NO.

08-0089
IN THE

SUPREME COURT OF TEXAS

MACOMB FUNDING GROUP, L.L.C.,

Petitioner,

v.

INLINER AMERICAS, INC. N/K/A FIRSTLINER

AMERICAS, INC., INLINER USA, INC., N/K/A
FIRSTLINER USA, INC., and CAT CONTRACTING, INC.,

Respondents.

On Petition for Review from the

Fourteenth Court of Appeals at Houston, Texas

A MENDED P ETITION FOR R EVIEW

ABRAMS SCOTT & BICKLEY, L.L.P.

Barry Abrams
State Bar No. 00822700
Ramón G. Viada III
State Bar No. 20559350
700 Louisiana, Suite 4000
Houston, Texas 77002
(713) 228-6601
(713) 228-6605 (fax)

A TTORNEYS F OR M ACOMB F UNDING

G ROUP, L.L.C.
 IDENTITY OF PARTIES AND COUNSEL

P ARTIES TO THE T RIAL C OURT’S O RDER:

Defendant, appellee, petitioner:

MaComb Funding Group, L.L.C.

Plaintiffs, appellants, respondents:

Inliner Americas, Inc. n/k/a Firstliner Americas, Inc., Inliner USA, Inc. n/k/a
Firstliner USA, Inc., and CAT Contracting, Inc.

T RIAL AND A PPELLATE C OUNSEL:

For Petitioner MaComb:

Barry Abrams At trial and on appeal

State Bar No. 00822700
Ramón G. Viada III On Appeal
State Bar No. 20559350
A BRAMS S COTT & B ICKLEY, L.L.P.
700 Louisiana, Suite 4000
Houston, Texas 77002
Telephone: (713) 228-6601
Facsimile: (713) 228-6605

For Respondents Inliner Americas, Inc. N/K/A Firstliner Americas, Inc., Inliner
USA, Inc., N/K/A Firstliner USA, Inc., and CAT Contracting, Inc.:

Timothy A. Hootman
State Bar No. 09965450
2402 Pease Street
Houston, Texas 77003
Telephone: (713) 247-9548

i
 TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

I. S TATEMENT OF THE C ASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. S TATEMENT OF J URISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. ISSUE P RESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV. S TATEMENT OF F ACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

V. S UMMARY OF A RGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

VI. A RGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The Appeal Was Timely Filed Within The Meaning Of Rule 26.1(b).. . . . . 5

B. This Court’s Brittingham Dicta Supports Petitioners’ Position. . . . . . . . . . 8

C. The Logic Of The Majority Opinion is Flawed.. . . . . . . . . . . . . . . . . . . . . . 9

VII. C ONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

APPENDIX

1. Inliner Americas, Inc. v. MaComb Funding Group, L.L.C.,

No. 14-06-01084-CV (Majority Opinion). . . . . . . . . . . . . . . . . . . . . . . Tab 1

2. Inliner Americas, Inc. v. MaComb Funding Group, L.L.C.,

No. 14-06-01084-CV (Dissenting Opinion). . . . . . . . . . . . . . . . . . . . . Tab 2

3. Order Granting Declaratory Judgment (May 17, 2006).. . . . . . . . . . . . Tab 3

ii
4. Judgment (Sept. 22, 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 4

5. Order for Interlocutory Appeal (Nov. 27, 2006). . . . . . . . . . . . . . . . . . Tab 5

6. Notice of Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 6

7. Tex. Civ. Prac. & Rem. Code § 51.014(d). . . . . . . . . . . . . . . . . . . . . . Tab 7

8. Tex. R. App. P. 26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 8

iii
 INDEX OF AUTHORITIES

Page(s)
Cases

Brittingham-Sada De Ayala v. Mackie

193 S.W.3d 575 (Tex. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

In re D. Wilson Constr. Co.,

196 S.W.3d 774 (Tex. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

H.B. Zachry Co. v. Thibodeaux,

364 S.W.2d 192 (Tex. 1963).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Inliner Americas, Inc. v. Macomb Funding Group, L.L.C.,

No. 14-06-01084-CV (Tex. App.—Houston [14th Dist.]
Oct. 16, 2007, pet. filed). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 9

Martinez v. Humble Sand & Gravel, Inc.,

875 S.W.2d 311 (Tex. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

McAllen Med. Ctr., Inc. v. Cortez,

66 S.W.3d 227 (Tex. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Michiana Easy Livin’ Country, Inc. v. Holten,

168 S.W.3d 777 (Tex. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Qwest Commc’ns Corp. v. AT&T,

24 S.W.3d 334 (Tex. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statutes and Rules

T EX. C IV. P RAC. & R EM. C ODE A NN. § 51.014(a)(1)-(11).. . . . . . . . . . . . . . . . . . . . . . . . . 7

T EX. C IV. P RAC. & R EM. C ODE. A NN. § 51.014(d). . . . . . . . . . . . . . . . . . . . . . . 3, 4, 6, 7, 8

T EX. C IV. P RAC. & R EM. C ODE A NN. § 51.014(d)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

T EX. G OV’T C ODE A NN. § 22.001(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

T EX. G OV’T C ODE A NN. § 22.225(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

iv
T EX. R. A PP. P. 26.1(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7, 8

T EX. R. A PP. P. 28.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7

T EX. R. A PP. P. 59.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

v
 NO. 08-0089

IN THE

SUPREME COURT OF TEXAS

MACOMB FUNDING GROUP, L.L.C.,

Petitioner,

v.

INLINER AMERICAS, INC. N/K/A FIRSTLINER

AMERICAS, INC., INLINER USA, INC., N/K/A
FIRSTLINER USA, INC., and CAT CONTRACTING, INC.,

Respondents.

On Petition for Review from the

Fourteenth Court of Appeals at Houston, Texas

A MENDED P ETITION FOR R EVIEW

T O THE H ONORABLE S UPREME C OURT OF T EXAS:

Petitioner, MaComb Funding Group, L.L.C. (“MaComb”), files this petition for

review, seeking reversal of the court of appeals’ dismissal of the parties’ agreed interlocutory

appeal for lack of appellate jurisdiction.

I. S TATEMENT OF THE C ASE

Nature of the Case: In the trial court, Respondents (the “Debtors”) sued their
attorneys for legal malpractice allegedly committed in a federal
patent lawsuit. The Debtors later added MaComb as a defendant
and sought a declaratory judgment that MaComb did not acquire
any rights in their legal malpractice claims or the proceeds of
such claims as part of an earlier assignment agreement between
the Debtors and MaComb. MaComb counterclaimed, requesting
a declaration that the Debtors had assigned their malpractice
claims and the proceeds of such claims to MaComb, then an
unpaid judgment creditor, as part of a general assignment of all
of their assets.

Trial Court: 127th Judicial District Court of Harris County, Texas, Hon.
Sharolyn Wood presiding.

Trial Court Disposition: Macomb and the Debtors filed cross-motions for summary
judgment. On May 17, 2006, the trial court granted summary
judgment for MaComb. On September 22, 2006, the trial court
awarded MaComb its reasonable and necessary attorneys’ fees.
On October 25, 2006, the parties filed an agreed motion for a
written order permitting an appeal of the May 17 and September
22 interlocutory orders. On November 27, 2006, the trial court
granted the parties’ agreed motion for permission to appeal. The
Debtors filed their notice of appeal on December 1, 2006.

Parties in the
Court of Appeals: Plaintiffs-Appellants: Inliner Americas, Inc. n/k/a Firstliner
Americas, Inc., Inliner USA, Inc. n/k/a Firstliner USA, Inc., and
CAT Contracting, Inc.

Defendant-Appellee: MaComb Funding Group, L.L.C.

Court of Appeals: Fourteenth Court of Appeals at Houston, Texas

Court of Appeals
Disposition: In a 2-1 decision, the panel dismissed the appeal for lack of
appellate jurisdiction, holding that the notice of appeal was
untimely. Inliner Americas, Inc. v. MaComb Funding Group,
L.L.C., No. 14-06-01084-CV (Tex. App.—Houston [14th Dist.]
Oct. 16, 2007, pet. filed) (Guzman, J., joined by Hudson, S.J.;
Hedges, C.J., dissenting) (majority opinion attached as App. 1;

2
 dissent at App. 2). The court of appeals denied MaComb’s
motion for rehearing en banc on January 10, 2008.

II. S TATEMENT OF J URISDICTION

The Supreme Court has jurisdiction to review the court of appeals’ judgment because

the justices of the courts of appeals disagree on a question of law material to the decision.

See T EX. G OV’T C ODE A NN. §§ 22.001(a)(1), 22.225(c). In addition, “[w]hen a court of

appeals determines that it lacks jurisdiction over an interlocutory appeal, this Court has

jurisdiction to review that decision.” McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 234

(Tex. 2001); see also, e.g., In re D. Wilson Constr. Co., 196 S.W.3d 774, 778 n.3, 780 n.5

(Tex. 2006) (orig. proceeding); Qwest Commc’ns Corp. v. AT&T, 24 S.W.3d 334, 335-36

(Tex. 2000).

III. I SSUE P RESENTED

When does Rule 26.1(b)’s twenty-day clock begin to run for perfecting an agreed

interlocutory appeal under Section 51.014(d) of the Civil Practice and Remedies Code —

when the substantive interlocutory order itself is signed, or when the trial judge signs the

order authorizing an appeal from the substantive order? In accord with Chief Justice

Hedges’s dissent, petitioners urge the Court to hold that the appeal was timely because it was

filed within twenty days of the trial court’s order granting permission to appeal.

IV. S TATEMENT OF F ACTS

The relevant facts are simple: In the trial court, Macomb and the Debtors filed

cross-motions for summary judgment seeking a judicial declaration of their respective rights

under an assignment agreement. (CR 50-164, 179-231). On May 17, 2006, the trial court

3
granted an interlocutory summary judgment for MaComb. (CR 296) (App. 3). On

September 22, 2006, by a separate interlocutory order, the trial court re-affirmed its earlier

summary judgment and also awarded MaComb its reasonable and necessary attorneys’ fees.

(CR 312) (App. 4).

On October 25, 2006, the parties filed an agreed motion pursuant to T EX. C IV. P RAC.

& R EM. C ODE. A NN. § 51.014(d), requesting a written order permitting an appeal of these

interlocutory orders. (CR 315). On November 27, 2006, the trial court granted the motion

and entered an order permitting the agreed interlocutory appeal. (Supp. CR 1-2) (App. 5).

The purely legal issue to be decided by this Court is squarely presented by these few

facts. The Debtors filed their notice of appeal on December 1, 2006. (CR 327) (App. 6).

Accordingly, if Rule 26.1(b)’s twenty-day clock for filing an accelerated appeal began

running on November 27, when the trial court authorized the parties’ agreed appeal from her

earlier orders, then the appeal was timely. If the twenty-day period began on the dates the

two interlocutory orders had been signed — May 17 and September 22 — then the notice

was untimely.

V. S UMMARY OF A RGUMENT

Section 51.014(d) of the Civil Practice and Remedies Code allows for interlocutory

appellate resolution of linchpin legal questions that the trial judge and all parties agree will

likely advance judicial economy and allow the parties to resolve their disputes efficiently.

(See App. 7). Section 51.014(d) does not, however, establish a deadline for taking such an

appeal. The timetable for filing an interlocutory appeal is contained in T EX. R. A PP. P.

26.1(b). (See App. 8). Rule 26.1(b), therefore, rather than the statute authorizing the agreed

4
appellate remedy, is the logical starting point for determining when the twenty-day period

starts to run.

The timetable set by Rule 26.1(b) applies to all “accelerated appeals,” including

interlocutory appeals. As Chief Justice Hedges correctly concluded in her dissenting opinion,

Rule 26.1(b) applies only to orders and judgments that are already appealable. This

conclusion is supported by Rule 28.1’s definition of an accelerated interlocutory appeal —

an “appeal from an interlocutory order, when allowed . . . .” T EX. R. A PP. P. 28.1. Before

an interlocutory appeal has been allowed by law, it would make no sense to debate when a

notice of appeal must be filed, because an appellate court always will lack jurisdiction over

a case it has no statutory authority to hear.

As Chief Justice Hedges also correctly noted, the broader construction of Rule 26.1(b)

embodying the timetable for perfecting an agreed interlocutory appeal is consistent with the

spirit of the appellate rules, which are designed to allow appeals to be reached on the merits.

Furthermore, contrary to the reasoning of the majority opinion, the purposes of Section

51.014(d) of the Civil Practice and Remedies Code are advanced by affording the parties and

the trial court flexibility to present legal issues for appeal whenever in the process it appears

that the legislative rationale for the interlocutory appellate remedy would best be served.

VI. A RGUMENT

A. The Appeal Was Timely Filed Within The Meaning Of Rule 26.1(b).

In her dissenting opinion, Chief Justice Hedges used as the logical starting point for

her analysis the rule of appellate procedure that sets the twenty-day time deadline for

perfecting interlocutory appeals, T EX. R. A PP. P. 26.1(b). Rule 26.1(b) sets a fast track for

5
perfecting all types of “accelerated appeals,” of which interlocutory appeals are but one. Id.;

see also T EX. R. A PP. P. 28 (defining “accelerated appeals” in civil cases as appeals from

interlocutory rulings “when allowed,” and from rulings in quo warranto proceedings).

According to Rule 26.1(b), “in an accelerated appeal, the notice of appeal must be filed

within 20 days after the judgment or order is signed.” T EX. R. A PP. P. 26.1(b) (emphasis

added).

As Chief Justice Hedges pointed out, the difficulty with applying Rule 26.1(b) in this

case “arises in parsing that to which judgment or order signed refers.” Inliner, slip op. at 1

(Hedges, C.J., dissenting) (emphasis in original). The phrase “judgment or order” does not

refer necessarily to the substantive judgment or order being appealed. As a matter of syntax,

“judgment or order” could also refer to any order necessary to make the otherwise non-

appealable judgment or order appealable. As shown below, this broader construction is

internally consistent with the language and spirit of the appellate rules, which are designed

to resolve appeals on the merits and interpreted whenever possible to achieve that aim.

Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005) (cited by

Inliner, slip op. at 2) (Hedges, C.J., dissenting).

Rule 26.1(b) provides an accelerated deadline for filing an “accelerated appeal.” But

not all interlocutory orders can be made the subject of an accelerated appeal. “An appeal

from an interlocutory order, when allowed, will be accelerated.” T EX. R. A PP. P. 28.1

(emphasis added). Thus, Rule 26.1(b)’s accelerated perfection period, harmonized with Rule

28.1, applies to interlocutory orders when an appeal from them is allowed.

6
 Section 51.014 of the Civil Practice and Remedies Code currently allows a person to

file an interlocutory appeal as a matter of right from any of the types of orders listed in

Subsection 51.014(a). See T EX. C IV. P RAC. & R EM. C ODE A NN. § 51.014(a)(1)-(11). Since

an interlocutory appeal is allowed from these categories of orders as a matter of right as soon

as such an order is signed, the twenty-day period for appealing from those orders begins at

that time.

In contrast with Section 51.014(a)’s laundry list of immediately appealable orders,

Section 51.014(d) confers discretion on the trial court to permit an interlocutory appeal from

an “otherwise unappealable” interlocutory order under specified circumstances, including an

agreement of all parties. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 51.014(d). However,

an “otherwise unappealable” order does not become appealable until the trial court signs a

written order authorizing an appeal. That is to say, an interlocutory appeal from an

“otherwise unappealable” substantive order is not “allowed” by law until the trial court signs

a written order authorizing such an appeal. Thus, by definition, an “otherwise unappealable

order” cannot be the subject of an “accelerated appeal” within the meaning of Rule 28.1.

Any attempt to appeal such an order would fall outside of the scope of Rule 26.1(b)’s twenty-

day perfection period for accelerated appeals because the appellate courts would lack

jurisdiction over such an appeal, regardless of when it was filed.

Reading the phrase “within 20 days after the judgment or order is signed” in T EX. R.

A PP. 26.1(b) — to refer to the date an unappealable order is signed, is an illogical

interpretation of that language in analogous situations as well. In the same way that the

appellate rules are read to treat an interlocutory judgment as final for appellate purposes on

7
the date of a later action disposing of earlier unresolved claims or parties, see, e.g., Martinez

v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 312 (Tex. 1994) (appellate timetable runs

from date severance order renders judgment final), H.B. Zachry Co. v. Thibodeaux, 364

S.W.2d 192 (Tex. 1963) (interlocutory summary judgment becomes final upon entry of trial

court order disposing of remaining parties), Rule 26.1(b) should likewise be read to render

an interlocutory order appealable under T EX. C IV. P RAC. & R EM. C ODE § 51.014(d) on the

date of the later order authorizing such an appeal.

B. This Court’s Brittingham Dicta Supports Petitioners’

Position.

Although the issue raised by this petition has not been decided by this Court, in an

opinion it later withdrew, the Court earlier expressed a view contrary to that of the panel

majority. See Brittingham-Sada De Ayala v. Mackie, 49 Tex. Sup. Ct. J. 539, 542 (Tex. Apr.

21, 2006), opinion withdrawn and substituted opinion at 193 S.W.3d 575 (Tex. 2006). In

Brittingham, the Court addressed whether a court of appeals had jurisdiction to review the

appeal of an order, signed years earlier, denying a motion to dismiss an ancillary probate

proceeding. In its initial opinion, after concluding that the court of appeals lacked

jurisdiction as matters then stood, this Court observed that “[o]n remand, if the parties and

trial court agree, the parties may seek a permissive interlocutory appeal [under T EX. C IV.

P RAC. & R EM. C ODE § 51.014(d)].” 49 Tex. Sup. Ct. J. at 542.

The implication of this statement is clear. By indicating that a permissive

interlocutory appeal of an underlying substantive ruling signed years earlier could be pursued

after remand, the Court necessarily viewed the operative date for appellate purposes under

8
Section 51.014(d) as the date the order certifying the appeal was signed — not the date of the

initial substantive ruling.

This opinion, as noted above, was withdrawn. The Court later determined that the

litigants in Brittingham could not avail themselves of the procedure in Section 51.014(d)

because their suit had been filed before that statute became effective. 193 S.W.3d at 580 n.5.

The Court therefore withdrew its earlier opinion discussing the availability of an

interlocutory appeal under Section 51.014(d) following remand. Nevertheless, the Court’s

initial opinion reflects the Court’s earlier position on how agreed permissive interlocutory

appeals should proceed under the current version of Section 51.014(d).

C. The Logic Of The Majority Opinion is Flawed.

The majority opinion relies heavily on the following construction of the phrase

“immediate appeal,” as it is used in Subsection 51.014(d)(2) of the Civil Practice and

Remedies Code. According to the panel majority:

[U]nder the interpretation urged by the parties, litigants could extend the time
available to “start the appellate clock” by postponing the filing of a motion for
an order permitting the appeal. This interpretation is inconsistent with the
accelerated nature of the appeal and with the plain language of the Rules of
Appellate Procedure that set forth appellate deadlines. It is also inconsistent
with the intent of the legislature as expressed in the words of the statute:
significantly, the legislature permits an agreed interlocutory appeal if “an
immediate appeal from the order may materially advance the ultimate
termination of the litigation….” T EX. C IV. P RAC. & R EM. C ODE A NN.
§ 51.014(d)(2) (emphasis added). This appeal was not “immediate.”

Inliner Ams., Inc., slip op. at 4-5.

Subsection 51.014(d)(2) does not speak to when a permissive appeal must be filed.

It does not say that to be timely, a permissive appeal must be filed “immediately” after the

9
not-yet-appealable substantive order has been signed. That is, it does not indicate when in

relation to the signing of the underlying substantive order the appeal must “immediately” be

taken. Rather, it merely establishes one of the necessary criteria for establishing appellate

jurisdiction over a permissive appeal — the trial court must determine at some point in the

trial process that an immediate appeal from the substantive order “may materially advance

the ultimate termination of the litigation.” T EX. C IV. P RAC. & R EM. C ODE A NN.

§ 51.014(d)(2).

The quoted passage above indicates that in creating this appellate remedy, the

legislature intended to allow for appellate resolution of linchpin questions of law that the trial

judge and all parties agreed are likely to end the litigation. The permissive appeal therefore

is a remedy designed to advance judicial economy and allow the parties to resolve their

disputes efficiently.

As a practical matter, when a trial judge issues a pretrial legal ruling, it is not always

evident that the ruling, if then reviewed on appeal, would materially advance the ultimate

resolution of the litigation. Claims and parties frequently change over the life of a lawsuit,

and as this happens an earlier ruling affecting the outcome of the remainder of the case later

may take on added significance. Certain preliminary rulings may later become dispositive

in light of later rulings. Similarly, parties who initially may have opposed an interlocutory

appeal may later be dismissed from the case or change their mind, so that the parties and the

trial court may later agree that an immediate appeal at that time would materially advance

the ultimate termination of the litigation.

10
 The majority’s approach would deprive the parties and the trial court of this sort of

flexibility over the administration of trial court proceedings by foreclosing their ability to

certify legal issues for appeal whenever the legislature’s purpose for this appellate remedy

would best be served. It is only a slight overstatement to say that the majority’s approach

would effectively render the permissive appeal procedure a dead letter.

As a practical matter, moreover, the procedure as envisioned by the majority would

be exceedingly difficult to implement. In many situations, a twenty-day deadline running

from the signing of the substantive order for review will prompt emergency motion settings

and hurried rulings, assuming of course the trial court then has the luxury of the time to hear

such a motion expeditiously. Within that short twenty-day window allowed by the majority

opinion, the parties must evaluate the court’s ruling, unanimously agree to an interlocutory

appeal, prepare a motion for the permissive appeal, set a hearing, and hope the motion can

be heard and ruled on with sufficient dispatch to allow a timely notice of appeal to be filed.

A prompt ruling on such a request may not always be feasible, since the trial judge’s

determination whether an interlocutory appeal would in fact materially advance the ultimate

termination of the litigation may require careful consideration. Indeed, the trial court’s role

in making this determination is precisely the safeguard against the majority’s apparent

concern that litigants will abuse the process by postponing the filing of a motion for an order

permitting an interlocutory appeal.

VII. C ONCLUSION

The jurisdictional issue in this appeal is of great significance to the jurisprudence of

this State. The erroneous construction the court of appeals placed on Section 51.014(d) of

11
the Civil Practice and Remedies Code would often operate to deprive litigants of the ability

to obtain speedy appellate review of interlocutory rulings that are likely to pretermit the much

more expensive, time-consuming procedures that would otherwise occur before an appeal

from a final judgment could be taken.

Accordingly, petitioner requests that this Court grant this petition for review, hold that

the interlocutory appeal to the court of appeals below was timely filed, and remand this case

to the court of appeals for a decision on the merits. Respondents are expected to join in

requesting the relief sought herein. Accordingly, petitioner does not seek costs of the appeal

to this Court.

Petitioner believes this case is especially well suited for per curiam disposition

pursuant to T EX. R. A PP. P. 59.1.

Respectfully submitted,

ABRAMS SCOTT & BICKLEY, L.L.P.

By:/s/ Barry Abrams

Barry Abrams
State Bar No. 00822700
Ramón G. Viada III
State Bar No. 20559350
700 Louisiana, Suite 4000
Houston, Texas 77002
(713) 228-6601
(713) 228-6605 (fax)

A TTORNEYS FOR M AC OMB F UNDING

G ROUP, INC., L.L.C.

12
 CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was forwarded to the following
counsel of record by United States First Class Mail, certified, returned receipt requested, on
February 4, 2008.

Timothy A. Hootman
2402 Pease Street
Houston, Texas 77003
Attorney for Respondents

/s/ Barry Abrams

Barry Abrams

13