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 , Appellee s 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.” T EX . R. A PP . P. 41.2(c). Courts have discretion, however, to determine whether en b anc review is “necessary” in each case. Chakrabarty v. Ganguly , 573 S.W.3d 413, 415

– 16 & n.4– 2

– (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 ba nc 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 opinio n disturbs the security and uniformity of this Court’s jurisprudence . The panel opinion fails to consider the totality of the circumstances whe n defining the premises defect and when deciding whether a condition is open and obvious , and too narrowly defin e s the premises defect

. As a result, t he panel majority has created a standard for determining whether a premise s 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 ba nc review because the majority opinion deviates so widely from well

established 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– 3

– materially change h ow this Court must address premises defect cases in the future. That troubling result will undoubtedly a ffect many cases and litigants moving forward. For th ese reason s and for the concerns stated in my dissent to the panel opinion, I respectfully dissent from the denial of Appell ees’ motion for en banc rehearing

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220709f.p05

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

- Kipness/ ROBBIE PARTIDA

- KIPNESS JUSTICE