Three recent en banc decisions in the Fourteenth Court of Appeals demonstrated disagreements among the justices of that court over preservation issues. Appellate practitioners should watch similar developments in future cases to determine whether these disagreements are part of a broader trend and how they might affect appellate practice in Houston.

The three decisions came to the Fourteenth Court in different contexts. In one decision, the en banc majority rejected an immunity argument advanced by the City of Houston and held that “the City did not conclusively establish the good faith of the officer involved in the collision, and that a material fact issue exists as to whether that officer acted recklessly.” Gomez v. City of Houston, No. 14-17-00811-CV, slip op. at 2 (Tex. App.­—Houston [14th Dist.] Oct. 29, 2019, pet. filed). Justice Jewell dissented, in part based on preservation concerns:

To begin with, the en banc majority reverses the trial court’s judgment based in part on a contention Gomez never advanced below. Gomez did not contend in her response to the City’s plea that Officer Simmons was reckless because he failed to activate his overhead lights or siren. Although Gomez cited evidence that Officer Simmons did not activate his lights, she never asserted that his failure to do so constituted recklessness or established a fact issue under the emergency response exception. As Gomez did not advocate that position to the trial court, we should not rely upon it to reverse the judgment.

Gomez v. City of Houston, No. 14-17-00811-CV, slip op. at 6 (Tex. App.­—Houston [14th Dist.] Oct. 29, 2019, pet. filed) (Jewell, J., dissenting).

Similarly, in a parental termination case, the Fourteenth Court recently granted en banc review, although the final decision is still pending. Justice Christopher dissented from the decision to grant en banc review in part based on preservation concerns:

We are now 90 days past our deadline [for a decision imposed by the Family Code], with no new majority opinion in sight. The issue raised by the dissent was waived (both in the trial court and in the appellate court) and the panel opinion affirmed termination on an alternative ground. Those facts should have deterred a vote for en banc review, but they did not.

In re L.C.L. & M.E.M., No. 14-19-00062-CV, slip op. at 2 (Tex. App.­—Houston [14th Dist.] Oct. 22, 2019) (Christopher, J., dissenting)

Finally, in a decision involving an injunction, the en banc court affirmed a trial court’s order granting a temporary injunction based on two irreparable harms. Cheniere Energy, Inc. v. Parallax Enterps., LLC, No. 14-17-00982-CV, slip op. at 17-18 (Tex. App.­—Houston [14th Dist.] Aug. 13, 2019, pet. dism’d by agreement). Chief Justice Frost dissented from the en banc decision, arguing that these harms should not be considered:

First, the Parallax Parties did not assert either of these points in the trial court, so this court should not base its decision on this ground.

Cheniere Energy, Inc. v. Parallax Enterps., LLC, No. 14-17-00982-CV, slip op. at 18 (Tex. App.­—Houston [14th Dist.] Aug. 13, 2019, pet. dism’d by agreement) (Frost, C.J., dissenting).

It is beyond the scope of this article to examine who has the better of the preservation arguments in each case. Plainly, a majority of the Court in each circumstance believed that en banc review was warranted, notwithstanding the losing side’s preservation argument.

Whether these opinions have a broader significance or signal a broader disagreement is hard to predict at this point, especially given the lack of any direct clash on the preservation issue in the opinions. Perhaps this difference in views reflects a divergence in thought over the preservation requirements. Or perhaps the differences in opinion can be explained by a different reading of the facts of each particular case more than a substantive legal dispute about preservation requirements.

The apparent divergence in views may also reflect a disagreement about a preservation argument’s effect on a case’s worthiness for en banc review. This view is reflected in the dissent’s statement in L.C.L. that, among other issues, waiver issues “should have deterred a vote for en banc review. . . .” L.C.L., slip op. at 2 (Christopher, J., dissenting).

On one hand, a hesitancy to grant en banc review when serious preservation issues exist is understandable. As any appellate practitioner knows, the Rules of Appellate Procedure expressly disfavor en banc review. See Tex. R. App. P. 41.2(c) (“En Banc Consideration Disfavored. 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.”).

On the other hand, nothing in the Rules suggests that preservation issues should be treated differently in en banc decisions than they are in normal appeals. Accordingly, it is also defensible to not allow potential preservation issues to play an overbroad role in determining whether to grant en banc review.

In any event, these opinions are noteworthy because they highlight differing views of preservation on the part of the justices. Appellate practitioners should be eminently concerned about preservation and thus should watch these developments to determine their impact on such an important part of appellate practice.