Brookshire Brothers, Inc. v. Wesley Smith








In The

Court of Appeals

For The

First District of Texas

____________


NO. 01-02-00677-CV

____________


BROOKSHIRE BROTHERS, INC., Appellant


V.


WESLEY SMITH, Appellee





On Appeal from the 411th District Court

Trinity County, Texas

Trial Court Cause No. 17,290





SUPPLEMENTAL OPINION

ON MOTIONS FOR FURTHER REHEARING AND

FOR EN BANC RECONSIDERATION


          Appellee, Wesley Smith (Smith), has challenged our opinion issued on rehearing on May 13, 2004 by filing a “Motion for Rehearing En Banc.” We construed Smith’s motion as requesting both further rehearing and en banc reconsideration. We have denied further rehearing, and the en banc Court has voted to deny en banc reconsideration.

          We issue this supplement to our opinion of May 13, 2004 to (1) explain the settled practice that this Court follows when a party timely files both a motion for rehearing or further rehearing and a motion for en banc reconsideration, as we described that practice in Butler v. State, 6 S.W.3d 636, 637 n.1 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d), and thus clarify that (2) the Butler practice applies in civil cases.

                                              Procedural Background

          This Court has issued three opinions in this case—an original opinion, issued on July 31, 2003, and two opinions on rehearing, issued on December 31, 2003 and May 13, 2004. Smith challenged each of these by filing a single motion in which he requested both rehearing by the original panel of justices who decided the case and reconsideration by the en banc Court. Appellant, Brookshire Brothers, Inc., responded to all three motions. The Court has applied the same procedural practice to each of Smith’s challenges to the three opinions. The panel of justices who heard the case has twice granted Smith’s motions for rehearing by issuing a new opinion and judgment. These issued on December 31, 2003 to replace the July 31, 2003 opinion and judgment, and on May 13, 2004 to replace the December 31, 2003 opinion and judgment. Smith’s motions for en banc reconsideration of the July 31, 2003 and December 31, 2003 opinions were rendered moot when the original panel granted rehearing.

          After we issued our May 13, 2004 opinion on rehearing, Smith timely filed a “Motion for Rehearing en Banc.” We construed that motion as requesting both further rehearing and en banc reconsideration. The justices who participated in the May 13, 2004 panel opinion considered Smith’s motion, to the extent that it constituted a motion for further rehearing, but concluded that it had no merit. Smith’s motion was then presented to the en banc Court, which voted to deny en banc reconsideration.

Discussion

          A motion for rehearing differs from and serves a different purpose than a motion for en banc reconsideration. For example, stricter time limits govern the motion for rehearing than govern the motion for en banc reconsideration. Compare Tex. R. App. P. 49.1 (must file motion for rehearing within 15 days after court-of-appeals judgment is rendered) with Tex. R. App. P. 49.7 (may file motion for en banc reconsideration while court of appeals has plenary jurisdiction); see also Tex. R. App. P. 19.1 (plenary power of court of appeals expires 60 days after judgment if no timely filed motion to extend time or motion for rehearing is then pending); Tex. R. App. P. 41.2(c) (stating that en banc reconsideration is disfavored and listing standards); Tex. R. App. P. 49.7 (reconsideration en banc suspends finality of panel’s judgment or order).

          Whether seeking rehearing, pursuant to rule 49.1, or further rehearing, pursuant to rule 49.5, a party’s sole purpose is to convince the panel of justices who considered the case to change the decision because it was erroneous—for whatever reason. See Tex. R. App. P. 49.1, 49.5; see also Tex. R. App. P. 49.3 (authorizing majority of justices who participated in the case to grant rehearing). In contrast, en banc reconsideration is limited to situations in which (1) en banc reconsideration is necessary to secure or maintain uniformity of the Court’s decisions or (2) extraordinary circumstances require en banc consideration. See Tex. R. App. P. 41.2(c).

          Smith’s “Motion for Rehearing en Banc” begins by arguing that extraordinary circumstances require en banc consideration of this case and thus invokes one of the standards of rule 41.2(c). See id. The arguments in the motion, however, repeatedly assert that “the panel opinion is wrong.” The substance of the motion thus concerns matters pertinent to motions for further rehearing under rule 49.5 and matters concerning rule 41.2( c).

          When a party timely files both a motion for rehearing or further rehearing and a motion for en banc reconsideration, it has long been the practice of this Court to present the motion for rehearing or further rehearing to the original panel of justices who heard the case; if the panel denies rehearing or further rehearing, as here, the motion for en banc reconsideration is then presented to the en banc Court. See Butler v. State, 6 S.W.3d 636, 637 & n.1 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d); see also Barker v. Eckman, No. 01-01-00079-CV, slip op. at 2, 2004 WL 163462 at *1 (Tex. App.—Houston [1st Dist.] Jan. 22, 2004, pet. granted) (mem. opinion on rehearing; citing Butler for discussion of treatment of motions for en banc consideration).

          Having considered the merits of Smith’s “motion for rehearing en banc,” we deny the motion to the extent that it constituted a further motion for rehearing under rule 49.5. See Tex. R. App. P. 49.5. On presentation of Smith’s request for en banc reconsideration, the en banc Court denied reconsideration en banc. See Tex. R. App. P. 49.7.

                                                             Conclusion

          We deny further rehearing.

 

 

 

     Elsa Alcala

     Justice

 

Panel consists of Chief Justice Radack and Justices Alcala and Higley. 

 

En banc reconsideration was requested. No majority of the en banc Court having voted for reconsideration, en banc reconsideration is denied.