Tesmec USA, Inc. v. Whittington

• Decision Date: 22 March 2006
• Docket Number: No. 10,10
• Citation: 192 S.W.3d 178
• Parties: TESMEC USA, INC., Appellant, v. ALLEN WHITTINGTON, Appellee.
• Court: Texas Court of Appeals

192 S.W.3d 178

TESMEC USA, INC., Appellant, v. ALLEN WHITTINGTON, Appellee.

No. 10-04-00301-CV.

Court of Appeals of Texas, Waco.

March 22, 2006.

John R. Jensen, Jensen & Jensen, Arlington, for Appellant.

Susan E. Hutchison, Grapevine, for Appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION DENYING REHEARING

PER CURIAM.

Appellant Tesmec, Inc. has filed a motion for rehearing in which it asserts three issues: (1) legally insufficient evidence to meet the clear and convincing evidence standard required for a malice finding; (2) legally insufficient evidence to support the jury's finding of retaliatory discharge; and (3) error in issuing an opinion on the affirmative vote of two justices, thereby obviating potential appellate jurisdiction to the Supreme Court of Texas. We will overrule the motion, discussing only the third issue because it arose at the time our opinion was issued.

On April 26, 2005, under our Internal Administrative Rules, the court adopted "Procedures for Internal Deadlines for Approval of Opinions and Orders" ("Procedures"), which are Attachment "A" and which became effective on May 2, 2005. Following the Procedures, the opinion was issued on January 25, 2006, just over nine weeks after it was placed in circulation on November 22, 2005.

The motion for rehearing is denied.

GRAY, C.J., dissents.

Gray, Chief Justice, dissenting.

DISSENTING OPINION TO OPINION DENYING [Motion for] REHEARING

This case now presents a near perfect example of why the justices on a panel should wait for the considered opinion of all three justices. The problem that keeps it from being a perfect example is that I cannot fully explain the significance and the intricacies of this exemplary case.

What happened on motion for rehearing is that the majority prepared an Opinion on Rehearing. I prepared a dissenting opinion. When my draft dissenting opinion on rehearing was circulated, they decided to substantially revise their opinion on rehearing to what you see now. While it would be improper for me to discuss the substance of the prior draft, the fact that the opinion they were willing to issue changed after they reviewed my dissenting opinion functionally explains why the opinions of all three justices should be obtained, reviewed, and considered before any opinion is issued.

Nevertheless, I must dissent to the opinion denying rehearing. The majority purports to address only the issue that "arose at the time our opinion was issued," that being the issuance of an opinion by only two of the justices. Maj. Op. at p. 179. In their opinion, the majority references only the Procedures for Internal Deadlines for Approval of Opinions and Orders as justification for issuing an opinion and judgment on which only two judges had voted. They assert that the opinion was issued "[f]ollowing the procedures." As I will explain, this is misleading; but that is really not the important issue.

The critical issue is the question of whether one justice, on a three judge panel, has the discretion to prioritize his or her own work or will the other two justices be allowed to arbitrarily set a deadline to which the third justice must adhere or be deemed to have agreed to the opinion and judgment of the other two justices. The lone justice is thus required to choose between compliance with internal procedures that set an arbitrary deadline in a case or his or her own determination of what matter has the highest priority, based on the relevant constitutional, statutory, and procedural rules, to which time should be devoted.

To understand this issue, I need to provide a frame of reference for the reader. Some of what follows has been distilled from a number of opinions, both published and unpublished.

CHOICES

We should first discuss choices. What are my choices when the majority's arbitrary deadline is upon me? The majority apparently believes I have the following choices:

1. dissenting without a separate opinion;

2. dissenting with opinion to follow;

3. concurring without a separate opinion;

4. concurring with opinion to follow; and

5. not participating.

Not participating is not an option, and I will discuss that later. So that leaves four choices.

The interesting aspect of these four choices is that each of the four indicates that I should vote on the result that I believe is appropriate. What this reveals, since I believe this is a comprehensive list of all the choices they think are appropriate, is one of two things. Either they do not read what I write, or they believe it is appropriate to decide on the result before conducting the research necessary to determine the legally correct result.

In my special note in this case, and the others in which I have been required to utilize this procedural tool, I have tried to explain that I have not had the time to conduct the analysis I believe is necessary to determine if I agree or disagree with the result. If they took the time to read these notes, they would know that I believe the analysis should be done before the decision. So, either they have not read my explanations, or they believe it is appropriate to decide upon the result and then prepare the opinion necessary to support that result. I have always thought the analysis should be done first and then vote on the result.

NOT PARTICIPATING IS NOT AN OPTION

Next, I must address whether it is appropriate for a justice on a panel to simply "not participate" in a decision. In none of the special notes or opinions I have issued will you find any language from me that suggests that I am not participating in the consideration and review of the case, in particular the opinion and judgment in the case. You will find only language that explains I am not yet prepared to vote—a clear indication I want to participate in the decision. But the majority refuses to hold their opinion long enough for me to properly consider it. In Krumnow, for example, after an extensive explanation of the problems in the case, I conclude my observations about the many issues in the case with the following:

So, for all the reasons given, I can say no more than I am present but not prepared to vote on the merits of this case as of the date the opinion of only two members of the panel is being issued.

Krumnow v. Krumnow, 174 S.W.3d 820, 840 (Tex.App.—WacoAugust 24, 2005, pet. filed) (Special Note by Chief Justice Gray issued August 31, 2005). My inability to vote at the time the opinion was being issued in this case is no different than it has been in any of the other cases in which two justices refused to wait for the considered vote of the third justice before they issued their opinion. Furthermore, and by far the most important observation, is that I do not believe I have the option to "not participate" in casting a vote on a judgment disposing of an appeal. See Texas Parks and Wildlife v. E.E. Lowrey, 2004 WL 2481000, *1, 2004 Tex.App. LEXIS 9824, *16-17 (Tex. App. — Waco 2004, order) (Gray, C.J., dissenting) (not designated for publication). I believe it is my ethical duty to participate. "A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate." TEX. CODE JUD. CONDUCT, Cannon 3(B)(1), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit, G app. B (Vernon 1997). A single judge may, however, decide a motion; thus, participation in the decision of every motion is not necessary to fulfill this ethical requirement. See TEX. R. APP. P. 10.4(a) (a single judge may decide a motion).

I know that Justice Vance holds an opinion to the contrary on whether he must participate in or recuse/disqualify himself from reviewing and voting on opinions. But I have waited for months for Justice Vance to participate in the decision of a case, and notwithstanding that he may have initially noted that he was not participating, to this date he has ultimately always cast a vote.

I do not believe I have the right to veto the issuance of any opinion as Justice Vance has implied in his opinions. Texas Parks and Wildlife v. E.E. Lowrey, 2004 WL 2481000, *1, 155 S.W.3d 456, 2004 Tex.App. LEXIS 9824, *14 (Tex.App. — Waco 2004, order) (Vance, J., concurring) (not designated for publication); Pac. Emplrs. Ins. Co. v. Mathison, No. 10-04-00314-CV, 2005 WL 2665454, *3, 2005 Tex. App. LEXIS 8650, *11 (Tex.App.—Waco Oct. 19, 2005, no pet.) (Vance, J., concurring); Park v. Montgomery County, No. 10-04-00231-CV, 2005 WL 2667488, 2005 Tex.App. LEXIS 8646, *12-13 (Tex.App. — Waco Oct. 19, 2005, pet. filed) (Vance, J., concurring). I simply believe that I have the discretion to prioritize what I choose to work on based upon changing events and the relative priorities and deadlines set by the legislature and high courts and not some arbitrary deadline created by an internal rule of questionable benefit for the Court. See Johnson v. Baylor Univ., 188 S.W.3d 296, 311 (Tex.App.—Waco 2006, no pet. h.) (Special note by Chief Justice Gray); Cathey v. Meyer, 115 S.W.3d 644, 673-674 (Tex.App.—Waco 2003), aff'd in part and rev'd in part, Meyer v. Cathey, 167 S.W.3d 327 (Tex.2005).

While the majority may accept "not participating" as an option—they know I do not believe it to be an option.¹

PROCEDURES AND MORE PROCEDURES

Now for a little additional background on this case leading to the issuance of an opinion which, for all purposes, appears to have been joined in by me at the time it was issued. My special note in this case quotes the e-mail in which I notified the author of the opinion and the majority what my position was on the proposed opinion and judgment of the Court—that I was not yet prepared to vote.

Other Internal Procedures

But the misleading part of the majority opinion is in the statement that the opinion was issued "[f]ollowing the procedures" adopted on April 26, 2005, making it seem that they are the only relevant procedures. They are not. The date the opinion was...