KamKane Enterprises, LLC v. City of Gholson, Eddie Oliver, Ric Maddox, Zach McFarland, Holley Herwig, Buck McAdams II, and Jonathan Spence

Court of Appeals
Tenth Appellate District of Texas

10-26-00089-CV

KamKane Enterprises, LLC,
Appellant

v.

City of Gholson, Eddie Oliver, Ric Maddox, Zach McFarland, Holley
Herwig, Buck McAdams II, and Jonathan Spence,
Appellees

On appeal from the
414th District Court of McLennan County, Texas
Judge Ryan Luna, presiding
Trial Court Cause No. 2024-3475-5

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

KamKane Enterprises, LLC filed a timely petition for permission to

appeal an interlocutory amended order denying the motions for summary

judgment filed by KamKane and Respondents, City of Gholson, Eddie Oliver,
Ric Maddox, Zach McFarland, Holley Herwig, Buck McAdams II, and

Jonathan Spence.1 We deny the petition.

The underlying suit is a declaratory judgment action filed by KamKane

seeking a declaration that the City’s ordinance Section 3.04.008 is invalid and

void. KamKane filed a motion for summary judgment asking the court to

declare that ordinance section void. Respondents filed a motion for summary

judgment asking the court to grant summary judgment in their favor on all of

KamKane’s causes of action. The trial court summarily denied both motions

in separate orders. The parties then filed an agreed motion for an amended

order, leave to file a permissive appeal, and to stay the proceedings.

Thereafter, the court signed an amended order again summarily denying both

motions for summary judgment and granting the parties’ motion for leave to

file a permissive appeal. In the order, the court found that:

(1) This Order involves a controlling question of law as
to which there is a substantial ground for difference
of opinion; and

(2) An immediate appeal from this Order may
materially advance the ultimate termination of the
litigation.

And specifically, the Court identifies the controlling
legal question, which it has ruled on above, as to which
there is a substantial basis for difference of opinion:
Is § 3.04.008 of the City of Gholson’s code of ordinances

1 The six individuals are members of the City Council of the City of Gholson.

KamKane Enterprises, LLC v. City of Gholson Page 2
a ‘zoning ordinance’ or does it regulate the use of land,
as distinguished from zoning? Related and ancillary
controlling legal questions include: What
distinguishes land-use from zoning regulations? Can
a Type-A General Law Municipality pass a land-use
regulation under its general police powers or is a land-
use regulation inherently a zoning regulation
requiring a comprehensive plan as defined in Texas
Local Government Code § 213.002?

KamKane timely filed an agreed petition for permissive appeal.

An order denying a summary judgment motion is generally not

appealable because it is an interlocutory order and not a final judgment.

Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (per curiam) (orig.

proceeding). Appeals from interlocutory orders are allowed in certain

instances. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014. We will strictly

construe any statute authorizing interlocutory appeal as an exception to the

general rule that only final judgments are appealable. See CMH Homes v.

Perez, 340 S.W.3d 444, 447 (Tex. 2011).

A permissive appeal is appropriate when (1) the otherwise unappealable

interlocutory order sought to be appealed involves a controlling question of law

as to which there is a substantial ground for difference of opinion and (2) an

immediate appeal from the order may materially advance the ultimate

termination of the litigation. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d).

However, the legislature’s institution of this procedure authorizing a trial

KamKane Enterprises, LLC v. City of Gholson Page 3
court to permit an immediate appeal of an interlocutory order is nevertheless

premised on the trial court having first made a substantive ruling on the

controlling legal issue being appealed. Borowski v. Ayers, 432 S.W.3d 344, 347

(Tex. App.—Waco 2013, no pet.). Thus, no controlling question of law is

presented for an appellate court’s analysis, as required by Section 51.014,

unless the record reflects the trial court’s determination of the specific legal

issue presented for the appellate court to decide. See TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014(d); Corp. of the President of the Church of Jesus Christ of

Latter-Day Saints v. Doe, No. 13-13-00463-CV, 2013 WL 5593441, at *2 (Tex.

App.—Corpus Christi-Edinburg Oct. 10, 2013, no pet.) (per curiam) (mem. op.);

see also Luccia v. City of Houston, No. 01-17-00378-CV, 2017 WL 2471107, at

*1 (Tex. App.—Houston [1st Dist.] June 8, 2017, no pet.) (per curiam) (mem.

op.) (where trial court did not make a substantive ruling on the controlling

legal issues, permissive interlocutory appeal not authorized); Stewart Title

Guar. Co. v. Vantage Bank Tex., No. 04-15-00228-CV, 2015 WL 2124802, at *2

(Tex. App.—San Antonio May 6, 2015, no pet.) (per curiam) (mem. op.) (same).

The trial court’s denial of the motions for summary judgment merely

addressed the question of whether a genuine issue of material fact precludes

summary judgment. See TEX. R. CIV. P. 166a(c). The trial court’s order on the

motion for summary judgment provides no basis for its denial, and the record

KamKane Enterprises, LLC v. City of Gholson Page 4
before us fails to show that the trial court made a substantive ruling on the

alleged controlling questions of law sought to be appealed. Therefore,

KamKane’s petition for permissive appeal fails to show eligibility for a

permissive appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d);

Borowski, 432 S.W.3d at 347. We deny KamKane’s petition for permissive

appeal.

STEVE SMITH
Justice

OPINION DELIVERED and FILED: April 2, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Denied
CV06

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