MARTIN GONZALEZ v. MARGARITA EMILIA MONTALVO (2026)

OPINION

Decedent Rebecca A. Gonzalez left her estate to three of her children. Appellant Martin Gonzalez, one of her children, appeals the trial court's order granting the independent executor's application for sale of some of her estate's real property. Martin argues that the trial court erred by (1) denying him a jury trial; (2) finding that the real property is incapable of partition in kind; (3) proceeding with the application for sale when there are unresolved issues as to who is entitled to the estate and in what amount; and (4) expunging Martin's notice of lis pendens. We affirm in part and reverse and remand in part.

BACKGROUND

Decedent executed a will that left her home to her children Martin and Mary Ann Gonzalez in equal shares and hundreds of acres in real property to her children Margarita, Martin, and Mary Ann in equal shares. Decedent expressly disinherited her daughter Elma Gonzalez Ramirez because Decedent, during her lifetime, had provided for Elma and given her “substantial gifts of real property.” Decedent appointed Margarita and Martin as independent co-executors, but Martin renounced his right to be an executor in favor of Margarita. The trial court admitted Decedent's will to probate after she died and granted Margarita, as independent executor, letters testamentary.

Then the litigation started. Elma contested Decedent's will. Margarita, Margarita's daughter, and Elma settled Elma's claims, agreeing to distribute Decedent's estate in a different manner than stated in the will. But Martin and Mary Ann did not sign the agreement, instead answering Elma's will contest; Martin also filed a counterclaim. Months later, all four siblings—Elma, Martin, Margarita, and Mary Ann—signed a mediated settlement agreement resolving all claims. Martin, Mary Ann, and Elma nonsuited their claims.

But the settlement did not end this dispute. Over a year later, Martin filed a demand for accounting and distribution and original petition against Margarita, asserting she violated the will's in terrorem clause—which provides that a beneficiary will lose an inheritance if she challenges the will—and breached her fiduciary duty. He also filed a notice of lis pendens.

About thirteen months later, Margarita filed an application to sell some of the estate's real property to pay outstanding estate administration expenses and claims against the estate and for partition and distribution or sale of the remaining real property and a motion to expunge Martin's lis pendens. She outlined why she believed the trial court needed to partition the remaining property:

• she had distributed Decedent's home to Martin and Mary Ann but several parcels of real property remained in the estate;

• she had provided a full accounting of the estate to the beneficiaries for the relevant period;

• she, Martin, and Mary Ann could not reach a settlement after mediation to resolve issues regarding reimbursement of expenses, payment of outstanding debts, and distribution of the estate's remaining real property;

• she had advised the beneficiaries that she would need to sell some of the land to pay for the estate's outstanding debts and administration expenses and received a “verbal understanding” that the Old Santa Rosa Property would be the least objectionable parcel to sell;

• she had entered into contracts to sell the Old Santa Rosa property, but she could not get title insurance unless all three beneficiaries signed off on the sale; and

• the will did not provide a means for partition of the estate, and the remaining eight tracts of real property are incapable of a fair and equal partition and distribution.

The trial court held a hearing, granted Margarita's application to partition and sell the real property, and expunged Martin's notice of lis pendens. Martin moved for new trial, which was overruled by operation of law, and appealed.

ANALYSIS

I. Jurisdiction

Margarita argues, as a preliminary matter, that this appeal should be dismissed for lack of jurisdiction because the trial court's order on her application to sell the real property is not a final appealable order. Margarita and Martin have both made this argument in a motion to dismiss and a motion to abate, respectively. We denied both motions, and we again hold today that we have jurisdiction over this appeal.

This court generally only has jurisdiction over a final judgment, and there is generally only one final judgment per case. See Estate of Wheatfall, No. 24-0778, 2026 WL 406025, at *3, ___ S.W.3d ___, ___ (Tex. Feb. 13, 2026). But not in a partition case: “A partition case, unlike other proceedings, has two final judgments and the first one is appealable as a final judgment.” Griffin v. Wolfe, 610 S.W.2d 466, 466 (Tex. 1980) (per curiam); Estate Land Co. v. Wiese, 546 S.W.3d 322, 325 (Tex. App.—Houston [14th Dist.] 2017, pet. denied); Campbell v. Tufts, 3 S.W.3d 256, 258 (Tex. App.—Waco 1999, no pet.) (“A judicial partition involves two appealable orders.”).

The two final judgments arise from different phases of a partition case. See Tex. R. Civ. P. 760, 761, 770. In the first phase, the trial court determines whether the partition will be in kind or by sale, the share or interest of the joint owners or claimants, and all questions of law or equity affecting title. Estate Land Co. v. Wiese, 546 S.W.3d 322, 325 (Tex. App.—Houston [14th Dist.] 2017, pet. denied); Johnson v. Johnson-McHenry, 978 S.W.2d 142, 144 (Tex. App.—Austin 1998, no pet.). That determination is final and appealable. Estate Land Co., 546 S.W.3d at 326. In the second phase, the trial court approves the terms of the proposed sale of the property that it determined in the first phase must be partitioned. Id. “This second order must be appealed after its issuance, but before the property is sold.” Sutton v. Sutton, No. 14-20-00335-CV, 2021 WL 4999031, at *3 (Tex. App.—Houston [14th Dist.] Oct. 28, 2021, no pet.) (citing Taylor v. Hill, 249 S.W.3d 618, 624 (Tex. App.—Austin 2008, pet. denied)).

Not only that, but the court reviewing the second order cannot review issues that were determined in the first order. Id.; Long v. Spencer, 137 S.W.3d 923, 926 (Tex. App.—Dallas 2004, no pet.). “The reasoning behind the rule is clear: in the partition process, decisions must be made upon which other decisions will be based.” Long, 137 S.W.3d at 926. Allowing an appeal at each stage is “a practical way” to review these “controlling, intermediate decisions” before any error causes irreparable injury. Id.

This appeal is from an order entered in the first phase authorizing Margarita to sell real property at a private sale for cash. This is a proper appeal, and we have jurisdiction. See Estate Land Co., 546 S.W.3d at 326.

II. Right to Jury Trial

Martin contends in his first issue that the trial court erred when it denied him a jury trial—Elma requested a jury and paid the fee, which Martin says gives all parties the right to a jury trial. We disagree.

Here, Elma filed a jury request and paid the jury fee after she filed her will contest. But she nonsuited all her claims in the will contest after the mediated settlement agreement. “ ‘When a party nonsuits a legal action, the parties are put back in the same positions as before the filing of the suit.’ ” Goode v. McGuire, No. 01-21-00535-CV, 2023 WL 5208053, at *9 (Tex. App.—Houston [1st Dist.] Aug. 15, 2023, no pet.) (quoting Hagberg v. City of Pasadena, 224 S.W.3d 477, 484 (Tex. App.—Houston [1st Dist.] 2007, no pet.)). In Goode, our sister court held that a party was not entitled to a jury when the party who requested one nonsuited its claims. Id. So too here. Elma's nonsuit was effective immediately and put the parties in their positions before the will contest. Thus, there was no suit filed and no jury request—there was only Margarita's application to probate the will and for issuance of letters testamentary and the order granting both.

The trial court therefore did not abuse its discretion when it denied Martin a jury trial. See Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996); In re R.C., No. 14-22-00384-CV, 2022 WL 17038529, at *4 (Tex. App.—Houston [14th Dist.] Nov. 17, 2022, no pet.) (reviewing trial court's denial of a jury trial for an abuse of discretion). We overrule his first issue.

III. Partition of Real Property in Kind

Martin argues in his second issue that the trial court erred in finding that eight separate real property tracts, ranging in size from 18 to 457 acres, were incapable of partition in kind in equal shares among the devisees. We agree.

Decedent's will did not distribute the entire estate or provide a means for partitioning the estate. In such a situation, the Estates Code provides that an independent executor may petition the probate court for either a partition and distribution of the estate or an order of sale of any portion of the estate alleged by the executor and found by the court to be incapable of a fair and equal partition and distribution, or both. See Tex. Est. Code § 405.008.

Texas law favors partition in kind over sale of land for division. Robertson v. Robertson, 425 S.W.2d 707, 708 (Tex. App.—Houston [14th Dist.] 1968, no writ); see Bowman v. Stephens, 569 S.W.3d 210, 220 (Tex. App.—Houston [1st Dist.] 2018, no pet.); Carter v. Harvey, 525 S.W.3d 420, 429 (Tex. App.—Fort Worth 2017, no pet.). As such, the party seeking a partition by sale has the burden of demonstrating that the estate property was incapable of a fair and equal partition. See Bowman, 569 S.W.3d at 220; Carter, 525 S.W.3d at 429-30.

We review this determination for an abuse of discretion. See Bowman, 569 S.W.3d at 223-28. “ ‘Generally, where the evidence is conflicting or admits of more than one inference, it is a question of fact for the jury or the trier of facts whether or not a partition in kind is feasible or a sale for division necessary.’ ” Bowman, 569 S.W.3d at 220 (quoting Robertson, 425 S.W.2d at 708). One of the recognized factors for determining whether property is incapable of partition in kind is whether it can be divided without materially impairing its value. Carter, 525 S.W.3d at 429.

The evidence at the hearing on Margarita's application for sale showed that each property could not individually be divided fairly and equitably. Margarita testified that each tract must individually be divided into three equal parts (between her, Martin, and Mary Ann), which was not possible to do so that “each of the three sections would have the exact equivalent amount of acreage.” Real estate broker Benavidez, called by Margarita to testify about the Old Santa Rosa tract, agreed that it cannot be divided into three equal sections with the same acreage.

But that evidence does not address the proper question. The proper question is whether the estate as a whole—not each individual tract—can be divided into three: “where the properties are in several parcels, the owners are not entitled to a share of each property, but only to an equal share of the whole,” and “a partition among co-tenants must generally embrace the entire common estate, rather than parcel by parcel, and, where the estate in common consists of several tracts, it is not necessary that there should be assigned to each co-tenant a share in each parcel.” Yturria v. Kimbro, 921 S.W.2d 338, 343 (Tex. App.—Corpus Christi–Edinburg 1996, no writ).

On this point, Margarita offered no evidence. There was no testimony that the tracts could not have been partitioned in kind by combining different tracts or parts of tracts for a fair and equal partition. Also, in evaluating whether the estate properties were capable of partitioning, no consideration was given to the value, acreage, and features of tract 3, which was given to Martin under the mediated settlement agreement. Margarita and Mary Ann are owed an offset for that tract when evaluating how and if the estate properties can be partitioned in kind.

The trial court abused its discretion in finding the estate is incapable of a fair and equal partition without considering whether the estate as a whole could be divided, rather than each tract. Accordingly, we sustain Martin's second issue.¹

IV. Lis Pendens

Martin asserts in his fourth issue that the trial court erroneously expunged his notice of lis pendens.

A party seeking relief in a real property claim may file a notice of lis pendens “[p]ending the outcome of an action involving proper title to, establishing an interest in, or enforcing an encumbrance against real property ․” Sommers for Alabama & Dunlavy, Ltd. v. Sandcastle Homes, Inc., 521 S.W.3d 749, 753 (Tex. 2017) (citing Tex. Prop. Code § 12.007(a)). A lis pendens is a notice of litigation, placed in the real property records, asserting an interest in the property and notifying third parties that ownership of the property is disputed. Walker v. Walker, 631 S.W.3d 259, 267 (Tex. App.—Houston [14th Dist.] 2020, no pet.). A trial court shall expunge a notice of lis pendens if (1) the pleading on which the notice is based does not include a real property claim; (2) the claimant does not establish by a preponderance of the evidence the probable validity of the real property claim; or (3) the claimant fails to serve a copy of the record notice on all parties entitled to receive it. Tex. Prop. Code § 12.0071(c)(1)-(3); Sandcastle Homes, Inc., 521 S.W.3d at 753-54.

Martin only addressed notice, the third prong, in the trial court, even though Margarita moved on all three prongs. He argued that he mailed an updated and corrected lis pendens with same day notice to Margarita and Mary Ann, which he says was proper. But Martin failed to meet his evidentiary burden to show the probable validity of a real property claim, and the trial court properly expunged his notice of lis pendens. See In re I-10 Poorman Invs., Inc., 549 S.W.3d 614, 617 (Tex. App.—Houston [1st Dist.] 2017, orig. proceeding).

Accordingly, we overrule Martin's fourth issue.

CONCLUSION

We affirm the trial court's order expunging Martin's notice of lis pendens, and we reverse and remand this case for further proceedings in accordance with this court's opinion.

FOOTNOTES

1.   In light of our disposition, we need not address Martin's third issue.

Katy Boatman Justice