Target Corp. v. Ko
Dallas Court of Appeals, No. 05-14-00502-CV (July 21, 2014)
Justices Wright, Lang-Miers, and Brown (Opinion)

Jones v. Neil
Dallas Court of Appeals, No. 05-14-00617-CV (July 21, 2014)
Justices Wright, Lang-Miers (Opinion), and Brown
Under TEX. CIV. PRAC. & REM. CODE § 51.014(d), a court of appeals may accept an interlocutory appeal of an order not otherwise appealable if the trial court agrees to permit such an appeal and “(1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation.” In two opinions released on the same day, the Dallas Court made clear it takes those prerequisites seriously—very seriously.

In Jones the trial court had found “substantial ground for difference of opinion” about the applicability of and potential conflict with two Texas Supreme Court decisions on what it deemed a controlling question of law. The Dallas Court “reviewed the appellate court cases that apply” those two decisions, found no disagreement and no conflict, and therefore dismissed the appeal without commenting on whether the contested trial court decision was correct or whether immediate appeal would advance termination of the litigation. In Target the trial court denied the defendant’s motion for summary judgment on limitations, even though citation had been served two months after limitations had run, due to an error by plaintiff’s counsel. The trial court approved an interlocutory appeal, with the appellant advancing as the controlling question of law “whether attorney error in failing to timely serve a defendant constitutes lack of due diligence as a matter of law.” At least one other court had rejected such an appeal on the ground that due diligence is an issue of fact and therefore not subject to interlocutory appeal under § 51.014(d). But here the Dallas Court rejected the appeal because it found it to be “well settled that attorney error does not constitute due diligence as a matter of law”—i.e., there was no substantial ground for difference of opinion on the controlling issue, and therefore no interlocutory appeal was available even though “the trial court may have erred in not granting summary judgment” on that ground.