                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                              ________________________

                                   No. 07-15-00296-CV
                              ________________________

                         AUSTIN COMMERCIAL, L.P., PETITIONER

                                            V.

                         TEXAS TECH UNIVERSITY, RESPONDENT



                 On Petition for Permissive Appeal from the 99th District Court
                                    Lubbock County, Texas
            Trial Court No. 2014-511,045; Honorable William C. Sowder, Presiding


                                      August 11, 2015

                        ORDER DENYING PERMISSIVE APPEAL
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       Pending before this court is the Petition for Permissive Interlocutory Appeal filed

by Petitioner, Austin Commercial, L.P., and the Motion to Dismiss filed by Respondent,

Texas Tech University.       Finding the dispute at issue is not one appropriate for

permissive interlocutory appeal, we deny the petition and dismiss this proceeding for

want of jurisdiction.
       The underlying dispute involves an interpretation of the payment provisions of a

multi-million dollar construction contract between Austin and Texas Tech.           Austin

contends the payment provisions of the contract call for a lump sum amount, whereas

Texas Tech contends the payment provisions call for a cost-plus amount. Following a

summary judgment motion filed by Austin, the trial court determined that the payment

provisions of the contract were ambiguous. In its Second Amended Order on Austin’s

Motion for Summary Judgment, the trial court stated that it denied summary judgment

due to its finding of ambiguity pertaining to “whether payment is called for on a lump

sum or for reimbursement on a „cost of the work‟ basis.” The court further stated that its

ambiguity determination was a “controlling question of law as to which there was a

substantial difference of opinion” and that an immediate appeal of its decision “may

materially advance the ultimate termination of litigation because the interpretation of the

method of payment . . . forms the basis of each parties‟ claims . . . .”


       In its petition for permissive appeal filed pursuant to section 51.014(d) of the

Texas Civil Practice and Remedies Code, Austin contends the trial court‟s determination

of ambiguity is a question of law appropriate for permissive appeal because it involves a

controlling question of law as to which there is a substantial ground for a difference of

opinion and the resolution of that issue will materially advance the ultimate termination

of this litigation. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (West 2015). On

the other hand, Texas Tech contends the trial court‟s preliminary determination of

ambiguity is not a controlling question of law.


       Since the enactment of section 51.014(d), there has been little development in

the case law regarding just what constitutes a controlling legal issue. At least one

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Texas commentator has suggested that we should look to federal cases interpreting

similar language in the federal counterpart to section 51.014, contained at 28 U.S.C. §

1292(b). See Renée Forinash McElhaney, Toward Permissive Appeal in Texas, 29 St.

Mary's L. J. 729, 747-49 (1998). In that law review article, McElhaney concludes that:


       [A] controlling question of law is one that deeply affects the ongoing process
       of litigation. If resolution of the question will considerably shorten the time,
       effort, and expense of fully litigating the case, the question is controlling.
       Generally, if the viability of a claim rests upon the court‟s determination of a
       question of law, the question is controlling . . . . Generally, a district court will
       make [a finding that a permissive appeal is appropriate] when resolution of
       the legal question dramatically affects recovery in a lawsuit.

Id. (citations and paragraphing omitted).


       In its order permitting an interlocutory appeal, the trial court must identify the

controlling question of law as to which there is a substantial ground for difference of

opinion and state why an immediate appeal may materially advance the ultimate

termination of the litigation. See TEX. R. CIV. P. 168; Gulf Coast Asphalt Co., L.L.C. v.

Lloyd, 457 S.W.3d 539, 543-44 (Tex. App.—Houston [14th] 2015, no pet.). See also

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d). Here, the trial court stated that its

finding on ambiguity “as to whether payment is called for on a lump sum or for

reimbursement on a „cost of the work‟ basis” was the controlling question of law as to

which there was a substantial difference of opinion. While we agree that an actual

interpretation of the contract as to whether it called for a lump sum payment or a

payment based on a cost-plus basis would be a controlling question of law as to which

the parties have a substantial difference of opinion—that is not what the trial court

decided. The trial court merely decided that the contract provision was ambiguous.



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        While the issue of ambiguity is an important question of law affecting the

presentation of evidence during any ultimate trial of this dispute, it is not a “controlling

question of law” as contemplated by section 51.014(d) of the Texas Civil Practice and

Remedies Code and Rule 28.3 of the Texas Rules of Appellate Procedure because it

does not dispose of a controlling question in the case. In finding that the contract

payment provisions were ambiguous, the trial court ruled on only one facet of the

dispute. It did not interpret the disputed contract provisions; it merely left open the issue

of resolving the intent of the parties. Even if the trial court‟s ruling of ambiguity was

erroneous (a matter we do not address) it is not determinative of the ultimate dispute

between the parties.


        Given the limited nature of permissive appeals and the requirement that we must

construe statutes authorizing such appeals strictly, we conclude Austin has not satisfied

the statutory requirements of section 51.014(d). See Gulf Coast Asphalt, 457 S.W.3d at

545. Specifically, Austin has failed to demonstrate that the trial court determined a

controlling question of law about which there is a substantial ground for difference of

opinion or that the appeal might materially advance the ultimate termination of this

litigation.   Accordingly, we deny the petition for permissive appeal and dismiss this

proceeding for want of jurisdiction. Our decision renders moot Texas Tech‟s motion to

dismiss.


                                                  Per Curiam




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