Concurring and dissenting opinion issued November 15, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-09-00448-CV
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QUALITY INFUSION CARE, INC., Appellant
V.
HEALTH CARE SERVICE CORPORATION D/B/A BLUE CROSS AND
BLUE SHIELD OF TEXAS; HOWARD KING;
AND HILL & FINKEL, L.L.P., Appellees
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Case No. 2008-04683
CONCURRING AND DISSENTING OPINION ON REHEARING
I concur with the portion of this Court’s judgment vacating our December
29, 2011 judgment and dismissing the appeal. See TEX. R. APP. P. 42.1(a).
Subsumed in that portion of the judgment, I agree with this Court dismissing the
January 13, 2012 motion for rehearing as moot.
I dissent, however, from the portion of the new judgment that withdraws our
December 29, 2011 opinion. See TEX. R. APP. P. 42.1(c).
The Supreme Court of Texas has made the policy concerns with
withdrawing opinions after settlement clear:
A settlement does not automatically require the vacating of a court of
appeals’ opinion—either by this court or by the intermediate appellate
court. Our courts are endowed with a public purpose—they do not sit
merely as private tribunals to resolve private disputes. While
settlement is to be encouraged, a private agreement between litigants
should not operate to vacate a court’s writing on matters of public
importance.
Houston Cable TV, Inc. v. Inwood West Civic Ass’n, 860 S.W.2d 72, 73
(Tex.1993). The settling parties’ motion to vacate and affirm does not advance a
reason why the former unanimous non-memorandum opinion1 should be
withdrawn—they merely ask the Court to do so, presumably for solely private
purposes.
1
See Quality Infusion Care, Inc. v. Health Care Serv. Corp.,
No. 01-09-00448-CV, 2011 WL 6938518 (Tex. App.—Houston [1st Dist.]
Dec. 29, 2011).
2
Without a statement from the settling parties as to why withdrawing the
opinion serves the public interest, I would not do so and, accordingly, I
respectfully dissent to such withdrawal.
Jim Sharp
Justice
Panel consists of Justices Keyes, Sharp, and Massengale.
3