Monticello Asset Management, Inc. v. Jackson Wells, Devin Schares and Elizabeth Russell

Dissenting Opinion Filed April 30, 2024.

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00709-CV

MONTICELLO ASSET MANAGEMENT, INC., Appellant
V.
JACKSON WELLS, DEVIN SCHARES,
AND ELIZABETH RUSSELL, Appellees

On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause No. CV-18-0027

OPINION DISSENTING FROM THE DENIAL OF APPELLEES’
MOTION FOR EN BANC REHEARING
Dissenting Opinion by Justice Partida-Kipness
The majority of my colleagues have concluded en banc review is not

appropriate in this case. I disagree with that conclusion and respectfully dissent from

the denial of Appellees’ motion for en banc rehearing.

“En banc consideration of a case 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).

Courts have discretion, however, to determine whether en banc review is

“necessary” in each case. Chakrabarty v. Ganguly, 573 S.W.3d 413, 415–16 & n.4
(Tex. App.—Dallas 2019, no pet.) (en banc) (stating the standard for en banc review

is sufficiently broad to afford a court the discretion to consider a case en banc when

the circumstances require and the court votes to do so); see also Wal-Mart Stores,

Inc. v. Miller, 102 S.W.3d 706, 708 n.1 (Tex. 2003) (per curiam).

En banc review is an available tool this Court should employ in this case

because the panel opinion disturbs the security and uniformity of this Court’s

jurisprudence. The panel opinion fails to consider the totality of the circumstances

when defining the premises defect and when deciding whether a condition is open

and obvious, and too narrowly defines the premises defect. As a result, the panel

majority has created a standard for determining whether a premises defect is open

and obvious that deviates from the applicable standard across the state. Further, the

panel majority erroneously disregarded the jury’s weighing of disputed evidence in

favor of deciding a fact-intensive issue as a matter of law. The record does not

support the conclusion that those issues can be decided as a matter of law in this

case.

Appellees argue it is important for the full court to consider what parameters

define a premises defect and what should be considered when reviewing the totality

of the circumstances surrounding a premises defect. I agree. Moreover, this case

demands en banc review because the majority opinion deviates so widely from well-

established standards in premises defect cases. By refusing to allow the full court to

weigh in on these matters, my colleagues have allowed two of thirteen justices to

–2–
materially change how this Court must address premises defect cases in the future.

That troubling result will undoubtedly affect many cases and litigants moving

forward.

For these reasons and for the concerns stated in my dissent to the panel

opinion, I respectfully dissent from the denial of Appellees’ motion for en banc

rehearing.

220709f.p05 /Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE

Molberg, Nowell, and Carlyle, JJ., join in this dissenting opinion.

–3–