Hidden Cove Park and Marina et al v. Lexington Insurance Company et al

Filing 58

MEMORANDUM OPINION AND ORDER. Defendants' Motion to Amend Order to Certify for Interlocutory Appeal (Dkt. # 54 ) is hereby DENIED. Signed by District Judge Amos L. Mazzant, III on 1/22/2018. (rpc, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

HIDDEN COVE PARK & MARINA, and
MARINE QUEST HIDDEN COVE, LP,
MQTXM, LLC d/b/a
TEXOMA PARK & MARINA
v.
LEXINGTON INSURANCE COMPANY,
and AIG CLAIMS, INC.

§
§
§
§
§
§
§
§
§

CASE NO. 4:17-CV-193
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants’ Motion to Amend Order to Certify for
Interlocutory Appeal (Dkt. #54). After reviewing the motion and the relevant pleadings, the Court
finds that the motion should be denied.
BACKGROUND
The action before the Court is a property insurance dispute, in which Plaintiffs Hidden
Cove Park & Marina and Marine Quest Hidden Code, LP MQTXM, LLC d/b/a Texoma Park &
Marina sued Defendants Lexington Insurance Company and AIG Claims, Inc. alleging breach of
contract, violations of the Texas Unfair Claims Practice Act, non-compliance with Texas Insurance
Code Chapter 542 Prompt Payment of Claims Act, breach of common law good faith and fair
dealing, and unfair settlement practices. On June 30, 2017, Plaintiffs and Defendants filed cross
motions for partial summary judgment asking the Court to interpret the language of the policy at
issue in the case. On November 9, 2017, the Court issued a Memorandum Opinion and Order on
the motions (Dkt. #53).

1

On December 4, 2017, Defendants filed the present Motion to Amend Order to Certify for
Interlocutory Appeal (Dkt. #54). On December 18, 2017, Plaintiffs field a response (Dkt. #55)
and Defendants filed their reply on December 22, 2017 (Dkt. #57).
ANALYSIS
Under 28 U.S.C. § 1292(b), the Court may certify one of its orders for interlocutory appeal
if it determines “that such order involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation[.]” Defendants allege that they have
met this standard, and the Court should amend to certify its Order.
In the Fifth Circuit, interlocutory appeals are exceptional and “[d]o not lie simply to
determine the correctness of a judgment.” Clark-Dietz & Assocs.-Eng’rs, Inc. v. Basic Constr.
Co., 702 F.2d 67, 68 (5th Cir. 1983). Therefore, “[a]ll three…elements should be present before
a court certifies an order for interlocutory appeal.”

Monroe v. Cessna Aircraft Co.,

No. 2:05-cv-250, 2006 WL 1305116, at *1 (E.D. Tex. May 9, 2006). Additionally, “[s]atisfying
these three statutory criteria is not always sufficient, ‘as district court judges have unfettered
discretion to deny certification even when all three are satisfied.’” Commil USA, LLC v. Cisco
Sys., Inc., No. 2:07-cv-341, 2011 WL 738871, at *4 (E.D. Tex. Feb. 23, 2011) (internal citation
omitted), judgment vacated on other grounds by Commil USA, LLC v. Cisco Sys., Inc., 135 S.Ct.
1920 (May 26, 2015).
The Court finds that the elements for certification of interlocutory appeal are not met in the
present case. First, the Court’s Order regarding the parties’ cross motions for summary judgment
does not raise a controlling question of law. An order may only be certified for interlocutory
appeal under § 1292(b) if it turns on “a pure issue of law, i.e., a question the appellate court can

2

efficiently rule on without making an intensive inquiry into the record.” Software Rights Archive,
LLC v. Google, Inc., No. 2:07-CV-511, 2009 WL 1797996, at *2 (E.D. Tex. June 24, 2009)
(citations omitted); see also IP Innovation LLC v. Google Inc., No. 2:07-CV-503-RRR, 2010 WL
691130 (E.D. Tex. Jan. 6, 2010) (Rader, J. sitting by designation) (denying certification because
the question was not a “pure issue of law”). The issue Defendants seek to certify for appeal is the
interpretation of the language of the policy (Dkt. #54). The Court finds that this is not a pure
question of law, but instead a mixed question that would require the Fifth Circuit to apply legal
principles to the policy at issue in the suit. Therefore, the Court finds that the question is not suited
for interlocutory appeal, and Defendants’ motion should be denied.
Additionally, Defendants’ motion should be denied because the case does not present a
substantial ground for a difference of opinion. Courts have found that there is a substantial ground
for a difference of opinion when
a trial court rules in a manner which appears contrary to the rulings of all Courts of
Appeals which have reached the issue, if the circuits are in dispute on the question
and the Court of Appeals of the circuit has not spoken on the point, if complicated
questions arise under foreign law, or if novel and difficult questions of first
impression are presented.
Ryan v. Flowserve Corp., 444 F. Supp. 2d 718, 723–24 (N.D. Tex. 2006); see Adhikari v. Daoud
& Partners, No. 09-CV-1237, 2012 WL 718933, at *2 (S.D. Tex. Mar. 5, 2012)). The Court finds
that Defendants’ question does not present a substantial ground for a difference of opinion, and
thus the Defendants’ motion should be denied.
Even if the Defendants had met the three requirements, the Court in its discretion finds that
the motion should be denied and the parties should proceed through the litigation process before
exercising their right to appeal, if necessary.

3

.
CONCLUSION
It is therefore ORDERED that Defendants’ Motion to Amend Order to Certify for
Interlocutory Appeal (Dkt. #54) is hereby DENIED.
SIGNED this 22nd day of January, 2018.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

4