In re Alford Chevrolet-Geo

• Decision Date: 26 August 1999
• Docket Number: ET,CHEVROLET-GE
• Citation: 42 Tex. Sup. Ct. J. 756,997 S.W.2d 173
• Parties: (Tex. 1999) IN RE ALFORDAL., RELATORS NO. 97-1171
• Court: Texas Supreme Court

Page 173

997 S.W.2d 173 (Tex. 1999)

IN RE ALFORD CHEVROLET-GEO, ET AL., RELATORS

NO. 97-1171

IN THE SUPREME COURT OF TEXAS

Argued September 8, 1998

Decided June 10, 1999

Rehearing Overruled August 26, 1999

[Copyrighted Material Omitted]

JUSTICE HANKINSON delivered the opinion of the Court, in which CHIEF JUSTICE PHILLIPS, JUSTICE ENOCH, JUSTICE BAKER, JUSTICE ABBOTT, JUSTICE O'NEILL and JUSTICE GONZALES joined.

ON PETITION FOR WRIT OF MANDAMUS

This original mandamus proceeding arises out of a class-action lawsuit. Relators, defendants in the underlying proceeding, present two issues for determination. First, have Plaintiffs sent proper notice of their claims under the Deceptive Trade Practices Act (DTPA)? Second, are Relators entitled to an order bifurcating class and merits discovery? We conclude that Plaintiffs' DTPA notices, which demanded settlement on behalf of the entire putative class, were proper. We also conclude that, because Relators did not clearly distinguish class and merits discovery, Relators are not entitled to an order bifurcating the two. Accordingly, we deny the writ of mandamus.

Envo-Tech, Inc., Jett Jones, Sheryl M. Nickerson, and Leon M. Andrews, III, filed a class-action lawsuit against 636 Texas motor vehicle dealerships, alleging that the dealerships committed fraud, conspiracy, and DTPA violations by passing on their inventory taxes to consumers as an itemized charge in addition to the advertised or negotiated purchase price. Plaintiffs allege that "each Defendant conspired and agreed to charge the so-called 'tax' to each purchaser, to mislead and fail to inform each purchaser as to the nature and legal obligation to pay such tax, and to require 'add-on' of the so-called tax as a condition to purchasing the vehicle in Texas." Plaintiffs seek to represent consumers who bought vehicles from the dealers since January 1, 1994.

Relators, 598 of the 636 defendant dealers, moved to abate on the ground that Plaintiffs did not send then-adequate DTPA notices. They also moved for a protective order to abate all merits discovery until after class certification, urging that the broad, expensive classwide discovery the Plaintiffs sought would be unnecessary if the class were not certified. Relators further objected to Plaintiffs' interrogatories and requests for production. The trial court denied the motion to abate and the motion to bifurcate. It sustained in part and overruled in part Relators' objections. Relators petition for mandamus relief from the two orders denying abatement and bifurcation. They do not challenge the trial court's ruling on the specific discovery objections. We address the abatement and bifurcation issues in turn.

I Standards for Mandamus

Mandamus will lie only to correct a trial court's clear abuse of discretion when no adequate remedy by appeal exists. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). A trial court abuses its discretion if it erroneously denies a DTPA defendant's timely request for abatement. See Hines v. Hash, 843 S.W.2d 464, 469 (Tex. 1992); TEX. BUS. & COMM. CODE 17.505(d). Also, "[a]n order compelling discovery that is well outside the proper bounds is reviewable by mandamus." In re American Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998). Therefore, we consider whether the trial court abused its discretion by denying Relators' pleas in abatement and motion for protective order.

II DTPA Notice

Before filing a DTPA claim, a consumer must timely advise the defendant "in reasonable detail of the consumer's specific complaint and the amount of economic damages, damages for mental anguish, and expenses, including attorneys' fees, if any, reasonably incurred by the consumer in asserting the claim against the defendant." See TEX. BUS. & COMM. CODE 17.505(a). Upon receipt of the notice, a defendant may establish a defense to the suit as a matter of law by tendering the full amount of damages claimed plus a reasonable amount for fees and expenses. See id. 17.506(d). Alternatively, a defendant may establish a defense to the amount of damages by offering to tender an amount of damages that is substantially the same as, or more than, the damages the factfinder ultimately awards. See id. 17.5052(g). If a consumer files a DTPA suit without sending notice, the defendant is entitled to abatement of the suit until sixty days after proper notice is sent. See id. 17.505(d), (e).

Plaintiffs did not send the required DTPA notices before filing suit. After Relators filed pleas in abatement complaining of that omission, Plaintiffs sent Relators belated notices demanding that Relators reimburse all consumers who paid an itemized vehicle inventory or similar tax since January 1, 1994, plus expenses incurred both before and after suit was filed. Relators contend that the notices are not proper under section 17.505(a) because they demand relief for the class, not just the named Plaintiffs, plus expenses incurred after Plaintiffs filed suit. They argue that before a DTPA action can proceed, the consumer must demand a settlement limited to the named consumer's own economic and mental anguish damages and presuit expenses, and that the demand cannot include damages sought on a class's behalf.

As originally enacted in 1973, the DTPA specifically authorized a plaintiff to give notice on behalf of an uncertified class. See Act of May 4, 1973, 63rd Leg., R.S., ch. 143, 1973 Tex. Gen. Laws 322, 330. In 1977, the Legislature repealed the consumer class provisions. See Act of May 6, 1977, 65th Leg., R.S., ch. 216, 10-13, 1977 Tex. Gen. Laws 605. Relators argue that these deletions signified a legislative intent to either eliminate DTPA class actions altogether or empower defendants to unilaterally preempt DTPA class action suits by tendering full payment to only the named plaintiffs.

We disagree. Several commentators have pointed out that the likely motive for repealing the DTPA class-action provisions was the Supreme Court's revision of Texas Rule of Civil Procedure 42, approved on May 9, 1977, which rendered the DTPA provisions unnecessary. See Jack Pope & Steve McConnico, Texas Civil Procedure Rule Making, 30 BAYLOR L. REV. 5, 15 (1978) ("To avoid interfering in this area the Texas Legislature then repealed the sections of the Texas Business & Commerce Code which had authorized class actions in the limited area of deceptive trade practices."); William V. Dorsaneo, III, Creditor's Rights, 32 SW. L.J. 245, 268 n.198 (1978) ("The general provisions of the rule rendered the special class action provisions of the DTPA unnecessary."); see also America Online, Inc. v. Williams, 958 S.W.2d 268, 274-75 (Tex. App. - Houston [14th Dist.] 1997, no writ); Mahoney v. Cupp, 638 S.W.2d 257, 261 (Tex. App. - Waco 1982, no writ) (both adopting same view). The 1973 DTPA class action provisions were patterned after the federal class-action rule, which commentators generally favored over the then-current version of Texas rule 42. See Act of May 4, 1973, 63rd Leg., R.S., ch. 143, 1973 Tex. Gen. Laws 322, 328 (directing Texas courts to follow federal decisions interpreting Federal Rule of Civil Procedure 23); see also 24 B. THOMAS MCELROY, TEXAS PRACTICE: CIVIL PRE-TRIAL PROCEDURE 615-17 (1980) (discussing problems with former rule 42). Because the 1977 revisions to rule 42 made it almost identical to its federal counterpart, there was no longer a need to retain the DTPA's separate class-action provisions.

Relators point out, however, that when the Legislature adopted the class-action provisions of the DTPA in 1973, it also amended article 21.21 of the Texas Insurance Code to add virtually identical class-action procedures. See TEX. INS. CODE art. 21.21, 17-19. The Legislature did not, however, repeal the Insurance Code class-action provisions. Also, the DTPA originally had two provisions relating to class actions - one for procedure, and one for preliminary notice - but only the former would have duplicated amended rule 42. See Act of May 4, 1973, 63rd Leg., R.S., ch. 143, 1973 Tex. Gen. Laws 322, 328-30. Relators argue that had the Legislature merely intended to remove any inconsistency between rule 42 and the DTPA class-action procedures, it would have also repealed the Insurance Code class-action provisions and would not have abolished the DTPA's class-action preliminary notice provision.

Neither the Legislature's jettisoning of the class-action provisions of the DTPA but not of the Insurance Code, nor its substitution of the DTPA's class-specific preliminary notice provision with more general notice provisions, reveals an obvious legislative intent to abolish DTPA class actions. Cf. Dutcher v. Owens, 647 S.W.2d 948, 950 (Tex. 1983) (warning against use of conjecture to supply legislative intent); Massachusetts v. United N. & S. Dev. Co., 168 S.W.2d 226, 229 (Tex. 1942) ("Interpretation by implication is permitted only to supply obvious intent not expressly stated, and never to contradict nor add to a statute."). Nothing in the legislative history of the 1977 amendments indicates that the Legislature intended to abolish DTPA class actions, and we decline to infer such an intent. If the Legislature had intended to abolish DTPA class actions, it could have expressly done so. We hold that the DTPA permits a consumer to provide preliminary notice on behalf of a putative class.

Courts have long recognized the authority of individual plaintiffs to negotiate settlements on behalf of putative classes. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 597-98 (1997); General Motors Corp. v. Bloyed, 916 S.W.2d 949, 951 (Tex. 1996). Of course, such settlements are ultimately subject to class certification and court approval. See TEX. R. CIV. P. 42(e). Plaintiffs' demand that Relators reimburse the members of the putative class did not circumvent the DTPA's statutory notice requirements.

Relators also object to the notices on the ground that Plaintiffs are permitted to...