652 S.W.3d 11
Tex.
2022
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Background

  • Industrial Specialists, LLC sought a permissive interlocutory appeal under Tex. Civ. Prac. & Rem. Code §51.014(d) after the trial court amended its order to grant permission to appeal a ruling about contract indemnity and denial/grant of summary-judgment issues.
  • The trial court identified a controlling question of law, found a substantial ground for difference of opinion, and concluded immediate review might materially advance termination of the litigation.
  • Industrial Specialists timely filed a petition for permission to appeal in the court of appeals; the opposing parties did not meaningfully contest the petition.
  • The First Court of Appeals issued a three-sentence memorandum: "the petition fails to establish each requirement," denied the petition, and gave no substantive reasons.
  • Justice Busby (joined by Hecht and Young) dissented from the Court’s plurality/concurrence approach, arguing the court of appeals violated Tex. R. App. P. 47 by failing to explain its reasons, that "may" does not confer unfettered discretion, and that the statutory prerequisites were met here.

Issues

Issue Industrial Specialists' Argument Blanchard/Marathon's Argument Held (Busby, J., dissenting)
1) Do courts of appeals have to state basic reasons under Tex. R. App. P. 47 when denying a §51.014(d) petition? Rule 47 requires explanation of every issue necessary to disposition; denial here lacked required reasons. Courts of appeals may use brief memorandum opinions and need not detail reasons for discretionary denials. Rule 47 applies; the court of appeals violated it by giving no reasons on the dispositive issue and should be remanded.
2) Does the word "may" in §51.014(f) give courts of appeals unfettered, unreviewable discretion to deny permissive appeals? "May" implies discretionary authority but not unlimited; discretion must follow guiding principles and is reviewable for arbitrariness/abuse. "May" grants broad discretion; intermediate courts may deny permissive appeals without explanatory opinions. "May" does not permit arbitrary, unreviewable discretion; courts must adhere to guiding principles and can be reviewed.
3) Was the First Court of Appeals’ boilerplate denial adequate to permit review or forestall remand? The boilerplate sentence did not satisfy Rule 47 because it failed to state basic reasons on the determinative issue. Boilerplate denials (e.g., "petition fails to establish each requirement") suffice for memorandum opinions. Boilerplate was inadequate; the court must explain its reasoning on whether the §51.014(d) prerequisites were established. Remand required.
4) Were §51.014(d)’s prerequisites met in this case (controlling question w/ substantial ground for difference; appeal may materially advance termination)? Yes — conflicting appellate authority on the express-negligence/indemnity issue and immediate review would materially speed or resolve litigation. The court of appeals concluded (without explanation) the petition failed to establish the requirements. The trial court’s conclusions were legally correct; substantial grounds and the "may materially advance" threshold were satisfied.

Key Cases Cited

  • Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725 (Tex. 2019) (urged courts to accept permissive appeals when §51.014(d) requirements are met to promote early, efficient resolution)
  • G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502 (Tex. 2015) (courts of appeals may not decide controlling questions of law in the first instance)
  • Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011) ("may" imports discretion but does not vest unlimited discretion)
  • Pirelli Tire, L.L.C. v. Garcia, 247 S.W.3d 670 (Tex. 2007) (discretion must adhere to guiding principles; arbitrary decisions reviewable)
  • Womack v. Berry, 291 S.W.2d 677 (Tex. 1956) (discretion guided by the purposes of the rule)
  • Columbia Med. Ctr. of Las Colinas v. Henson, 290 S.W.3d 204 (Tex. 2009) (trial or appellate courts must explain reasons when setting aside jury verdicts or issuing dispositive rulings)
  • West v. Robinson, 180 S.W.3d 575 (Tex. 2005) (memorandum opinions must address each issue necessary to disposition; mere conclusion is insufficient)
  • Citizens Nat’l Bank in Waxahachie v. Scott, 195 S.W.3d 94 (Tex. 2006) (memorandum opinion must provide basic reasons; no-reason dispositions reverseable)
  • Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986) (appellate courts reversing on sufficiency grounds should state why the jury’s finding is insufficient)
  • Martin v. Franklin Capital Corp., 546 U.S. 132 (U.S. 2005) (discretion must be guided by sound legal principles; "discretion is not whim")
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