Opinion
No. 01-98-01435-CV
Opinion issued August 21, 2003
On Appeal from the 281st District Court, Harris County, Texas, Trial Court Cause No. 95-29547
OPINION ON REHEARING
Barbara J. Gardner, The Gardner Law Firm 2044 Bissonnet, Houston, TX 77005, David W. Holman, Holman Keeling, P.C. 440 Louisiana, Suite 2220 Houston, TX 77002-1635, for appellant.
Barbara L. Johnson, Paul, Hastins, Janofsky Walker, LLP. 1299 Pennsylvania Avenue, N.W. 10th Floor, Washington, DC 20004, Bob E. Shannon Baker Botts 1600 San Jacinto Center 98 San Jacinto Blvd. Austin, TX 78701-4039, Joseph R. Knight Baker Botts, 98 San Jacinto Blvd Ste 1600 Austin, TX 78701-4039, for appellee.
Panel consists of Chief Justice RADACK and Justices NUCHIA and HANKS.
SUPPLEMENTAL MEMORANDUM
Both Dow and Francis have filed motions for rehearing. Dow has also filed a motion for en banc consideration on rehearing. Although the Court denies all three motions, we briefly write to clarify our decision.
Dow's Motion for Rehearing
Law-of-the-case doctrine
Dow challenges our decision not to revisit our previous determination that the trial court erred in its evidentiary rulings. We declined based on the law-of-the-case doctrine. Dow cites us to new authority from the Court of Criminal Appeals that authorizes the court of appeals to re-evaluate whether the trial court committed error, even if the specific remand order from the Court of Criminal Appeals directed the court of appeals to conduct a new harm analysis. Carroll v. State, 101 S.W.3d 454, 457-59 (Tex.Crim.App. 2003).
Assuming without deciding that Carroll applies to civil cases, we decline to change this Court's previous ruling that the trial court erred in its evidentiary rulings. As Carroll emphasizes, courts of appeals are not "required to re-evaluate their original reasoning, but they ought not be prevented from doing so either." Id. at 459. Carroll does allow courts of appeals to re-evaluate a point if they conclude "the earlier discussion of a point of error was poorly reasoned or unworkable." Id. Because we conclude that this Court's previous determination of the trial court's evidentiary rulings was neither poorly reasoned nor unworkable, we do not re-evaluate that determination or error.
Jim Newell's testimony
Dow also contends our opinion incorrectly characterizes Dow's argument concerning the exclusion of Jim Newell's testimony. In the original opinion, we stated, "Dow does not contend this evidence was harmless, but instead argues that this testimony should have been excluded because its probative value is substantially outweighed by the danger of unfair prejudice."
Dow is correct in asserting that it challenged the harmfulness of Newell's testimony. After this Court specifically questioned Dow at oral submission of the case, Dow filed a postsubmission brief raising the issue. Although we disagree with Dow that the testimony is harmless, we do agree that it is raised in Dow's briefing.
Francis's Motion for Rehearing
On rehearing, Francis challenges our decision not to remand her misrepresentation claim against Dow and Hegyesi to the trial court. She disagrees with our statement that she did not challenge on appeal the trial court's no-evidence summary judgment based on misrepresentation.
Francis's argument is based on her contention (1) that she used the terms "fraud" and "misrepresentation" synonymously in her live pleadings and (2) that she used the term "fraud" on appeal. Although she implicitly admits she did not use the term "misrepresentation" on appeal, she nonetheless argues that her use of the term "fraud" is sufficient to raise both.
Francis cites no authority for this proposition, and we know of none. We do note, however, that if the terms are synonymous, Francis is not harmed by our decision not to remand her misrepresentation claim against Dow and Hegyesi to the trial court.
Conclusion
We deny both Dow's and Francis's motions for rehearing.
Appellee moved for en banc consideration on rehearing.
A majority of the justices of the Court voted to deny en banc consideration on rehearing.