In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-14-00027-CV 

RYCHELLE L. MCCROSKEY, MICHAEL FELIX 

AND BRANDON FRASER, APPELLANTS 

 

V. 

 

HAPPY STATE BANK, IN ITS CORPORATE CAPACITY AND AS TRUSTEE FOR THE 

BERTHA MCLAIN IRREVOCABLE TRUST "A", HESTER, MCGLASSON & COX, A 

GENERAL PARTNERSHIP, CHARLES HESTER, DARRELL CAREY, JASON S. CHISUM 

AND ROBERT TANNER BURNES, APPELLEES 

 

On Appeal from the 108th District Court 

Potter County, Texas 

Trial Court No. 100,778-E, Honorable Douglas Woodburn, Presiding 

 

February 28, 2014 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. 

Appellants, Rychelle L. McCroskey, Michael Felix, and Brandon Fraser, have 

filed in this Court what purports to be an agreed interlocutory appeal, substantially 

conforming to the technical requirements of such an appeal and citing jurisdictional 

authority for such an appeal. See TEX. R. APP. P. 28.2; TEX. CIV. PRAC. & REM. CODE 

ANN. § 51.014(d) (West Supp. 2013). We will treat the notice as the parties’ petition 
2

seeking this Court’s permission to appeal the trial court’s interlocutory order. See TEX.

R. APP. P. 28.3.1 We will refuse the petition and dismiss the appeal for want of 

jurisdiction.

The Trial Court’s Order

In the interlocutory order from which the parties have attempted to appeal, the 

trial court expressly denied the parties’ competing motions for summary judgment 

and/or partial summary judgment filed in the course of litigation. The trial court goes on 

to grant permission to the parties to appeal the interlocutory order and recites the 

findings “that the issues presented involve controlling questions of law as to which there 

are substantial grounds for differences of opinion and an immediate appeal from this 

Court will materially advance the ultimate termination of the litigation.” See TEX. CIV.

PRAC. & REM. CODE ANN. § 51.014(d)(1)–(2); TEX. R. APP. P. 28.3(e)(4). The trial court 

further identifies what it deems the controlling questions of law.2 Nowhere, however, in 

the trial court’s order or in the appellate record, do we find where the trial court 

expressly ruled on the substance of those controlling questions of law.

Agreed Interlocutory Appeals under Section 51.014(d)

Section 51.014 provides as follows:

 

1 We note that Rule 28.3(e) outlines the requirements for the petition with which the parties’ 

notice of appeal substantially complies. Rule 28.3 is applicable to cases filed in the trial court after 

September 1, 2011. See TEX. R. APP. P. 28.3 cmt. Rule 28.2 applies to cases filed in the trial court 

before September 1, 2011. See id. From the clerk’s record, it appears this case was filed in the trial 

court in August 2012.

2

From what appears to be rather complex, multi-party litigation, the trial court identified eight 

multi-faceted “controlling questions of law,” which involve substantive issues concerning contingent fees, 

doctrines of merger and estoppel, subject-matter jurisdiction of the trial court, standing, relationship of the 

case below to a case filed in federal court, enforcement of contingent fee agreements and settlement 

agreements, statute of frauds, and interpretation of a spendthrift clause in a revocable trust.
3

On a party’s motion or on its own initiative, a trial court in a civil action 

may, by written order, permit an appeal from an order that is not otherwise 

appealable if:

(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.

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d). We strictly construe this section 

permitting interlocutory appeal. See Gulley v. State Farm Lloyds, 350 S.W.3d 204, 206 

(Tex. App.—San Antonio 2011, no pet.); State Fair of Tex. v. Iron Mountain Info. Mgmt., 

Inc., 299 S.W.3d 261, 262–63 (Tex. App.—Dallas 2009, no pet.).

In the absence of the trial court’s rulings on the substantive questions of law 

presented to it, we are without jurisdiction to hear this interlocutory appeal. See Bank of 

N.Y. Mellon v. Guzman, 390 S.W.3d 593, 597–98 (Tex. App.—Dallas 2012, no pet.); 

see also Corp. of the President of the Church of Jesus Christ of Latter-Day Saints v. 

Doe, No. 13-13-00463-CV, 2013 Tex. App. LEXIS 12543, at *8 (Tex. App.—Corpus 

Christi Oct. 10, 2013, no pet.) (per curiam) (mem. op.) (“Without a substantive ruling by 

the trial court as to why it denied the Church’s motion, no controlling question of law has 

been presented for our analysis.”). If this Court were to address the merits of the 

several controlling questions here, any opinion we were to issue in this interlocutory 

appeal would necessarily be advisory because there is nothing in the record showing 

that the trial court ruled on the specific legal issues presented for us to decide. See

Guzman, 390 S.W.3d at 597; Colonial Cnty. Mut. Ins. Co. v. Amaya, 372 S.W.3d 308, 

310–11 (Tex. App.—Dallas 2012, no pet.).
4

Much like the case before the Dallas Court of Appeals, here, “the trial court did 

not substantively rule on the controlling legal issues presented in the agreed 

interlocutory appeal and, instead, submitted the issues to this Court for a decision.” 

Guzman, 390 S.W.3d at 597. We join our sister courts in concluding that the 

Legislature did not intend the parties to use Section 51.014(d) of the Texas Civil 

Practice and Remedies Code for such a purpose. See, e.g., Guzman, 390 S.W.3d at 

597; Amaya, 372 S.W.3d at 311; Gulley, 350 S.W.3d at 207.

Conclusion

We refuse the petition seeking permissive appeal from this interlocutory order 

and dismiss the appeal for want of jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN. § 

51.014(f); TEX. R. APP. P. 28.3(j), 43.2(f).

Mackey K. Hancock

 Justice