in Re Newport Classic Homes, L.P., L.L.C. ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00126-CV
IN RE NEWPORT CLASSIC HOMES, L.P., L.L.C.
Original Mandamus Proceeding 1
DISSENT TO DENIAL OF MOTION FOR EN BANC RECONSIDERATION
Dissenting Opinion by: Rebeca C. Martinez, Justice, joined by Justice Irene Rios
Sitting en banc: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice (not participating)
Luz Elena D. Chapa, Justice (not participating)
Irene Rios, Justice
Delivered and Filed: December 12, 2018
I dissent to the denial of real party in interest Rafael Lagunes’ motion for en banc
reconsideration without requesting a response. See TEX. R. APP. P. 49.2.
To reiterate our previous dissent to the en banc’s granting of mandamus relief, this court has
ignored the Texas Supreme Court’s disfavor of en banc reconsideration and has allowed a minority en
banc of three participating justices who disagree with a panel opinion to substitute its own opinion
when there is no conflict among this court’s decisions nor the existence of “extraordinary
circumstances” which require en banc review.
1
This proceeding arises out of Cause No. 2014-CI-02113, styled Rafael Lagunes v. Newport Classic Homes, L.P.,
L.L.C., pending in the 57th Judicial District Court, Bexar County, Texas, the Honorable Rosie Alvarado presiding.
Dissenting Opinion 04-18-00126-CV
The Texas Supreme Court is invited to consider whether this case has invoked the en banc
procedure within the purview of the plain text of the rules and the Texas Supreme Court’s directive
disfavoring en banc review, or whether, instead, a minority en banc consisting of three justices has
simply replaced a panel opinion under favorable circumstances where no true conflict in precedent
exists.
As discussed in Justice Rios’ dissent to the grant of en banc review, Newport did not meet the
requirements for both mandamus relief and en banc consideration. In re Newport Classic Homes,
L.P., L.L.C., No. 04-18-00126-CV, 2018 WL 4903065, at *8 (Tex. App.—San Antonio Oct. 10,
2018, orig. proceeding) (mem. op.) (Rios, J., dissenting to grant of motion for en banc
reconsideration). The minority en banc admits but ignores the fact that Newport failed to provide the
trial court with a motion for protection or to quash, and to provide timely proof in support of its
objections nor seek any requisite leave to file any affidavit for the trial court to properly consider.
Without precedent, it summarily excuses Newport’s procedural omissions and conclusively holds that
a response to a motion to compel discovery equates to a motion for protection. Further, the opinion
granting en banc reconsideration lacks any evaluation of prior precedent against which the original
panel opinion conflicted, dropping only a footnote to state “a denial of mandamus relief in this case
would conflict with our prior decision in In re Semgroup.” 2 Id. at *1. Notably, the opinion fails to
point to the existence of any “extraordinary circumstances,” and instead simply joins in the dissent’s
view of the facts before the trial court.
Because the relator failed to show an abuse of discretion without appellate remedy by the trial
court in granting the motion to compel on the record before us, I would again deny Newport’s petition
for writ of mandamus and motion for en banc reconsideration and uphold the trial court’s decision to
2
In re Semgroup Corp., No. 04-16-00230-CV, 2016 WL 3085875 (Tex. App.—San Antonio June 1, 2016, orig.
proceeding).
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Dissenting Opinion 04-18-00126-CV
grant the motion to compel the deposition of the corporate officer. I therefore dissent to the minority
en banc’s order granting Newport’s petition for writ of mandamus and also its order denying Lagunes’
motion for en banc reconsideration.
Rebeca C. Martinez, Justice
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