No. 20-0174
Supreme
On Petition for Review from the Court of Appeals for the First District of Texas
JUSTICE BUSBY, joined by Chief Justice Hecht and Justice Young, dissenting.
For many years, this Court has demonstrated its commitment to the efficient administration of justice, transparency, and a substance-over-form approach to procedure. Regrettably, the plurality and concurrence sound a retreat on all these fronts today, allowing courts of appeals to avoid hearing permissive appeals at their pleasure and with no explanation so long as their standard-form denials recite the following pass-phrase: “the petition fails to establish each requirement.” See ante at 15.
The plurality recognizes that this approach thwarts the statute‘s express goal of advancing the termination of litigation, but it concludes that the Legislature signaled
A majority of the Court reads into the word “may” a grant of unfettered discretion that empowers a court of appeals to deny a permissive interlocutory appeal for any reason (according to the plurality), or even for no expressed reason at all (according to the concurrence). This decision rests on a misreading of our rules, which require a court of appeals to issue a written opinion that explains—as to “every issue . . . necessary to final disposition of the appeal“—“the court‘s decision and the basic reasons for it.”
The Court‘s embrace of discretion to shield such a denial from any scrutiny is a straw man. What little the court of appeals did say in its opinion shows that the only issue it decided—whether subsection (d)‘s two prerequisites were satisfied—is not an issue committed to the court of appeals’ discretion, as the plurality concedes. Ante at 8 (explaining that “courts have no discretion” unless “the two requirements are satisfied“). And it cannot be disputed that the court of appeals failed to advise the parties of the reasons why it concluded those prerequisites were not met.
Yet even if discretion were implicated here, neither text nor precedent supports insulating that discretion from review; our cases require courts exercising discretion to follow guiding principles and refrain from acting arbitrarily or unreasonably. The only contrary example that the plurality and concurrence identify is our discretion to deny petitions for review. But the rules expressly authorize us to do so with a brief notation rather than an opinion, and as a matter of jurisdiction and court structure we have the last word on state-law procedural matters.
The opposite is true in the intermediate courts of appeals. And in the context of permissive appeals, it is particularly important that their opinions discuss and apply guiding principles for three reasons: (1) to facilitate each panel‘s reasonable consideration of whether the requirements selected by the Legislature have been met in a particular case; (2) to reveal whether the panel is denying permission to appeal on discretionary or non-discretionary grounds and enable further review when necessary; and (3) to develop the jurisprudence regarding non-arbitrary reasons why permissive appeals should be accepted or denied in order to supply guidance and promote comparable outcomes in future cases.
Finally, the Court casts aside the Legislature‘s recognized goal of providing for early, efficient appellate resolution of determinative legal issues—which the plurality candidly acknowledges courts of appeals are flouting with their “recurring rejections.” Ante at 14. In 2019, we
The parties and the trial court in this case were unanimous in concluding that the requirements for a permissive appeal were met and that addressing the merits would promote the efficient resolution of this dispute. Yet the court of appeals disagreed that the requirements were met without even providing them the courtesy of an explanation, and the plurality‘s effort to imagine what the reason might have been does not withstand scrutiny. To the contrary, the trial court‘s determination that subsection (d)‘s requirements have been met is legally correct. Because the court of appeals’ opinion does not comply with our rules, and there are also compelling reasons grounded in the statute and our precedent for requiring the court to advise the parties of its reasons for denying a permissive appeal, I would reverse.
I. By failing to disclose its basic reasons for deciding that the petition did not meet each requirement for a permissive appeal, the court of appeals violated Appellate Rule 47.
In this Court, all parties contend that the court of appeals erred by failing to hand down an opinion that explained the basic reasons for its decision on each issue necessary to its denial of permission to appeal. A careful examination of our statutes, rules, and precedents demonstrates that they are correct. The plurality‘s opinion skips some key steps in this inquiry, which must take into account what issues are necessary to dispose of a petition for permission to appeal, as well as what sort of explanation our rules require as to each of those issues.
Here, as the plurality recognizes, the disputed issue necessary to the court of appeals’ denial of the petition was whether it established the two predicate requirements for a permissive appeal. Ante at 6. The court of appeals provided no explanation whatsoever for its decision that the petition “fails to establish each requirement.” 634 S.W.3d 760 (Tex. App.—Houston [1st Dist.] 2019).
A. There are four issues a court of appeals may encounter in determining whether to accept a section 51.014(d) appeal.
The Legislature has granted our courts of appeals jurisdiction to hear appeals of certain otherwise unappealable interlocutory orders if the trial court‘s order permits the appeal and the appealing party timely files an application—or, as our rules call it, a petition for permission to appeal—in the court of appeals. See
First, the parties may dispute whether the trial court followed the requirements for an order granting permission to appeal. The order must decide “a controlling question of law.”
Second, there may be a question about whether the appellant timely filed a petition for permission to appeal the order. “[N]ot later than the 15th day after the date the trial court signs the order to be appealed,” the appealing party must file an “application for interlocutory appeal” in the court of appeals.
Third, there are two minimum requirements that must be met before the court of appeals may accept an appeal permitted by the trial court, and there may be a dispute about whether one or both of those prerequisites are satisfied. Section 51.014(f) provides that the court of appeals “may accept” the appeal “if the appealing party . . . files . . . an application for interlocutory appeal explaining why an appeal is warranted under [section 51.014(d)].”
Because courts of appeals may accept a permissive interlocutory appeal only “if” section 51.014(d)‘s requirements are met, see id., I agree with the plurality that courts of appeals “have no discretion to permit or accept an appeal” when section 51.014(d)‘s “requirements are not satisfied.”
Fourth, if section 51.014(d)‘s requirements are met, the court of appeals can decide whether it wishes to exercise its discretion to accept the appeal. Beyond providing that the court of appeals “may accept an appeal permitted by [section 51.014(d)],”
The plurality and I agree that this fourth issue is the only one involving an exercise of discretion. Ante at 8 (“[I]f the two requirements [of subsection (d)] are satisfied, the statute then grants courts . . . discretion to accept or permit the appeal.“). I also agree with the plurality that nothing in the statute or our rules requires a court to accept the appeal when section 51.014(d)‘s requirements are met. See id. In such situations, we have said, “[t]he principles that are to guide [the] court‘s discretionary decision are determined by the purposes of the rule at issue.” Samlowski v. Wooten, 332 S.W.3d 404, 414 (Tex. 2011) (Guzman, J., concurring); see id. at 410 (plurality op.); Womack v. Berry, 291 S.W.2d 677, 683 (Tex. 1956) (orig. proceeding). Unfortunately, the courts of appeals are not exploring those principles in their opinions.
The failure to distinguish among these four issues has led to some confusion and contradiction in court of appeals decisions. There are several opinions in which courts of appeals have both dismissed a permissive interlocutory appeal for want of jurisdiction—purportedly because section 51.014(d)‘s requirements are not satisfied—and denied the petition for permission to appeal, seemingly exercising discretion they believed themselves without jurisdiction to exercise.4
B. The court failed to give reasons for its decision on every issue necessary to the final disposition of the appeal.
Understanding the issues at play helps to inform how a court of appeals must
When “the issues are settled,” our rules provide that courts of appeals “should write a brief memorandum opinion no longer than necessary to advise the parties of the court‘s decision and the basic reasons for it.”
As the cases cited throughout this opinion show, courts of appeals uniformly issue memorandum opinions when they dispose of “[a]n appeal under Subsection (d)”6 of
Though our memorandum-opinion rule demands brevity, a court of appeals cannot “fail[] to give any reason whatsoever for its conclusion.” Citizens Nat‘l Bank in Waxahachie v. Scott, 195 S.W.3d 94, 96 (Tex. 2006) (per curiam). “[A] memorandum opinion generally should focus on the basic reasons why the law applied to the facts leads to the court‘s decision.” Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006) (per curiam). Even when a court of appeals affirms a jury verdict in the face of a factual-sufficiency challenge, “merely stating that [the challenge] is overruled does not count as providing the ‘basic reasons’ for that decision.” Id.
The court of appeals’ three-sentence memorandum opinion in this case does not satisfy these requirements. The opinion identifies the parties and the order that the trial court granted permission to appeal, recites the two requirements “[t]o be
The issue the court of appeals identified as necessary to its disposition was the third type of issue discussed above: whether “the petition fail[ed] to establish each requirement” of section 51.014(d) and “Rule 28.3[](e)(4).” Id. The plurality agrees. Ante at 15. But as to that issue, the court of appeals merely stated its conclusion that the requirements were not established; it did not offer any reason whatsoever for its decision that the petition failed to do so. But see Gonzalez, 195 S.W.3d at 681; Citizens Nat‘l Bank, 195 S.W.3d at 96.
The plurality attempts to support its departure from the rule and our precedent by misstating my position, suggesting that I would require the court of appeals to engage with each of the parties’ arguments underlying a particular disputed issue. Ante at 15–16. Not at all. I would simply require the court of appeals to do what Rule 47 plainly says it must: fairly consider and provide the basic reasons for its decision as to “every issue raised [by the parties] and necessary to final disposition of the appeal”7—in particular, the issue whether the requirements of section 51.014(d) were met here. Nowhere does the plurality explain why those requirements should not be considered a distinct issue for Rule 47 purposes on which a reasoned decision was needed. The plurality‘s view that the court need only identify a basis for its bottom-line “decision” or “disposition” of the entire appeal8—whether to deny, affirm, or reverse—is flatly contrary to our decisions in West, Gonzalez, and Citizens National Bank, cited above.9
The concurrence, for its part, concludes that Rule 47 is inapplicable because an application for interlocutory appeal is not an actual “appeal” until it is accepted. Ante
Industrial Specialists provided the court of appeals ample support for its position that the requirements of subsection (d) were met here, explaining that each side‘s competing interpretation of the indemnity provision was supported by authority and that determining its proper interpretation would speed resolution of the case. Courts of appeals have taken different approaches to the merits issue presented by the permissive appeal, which we agreed to review.10 Notably, Marathon did not oppose Industrial Specialists’ motion for permission to appeal the denial of its motion for summary judgment. Nor did Marathon file a response to or otherwise challenge Industrial Specialists’ petition for permission to appeal. See
Faced with these substantial reasons why the two requirements for a permissive appeal were met, our rules required the court of appeals to explain the basic reasons for its contrary conclusion on this issue. This requirement “is mandatory, and the courts of appeals are not at liberty to disregard it.” West, 180 S.W.3d at 577. Because the court of appeals did so here, our rules and precedents require that we remand to give the court of appeals another opportunity to provide the explanation to which the parties are entitled. Id.; see also Gonzalez, 195 S.W.3d at 681; Citizens Nat‘l Bank, 195 S.W.3d at 96. We should reverse and remand on this basis alone.11
II. Though section 51.014(f) gives courts of appeals discretion whether to accept interlocutory appeals that meet the requirements, it does not permit them to act arbitrarily.
Our rules of procedure are not the only reason for requiring courts of appeals to explain their reasons on all issues necessary to the denial of a permissive appeal. Such a requirement is also necessary to ensure that the courts are properly exercising their discretion rather than arbitrarily flouting the clear intent of the Legislature in authorizing such appeals.
Together, the plurality and concurrence form a majority for the holding that courts of appeals have unfettered discretion to grant or deny permissive appeals that meet the criteria set out in the statute and
Yet even if the court of appeals were exercising discretion, our cases have held time and again that “may” alone does not confer unreviewable discretion, and they support requiring the court to explain the reasons for its exercise. “While the permissive word ‘may’ imports the exercise of discretion, ‘the court is not vested with unlimited discretion.‘” Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex. 2011) (quoting Womack, 291 S.W.2d at 683); see also, e.g., Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex. 2008) (observing that “abuse-of-discretion review” is not “the same as no review at all“); 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.“).13
As we have frequently explained, a court‘s discretionary decisions must not be “arbitrary” or “unreasonable” and must “adhere to guiding principles.” Pirelli Tire, 247 S.W.3d at 676. Courts are “required to exercise a sound and legal discretion within limits created by the circumstances of the particular case” and “the purpose of the rule” at issue. Womack, 291 S.W.2d at 683; see also Samlowski, 332 S.W.3d at 410 (plurality op.), 414 (Guzman, J., concurring). Accordingly, we have imposed limits on courts’ discretion and required them to explain their reasons even when the source of their authority is silent regarding that discretion‘s bounds. E.g., Columbia Med. Ctr., 290 S.W.3d at 212–13 (requiring trial court that sets aside jury verdict to explain its reasoning because trial judge cannot “substitute his or her own views for that of the jury without a valid basis“); Gonzalez, 195 S.W.3d at 681 (observing that under Rule 47.4, appellate court cannot overrule factual sufficiency challenge to jury verdict without explaining
The plurality asserts that Columbia Medical Center, Gonzalez, and Pool are “distinguishable because they aimed to protect the sanctity of the constitutional right to jury trial.” Ante at 17. Yet interestingly, many of the reasons the plurality gives for its decision today mirror those in the Columbia Medical Center dissent. See 290 S.W.3d at 216 (O‘Neill, J., dissenting).
Moreover, the plurality is simply wrong that
Similarly, former
In addition, our procedural rules provide that a court “may order a separate trial” of a claim or issue.
The plurality chides us for looking beyond the supposedly plain meaning of the word “may” to discern the limits of the discretion it confers, which the plurality characterizes as an attempt to “rewrite [the] statute” or “revis[e] our rules . . . by judicial fiat.” Ante at 9, 18. Yet it is our typical practice to consider context—not merely dictionaries—when the Legislature chooses to employ a word with a legal meaning that we have previously expounded in similar situations. E.g.,
The only example the plurality and concurrence give in which the word “may” confers unreviewable discretion is this Court‘s discretion to deny petitions for review without explanation. See
Consistent with the authorities just discussed, requiring courts of appeals to explain their rulings on petitions for permission to appeal would ensure that the panel has not acted arbitrarily but has meaningfully and reasonably discharged its “duty to consider” the particular issues raised by the petition—a duty the plurality halfheartedly acknowledges. Ante at 9.16 As discussed in Part I.A. above, many of those issues do not involve any exercise of discretion. An explanation by the court of appeals would also facilitate our review of the court‘s rulings on the issues in play when necessary. See, e.g., In re RSR Corp., 475 S.W.3d 775, 779 (Tex. 2015) (orig. proceeding) (holding trial court abused discretion because order on attorney disqualification reflected it did not
Requiring courts of appeals to explain their permissive appeal rulings would also develop Texas jurisprudence regarding why such appeals should be accepted or denied, providing guidance for future courts and fostering comparable outcomes in similar cases. “Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike.” Martin, 546 U.S. at 139 (citing Henry J. Friendly, Indiscretion About Discretion, 31 EMORY L.J. 747, 758 (1982)).
As it currently stands, Texas precedent on accepting a permitted appeal is quite sparse. See, e.g., Gulf Coast Asphalt Co. v. Lloyd, 457 S.W.3d 539, 544 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (noting that “[t]here has been little development in the case law construing section 51.014 regarding just what constitutes a controlling legal issue“). Indeed, some courts issue opinions even shorter than the one issued by the court of appeals here, stating simply that “[a]fter considering” the parties’ filings, “we deny the petition and dismiss the appeal for want of jurisdiction.”17
The plurality believes that these opinions fall short of Rule 47‘s requirements because they “fail to state the ‘basic reasons’ for their decision.” Ante at 15 n.13. But it says adding the boilerplate conclusion that “the petition fails to establish each requirement of Rule 28.3(e)(4) [sic],” 634 S.W.3d at 760, is enough to comply with the rule. Ante at 15–16. I fail to see the sense in the line the plurality draws. It certainly cannot be tied to the language of Rule 47, which as explained in Part I.B. above requires the court to give its reasons as to “every issue” necessary to its decision—here, the issue whether each requirement for a permissive appeal has been met.
The plurality eventually acknowledges that it might be arbitrary and unreasonable for a court of appeals to “refuse a permissive appeal without considering whether the two requirements [of section 51.014(d)] are satisfied.” Ante at 9. Why the plurality harbors any doubt on this point is hard to fathom. It is obvious to me, though apparently not to our concurring colleagues, that a court of appeals would abuse its discretion if it denied a permissive appeal because a flipped coin came up tails or the panel members wanted to take a vacation. But how will anyone know whether a court of appeals acted without properly considering the statute‘s requirements unless the court is required to say why it decided the issue as it did?
That approach undermines in fact—and tarnishes in appearance—the “just and deliberate judicial system” the plurality claims to prefer. Ante at 19. Absent a requirement that the court of appeals share its reasons, there will continue to be no predictability regarding which cases should be heard on permissive interlocutory appeal. Courts of appeals have developed some conflicting understandings of section 51.014(d)‘s requirements. Compare Patel v. Patel, No. 05-16-00575-CV, 2016 WL 3946932, at *2 (Tex. App.—Dallas July 19, 2016, no pet.) (mem. op.) (concluding “substantial ground for difference of opinion” prong is not satisfied where disagreement is between parties), with Austin Com., L.P. v. Tex. Tech Univ., No. 07-15-00296-CV, 2015 WL 4776521, at *2 (Tex. App.—Amarillo Aug. 11, 2015, no pet.) (per curiam) (suggesting that “substantial ground for difference of opinion” prong can be satisfied by disagreement between parties). That is unlikely to change under our decision today, which both incentivizes courts of appeals not to issue reasoned opinions and fully insulates those opinions from any scrutiny.
Indeed, even the requirement to include the now-approved boilerplate sentence seems rather pointless. According to the plurality, even if the court of appeals concludes that the requirements are perfectly met, it may freely reject the appeal without further discussion. Nor does anything change if the court of appeals is wrong—objectively wrong, as-a-matter-of-law wrong—in its recitation that the requirements are not met. If such an error arises, the plurality contends, this Court is powerless to take the modest step of sending the case back so that, shorn of its error, the court of appeals could reconsider.
But for all we know, the court of appeals may have desperately wanted to take the appeal, yet believed itself to be without discretion— or even without jurisdiction—to do so because it genuinely thought that one of the statutory requirements was unmet.18 As I discuss below, the court of appeals’ assessment of the requirements in this case was legally wrong. That conclusion would be good news to an appellate court that stayed its hand only because it believed itself to lack jurisdiction to proceed. Under our normal practice, we could correct that error and then remand so that the court of appeals could accept the appeal after all. Or even if the court did not particularly want to decide the appeal, correcting its legal error would at least allow it to provide a non-erroneous ground for denying permission. Ante at 8.
Yet the plurality‘s new doctrine of “discretion” would deem Rule 47 satisfied even if a court of appeals were to say the following:
We have considered the timely application for an interlocutory appeal. We conclude that the trial court‘s order, which it granted permission to appeal, decided a controlling question of law. We agree that there is a substantial ground for difference of opinion about that question. We also agree that an immediate appeal may materially advance the ultimate termination of the litigation. We nonetheless dismiss the application for
want of jurisdiction. See TEX. R. APP. P. 28.3(e)(4) .
Under the plurality‘s approach, a self-contradictory opinion like this one must be upheld because it includes what the plurality requires: a statement that the court of appeals has considered the statutory factors. If such a gibberish opinion could be reversed, it would only be because there must in fact be some limit to the court of appeals’ discretion, which would doom the plurality‘s whole theory. Of course there is such a limit. Just a few weeks ago we reiterated the (until today, at least) unquestioned principle that “[a] court clearly abuses its discretion when it makes an error of law.” In re Abbott, —S.W.3d—, 67 Tex. Sup. Ct. J. 1071, 1074 (Tex. 2022). Only time will tell whether the plurality‘s error today will tear down any more of that previously venerable principle.19
I doubt, of course, that any court of appeals will be quite as blatant as this hypothetical opinion, although some of them have come close. My point is only that the plurality‘s approach deems any error of law or any act of caprice—blatant or otherwise—to not be an abuse of discretion. That approach transforms judicial discretion into judicial fiat.
Another reason we should require courts of appeals to explain their permissive appeal rulings is that doing so furthers “the purpose of the [statute],” which we consider in shaping the principles that should guide the courts’ discretion. Womack, 291 S.W.2d at 683; see also Samlowski, 332 S.W.3d at 410 (plurality op.), 414 (Guzman, J., concurring). The permissive appeal statute is expressly designed to “materially advance the ultimate termination of . . . litigation.”
Yet many courts of appeals continue to deny the vast majority of permissive appeals despite our exhortations in Sabre Travel.20 In doing so, these courts thwart
Leschper, No. 01-19-00923-CV, 2020 WL 536013, at *1 (Tex. App.—Houston [1st Dist.] Feb. 4, 2020, pet. denied) (per curiam) (mem. op.).
It is unclear what good the plurality thinks quoting those exhortations will do. Given the plurality‘s “prefer[ence]” for a “deliberate judicial system” over an “efficient one,” and its dim view of the “impatience with time-tested methods of . . . measured adjudication” that the parties and the trial court supposedly displayed by invoking this legislatively created appellate remedy, ante at 19, 11, perhaps it is not meant to do any good at all. If nothing else, perhaps today‘s opinion and the courts of appeals’ continued course of thwarting the Legislature‘s intent will cause the Legislature to reconsider its 2011 decision to restore discretion to the courts of appeals to decline permissive appeals—discretion that the Legislature had previously eliminated in 2005.21
Finally, the Court‘s other justification for refusing to intervene—that the order being appealed is a denial of summary judgment—is unavailing. The Court suggests that it is inappropriate to hear a permissive appeal when the record is incomplete and the lower courts have yet to resolve the case on the merits. Ante at 19. But the “controlling question of law” requirement indicates that a full record is unnecessary in permissive interlocutory appeals. See Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 677 (7th Cir. 2000) (Posner, C.J.) (observing that federal permissive appeal statute‘s reference to a “question of law” envisions “something the court of appeals could decide quickly and cleanly without having to study the record“).
Moreover, although “[a] denial of summary judgment is a paradigmatic example of an interlocutory order that normally is not appealable,” id. at 676, that has not dissuaded courts of appeals from hearing such interlocutory appeals when section 51.014(d)‘s requirements are satisfied. E.g., City of Houston v. Hous. Pro. Fire Fighters’ Ass‘n, Loc. 341, 626 S.W.3d 1, 7–8 (Tex. App.—Houston [14th Dist.] 2021, pet. granted); State Farm Mut. Auto. Ass‘n v. Cook, 591 S.W.3d 677, 679 (Tex. App.—San Antonio 2019, no pet.). For all these reasons, courts of appeals should be required to explain their decision on the issue whether those requirements are satisfied. I would at minimum reverse and remand for the court of appeals to do so.
III. The court of appeals was incorrect in concluding that the requirements of section 51.014(d) are not satisfied.
Clearing away the plurality‘s argument regarding the denial of summary judgment reveals a second, independent basis for reversing the court of appeals’ decision to deny permission to appeal: not only did that court fail to explain its reasons for concluding that section 51.014(d)‘s requirements have not been established, the record shows that its conclusion regarding those requirements is every bit as incorrect
In the disputed contract provision at issue here, Industrial Specialists agreed to indemnify Blanchard “from and against all . . . suits and other liabilities . . . except to the extent the liability, loss, or damage is attributable to and caused by the negligence of [Blanchard].” Blanchard moved for partial summary judgment on its claim for a declaratory judgment that this provision required Industrial Specialists to indemnify it for amounts it paid to settle liabilities attributable to other parties. And Industrial Specialists moved for summary judgment on various grounds, including that the indemnity is unenforceable because it fails the express-negligence test.
The trial court initially denied both parties’ motions. But in its subsequent amended order granting permission to appeal, the court “makes the following substantive ruling” in favor of Blanchard:
The March 14, 2013 Major Service Contract between [Industrial Specialists] and Plaintiff Blanchard Refining Company LLC does not prohibit Plaintiffs Blanchard and Marathon Petroleum Company LP from seeking indemnity from [Industrial Specialists] for personal-injury settlement payments Plaintiffs made, to the extent those payments were attributable to or caused by the negligence of parties other than Plaintiffs.
The trial court went on to find that there was “substantial ground for difference of opinion” regarding “whether the parties’ written agreement prohibits Plaintiffs from seeking indemnity,” and that “an immediate appeal of . . . this Court‘s ruling on this controlling question of law” may “materially advance the ultimate termination of this litigation.”
The trial court‘s determinations on the
The plurality is wrong to bless the court of appeals’ contrary conclusion as, “at a minimum, plausible.” Ante at 12. There is no plausible argument that a substantial ground for difference of opinion is lacking; even the plurality pushes no such theory. The second requirement is only that the appeal “may materially advance the ultimate termination of the litigation.”
For these reasons, the court of appeals erred in concluding that “the petition fails to establish each requirement” of
* * *
Although
J. Brett Busby
Justice
OPINION DELIVERED: June 10, 2022