NUMBER 13-13-00463-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

THE CORPORATION OF THE PRESIDENT

OF THE CHURCH OF JESUS CHRIST OF 

LATTER-DAY SAINTS, THE CHURCH OF

JESUS CHRIST OF LATTER-DAY SAINTS, 

AND THE CORPORATION OF THE 

PRESIDING BISHOP OF THE CHURCH OF

JESUS CHRIST OF LATTER-DAY SAINTS, Appellants,

v.

JOHN DOE, Appellee.

 

On petition for permissive appeal from the

103rd District Court of Cameron County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion Per Curiam
2

Appellants, the Corporation of the President of the Church of Jesus Christ of 

Latter-day Saints, the Church of Jesus Christ of Latter-day Saints, and the Corporation of 

the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints (collectively, the 

Church), have filed a petition seeking permission to appeal an interlocutory order. See

TEX. R. APP. P. 28.3(a) (requiring a party seeking to pursue a permissive appeal of an 

interlocutory order to petition the court of appeals for permission to appeal). We deny 

permission to appeal.

I. BACKGROUND

In his original petition, Doe asserted that Eustacio Munioz sexually assaulted him 

on numerous occasions from 2002, when he was fourteen years old, through 2009, when 

he was twenty-one. Doe alleged that Munioz committed an intentional tort and that the 

Church was vicariously liability for the acts of Munioz, who Doe claimed was the Church’s 

employee or agent at that time. Doe alleged that the Church was directly liable for, 

among other things, negligently hiring, training, retaining, and supervising Munioz when 

they knew or should have known of his dangerous propensities. Doe also claimed in his 

first amended petition that Munioz coerced and threatened him with reports of criminal 

prosecution if he reported the assaults or otherwise made a claim.

The Church filed a traditional motion for summary judgment.

1

 In its motion, the 

Church contended that Doe’s claims were time-barred by the applicable statute of 

limitations. Doe filed his response, asserting that there were fact issues and that the 

continuing tort doctrine and duress tolled limitations. After the trial court heard the 

 

1

The Church, not Munioz, filed the motion for summary judgment, and Munioz is not a party to the 

Church’s petition for permissive appeal.
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motion and received additional briefing regarding the tolling doctrines, the trial court 

generally denied the Church’s motion for summary judgment.

Upon the Church’s request that the trial court allow it to file a petition for permissive 

appeal, the trial court signed an amended order. The order again denied the Church’s 

motion without providing a basis for the trial court’s ruling. It set out the statutory 

language of section 51.014(d) and rule 168 and noted the following controlling question of 

law: “Are the Church Defendants entitled to summary judgment on their statute of 

limitations defense?” The Church timely filed its petition for permissive appeal in this 

Court. See TEX. R. APP. P. 28.3.

In its petition now before this Court, the Church contends that the following 

controlling questions of law are involved in its request for permission to appeal: (1) 

whether Doe’s claims are barred by the applicable statute of limitations; and (2) whether 

the tolling theories asserted are legally applicable. In response to the Church’s petition, 

Doe contends that the trial court correctly denied the Church’s motion for summary 

judgment because there are fact issues that prevented the trial court from granting the 

motion.

II. THE LAW

Section 51.014(d), (e), and (f) of the Texas Civil Practice and Remedies Code, 

Texas Rule of Civil Procedure 168, and Texas Rule of Appellate Procedure 28.3 

delineate the procedure for filing a permissive appeal. Section 51.014(d) provides that a 

trial court may permit an appeal from an interlocutory order that would not otherwise be 

appealable “if the order involves a controlling question of law as to which there is a 

substantial ground for difference of opinion” and “an immediate appeal from the order 
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may materially advance the ultimate termination of the litigation.” TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014(d) (West Supp. 2011). We strictly construe section 51.014, which 

provides for an interlocutory appeal as an exception to the general rule that only final 

judgments are appealable. See City of Houston v. Estate of Jones, 388 S.W.3d 663, 666 

(Tex. 2012) (per curiam); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex.

2007); see also King-A Corp. v. Wehling, No. 13-13-00100-CV, 2013 WL 1092209, at *3 

(Tex. App.—Corpus Christi Mar. 14, 2013, no pet.) (mem. op.) (per curiam).

The petition for permissive appeal must contain a clear and concise argument 

regarding why the order to be appealed meets the requirements of section 51.014. See 

TEX. R. APP. P. 28.3; see also TEX. RULE CIV. P. 168. And the requesting party must 

establish that: (1) the order subject to appeal involves “a controlling question of law as to 

which there is a substantial ground for difference of opinion”; and (2) an immediate appeal 

“may materially advance the ultimate termination of the litigation.” TEX. R. APP. P. 28.3; 

see TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d); TEX. R. CIV. P. 168; see also Gulley v. 

State Farm Lloyds, 350 S.W.3d 204, 207–08 (Tex. App.—San Antonio 2011, no pet.)

(refusing a request for permission to appeal under the former version of section 51.014(d) 

because the trial court declined to make a substantive ruling on the controlling legal issue 

being appealed).2

 

2 When the Legislature rewrote section 51.014(d), it eliminated the prior requirement that the 

parties agree to the appeal and reinstated a requirement that the court of appeals also permit the appeal. 

See Act of May 25, 2011, 82nd Leg., R.S., ch. 203, §§ 3.01, 6.01 [HB 274]. Because the relevant 

requirements for appeals under this section did not change, we find Gulley v. State Farm Lloyds and other 

cases discussing the former statute to be instructive. See 350 S.W.3d 204, 207–08 (Tex. App.—San 

Antonio 2011, no pet.).

In Gulley, the San Antonio Court explained that “[t]he legislature's institution of the procedure 

authorizing a trial court to certify an immediate appeal of an interlocutory order was premised on the trial 

court having first made a substantive ruling on the controlling legal issue being appealed.” Id It also cited
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III. DISCUSSION

Based on our review of the petition, the response, and the reply, we conclude that 

the Church has failed to establish that this case presents a controlling question of law. 

See TEX. R. APP. P. 28.3. Although the trial court’s order attempts to identify the 

controlling question as whether the Church is “entitled to summary judgment on [its] 

statute of limitations defense,” we do not know the basis for the trial court’s denial of the 

Church’s motion for summary judgment. The trial court could have denied the Church’s 

motion on any of the following: (1) the applicable statute of limitations did not bar Doe’s 

claims; (2) duress tolled the statute of limitations; (3) the continuing-tort doctrine tolled the 

statute of limitations; or (4) material fact issues prevented the court from granting the 

motion. 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. See Gulley, 

350 S.W.3d at 207–08; see also Colonial County Mut. Ins. Co. v. Amaya, 372 S.W.3d 

308, 310–11 (Tex. App.—Dallas 2012, no pet.) (supporting the proposition that the trial 

 

the following cases to “illustrate the intended use of [predecessor] section 51.014(d) in situations where the 

trial court has made a substantive ruling on a pivotal issue of law”: Enterprise Prod. Partners, L.P. v. 

Mitchell, 340 S.W.3d 476, 479 (Tex. App.—Houston [1st Dist.] 2011, pet. abated and cause subsequently 

dismissed) (op. on reh’g) (reviewing a trial court’s order that ruled Texas, not Mississippi, law applied to the 

plaintiff’s claims and that certified the order for an interlocutory appeal on this choice of law question); 

Comcast Cable of Plano, Inc. v. City of Plano, 315 S.W.3d 673, 675 (Tex. App.—Dallas 2010, no pet.) 

(determining whether the city's claim for breach of a franchise agreement was preempted by federal law as 

the controlling question of law, after the trial court denied Comcast's summary judgment motion based on 

preemption); Kimbrell v. Molinet, 288 S.W.3d 464, 465–66 (Tex. App.—San Antonio 2008), aff'd, 356 

S.W.3d 407 (Tex. 2011) (addressing the denial of a summary judgment motion which asserted that a 

physician-defendant's joinder in a medical malpractice case was barred by limitations and determining the 

controlling question of law to be which statute of limitations applied); Northside Indep. Sch. Dist. v. Dubose, 

No. 04–06–00517–CV, 2007 WL 1481661, at *1 (Tex. App.—San Antonio May 23, 2007, no pet.) (mem. 

op.) (holding by trial court on cross-motions for summary judgment that the school district had waived its 

right to contest compensability of the employee's workers' compensation claim and identifying the issue of 

waiver as the controlling question in an agreed interlocutory appeal); Stolte v. County of Guadalupe, No. 

04–04–00083–CV, 2004 WL 2597443, at *1 (Tex. App.—San Antonio 2004, no pet.) (reviewing an 

interlocutory appeal where the controlling question was whether the county had inherent authority to reject 

a plat application in the interest of public health). Gulley, 350 S.W.3d at 207–08.
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court must make a substantive ruling on the controlling question of law that is the subject 

of the interlocutory appeal before the court of appeals has jurisdiction over the appeal);

State Fair of Tex. v. Iron Mountain Information Management, Inc., 299 S.W.3d 261, 

263–64 (Tex. App.—Dallas, no pet. 2009) (same); Diamond Prods. Int'l v. Handsel, 142 

S.W.3d 491, 494 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (“The statute does not 

contemplate permissive appeals of summary judgments where the facts are in dispute.”).

We have thoroughly reviewed the petition, the response, the reply, and supporting 

documents submitted both by the Church and Doe. Given the limited nature of 

interlocutory appeals and the requirement that we construe statutes authorizing such 

appeals strictly, we conclude that the Church has not satisfied the statutory requirements 

of section 51.014(d). See City of Houston, 388 S.W.3d at 666.

IV. CONCLUSION

Accordingly, we deny the Church’s petition for permissive appeal.

PER CURIAM

Delivered and filed the 10th

day of October, 2013.