Concurring and dissenting opinion issued November 15, 2012




                                  In The

                           Court of Appeals
                                 For The

                       First District of Texas
                         ————————————
                           NO. 01-09-00448-CV
                         ———————————
              QUALITY INFUSION CARE, INC., Appellant
                                    V.
 HEALTH CARE SERVICE CORPORATION D/B/A BLUE CROSS AND
          BLUE SHIELD OF TEXAS; HOWARD KING;
            AND HILL & FINKEL, L.L.P., Appellees


                 On Appeal from the 152nd District Court
                          Harris County, Texas
                    Trial Court Case No. 2008-04683


CONCURRING AND DISSENTING OPINION ON REHEARING

     I concur with the portion of this Court’s judgment vacating our December

29, 2011 judgment and dismissing the appeal.    See TEX. R. APP. P. 42.1(a).
Subsumed in that portion of the judgment, I agree with this Court dismissing the

January 13, 2012 motion for rehearing as moot.

      I dissent, however, from the portion of the new judgment that withdraws our

December 29, 2011 opinion. See TEX. R. APP. P. 42.1(c).

      The Supreme Court of Texas has made the policy concerns with

withdrawing opinions after settlement clear:

      A settlement does not automatically require the vacating of a court of
      appeals’ opinion—either by this court or by the intermediate appellate
      court. Our courts are endowed with a public purpose—they do not sit
      merely as private tribunals to resolve private disputes. While
      settlement is to be encouraged, a private agreement between litigants
      should not operate to vacate a court’s writing on matters of public
      importance.

Houston Cable TV, Inc. v. Inwood West Civic Ass’n, 860 S.W.2d 72, 73

(Tex.1993). The settling parties’ motion to vacate and affirm does not advance a

reason why the former unanimous non-memorandum opinion1 should be

withdrawn—they merely ask the Court to do so, presumably for solely private

purposes.




1
      See Quality Infusion Care, Inc. v. Health Care Serv. Corp.,
      No. 01-09-00448-CV, 2011 WL 6938518 (Tex. App.—Houston [1st Dist.]
      Dec. 29, 2011).
                                         2
      Without a statement from the settling parties as to why withdrawing the

opinion serves the public interest, I would not do so and, accordingly, I

respectfully dissent to such withdrawal.




                                               Jim Sharp
                                               Justice

Panel consists of Justices Keyes, Sharp, and Massengale.




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