Supreme Court of Texas

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No. 23-0223

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Leo Bienati, Theresa Pham, Carlos Lacayo and Andres Ruzo,

Petitioners,

v.

Cloister Holdings, LLC, 

Respondent

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On Petition for Review from the

Court of Appeals for the Fifth District of Texas

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PER CURIAM

The issue in this case is whether delay of a trial pending the

appellate review of a temporary injunction deprives the court of appeals 

of jurisdiction to hear the appeal. The court of appeals concluded that 

the trial court’s delay would render any judgment in the interlocutory 

appeal advisory, and thus it dismissed the appeal for want of 

jurisdiction. 

Parties ordinarily should proceed to trial pending an appeal from

a temporary injunction. See Sw. Weather Rsch., Inc. v. Jones, 327 

S.W.2d 417, 422 (Tex. 1959). Although “[g]enerally[,] the most 

expeditious way of obviating the hardship and discomforture of an 
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unfavorable preliminary order is to try the case on its merits,” id., the 

failure to do so does not deprive a court of appeals of jurisdiction over 

the appeal. An interim appellate decision resolves a current controversy 

and governs the parties until final judgment. Accordingly, the court of 

appeals erred in dismissing this appeal for want of jurisdiction based on 

a delay of the trial date. We reverse its judgment and remand the case 

to that court for further proceedings. 

I

Petitioners Leo Bienati and Theresa Pham are part owners of 

Holy Kombucha, Inc., a beverage company. Holy Kombucha’s lender, 

Montgomery Capital Partners IV, LP, holds a security interest in the 

company. Respondent Cloister Holdings, LLC, also owns a stake in the 

company. Holy Kombucha’s shareholders’ agreement provides that its 

five-member board of directors must include Bienati, Pham, two Cloister 

nominees, and one Montgomery nominee.1 The board must not transact 

business without a quorum. That quorum must include one Cloister 

nominee, the Montgomery nominee, and either Bienati or Pham. 

Cloister alleges that Bienati and Pham mismanaged Holy 

Kombucha’s finances, and Montgomery failed to appropriately 

intervene. As a result, Cloister refused to participate or vote in board 

meetings. When Cloister stymied business activity by refusing to 

participate, Bienati, Pham, and the Montgomery nominee purported to 

1 The shareholders’ agreement provides that Bienati and Pham 

collectively designate two members of the board; they designated themselves. 

Montgomery Capital Partners IV, LP, is an affiliate of Montgomery Capital 

Advisers, LLC. Montgomery Capital Advisers, LLC and its affiliates have the 

right to designate one board member.
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amend the shareholders’ agreement by written consent, redefining the

quorum to no longer require a Cloister nominee’s presence.

After its quorum exclusion, Cloister sued Bienati, Pham, and the 

two Montgomery nominees (collectively, the enjoined board members), 

asserting contract and tort claims. The trial court granted Cloister’s 

request for a temporary injunction, forbidding the board members from 

“changing, altering, or limiting Cloister’s ‘Quorum’ rights” as the 

original shareholders’ agreement provided. 

The enjoined board members filed an interlocutory appeal, 

challenging the temporary injunction. See TEX. CIV. PRAC. & REM. CODE

§ 51.014(a)(4). While the appeal was pending, Bienati, Pham, and Holy 

Kombucha counterclaimed against Cloister and added the two Cloister 

nominees as third-party defendants. Bienati, Pham, and Holy 

Kombucha moved to adjust the scheduling order and to reset the trial 

date to permit discovery on these new claims. The trial court instead 

ordered that the case be “abated until either the 5th Court of Appeals 

rules on defendants’ Interlocutory Appeal or Thursday, January 5, 

202[3], when a hearing shall be held, whichever occurs first.” 

Meanwhile, in the court of appeals, the enjoined board members 

challenged the temporary injunction, contending that (1) the order did 

not preserve the status quo; (2) Cloister had not shown a probable right 

to relief or imminent, irreparable injury; (3) the trial court 

impermissibly amended the order; and (4) the bond was too low. 

Rather than addressing the merits, the court of appeals dismissed 

the appeal. It held that the trial court’s delay of the trial was “an effort 

to obtain an advisory opinion,” citing its own line of cases dismissing 
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appeals from a temporary injunction when a trial is delayed pending its 

decision. ___ S.W.3d ___, 2023 WL 1878879, at *2-*3 (Tex. App.—Dallas 

Feb. 10, 2023) (citing, e.g., Torres v. Brookins, No. 05-18-00028-CV, 2018 

WL 2382112, at *2 (Tex. App.—Dallas May 25, 2018, no pet.)). The court 

of appeals opined that appellate courts should “not reward this 

behavior,” observing the longstanding principle that “[t]he fastest way 

to cure the hardship of an unfavorable preliminary order is to try the 

case on the merits.” Id. at *3 (quoting Torres, 2018 WL 2382112, at *2). 

The court also pointed to Texas Rule of Civil Procedure 683, which 

provides that the appeal of a temporary injunction “shall constitute no 

cause for delay of the trial.” The enjoined board members petitioned for

review.

II

A

This Court has jurisdiction to determine whether the court of 

appeals properly determined its own jurisdiction, a ruling we review de 

novo. LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 75 

(Tex. 2011). A party is entitled to appeal an interlocutory order that 

“grants or refuses a temporary injunction.” TEX. CIV. PRAC. & REM. CODE

§ 51.014(a)(4). While such an appeal is pending, our Court has directed 

parties to expeditiously proceed to trial as a matter of judicial economy. 

See Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 208-09

(Tex. 1981); Coal. of Cities for Affordable Util. Rates v. Third Ct. of 

Appeals, 787 S.W.2d 946, 947 (Tex. 1990) (“Trial courts are to be 

encouraged to proceed expeditiously from the granting or denying of 

temporary injunctive relief to full consideration of the merits so as to 
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reduce the necessity for interlocutory appeals.”). A concerted effort to 

improve judicial management, however, does not remove an appellate 

court’s jurisdiction over an appeal from a temporary injunction merely 

because trial on the merits is delayed. Rather, the appellate court 

retains jurisdiction over the appeal until a final judgment moots 

consideration of it. Elec. Reliability Council of Tex., Inc. v. Panda Power 

Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 635 (Tex. 2021) 

(“[A] trial court’s entry of a final judgment will often moot an 

interlocutory appeal or mandamus petition that challenges a prior 

trial-court order.”). Maintaining appellate jurisdiction preserves the 

Legislature’s dual goals of conferring power to the appellate courts over 

interlocutory appeals from injunctions while permitting proceedings to 

advance in the trial court. See TEX. CIV. PRAC. & REM. CODE

§ 51.014(a)(4).

The enjoined board members contend that their appeal is neither 

the pursuit of an advisory opinion nor an advance ruling on the merits. 

Cloister responds that the appellate court’s dismissal for want of 

jurisdiction was proper because the enjoined board members delayed in

the trial court rather than expeditiously proceeding to final judgment. 

B

Texas courts have no jurisdiction to render advisory opinions. 

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 

1993). “The distinctive feature of an advisory opinion is that it decides 

an abstract question of law without binding the parties.” Id.; see also

Tex. Comm’n on Env’t Quality v. Maverick County, 642 S.W.3d 537, 549 

(Tex. 2022). The legal issues presented in this appeal, however, are not 
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abstract or hypothetical. The trial court’s injunction currently is in 

place, binding the parties pending final judgment, and the enjoined

board members challenge its propriety. A ruling from the court of 

appeals as to the propriety of the injunction will, in turn, bind the 

parties until the case is concluded. 

Justiciability doctrines like standing, mootness, and ripeness 

help ensure that courts do not issue advisory opinions. See Patterson v. 

Planned Parenthood of Hous. & Se. Tex., Inc., 971 S.W.2d 439, 442-43

(Tex. 1998). Cloister does not invoke any of these, and the court of 

appeals detected no jurisdictional defect. The enjoined board members 

have standing because the temporary injunction presently restrains 

their actions, and the court of appeals is empowered to grant relief by 

dissolving or modifying the injunction. See Austin Nursing Ctr., Inc. v. 

Lovato, 171 S.W.3d 845, 849 (Tex. 2005) (holding that standing requires 

“a real controversy between the parties” that “will be actually 

determined by the judicial declaration sought” (quoting Nootsie, Ltd. v. 

Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996))). 

Because the temporary injunction is currently in effect, presenting a live 

controversy, the case is not moot. See Heckman v. Williamson County, 

369 S.W.3d 137, 162 (Tex. 2012) (“A case becomes moot if . . . the issues 

presented are no longer ‘live,’ or if the parties lack a legally cognizable 

interest in the outcome.”). Similarly, the case is ripe for review because 

the temporary injunction currently restrains the enjoined board 

members, who have a statutory right to interlocutory review. See Sw. 

Elec. Power Co. v. Lynch, 595 S.W.3d 678, 683 (Tex. 2020) (holding that 

a case is not ripe if the “claimed injury is based on ‘hypothetical facts, or 
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upon events that have not yet come to pass’” (quoting Waco Indep. Sch. 

Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex. 2000))). In short, a decision 

from the court of appeals would bind the parties and resolve an actual 

controversy; accordingly, such a decision is not advisory. 

Further, a court of appeals’ ruling in an appeal from a temporary 

injunction presents a different inquiry than resolution of the merits of a 

case in a final judgment. To obtain a temporary injunction, a party must 

show “(1) a cause of action against the defendant; (2) a probable right to 

the relief sought; and (3) a probable, imminent, and irreparable injury 

in the interim.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 

2002). An interim ruling decides the legality of the temporary injunction 

and binds the parties until it is otherwise modified or vacated on final 

judgment, but it does not conclude the parties’ dispute. See Del Valle 

Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992).

When an appeal of a temporary injunction involves a question of 

law, overlap with the issues presented by the underlying merits often 

occurs. Such a possibility—or even likelihood—does not render an 

appellate decision on a temporary injunction advisory. A probable right 

to relief is simply that—probable. An appellate court determination 

that a party has shown a probable right to relief does not mean that the 

party obtaining temporary relief will prevail on the merits based on a 

fully developed record. Concomitantly, if an appellate court determines 

that a party failed to demonstrate a probable right to temporary relief, 

the case nonetheless continues, and a party may show facts or present 

legal arguments ultimately demonstrating that it is entitled to prevail.
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Texas Rule of Civil Procedure 683 and considerations of judicial 

economy are no justification for dismissal based on a lack of jurisdiction. 

Rule 683 does not provide that the remedy for the failure to proceed to 

trial is a jurisdictional bar to appeal, which is a statutory power the 

Legislature has conferred. In short, an appellate decision as to the 

propriety of a temporary injunction is not advisory, even if it involves a 

question of law that implicates the merits of the claims presented. The 

court of appeals had jurisdiction to consider the enjoined board 

members’ appeal. We disapprove of cases refusing to recognize 

jurisdiction to review temporary injunctions because trial court 

proceedings have been delayed pending an appeal from a temporary

injunction.2 

* * *

We hold that the court of appeals had jurisdiction over the 

enjoined board members’ interlocutory appeal of the temporary 

injunction despite the trial court’s abatement of proceedings. Without 

hearing oral argument, see TEX. R. APP. P. 59.1, we grant the petition for 

review, reverse the judgment of the court of appeals, and remand the 

case to that court for further proceedings consistent with this opinion.

OPINION DELIVERED: June 7, 2024

2 See Torres, 2018 WL 2382112, at *2; Arch Resorts, L.L.C. v. City of 

McKinney, No. 05-15-01108-CV, 2016 WL 3196767, at *2 (Tex. App.—Dallas 

May 26, 2016, no pet.); DK8, LLC v. HBT JV, LLC, No. 05-16-00320-CV, 2016 

WL 6094308, at *2 (Tex. App.—Dallas Oct. 19, 2016, no pet.); Senter Invs., 

L.L.C. v. Veerjee, 358 S.W.3d 841, 846-47 (Tex. App.—Dallas 2012, no pet.); 

Barnett v. Griego, 337 S.W.3d 384, 387 (Tex. App.—Dallas 2011, no pet.); 

Dall./Fort Worth Int’l Airport Bd. v. Ass’n of Taxicab Operators, USA, 335 

S.W.3d 361, 364-67 (Tex. App.—Dallas 2010, no pet.).