Frost Concurrence in Ross v. Union Carbide Corp. (Tex.App.- Houston
[14th Dist.] Aug. 25, 2009) (Guzman)(en banc)(asbestos survivors claim for exemplary damages
and loss or consortium
barred by release signed by worker before his death)                         
There is simply no point in granting en banc review to “decide" which
rule to apply when the Supreme Court of Texas already has decided
                                                                                          
C O N C U R R I N G   O P I N I O N   O N   E N   B A N C   R E V I E W

It does not take an en banc court to decide not to follow this court's opinion in Perez v. Todd
Shipyards Corporation.  The case under review does not present a conflict between the holdings of
two of this court's panels.  This case involves one prior panel holding (Perez) that conflicts with and
does not mention binding Supreme Court of Texas holdings and a prior en banc holding of this
court, all of which were decided before the prior panel holding.  In this delicate circumstance, the law
of stare decisis dictates that the panel that heard arguments in this case should follow the Supreme
Court of Texas precedent rather than the prior panel opinion.  Therefore, en banc review is not
necessary to secure uniformity in this court's decisions.  See Tex. R. App. P. 41.2(c).
                         
How is stare decisis applied to prior panel opinions?

As this court previously has stated, “absent (1) a decision from a higher court or this court sitting en
banc that is on point and contrary to the prior panel decision or (2) an intervening and material
change in the statutory law, this court is bound by the prior holding of another panel of this court."  
Clear Lake City Water Auth. v. Friendswood Dev. Co., No. 14-07-00404-CV, 2008 WL 5131932, at
*1 (Tex. App.-Houston [14th Dist.] 2008, pet. filed) (mem. op.).  Generally, a subsequent panel of
this court must follow the holding of a prior panel.  See id.  However, this general rule does not apply
if, after the holding of the first panel, the applicable statutory law materially changes or a contrary
holding is mandated by a subsequent holding of the Supreme Court of Texas or this court sitting en
banc.  See id.  But how is this rule applied when the prior panel holding contradicts a higher-court
holding or an en banc holding decided before the prior panel holding?      

If, in its holding, the prior panel applied or distinguished the higher-court or en banc precedent, then
subsequent panels are bound by the first panel decision, even if they think that the first panel
misapplied and contradicted the superior precedent.  See County of Monroe, Florida v. U.S. Dep't of
Labor, 690 F.2d 1359, 1363 (11th Cir. 1982); Wilson v. Taylor, 658 F.2d 1021, 1034-35 (5th Cir.
1981).  If, however, the prior panel holding conflicts with and makes no mention of the holding of a
higher court (or an en banc holding of this court) and that higher-court holding is on point and
contrary to the prior panel holding, then a panel of this court is not bound by the prior panel opinion
and instead should follow the higher-court holding rather than the prior panel holding.  See Clear
Lake City Water Auth., 2008 WL 5131932, at *1; see also County of Monroe, Florida, 690 F.2d at
1363; Wilson, 658 F.2d at 1034-35.  In this case, after oral argument before a three-justice panel
and before any opinion issued, a majority of the en banc court voted to grant en banc review.  
According to the majority opinion, the purpose for granting en banc consideration was to overrule
Perez.[1]

Could Perez be disregarded without en banc review?

As correctly noted by the en banc majority, in Perez, a panel of this court used an analysis and
reached a result that conflicts with four prior Supreme Court of Texas opinions and one prior en
banc opinion from this court.[2]  Though bound by these five prior precedents, the Perez court did
not base its decision on them; indeed, the Perez court did not consider or even mention any of
these binding precedents.  See Perez v. Todd Shipyards Corp., 999 S.W.2d 31, 32-33 (Tex. App.-
Houston [14th Dist.] 1999), pet. denied, 35 S.W.3d 598  (Tex. 2000).  Although the majority correctly
points out that Perez was wrongly decided and should not be followed, the majority incorrectly
concludes that en banc review is necessary.  En banc consideration is not favored and should not
be granted absent extraordinary circumstances[3] or a need to secure or maintain uniformity of this
court's decisions.  See Tex. R. App. P. 41.2(c).

Because Perez conflicts with and makes no mention of four prior Supreme Court of Texas opinions
and one prior en banc opinion from this court, under principles of stare decisis, the panel to whom
this case was argued would not be bound by Perez, and that panel could and should decide this
case by following this higher-court authority rather than Perez.[4]  See In re K.M.S., 91 S.W.3d 331,
331 (Tex. 2002) (noting that, in deciding cases before them, intermediate courts of appeals must
follow Supreme Court of Texas holdings that are on point); Clear Lake City Water Auth., 2008 WL
5131932, at *1 (stating that a panel of this court need not follow a prior panel holding if it is contrary
to the holding of a higher court or of this court sitting en banc); see also Wilson, 658 F.2d at 1034-
35 (holding that even though a Fifth Circuit panel is generally bound by the holding of a prior Fifth
Circuit panel, a panel should not follow a prior panel holding that conflicts with and makes no
mention of a prior holding of the Supreme Court of the United States); accord County of Monroe,
Florida, 690 F.2d at 1363.  Pursuing this course rather than en banc review is not only permissible,
but also preferable because it would avoid the significant expenditure of judicial resources and
attendant delays and inefficiencies entailed by en banc consideration.[5]
            
What is accomplished by en banc review of this case?

No decision this en banc intermediate court could make with regard to Perez could possibly impact
the choice of which rule to apply.  This court must follow the higher court's precedent whether Perez
is overruled or not.  Perez is not an alternate path.  There is simply no point in granting en banc
review to “decide" which rule to apply when the Supreme Court of Texas already has decided.  See
id.  Convening this court en banc to overrule Perez serves no purpose, imposes an unwarranted
burden on the court's resources, and is contrary to principles of stare decisis.

For these reasons, though I concur in the court's judgment, I respectfully disagree with the decision
to consider this case en banc.

/s/        
Kem Thompson Frost

Justice

En banc court consists of Chief Justice Hedges, Justices Yates, Anderson, Frost, Seymore,
Guzman, Brown, and Sullivan, and Senior Justice Price.*   (Guzman, J., majority) (Price, S.J.,
concurring) (Boyce, J., not participating).

[1]  See ante at pp. 10-12.

[2]  Compare Perez, 999 S.W.2d at 32-33, with Travelers Indem. Co. of Ill. v. Fuller, 892 S.W.2d
848, 851-52 (Tex. 1995); Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex. 1992);  Sullivan-
Sanford Lumber Co. v. Watson, 155 S.W. 179, 180 (Tex. 1913); Thompson v. Fort Worth & R.G.
Ry., 97 Tex. 590, 80 S.W. 990, 991 (1904);  Suber v. Ohio Med. Prods., Inc., 811 S.W.2d 646, 649-
50 (Tex. App.-Houston [14th Dist.] 1991, writ denied) (en banc).

[3] The majority does not claim, and there is no basis for concluding, that there are extraordinary
circumstances that require en banc consideration.  See Tex. R. App. P. 41.2(c).

[4]  Indeed, the panel also could disregard Perez because, as noted by the majority, Perez also
conflicts with a Supreme Court of Texas holding issued after Perez, that in I
n re Labatt Food Serv., L.
P., 279 S.W.3d 640, 646 (Tex. 2009).

[5]  See Douglas H. Ginsburg, The Court En Banc, 59 Geo. Wash. L. Rev. 1008, 1018-21 (1991)
(discussing the significant costs of en banc consideration and concluding that, in the United States
Court of Appeals for the D.C. Circuit, the judicial resources consumed by one en banc consideration
probably are sufficient to dispose of three other appeals at the panel level).

*  Senior Justice Frank C. Price sitting by assignment.