Macy v. Waste Management, Inc. (Tex.App.- Houston [1st Dist.] Aug. 28, 2009)
(Opinion author's concurrence with denial of en banc reconsideration by Justice Alcala)(proper designation of
appellate opinions)
I respectfully concur with the en banc decision to deny en banc consideration in this
case because the panel opinion is legally correct and this case does not meet the
criteria for en banc consideration. Furthermore, I oppose changing the designation of
the case to "Opinion" because the case does not meet the criteria for that designation.
OPINION CONCURRING WITH THIS COURT'S JUDGMENT:
Concurring Opinion by Justice Alcala    
Before Chief Justice Radack, Justices Alcala and Hanks  
01-07-00276-CV        Griffin Macy v. Waste Management, Inc.   
Appeal from 157th District Court of Harris County
Trial Court Judge: The Honorable Randall Wilson
Justice Jennings, dissenting from the denial of en banc consideration, joined by Justice Keyes.

OPINION CONCURRING WITH THE DENIAL

OF EN BANC CONSIDERATION

By focusing solely on the absence of the three words "final and binding," Justice Jennings's dissent from the
denial of en banc consideration ignores the contents of the hundreds of words that comprise the 13 page
contract between Griffin Macy and Waste Management, Inc. For this reason, as well as the fact that this case
does not meet the criteria for en banc consideration, I concur in the denial of en banc consideration.

The Totality of the Agreement

Only by ignoring the totality of the Agreement can Justice Jennings suggest that the absence of the three
words "final and binding" is pertinent. An examination of the Agreement as a whole plainly provides that the
Board is the entity that is to determine cause, as long as the Board follows certain procedures.
Section 5(c) of the Agreement states,

* •"The Company may terminate Employee's employment hereunder for 'Cause' at any time[.]"

* •"An individual will be considered to have been terminated for Cause if the Company determines that the
individual engaged in an act constituting cause[.]"

* •"Any determination of Cause under this Agreement shall be made by resolution of the Company's Board of
Directors adopted by the affirmative vote of not less than a majority of the entire membership of the Board of
Directors at a meeting called and held for the purpose and at which Employee is given an opportunity to be
heard." (Emphasis added).

As shown by the express words of the Agreement, "the Company determines that the individual engaged in an
act constituting cause[.]"

Macy argues that unless the words "final and binding" had been added to the sentence that states, "An
individual will be considered to have been terminated for Cause if the Company determines that the individual
engaged in an act constituting cause[,]" then some other entity–without any deference to the Company's
decision –could determine whether there was Cause to terminate Macy. The problem with Macy's interpretation
is that it ignores the plain words used in the Agreement that give Waste Management the sole power to decide
whether Cause existed, as long as Waste Management followed the procedural requirements described in the
Agreement.

If Macy had evidence to raise an issue of fact, then he would have been entitled to have a jury determine
whether

* •Waste Management made the Cause finding by a resolution of the Company's Board of Directors, adopted
by the affirmative vote of not less than a majority of the entire membership of the Board at a meeting called
and held for that purpose at which Macy was given the opportunity to be heard;

* •the Company determined that Macy engaged in fraud; and

* •the Company found fraud by using procedures in accordance with the Company's normal, internal
investigative procedures consistently applied in comparable circumstances.

If there had been any factual issue concerning whether these procedures had been followed, then the jury
would have to decide whether Waste Management breached the Agreement that required Waste Management
to follow these procedures. Because there was no factual issue whether Waste Management fully complied
with the Agreement, the trial court properly resolved this case by summary judgment.

In the panel opinion, we explain that this Agreement is similar, but not identical, to those agreements where
decisions are left to one party's sole discretion; in those cases, the jury reviews for bad faith only, without
reviewing the employer's actual determination that the employee was not entitled to benefits. In the panel
opinion, we state,

Because no evidence raises the issue, the trial court did not err by declining to allow the jury to decide if the
Board acted in bad faith. Macy cites Goudie v. HNG Oil Co., 711 S.W.2d 716, 718 (Tex. App.--El Paso 1986,
writ ref'd n.r.e.), Associated Milk Producers v. Nelson, 624 S.W.2d 920, 926 (Tex. Civ. App.--Houston [14th
Dist.] 1981, writ ref'd n.r.e.), and Texaco, Inc. v. Romine, 536 S.W.2d 253, 255 (Tex. Civ. App.--El Paso 1976,
writ ref'd n.r.e.). These decisions hold that in situations where there is an employer-funded plan which is made
a part of the employment contract between the employer and the employee, and with provisions which make
the employer's determination final, that if the employer determines that an employee is not entitled to benefits,
the only way that determination can be attacked is by showing that there was bad faith or fraud in the
employer's actions. Goudie, 711 S.W.2d at 718.

Macy v. Waste Management, Inc., No. 01-07-00276-CV, 2009 WL 1493012, at *8 (Tex. App.--Houston [1st
Dist.] May 28, 2009, no pet. h.) (mem. op.). Goudie, Associated Milk Producers, and Romine are similar to this
case in that the employer, alone, is the entity given the decision making power to decide the matter of benefits
due to an employee. See Goudie, 711 S.W.2d at 718; Associated Milk Producers, 624 S.W.2d at 926; Romine,
536 S.W.2d at 255. In these types of agreements where one entity is alone given the power to make the
decision, a jury may decide whether the entity's decision was made in bad faith, but the jury may not review the
correctness of the actual decision. See Goudie, 711 S.W.2d at 718; Associated Milk Producers, 624 S.W.2d at
926; Romine, 536 S.W.2d at 255. Similarly to the decisions in these cases, the panel opinion determined that,
here, the jury could not review the correctness of the actual decision, but the jury, if there was a question of
fact, could review whether Waste Management complied with all the procedural requirements described in the
Agreement.

Although the agreements in these decisions included the word "final," nothing in the decisions requires the
inclusion of the word "final" for the decision to be left to the sole discretion of one party. See Goudie, 711 S.W.
2d at 718; Associated Milk Producers, 624 S.W.2d at 926; Romine, 536 S.W.2d at 255. Furthermore, the
agreements in these decisions refer to general employment contracts with an "employer-funded plan," which is
different from the arms-length Agreement between these sophisticated parties that negotiated particular
procedures to be followed when the Company made its decision. See Goudie, 711 S.W.2d at 718; Associated
Milk Producers, 624 S.W.2d at 926; Romine, 536 S.W.2d at 255.

To support its accusation of "judicial fiat," the dissenting opinion fails to accurately apply the authority on which
it relies. See Fortis Benefits v. Cantu, 234 S.W.3d 642, 649 n.41 (Tex. 2007). Excluding the legal citation, note
41 in its entirety states,

As a rule, a court should not by judicial fiat insert non-existent language into statutes or into parties' agreed-to
contracts, or delete existent language from them either. Our confined duty is to construe the contract as is,
and holding that equitable considerations trump contrary contract terms would render contractual subrogation
a nullity. Id.

The dissenting opinion violates Fortis by requiring the insertion of the magic words "final and binding"; by
inserting non-existing language in the Agreement in allowing another entity other than the Company to
determine Cause; by deleting existing language from the Agreement that gives the Company, alone, the power
to decide Cause; and by failing to construe the Agreement "as is." See id.

If there was any evidence that showed that Waste Management had failed to comply with the terms set forth in
the Agreement, then Macy would be entitled to have a jury decide whether Waste Management breached the
Agreement. Because no evidence shows that Waste Management failed to comply with each of the terms set
forth in the Agreement, I concur in the en banc court's decision to deny en banc consideration of this case.

Texas Rules of Appellate Procedure Disfavor En Banc Consideration

The Texas Rules of Appellate Procedure plainly state that en banc consideration is "disfavored" and "should
not be ordered" unless one of two circumstances exist:

* •En banc consideration is appropriate if it is "necessary to secure or maintain uniformity of the court's
decisions."

* •En banc consideration is appropriate if "extraordinary circumstances require en banc consideration."

See Tex. R. App. P. 41.2(c). Unless one of these two circumstances exists, the rules of appellate procedure
require cases be decided in panels composed of three justices. See id. Justice Jennings was not assigned as a
member of the three justice panel assigned to hear this case, nor did he participate in the panel conference,
nor did he hear the oral argument heard by the panel.

In a footnote, Justice Jennings suggests that this case is worthy of en banc consideration because Macy claims
that the panel's opinion "reads an arbitration provision into an agreement" and creates "a new standard
pursuant to which parties must expressly state that they are not forfeiting their right to sue." The panel opinion
does not hold that this is an arbitration case; it is plainly evident that this is not an arbitration case as it was
resolved based on the merits by summary judgment in the trial court. The panel opinion does not hold that
Macy forfeited his right to sue; it is plainly evident this case does not concern the forfeiture of the right to sue,
in that this case was resolved based on the merits by summary judgment in the trial court.

The panel opinion does not create a new standard, but instead applies well-established breach of contract law.
The panel opinion states,

"Whether a contract is ambiguous is a question of law that must be decided by examining the contract as a
whole in light of the circumstances present when the contract was entered." David J. Sacks, P.C. v. Haden, 266
S.W.3d 447, 451 (Tex. 2008) (quoting Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d
587, 589 (Tex. 1996)). . . . Our primary concern in interpreting a contract is to ascertain and give effect to the
intent of the parties as it is expressed in the contract. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.
W.3d 342, 345 (Tex. 2006). The intent of the parties must be taken from the agreement itself, not from the
parties' present interpretations, and the agreement must be enforced as it is written. See Sun Oil Co. v.
Madeley, 626 S.W.2d 726, 731-32 (Tex. 1981).

Macy, 2009 WL 1493012, at *4. This is a breach of contract dispute between sophisticated parties who
entered into an arms-length contract with terms specific to their particular desires. Because the panel opinion
applies well established law set by the Texas Supreme Court and our Court, nothing about this case lacks
uniformity with established precedent or is legally extraordinary. Justice Jennings, therefore, disregards the
rules of appellate procedure criteria for en banc consideration.

Designation of "Opinion" Inconsistent with Rules of Appellate Procedure

The panel that decided this case issued what was styled a "Memorandum Opinion" on March 12, 2009 and
again on May 28, 2009, but the designation is now changed to "Opinion" due to Justice Jennings's vote that
the case be designated an "Opinion." See Tex. R. App. P. 47.4 ("An opinion may not be designated a
memorandum opinion if the author of a concurrence or dissent opposes that designation."). I respectfully
disagree with designating this case an "Opinion" because this case does not meet the criteria in the rules of
appellate procedure for that designation.

According to Rule 47.2 of the Texas Rules of Appellate Procedure, "A majority of the justices who participate in
considering the case must determine whether the opinion will be signed by a justice or will be per curiam and
whether it will be designated an opinion or memorandum opinion." Tex. R. App. P. 47.2(a) (emphasis added).
Here, the panel of justices who decided the case unanimously reached the decision to designate this case a
"Memorandum Opinion" on March 12, 2009 and again on May 28, 2009.

The panel correctly designated this a "Memorandum Opinion." Rule 47.4 of the Texas Rules of Appellate
Procedure states,

If the issues are settled, the court should write a brief memorandum opinion no longer than necessary to
advise the parties of the court's decision and the basic reasons for it. An opinion may not be designated a
memorandum opinion if the author of a concurrence or dissent opposes that designation. An opinion must be
designated a memorandum opinion unless it does any of the following:

(a) establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact
situation likely to recur in future cases;

(b) involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;

(c) criticizes existing law; or

(d) resolves an apparent conflict of authority.

See Tex. R. App. P. 47.4 (emphasis added). None of these circumstances exist here. Because Justice
Jennings disregards the rules of appellate procedure criteria for evaluating the case, we are compelled to
designate the case as an "Opinion," even though the panel that decided the case unanimously voted to issue
the decision as a "Memorandum Opinion" and none of the criteria in the rules of appellate procedure for
designating the case as an "Opinion" apply in this case.

Conclusion

I respectfully concur with the en banc decision to deny en banc consideration in this case because the panel
opinion is legally correct and this case does not meet the criteria for en banc consideration. Furthermore, I
oppose changing the designation of the case to "Opinion" because the case does not meet the criteria for that
designation.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Hanks.

En banc consideration was requested. See Tex. R. App. P. 41.2(c).

A majority of the Court voted to deny en banc consideration. See Tex. R. App. P. 49.7.

Justice Alcala, concurring to the denial of en banc consideration.

Justice Jennings, dissenting from the denial of en banc consideration, joined by Justice Keyes.