Schindler Elevator Corp. v. Anderson

KEM THOMPSON FROST, Justice,

concurring on denial of rehearing en banc.

I write separately to respond to the dissenting opinion on the denial of rehearing en banc. A majority of the en banc court voted not to reconsider the panel’s decision en banc.1 See Tex.R.App. P. 49.7. That decision is compelled by the exacting standard for en banc review imposed by the Texas Rules of Appellate Procedure.2

*424En banc review at the intermediate appellate courts was instituted to maintain uniformity of a court’s decisions as a single, unitary body, even though the court may sit in panels. See O’Connor v. First Court of Appeals, 887 S.W.2d 94, 96 (Tex.1992) (discussing promulgation of Rule 79, predecessor to current en banc rehearing rule, after constitutional amendment authorized increase in size of intermediate courts and allowed courts to sit in panels of three). Rule 41.2 of the Texas Rules of Appellate Procedure governs the decision to grant a motion for rehearing by an en banc court. Tex.R.App. P. 41.2. The portion of that rule relevant here provides:

(c) En banc consideration disfavored. 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).3

Appellant’s motion for rehearing en banc did not address the standard for en banc review as set forth in Rule 41.2(c). Appellant did not cite to a direct conflict between the panel opinion and any other opinion of this court.4 Thus, en banc review is not required in this case to maintain uniformity of our decisions.

Appellant also failed to delineate the extraordinary circumstances that necessitate review by the en banc court. While our learned Chief Justice asserts that the issues he discusses in the dissenting opinion to the denial of en banc review are important, they are not the focus of appellant’s motion for rehearing. Indeed, the Chief Justice acknowledges that appellant did not mention the constitutional questions the dissenting opinion raises. Instead, the motion presented two points of error that, while related to the discussion in the dissenting opinion, concentrated on the jury argument but failed to specifically attack the holding in the panel opinion that the trial court erred in remitting part of appellees’ damages.5 Appellant argued the jury argument was incurable, obviating the necessity for an objection, and that the argument caused the jury to award excessive damages. Appellant did not challenge the factual sufficiency review of the remitted damages.

Any motion for rehearing is required to “clearly state the points relied on for the rehearing.” Tex.R.App. P. 49.1. Absent an extraordinary situation, such as an intervening ruling from this court or a higher court that directly impacts the panel’s opinion, the decision whether to grant en banc review should be based upon the points asserted in the motion for rehearing. Furthermore, the party seeking en banc review should set forth the specific reasons why the case meets the standard for such review.

Whether a majority of the en banc court may disagree with all or a part of a panel opinion is not the standard for en banc review. Neither is an assertion that an issue is “important” sufficient. Rather, the rules promulgated by the Texas Supreme Court require that extraordinary *425circumstances exist before ordering en banc review when there is no conflict among panel decisions. The issues before the panel in this case are important, but the appellant has not met the heightened criterion imposed in the rule.6

For these reasons, I respectfully concur with the majority decision to deny rehearing en banc.

. "An en banc court consists of all members of the court who are not disqualified or re-cused and ... any members of the panel who are not members of the court but remain eligible for assignment to the court.” Tex. R.App. P. 41.2(a).

. See S & L Restaurant Corp. v. Leal, 883 S.W.2d 221, 237 (Tex.App.—San Antonio 1994) (Hardberger, J., concurring in denial of en banc review) (stating case did not meet "exacting standard”of the rule), rev’d, 892 S.W.2d 855 (Tex.1995).

. The language in this portion of Rule 41.2 is nearly identical to that in the former rule.

. Appellant noted only that Gannett Outdoor Co. of Texas v. Kubecaka, 710 S.W.2d 79 (Tex.App.—Houston [14th Dist.] 1986, no writ), which was cited in the panel opinion, should not control the outcome in this case.

.Appellant raised three issues in the motion: (1) to request punishment in the compensatory damages phase constitutes incurable jury argument; (2) the actual damages are excessive and infected by incurable argument; and (3) unqualified expert testimony on causation was erroneously admitted.

. Cf. Willover v. State, 38 S.W.3d 672, 684 (Tex.App.—Houston [1st Dist.] 2000, pet. granted) (Taft, J., dissenting) ("The panel opinion’s holding effectively turns the prevailing rule, 180 degrees around, to overturning a trial court’s ruling on appeal if such ruling is incorrect for a reason not previously mentioned either at trial or on appeal. I find this beyond extraordinary.”) (emphasis in original); Crestway Care Center, Inc. v. Berchelmann, 945 S.W.2d 872, 873 n. 2. (Tex.App.—San Antonio 1997, orig. proceeding) (explaining that extraordinary circumstances for en banc review were satisfied when majority disagreed with panel’s interpretation of law and its decision to issue extraordinary remedy of mandamus, which is reserved for manifest and urgent necessity).