DIAMOND PRODUCTS INTERNATIONAL, INC., Aрpellant v. Arthur M. HANDSEL, Appellee.
No. 14-03-00998-CV.
Court of Appeals of Texas, Houston (14th Dist.).
July 20, 2004.
491
III. CONCLUSION
We reverse the part of the trial court‘s judgment against (CNB) that awards (ARI) damages for DTPA violations, damages for loss of credit reputation, and trial and appellate attorney‘s fees. We reverse the part of the trial court‘s judgment against Don Lawson that awards ARI damages for loss of credit reputation.
We render judgment that ARI is entitled to recover $160,520.69 in actual damages on its fraud claim, which is the jury verdict of $172,602.89 for ARI‘s actual damages less 7%, or $12,082.20, that the jury attributed to ARI‘s own fault in cаusing the damages; plus prejudgment interest. Of the $160,520.69 and prejudgment interest,
- CNB is liable for $82,849.39 plus prejudgment interest, based on the jury finding that CNB bears a 48% share of responsibility for ARI‘s actual damages;
- CNB and Bed & Bath are jointly and severally liable for $51,780.87 plus prejudgment interest, based on the jury findings that Bed & Bath bears a 30% share of responsibility for ARI‘s actual damages and that CNB and Bed & Bath engaged in a conspiracy; and
- CNB and Don Lawson are jointly and severally liable for $25,890.43 plus prejudgment interest, based on the jury finding that Don Lawson bears a 15% share of responsibility for ARI‘s actual damages and the directed verdict that CNB is vicariously liable for Lawson‘s acts.
We also render judgment that ARI is entitled to recover exemplary damages of $317,000 from CNB and exemplary damages of $65,000 from Don Lawson.
We affirm the remainder of the trial court‘s judgment, excluding the amount of prejudgment interest attributable to CNB and Lawson. We reverse and remand the case to the trial court for recalculation of prejudgment interest attributable to CNB and Lawson and for entry of judgment in accordance with this opinion.
CAYCE, C.J., concurs in result only.
Alan Scott Alford, Houston, for appellant.
Panel consists of Justices FROST, EDELMAN and SEYMORE.
CHARLES W. SEYMORE, Justice.
In this permissive interlocutory appeal, we address whether this court may consider the appeal in the absence of a timely-filed application for permission to appeal as required by
DISCUSSION
Appellant, Diamond Products International, Inc. (“DPI“) terminated the employment of appellee, Arthur M. Handsel. Appellee sued DPI for common law fraud and promissory estoppel, claiming DPI had promised to provide him a three-year written employment contract, which it had not done. DPI disputes appellee‘s claim and contends it never made the allegеd employment promises. DPI filed a motion for summary judgment on the ground that appellee did not reasonably rely on a promise as required to sustain his claims. The trial court denied the motion and signed an order authorizing this interlocutory appeal. See
Traditionally, interlocutory appeals have bеen limited to appeals of certain types of orders specifically set forth by statute. See
A district court may issue a written ordеr for interlocutory appeal in a civil action not otherwise appealable under this section if:
- the parties agree that the order involves a controlling question of law as to which there is a substantial ground for difference of opinion;
- an immediate appeal from the order may mаterially advance the ultimate termination of the litigation; and
- the parties agree to the order.
On July 2, 2003, the trial court denied appellant‘s motion for summary judgment and signed an order authorizing an interlocutory appeal of its order. Appellant did not file an application for permission to appeal in this court. Instead, within ten days аfter the trial court‘s order was signed, on July 11, 2003, appellant filed a notice of appeal.
In ordinary civil appeals, the appellate court‘s jurisdiction is invoked when an appellant timely files “an instrument in a bona fide attempt to invoke the appellate court‘s jurisdiction.” Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997) (citing Grand Prairie I.S.D. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex.1991)). It is clear that a notice of appeal is a bona fide attempt to invoke this court‘s jurisdiction. See Stolte v. County of Guadalupe, No. 04-04-00083-CV, 2004 WL 1159388, at *2 (Tex.App.-San Antonio May 26, 2004, no pet. h.). Therefore, when an appellant has filed a timely notice of appeal, the failure to file an application for permission to appeal pursuant to
The parties did not present facts or argument explaining why we should grant permission to appeal; however, the reasoning of the parties is apparent from the briefing. In effect, the parties desire to obtain an advance ruling on the summary judgment ground alleged in the motion before proceeding to trial. The statute does not contemplate permissive appeals of summary judgments where the facts are in dispute. Instead, permissive appeals should be reserved for determination of controlling legal issues necessary to the resolution of the case. While the issue in the summary judgment is central to appellee‘s claim, its resolution does not rest on a controlling legal issue or materially advance the termination of the litigation. See
Accordingly, we deny permission to appeal the interlocutory order and dismiss the аppeal.
FROST, J., concurring.
EDELMAN, J., concurs in result only.
KEM THOMPSON FROST, Justice, concurring.
It is correct to construe the instrument filed by appellant Diamond Products International, Inc. (“DPI“) as an application for permission to appeal and to deny that application. I write separately to point out procedural uncertainties that presently exist due to thе failure of our current rules to provide a procedure for permissive interlocutory appeals. In concurring in the court‘s judgment, I also note that we need not make any broad pronouncements about what constitutes a “controlling question of law” to deny this application.
Within ten days after thе trial court signed the order from which DPI seeks to appeal, DPI filed an instrument entitled “Notice of Appeal” in this court. See
DPI asks this court to review the trial court‘s denial in part of DPI‘s traditional motion for summary judgment. This motion asserted that all of appellee Arthur Handsel‘s claims against DPI are barred based on the statute of frauds and Handsel‘s alleged employment-at-will status. DPI‘s motion for summary judgment was based in part on excerpts from Handsel‘s deposition. Although the motion states that these deposition excerpts are attached as an exhibit, our record contains no such exhibit and the clerk of the trial court recently certified that DPI‘s motion does not include the referenced exhibit. Whether the trial court correctly denied part of a traditional motion for summary judgment that was filed without any summary-judgment evidence attached to it does not involve “a controlling question of law as to which there is a substantial ground for difference of opinion.”
In denying DPI‘s application, this court does not and need not take a position as to whether a notice of аppeal must be filed at some point in the process of pursuing an appeal under the permissive interlocutory appeal statute. See
Unfortunately, the rules of appellate procedure have not yet made allowances for this type of appeal. Under the current rules, an appeal is perfected when a written notice of appeal is filed.
Some courts might invoke the first procedure in reliance on the appellate court‘s
On the other hand, if an appellate court concluded that the statute and the rules do not allow parties to take a permissive interlocutory appeal without filing a written notice of appeal, then the second procedure might be deemed to apply. In that event, a notice of aрpeal would need to be filed no later than twenty days after the signing of the order from which appeal is being taken, in which case it would be prudent for an appealing party to file both an application for permission to appeal and a notice of appeal at the samе time. See
The administration of justice for permissive interlocutory appeals would be well served if this uncertainty in current appellate practice and procedure were eliminated. One way to do so would be to amend the Texas Rules of Appellate Procedure to include a procedure for permissive interlocutory appeals. However, until such a procedure is adopted or until these issues are resolved by caselaw, it would seem sensible and prudent for appealing parties to file an application for permission to appeal and a notice of appeal at the same time, and perhaps in the same instrument. See Warren W. Harris & Lynne Liberato, State Court Jurisdiction Expanded to Allow for Permissive Appeals, 65 Tex. B.J. 31, 32 (2002) (stating that “[I]n state court, until a rule or the courts determine that a notice of appeal is unnecessary, it is advisable to file a notice of appeal within the 10-day period for bringing the permissive appeal“). We need not and do not address these issues in the case before us today, and parties should not read today‘s decision as indicating that there is no place for filing a notice of appeal in permissive interlocutory аppeals under
Furthermore, though it may be a rare occurrence, it is possible that, in some cases, a controlling question of law as to which there is substantial ground for difference of opinion might arise in the context of detеrmining whether a fact issue exists in a summary-judgment context. We need not address this broader issue to deny permission to appeal in this case. A review of the trial court record and the appellate briefs shows that the statutory criteria are not satisfied because of the absence of evidencе to support the motion for summary judgment and because of factual issues related to DPI‘s asserted grounds for summary judgment.
CHARLES W. SEYMORE
Justice