W.J. Billy Devillier and Paula Winzer v. A. P. Leonards and Mildred G. Leonards

Opinion issued October 1, 2020

In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00223-CV
NO. 01-20-00224-CV
———————————
W.J. BILLY DEVILLIER AND PAULA WINSER, Appellants
V.
A.P. LEONARDS AND MILDRED G. LEONARDS, Appellees

On Appeal from the County Court
Chambers County, Texas
Trial Court Case Nos. P03986A, P03846A

MEMORANDUM OPINION
 Appellants, W.J. “Billy” Devillier and Paula Winzer, seek permission to

appeal two virtually identical interlocutory orders on will construction issues.

Appellees, A.P. Leonards and Mildred G. Leonards, have not filed a resp onse to

the petitions for permissive appeal.

To be entitled to a permissive appeal from an interlocutory order that would

not otherwise be appealable, the requesting party must establish that (1) the order

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); See TEX. R. APP. P. 28.3(e)(4); TEX. R.

CIV. P. 168.

Both the trial court’s orders and relators’ p etitions for p ermissiv e appeal

identify the enforceability of the exculpatory clauses in the wills as the controlling

issue of law and assert the issue is one of first impression in Texas . Assuming

enforceability of the exculpatory clauses is a controlling question of law, the orders

and the petitions must still reflect substantial grounds for disagr eement as to the

issue. The trial court’s orders state:

The Court’s ruling contained in this Amended Order on Will
Construction Issues pertains to a controlling question of law, which is
undecided in Texas and to which there is a substantial ground for
difference of opinion. The controlling question of law is whether the
exculpatory clause contained [in each of the decedents’ wills] is
enforceable under Texas law.
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(Emphasis in original.) Although the orders refer to the enforceability of the

exculpatory clauses as one of first impression, they do not explain how or why

there is a “substantial ground for difference of opinion” on the issue.

Further, the trial court’s orders do not explain how the determination of the

appeals would materially advance the ultimate termination of the litigation. Nor do

appellants explain in their petitions how resolution of the issue would materially

advance the ultimate termination of the litigation. In fact, the only reference to this

requirement in the petitions is a citation to the trial court’s order s, which say the

permissive appeal “may materially advance the ultimate termination of the

litigation.”

Because we conclude that the petitions fail to establish each requir ement of

Texas Rule of Appellate Procedure 28.3(3)(e)(4), we deny the petitions

for permissive appeal.

PER CURIAM

Panel consists of Justices Keyes, Lloyd, and Landau.

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