In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-19-00168-CV

___________________________

On Appeal from the 67th District Court

Tarrant County, Texas

Trial Court No. 067-285252-16

Before Gabriel, J.; Sudderth, C.J.; and Birdwell, J.

Per Curiam Memorandum Opinion

M.B., INDIVIDUALLY AND AS NEXT FRIEND OF I.C., Appellant

V.

S.C. AND SPIRIT OF ST. LOUIS OUTLETS, GP, LLC, Appellees
2

MEMORANDUM OPINION

Appellant M.B., individually and as next friend of I.C., (Mother) filed a petition 

for permissive appeal seeking interlocutory review of the trial court’s order granting 

appellee S.C.’s (Father) plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. 

§ 51.014(d), (f); Tex. R. App. P. 28.3(e)(4). Because we conclude that the order does 

not involve a controlling question of law, we deny the petition.

I. BACKGROUND

Mother and Father were divorced in 2013. The court that rendered the decree 

of divorce was the 324th District Court (Family Court). Mother alleges that before 

the divorce was finalized, the community estate acquired interests in four real estate 

development partnerships: Woodmont Duncanville, LP; Woodmont Southlake, LP; 

an entity in Bismark, North Dakota; and a Walgreens development in East Dallas. 

Mother asserts that the Family Court rendered its final decree of divorce without 

dividing these community property interests. She also alleges that while the 

community estate had an interest in Woodmont Duncanville, it made more than

$1 million in distributions to its partners but that she had not received any 

distribution. 

Mother filed suit against Father in the 67th District Court (District Court). She 

brought several claims, three of which are relevant here. One, she alleged a claim for 

money had and received, asserting that Father had received and retained distributions 

from Woodmont Duncanville, that those distributions were community property, and 
3

that she therefore was entitled to at least half of the distributions Father had received. 

Two, she sought a declaration that she owned at least a 50% interest in the four realestate development partnerships. And three, she brought a claim for partition under 

chapter 23 of the property code, asking the trial court to partition the community 

interests in the partnerships and award her the shares to which she was entitled. 

In response, Father filed a plea to the jurisdiction alleging that the District 

Court lacked jurisdiction over Mother’s partition claim because by it she sought a 

division of allegedly undivided community property, and under section 9.203 of the 

family code, exclusive jurisdiction over that claim was vested in the Family Court, 

which rendered the divorce decree. Father also requested dismissal of “the additional 

claims for damages of [Mother] relative to the [allegedly undivided community 

property], on the basis of a lack of ripeness and on the basis that such claims are 

intertwined with and contingent on” the Family Court’s resolution of Mother’s 

partition claim. The District Court granted the plea and dismissed Mother’s partition, 

declaratory-judgment, and money-had-and-received claims without prejudice. In its 

order, the District Court stated that in granting the plea, it had found the following to 

be a controlling question of law as to which there was a substantial ground for 

difference of opinion:

Does the Court which rendered a decree of divorce have exclusive 

jurisdiction under Texas Family Code Secs. 9.201–.203 to make a postdivorce division of community property when the Court which issued 

the decree had jurisdiction of the parties and the alleged property at the 

time of the decree? Or, does a district court hold jurisdiction over a 
4

cause of action brought under Texas Property Code § 23.001 et seq. to 

divide community property that was not divided in the divorce?

Mother now seeks review of the District Court’s interlocutory order granting 

Father’s plea to the jurisdiction by permissive appeal. See Tex. Civ. Prac. & Rem. 

Code Ann. § 51.014(d), (f); Tex. R. App. P. 28.3(a).

II. APPLICABLE LAW

We generally have jurisdiction over final judgments only. See Sabre Travel Int’l, 

Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 730 (Tex. 2019). A narrow exception 

to this general rule is that a party may appeal an interlocutory order when authorized 

to do so by statute. Eagle Gun Range, Inc. v. Bancalari, 495 S.W.3d 887, 889 (Tex. 

App.—Fort Worth 2016, no pet.). Sections 51.014(d) and (f) of the Texas Civil 

Practice and Remedies Code provide such an exception. Under those provisions, we 

may allow a party to appeal an interlocutory order that otherwise would not be 

immediately appealable where the party demonstrates that (1) the trial court’s order 

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 

§ 51.014(d), (f); see also Tex. R. App. P. 28.3(a), (e)(4). 

Texas courts have generally regarded a controlling question of law to be “one 

that deeply affects the ongoing process of litigation.” Workers’ Comp. Sols. v. Tex. 

Health, L.L.C., No. 05-15-01504-CV, 2016 WL 945571, at *1 (Tex. App.—Dallas Mar. 
5

14, 2016, no pet.) (mem. op.); accord Austin Commercial, L.P. v. Tex. Tech Univ., No. 07-

15-00296-CV, 2015 WL 4776521, at *1 (Tex. App.—Amarillo Aug. 11, 2015, no pet.) 

(order); Undavia v. Avant Med. Grp., 468 S.W.3d 629, 632 (Tex. App.—Houston [14th 

Dist.] 2015, no pet.). Generally, if the viability of a claim rests upon the court’s 

determination of a question of law and the resolution of the question will considerably 

shorten the time, effort, and expense of fully litigating the case, the question is 

controlling. See Workers’ Comp. Sols., 2016 WL 945571, at *1; Austin Commercial,

2015 WL 4776521, at *1; Undavia, 468 S.W.3d at 632.

III. DISCUSSION

We begin by observing that Mother’s entire explanation for how the questions 

the District Court certified are controlling questions of law is that “[b]ecause the 

questions the trial court certified are jurisdictional” they “represent controlling

questions of law.” We certainly agree that whether a court has subject-matter

jurisdiction is a question of law. See Tex. Dep’t of Parks & Wildlife v. Miranda, 

133 S.W.3d 217, 226 (Tex. 2004). But Mother does not explain how the questions the 

trial court certified are controlling here. See Tex. Civ. Prac. & Rem. Code § 51.014(d), 

(f). That is, she does not explain how the viability of any of her claims that are 

affected by the District Court’s order rests on its determination that the Family Court 

has exclusive jurisdiction over them. See Workers’ Comp. Sols., 2016 WL 945571, at *1; 

Austin Commercial, 2015 WL 4776521, at *1; Undavia, 468 S.W.3d at 632. And given 

the facts here, we cannot see how it would. The District Court’s ruling only 
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determines where Mother’s claims for partition, declaratory judgment, or money had 

and received are tried; it has no impact on their viability.

The District Court’s resolution of the certified questions merely means that 

Mother must maintain the affected claims in the Family Court instead of the District 

Court. And Mother does not argue that the Family Court lacks jurisdiction over those

claims. Accordingly, because Mother has not shown that the viability of any of the 

claims the District Court dismissed rests on its determination of the legal questions it 

certified for permissive review, those questions are not controlling questions of law. 

See Workers’ Comp. Sols., 2016 WL 945571, at *1; Austin Commercial, 2015 WL 4776521, 

at *1; Undavia, 468 S.W.3d at 632. Given the limited nature of interlocutory appeals 

and the requirement that we strictly construe statutes authorizing such appeals, we 

conclude that Mother’s attempted permissive appeal does not satisfy the requirements

of section 51.014(d) or rule 28.3(e)(4). See State Fair of Tex. v. Iron Mountain Info. Mgmt.,

Inc. 299 S.W.3d 261, 264 (Tex. App—Dallas 2009, no pet).1

Because the District Court’s order granting Father’s plea to the jurisdiction 

does not involve a controlling question of law, we cannot review that order under our

permissive-appeal jurisdiction.

2

 See Tex. Civ. Prac. & Rem. Code § 51.014(d), (f); see 

 

1Although it appears that the parties may have initially agreed to this permissive 

appeal, we may not disregard the permissive-appeal requirements to enlarge our

jurisdiction. See State Fair of Tex., 299 S.W.3d at 264.

2Mother has not requested that we treat her petition for permissive appeal as 

presenting an alternative request for mandamus relief. We decline to do so sua 
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also Tex. R. App. P. 28.3(e)(4). Accordingly, we deny Mother’s petition for permissive 

appeal.

Per Curiam

Delivered: June 27, 2019

 

sponte, and we express no opinion as to whether such relief would be appropriate had 

it been requested.