the State of Texas v. Signad Ltd.f/k/a Signad, Inc. ( 2022 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER DENYING EN BANC RECONSIDERATION AS UNTIMELY
Appellate case name: The State of Texas v. SignAd Ltd., f/k/a SignAd, Inc.
Appellate case number: 01-20-00715-CV
Trial court case number: 18CV-5774
Trial court: County Court at Law of Austin County
After seeking and receiving two extensions, Appellee SignAd Ltd. filed a motion
for rehearing on September 2, 2022, which this Court denied on September 15, 2022.
SignAd then filed a motion for an extension of time to file a motion for en banc
reconsideration on September 19, 2022, in which SignAd sought an extension from the
ostensible deadline of September 30 until October 14. The Court denied that motion as
untimely on September 29, 2022. The following day, SignAd filed a motion for en banc
reconsideration, which we now address.
The panel denied as untimely SignAd’s September 19, 2022 motion for an
extension of time to file a motion for en banc reconsideration because SignAd’s request
for an extension was based on the mistaken premise that it had 15 days to seek en banc
reconsideration after the panel denied its motion for rehearing. While under a prior
version of the rules parties could seek rehearing and then en banc reconsideration
seriatim, this is no longer true under the current rules. As the Court explained in its
September 29, 2022 order:
Appellee SignAd Ltd.’s deadline for filing a motion for rehearing
was September 2, 2022. SignAd timely filed a motion for rehearing, which
the court denied on September 15, 2022.
SignAd has since moved for an extension of time in which to file a
motion for en banc reconsideration, requesting that we grant an extension
from the ostensible deadline of September 30, 2022 until October 14, 2022.
But any motion for en banc reconsideration was due on September 2, 2022.
See TEX. R. APP. P. 49.5 (motion seeking en banc reconsideration “must be
filed within the time prescribed by Rule 49.1 for filing a motion for
rehearing”); see also TEX. R. APP. P. 49.1 (motion for rehearing “may be
filed within 15 days after the court of appeals’ judgment or order is
rendered”). And SignAd has offered no explanation as to why it failed to
seek en banc reconsideration by the September 2, 2022 deadline.
SignAd’s motion is therefore DENIED as untimely.
In its pending motion for en banc reconsideration, SignAd continues to maintain
that it can timely seek en banc reconsideration within 15 days of the denial of its motion
for rehearing. SignAd posits that a motion for en banc reconsideration is merely a means
of reconsidering an order denying rehearing, and thus may be filed within 15 days of any
order denying rehearing.
SignAd is mistaken. A motion for en banc reconsideration is an attempt to revisit
the panel’s opinion or judgment under a different legal standard than the one that applies
to motions for rehearing, not an attempt to review any order the panel may have made
denying rehearing. See TEX. R. APP. P. 41.2(c) (stating distinct standard for en banc
review of case); see also TEX. R. APP. P. 49.5 (stating that en banc review may be sought
with or without seeking rehearing, that any motion for reconsideration is due when
motion for rehearing is due, and that panel’s judgment does not become final if en banc
reconsideration is granted so that full court may reconsider case); Brookshire Bros. v.
Smith, 176 S.W.3d 30, 40–41 (Tex. App.—Houston [1st Dist.] 2004, pet. denied)
(observing that motions for rehearing and en banc reconsideration serve different
purposes, with former being directed to convincing panel to change its decision because it
is erroneous for some reason, while latter is limited to grounds stated in Rule 41.2(c)).
The decision SignAd cites in support of its contrary position—Skeels v. Suder, No.
02-18-00112-CV, 2021 WL 4785782 (Tex. App.—Fort Worth Oct. 14, 2021, pet. filed)
(mem. op.)—materially differs from this one. As SignAd acknowledges in its description
of Skeels, in that case one of the parties filed a further motion for rehearing and en banc
reconsideration after the panel had already heard a prior motion for rehearing and
modified its opinion and judgment. Id. at *1. Our appellate rules expressly provide for
further motions for rehearing and en banc reconsideration under the circumstances that
existed in Skeel. See TEX. R. APP. P. 49.4 (further motion for rehearing may be filed
within 15 days of court’s action on motion for rehearing if court modifies prior judgment
it rendered, vacates prior judgment it rendered and renders new one, or issues different
opinion); TEX. R. APP. P. 49.6 (stating same with respect to further motions for en banc
reconsideration). But when our Court denied SignAd’s motion for rehearing, the Court
2
did not modify its judgment, vacate its judgment and render a new one, or issue a
different opinion. Skeels therefore is inapposite.
In sum, under the current rules, “[a] motion for en banc reconsideration must be
filed by the deadline for filing an initial motion for rehearing under subdivision 49.1.”
TEX. R. APP. P. 49.5 cmt. SignAd did not do so.
SignAd’s motion for en banc reconsideration is therefore DENIED as untimely.
Justice’s signature: /s/ Gordon Goodman
Acting for the Court
En banc court consists of Chief Justice Radack, Justices Kelly, Goodman, Landau,
Hightower, Countiss, Rivas-Molloy, Guerra, and Farris.
Date: October 18, 2022
3