## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00053

- CV

AYMAN & SHADI, LLC D/B/A MILANO ’ S PIZZA; MILANO ’ S PIZZA IN ITS ASSUMED OR COMMON NAME , Appellant
V.
ELLEN MCCONNELL AND SUE ELLEN STRIZICH , Appellee s

On A p peal from the 71st District Court Harrison County, Texas Trial Court No. 18

- 0107

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice Rambin2 

### ME MORANDUM OPINION
This petition for permissive interlocutory appeal concerns w h ether the trial court had discretion to retain a personal injury case on its docket, or alternatively, whether the trial court was required to dismiss the case for want of prosecution.
We are mindfu l of the admonition that “in many instances, courts of a p peals should do exactly what the Legislature has authorized them to do

— accept permissive interlocutory appeals and address the merits of the legal issues certified.” Sabre Travel Int’l, Ltd. v. Deuts che Lufthansa AG , 567 S.W.3d 725, 733 (Tex. 2019). T hi s , however, is not such a case. Nor is this a matter of the discretion granted to appellate courts to reject permissive interlocutory appeals even when the statutory requirements are met. See id. at 73 2. Rather, this is an instance of a thresh old requir ement not being met

. To be entitled to a permissive appeal from an interlocutory order that would not otherwise be appealable, the requesting party must establish that (1) “ the order to be appealed involve s a controlling question of law as to whic h there is a s ubstantial ground for difference of opinion and (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation.” T EX
. C IV
. P RAC

. & R EM
. C ODE A NN
. § 51.014(d) ( S upp.) ; s ee T EX
. R. A PP
. P . 28.3(e)(4) ; T EX
. R. C IV
. P. 1 68.
Here , the petition falters at the starting gate. This petition does not present a controlling question of law as to which there is a substantial ground for difference of opinion.
Petitioner asserts that “the controlling question of la w is wh ether fi ling a mo tion to retain
in a case that has been on a c ourt’s docket for five years with no other action having been taken3

for three years and no explanation given for the delay in prosecution, is sufficient action by a plaintiff to avoi d dis mi ssal. ” ( E mphasis added). Everything in that senten ce after “in a case
that ” is about the application of law to the facts of a given case, particularly this case. The trial
court’s order contains much the same language.
Petitione r points this Cou rt to Rule 6 .1 (b)(1) of the Texas Rule s of Judicial Administration and its directive to trial courts regarding the timely disposition of cases. Nowhere, however, does Petitioner ask this Court to create a different rule, to al ter that rule, or

even to inte rpret the l anguage of that rule. Instead, Petitioner contends that “[c] urrently, there is a lack of case law applying Tex. R. Jud. Admin. Rule 6.1(b)(1) to cases such as the one herein

. ” Once again, what fo llows “su ch as
th e one herein ” are the Petitioner’s factual contentions.
The application of Rule 6.1(b)(1) to the question of when a case must be dismissed for want of prosecution has previously been addressed by the Supreme Court of Texas. In re Co nner , 458 S.W.3d 532 (Tex. 2015) (orig. proceeding) (per c uriam)

. Petitioner cites to In re
Conner and then contends , “ O ther than this Supreme Court mandamus case, there is little to no case law currently involving the application of Rule 6 .1(b)(1), Tex. R. Jud. Admin. to cases wh ere there are such extreme delays in pr osecution like the case bar. ” Notably, however, this
Court has implemented In re Conner :

Under both Rule 165a and the trial court ’ s inherent power, a conclusiv e presumption of abandonment o f a plain ti ff ’ s suit is raised when there is a delay in prosecutin g the suit of an unreasonable duration, unless sufficiently explained. Consequently, the party opposing the dismissal has the burden to4 produce evidence at the hearing showing good cause fo r its dela y in pr osecuting the case. In re Crawford , 560 S.W.3d 3 57, 364 (Tex. App.

— Texarkana 2018 , orig. proceeding) ( citing
In re Conner , 458 S.W.3d at 534 )

. In In re Crawf

ord , this Court looked specifically to Rule 6.1 (b)(1) of the Texas Rules of
Judicial Ad ministration

. Id. at 365. (“ Turner ’ s case has been pending well in exc ess of the stated
timelines. ”)

. In sum, the p etition itself demonstrates that it is about the application of an established
rule to particular facts. Accord ingly, we find t hat the Pe titioner has not met the first requirement
for a permissive in terlocutory appeal. That is the end of the inquiry , because “[t]h e courts have no discretion to permit or accept an appeal if the two requirements are no t satisfied. ” I ndus. Specialist s, LLC v. Bl anchard Ref in . Co. LLC , 652 S.W.3d 11, 16 (Tex. 2022)

. We deny the pe tition and dismiss this attempted appeal

. 1

J eff R ambin Justice
Date Submitted : June 2 7 , 2023 Date Decided: June 2 8 , 2023

1 The potential appellees in this matter, Ellen McConnell and Sue Ellen Strizi ch, filed a motion seeking a n extension o f the deadline for filing a response to the petition for a permissive appeal. We deny that motion as moot.