Michael A. Hirsch and Law Offices of Michael A. Hirsch, P.C. v. Joe Ergonis and Linda Ergonis — Memorandum Opinion Per Curiam

Motion 	to 	Dismiss 	Denied; 	Petition 	for 	Permissive 	Appeal 	Denied; 	and
Memorandum Opinion filed October 22, 2026.
In The
Fourteenth Court of Appeals
NO. 14-26-00925-CV
MICHAEL A. HIRSCH AND LAW OFFICES OF MICHAEL A. HIRSCH,
P.C., Appellants
V.
JOE ERGONIS AND LINDA ERGONIS, Appellees
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
152nd District Court
Harris County, Texas
Trial Court Cause No. 2022-48290
MEMORANDUM OPINION
Appellants Michael A. Hirsch and the Law Offices of Michael A. Hirsch,
P.C. (collectively, “Hirsch”) filed a petition requesting permission to appeal the
trial court’s August 20, 2026 amended order denying Hirsch’s motion for partial
summary judgment on certain legal malpractice claims asserted by former clients,

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appellees Joe and Linda Ergonis. As explained below, we conclude Hirsch has not
demonstrated that the appeal “may materially advance the ultimate termination of
the litigation.” Tex. Civ. Prac. & Rem. Code § 51.014(d). We therefore deny
Hirsch’s petition for permissive appeal. See id. § 51.014(f)-(g).
Background
The 	Ergonises’ 	malpractice 	claims 	allegedly 	arose 	from 	Hirsch’s
representation in a lawsuit seeking damages for home construction defects. During
that lawsuit, a dispute arose between Hirsch and the Ergonises, and Hirsch moved
to withdraw, asserting good cause existed for his withdrawal because continued
representation would violate attorney disciplinary rules. The Ergonises filed no
documents opposing the withdrawal motion. Following a hearing, the trial court
signed an order granting the motion. That order later merged into the final
judgment, which was affirmed on appeal.1
After Hirsch 	withdrew, the Ergonises 	filed 	the underlying malpractice
lawsuit against Hirsch, asserting claims for negligence, breach of fiduciary duty,
and breach of contract. Hirsch moved for partial summary judgment on certain
claims. Hirsch stated that the Ergonises’ claims fell into two categories: (1) claims
arising from the order granting Hirsch’s motion to withdraw in the construction-
defect lawsuit; and (2) claims arising from Hirsch’s legal representation in that
lawsuit. Hirsch argued that the affirmative defense of collateral estoppel barred the
first category of claims because the withdrawal order was conclusive and any
claims based on his withdrawal “represent an impermissible collateral attack” on
the withdrawal order. Hirsch’s motion did not challenge the second category of
1 See Ergonis v. Sultzbaugh, No. 02-25-00043-CV, 2026 WL 784969, at *1 (Tex. App.—
Fort Worth Mar. 19, 2026, no. pet.) (mem. op.).

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claims related to Hirsch’s legal work in the construction-defect lawsuit.
Following a hearing, the trial court signed an amended order denying
Hirsch’s motion for partial summary judgment. This order also granted Hirsch
permission to appeal the interlocutory order under section 51.014(d) of the Texas
Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 51.014(d).
The trial court identified the following controlling question of law as to which
there is a substantial ground for difference of opinion: “[W]hether an order
permitting [an] attorney’s motion for withdrawal for good cause shown, to which
no objection was made, is subject to collateral attack in a subsequent lawsuit.” The
trial court also found that an immediate appeal from its amended order to resolve
that question would (1) “determine the viability of [the Ergonises’] claims and
causes of action,” and (2) “likely advance the ultimate termination of this lawsuit.”
Hirsch then filed a petition for permissive appeal in this court, asking us to accept
his appeal of the interlocutory order.
Applicable Law
Appellate 	review 	is 	ordinarily 	limited 	to 	final 	judgments. 	Harley
Channelview Props., LLC v. Harley Marine Gulf, LLC, 690 S.W.3d 32, 37 (Tex.
2024). We have no jurisdiction to review interlocutory orders unless review is
conferred by statute. Id. “A departure from the final judgment rule in the form of
an interlocutory appeal must be strictly construed because it is ‘a narrow exception
to the general rule that interlocutory orders are not immediately appealable.’”
Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 736 (Tex.
2019) (quoting CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011)).
Section 51.014(a) authorizes several categories of “interlocutory appeals as
of right,” meaning parties may pursue them without judicial permission. Helena

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Chem. Co. v. Bales, 735 S.W.3d 728, 730 (Tex. 2026) (citing Tex. Civ. Prac. &
Rem. Code § 51.014(a)). By contrast, section 51.014(d) authorizes interlocutory
appeals only upon securing judicial permission. Id. (citing Tex. Civ. Prac. & Rem.
Code § 51.014(d)). Under that section, a trial court may permit an appeal from an
interlocutory order that is otherwise unappealable if two requirements are met:
(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.
Id.2 The trial court’s permission to appeal under section 51.014(d) “must be stated
in the order to be appealed,” and its permission 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 the litigation.” Tex. R. Civ. P. 168. An order may be amended to
include such permission, like the trial court’s amended order here. Id.
If a trial court permits an appeal from an interlocutory order pursuant to
section 51.014(d), the party seeking to appeal must then petition the court of
appeals for permission to appeal. See Tex. R. App. P. 28.3(a). A court of appeals
may accept an appeal permitted by section 51.014(d) if the appealing party
explains why the appeal is warranted under that section. Tex. Civ. Prac. & Rem.
Code § 51.014(f). The petition must “argue clearly and concisely [1] why 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] how an immediate appeal from
2 See Tex. Civ. Prac. & Rem. Code § 51.014(d–1) (specifically excluding actions brought
under the Texas Family Code from allowable permissive appeals).

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the order may materially advance the ultimate termination of the litigation.” Tex.
R. App. P. 28.3(e)(4); see Tex. Civ. Prac. & Rem. Code § 51.014(d).
An appellate court has discretion to accept or deny a properly certified
permissive appeal under section 51.014(d). See Helena Chem., 735 S.W.3d at 730.
But “[a]ppellate courts have no discretion to accept a permissive appeal if section
51.014(d)’s two requirements are not satisfied.” Zurich Am. Ins. Co. v. MB2 Dental
Sols., LLC, 698 S.W.3d 355, 358 (Tex. App.—Dallas 2024, no. pet.) (citing Indus.
Specialists, LLC v. Blanchard Refin. Co., 652 S.W.3d 11, 15-16 (Tex. 2022)
(plurality op.)).
Analysis
We first address the Ergonises’ motion to dismiss Hirsch’s petition for
permissive appeal as untimely. “A petition for permissive appeal must be timely to
confer jurisdiction on the court of appeals to hear the matter.” See Progressive
Cnty. Mut. Ins. v. Dowdy, No. 01-20-00817-CV, 2022 WL 1572044, at *2 (Tex.
App.—Houston [1st Dist.] May 19, 2022, no pet.) (mem. op.). The appellate rules
require the petition to be filed within fifteen days after the date the order to be
appealed is signed. See Tex. R. App. P. 28.3(c). If the order is amended to include
the court’s permission to appeal, the time to petition the court of appeals runs from
the date the amended order is signed. See id. An extension of time may be granted
if the party files the petition within fifteen days after the deadline and files a proper
motion for extension of time. See id. 28.3(d).
The Ergonises contend that the amended order denying Hirsch’s motion for
partial summary judgment was signed on August 20, 2026, making the deadline to
petition this court for permission to appeal September 4, 2026. They assert both
this court’s file stamp and the automated certificate of service from this court’s

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electronic filing system show that Hirsch filed the petition on September 8, 2026.
They further assert that Hirsch did not file a motion for extension of time. They
therefore contend the petition is untimely and we lack jurisdiction to consider it.
Our records, however, indicate that Hirsch timely filed the petition. See
Covenant Clearinghouse, LLC v. Kush & Krishna LLC, No. 14-23-00092-CV,
2024 WL 1732481, at *4 n.3 (Tex. App.—Houston [14th Dist.] Apr. 23, 2024, pet.
denied) (mem. op.) (stating appellate courts may take judicial notice of their own
records in cases involving the same subject matter and parties). The First and
Fourteenth 	Courts 	of 	Appeals 	have 	concurrent 	geographical 	jurisdiction 	and
alternate the assignment of permissive appeals. See Tex. Gov’t Code § 22.201(b),
(o); 14th Tex. App. (Houston) Loc. R. 1.6. Hirsch originally filed the petition in
the First Court of Appeals on September 4, 2026, and the petition was assigned to
this court. The First Court of Appeals therefore rejected the filing the next business
day — September 8, 2026 — and instructed Hirsch to refile the petition in this
court under the assigned case number. Hirsch refiled later that day as instructed.
Because Hirsch timely filed the petition in the First Court of Appeals, and
promptly refiled in this court, we have jurisdiction to consider it. See Tex. R. App.
P. 9.2(a) (“A document is filed in an appellate court by delivering it to . . . the clerk
of the court in which the document is to be filed.”); Warner v. Glass, 135 S.W.3d
681, 684 (Tex. 2004) (“[A]n instrument is deemed in law filed at the time it is left
with the clerk, regardless of whether or not a file mark is placed on the instrument
and regardless of whether the file mark gives some other date of filing.”); Coastal
Banc SSB v. Helle, 988 S.W.2d 214, 216 (Tex. 1999) (“When a dispute arises as to
the filing date of an instrument essential to a courts appellate jurisdiction, the date
the instrument is tendered to the clerk controls, and not the file-stamp date.”).

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We proceed to address the propriety of allowing an interlocutory appeal. 	It
is apparent at the outset that the trial court’s permission to appeal as stated in the
amended order denying Hirsch’s motion for partial summary judgment is deficient.
Rule 168 requires that an order granting permission to appeal under section
51.014(d) “state why an immediate appeal may materially advance the ultimate
termination of the litigation.” Tex. R. Civ. P. 168 (emphasis added). Here, the trial
court granted Hirsch permission to appeal, finding that “an immediate appeal of
[the amended order] will likely advance the ultimate termination of this lawsuit”
because “resolution of the [certified question] will determine the viability of [the
Ergonises’] claims and causes of action.” But that rationale merely states the
obvious, as any plausible legal issue raised in a motion for summary judgment
necessarily bears on the viability of a claim or defense pending in the lawsuit. See
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n.5 (Tex. 1979)
(stating the function of summary judgment is “to eliminate patently unmeritorious
claims and untenable defenses”). This conclusory statement is insufficient to
explain why an immediate appeal to resolve the certified question may materially
advance the ultimate termination of the litigation. See Ochoa v. Avila, No. 08-23-
00051-CV, 2023 WL 1991579, at *2 (Tex. App.—El Paso Feb. 14, 2023, no pet.)
(mem. op.) (dismissing petition for permissive appeal because trial court only
recited statutory requirement that an immediate appeal advances the ultimate
termination of litigation, but it did not explain why). It does not, for instance,
“identify what claims and issues remain to be decided in the litigation so that our
court may evaluate whether the remaining disputes and issues are substantial and
dependent on [the certified question] that [Hirsch] seek[s] to appeal.” Armour Pipe
Line Co. v. Sandel Energy, Inc., No. 14-16-00010-CV, 2016 WL 514229, at *3

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(Tex. App.—Houston [14th Dist.] Feb. 9, 2016, no pet.) (per curiam) (mem. op.).
In compliance with the appellate rules, Hirsch’s petition to this court
explains why an immediate appeal from the amended order may materially
advance the ultimate termination of the litigation. See Tex. R. App. P. 28.3(e)(4).
Hirsch contends that, because the Ergonises “do not specifically identify any other
independent 	basis 	for their causes of action 	against Hirsch” apart 	from his
withdrawal in the construction-defect lawsuit, “if the order permitting Hirsch’s
withdrawal for good cause shown is not subject to collateral attack, then [the
Ergonises] cannot prove essential elements of their asserted causes of actions.”
We disagree for more than one reason. 	First, Hirsch’s compliance with the
appellate rules does not cure the deficiency in the amended order. See Ridgefield
Permian 	Minerals, 	LLC 	v. 	DOH 	Oil 	Co., 	No. 	08-25-00033-CV, 	2025 	WL
1161458, at *4 (Tex. App.—El Paso Apr. 21, 2025, no pet.) (mem. op.) (citing
Mack v. Pittard, No. 04-24-00201-CV, 2024 WL 2836624, at *3 (Tex. App.—San
Antonio June 5, 2024, no pet.) (per curiam) 	(mem. op.) (“While the petition
[appellants] filed in this court explains—as required by Texas Rule of Appellate
Procedure 28.3—why they believe an immediate appeal may materially advance
the ultimate termination of the litigation, [appellants] cite no authority holding that
their own compliance with Rule 28.3 permits us to overlook the Rule 168
deficiency in the trial court’s order, and we have found no such authority.”)).
Second, even if we disregard the order’s deficiency, the record does not
support a conclusion that an immediate appeal from the amended order may
materially advance the ultimate termination of the litigation. The purpose of a
permissive appeal is to permit “expedited appellate disposition of focused and
potentially dispositive legal questions.” Armour Pipe Line, 2016 WL 514229, at

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*4. That purpose “is not served if this procedure is used to obtain piecemeal
appellate review of ordinary interlocutory summary judgment orders.” Id. Texas
courts, including this one, have explained that “when 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., 698
S.W.3d at 359-60 (collecting cases); see Atlas Oil Co. v. Donovan, No. 14-25-
00633-CV, 2025 WL 2859117, at *6 (Tex. App.—Houston [14th Dist.] Oct. 9,
2025, no pet.) (mem. op.) (denying petition for permissive appeal because, even if
court granted petition and held trial court erred in denying motion for summary
judgment, multiple issues would remain pending in the litigation).
Although 	Hirsch’s 	petition 	to 	this 	court 	argues 	that 	the 	Ergonises’
malpractice lawsuit rests solely on Hirsch’s withdrawal from the construction-
defect lawsuit, Hirsch acknowledged in his briefing to the trial court that claims
would remain pending even if the trial court granted his motion for partial
summary judgment. Specifically, Hirsch stated that his motion did not challenge
the Ergonises’ claims related to his legal work in the construction-defect lawsuit.
Accordingly, we deny the Ergonises’ motion to dismiss Hirsch’s petition as
untimely. But we conclude section 51.014(d) does not authorize a permissive
appeal from the amended order denying Hirsch’s motion for partial summary
judgment because it will not materially advance the ultimate termination of the
litigation. See Tex. Civ. Prac. & Rem. Code § 51.014(d)(2); id. § 51.014(g) (if a
court of appeals does not accept a permissive appeal, “the court shall state in its
decision the specific reason for finding that the appeal is not warranted . . .”). We

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therefore deny Hirsch’s petition.3
PER CURIAM
Panel consists of Justices Wise, Jewell, and Wilson.
3 We express no opinion on whether Hirsch satisfied the first requirement of section
51.014(d), namely whether the order appealed involves a controlling question of law as to which
there is a substantial ground for difference of opinion. See Tex. Civ. Prac. & Rem. Code
§ 51.014(d)(1); see also Tex. R. App. P. 47.1.