                             NUMBER 13-13-00100-CV

                             COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG
____________________________________________________________

KING-A CORPORATION D/B/A
MCDONALD'S, ROBSTOWN,                                                  Appellant,

                                        v.

PAULINE WEHLING,                                    Appellee.
____________________________________________________________

              On Appeal from the 28th District Court
                   of Nueces County, Texas.
____________________________________________________________

                        MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Benavides and Longoria
                    Memorandum Opinion Per Curiam

      Appellant, King-A Corporation d/b/a McDonald’s, Robstown, has filed a petition

seeking permission to appeal an interlocutory order. See TEX. CIV. PRAC. & REM. CODE

ANN. § 51.014(d) (West Supp. 2012); TEX. R. CIV. P. 168; TEX. R. APP. P. 28.3(a). We

deny permission to appeal.
                                      I. BACKGROUND

       According to the petition for permissive appeal and attached documents, appellee

Pauline Wehling brought suit against appellant for premises liability claims and personal

injury damages when she slipped and fell on an unidentified substance on the floor at the

McDonalds restaurant in Robstown, Texas.           Appellant filed a traditional motion for

summary judgment against Wehling contending that her claims were barred by the

statute of limitations because she failed to use diligence in serving appellant with process.

Appellant contended that although Wehling filed suit against appellant within the statute

of limitations, she did not serve appellant with the suit until after the expiration of

limitations.     The trial court denied appellant’s motion for summary judgment on

December 7, 2012. After appellant requested that the trial court allow it to file a petition

for permissive appeal, the trial court granted permission to appeal by an “Amended Order

and Permission to Appeal” signed on February 5, 2013. The amended order states in

relevant part:

               IT IS FURTHER ORDERED, ADJUDGED[,] AND DECREED that
       Defendant . . . be permitted to appeal this Order pursuant to Rule 168 of the
       Texas Rules of Civil Procedure as this Order involves a controlling question
       of law as to which there is a substantial ground for difference of opinion, to
       wit: Is Defendant entitled to summary judgment on [its] affirmative
       limitations defense because Plaintiff failed to use due diligence in
       attempting to serve Defendant outside the statute of limitations? An
       immediate appeal from the order denying Defendant’s motion would
       materially advance the ultimate termination of the litigation as Plaintiff would
       be barred from bringing her claims against Defendant should Defendant’s
       motion be granted.

Appellant timely filed its petition for permissive appeal in this Court on February 15, 2013.

See TEX. R. APP. P. 28.3(c). By a sole issue with several sub-issues, appellant contends


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that this Court should grant permission to file an interlocutory appeal of the denial of its

motion for summary judgment based on limitations. Appellant contends that whether the

statute of limitations bars Wehling’s claims is a controlling issue of law because it

potentially disposes of the entire case without regard to the merits. Appellant also

asserts that a “substantial body of Texas case law establishes that unexplained delays in

serving process on a defendant of shorter duration than the delays in this case constitute

lack of diligence as a matter of law.” According to appellant, “the trial court is of a

different opinion,” therefore “there is a substantial ground for a difference of opinion as to

whether the unexplained delays in this case bar Respondent’s claims.” Finally, appellant

contends that an immediate appeal may materially advance the termination of this

litigation because a reversal of the trial court would result in the dismissal of this case in its

entirety.

        Wehling filed a response to the petition for permissive appeal on February 27,

2013.       The response was untimely, but has been considered by the Court in its

discretion. See id. R. 28.3(f). In her response, appellee asserts that the trial court

correctly denied the motion for summary judgment because, based on the summary

judgment evidence presented in this case, the matter of diligence in service is a “question

of fact.”

                                   II. STANDARD OF REVIEW

        Permissive interlocutory appeals are provided by statute in the Texas Civil Practice

and Remedies Code.          TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d).               Statutes

providing for interlocutory appeals are to be construed strictly as exceptions to the


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general rule that only final judgments are appealable. 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); Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355

(Tex. 2001).

       The procedure for filing a permissive appeal is delineated by section 51.014(d),(e),

and (f), Texas Rule of Civil Procedure 168, and Texas Rule of Appellate Procedure 28.3.

Texas Rule of Civil Procedure 168 provides:

              On a party's motion or on its own initiative, a trial court may permit an
       appeal from an interlocutory order that is not otherwise appealable, as
       provided by statute. Permission must be stated in the order to be
       appealed. An order previously issued may be amended to include such
       permission. The permission must identify the controlling question of law as
       to which there is a substantial ground for difference of opinion, and must
       state why an immediate appeal may materially advance the ultimate
       termination of the litigation.

TEX. R. CIV. P. 168.     Texas Rule of Appellate Procedure 28.3 contains additional

information regarding the procedures for filing and determining a petition for permissive

appeal. See generally TEX. R. APP. P. 28.3. To be entitled to a permissive appeal, a

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.” Id.

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

why the order to be appealed meets these requirements. See id.

                                        III. ANALYSIS

       As stated previously, appellant contends that this case presents a “controlling

question of law,” that is, whether or not Wehling exercised diligence as a matter of law in

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serving appellant with suit, as to which there is a “substantial ground for difference of

opinion” given that the trial court disagreed with appellant regarding Wehling’s diligence.

In examining the first of these propositions, we look to the substantive law regarding

diligence in service outside of limitations.

       If a party files its petition within the limitations period, service outside the limitations

period may still be valid if the plaintiff exercises diligence in procuring service on the

defendant. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009); Gant v. DeLeon, 786

S.W.2d 259, 260 (Tex. 1990) (per curiam). When a defendant has affirmatively pleaded

the defense of limitations, and shown that service was not timely, the burden shifts to the

plaintiff to prove diligence. Ashley, 293 S.W.3d at 179; Proulx v. Wells, 235 S.W.3d 213,

216 (Tex. 2007) (per curiam). Diligence is determined by asking "whether the plaintiff

acted as an ordinarily prudent person would have acted under the same or similar

circumstances and was diligent up until the time the defendant was served." Proulx, 235

S.W.3d at 216. Generally, the question of the plaintiff's diligence in effecting service is

one of fact, and is determined by examining the time it took to secure citation, service, or

both, and the type of effort or lack of effort the plaintiff expended in procuring service. Id.

Although a fact question, a plaintiff's explanation may demonstrate a lack of diligence as a

matter of law, "when one or more lapses between service efforts are unexplained or

patently unreasonable."       Id.   Thus, once a defendant has affirmatively pleaded

limitations and shown that service was untimely, the plaintiff has the burden to "present

evidence regarding the efforts that were made to serve the defendant, and to explain

every lapse in effort or period of delay." Id.


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       The proper scope of a permissive appeal is the determination of controlling legal

issues, about which there are legitimate disagreements, necessary to the resolution of

the case.     See Diamond Prods. Int'l v. Handsel, 142 S.W.3d 491, 494 (Tex.

App.—Houston [14th Dist.] 2004, no pet.) (construing predecessor statute); see also Tex.

Farmers Ins. Co. v. Minjarez, No. 08-12-00272-CV, 2012 Tex. App. LEXIS 9043, at **1–2

(Tex. App.—El Paso Oct. 31, 2012, no pet.); HOUSE COMM.           ON   CIVIL PRACTICES, BILL

ANALYSIS, Tex. H.B. 978, 77th Leg., R.S. (2001) (explaining that the addition of the

predecessor statute would promote judicial efficiency by "allowing the trial court to certify

a question for appeal" when "the trial court rules on an issue that is pivotal in a case but

about which there is legitimate disagreement").

       The scope of a permissive appeal does not include an appeal of a summary

judgment when the facts are disputed. See Diamond Prods. Int’l, 142 S.W.3d at 495–96.

The Fourteenth Court has noted that “though it may be a rare occurrence, it is possible

that, in some cases, a controlling question of law as to which there is substantial ground

for difference of opinion might arise in the context of determining whether a fact issue

exists in a summary-judgment context.” Id. In denying permission to appeal in that

case, however, the court concluded that the statutory criteria were not satisfied because

of the absence of evidence supporting the motion for summary judgment and because of

factual issues related to the asserted grounds for summary judgment. Id.

       The question presented in this case is whether Wehling exercised due diligence in

securing service of process on appellant. While diligence may be determined as a

matter of law, it is generally a question of fact. Proulx, 235 S.W.3d at 216. Based on


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our review of the petition and response, we conclude that appellant has failed to show

that this case presents a controlling question of law.        Moreover, to the extent that

appellant asserts that there is a substantial ground for difference of opinion as to the issue

of law presented, we disapprove of the notion that this standard is met by default

whenever a trial court rules against a petitioner for permissive review.

                                      IV. CONCLUSION

       The Court, having examined and fully considered the petition for permissive

appeal and the response thereto, is of the opinion that the appeal should be dismissed for

want of jurisdiction. Accordingly, we DENY the petition for permissive appeal, and we

DISMISS THE APPEAL FOR WANT OF JURISDICTION.



                                                  PER CURIAM

Delivered and filed the
14th day of March, 2013.




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