en-banc-review in the court of appeals

law-en-banc-review by appellate court | panel decisions | motion for rehearing | motion for en banc rehearing
what does en banc review mean ? - Review (of a panel opinion) by the court as a whole, with all members
participating (unless recused or disqualified)

LEGAL STANDARD FOR EN BANC REHEARING

Rule 41.2(c) provides:
En banc consideration of a case is not favored and should not be ordered unless
necessary to secure or maintain uniformity of the court’s decisions or unless
extraordinary circumstances require en banc consideration. Tex. R. App. P. 41.2(c).

CASES

Sharp Dissent from denial of en banc review in Walker v. DFPS (Tex.App.- Houston [1st Dist.] Oct. 9, 2009)
(Sharp) (termination of parental rights)
OPINION DISSENTING TO THIS COURT'S JUDGMENT: Dissenting Opinion by Justice Sharp
Before Justices Jennings, Hanks and Bland
01-07-00867-CV Frederick Dewayne Walker v. Department of Family and Protective Services
Appeal from 314th District Court of Harris County
Trial Court Judge: Hon. John Phillips

Justice Thompson Frost sees no point in en banc exercise where Supreme Court
precedent controls disposition of survivors' claims in asbestos injury/death case
Ross v. Union Carbide Corp. (Tex.App.- Houston [14th Dist.] Aug. 25, 2009) (Guzman) (survivors' asbestos
claims for exemplary damages and loss of consortium barred by release signed by worker ill from asbestos
desease prior to his death)
AFFIRMED: Opinion by Justice Eva Guzman
Before Price, Chief Justice Hedges, Justices Brock Yates, Anderson, Frost, Seymore, Guzman, Brown and
Sullivan
14-07-00860-CV Marjorie Ross, Joan Seelback, Timothy R. Ross, James R. Ross, Billy R. Ross and Robert
R. Ross v. Union Carbide Corporation
Appeal from 133rd District Court of Harris County
Trial Court Judge: L amar McCorkle
Concurring Opinion by Justice Frost in Marjorie Ross, Joan Seelback, Timothy R. Ross, James R. Ross,
Billy R. Ross and Robert R. Ross v. Union Carbide Corporation (no point in en banc review)
Concurring Opinion by Senior Justice Price in Marjorie Ross, Joan Seelback, Timothy R. Ross, James
R. Ross, Billy R. Ross and Robert R. Ross v. Union Carbide Corporation (disagreeing with supreme court
precedent and reluctantly concurring)

Justice Alcala has vigorous disagreement with Justice Jennings over propriety of en-banc
review in case in which she wrote the panel opinion. Jennings had not been on the panel,
but found fault with it.

Texas Rules of Appellate Procedure Disfavor En Banc Consideration

The Texas Rules of Appellate Procedure plainly state that en banc consideration is "disfavored" and "should
not be ordered" unless one of two circumstances exist:

* •En banc consideration is appropriate if it is "necessary to secure or maintain uniformity of the court's
decisions."

* •En banc consideration is appropriate if "extraordinary circumstances require en banc consideration."

See Tex. R. App. P. 41.2(c). Unless one of these two circumstances exists, the rules of appellate procedure
require cases be decided in panels composed of three justices. See id. Justice Jennings was not assigned as
a member of the three justice panel assigned to hear this case, nor did he participate in the panel
conference, nor did he hear the oral argument heard by the panel.
Alcala Concurrence in Denial of En Banc Review in Macy v. Waste Management, Inc. (Tex.App.- Houston [1st
Dist.] Aug. 28, 2009) (Concurrence with denial of en banc reconsideration by Justice Alcala)
OPINION CONCURRING WITH THIS COURT'S JUDGMENT:
Concurring Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Hanks
01-07-00276-CV Griffin Macy v. Waste Management, Inc.
Appeal from 157th District Court of Harris County
Trial Court Judge: The Honorable Randall Wilson

Macy v. Waste Management, Inc. (Tex.App.- Houston [1st Dist.] Aug. 28, 2009)(Dissent by Jennings)
OPINION DISSENTING TO THIS COURT'S JUDGMENT: Dissenting Opinion by Justice Jennings
Before Chief Justice Radack, Justices Alcala and Hanks
01-07-00276-CV        Griffin Macy v. Waste Management, Inc.
Appeal from 157th District Court of Harris County

In a footnote, Justice Jennings suggests that this case is worthy of en banc consideration because Macy
claims that the panel's opinion "reads an arbitration provision into an agreement" and creates "a new
standard pursuant to which parties must expressly state that they are not forfeiting their right to sue." The
panel opinion does not hold that this is an arbitration case; it is plainly evident that this is not an arbitration
case as it was resolved based on the merits by summary judgment in the trial court. The panel opinion does
not hold that Macy forfeited his right to sue; it is plainly evident this case does not concern the forfeiture of
the right to sue, in that this case was resolved based on the merits by summary judgment in the trial court.

The panel opinion does not create a new standard, but instead applies well-established breach of contract
law. The panel opinion states,

"Whether a contract is ambiguous is a question of law that must be decided by examining the contract as a
whole in light of the circumstances present when the contract was entered." David J. Sacks, P.C. v. Haden,
266 S.W.3d 447, 451 (Tex. 2008) (quoting Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.
2d 587, 589 (Tex. 1996)). . . . Our primary concern in interpreting a contract is to ascertain and give effect to
the intent of the parties as it is expressed in the contract. Seagull Energy E & P, Inc. v. Eland Energy, Inc.,
207 S.W.3d 342, 345 (Tex. 2006). The intent of the parties must be taken from the agreement itself, not from
the parties' present interpretations, and the agreement must be enforced as it is written. See Sun Oil Co. v.
Madeley, 626 S.W.2d 726, 731-32 (Tex. 1981).

Macy, 2009 WL 1493012, at *4. This is a breach of contract dispute between sophisticated parties who
entered into an arms-length contract with terms specific to their particular desires. Because the panel opinion
applies well established law set by the Texas Supreme Court and our Court, nothing about this case lacks
uniformity with established precedent or is legally extraordinary. Justice Jennings, therefore, disregards the
rules of appellate procedure criteria for en banc consideration.

Justice Keyes Dissents from Denial of En Banc Review Lamenting Panel's Misapplication
of Summary Judgment Standard
Kennamer v. The Estate of Alwin Noblitt (Tex.App.- Houston [14th Dist.] 2009)(Higley)
(animal law, liability of injuries caused by cow running loose, ownership of cow disputed, summary judgment,
no ownership, no duty, no liability)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Chief Justice Radack, Justices Nuchia and Higley
01-08-00134-CV John L. Kennamer, Individually and John L. Kennamer and Mora Kennamer d/b/a K-Bar
land and Cattle Company v. The Estate of John Alwin Noblitt, Deceased, Charles R. Noblitt, Jr., Individually
and as Administrator of the Estate of John Alwin Noblitt, Deceased, and Jo Ann Jones, Individually and as
Heir of The Estate of John Alwin Noblitt, Deceased
Appeal from County Court at Law No 2 & Probate Ct of Brazoria County
Trial Court Judge: Hon. Mark Holder
CASE WITH DISSENT: Dissenting Opinion by Justice Keyes (criticizing panel for subverting summary
judgment standard and permitting resolution of issues of disputed fact by summary judgment, crediting
evidence submitted by movant).

In Re Hicks (Tex.App. - Houston [14th Dist.] Sep. 25, 2008)(Dissent on en banc motion by Frost)
(discovery disputes, privilege)
DISSENTING: Dissenting Opinion by Justice Frost
Before Chief Justice Hedges, Justices Brock Yates, Anderson, Guzman, Brown and Boyce
14-07-00590-CV In Re: Michael Hicks and Jerry Fazio
Appeal from 155th District Court of Austin County
Trial Court Judge: Judge Daniel R. Beck

Justice Guzman, who dissented on panel reviewing appeal from fire truck wreck case,
writes court's majority opinion on en banc motion for rehearing; Vision-impaired fire
fighter who drove truck without corrective lenses and recklessly caused accident resulting
in serious injury not entitled to official immunity after all (--> 2008 opinions with dissents)
Green v. Alford (Tex.App. - Houston [14th Dist.] July 15, 2008)(Opinion on en banc rehearing by Guzman)
(PI, fire truck collision liability, official immunity defense rejected)
AFFIRMED: Opinion by Justice Guzman
Before Chief Justice Hedges, Justices Brock Yates, Anderson, Hudson, Fowler, Frost, Seymore, Guzman,
Brown and Boyce
14-05-00407-CV   Christopher Green v. Dwainia Alford, Individually and as Next Friend of Aaron Alford and
Ronald Alford
Appeal from 152nd District Court of Harris County
Trial Court Judge: Kenneth Price Wise
Concurring Opinion by Justice Frost
Dissenting Opinion by Justice Hudson

In the Interest of J.A.J. (Tex.App. - Houston [14th Dist.] May 10, 2007)(Frost)
(criticism of failure of en banc court to resolve conflict among panels, under same factual circumstances
different panel had reach opposite conclusion)
DISSENTING: Opinion by Justice Frost
Before Chief Justice Hedges, Justices Brock Yates, Anderson, Hudson, Fowler, Edelman, Frost, Seymore,
Guzman and Mirabal
14-04-01031-CV In the Interest of J.A.J
Appeal from 314th District Court of Harris County (Judge John Phillips)