This week, the Dallas Court of Appeals – consisting of eight newly-elected justices and five veteran justices – issued an en banc decision that only an appellate nerd could truly love.
In Cruz v. Ghani, the court answered a technical question about the timing of en banc motions for rehearing that has long troubled Texas appellate lawyers. In doing so, the court demonstrated a scholarly and collegial approach, issuing detailed majority, concurring, and dissenting opinions on this difficult question of appellate procedure. And the court was unanimous in the ultimate result: reconsideration of a 2018 panel opinion by the entire 2019 court was not warranted.
The underlying suit involved claimed breaches of fiduciary duty between two former business partners relating to their medical imaging centers. A jury awarded $10.66 million to the plaintiff, Dr. Edwin Cruz, but the trial court granted a take-nothing judgment notwithstanding the verdict in favor of the defendant, Dr. Mehrdad Ghani.
In August 2018, a three-judge panel of the Dallas Court of Appeals affirmed in part and reversed in part the trial court’s judgment. Both parties timely filed motions for rehearing, and both were denied by the panel. But on the same day it denied the motions for rehearing (Dec. 13, 2018), the panel issued a revised opinion. Again, both parties filed motions for rehearing, and both were denied on Jan. 8, 2019. Fifteen days later, Dr. Cruz filed a motion for en banc reconsideration. At this point, two members of the 2018 panel were no longer on the court.
The issue decided by the 2019 en banc court was purely one of appellate procedure: Is an en banc reconsideration motion timely when filed 15 days after the denial of a second motion for rehearing? The court answered that question with three opinions — by Justice Cory Carlyle (majority), Justice David Schenck (concurring), and Justice Bill Whitehill (dissenting) — that engaged in a textual, canon-based analysis of Texas Rule of Appellate Procedure 49.
The majority opinion, authored by Justice Carlyle and joined by six other newly-elected justices, answered “yes, the motion is timely.” The majority relied on “a holistic interpretation of Rule 49,” which permits a motion for en banc reconsideration to be filed “when permitted, within 15 days after the court of appeals’ denial of the party’s last timely filed motion for rehearing ….”
In a 21-page dissent, Justice Whitehill, who was joined by Justices David Bridges, Lana Myers and Ada Brown, answered the question in the negative, finding that the motion was not timely. The dissent relied on Rule 49.5, which permits a “further motion for rehearing” only when the appellate court changes its judgment or opinion. Because the panel did not change its second opinion or judgment in response to the second rehearing motion, the dissent concluded that “the rules do not permit this further en banc motion.”
The concurring opinion, authored by veteran Justice David Schenck and joined by newly-elected Justice Bill Pedersen, “concede[d] that the dissent may well have the best answer,” but reasoned that the “real question” was whether the majority’s interpretation was “arguable.” Finding that it was, Justices Schenck and Pedersen concurred with the majority in concluding that the Court should reach the merits of the rehearing motion.
Notably, all 13 justices agreed that plaintiff’s motion for en banc reconsideration should be denied. Thus, however they might have differed in their analysis of Texas Rule of Appellate Procedure 49, the Court was unanimous that en banc reconsideration of the 2018 panel opinion was not warranted in this case.
Prior to 2019, concurring and dissenting opinions were rare in the Dallas Court of Appeals. This kind of scholarly and collegial debate over difficult questions of law is critical to the jurisprudence of our state. Cruz may portend many more to come from the halls of the Dallas Court of Appeals.
Anne Johnson is a Dallas-based partner in the appellate section of Haynes and Boone. Chris Knight is an associate in the appellate section of Haynes and Boone.