

Opinion filed April 1, 2010, Withdrawn, Appeal
Dismissed and En Banc Majority Opinion and Concurring and Dissenting Opinions
filed August 5, 2010.
 
In The
 
Fourteenth Court of
Appeals
___________________
 
NO. 14-08-00489-CV
___________________
 
WESTERNGECO RESOURCES INC.,
Appellant
 
V.
 
DAROLD BURCH, Appellee

 

 
On
Appeal from the 270th District Court
Harris County,
Texas

Trial Court Cause No. 2006-74396
 

 
 
CONCURRING AND DISSENTING OPINION
I concur in the en banc court’s decision to vacate
this court’s judgment and to dismiss the appeal as moot in light of the
parties’ settlement agreement, but I disagree with both the decision to grant
en banc review and the decision to withdraw the panel opinion.[1]
En banc review is not favored and should not be
ordered unless necessary to secure or maintain uniformity of this court’s
decisions or unless extraordinary circumstances require en banc consideration. 
Tex. R. App. P. 41.2(c).  The
panel opinion does not conflict with any opinion from this court; thus, en banc
consideration of the motion to withdraw is not necessary to secure or maintain
uniformity of this court’s decisions.  Nor do extraordinary circumstances require
en banc consideration of the motion to withdraw.  Therefore, this court should
not grant en banc review. 
More importantly, for the reasons stated in Justice
Boyce’s concurring and dissenting opinion, the en banc court should not order
the panel opinion withdrawn.  
Because the en banc court makes the wrong choice at
both junctures—first by granting en banc consideration of the motion to
withdraw and then by ordering withdrawal of the panel opinion—I join neither
decision and respectfully dissent from both.    
                                                                        
                                                                        /s/        Kem
Thompson Frost
                                                                                    Justice
 
En Banc Majority and Concurring
and Dissenting Opinions filed.
En Banc court consists of Chief
Justice Hedges and Justices Yates, Anderson, Frost, Seymore, Brown, Boyce,
Sullivan, and Christopher.  (Boyce, J., joins this concurring and dissenting
opinion).  
(Boyce, J., concurring and
dissenting) (Hedges, C.J., Anderson, J., and Frost, J. join).
 




[1] Following the issuance of
a unanimous panel opinion on April 1, 2010, the party that did not prevail
filed an unopposed motion to withdraw the panel opinion.  After the panel voted
unanimously to deny this motion, a justice of this court requested an en banc
vote, and a majority of this court’s members voted to consider the motion en
banc.  See Tex. R. App. P.
41.2(c).  A majority of the en banc court then voted to grant the motion and to
order the panel opinion withdrawn.


