Monticello Asset Management, Inc. v. Jackson Wells, Devin Schares and Elizabeth Russell ( 2024 )

Dissenting Opinion Filed April 30, 2024.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00709-CV
MONTICELLO ASSET MANAGEMENT, INC., Appellant
V.
JACKSON WELLS, DEVIN SCHARES,
AND ELIZABETH RUSSELL, Appellees
On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause No. CV-18-0027
OPINION DISSENTING FROM THE DENIAL OF APPELLEES’
MOTION FOR EN BANC REHEARING
Dissenting Opinion by Justice Partida-Kipness
The majority of my colleagues have concluded en banc review is not
appropriate in this case. I disagree with that conclusion and respectfully dissent from
the denial of Appellees’ motion for en banc rehearing.
“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).
Courts have discretion, however, to determine whether en banc review is
“necessary” in each case. Chakrabarty v. Ganguly, 573 S.W.3d 413, 415–16 & n.4
(Tex. App.—Dallas 2019, no pet.) (en banc) (stating the standard for en banc review
is sufficiently broad to afford a court the discretion to consider a case en banc when
the circumstances require and the court votes to do so); see also Wal-Mart Stores,
Inc. v. Miller, 102 S.W.3d 706, 708 n.1 (Tex. 2003) (per curiam).
En banc review is an available tool this Court should employ in this case
because the panel opinion disturbs the security and uniformity of this Court’s
jurisprudence. The panel opinion fails to consider the totality of the circumstances
when defining the premises defect and when deciding whether a condition is open
and obvious, and too narrowly defines the premises defect. As a result, the panel
majority has created a standard for determining whether a premises defect is open
and obvious that deviates from the applicable standard across the state. Further, the
panel majority erroneously disregarded the jury’s weighing of disputed evidence in
favor of deciding a fact-intensive issue as a matter of law. The record does not
support the conclusion that those issues can be decided as a matter of law in this
case.
Appellees argue it is important for the full court to consider what parameters
define a premises defect and what should be considered when reviewing the totality
of the circumstances surrounding a premises defect. I agree. Moreover, this case
demands en banc review because the majority opinion deviates so widely from well-
established standards in premises defect cases. By refusing to allow the full court to
weigh in on these matters, my colleagues have allowed two of thirteen justices to
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materially change how this Court must address premises defect cases in the future.
That troubling result will undoubtedly affect many cases and litigants moving
forward.
For these reasons and for the concerns stated in my dissent to the panel
opinion, I respectfully dissent from the denial of Appellees’ motion for en banc
rehearing.
220709f.p05 /Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
Molberg, Nowell, and Carlyle, JJ., join in this dissenting opinion.
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