Shirley Dupriest and Fred Dupriest v. Nimitz Properties, LLC ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00327-CV
SHIRLEY DUPRIEST AND FRED DUPRIEST,
Appellants
v.
NIMITZ PROPERTIES, LLC,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 17-002326-CV-361
CONCURRING OPINION
I concur only in the Court’s judgment reversing and remanding but do not join the
majority opinion that is being issued in this matter.
The notice of appeal was filed with this Court on October 19, 2018, some two years
and two months before I joined this Court. On the day the notice of appeal was filed, this
matter was assigned to Chief Justice Gray. Briefing was completed on September 13,
2019, and oral arguments in this matter occurred on April 20, 2021.
Nimitz, after having waited almost four years for resolution of this appeal, then
filed a supplemental brief on September 1, 2022, requesting that the case be re-submitted
“so that a disposition may be achieved in due course.” Nimitz asserts in its supplemental
brief that the Dupriests have “initiated new proceedings in the trial court despite the
pendency of this appeal.” In its supplemental brief, Nimitz argues that it is not
addressing the merits of the Dupriests’ new trial court proceedings but is “raising the
issue because it amplifies the need for resolution of this appeal.”
The parties’ frustration with the inordinate delay by this Court in issuing a
decision was again evidenced by the Dupriests when they filed an ancillary original
proceeding, No. 10-22-00292-CV. In the Dupriests’ original proceeding, they request
injunctive relief to enjoin Nimitz from constructing a store on a residential lot pending
resolution of this appeal.
On September 20, 2022, this case was set for submission on October 12, 2022, before
a new panel. 1
For years the parties have been left without a resolution of the issues before this
Court. And now here we are, five years after this litigation began in the trial court, four
years after the case was filed in this Court, and eighteen months after oral argument.
“Justice delayed is justice denied.” William Gladstone.
“To delay justice is injustice.” William Penn.
1
The original panel on oral argument was Chief Justice Gray, Justice Neill, and Justice Johnson. Justice
Neill retired from this Court on May 31, 2021. Justice Smith joined the Court on September 1, 2021, and
recused himself from participation in this case on September 2, 2021.
Dupriest v. Nimitz Props., LLC Page 2
“The delay of justice, is great injustice.” John Musgrave.
“The parties want to know. The public wants to know.” See Elec. Reliability Council
of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 643 (Tex.
2021) (Chief Justice Hecht, joined by Justice Guzman, Justice Lehrmann, and Justice
Devine, dissenting). “One of our principal missions is to decide cases of statewide
importance, and the public always benefits when we do our job.” Id. at 650 (Justice
Guzman, joined by Justice Lehrmann and Justice Devine, dissenting).
The majority opinion is authored, not by the Chief Justice to whom it was assigned
in ordinary rotation, but by a visiting justice. Chief Justice Gray has joined the majority
opinion. I believe, however, that for purposes of transparency, clarity, efficiency, and
accountability, the majority opinion in these circumstances should be issued and signed
by the Chief Justice to whom this matter was long ago assigned. For the reasons stated
above, I cannot join in the majority opinion. I respectfully concur.
MATT JOHNSON
Justice
Concurring opinion delivered and filed October 26, 2022
Dupriest v. Nimitz Props., LLC Page 3