Werner Enterprises, Inc. v. Blake
| Decision Date | 27 July 2021 |
| Docket Number | 14-18-00967-CV |
| Parties | WERNER ENTERPRISES, INC. AND SHIRAZ A. ALI, Appellants v. JENNIFER BLAKE, INDIVIDUALLY AND AS NEXT FRIEND FOR NATHAN BLAKE, AND AS HEIR OF THE ESTATE OF ZACHERY BLAKE, DECEASED; AND ELDRIDGE MOAK, IN HIS CAPACITY AS GUARDIAN OF THE ESTATE OF BRIANNA BLAKE, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 127th District Court Harris County, Texas Trial Court Cause No. 2015-36666
Upon its own motion, a majority of this court orders en banc consideration of this case.
En Banc Court consists of Chief Justice Christopher and Justices Wise, Jewell, Bourliot, Zimmerer, Spain, Hassan, Poissant and Wilson.
I dissent to the order granting en banc consideration at this stage of the case for two reasons. First, the en banc majority did not allow the panel to complete its job and issue an opinion, despite the majority's ability to withdraw that opinion later through an en banc order. Second, nothing in the briefing warrants en banc consideration.
Texas Rule of Appellate Procedure 41.1 makes clear that decisions are to be made by panels. This case is assigned to the panel of Justices Wise, Hassan, and Wilson. While a member of the court, on the member's own motion, can call for en banc consideration, such consideration normally happens after a panel opinion has already issued. Rarely, if there are multiple cases with the same issue, the court may discuss whether the cases should be heard en banc before a panel decision has issued. The court may also favor en banc consideration before a panel has acted if the court discovers a conflict in its own precedents that requires resolution. There are no such extraordinary circumstances in this case. There is no other appeal pending before this court with similar issues, nor are there any identified conflicts in our precedents. Simply put, in the eleven years that I have been on this court, there have been no grants of en banc consideration in a situation such as this.
There is no harm to the jurisprudence of the court if the panel opinions are allowed to issue and then en banc consideration is granted later. A decision to grant en banc consideration can also include the withdrawal of the panel opinions. Once those opinions are withdrawn, they are no longer part of the precedent of the court. (In fact, you cannot even see them on Westlaw.)
There are benefits to allowing the panel opinions to issue. And they are ready to issue. The parties to the case will know what one panel of the court thinks about its case. A party who disagrees with the decision can ask for rehearing by the panel or rehearing en banc. The court can also request responses to these motions. Through these motions and responses, the parties can help the panel and the en banc court decide whether the panel opinion needs to be changed. Granting en banc consideration at this stage eliminates those steps. When this order granting en banc consideration issues, the parties will have no idea why the court decided to grant en banc consideration.
This same en banc majority has reversed panel opinions written and joined by two of the dissenting justices[1] to this order. See e.g., In the Interest of L.C.L., 599 S.W.3d 79 (Tex. App.-Houston [14th Dist.] 2020, pet. denied); State v. Baldwin, 614 S.W.3d 411 (Tex. App.-Houston [14th Dist.] 2020, pet. granted). But the panel opinions were still allowed to issue in those other cases. What could be so different about this case? What is the en banc majority afraid of?
Nothing in the briefing requests that the court overturn a prior decision of the Fourteenth Court of Appeals. Therefore, there is no need to "secure or maintain uniformity of the court's decision," a requirement for en banc consideration. See Tex. R. App. P. 41.2. Nor does the briefing identify any other "extraordinary circumstance." Id. The briefing is fact intensive on the issue of duty and breach and on potential jury charge error. Perhaps after reviewing a motion for rehearing en banc I might rule differently, but the majority will not allow me that option.
The panel majority opinion has been silenced-not to see the light of day. The parties are unable to assist the en banc court in its determination of the issues in this case-as is their right.
DISSENT TO ORDER
More than twenty months after this case was first submitted to a panel for decision, five justices on this court have voted to order sua sponte en banc consideration in the first instance without the issuance of any panel opinions, even though the panel generated a majority opinion and a dissenting opinion, each of which stands ready to be issued. No party in this case has requested en banc consideration, and the en banc majority has not given any reason for using this exceedingly rare procedure at this late stage of the proceedings. Going directly to en banc has historically only been done for a few reasons. First, it is sometimes done if a panel believes it is necessary to overrule a prior opinion of that same court. However, this appeal does not raise any question as to whether this court, sitting en banc, should overrule one of its precedents. Second, a court may go directly to en banc if the panel was unable to agree on a judgment. That is not the case here. Third, a court may go directly to en banc if the court concludes that doing so would conserve resources because, given the issues in the case, en banc rehearing would almost certainly be granted regardless of the panel's decision. After more than twenty months of consideration at the panel level, granting en banc consideration in the first instance at this late stage does not conserve the resources that normally would be saved by skipping panel consideration. Even if en banc review of this case were otherwise appropriate, granting en banc consideration at this late stage deprives the parties of the ability to consider the panel opinions and provide the court feedback through rehearing motions and responses. There is simply no reason for this court to send the parties directly to en banc, not pass go, and not collect $200.
Frequently requested but rarely granted, en banc rehearing is disfavored and is reserved for a tiny percentage of cases that meet one or both of two hard-to-satisfy requirements.[1] En banc rehearing occurs after the panel considers the case, issues an opinion and judgment, along with any separate writing, and the parties have an opportunity to present briefing in response to the court's opinion and judgment, and any separate writing, including the parties' views as to whether the en banc court should review the case.[2] Texas courts of appeals have the power to grant en banc consideration of a case in the first instance, but their resort to this procedure has been exceedingly rare. Research indicates that in the history of Texas jurisprudence an intermediate court of appeals with more than three justices has ordered en banc consideration of a case in the first instance only about a dozen times.[3] The en banc court should explain why it has taken this highly unusual action.
Among these few cases in which Texas intermediate courts of appeals have ordered en banc consideration of a case in the first instance, several of the en banc courts have done so to overrule a precedent established by a prior panel of the court.[4] This makes sense because one court of appeals panel cannot overrule the holding of a prior panel of the same court, so if an en banc court is inclined to overrule a prior panel precedent, the en banc court may decide that there is little to be gained from having a panel decide the case because the panel may not overrule the prior precedent.[5] In today's case, no party has argued that a precedent of this court should be overruled, and this appeal does not raise any question as to whether this court, sitting en banc, should overrule one of its precedents.
Unless a court of appeals with more than three justices votes to decide a case en banc in the first instance, a case must be assigned for decision to a panel of the court consisting of three justices.[6] For a three-justice panel to decide a case, at least two of the justices on the panel must agree on the appellate judgment.[7] In any appeal, there are several different appellate judgments that might be proper in that case.[8] Thus, on a three-justice panel, each of the three justices may disagree with the other two justices on the panel as to the proper appellate judgment in the case.[9]No rule or statute provides a procedure to be followed when such an impasse occurs.[10] In the absence of a specific procedural...
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