City not entitled to permissive interlocutory appeal since court only ruled on objection, not exclusion of evidence

City of Houston v Shayn A. Proler, 14-16-00030-CV (Tex. App. – Austin, March 15, 2016).

This is the second suit by Proler, a certified fire fighter, regarding the City’s reassignment of him and ultimate termination for his failure to fight fires. Proler’s original suit (summary found here) resulted in the Texas Supreme Court holding that a fire fighter who could not fight fires was not disabled. That was an interlocutory ruling which was remanded but only involved a transfer, not termination.

Proler filed this second suit asserting that the City discovered he suffered from depression and discriminated against him by terminating his employment. Five years after “his original problem,” Proler had difficulty in responding to an emergency call regarding a traffic accident on a freeway. Proler appeared to be asleep on the fire truck even with a loud siren sounding. Proler also appeared to be unconscious at the scene and could not be aroused; he remained in that condition until the truck returned to the station. After proper administrative hearings, Proler was terminated. After he filed suit, the City sought to exclude from evidence any mention of his prior suit for discrimination, including all medical records. The trial court denied the motion but allowed a permissive interlocutory appeal.

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. The trial court first must make a substantive ruling on the controlling legal question as to which there is a substantial ground for difference of opinion before a permissive interlocutory appeal is possible. The trial court did not rule that any of this evidence was admissible at trial in this suit; rather, the trial court determined that the City’s objections to the evidence based on res judicata and collateral estoppel lacked merit. Thus, the trial court did not rule on the issue of whether, “the evidence previously adjudged and the related proceedings [may ] be presented…” Because the record does not show that the trial court ruled on the purported controlling question of law identified by the trial court, the court held it could not grant the City’s petition for permissive interlocutory appeal.

If you would like to read this opinion, click here.  Panel: Chief Justice Frost, Justice Boyce, and Justice Wise.  Memorandum opinion given by Chief Justice Frost.  Attorney for the Appellee is David T. Lopez.  Attorney for the Appellant is Robert Higgason.

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