Opinion issued November 6, 2014.




                                   In The

                           C ourt of Appeals
                                   For The

                       First District of Texas
                          ————————————
                            NO. 01-14-00193-CV
                          ———————————
             FERTITTA HOSPITALITY, LLC, APPELLANT
                              V.
                DANIEL COLE O’BALLE, APPELLEE


                  On Appeal from the 11th District Court
                          Harris County, Texas
                    Trial Court Case No. 2010-64803


                       MEMORANDUM OPINION
      Daniel Cole O’Balle and eleven others sue Fertitta Hospitality, LLC for

injuries sustained during a wedding reception melee at the San Luis Hotel in

Galveston.   Relying on former section 51.014(d) of the Civil Practice and

Remedies Code and Texas Rule of Appellate Procedure 28.2, the parties appeal
from the trial court’s interlocutory summary judgment order. 1 At our request, the

parties provided supplemental jurisdictional briefing. We conclude that we lack

appellate jurisdiction over the interlocutory order; we therefore dismiss the appeal.

                                    Background

      The plaintiffs sue Fertitta for ordinary negligence; negligence per se;

negligent supervision, training, and hiring; premises liability; and gross negligence.

According to the plaintiffs’ pleadings, the incidents giving rise to their injuries

were sparked by a dispute between O’Balle and Christopher Sanderson, an off-

duty City of Galveston police officer, who was working as a security guard for

Fertitta. The plaintiffs’ claims involve Sanderson’s conduct, as well as that of a

non-officer Fertitta-employed security guard and of additional members of the

Galveston police force eventually called to the scene.         The officers arrested

O’Balle and charged him with resisting arrest; O’Balle ultimately pleaded no

contest to public intoxication.

      The plaintiffs’ claims emerge from a single evening, but not a single

incident: the alleged wrongful conduct spans several locations and involves

different people and different officers at different times, allegedly in different


1
      See Act of May 27, 2005, 79th Leg. R.S., ch. 1051, § 1, 2005 Gen. Laws 3512,
      3513 (applying to lawsuit filed on or after September 1, 2005), amended by Act of
      May 25, 2011, 82nd Leg., ch. 203, § 3.01, 2011 Tex. Gen. Laws 758, 759 (current
      version at TEX. CIV. PRAC. & REM. CODE ANN § 51.014 (West 2014); TEX. R.
      APP . P. 28.2.

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roles. The plaintiffs, the security guards, and the responding officers report vastly

different versions of what transpired.

      Fertitta moved for summary judgment against O’Balle and ten of the eleven

plaintiff wedding guests, contending that Fertitta is not vicariously liable for the

conduct of any of the Galveston police officers, including Sanderson. Because

Sanderson had called the police for assistance before he allegedly injured O’Balle,

Fertitta argues that Sanderson had assumed the status of an active, on-duty officer.

Fertitta similarly disclaims vicarious liability for the injuries alleged by ten of the

plaintiffs because they resulted from contact with on-duty Galveston police

officers who responded to Sanderson’s call. Fertitta also challenges the proximate

cause element of the plaintiffs’ claims. The trial court denied summary judgment

as to O’Balle’s claims, but granted partial summary judgment in favor of Ferttita

on the other ten guests’ claims.

      The parties sought permission to file an interlocutory appeal of the

interlocutory summary judgment order under the provision of the Civil Practice

and Remedies Code applicable to cases filed before September 1, 2011. TEX. CIV.

PRAC. & REM. CODE ANN. § 51.014(d) (West 2014); see also TEX. R. APP . P. 28.3

cmt. (explaining that 2011 amendments, which eliminate requirement that parties

agree to appeal and reinstated requirement that court of appeals also permit appeal,




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apply only to cases filed on or after September 1, 2011). The trial court’s order

granting permission to appeal declares that:

      the Court has made the following substantive rulings on controlling
      questions of law as the basis for its order for this Order on the Motion
      for Summary Judgment:

      (1) There is a genuine issue of material fact as to the status of
      Christopher Sanderson as an on-duty police officer at the time that he
      allegedy injured Plantiff Daniel Cole O’Balle.

      (2) Defendant Fertitta Hospitality LLC owed no duty to Plaintiffs
      Brandon A. Backe, Shannon Belluomini, Chris Cornwell, Matthew L.
      Goodson, Michael R. McMillan, Gilbert E. O’Balle, Jr., Justin
      Packard, Calvin Silva, Aaron Trevino, and Charles Young; and owed
      no duty to Plaintiff Daniel Cole O’Balle if Christopher Sanderson was
      acting as an on-duty police officer at the time that he allegedly injured
      Plaintiff Daniel Cole O’Balle; because:

      • Plaintiffs must meet the foreseeability test set forth by the Court in
        Timberwalk Apartments v. Cain, 972 S.W.3d 749 (Tex. 1998), and
        they failed to do so.
      • A premises owner owes no duty to patrons on the premises to
        protect against the tortious or illegal acts of police officers called
        to the premises;
      • Injuries to patrons on the premises caused by police officers called
        to the premises are not foreseeable to the premises owner as an
        element of duty.
      • Plaintiffs argue that they are not required to meet the foreseeability
        test set forth by the Court in Timberwalk Apartments v. Cain, 972
        S. W.3d 749 (Tex. 1998) because they plead in the alternative that
        this case involves negligent activity. Even if Plaintiffs are correct,
        summary judgment is proper because a premises owner owes no
        duty to patrons on the premises to protect against the tortious or
        illegal acts of police officers called to the premises and because
        injuries to patrons on the premises caused by police officers called
        to the premises are not foreseeable to the premises owner as an
        element of duty.


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      (3) Any breach of a duty by Defendant Fertitta Hospitality LLC was
         not the proximate cause of any damages to Plaintiffs Brandon A.
         Backe, Shannon Belluomini, Chris Cornwell, Matthew L.
         Goodson, Michael R. McMillan, Gilbert E. O’Balle, Jr., Justin
         Packard, Calvin Silva, Aaron Trevino, and Charles Young; and to
         Plaintiff Daniel Cole O’Balle if Christopher Sanderson was acting
         as an on-duty police officer at the time that he allegedly injured
         Plaintiff Daniel Cole O’Balle, because such damages were not
         foreseeable to Defendant Fertitta Hospitality LLC.
The ruling above does not finally determine the parties’ disputes, which continue

both in state and federal court. The parties seek interim review of it.

                               Appellate Jurisdiction

      To seek appellate review of this interlocutory order—one that would not

otherwise be appealable—the parties must establish that: (1) the 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 ANN.

§ 51.014(d); TEX. R. APP . P. 28.3(e)(4); TEX. R. CIV. P. 168.

      Fertitta relies on Gulley v. State Farm Lloyds, 350 S.W.3d 204 (Tex. App.—

San Antonio 2011, no pet), to contend that the parties’ agreement that the trial

court’s order meets these two requirements, standing alone, establishes jurisdiction

under the applicable version of the statute. In Gulley, an insurer and a homeowner

sought the trial court’s resolution, through competing summary judgment motions,

of whether the homeowner’s insurance policy covered a below-slab plumbing leak.



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Id. at 205. The resolution of the case depended on which of two different policy

provisions—the dwelling foundation             endorsement or    the water damage

endorsement—applied. Id. at 206. The trial court did not rule on the issue, but

agreed with the parties that the question controlled the resolution of the dispute.

Id. at 207.

       The San Antonio Court of Appeals accepted jurisdiction over the appeal, but

did not answer the question presented, observing that it had not been answered in

the trial court. Id. at 208. It explained that section 51.014(d) was not a mechanism

for presenting a certified question to a court of appeals, and thus held that the trial

court erred in declining to rule. Id. at 207–08.

       The mandamus-like relief provided in Gulley does not inform our

application of section 51.014(d) to this case.        We disagree that the parties’

agreement alone confers appellate jurisdiction; rather, our jurisdiction derives

solely from Texas’s Constitution and statutes. See Heckman v. Williamson Cnty.,

369 S.W.3d 137, 146 (Tex. 2012). We independently determine whether we have

jurisdiction over an appeal, even if no party contests jurisdiction. M.O. Dental

Lab. v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam). We strictly apply

statutes permitting interlocutory appeals because they comprise a narrow exception

to the general rule that interlocutory orders are not immediately appealable. CMH

Homes v. Perez. 340 S.W.3d 444, 447–48 (Tex. 2011). And section 51.014(d)



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requires more than the parties’ agreement: in addition, we must find that a

controlling question of law exists and an appellate ruling on it will materially

advance the litigation. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d). The record

does not support either conclusion.

      Generally, an appeal may be taken from an order denying a summary

judgment only if a statute specifically authorizes one; otherwise a denial is nothing

more than a determination that a material fact issue exists. See Lehmann v. Har-

Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). The court’s ruling in this case recites

that “fact issues remain” as to whether Sanderson was acting in the role of an on-

duty officer when he allegedly injured Cole.

      An off-duty designation is not dispositive of whether an officer was acting

outside the scope of his authority, because a peace officer who discharges duties

generally assigned to him acts in his official capacity. Dillard’s, Inc. v. Newman,

299 S.W.3d 144, 148 (Tex. App.—Amarillo 2008, pet. denied) (citing City of

Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994)). A private employer

may be liable when an off-duty officer is “engaged in protecting the employer’s

property, ejecting trespassers, or enforcing rules and regulations promulgated by

the employer.” Mansfield v. C.F. Bent Tree Apt. Ltd. P’ship, 37 S.W.3d 145, 150

(Tex. App.—Austin 2001, no pet.).       In contrast, if the officer acts to enforce

general laws, the private employer incurs no vicarious responsibility. Id. For



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example, the existence of reasonable suspicion to detain a person for investigation

may trigger an officer’s public duty. Morgan v. City of Alvin, 175 S.W.3d 408,

416 (Tex. App.—Houston [1st Dist.] 2004, no pet.). The determination of whether

an off-duty officer is acting within the scope of his private employment or his

public authority generally “presents embedded fact issues that are best left to the

trier of fact.” Dillard’s, 299 S.W.3d at 148.

      In Mansfield, the Austin Court of Appeals decided that the officer was

performing his public duty, because the officer identified himself and displayed his

badge to the plaintiff before arresting him. See 37 S.W.3d at 150. Similarly, in

Ogg v. Dillard’s, Inc., the Dallas Court of Appeals affirmed summary judgment

dismissing the plaintiffs’ claims because an off-duty officer working as a security

guard arrested the plaintiff in the course of investigating him for possible credit

card abuse.     239 S.W.3d 409, 419 (Tex. App.—Dallas 2007, pet. denied).

Regardless of the reason for the initial detention, our sister court held, the officer

acted in his public capacity when he arrested the plaintiff. Id. at 414–15, 419.

      In both Mansfield and Ogg, the alleged wrongful conduct and injuries

occurred under circumstances alerting the plaintiff that he was under arrest. In

contrast, this case presents a continuum of allegedly wrongful conduct and disputes

as to whether Fertitta retained control over the off-duty officer and the premises.

In ruling that fact issues remain, the trial court’s order does not purport to



                                          8
determine a controlling legal issue. Neither party identifies any statutory or Texas

Supreme Court authority that supports or rejects a rule of decision that is so

outcome-determinative as to materially advance the litigation; the trial court itself

determined that it was the existence of questions of fact that precluded summary

judgment. The parties relate the facts of this case to existing case law and argue

the application of that authority to the facts at hand. But they do not agree on the

authority that controls or about the facts. In this sense, the complained-of order is

not different than any other denial of a summary-judgment motion.

      We decline to confer appellate jurisdiction over the appeal because we

discern no line for granting it other than that the parties have agreed to it. “The

legislature’s institution of this procedure authorizing a trial court to permit an

immediate appeal of an interlocutory order is . . . premised on the trial court

having first made a substantive ruling on the controlling legal issue being

appealed.” Borowski v. Ayers, 432 S.W.3d 344, 347 (Tex. App.—Waco 2013, no

pet.), quoted in Great Am. E&S Ins. Co. v. LaPolla Indus., Inc., No. 01-14-00372-

CV, 2014 WL 2895770, at *2 (Tex. App.—Houston [1st Dist.] June 24, 2014, no

pet.) (per curiam). Because the parties have identified neither a controlling legal

principle nor an agreed set of facts, the trial court’s denial of Fertitta’s motion for

summary judgment is not a ruling on a controlling issue of law that section

51.014(d) requires.



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      For similar reasons, we reject the attempted interlocutory appeal of the trial

court’s summary judgment in favor of Fertitta on the claims brought by the guests

involving the responding officers. The ten guests appeal the trial court’s summary

judgment rulings that (1) Fertitta owed no duty to them for any alleged injuries

arising out of the conduct of the on-duty police officers called to their premises,

and (2) any breach of duty was not the proximate cause of the plaintiffs’ alleged

injuries. The guests contend that the trial court erred in its application of concepts

of duty for the criminal conduct of another and the corresponding foreseeability of

the harm they sustained. They observe that an appellate ruling will “enable a more

meaningful evaluation of the case,” but concede that the litigation will continue

with remaining claims and remaining defendants, regardless of this appeal. A

“meaningful evaluation” standard would apply to our review of nearly any trial

court ruling. It does not present a discernible demarcation for “controlling issues”

or “material advancement” when balanced against the costs of serial interim

appellate rulings. The guests have a remedy at hand: to sever these claims from

those that remain and appeal the judgments against them, or to appeal the summary

judgment rulings upon this dispute’s final conclusion. Orders granting summary

judgment are appealable upon severance. See Diversified Fin. Sys., Inc. v. Hill,

Heard, O'Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex. 2001) (per

curiam) (“As a rule, the severance of an interlocutory judgment into a separate



                                         10
cause makes it final.”). We hold that we do not have jurisdiction over the cross-

appeal of the interlocutory partial summary judgment order.

                                    Conclusion

      Because the challenged trial court rulings do not meet the requirements for

an interlocutory appeal pursuant to the then-applicable statute, we dismiss the

appeal for want of subject-matter jurisdiction.




                                       Jane Bland
                                       Justice

Panel consists of Justices Higley, Bland, and Sharp.




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