Denton Cnty. Elec. Coop. v. Hackett
Decision Date | 10 May 2012 |
Docket Number | NO. 02-09-00425-CV,02-09-00425-CV |
Parties | DENTON COUNTY ELECTRIC COOPERATIVE, INC. D/B/A COSERV ELECTRIC APPELLANT AND APPELLEE v. NICOLE HACKETT, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED APPELLEE AND APPELLANT |
Court | Texas Court of Appeals |
FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
OPINIONIn this interlocutory appeal,1 Appellant Denton County Electric Cooperative, Inc. d/b/a CoServ Electric (CoServ) raises six issues, complaining that the trial court erred by certifying this case as a class action. We vacate the trial court'sclass certification order and remand the case to the trial court for further proceedings.2
The underlying issue in this class certification appeal involves the rights of members of an electric cooperative and the statutory, fiduciary, and contractual duties, if any, owed by the cooperative to its members.
CoServ is a member-owned, nonprofit electric cooperative formed under the Texas Electric Cooperative Corporation Act (ECCA). See Tex. Util. Code Ann. §§ 161.001-.254 (West 2007). It has approximately 135,000 members, comprised of a diverse socio-economic and demographic group of residential users as well as commercial and public users.
Appellee Nicole Hackett is a CoServ member. Mark Glover and Janice Brady, also CoServ members, are parties in the proceeding below. Glover is a former CoServ director, and Brady unsuccessfully campaigned in June 2008 for election to CoServ's board.
In 2008, a CoServ member complained about receiving a robo-call from Brady on his unlisted phone number during Brady's election campaign. CoServ investigated, and Brady admitted that she possessed members' personalinformation but refused to disclose her source. In February 2009, Glover admitted that he had provided Brady with the members' personal information.
Brady filed a class action suit against CoServ in February 2009, alleging, among other things, that CoServ breached its fiduciary duty by undermining the cooperative's democratic process in its refusal to make its members' contact information available to nonincumbents running for election to CoServ's board of directors. CoServ removed the suit to federal court3 and initiated the instant suit in state court against Glover, alleging that Glover had released "CoServ's confidential and proprietary information" in violation of CoServ's policy to protect its members' personal information (Policy No. 310)4 and had made an unauthorized release of confidential real estate information. CoServ's claims against Glover included breach of fiduciary duty, misappropriation of trade secrets, and conversion of CoServ's property, conspiracy to commit these acts, and breach of his 2005 and 2008 directorship agreements.5
Glover filed a counter-petition on his own behalf and on behalf of a class consisting of "[a]ll current members of Denton County Electric Cooperative, Inc. entitled to vote in board elections," excluding the trial court judge, CoServ, and its officers, employees, and directors other than Glover.6 He alleged that CoServ failed to provide its members with open meetings, open records, and fair voting for board elections by failing to disclose information about CoServ to the members, and that CoServ had subverted the election process in favor of incumbent directors. Glover contended that the entrenched "old guard" board was nearly the same as the board that had driven CoServ into bankruptcy in 2002 and that "continue[d] to put management interests ahead of the interests of the members to whom it owe[d] a fiduciary duty."
Brady filed a petition in intervention, seeking a declaratory judgment that CoServ had a duty to provide challengers with all voter lists and other information available to incumbent directors; that CoServ's member contact information is not confidential, a trade secret, or otherwise privileged from disclosure to other members; that Policy No. 310 violates state law; that providing memberinformation to a person running for election to the board of directors conforms with state law and does not violate a board member's fiduciary duties; and that CoServ member information is not CoServ's property.
The trial court denied CoServ's motion to strike Brady's petition in intervention or, in the alternative, to stay Brady's lawsuit based on Brady's similar suit formerly pending in the federal court. CoServ subsequently filed an amended petition against Glover and an original verified petition against Brady, alleging trade secret misappropriation, conversion, and "conspiracy/aiding and abetting" by Glover and Brady and breach of fiduciary duty and breach of contract by Glover.
Brady filed an amended petition and Hackett combined her original petition in intervention with Brady's amended petition. They referred to themselves collectively as "Class Plaintiffs," defined the voting subclass, listed their common questions of law and fact for the class, and made claims for breach of fiduciary duty, statutory duties, and contract, as well as for conversion, oppression, and fraudulent concealment.
CoServ complained that Hackett and Brady lacked standing and argued that Brady, Hackett, and Glover were inadequate class representatives, that there were irreconcilable conflicts among the members of the putative class, that a class action was not the superior method of adjudicating the dispute, and that common questions did not predominate over individual issues.
Brady and Hackett filed Brady's second amended petition and Hackett's first amended petition in intervention on August 31, 2009, the same day that the trial court began the five-day hearing on class certification. Their new petitions omitted the claim for breach of statutory duties. Nonetheless, on November 6, 2009, the trial court signed an order certifying the class under rule of civil procedure 42(b)(2) that included the statutory duties claim as an issue.
The order set out the following:
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