Opinion issued June 21, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00323-CV
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ORION MARINE CONSTRUCTION, INC., Appellant
V.
INOCENTE CEPEDA, Appellee
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2012-24614
MEMORANDUM OPINION
Orion Marine Construction, Inc. has petitioned for permission to appeal from
two interlocutory partial summary-judgment orders. See TEX. CIV. PRAC. & REM.
CODE § 51.014(d)–(f); TEX. R. APP. P. 28.3(a). We deny the petition.
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BACKGROUNDIn an earlier appeal from a final judgment in this case, we reversed and
remanded. See Cepeda v. Orion Marine Constr., 499 S.W.3d 579 (Tex. App.—
Houston [1st Dist.] 2016, pet. denied). In that earlier appeal, Inocente Cepeda
challenged the trial court’s partial summary judgment in favor of Orion. Id. at 580–
81. In our opinion and judgment, we concluded that the trial court erred in ruling
that Cepeda lost seaman status because Orion had fired him while he was on Orion’s
vessel and the alleged injury had occurred after Orion had fired him. Id. at 581–83.
On appeal, Cepeda claimed that he was injured while riding a skiff during his
transport from Orion’s vessel to dry land, that his termination did not become
effective until he reached dry land, and that, in any event, fact issues existed as to
whether he was terminated aboard the vessel or two days later, after he reached dry
land. See id. at 580, 583. In our opinion reversing the trial court’s ruling, we agreed
that Orion had failed to establish that Cepeda lacked seaman status as a matter of
law. Id. at 583. The Supreme Court of Texas denied review, and the case thus
returned to the trial court.
Upon remand, Cepeda moved for partial summary judgment, seeking the
reverse determination: that he was a seaman as a matter of law at the time of the
alleged injury. The trial court granted the motion. The trial court also denied Orion’s
motion for summary judgment as to Cepeda’s claims for negligence under the Jones
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Act and for maintenance and cure. In an amended order, the trial court granted Orionpermission to file a permissive appeal from its interlocutory summary-judgment
rulings. Orion has filed a petition requesting that we accept its permissive appeal.
Cepeda has filed a response in opposition.
DISCUSSION
A. Permissive appeal standard
A trial court may allow a party to appeal from an interlocutory order if the
order involves a controlling question of law as to which there is a substantial ground
for difference of opinion and an immediate appeal may materially advance the
ultimate termination of the litigation. TEX. CIV. PRAC. & REM. CODE § 51.014(d);
TEX. R. CIV. P. 168. Because a permissive interlocutory appeal is not the norm, we
strictly construe Section 51.014(d)’s requirements. Gulf Coast Asphalt Co. v. Lloyd,
457 S.W.3d 539, 545 (Tex. App.—Houston [14th Dist.] 2015, no pet.). The order
must identify the controlling question of law at issue and state why an immediate
appeal may materially advance the ultimate termination of the litigation. TEX. R.
CIV. P. 168; Hebert v. JJT Constr., 438 S.W.3d 139, 141 (Tex. App.—Houston [14th
Dist.] 2014, no pet.). The trial court must make a substantive ruling on the
controlling question of law. Borowski v. Ayers, 432 S.W.3d 344, 347–48 (Tex.
App.—Waco 2013, no pet.); Gulley v. State Farm Lloyds, 350 S.W.3d 204, 207–08
(Tex. App.—San Antonio 2011, no pet.). It cannot certify the question to the
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appellate court for decision. Bank of N.Y. Mellon v. Guzman, 390 S.W.3d 593, 597(Tex. App.—Dallas 2012, no pet.); Gulley, 350 S.W.3d at 207.
An unexplained ruling is not subject to permissive appeal if its substantive
basis is unstated and not apparent from the appellate record. See Borowski, 432
S.W.3d at 347–48; see, e.g., Eagle Gun Range v. Bancalari, 495 S.W.3d 887, 889
(Tex. App.—Fort Worth 2016, no pet.) (denial of motion to dismiss without
comment was not substantive ruling); City of San Antonio v. Tommy Harral Constr.,
486 S.W.3d 77, 81–82 (Tex. App.—San Antonio 2016, no pet.) (denial of motion
for partial summary judgment that identified controlling question of law but did not
state basis for denial was not substantive ruling).1
Further, a party cannot seek to appeal from an interlocutory order on a ground
or issue that differs from the basis on which the trial court ruled. Tommy Harral,
486 S.W.3d at 83–84. It is not enough that the issue presented on appeal and the
trial court’s ruling concern the same general subject matter. See id. at 84. The
controlling question of law presented to the court of appeals must be the same legal
1 Accord Dafashy v. Jimenez, No. 01-17-00767-CV, 2017 WL 6001526, at *1
(Tex. App.—Houston [1st Dist.] Dec. 5, 2017, no pet.) (per curiam) (mem. op.);
Luccia v. City of Houston, No. 01-17-00378-CV, 2017 WL 2471107, at *1 (Tex.
App.—Houston [1st Dist.] June 8, 2017, no pet.) (per curiam) (mem. op.);
Vestalia, Ltd. v. Taylor-Watson, No. 01-15-00332-CV, 2015 WL 3799505, at *1
(Tex. App.—Houston [1st Dist.] June 18, 2015, no pet.) (per curiam) (mem. op.);
Great Am. E&S Ins. Co. v. Lapolla Indus., No. 01-14-00372-CV, 2014 WL
2895770, at *2 & n.2 (Tex. App.—Houston [1st Dist.] June 24, 2014, no pet.)
(per curiam) (mem. op.).
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issue decided by the trial court. Id.; see also White Point Minerals v. Swantner, 464S.W.3d 884, 890–91 (Tex. App.—Corpus Christi 2015, no pet.) (declining to address
second issue presented in permissive appeal because trial court had not ruled on it).
To be a controlling question of law, the question must deeply affect the
ongoing litigation process. Undavia v. Avant Med. Grp., 468 S.W.3d 629, 632 (Tex.
App.—Houston [14th Dist.] 2015, no pet.). In general, if the viability of a claim
turns on the question and the resolution of the question will considerably shorten the
time, effort, and expense of litigating the suit, it qualifies as a controlling question
of law. Id. But the question must be a legal one; a party cannot permissively appeal
from a partial summary judgment if the parties dispute the material facts. In re
Estate of Fisher, 421 S.W.3d 682, 685 (Tex. App.—Texarkana 2014, no pet.);
Diamond Prods. Int’l v. Handsel, 142 S.W.3d 491, 494 (Tex. App.—Houston [14th
Dist.] 2004, no pet.).2
Even if the statutory requirements are satisfied, whether to accept a permissive
appeal rests in our discretion. TEX. CIV. PRAC. & REM. CODE § 51.014(f); In re
Volkswagen Clean Diesel Litig., 504 S.W.3d 547, 549 (Tex. App.—Austin 2016, no
pet.).
2 Accord Fertitta Hospitality v. O’Balle, No. 01-14-00193-CV, 2014 WL 5780329,
at *4 (Tex. App.—Houston [1st Dist.] Nov. 6, 2014, no pet.) (mem. op.).
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B. AnalysisOrion identifies two issues for permissive interlocutory appeal:
(1) whether our opinion and judgment in the earlier appeal merely clarified
the effect of Orion’s termination of Cepeda on his status as a seaman or
ruled that he was a seaman as a matter of law; and
(2) whether the Court intended to address any other legal prerequisites to
recover as a seaman under federal maritime law.
In our opinion in the earlier appeal, we held that a worker who meets the
definition of a seaman generally does not lose that status until reaching dry land, and
further that fact issues existed as to the time of Cepeda’s termination, essential to
determining whether Orion terminated his employment aboard the vessel or after the
alleged incident. See Cepeda, 499 S.W.3d at 581–83. We made no determination
that Cepeda was a seaman as a matter of law. See id. The trial court had not so ruled
in the earlier appeal to present that issue for our review. See id. at 580–81.
Orion’s proposed appellate issues do not conform with the trial court’s rulings
on remand. On remand, the trial court did not render a ruling based on our earlier
opinion. The trial court did not answer the specific questions that Orion presents in
this request for a permissive appeal. Rather, the trial court granted different relief
based on new legal motions brought by the parties on remand. These questions were
not determined as part of the first appeal. The trial court made a finding in its
amended summary-judgment order “that there are unresolved questions of law” but
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identified just one, namely whether Cepeda was a seaman as a matter of law at thetime of the alleged accident.
The trial court did not explain the basis for its interlocutory summaryjudgment
rulings or its determination that Cepeda had seaman status as a matter of
law. Essentially, Orion invites us to review the trial court’s interim rulings about the
status of the plaintiff seriatim, having once considered the case on appeal from a
final judgment. We decline that invitation.
To the extent that there are other unresolved questions of law, a permissive
appeal is an improper vehicle for resolving them. The courts of appeals are not
statutorily authorized to decide controlling questions of law in the first instance. See
Guzman, 390 S.W.3d at 597; Gulley, 350 S.W.3d at 207. Rather, the trial court must
do so. See Borowski, 432 S.W.3d at 347–48.
Orion’s second appellate issue as to particular legal requirements that must be
present to recover based on status as a seaman is entirely absent from the trial court’s
order. Their absence precludes our consideration of these requirements in a
permissive appeal. See Tommy Harral, 486 S.W.3d at 84; White Point Minerals,
464 S.W.3d at 890–91.
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CONCLUSION
We deny Orion’s petition for permissive appeal.
Jane Bland
Justice
Panel consists of Justices Higley, Bland, and Massengale.
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