Wal-Mart Stores, Inc. v. Lopez

• Decision Date: 14 November 2002
• Docket Number: No. 14-02-00451-CV.,14-02-00451-CV.
• Citation: 93 S.W.3d 548
• Parties: WAL-MART STORES, INC. and Sam's East, Inc., Appellants, v. Elena LOPEZ, Liberty Morales, Chad Matthews, James Veillon, and All Others Similarly Situated, Appellees.
• Court: Texas Court of Appeals

93 S.W.3d 548

WAL-MART STORES, INC. and Sam's East, Inc., Appellants, v. Elena LOPEZ, Liberty Morales, Chad Matthews, James Veillon, and All Others Similarly Situated, Appellees.

No. 14-02-00451-CV.

Court of Appeals of Texas, Houston (14th Dist.).

November 14, 2002.

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Lynne Liberato and Diana L. Davis, Houston, for Appellants.

Franklin D. Azar, Jim Adler, Houston, Michael M. Phillips, Angleton, for Appellees.

Panel consists of Chief Justice BRISTER and Justices HUDSON and FOWLER.

OPINION

J. HARVEY HUDSON, Justice.

In this interlocutory appeal, Wal-Mart Stores, Inc. and Sam's East, Inc. (collectively, "Wal-Mart") appeal the trial court's order granting class certification to Elena Lopez, Liberty Morales, Chad Matthews, and James Veillon, on behalf of themselves and all others similarly situated. Because individual issues will predominate over common issues, and the class action is not the superior method for litigating appellees' claims, the trial court abused its discretion in granting the class certification and, accordingly, we reverse the order and remand the case to the trial court.

I. BACKGROUND

Appellees allege that due to uniform Wal-Mart policy they were required to work through rest and meal breaks and to work "off-the-clock" without pay. Appellees seek to represent a class consisting of all current and former hourly employees who were employed by Wal-Mart and Sam's Club in Texas after June 23, 1996. There are 264 Wal-Mart and 61 Sam's Club stores in Texas. The proposed class consists of approximately 350,000 current and former employees.

Each applicant for employment with Wal-Mart must complete and sign an employment application. By signing the Wal-Mart employment application, each applicant states his understanding that any employment relationship with Wal-Mart is "at-will":

[T]his application is not a contract, offer, or promise of employment and that if hired I will be able to resign at any time for any reason. Likewise, the company can terminate my employment at any time with or without cause. I further understand that no one other than the President of Wal-Mart Stores, Inc., or Vice President of its People Division has the authority to enter into an employment contract or agreement with me, ...

Once an applicant has been hired by Wal-Mart, he or she is required to attend an orientation session conducted by Wal-Mart personnel managers. Each new employee is given an employee handbook setting forth policies and procedures for Wal-Mart employees. The employee handbook states the following with regard to rest and meal breaks:

Associates will be provided break and meal periods during their scheduled work shift. Associates are paid for up to two break periods per work shift. No associate should work over six hours without taking at least a 30-minute meal period. Remember to clock in and out for meal periods.

Associates should not be required nor requested to perform work during their break and/or meal periods.

Where state law requires additional or more frequent break/meal periods will be followed [sic].¹

With regard to work performed off-the-clock, the employee handbook further states Managing Your Time. This is one of your responsibilities. Our expectation is very clear. Always clock in to begin your workday and at other appropriate times; ask your Supervisor for specific details. If you forget to do this, notify your Supervisor immediately so corrections can be made. Your hard work is appreciated, and we want to pay you for this work. Remember that working off the clock is not only against Wal-Mart policy — it's against the law. Always clock in when you are working — Always! There are no exceptions.

Each new employee is required to sign the following acknowledgment contained in the employee handbook, which sets forth the employee's understanding that the policies and benefits explained in the employee handbook are not terms and conditions of employment:

This handbook is intended solely as a general information guide to let Associates know about the current policies and programs Wal-Mart has in place. The policies and benefits presented in this handbook are for your information and do not constitute terms or conditions of employment.... This handbook is not a contract. From time to time, Wal-Mart may determine that it needs to change some of the policies or programs in this handbook in order to better meet the requirements of our Associates and the Company. If any policies or programs are changed, modified, deleted, or supplemented, Wal-Mart will notify Associates as soon as possible.

I acknowledge that I have received and read this handbook as well as this Acknowledgment, and that I had the opportunity to ask my Manager questions about both and that I fully understand the contents of both as they relate to my employment with Wal-Mart. I understand that the information contained in this handbook are guidelines only, and are in no way to be interpreted as a contract.

Appellees allege Wal-Mart had a common oral contractual obligation to provide rest and meal breaks and to pay its hourly employees for all work performed, but breached that obligation through a uniform policy of depriving employees of rest and meals breaks and forcing employees to work off-the-clock without pay. In its order granting class certification, the trial court determined appellees had satisfied all prerequisites to class certification. Wal-Mart brings this interlocutory appeal asserting the trial court abused its discretion in granting class certification.

II. STANDARD OF REVIEW

The trial court's ruling on class certification is reviewed for abuse of discretion. Texas Dep't of Transp. v. Barrier, 40 S.W.3d 153, 156 (Tex.App.-Houston [14th Dist.] 2001, no pet.). The trial court abuses its discretion when it (1) does not properly apply the law to the undisputed facts; (2) acts arbitrarily or unreasonably; or (3) rules on factual assertions not supported by the record. Spera v. Fleming, Hovenkamp & Grayson, P.C., 4 S.W.3d 805, 810 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

While the trial court's ruling on class certification is subject to abuse of discretion, there is no right to proceed as a class action. Southwestern Ref. Co. v. Bernal, 22 S.W.3d 425, 439 (Tex.2000). Instead, the plaintiff must satisfy all requirements for certification of the class as set forth in Rule 42 of the Texas Rules of Civil Procedure. TEX.R. CIV. P. 42; Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 453 (Tex. 2000). The class action must first meet the four threshold requirements set forth in Rule 42(a): (1) numerosity (the class is so numerous that joinder is impracticable) (2) commonality (there are common questions of fact and law); (3) typicality (the representative's claims are typical of the class); and (4) adequacy of representation (the representative parties will protect the interests of the class). TEX.R. CIV. P. 42(a). Additionally, the class action must satisfy at least one of the four categories found in Rule 42(b). TEX.R. CIV. P. 42(b). With respect to the Rule 42(b) requirement, appellees proceeded under 42(b)(4), which provides "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." TEX.R. CIV. P. 42(b)(4).

III. ANALYSIS

A. Predominance

Questions common to the class are those questions that, when answered as to one class member, are answered as to all class members. Union Pac. Res. Group, Inc. v. Hankins, 51 S.W.3d 741, 750 (Tex.App.-El Paso 2001, pet. filed); Spera, 4 S.W.3d at 810. The threshold for commonality is not high. Graebel/Houston Movers, Inc. v. Chastain, 26 S.W.3d 24, 33 (Tex.App.-Houston [1st Dist.] 2000, pet. dism'd w.o.j.). Commonality does not require that all questions of law and fact must be identical, but only that an issue of law or fact exists that inheres in the complaints of all class members. Union Pac. Res. Group, Inc., 51 S.W.3d at 750; Graebel/Houston Movers, Inc., 26 S.W.3d at 33; Spera, 4 S.W.3d at 811.

As noted above, appellees proceeded under Rule 42(b)(4), which requires common questions of law or fact of the class to predominate over any questions affecting only individual members. TEX.R. CIV. P. 42(b)(4). Because the predominance requirement is far more demanding than the commonality requirement, it acts as a check on the more flexible commonality test. Bernal, 22 S.W.3d at 435 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). Therefore, because the predominance requirement is so stringent, we must consider it first. Id. at 433; see also West Teleservices, Inc. v. Carney, 75 S.W.3d 455, 459 n. 6 (Tex.App.-San Antonio 2001, no pet.) (stating predominance and commonality inquiries are subsumed into one).

Predominance is determined by identifying the substantive issues of the case that will control the outcome of the litigation, assessing which issues will predominate, and determining if the predominating issues are common to the class. Bernal, 22 S.W.3d at 434. The test for predominance is not whether common issues outnumber uncommon issues, but whether common or individual issues will be the object of most of the efforts of the litigants and the court. Id. (quoting Central Power & Light Co. v. City of San Juan, 962 S.W.2d 602, 610 (Tex.App.-Corpus Christi 1998, writ dism'd w.o.j.)). "If, after common issues are resolved, presenting and resolving individual issues is likely to be an overwhelming or unmanageable task for a single jury, then common issues do not predominate." Id. Thus, a judgment in favor of the class should settle the entire controversy and all that should remain is for the other class members to file their proof of claim. Id. (quotin...