Dissenting Opinion Filed March 26, 2020




                                   S  In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                              No. 05-17-00719-CV

                  JOSE HERNANDEZ, Appellant
                               V.
 SUN CRANE AND HOIST, INC.; JLB PARTNERS, L.P.; JLB BUILDERS,
  L.L.C.; AUGER DRILLING, INC.; AND D’AMBRA CONSTRUCTION
                    CORPORATION, Appellees

                On Appeal from the County Court at Law No. 4
                            Dallas County, Texas
                    Trial Court Cause No. CC-15-00715-D

                          DISSENTING OPINION
                           Before the En Banc Court
                     Dissenting Opinion by Justice Whitehill

      I agree with and join Justice Bridges’s dissenting opinion. I write separately

because the case was not enbancworthy in the first place.

                           I. THE EN BANC CRITERIA

      Rule 41.2(c) succinctly states Texas’s judicial policy regarding en banc

consideration: “[it] 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).
       Hernandez’s motion doesn’t mention the Rule 41.2(c) en banc standard, much

less attempt to satisfy it. He argues only that the panel erred, and for support he

relies on two unremarkable and highly distinguishable cases from sister courts.

(Justice Bridges’s dissent gives those two opinions, Arredondo and Morales, the

attention they deserve.) Alleged conflicts with sister courts meet neither en banc

criterion.

       I agree with the majority that we are not bound by a movant’s failure to

address the Rule 41.2(c) criteria. But such a failure can be, and often is, a sign that

the criteria are absent. And those criteria are absent in this dispute over whether a

general contractor owed a legal duty to its independent subcontractor’s injured

employee.

       The majority opinion posits that the panel opinion represented a “serious

departure” from unspecified “precedent” governing review in no-evidence summary

judgment appeals.     But the majority identifies no conflict between the panel

opinion’s statement of the law and any prior precedent from this Court, nor does it

contend that the panel opinion erroneously stated the applicable substantive law.

Instead, the majority concludes that the panel erred by holding that Hernandez

adduced no evidence of the essential element of duty. That is merely a disagreement

over whether certain pieces of evidence raise a genuine issue of material fact—the

very definition of error correction not rising to the level of extraordinary

circumstances that would warrant en banc consideration.
                                         –2–
      Granting en banc reconsideration here for no apparent reason consistent with

the en banc standard will encourage other litigants to file en banc motions in

disregard of Rule 41.2(c) when they don’t like panel opinions or the denial of their

panel rehearing motions. See Cruz v. Ghani, No. 05-17-00566-CV, 2019 WL

3282963 (Tex. App.—Dallas July 22, 2019, pet. denied) (en banc). But setting

pragmatic considerations aside, we should apply Rule 41.2(c) according to its plain

language and deny Hernandez’s en banc motion.

                                 II. CONCLUSION

      Because we shouldn’t have granted en banc reconsideration in this case, I

respectfully dissent from the majority’s contrary decision.




                                           /Bill Whitehill/
                                           BILL WHITEHILL
                                           JUSTICE



Bridges, Myers, Schenck, and Evans, JJ., join this dissenting opinion.

170719DF.P05




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