Under Section 51.014(d) of Texas's Civil Practice and Remedies Code, a trial court may grant permission to appeal an otherwise interlocutory order – like a denial of motion for summary judgment – if the order, among other things, “involves a controlling question of law as to which there is a substantial ground for difference of opinion.” In a per curiam order issued last Friday, the Texas Supreme Court provided much-needed clarification on what constitutes “a substantial ground for difference of opinion” under Section 51.014(d), correcting previous problematic precedent and reinforcing its preference for exercising permissive interlocutory appeals.   

Helena Chemical Company v. Bales involved claims that a chemical company had damaged farmers' crops through aerial application of a herbicide on a neighboring property. When the farmers offered expert testimony to support these claims, the chemical company moved to strike and for no-evidence summary judgment, contending the Texas Supreme Court had already concluded the relied on testimony was unreliable. The trial court denied summary judgment but permitted the chemical company to take a permissive interlocutory appeal on whether the Supreme Court's prior opinion controlled. The Eighth Court, however, denied the petition, joining its sister courts in concluding that, because the chemical company's argument was that the trial court simply misapplied the relevant precedent, there was no “substantial ground for difference of opinion” as required by the statute. Such appeals, the court reasoned, were not permitted when the question of law was “well-settled and established.”

The Supreme Court reversed, in turn, explaining that when a trial court's decision “is at odds with binding precedent,” the statutorily required “ground for difference of opinion is both substantial and self-evident.” Section 51.014(d), the Court explained was “not a means of identifying well-developed questions worthy of a moot-court competition,” but instead “a mechanism for resolving cases though the early, efficient resolution of determinative legal issues.” Also, when there is reason to believe the underlying trial-court order is at odds with binding precedent, that constitutes a substantial ground for difference of opinion that can support a petition for a permissive interlocutory appeal. 

Key Takeaways

• The biggest takeaway, of course, is to expect an increase in petitions for permissive interlocutory appeals. Prior precedent on what constitutes a “substantial ground for difference of opinion” limited the types of questions heard on permissive interlocutory appeals, and in rejecting this theory, the Supreme Court has now made permissive interlocutory appeals available to a wide class of litigants.
• Relatedly, Bales represents the most recent example of the Supreme Court's support for the use of permissive interlocutory appeals; counsel on both sides of the v. should consider ways to position their case in a way that sets up for a potential interlocutory appeal given the high court's insistence on the role of this vehicle.
• The expanding use of permissive interlocutory appeals could impact parties' expectations and actions around settlement. The availability of an expedited review of dispositive, interlocutory orders could encourage parties to press their chances on appeal rather than engage in settlement discussions.