Rene Angel Hernandez and Noe Lauro Hernandez, Independent of the Estate of Benito Hernandez v. Ricardo Hernandez and Joel Hernandez

2026-08-20

Summary · law.co

Holding. The Court of Appeals denied the petition for permissive interlocutory appeal and dismissed the appeal for lack of jurisdiction, holding that appellants failed to establish entitlement to appeal because the trial court inadequately explained how immediate review would materially advance ultimate termination of litigation when other claims remained pending.

Appellants sought permission to appeal an interlocutory summary judgment order before the trial court had resolved all claims and parties in the case. Although the trial court identified a controlling question of law—whether the defendants violated a no-contest clause in a will—and stated that immediate appeal might advance litigation, the court failed to adequately explain why an appeal would materially advance the case's ultimate termination given that the defendants had pending counterclaims and cross-claims still to be resolved. Additionally, the trial court had not ruled on other grounds raised in the parties' summary judgment motions.

For a permissive interlocutory appeal to be proper, the requesting party must demonstrate that the order involves a controlling question of law with substantial grounds for disagreement and that immediate appeal would advance the ultimate termination of litigation. The appellate court concluded that appellants did not meet these requirements because unresolved counterclaims and cross-claims meant further litigation would be necessary regardless of how the appeal was decided.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Requirements for permissive interlocutory appeals under Texas law
Whether no-contest clause was violated
Whether unresolved counterclaims and cross-claims preclude finding that appeal would advance ultimate termination of litigation

Procedural posture

Appellants appealed from a summary judgment order by the probate court by filing a petition for permissive interlocutory appeal.

Authorities cited

567 S.W.3d 725

Opinion · public domain

majority opinion

NUMBER 13-26-00567-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

RENE ANGEL HERNANDEZ AND

NOE LAURO HERNANDEZ,

INDEPENDENT EXECUTOR OF THE

ESTATE OF BENITO HERNANDEZ,

DECEASED, Appellants,

RICARDO HERNANDEZ AND

JOEL HERNANDEZ, Appellees.

ON APPEAL FROM THE PROBATE COURT NO. 2

OF HIDALGO COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices Silva and Cron

Memorandum Opinion by Chief Justice Tijerina

Appellants Rene Angel Hernandez and Noe Lauro Hernandez, Independent

Executor of the Estate of Benito Hernandez, Deceased, have filed a petition for permissive interlocutory appeal seeking to challenge the trial court’s order granting

summary judgment in favor of appellees Ricardo Hernandez and Joel Hernandez.

Generally, an order that does not dispose of all claims and all parties is

interlocutory and is not an appealable order. Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa

AG, 567 S.W.3d 725, 730 (Tex. 2019). To be entitled to a permissive appeal from an

interlocutory order that is not otherwise appealable, the requesting party must establish

to the trial court that (1) the order “involves a controlling question of law as to which there

is a substantial ground for difference of opinion” and (2) allowing an immediate appeal

“may advance the ultimate termination of the litigation.” TEX. CIV. PRAC. & REM. CODE

§ 51.014(d); see also TEX. R. APP. P. 28.3 (setting out the requirements for permissive

appeals in civil cases). If the trial court grants permission to appeal, we may accept the

appeal if the appeal is warranted under the foregoing criteria. TEX. CIV. PRAC. & REM.

CODE § 51.014(f); see Sabre, 567 S.W.3d at 732 (“Texas courts of appeals have

discretion to accept or deny permissive interlocutory appeals certified under section

351.014(d) . . . .”). The trial court must identify the “controlling question of law as to which

there is a substantial ground for difference of opinion” and “state why an immediate appeal

may materially advance the ultimate termination of litigation.” TEX. R. CIV. P. 168; Archibald

v. El Paso Orthopedic Surgery Grp., P.A., No. 08-22-00091-CV, 2023 WL 2214184, at *6

(Tex. App.—El Paso Feb. 24, 2023, no pet.) (mem. op.).

Here, the trial court’s order states that the sole “issue of whether Defendants Ricardo

Hernanez and Joel Hernandez violated the no contest clause contained in the Last Will and

Testament of Benito Hernandez” is the “Trigger Issue.” The trial court’s order states that it

“did not rule on any other grounds contained in” the parties’ summary judgment motions. The

trial court found that:

(1) As a matter of law, Defendants Ricardo Hernandez and Joel Hernandez did

not violate the no contest clause contained in the Last Will and Testament

of Benito Hernandez.

(2) The Trigger Issue is a controlling question of law as to which there is a

substantial ground for differences of opinion.

(3) An immediate appeal from this Order may materially advance the ultimate

termination of the litigation . . . any trial of this case depends on the

resolution of the Trigger issue, which is a question of law for the Court and

not a proper issue for the jury . . . . The Trigger issue determines whether

the Court must reach other defenses such as Defendants Ricardo

Hernandez and Joel Hernandez’s good father and just cause defense.

However, the trial court’s order does not state why an immediate appeal may materially

advance the ultimate termination of litigation when appellees have pending counterclaims

and cross-claims against appellants. “[W]hen other issues are left pending in the litigation,

ultimate termination of the litigation is not advanced by allowing immediate appeal of an

otherwise interlocutory order.” Zurich Am. Ins. Co. v. MB2 Dental Sols., LLC, 698 S.W.3d

355, 359 (Tex. App.—Dallas 2024, pet. dism’d). Furthermore, the trial court did not rule

on any other grounds contained in the parties’ motions for summary judgment. Thus,

“[w]ere we to grant the petition, regardless of how we might resolve the appeal and the

legal question at issue, neither party would seek judgment without further litigation.” Id.

Having reviewed appellants’ petition and the record documents attached thereto,

this Court is of the opinion that appellants have not shown entitlement to a permissive

interlocutory appeal. Accordingly, we deny the petition for permissive interlocutory appeal,

and we dismiss the appeal for want of jurisdiction.

JAIME TIJERINA

Chief Justice

Delivered and filed on the

20th day of August, 2026.