51.014(d).