Dissenting Opinion Filed April 30, 2024.

S 

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-22-00709-CV

MONTICELLO ASSET MANAGEMENT, INC., Appellant

V.

JACKSON WELLS, DEVIN SCHARES, 

AND ELIZABETH RUSSELL, Appellees 

On Appeal from the 59th Judicial District Court

Grayson County, Texas

Trial Court Cause No. CV-18-0027

OPINION DISSENTING FROM THE DENIAL OF APPELLEES’ 

MOTION FOR EN BANC REHEARING

Dissenting Opinion by Justice Partida-Kipness

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 Appellees’ motion for en banc rehearing.

“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 
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(Tex. App.—Dallas 2019, no pet.) (en banc) (stating 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). 

En banc review is an available tool this Court should employ in this case 

because the panel opinion disturbs the security and uniformity of this Court’s 

jurisprudence. The panel opinion fails to consider the totality of the circumstances 

when defining the premises defect and when deciding whether a condition is open 

and obvious, and too narrowly defines the premises defect. As a result, the panel 

majority has created a standard for determining whether a premises defect is open 

and obvious that deviates from the applicable standard across the state. Further, the 

panel majority erroneously disregarded the jury’s weighing of disputed evidence in 

favor of deciding a fact-intensive issue as a matter of law. The record does not 

support the conclusion that those issues can be decided as a matter of law in this 

case. 

Appellees argue it is important for the full court to consider what parameters 

define a premises defect and what should be considered when reviewing the totality 

of the circumstances surrounding a premises defect. I agree. Moreover, this case 

demands en banc review because the majority opinion deviates so widely from wellestablished standards in premises defect cases. By refusing to allow the full court to 

weigh in on these matters, my colleagues have allowed two of thirteen justices to 
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materially change how this Court must address premises defect cases in the future. 

That troubling result will undoubtedly affect many cases and litigants moving 

forward.

For these reasons and for the concerns stated in my dissent to the panel 

opinion, I respectfully dissent from the denial of Appellees’ motion for en banc 

rehearing.

220709f.p05

Molberg, Nowell, and Carlyle, JJ., join in this dissenting opinion.

/Robbie Partida-Kipness/

ROBBIE PARTIDA-KIPNESS

JUSTICE