Sabre Travel v. Lufthansa et al - Texas Supreme Court permits itself to entertain permissive interlocutory appeal in airline ticket booking dispute

TEXAS SUPREME COURT'S INCREMENTAL POWER GRAB NON-NEWS - SKILLFULLY CRAFTED OPINIONS, NEITHER SEXY, NOR HEADLINE-GRABBING 
Sabre Travel International, Ltd. v. Deutsche Lufthansa AG, Austrian Airlines AG, Brussels Airlines, NV/SA, 
and Swiss International Air Lines, Ltd. No. 17-0538 (Tex. Feb. 1, 2019) 

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Texas Supreme Court asserts that it has jurisdiction to entertain permissive appeal that the intermediate court of appeals brushed away with a minimalist opinion 

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This morning (2/1/2019), the Texas Supreme issued its opinion in Sabre Travel International, Ltd v. Deutsche Lufthansa AG, et al, holding that it has jurisdiction over a permissive interlocutory appeal in a dispute over airlines ticket-booking that the intermediate court of appeals had rejected without delving into the merits. The legal and factual issues in the case are very complicated and can be summarized as a dispute over commissions to be paid or not paid depending on whether tickets are booked through a certain booking system as opposed to be booked through the airlines' own website, and related gaming of the system for some participants' own pecuniary benefit, but supposedly with no real impact on what the consumer pays for the ticket. In any event, the trial court had found the market participants' dispute over ticket-booking worthy enough to send it up for higher-court examination, and the Supremes today officially validated the trial judge's take on the worthiness issue by handing down a decision that gives the law firms on both sides at least something to show to their respective deep-pocket clients to justify their no doubt top-of-the-scale attorneys' fees.

On the legal merits, the Texas High Court holds that the federal Airlines Deregulation Act (ADA) does not preempt Lufthansa’s tortious interference claim against Sabre because the action does not relate to the airline’s prices, routes, or services.

Nor does the claim at issue in the case--a state tort claim--amount to any state law, regulation, or policy that would trigger ADA preemption. At least not at this stage of the proceedings, which is to say at the pleading stage. So the Court says. Perhaps, we will change our minds later (the court does not say, but arguably intimates), with the benefit of further high-powered lawyering to develop the record some further. All of which makes perfect political sense for a court in need of legitimacy accorded to it by its most captive audience, and such captive audience's need to maximize billable hours for profitability, here, of course, billable hours at top rates in the industry. The type of rates former justices of the court can command based on their unique insights into how sausage is made in the court of last resort.
 
For now, the connection to federal -- which is even more supreme than just state supreme -- was just too tenuous, in the Lone Star Supreme's collective estimation. The qualification is, of course, well in order, since this is an interlocutory appeal (interlocutory as in we-are-telling-the-trial-judge-what-to-do-now-rather-than-later). The Texas High Court Supremos accordingly affirm the trial court's order denying Sabre's motion to dismiss the airlines' claims against it, which it had brought under TRCP 91a, a state rule of procedure that allows defendants to kill a lawsuit as being baseless either in law or in fact, or in both regards, to the applause of the tort-deform lobby.
 
American Airlines filed an amicus curiae brief that foreshadowed the court's resolution of the federal preemption issue.

This is another case where a former chief justice of the Texas Supreme Court endeavored to impress his former colleagues with the stellar quality of his client's legal arguments, which always makes you wonder. But leaving aside such irreverent extra-judicial and non-doctrinal considerations, what does the resolution of the case, and the offered justification for it, boil down to?

If the statute is on our side, we go with the statute 

The High Court's ruling on the interlocutory jurisdiction issue purports to be a straightforward matter of statutory construction (under the statute governing interlocutory appeals that has since been amended). There is just a little bit more to it, though. 

First, in espousing the proposition that the Texas Supreme Court has jurisdiction even though the intermediate court declined to exercise discretion to take up the issue certified by the trial court as worthy of its and its staff attorney's attention (the trial courts have less of that luxury, if any), the High Court enlarged--or at least reasserted--its own prerogative to decide disputed legal issues that have not yet resulted in a final judgment.

In so doing, the Supremes rejected the alternative view: that the state Supreme Court does not get to weigh in when the intermediate court of appeals had decided not to take up a permissive appeal, which is essentially discretionary (as distinguished from an appeal that a party is entitled to have heard as a matter of right). The Supremes even acknowledge this point by analogizing the intermediate review or a permissive appeal to the petition-of-review process at the High Court, which is in turn comparable to the cert petition process in the Supreme Court of the United States, also known to court watchers as SCOTUS.

Second, the Texas Supreme Court's assertion of appellate jurisdiction over an interlocutory ruling based on a statute passed by the Texas Legislature stands in tension with the Court's use of mandamus power to get around those very limitations imposed by statutory authority. The general rule is that only final judgments can be appealed. It's called the final judgment rule. 

So today, in handing down a decision in an interlocutory appeal, the Supremos assert that they have the last word in interlocutory appeals thanks to statutory authorization even though the intermediate appellate court turned the impetuous appellants away, and had short-shrifted them with a two-sentence get-lost missive.

But don't be deceived into thinking that such is a firm rule of Texas jurisprudence. That would be naive.

For the Supremes also reserve the right to use a different vehicle -- a writ of mandamus -- to get around such statutory limitations on pronto appeals when they find such statutory limitations  irksome. This tool cannot be invoked by the Supremes on their own. But practitioners skilled in all ways supreme will know what it takes, especially if they previously clerked on the court to learn the ropes, not to mention having sat on it.

Supreme Power of Say-So and Partisan Politics 

As for today's decision in the bigger scheme of things, there is actually no contradiction. Both types of rulings by the Supremos (expansive on interlocutory jurisdiction when based on statute and expansive on the scope of mandamus power when not) have the gratifying effect of auto-enlarging the power of the all-Republican if not all-powerful Texas Supreme Court.

This is now even more critical, of course, given that Democrats have gained majority control of the courts of the major urban centers (Houston, Dallas, Austin, and San Antonio) in the November 2018 elections, and are assumed to be beholden to different interests than those that have called the shots at the state level for the last two decades or so.

JUSTICE GREEN delivered the opinion of the Court.

In this case, we consider whether an appellate court’s denial of a permissive interlocutory
appeal prevents this Court from reviewing the merits of the underlying interlocutory order. We hold that it does not under the plain language of former Texas Government Code section 22.225(d).
In addition, we consider whether the federal Airline Deregulation Act (ADA) preempts an airline’s claim for tortious interference with contract brought under state law. We hold that no preemption occurs because the tortious interference claim does not relate to the airline’s prices, routes, or services. Nor does the claim amount to the enforcement of a state law, rule, regulation, standard, or other provision having the force and effect of law that is within the ADA’s preemptive reach. Accordingly, we affirm the trial court’s denial of the motion to dismiss based on preemption

IV. Conclusion 

Under former Texas Government Code section 22.225(d), a trial court’s order that is certified under section 51.014(d) of the Texas Civil Practice and Remedies Code is the only jurisdictional predicate for a petition for review in this Court. The court of appeals’ decision to decline the permissive appeal has no bearing on our jurisdiction under section 22.225(d). Regarding the merits of the underlying interlocutory order, we hold that the ADA does not preempt Lufthansa’s tortious interference claim because the action does not relate to the airline’s prices, routes, or services. Nor does the claim amount to any state law, regulation, or policy that concerns ADA preemption. Accordingly, we affirm the trial court’s denial of Sabre’s motion to dismiss pursuant to Texas Rule of Civil Procedure 91a.
 ______________________________
Paul W. Green Justice
OPINION DELIVERED: February 1, 2019