ORTIZ v. NELAPATLA (2023)

OPINION DISSENTING FROM THE DENIAL OF APPELLANT'S MOTION FOR EN BANC RECONSIDERATION

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 appellant Tatia Ortiz's motion for en banc reconsideration.

“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 that 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). This case demands en banc reconsideration because both uniformity and extraordinary circumstances are at issue.

First, the panel opinion merits en banc review because it directly conflicts with our precedent and the plain language of section 18.001. See Tex. R. App. P. 41.2(c). As discussed in my dissent to the panel opinion, the panel majority's interpretation of section 18.001 conflicts with this Court's opinion in Rountree v. Cavazos, No. 05-16-00512-CV, 2017 WL 2730422, at *1 (Tex. App.—Dallas June 26, 2017, no pet.) (mem. op.). See Ortiz v. Nelapatla, No. 05-22-00531-CV, 2023 WL 4571916, at *6–8 (Tex. App.—Dallas July 18, 2023, no pet. h.) (mem. op.) (Partida-Kipness, J., dissenting). The panel majority's interpretation of what it means to controvert evidence is also inconsistent with the plain terms of section 18.001, undermines the plain meaning of “controvert,” and renders meaningless the statute's requirement that counteraffidavits “give reasonable notice of the basis on which the party serving it intends at trial to controvert the claim reflected by the initial affidavit.”

The panel opinion also merits en banc review because it presents extraordinary circumstances. See Tex. R. App. P. 41.2(c). The majority's interpretation of section 18.001 unnecessarily increases a claimant's costs by requiring the claimant to hire an expert to testify to the reasonableness and necessity of uncontroverted expenses. This undermines the purposes of section 18.001 to streamline proof and lower litigation costs and adds new and unprecedented hurdles to a claimant's ability to seek recourse for personal injuries in a quick, efficient, and relatively inexpensive manner. If allowed to stand as binding precedent, the panel majority's opinion provides defendants with a court-approved means of gaming the system and increasing their opponents’ costs by hiring experts to controvert only small portions of otherwise sufficient medical affidavits. This is an absurd and unjust policy which disregards the plain language of section 18.001 and imposes additional and unjust burdens on claimants not contemplated by the Legislature. I would conclude these issues constitute extraordinary circumstances requiring en banc reconsideration with respect to those allegations.

The majority's refusal to allow the full court to weigh in on this important matter is a misstep that will lead to increased litigation costs for claimants and other unsavory results. En banc review is an available tool this Court should employ in this case. By failing to do so, my colleagues have allowed dangerous precedent to become binding precedent on litigants within our jurisdiction.

For this reason and for the concerns stated in my dissent to the panel opinion, I respectfully dissent from the denial of Appellant's motion for en banc reconsideration.

Molberg and Carlyle, JJ., join in this dissenting opinion. Garcia, J., votes to grant the Motion for En Banc Reconsideration. Burns, C.J., with Pederson, Reichek, Nowell, Goldstein, Smith, Miskel, Breedlove, and Kennedy, JJ., vote to deny the Motion for En Banc Reconsideration