Sabre Travel Int'l, Ltd. v. Deutsche Lufthansa AG, 17-0538

Citation567 S.W.3d 725
Decision Date01 February 2019
Docket NumberNO. 17-0538,17-0538
Parties SABRE TRAVEL INTERNATIONAL, LTD., Petitioner, v. DEUTSCHE LUFTHANSA AG, Austrian Airlines AG, Brussels Airlines, NV/SA, and Swiss International Air Lines, Ltd., Respondents
CourtSupreme Court of Texas

Ralph H. Duggins, Cantey & Hanger LLP, 600 West 6th Street, Suite 300, Fort Worth TX 76102-6881, Philip Avery Vickers, Cantey & Hanger LLP, Cantey Hanger Plaza, 600 West 6th Street, Suite 300, Fort Worth Tx 76102-3685, Alexandra W. Albright, Wallace B. Jefferson, Alexander Dubose Jefferson & Townsend LLP, 515 Congress Ave., Suite 2350, Austin TX 78701-3562, Andrew C. MacNally, Chris Lind, Bartlit Beck Herman Palenchar & Scott LLP, 54 W. Hubbard, Suite 300, Chicago IL 60654, Jason C. Murray, Karma M. Giulianelli, Bartlit Beck Herman Palenchar & Scott LLP, 1801 Wewatta, Suite 1200, Denver CO 80202, for Petitioner.

Reagan W. Simpson, R. Paul Yetter, Christopher D. Porter, Shane A. Pennington, Wyatt J. Dowling, Yetter Coleman LLP, 811 Main Street, Suite 4100, Houston TX 77002, Richard B. Farrer, Yetter Coleman LLP, 909 Fannin Suite 3600, Houston TX 77010, Roland K. Johnson, Harris Finley & Bogle, P.C., 777 Main Street, Suite 1800, Fort Worth TX 76102, for Respondent.

Paul W. Green Justice

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.

I. Background

Direct connections in the airline industry refer to methods used to market airfare directly to travel agents. Once travel agents gain access to an airline's reservation system through a direct-connect method, they can review the airline's inventory, check flight availability, price flight options, and book flights for passengers. Airlines also use indirect methods, such as intermediaries, to market and sell airfare. Sabre Travel International, Ltd., has long served as an intermediary in the travel industry. Through a computerized system known as a Global Distribution System (GDS), Sabre connects airlines with consumers by aggregating travel offerings of multiple airlines for comparison shopping by travel agents. Sabre's GDS is one of the largest on the market, aggregating content for over 400 airlines.

Deutsche Lufthansa Airline Group owns multiple subsidiary airlines. Four of those airlines (collectively, Lufthansa) contracted with Sabre to market and sell tickets through Sabre's GDS. Under the contracts, Sabre received a booking fee when travel agents booked flights on Lufthansa. The contracts also contained non-discrimination provisions, preventing Lufthansa from disadvantaging travel agents who use Sabre's GDS instead of a competing GDS.

Concerned with the expense of GDS services, Lufthansa calculated that it cost the airlines approximately $ 18 more for every ticket booked through a GDS. To allocate this cost, increase transparency, and offset the high fees of GDS services, Lufthansa introduced an $ 18 surcharge to airline tickets sold through GDSs. The surcharge does not apply to tickets booked through non-GDS channels, such as direct connections and Lufthansa's own websites.

Sabre protested that the surcharge violated the contracts' non-discrimination provisions because Lufthansa did not impose the same surcharge equally across all GDSs. Lufthansa maintains otherwise, arguing that its surcharge complies with the parties' contracts. This dispute became the subject of Lufthansa's declaratory judgment suit against Sabre, and Sabre's corresponding counterclaim for breach of contract.

Sabre, in response to the surcharge, allegedly began encouraging travel agents to breach their contracts with Lufthansa by directing them to book travel through Lufthansa's direct connections, where there is no surcharge, and then enter the itineraries into Sabre's GDS so that travel agents could avoid the surcharge and Sabre could collect its booking fee. Because of Sabre's alleged actions, Lufthansa amended its petition to include a claim for tortious interference with contract between Lufthansa and its travel agents. Lufthansa also added a breach of contract action against Sabre for charging Lufthansa for non-billable administrative bookings—in other words, passive bookings.

Sabre promptly filed a motion to dismiss Lufthansa's tortious interference claim under Texas Rule of Civil Procedure 91a, arguing that the federal ADA preempts claims for tortious interference with contract. See 49 U.S.C. § 41713(b)(1) (providing a federal mandate that preempts any state "law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier"); TEX. R. CIV. P. 91a (providing for dismissal of a cause of action that has no basis in law or fact). The trial court denied Sabre's Rule 91a motion but certified the legal question under Texas Civil Practice and Remedies Code section 51.014(d) —providing for permissive interlocutory appeals. In its order, the court stated that the applicable Texas case law, while persuasive, "is factually different in ways which could be construed to make it distinguishable as controlling authority" regarding whether the ADA preempts tortious interference claims by airlines, and that "an immediate appeal may materially advance the termination of litigation." See Frequent Flyer Depot, Inc. v. Am. Airlines, Inc. , 281 S.W.3d 215, 221–22 (Tex. App.—Fort Worth 2009, pet. denied) (holding that the ADA did not preempt American Airlines' tortious interference claim brought to protect against a black-market reseller brokering American Airlines' frequent-flyer miles). The interlocutory order also noted that because holdings from other jurisdictions concluded that ADA preemption applies to claims against GDSs, the question "is ripe for consideration, especially from the Second Court of Appeals which authored the Frequent Flyer Depot opinion and, ultimately, the Texas Supreme Court."

The court of appeals denied the permissive appeal in a single-sentence memorandum opinion without explanation but noted in a footnote that "courts strictly construe the interlocutory appeals statute." 549 S.W.3d 600, 601 n.3 (Tex. App.—Fort Worth 2017, pet. granted) (mem. op.) (citing Blakenergy, Ltd. v. Oncor Elec. Delivery Co. , No. 02-14-00241-CV, 2014 WL 4771736, at *1 & n.2 (Tex. App.—Fort Worth Sept. 25, 2014, no pet.) (mem. op.) (per curiam) ).

Sabre filed a petition for review in this Court, asserting that the court of appeals abused its discretion in denying the permissive interlocutory appeal and that the ADA preempts Lufthansa's tortious interference claim. Lufthansa, on the other hand, argues that there is no preemption under the ADA, and even if there is, this Court has no jurisdiction to hear the case because the court of appeals denied the permissive interlocutory appeal. We granted the petition. 61 Tex. Sup. Ct. J. 1420 (June 15, 2018).

II. Jurisdiction

Our jurisdiction turns on the issue of whether an intermediate appellate court's denial of a permissive interlocutory appeal prevents this Court from reaching 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), which states that "[a] petition for review is allowed to the Supreme Court for an appeal from an interlocutory order described by Section 51.014(a)(3), (6), or (11), or (d), Civil Practice and Remedies Code."1 Act of May 30, 2011, 82d Leg., R.S., ch. 203, § 3.02, 2011 Tex. Gen. Laws 757, 758, repealed by Act of May 29, 2017, 85th Leg., R.S., ch. 150, § 4(3), 2017 Tex. Gen. Laws 291, 292. The trial court certified the interlocutory order according to section 51.014(d), and for the reasons explained below, we conclude that implicates our jurisdiction under section 22.225(d).

A. Section 51.014(d) & (f) —Permissive Interlocutory Appeals

As a general rule, appeals may be taken only from final judgments. E.g. , Lehmann v. Har-Con Corp. , 39 S.W.3d 191, 195 (Tex. 2001). "A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, except as necessary to carry out the decree." Id. Consistency, finality, and judicial economy fix the final judgment rule in our jurisprudence so that appellate courts, including this Court, decide issues on a full record, do not unnecessarily delay the underlying trial, avoid futility, and consider all issues in a single round of review. See, e.g. , Hernandez v. Ebrom , 289 S.W.3d 316, 322 (Tex. 2009) (Jefferson, C.J., dissenting) ("The purposes of the final judgment rule are to avoid piecemeal litigation, to promote judicial efficiency, and to defer to the decisions of the trial court." (citation omitted) ).

There are, of course, exceptions to the final judgment rule that allow an immediate appeal before final judgment when the issue is so important that an answer should not wait until the case concludes. The Texas Constitution provides such an exception for certain appeals. See TEX. CONST. art. V, § 3–b (allowing direct appeals to this Court from a trial court in injunction cases involving matters of constitutionality). Likewise, this Court's writ power provides a mechanism for appellate review before final judgment in some circumstances. See,...

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