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

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FROM THE 442ND DISTRICT COURT OF DENTON COUNTY 

TRIAL COURT NO. 15-07779-442 

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OPINION 

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Eagle Gun Range, Inc., David L. Prince, Justin Pollard, Mark Sliger, Jeffrey 

D. Saupp, and Bill Scott, filed a “Petition for Order Permitting Interlocutory 

Appeal.” We dismiss their petition for want of jurisdiction. 

Background 

According to the petition, Allessandro Jon Bancalari (the deceased) went 

to Eagle Gun Range, Inc., rented a gun, purchased some ammunition, and 

committed suicide by shooting himself. Quin Bancalari (individually and as 

administrator of the estate of Allessandro 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), Cavi 

Bancalari, and Nicole Bancalari (collectively “the Bancalaris”) brought suit against 

Eagle Gun Range, Inc., David L. Prince (the owner), Justin Pollard (an 

employee), Mark Sliger (an employee), Jeffrey D. Saupp (an employee), and Bill 

Scott (an employee) (collectively “the Eagle Gun Range defendants”). The Eagle 

Gun Range defendants responded 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 effective 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 ruling. The order thereafter provides, 
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 It is further ORDERED that [the Eagle Gun Range 

defendants], if desired, shall have the permission of the Court to 

pursue an interlocutory appeal on the controlling issue(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’] claims, 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 matter of law, [the Bancalaris’] have alleged 

facts that, if true, state a cause of action for individual liability 

against the employee-Defendants 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 interlocutory appeal will materially advance 

the ultimate termination of the litigation by narrowing the issues, 

claims[,] and causes of action in dispute and subject to trial. 

The additional language is intended 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 permissive 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. App.—Dallas 2012, no pet.). 

Appellate courts have jurisdiction over final judgments only, absent specific 

statutory authorization of an interlocutory appeal. Id. Courts strictly apply 

statutes granting interlocutory appeals because they are a narrow exception to 
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the general rule that interlocutory orders are not immediately appealable. CMH 

Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011). 

Section 51.014(d) of the Texas Civil Practice 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 interlocutory order 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)(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 legal 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 matter that the trial 

court’s order attempts to identify the controlling issue if the order does not show 

that the trial court made a substantive ruling 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 cannot involve a controlling question of law 

until the trial court itself has made a substantive ruling on the controlling legal 

issue in the order. See Tommy Harral Constr., Inc., 486 S.W.3d at 80. 
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The trial court’s order here does not contain any substantive ruling on any 

of the legal issues it has asked us to decide. See Bank of N.Y. Mellon, 390 

S.W.3d at 596. It simply denies the Eagle Gun Range defendants’ rule 91a 

motion to dismiss without further comment. Without any indication in the 

appellate record of the trial court’s substantive ruling on the specific legal issues 

presented for our determination, this permissive appeal does not meet the strict 

jurisdictional requirements of section 51.014(d). See Tommy Harral Constr., Inc., 

486 S.W.3d at 84. As presented, the trial 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 permissive appeal does not meet the 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 specific 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. 
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/s/ Anne Gardner 

ANNE GARDNER 

JUSTICE 

PANEL: GARDNER, GABRIEL, and SUDDERTH, JJ. 

DELIVERED: June 22, 2016