Concurring and Dissenting Opinion s on Denial of Rehearing En Banc filed

September 20 , 2012.

In The



## Fourteenth Court of Appeals

NO. 14

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- 00 815

- CV

THE KANSAS CITY SOUT HERN RAILWAY COMPANY , Appellant

V.

RONALD K. ONEY, INDI VIDUALLY AND AS REPRESENTATIVE OF TH E

ESTATE OF DANIEL D. ONEY, Appellee

On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2011

- 32031



### C O N C U R R ING O P I N I O N O N D E N I A L O F

R E H E A R I N G E N B A N C

Today

, t he en banc court den ies the motion for en banc reconsideration filed by
appellant The Kansas City Southern Railway Company. 1 Th e decision is compelled by
the exacting standard for en banc consideration imposed by the Texas Rules of Appellate

Procedure. 2

1 See Tex. R. App. P. 49.7.

2 See Tex. R. App. P. 41.2(c).2

Rule 41.2 (c) s upplies the legal standard for determining whether a motion for en banc reconsideration should be granted

. 3 The relevant portion of that rule provides:
(c) En B anc Consideration D isfavored. 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. 4
This high threshold for en banc con sideration is reasonable given the large volume of
cases adjudicated each year by intermediate appellate courts and the s ubstantial
expenditure of time and resources involved in consider ing a case en banc. Notab ly, the

standard for en banc review is not w hether a majority of the en banc court disagrees with
all or part of a panel opinion. 5 Thus, even if a majority of the en banc court were to
conclude that the majority opinion in the case under review was wrongly decided, that
conclusion alone would not j ustify en banc consideration. 6 The fact that the issues
involved are important is likewise not sufficient to satisfy the legal standard. 7 Under the
plain meaning of Rule 41.2(c) , en banc consideration is disfavored and should be ordered
only when necessa ry to secure or maintain uniformity in th is court’s decisions or when
extraordinary circumstances require en banc consideration. 8

In its motion for en banc reconsideration, The Kansas City Southern Railway
Company d oes not address the standard for en banc review set forth in Rule 41.2(c). Nor

does it assert or show a direct conflict between the panel majority opinion and any other
opinion of this court. The Kansas City Southern Railway Company does not assert or

argue that en banc consideration is necessary to secure or maintain uniformity in this

3 See id

.
4 Id

.
5 See Thompson v. State , 89 S.W.3d 843, 856 (Tex. App.

— Houston [1st Dist.] 2002, pet. ref’d) (Jennings, J., concurring on denial of rehearing en banc).

6 See Tex. R. App. P. 41.2(c); Thompson , 89 S.W.3d at 856 (Jennings, J., concurring on denial of rehearing en banc).

7 See Tex. R. App. P. 41.2(c); Thompson , 89 S.W.3d at 856 (Jennings, J., concurring on denial of rehearing en banc).

8 See Tex. R. App. P. 4 1.2(c).3

court’s decisions. Nor does The Kansas City Southern Railway Company assert or argue that extraordinary circumstances require en banc consideration. Likewise, in the

dissen ting opinion on denial of rehearing en banc, there is no discussion of the exacting
standard for en banc consideration or why it is met in th is instance

. Because this exacting
standard is not satisfied, it i s proper for this court to deny The Kansas City Southern
Railway Company ’s motion for en banc reconsideration

. 9 Though the presented issues
are important to the jurisprudence , the prerequisites for en banc consideration have not

been satisfied

. 10 By voting to deny thi s motion for en banc reconsideratio n , I take no position on the merits of the case under review ; rather, I conclude only that the high

threshold for en banc consideration has not been met

. 11
For these reasons, I respectfully concur with th i s court’s decision to deny The Kansas City Southern Railway Company’s motion for en banc reconsideration.

/s/ Kem Thompson Frost Justice

En Banc Court consists of Chief Justice Hedges and Justices Frost, Seymore, Brown, Boyce, Christopher, Jamison, McCally, and Busby, and Senior Justice Mirabal. 12 (J. Boyce dissenting to denial of rehearing en banc, joined by Justices Brown, Christopher, Jamison, and Busby).

9 The dissenting opinion contains a statement that the majority opinion “is incompatible with” this court’s decision in Abraham v. Union Pac. R.R. Co., 233 S.W.3d 13, 17 (Tex. App.

— Houston [14th Dist.] 2007, pet. denied), suggesting that en banc consideration is necessary to secure or maintain uniformity in this court’s decisions. See post at p. 8. The Abraham case did not involve claims that were subject to any part of Chapter 90 of the Texas Civil Practice and Remedies Code. See Abraham

, 233 S.W.3d at 16

– 24. In the case under review, the majority expressly stated that “[n]othing in our holding relieves [Oney] from the burden of presenting reliable, admissible evidence supporting his FELA claim in future proceedings.” Kansas City S. Ry. Co. v. Oney , No. 14

- 11

- 00815

- CV,

— S.W.3d

— , — , 2012 WL 2928535, at *12 (Tex. App.

— Houston [14th Dist.] Jul. 19, 2012, no pet. h.). The majority opinion does not conflict with the Abraham opinion and does not create a lack of uniformity in this court’s decisions

.

10 See Tex. R. App. P. 41.2(c).

11 See id

.
12 Senior Justice Margaret Garner Mirabal sitting by assignment.