Justices Terry Jennings and Elsa Alcala Spar over Propriety of En Banc Review

CHARGES OF "JUDICIAL FIAT" AND A GOOD FIGHT TO CLOSE OUT THE FISCAL YEAR

As the end of the fiscal year approaches, it appears that justices on the First Court of Appeal have let their disagreements fester, and only now - under deadline pressure - endeavor to air them publicly to dispose of the cases over which they have found themselves at loggerheads. Not only has there been an unusual concentration of cases decided with separate opinion(s) lately; the disagreements are also becoming rather rancorous, as exemplified by the duel over the propriety of en banc rehearing in an appeal from an employment dispute discided eaqrlier this year. Veteran dissenter Terry Jennings thought the panel's opinion and disposition of the contract construction issue was flatly wrong, thus warranting review & reversal by the court as a whole, and also took issue with the designation of the panel opinion. Alcala was none too pleased and offered a vigorous defense, not to mention a lesson on the rules governing the appellate courts, chiding her honorable colleague for flouting them.

First, Terry Jennings:

I would hold that the trial court erred in granting summary judgment in favor of Waste Management. The panel's insertion of non-existent language into the employment contract and conclusion that Macy and Waste Management intended that Waste Management "alone" would have the power to make a final and binding legal determination as to whether it had terminated Macy's employment with "cause" are in serious error. See Fortis Benefits, 234 S.W.3d at 649 n.41.Thus, I would grant Macy's motion for en banc consideration of the case. Tex. R. App. P. 41.2. I would further sustain his first issue, reverse the judgment of the trial court, and remand the case for a trial on the merits.

Now the retort by Elsa Acala, author of the opinion of the panel, of which Jennings was not a member (Her opinion is classified as a concurrence because she agreed that the court should not hear the case en banc):

To support its accusation of "judicial fiat," the dissenting opinion fails to accurately apply the authority on which it relies. See Fortis Benefits v. Cantu, 234 S.W.3d 642, 649 n.41 (Tex. 2007). Excluding the legal citation, note 41 in its entirety states,

As a rule, a court should not by judicial fiat insert non-existent language into statutes or into parties' agreed-to contracts, or delete existent language from them either. Our confined duty is to construe the contract as is, and holding that equitable considerations trump contrary contract terms would render contractual subrogation a nullity. Id.

The dissenting opinion violates Fortis by requiring the insertion of the magic words "final and binding"; by inserting non-existing language in the Agreement in allowing another entity other than the Company to determine Cause; by deleting existing language from the Agreement that gives the Company, alone, the power to decide Cause; and by failing to construe the Agreement "as is." See id.

If there was any evidence that showed that Waste Management had failed to comply with the terms set forth in the Agreement, then Macy would be entitled to have a jury decide whether Waste Management breached the Agreement.

Because no evidence shows that Waste Management failed to comply with each of the terms set forth in the Agreement, I concur in the en banc court's decision to deny en banc consideration of this case.

And, for good measure, a lecture on when en banc rehearing is appropriate, and when not:

The Texas Rules of Appellate Procedure plainly state that en banc consideration is "disfavored" and "should not be ordered" unless one of two circumstances exist:

•En banc consideration is appropriate if it is "necessary to secure or maintain uniformity of the court's decisions."

•En banc consideration is appropriate if "extraordinary circumstances require en banc consideration."

See Tex. R. App. P. 41.2(c).

Unless one of these two circumstances exists, the rules of appellate procedure require cases be decided in panels composed of three justices. See id.

Justice Jennings was not assigned as a member of the three justice panel assigned to hear this case, nor did he participate in the panel conference, nor did he hear the oral argument heard by the panel.

In a footnote, Justice Jennings suggests that this case is worthy of en banc consideration because Macy claims that the panel's opinion "reads an arbitration provision into an agreement" and creates "a new standard pursuant to which parties must expressly state that they are not forfeiting their right to sue."

The panel opinion does not hold that this is an arbitration case; it is plainly evident that this is not an arbitration case as it was resolved based on the merits by summary judgment in the trial court. The panel opinion does not hold that Macy forfeited his right to sue; it is plainly evident this case does not concern the forfeiture of the right to sue, in that this case was resolved based on the merits by summary judgment in the trial court.

The panel opinion does not create a new standard, but instead applies well-established breach of contract law. The panel opinion states,

"Whether a contract is ambiguous is a question of law that must be decided by examining the contract as a whole in light of the circumstances present when the contract was entered." David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 451 (Tex. 2008) (quoting Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996)). . . . Our primary concern in interpreting a contract is to ascertain and give effect to the intent of the parties as it is expressed in the contract. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006). The intent of the parties must be taken from the agreement itself, not from the parties' present interpretations, and the agreement must be enforced as it is written. See Sun Oil Co. v. Madeley, 626 S.W.2d 726, 731-32 (Tex. 1981).

Macy, 2009 WL 1493012, at *4.

This is a breach of contract dispute between sophisticated parties who entered into an arms-length contract with terms specific to their particular desires. Because the panel opinion applies well established law set by the Texas Supreme Court and our Court, nothing about this case lacks uniformity with established precedent or is legally extraordinary. Justice Jennings, therefore, disregards the rules of appellate procedure criteria for en banc consideration.

* * *

Because Justice Jennings disregards the rules of appellate procedure criteria for evaluating the case, we are compelled to designate the case as an "Opinion," even though the panel that decided the case unanimously voted to issue the decision as a "Memorandum Opinion" and none of the criteria in the rules of appellate procedure for designating the case as an "Opinion" apply in this case.

Conclusion

I respectfully concur with the en banc decision to deny en banc consideration in this case because the panel opinion is legally correct and this case does not meet the criteria for en banc consideration.

Furthermore, I oppose changing the designation of the case to "Opinion" because the case does not meet the criteria for that designation.

Alcala Concurrence on Denial of En Banc Review in Griffin Macy v. Waste Management, Inc. (Tex.App.- Houston [1st Dist.] Aug. 28, 2009) (Concurrence with denial of en banc reconsideration by Justice Alcala) (proper designation of opinions issued by the court). Before Chief Justice Radack, Justices Alcala and Hanks; No. 01-07-00276-CV; Appeal from the 157th District Court of Harris County; Trial Court Judge: The Honorable Randall Wilson

JUSTICE JENNING'S DISSENT FROM DENIAL OF EN BANC REVIEW:
Macy v. Waste Management, Inc. (Tex.App.- Houston [1st Dist.] Aug. 28, 2009)(Dissent by Jennings)