## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-16-00135-CV

EAGLE GUN RANGE, INC., DAVID L. PRINCE, JUSTIN POLLARD, MARK SLIGER, JEFFREY D. SAUPP, AND BILL SCOTT APPELLANTS

V. QUINN BANCALARI, INDIVIDUALLY AND IN HIS CAPACITY AS ADMINISTRATOR OF THE ESTATE OF ALESSANDRO JON BANCALARI, DECEASED, AND FOR AND ON BEHALF OF ALL THOSE ENTITLED TO RECOVER FOR THE DEATH OF ALESSANDRO JON BANCALARI, UNDER THE TEXAS WRONGFUL DEATH AND SURVIVAL STATUTES AND CAVI BANCALARI AND NICOLE BANCALARI APPELLEES

---------- FROM THE 442ND DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 15-07779-442

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### OPINION

---------- Eagle Gun Range, Inc., David L. Prince, Justin Pollard, Mark Sliger, Jeffrey D. Saupp, and Bill Scott, filed a “Petition for Orde r Permitting Interlocutory Appeal.” We dismiss their peti tion for want of jurisdiction. Background According to the petition, Allessandr o Jon Bancalari (the deceased) went to Eagle Gun Range, Inc., rented a gun, purchased so me ammunition, and committed suicide by shooting himself. Quin Bancalari (indi vidually and as administrator of the estate of Allessand ro Jon Bancalari, deceased, and for and on behalf of all those entitled to reco ver for the death of Alessandro Jon Bancalari under the Texas Wrongful Death and Su rvival Statutes), Cavi Bancalari, and Nicole Bancalari (collectivel y “the Bancalaris”) br ought suit against Eagle Gun Range, Inc., David L. Prin ce (the owner), Justin Pollard (an employee), Mark Sliger (an employee), Jeffrey D. Saupp (an employee), and Bill Scott (an employee) (collectively “the E agle Gun Range defendants”). The Eagle Gun Range defendants resp onded by filing a “Rule 91a Motion to Dismiss Plaintiffs’ First Amended Petition.” Rule 91a of the Texas Rules of Civil Procedure is a recent rule; it became e ffective in 2013. Tex. R. Civ. P. 91a (“Dismissal of Baseless Causes of Action”). The trial court denied the Eagle Gun Range defendants’ rule 91a motion without specifying any basis for its ru ling. The order thereafter provides,3 It is further ORDERED that [the Eagle Gun Range defendants], if desired, shall have the permission of the Court to pursue an interlocutory ap peal on the controlling is sue(s) of law that were the subject of [their] Motion to Dismiss to which there is a substantial ground for difference of opinion, including the following: 1. Whether [the Bancalaris’] cl aims, as a matter of law, are preempted by federal statute, the Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901, et seq. ? 2. Whether, as a matt er of law, [the Banc alaris’] have alleged facts that, if true, state a cause of action for individual liability against the employee-Defendant s Prince, Pollard, Sliger, Saup[p,] and Scott? 3. Whether, as a matter of law, [the Bancalaris] have alleged facts that, if true, state a cause of action for premises liability? The Court finds that an interlocut ory appeal will mate rially advance the ultimate termination of the lit igation by narrowing the issues, claims[,] and causes of action in dispute and subject to trial. The additional language is in tended to fit within the framework of a permissive interlocutory appeal. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d)(1), (2) (West Supp. 2015) (authorizing per missive interlocutory appeal). Jurisdiction We are required to review sua sponte jurisdictional issues. Bank of N.Y. Mellon v. Guzman , 390 S.W.3d 593, 596 (Tex. Ap p.—Dallas 2012, no pet.). Appellate courts have juri sdiction over final judgme nts only, absent specific statutory authorization of an interlocutory appeal. Id. Courts strictly apply statutes granting interlocut ory appeals because they ar e a narrow exception to4 the general rule that interlocutory or ders are not immediately appealable. CMH Homes v. Perez , 340 S.W.3d 444, 447 (Tex. 2011). Section 51.014(d) of the Texas Civil Pr actice and Remedies Code provides such an exception to the general rule; it provides that a trial court may permit an appeal from an otherwise non-appealable in terlocutory order if: “(1) the order to be appealed involves a controlling questio n of law as to which there is a substantial ground for difference of opini on; and (2) an immediate appeal from the order may materially adva nce the ultimate termination of the litigation.” Tex. Civ. Prac. & Rem. Code An n. § 51.014(d)(1), (2). To invoke this court’s permissive-appeal jurisdiction, the trial court must make a substantive ruling on the controlling legal issue being appealed so that the legal issue presented to this court is the same lega l issue determined by the trial court. See City of San Antonio v. Tommy Harral Constr., Inc. , 486 S.W.3d 77, 84 (Tex. App.—San Antonio 2016, no pet.). It does not ma tter that the trial court’s order attempts to i dentify the controlling issue if the order do es not show that the trial court made a substantive ruli ng on that controlling question of law. See Great Am. E & S Ins. Co. v. Lapolla Indus., Inc. , No. 01-14-00372-CV, 2014 WL 2895770, at *1–3 (Tex . App.—Houston [1st Dist.] June 24, 2014, no pet.) (mem. op.). The interlocutory order can not involve a controlling question of law until the trial court itself has made a su bstantive ruling on the controlling legal issue in the order. See Tommy Harral Constr., Inc. , 486 S.W.3d at 80.5 The trial court’s order here does not contain any substantive ruling on any of the legal issues it ha s asked us to decide. See Bank of N.Y. Mellon , 390 S.W.3d at 596. It simply denies the Eagle Gun Range defe ndants’ rule 91a motion to dismiss without further comm ent. Without any indication in the appellate record of the trial court’s subst antive ruling on the sp ecific legal issues presented for our determination, this permis sive appeal does no t meet the strict jurisdictional requirements of section 51.014(d). See Tommy Harral Constr., Inc. , 486 S.W.3d at 84. As presented, the tr ial court has done nothing more than attempt to certify these legal questions for our review. Section 51.014(d) does not contemplate using an interlocutory appeal as a mechanism to present certified questions. See Bank of N.Y. Mellon , 390 S.W.3d at 597 (quoting Gulley v. State Farm Lloyds , 350 S.W.3d 204, 207 (Tex. App.—San Antonio 2011, no pet.)). Without any indication in the order or otherwise in the appellate record of the trial court’s substantive ruling on the specific legal issues presented for our determination, this permissiv e appeal does not meet th e strict jurisdictional requirements of section 51.014(d). See Tommy Harral Constr., Inc. , 486 S.W.3d at 84. Accordingly, we conclude that any opinion issued by this Court would necessarily be advisory because there is nothing in the record showing that the trial court ruled on the specif ic legal issues that are presented to us to decide. See id. ; Bank of N.Y. Mellon , 390 S.W.3d at 597. We dismiss the petition for want of jurisdiction.6 /s/ Anne Gardner ANNE GARDNER JUSTICE PANEL: GARDNER, GABR IEL, and SUDDERTH, JJ. DELIVERED: June 22, 2016