Opinion
02-21-00366-CV
11-17-2022
Cresson Interest, LLC, Appellant v. Donald "Rooster" and Lori Beane, Appellees
On Appeal from the 355th District Court Hood County, Texas Trial Court No. C2020203
ORDER
Elizabeth Kerr Justice
We have considered "Appellant's Motion for En Banc Reconsideration."
It is the opinion of the court that the motion for en banc reconsideration should be and is hereby denied and that the opinion and judgment of August 31, 2022 stand unchanged.
We direct the clerk of this court to send a notice of this order to the attorneys of record.
En Banc
Womack, J., concurs with opinion, joined by Birdwell, J., and Gonzalez, J.
Reconsideration by Justice Womack (Birdwell, J. and Gonzalez, J. |joined)
The Honorable Ruben Gonzalez, Judge of the 432nd District Court of Tarrant County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to Section 74.003(h) of the Government Code. See Tex. Gov't Code Ann. § 74.003(h).
CONCURRING MEMORANDUM OPINION ON DENIAL OF MOTION FOR EN BANC RECONSIDERATION
In its Motion for En Banc Reconsideration, Appellant Cresson Interest, LLC asks us to reconsider our "opinion affirming the Rule 193.6 exclusion of nearly all Cresson's summary-judgment evidence after it was tardily produced due to counsel's illness." The motion goes on to criticize our opinion for having "blessed case-dispositive rulings against the client of a reputable, thirty-year lawyer who presented uncontroverted evidence of (1) good cause . . .; (2) no unfair surprise . . .; and (3) no unfair prejudice . . . ." While I concur in the denial of en banc reconsideration, I write separately to emphasize that our appellate hands are tied due to the relevant abuse of discretion standard and that the opinion is not a criticism of this lawyer. See In re Conseco Fin. Serv. Corp., 19 S.W.3d 562, 569 (Tex. App.-Waco 2000, orig. proceeding) (stating that, while sympathetic to the complaints, the appellate court's "hands [were] tied" by a decision of the Texas Supreme Court).
As we noted in our opinion, we must review the trial court's decision to exclude summary-judgment evidence for an abuse of discretion. Cresson Interest, LLC v. Beane, No. 02-21-00366-CV, 2022 WL 3904968, at *4 (Tex. App.-Fort Worth Aug. 31, 2022, no pet. h.) (mem. op.) (citing Lujan v. Navistar, Inc., 555 S.W.3d 79, 90 (Tex. 2018)). We cannot conclude that the trial court abused its discretion merely because we would have ruled differently in the same circumstances. Id. (citing E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995)).
Since this case turns on whether the trial court abused its discretion, it is important to note the limits of our review. While the "abuse of discretion" concept is "not easily defined," it "represents nevertheless an essential and fundamental principle in the complex and delicate relationship between trial and appellate courts." Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 934-35 (Tex. App.-Austin 1987, no writ). It is a "review-limiting device that, within limits, immunizes from appellate revision the choice made by the trial court in a particular case." Id. at 935 (emphasis omitted). It is one of the "tougher appellate propositions." Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.-El Paso 1998, no pet).
As set out in the record, the events and circumstances of this case occurred during the COVID-19 pandemic, and as expressed by Cresson's attorney in her declaration filed with the trial court, "Covid affected the development of this case in specific ways." Cresson, 2022 WL 3904968 at *6. However, as our opinion stated, "Cresson relied solely on pandemic-related problems to explain its failure to timely supplement and fully respond to discovery before the deadline." Id. Therefore, this could not overcome the additional facts supporting the trial court's exercise of its broad discretion. Id.
In the opinion, we noted that we might have ruled contrary to the trial court. Id. at *1, *6. However, we could not "conclude that the trial court abused its discretion merely because we, in the same circumstances, would have ruled differently." See Austin v. Kerr-McGee Refining Corp., 25 S.W.3d 280, 287 (Tex. App.-Texarkana 2000, no pet.). While the trial court could have continued the hearing to cure evidentiary objections and could have granted a short extension of the discovery deadlines-both of which were requested by Cresson-it chose not to do so And while I would have likely ruled differently than the trial court, that is not the standard that we must apply in this case See Saum v City of College Station, No 10-17-00408-CV, 2020 WL 7688033, at *7 n* (Tex App-Waco Dec 22, 2020, pet denied) (mem op) (Gray, CJ, concurring) ("I could not say that view [by the trial court] was an abuse of discretion This is true even though I would not have done so and strongly disagree with that view"), In re DCC, 359 S.W.3d 714, 719 (Tex App-San Antonio 2011, pet denied) (Simmons, J, concurring) ("Although the trial court acted within its discretion, I believe the better practice here would have been to postpone the trial "); see also In re Clendennen, No 10-16-00427-CR, 2017 WL 2877085, at *3 (Tex App-Waco July 5, 2017, orig proceeding) (mem op) (Davis, J, concurring) ("While I concur in the Court's disposition of this original proceeding, I write separately to discuss the importance of discretion in our Texas jurisprudence.").
With these comments, I respectfully concur in the denial of the motion for en banc reconsideration.