Spector v. Norwegian Cruise Line Ltd., No. 01-02-00017-CV (Tex. App. 3/30/2004)
| Decision Date | 30 March 2004 |
| Docket Number | No. 01-02-00017-CV.,01-02-00017-CV. |
| Parties | DOUGLAS SPECTOR, ANA SPECTOR, JULIA HOLLENBECK, DAVID KILLOUGH, and RODGER PETERS, Appellants v. NORWEGIAN CRUISE LINE LTD. D/B/A NORWEGIAN CRUISE LINE, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 270th District Court, Harris County, Texas, Trial Court Cause No. 2000-39257.
Panel consists of Justices TAFT, HIGLEY, and PRICE.29
Appellants, Douglas Spector, Ana Spector, Julia Hollenbeck, David Killough, and Rodger Peters (collectively, "appellants"), appeal from the trial court's order refusing to certify two classes in appellants' lawsuit against appellee, Norwegian Cruise Line Ltd. d/b/a Norwegian Cruise Line ("NCL"). See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(3) (Vernon Supp. 2004). We affirm.
Appellants are mobility-impaired individuals who use scooters or wheelchairs and those individuals' traveling companions. Appellants were passengers on one of two NCL vessels, the NORWEGIAN SEA and the NORWEGIAN STAR, on NCL's "Texaribbean Cruise," which departed from the Port of Houston and sailed to Cancun or Calica, Cozumel, and Roatan.
Appellants alleged (and at the certification hearing produced supporting evidence) that, before the cruises, they were told—verbally or in writing, impliedly or expressly—that the vessels or related port excursions were accessible to mobility-impaired passengers and that those passengers would have assistance on and off the ship. Appellants alleged and produced evidence that, after they had boarded the vessels, they discovered that, because they were mobility-impaired, they could not access many vessel areas (including, but not limited to, public restrooms, entertainment facilities, dining areas, swimming pools, and elevators), they were relegated to four cabins in undesirable areas of the ship, they were denied discounts available to passengers without disabilities, they were generally required to pay for a ticket for a companion to accompany them, they had no evacuation plan available to them, and they were effectively or expressly denied full access to ports of call.
Appellants sued NCL1 for contract breach, fraud or fraudulent inducement, unjust enrichment, and negligent misrepresentation; for violations of the Deceptive Trade Practices — Consumer Protection Act ("DTPA")2 and chapter 121 of the Texas Human Resources Code,3 which prohibits certain discrimination; and for a declaration that NCL's cruise ships were subject to chapter 121 and that NCL had violated appellants' rights or that appellants were entitled to refunds. Appellants sought actual and treble damages for DTPA violations; actual damages for their contract-breach claims; and the statutory minimum presumed damages of $100 for their discrimination claims under chapter 121.4 Alternatively, appellants sought reimbursement under the equitable principle of unjust enrichment. NCL disputed most of appellants' factual allegations and argued that chapter 121 of the Human Resources Code, and related statutes and architectural standards, did not apply to NCL's vessels because the vessels were foreign-flagged, were built before the statutes' application date, or did not sail in Texas waters.
Appellants moved for certification with respect to all of their claims except those for fraud, fraudulent inducement, and negligent misrepresentation.5 The two classes that appellants sought to certify were:
• all passengers who at all times used scooters or wheelchairs for mobility and who lived in, or sailed from, Texas, and who sailed on NCL cruises from August 1, 1996 to the present ("the mobility-impaired class")6 and
• all companions of passengers with mobility impairments who lived in, or sailed from, Texas and who sailed on NCL cruises from August 1, 1996 to the present ("the companion class").7
After a hearing, the trial court denied appellants' certification motion without stating grounds and denied appellants' request for fact findings and legal conclusions.
In issue two, appellants claim that the trial court erred in "failing to adopt or properly [to] apply a spoliation inference" because NCL destroyed evidence that appellants claim related to class certification.
Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 666 (Tex. App.—Houston [1st Dist.] 1998, no pet.); see Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex. 2003) ( ) (citations omitted). "As a general rule, a party's failure to produce evidence within its control raises the presumption that, if produced, [the evidence] would operate against him." Schooley, 984 S.W.2d at 666. The affected party must move for sanctions or, depending on the circumstances, request a spoliation presumption or instruction. Id. The trial court must then determine
whether sanctions or a presumption is justified. In making this legal inquiry, the court must consider: (1) whether the accused party had a duty to preserve the evidence; (2) whether the accused party negligently or intentionally spoliated evidence; and (3) whether the spoliation prejudiced the other party's ability to present its case or defense. In making this latter determination, the court should look to a variety of circumstances, including the relevancy of the missing evidence, the harmful effect of the evidence, and the availability of other evidence to take the place of the missing information. . . .
If the trial court determines that a duty to preserve evidence exists and that there has been a breach of that duty, resulting in prejudice to the other party, the court then must consider what remedy is warranted by the circumstances of the case. In choosing an appropriate sanction or in submitting a spoliation instruction to the jury, the court is accorded broad discretion.
Appellants repeatedly requested that the trial court apply a spoliation inference to support their burden for obtaining class certification. However, nowhere in their appellate briefs do appellants refer to a ruling on their requests. Our review of the record has not revealed any such ruling or any express consideration of the inquiries that Schooley and other spoliation cases make relevant. Nor can we construe the trial court's denial of appellant's motion to certify the class as an implicit ruling on appellants' spoliation request: the denial of certification without specifying grounds can be equally consistent with either no ruling on the spoliation request, a ruling granting the spoliation request,8 or a ruling denying the spoliation request. See Tex. R. App. P. 33.1(a)(2) (). We cannot review a ruling that we cannot ascertain, nor can we remand the cause for appellants to obtain or to record that ruling belatedly.
We overrule issue two.
In support of their class-certification motion, appellants filed under seal two evidentiary volumes, which consisted of excerpts from NCL's "medical letter database."9 In issue one, appellants argue that the trial court abused its discretion, or that its certification ruling is not entitled to an abuse-of-discretion standard of review, because it appeared that the trial court had not reviewed the sealed volumes before ruling. Appellants argue that, at a minimum, the Code of Judicial Conduct required such review here. See Tex. Code Jud. Conduct, Canons 1-2, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. B (Vernon 1998) (generally requiring judges to uphold judiciary's integrity and independence and to avoid appearance of impropriety).
Appellants claim on appeal that the sealed volumes were relevant to the class-certification elements of numerosity, typicality, commonality, and predominance. Before the trial court, however, appellants consistently represented that the sealed volumes related only to numerosity.10 We thus review the trial court's actions under the assumption that the appendices related only to numerosity, which was how the trial court was told to view them.
In its written opposition to class certification, NCL argued, among other things, that the classes were not clearly identifiable by objective criteria because of the broad way that appellants had defined the mobility-impaired class. In support, NCL argued that the sealed volumes included records of some passengers who were not mobility-impaired and others who were mobility-impaired in varying degrees. NCL then argued that appellants had failed to show numerosity for similar reasons.
During the certification hearing, appellants stated several times that they did "not believe that there is a serious dispute" that the numerosity requirement was met and that, except "for a few technical quibbles about class definition, NCL has not seriously objected on the ground that the class is not numerous." Implicitly supporting appellants' assertion that numerosity was uncontested was the fact that NCL's counsel never mentioned numerosity again when he spoke later in the hearing.
In fact, the only uncertainty about numerosity expressed during...
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