Petition Denied and Memorandum Opinion filed June 11, 2019.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-19-00375-CV

                          OSCAR GARCIA, Appellant
                                        V.
                          NANCY GARCIA, Appellee

                   On Appeal from the 113th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2018-52009

                         MEMORANDUM OPINION

      Appellant Oscar Garcia petitions this court to allow a permissive interlocutory
appeal of the trial court’s April 23, 2019 order denying his motion for summary
judgment in favor of appellee Nancy Garcia. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(d). We deny the petition.

                                 I. BACKGROUND

      Nancy Garcia owns a house in Houston, Texas, which was awarded to her as
her sole property (the “property”) in her divorce from Oscar Garcia. Nancy alleged
that she took out two home-equity loans from Oscar. See Tex. Const. art. XVI,
§ 50(a)(6). Oscar disputed that the loans are home-equity loans under the Texas
Constitution. After Nancy defaulted on the loans and did not pay the matured debt,
Oscar sought to foreclose on the property. Nancy then filed for Chapter 7 bankruptcy
and was discharged of her debts a few months later.

       Nancy and Oscar subsequently entered into a Rule 11 agreement regarding
the sale of the property. Tex. R. Civ. P. 11. After Nancy failed to obtain a contract
for the sale of the property pursuant to the agreement, Oscar again sought to
foreclose on the property. Nancy requested and was granted injunctive relief
enjoining Oscar from posting for non-judicial foreclosure, performing a trustee’s
sale or other foreclosure sale, transferring, alienating, encumbering or otherwise
altering or affecting title to the Property.

       Nancy also sought a declaratory judgment that: (1) Oscar failed to cure the
constitutional defects in the loan documents; (2) the mortgage lien void is because it
does not comply with the requirements of the Texas Constitution for a home equity
loan; (3) Oscar forfeited all principal and interest on the subject note; and (4) Oscar
must reimburse Nancy for all payments previously made on the note.

       Oscar moved for summary judgment arguing, among other things, that res
judicata and judicial estoppel barred Nancy’s claims because she did not raise her
constitutional claims or otherwise challenge the validity of the mortgages when
Nancy was in Chapter 7 bankruptcy.1

       On February 26, 2019, the trial court signed the order denying Oscar’s motion


       1
         Although Oscar asserted additional grounds in his motion for summary judgment, Oscar
does not brief those grounds in his petition.

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for summary judgment. On April 23, 2019, the trial court signed the following order,
in part, allowing Oscar to appeal from the interlocutory order denying his motion for
summary judgment:

             IT IS FURTHER ORDERED that the Court permits the
      Defendant to appeal the Order denying his motion for summary
      judgment. The Court finds that the order to be appealed 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 may
      materially advance the ultimate termination of the litigation.
            IT IS THEREFORE ORDERED that the Court grants
      Defendant’s request to appeal the Order denying Defendant’ s motion
      for summary judgment dated February 26, 2019.
            IT IS FURTHER ORDERED that the Defendant’s claim for
      equitable subrogation is still pending before the Court and will be
      abated until after the final resolution of Defendant’s interlocutory
      appeal of the Order denying Defendant's motion for summary judgment
      dated February 26, 2019.
      Oscar filed his petition for permissive interlocutory appeal in this court.

                                     ANALYSIS

      Appellate courts do not have jurisdiction over interlocutory appeals in the
absence of a statutory provision permitting such an appeal. Narazi v. State, 561
S.W.3d 495, 510 (Tex. 2018); Undavia v. Avant Med. Grp., P.A., 468 S.W.3d 629,
632 (Tex. App.—Houston [14th Dist.] 2015, no pet). An order denying a summary
judgment is generally not appealable because it is an interlocutory order, not a final
judgment. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996);
Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (orig. proceeding) (per
curiam). Garcia seeks permission to pursue an appeal of the trial court’s order under
Texas Civil Practice and Remedies Code section 51.014(d), which provides as
follows:

      (d) On a party’s motion or on its own initiative, a trial court in a civil
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      action may, by written order, permit an appeal from an order that is not
      otherwise appealable 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). The trial court’s permission must
be stated in the interlocutory order to be appealed. See Tex. R. Civ. P. 168. In its
statement of permission as to an interlocutory appeal under section 51.014(d), a trial
court must (1) identify the controlling question of law as to which there is a
substantial ground for difference of opinion and (2) state why an immediate appeal
may materially advance the ultimate termination of the litigation. Tex. R. Civ. P.
168; Gulf Coast Asphalt Co. v. Lloyd, 457 S.W.3d 539, 543−44 (Tex. App.—
Houston [14th Dist.] 2015, no pet.). When the trial court has permitted the appeal
from an interlocutory order that otherwise would not be appealable, the party seeking
to appeal must petition the court of appeals for permission to appeal. Tex. R. App.
P. 28.3(a).

      Section 51.014(d) is not intended to relieve the trial court of its role in
deciding substantive issues of law properly presented to it. City of Houston v. Proler,
No. 14-16-00030-CV, 2016 WL 1047889, at *4 (Tex. App.—Houston [14th Dist.]
Mar. 15, 2016, no pet.) (mem op.) The trial court first must make a substantive
ruling on the controlling legal issue being appealed. See id.

      The trial court denied Oscar’s traditional motion for summary judgment
without explanation. The order permitting an interlocutory appeal does not set forth
a controlling issue of law to be decided. Even assuming that the trial court had
identified a controlling issue of law, the order does not include a ruling by the trial
court on a controlling issue of law.


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      Because the record does not show that the trial court ruled on a controlling
question of law, we cannot grant Oscar’s petition for permissive interlocutory
appeal. Accordingly, we deny Oscar’s petition for permissive interlocutory appeal.



                                  PER CURIAM


Panel consists of Chief Justice Frost and Justices Spain and Poissant.




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