Bally Total Fitness v. Jackson, 051299
| Decision Date | 12 May 1999 |
| Docket Number | No. 04-98-00834-CV,04-98-00834-CV |
| Parties | (Tex.App.-San Antonio 1999) BALLY TOTAL FITNESS CORPORATION, f/k/a Health & Tennis Corporation of America, Appellant v. Keith JACKSON and Freddy Mack, Individually and on Behalf of All Others Similarly Situated, Appellees Delivered and Filed: |
| Court | Texas Court of Appeals |
Honorable John D. Gabriel, Judge Presiding
APPEAL DISMISSED FOR WANT OF JURISDICTION
Sitting: Alma L. Lopez, Justice Catherine Stone, Justice, Karen Angelini, Justice
Opinion by: Alma L. Lopez, Justice
This is an interlocutory appeal of three court orders, one granting plaintiffs' partial summary judgment on liability, and two orders denying Bally's motions (one oral and one written) to decertify the class. The appellees moved for dismissal on the grounds that none of these orders are final or interlocutory appealable orders. We agree and grant the motion to dismiss.
FACTUAL BACKGROUND
In 1995, Keith Jackson filed a class action, individually and on behalf of all others similarly situated, against Bally Total Fitness Corporation, formerly known as Health & Tennis Corporation of America ("Bally").1 The suit complains that Bally charged customers who purchased their club membership in installments an excessive time-price differential amounting to "monthly dues" which were not charged to its cash-paying members for the same membership privileges. Jackson contends that the monthly dues are thinly disguised credit charges which result in a time-price differential that exceeds the maximum permitted by the Texas Credit Code and violates the Deceptive Trade Practices Act.
On December 11, 1995, the trial court certified the lawsuit as a class action. The order required plaintiff to provide the class members The order does not say when the notice should be sent. Discovery skirmishes intensified, prompting several stays during previous interlocutory appellate proceedings. Bally did not produce membership records in response to discovery requests for purposes of sending notice to the potential class until January of 1998.
Jackson and Mack's motions for partial summary judgment on the issue of liability2 were granted and the court signed the order on September 21, 1998.
On September 21, 1998, the court also denied Bally's motion to decertify the class. A proposed notice was submitted to the trial court two days later and has not yet been approved or sent to potential members of the class. Appellees complain that the membership information they have received is not in a format that permits them to identify those who qualify as members of the class and are therefore entitled to notice. On September 24, 1998, Bally filed a motion to withdraw class certification on the ground that the court had made a determination on the merits without providing prior notice to the class. This motion was denied on October 2, 1998. On October 21, 1998, the court ordered Bally to produce the records in electronically readable form to permit plaintiff-appellees to proceed with class notification. That order is stayed pending this appeal.
JURISDICTION
Plaintiff-appellees moved to dismiss this appeal on the ground that none of the three orders from which Bally appeals is a final or interlocutory appealable order. A party may take an interlocutory appeal only when authorized by statute. See Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985). Texas authorizes an interlocutory appeal from an order which certifies or refuses to certify a class action. TEX. CIV. PRAC. & REM. CODE ANN. 51.014 (a)(3) (Vernon 1998).
An order merely changing the size of a class only modifies a certification order and is not an order certifying or refusing to certify a class from which an interlocutory appeal may be taken. See Pierce Mortuary Colleges, Inc. v. Bjerke, 841 S.W.2d 878, 880-81 (Tex. App.-Dallas 1992, writ denied). If the order in question certifies or refuses to certify a class, however, other matters relating to class certification, such as class size and notice requirements, may also be reviewed in the interlocutory appeal. See In the Interest of M.M.O., 981 S.W.2d 72, 79 (Tex. App.-San Antonio 1998, no writ). We do not consider questions related to the merits of the class claims, nor do we consider the probability of the class's success on the merits. See Microsoft Corp. v. Manning, 914 S.W.2d 602, 607 (Tex. App.-Texarkana 1995, writ dism'd). We may, however, consider all matters pertaining to class certification encompassed within the certification order. See M.M.O.,supra; American Express Travel Related Servs. Co. v. Walton, 883 S.W.2d 703, 707 (Tex. App.-Dallas 1994, no writ). Interlocutory appeal is also available from a subsequent withdrawal of the original order of certification. See Grant v. Austin Bridge Constr. Co., 725 S.W.2d 366, 368-69 (Tex. App. -Houston [14th Dist.] 1987, no writ) (order withdrawing certification tantamount to refusing to certify). In addition, the supreme court has held that an order which fundamentally restructures the class may be appealed under 51.014. See De Los Santos v. Occidental Chemical Corp., 933 S.W.2d 493, 495 (Tex. 1996).
Bally points to these cases as examples where the appellate court exercised its jurisdiction to review interlocutory matters collateral to the act of certifying or refusing to certify a class action. In each instance, however, the order appealed was the original order granting or denying certification, or withdrawing a previous order on this issue, or was fundamentally modifying its original order. In this appeal, the original order of class certification was not appealed and the two subsequent orders concerning certification simply overrule Bally's attempts to decertify or withdraw the original order.
Bally argues that the partial summary judgment on liability provides the foundation for appellate jurisdiction claiming the trial court fundamentally altered the nature of the...
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