Avi Ron v. Airtran Airways, Inc.

RON, Appellant Avi AIRWAYS, INC., Appellee.

AIRTRAN

No. 14-11-01110-CV. Texas, Appeals

Court (14th Dist.).

Houston

March 2013.

Rehearing April Overruled Patton, Houston, Ap-

Daniel Francis pellant. Zito, McKinley, E.

Jack Nicholas Hous- ton, Appellee. FROST,

Panel of Justices consists CHRISTOPHER, and JAMISON. it is a work ing agents; to train new OPINION to unprepared We were progress.... CHRISTOPHER, Justice. TRACY have the route.... We do not add this case, pas- breach-of-contract In this properly serve personnel to reservations on an senger with confirmed trying get to route.... We are still it told the airline after flight overseas sued embarrassing It is things on stream.... was canceled. flight that the a plane....”1 that we do not have the airline’s tradi- granted The trial court to us that explained Bain further Ms. summary judgment, and tional motion fly pas- to required AIR TRAN was not air- Because the passenger appealed. AIR TRAN sengers [sic] and right conclusively establish line failed provide obligation had no meals of law on the judgment as a matter flights.... lodging except for oversold in its sum- grounds expressly presented “Air never explained Bain Tran Ms. motion, we reverse the mary-judgment flight even if it is fly has to a scheduled case. judgment and remand the safety or weather issue.” She not a a “standard contract” with stated that is Background and Procedural I. Factual industry in the airline passengers five airline Appellant purchased Avi Ron that all of the “ticket conditions Airways from AirTran for himself tickets buy a agree they to when passengers Interna- family fly from Nassau and his I, passengers, with other along ticket”. Orlando, in the Bahamas to Airport tional provide provisions Bain to asked Ms. January 2010. It is undis- Florida on AIR TRAN to refuse to honor that allow family arrived at that Ron and his puted explained that flight service. Ms. Bain of the sched- airport well in advance AIR TRAN home it was available at the waiting for sever- departure, uled but after office in Florida and that she did hours, passengers Ron and the other al it in the Bahamas.... have available flight was canceled. were told that Carriage was not at the Contract versions of give AirTran and Ron different AIRTRAN customer service counter transpired airport. at the the events inspection and it was not available for review, In accordance with the standard airport. light we summarize the evidence reenter AirTran’s When Bain turned to Ron, summary- most favorable to office, “stepped Ron behind her in the judgment respondent. doorway” agent a Bahamian office testimony, According to Ron’s affidavit the door” “jumped up pushed they have passengers were told that would closing the passengers, Ron and other service, days to wait three Ron then entered finger. door on Ron’s private lodg- to secure they attempt should again, agent and the Bahamian the office might because local hotels be unable excited and loud.” “very agitated, became everyone. Ron states that accommodate disorderly and Ron states that he was not passengers he and several other went to profanity direct did not spoke airport AirTran’s office at the nevertheless, a after agent; few minutes Bain. He describes their con- with Susan office, security he left AirTran’s versation as follows: Ron and “discussed the approached officer passengers with and other [Ron] informed the situation Bain]

[Ms. that, An Air- try- along agents.” I “Things [AirTran’s] are a mess.... am Ellipses original. tickets, family plane agent bought Tran that he and his AirTran sent told Ron him confirmatory and a email lodging, transportation, would receive in which AirTran expense AirTran’s and would be stated as follows: meals at flight the next accommodated on available of Transporta- Condition Contract: Air airline, the by AirTran or an alternate but by Airways subject tion AirTran is to agent Ron that the next also cautioned of the terms AirTran Airways’ Condition later, days three flight scheduled was of including Contract of Contract Car- flights that no alternative were available riage Airways .... The AirTran [Con- offer, for declined booking. Ron the Carriage tract may inspected of be aircraft, his private leased a and he and Airways AirTran customer service coun- family flew home. information, ter. For more inqui- direct AirTran Airways, ries to Inc. Customer AirTran, alleging Ron sued violations Department.... Relations the Deceptive Texas Trade Practices— by Consumer Protection Act and breach of This statement was followed a Florida contract, summary address. and AirTran moved for First, Air-

judgment grounds. on three Ron argued under Title Tran all of Ron’s claims are stated that Regulations, 253.4 of the Code of Federal Aircraft preempted Deregulation the an “air carrier shall full make the text of Second, Act. AirTran asserted that its each term that it incorporates reference Carriage “incorporates Contract of of carriage a contract available for pub- Transportation] DOT com- [Department lic inspection each of its pensation for requirements denied board- 253.4(b). ticket offices.” If ing” “provides that a is not so, fails to do carrier then “carrier compensation involuntary entitled to for not claim the benefit as denied can- boarding where is of, and the shall only compensation celled. The is allowed by, any be incorporat- bound contract term flight segment.” 253.4(a). for a refund of the unused ed reference....” Ron Third, AirTran that under Con- stated argued because AirTran to pro- failed it Carriage, right deny tract of had the public vide the contract of transportation dis- to Ron because he was inspection the Nassau it airport, cannot orderly. of any provisions avail itself that were reference into pleadings After his elimi- amending carriage.3 claim, nate claims other than his contract summary-judgment Ron filed a response. granted Air Tran’s mo- trial produced summary He he tion without judgment evidence when stat- produced copy email appeal. same do not consider them on See Sci. Martinez, summary-judgment of its evidence. Spectrum, Inc. v. 941 S.W.2d (Tex.1997) ("A summary judg motion for days summary- 3. Less than two before the present expressly itself ment must judgment hearing, reply in AirTran filed a made, grounds upon which it must attempted which it to raise additional alone.”); grounds stand on these Reli or fall grounds summary judgment. response Hibdon, ance Ins. Co. S.W.3d document, Ron filed a "counter-re 2011, pet. (Tex.App.-Houston de [14th Dist.] sponse” day summary-judg before the on the nied) ("A movant is not entitled use its hearing, ment to which AirTran filed a “surre- reply summary judg to amend its motion for ply” day. the same record does not independent ment or to raise new and sum indicate trial court considered (citing grounds.” mary-judgment Garcia v. grounds summary-judgment first that were reply surreply, raised in we AirTran’s law, issue, matter of the burden single judgment In a Ron as a grounds. present because evidence plaintiff

asks to reverse shifts to the us Airways raising failed to of material fact. genuine issue requirement to make its Contract of Car- Centeq Realty, Siegler, Inc. v. (Tex.1995). at Nassau riage 195, 197 available International Airport. On mov- appeal, showing ant still the burden of bears II. OP REVIEW STANDARD issue of fact genuine there is no material grant We the trial court’s review judg and that the movant is entitled to novo. v. summary judgment Ferguson de Rhone-Poulenc, law. ment as a matter of Am., Bldg. Corp. 295 S.W.3d Materials of (Tex. Steel, 217, Inc. v. 997 223 S.W.2d. (Tex.2009) curiam) 642, (citing (per 644 1999). rever considering grounds In Agency Pub. Tex. Mun. Power v. Util. sal, we limited to those ex grounds Tex., 184, 253 S.W.3d Comon’n 192 of pressly' forth in the set (Tex.2007)). all We consider the evidence motions, answers, or other and responses, nonmovant, to light most favorable appellate rely not on the briefs favorable non- evidence to the crediting summary-judgment evidence. Dia D.M. could, movant if a reasonable factfinder Inc., Armored, mond v. 124 Corp. Dunbar contrary disregarding unless evidence 655, (Tex.App.-Houston S.W.3d 659-60 factfinder not. See reasonable could 2003, (op. pet.) reh’g) on [14th Dist.] Tamez, Trucks, Mack Inc. v. 206 S.W.3d 166a(c) (citing Tex.R. P. and McCon Civ. (Tex.2006). 572, affirm the 582 We must Dist., nell v. Sch. Indep. Southside 858 if of the movant’s summary judgment (Tex.1993)). 337, S.W.2d 341 to the presented theories trial court preserved appellate review are meritorious. Analysis III. Pro & vident Accident Ins. Co. Life each of the on grounds Ron’s defenses to (Tex.2003). Knott, 211, v. 128 S.W.3d 216 summary which judg- AirTran moved summary The movant for traditional rely large part meaning ment on the of judgment the burden of showing has regulations. federal We re- statutes there issue of fact genuine is no material statutory view issues of construction de entitled to it is Cook, Inc. v. novo. Marsh USA 354 166a(c); law. Tex.R. matter of Civ. P. (Tex.2011). 764, S.W.3d 768 Advisors, & Lipp Mann Stein Frankfort three grounds Because two of the (Tex. 844, 289 Fielding, S.W.3d 848 sought which AirTran summary judgment 2009). who A defendant moves for tradi are based on terms of the Contract summary judgment tional must conclusive Carriage and Ron raised same defense ly one negate at least essential element of each, begin analysis to our with these we causes plaintiffs each of the of action or grounds. conclusively establish each element of an defense. Frost Bank v. affirmative Nat’l right A. AirTran failed to establish (Tex. Fernandez, 494, 315 S.W.3d 508 summary judgment lan- based on 2010). Evidence is conclusive if rea incorporated by guage ref- that was people sonable could differ in their carriage. erence into the contract of Wilson, City Keller v. conclusions. (Tex.2005). summary 802, judgment, its motion for the de S.W.3d Once that its right summary AirTran asserted “Contract of Car- fendant establishes its Garza, denied))). pet. nio (Tex.App.-San Anto- [Department incorporates the DOT ited this amount.” AirTran addition- riage require- Transportation] compensation ally argued that “Pursuant to AirTran Air- Despite this boarding.” ments for denied ways Carriage, they Contract of had the statement, identify any AirTran failed right deny to Avi transportation Ron as incorpo- federal that is specific regulation disorderly, vio-, his conduct was abusive or Carriage into its Contract of rated confirmatory But lent.” email that compensation requirements sets forth AirTran sent Ron does not contain any here. AirTran used applicable Although these provide, contract term's. It does which boarding,” the term “denied is found however, Transportation by that “Air Air- Code of part in Title 250 of the Federal Airways Tran to the subject terms of §§ 250.2 et Regulations, see Airways’ Condition Contract regulations codified seq., including Carriage.... Contract' of segments using to “scheduled apply [Cjontract Airways of Carriage designed passenger an aircraft that has a may be inspected Airways at AirTran cus- seats, capacity of 30 or more tomer counter.” (1) in air operating transporta- interstate (2) transportation foreign tion or air In his summary-judgment response, Ron nonstop flight segments origi- to respect law, pointed out that under federal an air nating point at a within the United States.” carrier must full text “make the of each summary-judgment § Id. 250.2. In its by that it incorporates term reference in a motion, AirTran that did not assert these contract of for carriage public available were here. To the requirements satisfied inspection at each of its contrary, Ron produced both AirTran and 253.4(b). § ticket offices.”4 14 C.F.R. that Ron reserva- evidence had confirmed Moreover, “an air carrier not claim nonstop flight originating for a tions of, the benefit as against passenger Thus, point outside the United States. it the passenger by, shall not be bound not appear does that AirTran was refer- any contract term refer- regulations. to these ring if ence notice of the term has not been summary sought judgment AirTran also to that in provided accordance on contract it did based terms 253.4(a).5 part.” (cid:127)with this Id. as an of federal incorporation characterize According to Ron’s AirTran regulations. asserted “[t]he evidence, he of asked to see terms provides ... that a Carriage Contract carriage contract of AirTran’s office at to compensation is not entitled Nassau was told that airport, involuntary boarding denied where the for inspection contract was not available only compensation flight cancelled. The accept there. We must evidence as allowed is for a refund of the unused Avi card was and draw all reasonable segment. Ron’s credit cred- true inferences Although applies carriage a similar issue was raised in an 5. rule to "contracts case, scheduled service in interstate and over- for. appeal to this court in a brief different transportation.” seas air previously prevented waiver us from 14, regulations of title 253.1. Unlike the See, argument. reaching the merits of the part 250 and cited in some of discussed above Keller, Airlines, Inc., e.g., A.P. Inc. v. Cont’l relies, see, e.g., the cases on which AirTran 14-10-00917-CV, WL No. Lines; Black, Air Delta Inc. v. (Tex.App.-Houston Oct. [14th Dist.] *5 (Tex.2003) reh’g), regulations (op. on (mem. pet.) op.). application 253 are in their to not limited flights originating United States. favor; thus, ground transport failure to pur- in Ron’s for the from it Ron with the terms of the judgment, give accordance pose summary we must confirmatory email was exercise of its by disregarding effect to section rights or duties under federal law. In- terms on which AirTran those contractual stead, sought summary judgment incorporated by relies that were reference contractually it was ground on of carriage. AirTran’s contract See Fid. permitted transport No to refuse Ron. Cuesta, Fed. Sav. & Loan Ass’n de la provision such contractual is mentioned 141, 158, 3014, 3022, 102 S.Ct. U.S. Ron, confirmatory email and we (1982) (“Federal regulations L.Ed.2d 664 accept must as true Ron’s evidence that pre-emptive than feder- have no less effect the contract of was not available statutes.”). al inspection airport. at the Nassau Be- sum, none contract terms required cause AirTran was a federal appear which AirTran relies in the confir- regulation request with Ron’s email; best, they matory incorpo- were inspect at the airport, the contract Nassau reference, produced rated Ron regulation same bars AirTran from summary-judgment evidence that AirTran “claiming] pas- the benefit as to make the contract failed available senger” any incorporat- inspection at the Nassau We airport. 253.4(a), ed See 14 reference. conclude that failed to therefore (b). Thus, af- cannot be summary it is entitled establish firmed based on contractual provision grounds judgment on that its contract relied in its upon by summary- lim- incorporated terms disclaimed or judgment motion. liability compensation ited permitted or it to to deny service Ron. B. AirTran failed to establish preempted. Ron’s claims are

Because some have ex courts “[ajirlines pressed might concern hes additionally moved passage potential itate to refuse cases of ground on the summary judgment danger for fear of contract ac state[-]law Ron’s claim preempt breach-of-contract is claiming transport,”6 tions refusal to we by Deregulation ed Airline Act of 1978 (“the law, ADA”), State, out that point hasten to under federal provides which that “a State, an carrier is permitted political air to “refuse to a political subdivision of or a or car 2 transport property authority may of at least States is, be, might law, rier or regulation, decides inimical to enact or enforce a other or 44902(b) (2012). § safety.” provision 49 U.S.C. See the force and of law having effect Comair, Inc., 254, route, also Smith v. 134 F.3d related a or price, service of Cir.1998) (4th (holding air provide transpor the con carrier that air (2012). tract claims of was de tation.” who 49 U.S.C. failing produce Among nied ADA things, service identifi intended other is preempted place cation were because the carrier “maximum reliance on competitive law, right, promote relied on its under federal to market and to avail- forces” “the economic, deny ability variety adequate, and on its duty to follow of a efficient, security low-priced directive from Avia Federal services without Administration). AirTran, however, tion or unreasonable discrimination unfair or summary 40101(a)(6), did deceptive not move for Id. practices.” Comair, Inc., 254, (4th Cir.1998). v. See Smith 6. 134 F.3d (4). courts have tial to Morales Although many struggled operations.” (citing airline Airlines, Inc., par- World the determination whether a Trans 504 U.S. claim is ticular breach-of-contract 374, 112 S.Ct. 119 L.Ed.2d 157 precedent we preempted, are bound (1992))). States Supreme

established the United The for preemption, test the Court ex- Supreme and the Court of Texas Court plained, begins with a determination of reviewing We preemption. such claims whether the challenged airline’s conduct— begin reviewing the primary therefore there, the devaluing retroactive of credits high cases from the federal and state frequent-flyer program —“relates” addressing preemption courts “rates, routes, the airline’s or services.” claims under the ADA. Id. The Court the plaintiffs’ held that Airlines, American 1. v. Wolens claims related not only to “rates” but also Airlines, Wolens, In American Inc. v. “services,” which include “access to Supreme the United de- States Court flights upgrades.” and class-of-serviee determining used in scribed test to be not, however, This was end a state whether breach-of-contract claim preemption test. The Court further clari- ADA. 518 preempted U.S. fied if that even at matter issue “re- (1995). S.Ct. 130 L.Ed.2d 715 The “rates, routes, lates” to the airline’s or began in state case the Illinois courts services,” the claim preempted is not is separate proceedings class-action in which recognition unless its would amount to the plaintiffs that an asserted law, State’s enactment or enforcement of a by impos- breached its contracts with them rule, standard, regulation, other provi- changes to the fre- ing retroactive airline’s having sion the force effect of law. Id., 224- quent-flyer program. 513 U.S. at Id., 228-29, U.S. 115 S.Ct. 25, 115 Su- S.Ct. Illinois explained, As the Court preme Court held that contract claims ADA permits conclusion that not preempted were because the airline’s adjudication state-law-based court of frequent-flyer programs were “peripheral” routine claims breach-of-contract also regu- rather than “essential” to an airline’s makes of Congress’ sense retention of Id., 226, at at lation. 513 U.S. 115 S.Ct. clause, 1106, § saving the FAA’s 49 Although 822. the United States Supreme § U.S.C.App. 1506 “the (preserving agreed the Court that breach-of-contract now existing remedies at common law or preempted, claims were not the re- Court statute”).8 preemption The ADA’s jected argument pre- that the test for clause, 1305(a)(1), together with read emption court requires a determine clause, saving stops the FAA’s States whether the claim involves matters “essen- Id., imposing their own substantive operations. tial” to airline at 513 U.S. rates, routes, 226, with respect standards 115 at (explaining S.Ct. that services, or but affording not from relief precedent “does not Court’s countenance” state who approach separating party proves court’s to a claims and that an “matters ‘essential’ from matters unessen- airline dishonored a term airline it- plaintiffs alleged 7. The also that the airline’s that AirTran had violated state con- similar violated Illinois conduct Consumer Fraud sumer-protection statutes. Act, Deceptive Business Practices preempted. Court held that claims were those is the 8. The FAA Federal Aviation Act of 1958. Id., 225-26, 513 U.S. at 115 S.Ct. at 822-23. id., 222, at See 513 U.S. 115 S.Ct. at 821. Here, however, allegations Ron withdrew his seating couple or flight This distinction between scheduled stipulated.

self the first-class section of later that and what the the State dictates what courts, day. The Blacks instead chartered a itself undertakes confines jet Vegas Las private paid to and from actions, par- to the in breach-of-contract in Las expenses Vegas the aircrew’s no or bargain, enlargement ties’ length stay. their Id. at 748. pol- based on state laws or enhancement agreement. to the external icies summary judgment Delta on moved for Id., 232-33, alia, grounds, at 826. con 513 U.S. S.Ct. inter Black’s Lines, Black, preempted. Air v. tract 752. See also Delta Inc. claims were Id. at (2003) 745, agreed, on The but (op. 753-54 trial court the Tenth 116 S.W.3d (“When reversed, Appeals holding a Court of reh’g) parties privately negotiate allow regulations passen “federal airline terms and then sue state contract’s terms, gers whose airline reservations are not of those there is court for breach overbooking to honored due to seek recov reg generally specter state-imposed ulation.”) Wolens, ery for ‘in a court of damages law or at 228- (citing 513 U.S. ” v. Airlines, some other manner.’ Black Delta Air 29, 824); Inc. 115 S.Ct. Cont’l lines, 68, Inc., (Tex. (Tex.1996) 274, 160 S.W.3d 76-77 Kiefer, 920 S.W.2d 2002, (‘‘Wolens’ App.-Waco pet. granted) (quoting 14 emphasis on voluntariness (1984)), in pat, rev’d undertakings is not important, contractual (Tex.2003). S.W.3d 745 enforcing states have no role in because they contract do—but because contracts — of Texas Supreme Court reversed. not effectuate purposes law does the first analyzing preemp- prohibited regulatory have a effect could test, quickly tion determined airlines.”). Because the did plaintiffs Black’s claim for denial first- or enlarge parties’ not seek to enhance the “related” to the seating class was airline’s poli on the bargain based state’s laws services, expressly a matter addressed cies, sought only monetary but instead court’s intermediate decision. See contract, for breach of damages Court Black, Wolens, (citing at 753 the contract claims were not held 823, 513 U.S. at 115 S.Ct. at in which 232-33, Wolens, preempted. 513 U.S. at was used term “services” to include S.Ct. up- “access flights class-of-serviee Lines, 2. Delta Air v. Black grades”). preemption analysis The court’s primarily ques- thereafter focused on the Lines, Black, the In Delta Air tion of Black’s claim was on whether based applied pre of Texas the Supreme Court parties’ the of the contract or would forth in to a emption test set Wolens instead the en- constitute enactment or breach-of-contract claim. The suit arose policy. law or hancement of a state purchased Black after Robert two round- flight Vegas, emphasized on a Delta to Las court contract trip tickets Black between the airline although incorporat- and his invoice showed that Black and ed pas regulations governing compen- had reserved first-class seats for both federal trip, for the entire Delta had as sation confirmed reser- sengers vations are signed Black’s wife a first-class seat who nevertheless denied Black, flight boarding the return because the is overbooked . number of op 747. Delta offered the several and insufficient volunteers Blacks tions, their including seating agreed relinquish wife in the have seats. Id. Black’s thus, during regulations the at 754. coach section aircraft Federal —and ADA, incorporating regu- incorporated those which are contract Black’s contract, un- provide the circumstances the procedure lations —established and passengers who are denied remedy der which event a passenger is denied in.the and are entitled to boarding compensation, boarding specified but offered accommoda- which such is way compensation tions, in preclude and therefore the additional (and the regulations Id.9 The calculated. remedies Black has pursued in state incorporating regulations) 250.1-.9). (citing §§ court.” Id. C.F.R. el- passenger that a who is provide further Although permits the ADA on based “suits compensation op- such igible for has parties’ bargain terms of the ‘with payment tion from the airline to decline enlargement or enhancement based in recovery a court of law. Id. and seek state laws policies agree- or external to the 250.9). But a (citing at 755 ment,”’ Wolens, 750 (quoting id. at who is a dif- passenger seating offered in 826), U.S. at 115 S.Ct. at Black was ferent section of aircraft is not consid- attempting modify “to the contract terms boarding, been ered to have denied and to allow him and his forego wife to thus, entitled to from compensation is not regulatory in remedies instead sue Id. there- the airline. Such a court.” Id. compensation

fore “decline” from cannot Preemption Argument 3. AirTran’s and seek Id. recovery the airline court. airline offered to Black’s Because the seat Although cited both Wolens section of wife in a different the aircraft motion, Black in charge couple no extra and offered the the motion little argument contains con- flights arriving alternative seating on cerning preemption of Ron’s breach-of- day, were Vegas Las same the Blacks contract claim. AirTran all asserted that boarding” as that term was “denied preempted by of Ron’s claims are federal regulations used in law, “a paraphrased provision that See id. according- in the contract. Black law, ... not enact may State or enforce a ly option “declining” did not have the regulation, provision other having or compensation asserting a contract price, force and effect law related to a court, claim in because “[t]he route, of an air carrier declining the air- option payment transportation..-..” provide air 49 U.S.C. recovery in a seeking line and instead discussing 41713. After some of is reserved for passen- court of law those Black, facts of AirTran made one gers involuntarily who denied board- arguments contractual we have discussed. eligible boarding and thus for denied by a single This was followed sentence compensation.” ap- possible which AirTran addressed the plication of to this case: “Ron’s suit accordingly Black concluded seeking to do which the court said Black’s breach-of-contract claim was - in Black could not due preempted. explained The court [sic], promulgated modify under the the terms of the contract regulations “[t]he passenger given seat in than two If the is a than one but less hours entitles different (but charge at extra the aircraft no or if the one-way of the fare to 200% delays arranges transportation alternate $650), delay of no more than an arrival arriving in at his destination or passenger to more than two hours entitles the hour, stopover first no more than an (but one-way receive of the fare 400% compensation. 14 is entitled to no $1300). Id. more than delay § 250.9. An arrival of more 794 to force the airline to laws and did not ask the Court

carriage by resorting to external of the State.” parties’ bargain, remedies the terms of the adhere to monetary damages for sought but instead however, case, readily distin- is This preempt the contract’s breach —were not Black, proce- from Black. In guishable Wolens, 225, at 115 ed. See 513 U.S. S.Ct. applicable remedies to the dures and (“Plaintiffs currently in federal at 822 seek mon claims were set forth Black’s relief.”). incorporated by so, reference regulations doing In etary Court passen- into the airline’s contract with the quoted approval plurality opinion its contrast, summary- ger. AirTran’s Inc., Liggett Group, in 505 Cipollone judgment motion contains no identification 504, 526, 2608, 2612, 112 S.Ct. U.S. any regulation federal that is specific (1992): L.Ed.2d 407 common-law ‘“[A] by reference in the contract incorporated commitment vol remedy for a contractual procedure remedy or prescribes and that untarily regard undertaken should not be claim.10 applicable Ron’s ... under “requirement imposed ed as a Moreover, suggestion there was no Wolens, law....”’” at State U.S. prohibited by the airline in Black was fed- (alteration in origi at 824 S.Ct. relying con- regulations eral nal). The further Court stated Here, however, Air- provisions. tractual adopted approval course it “bears the confirmatory Ron in Tran informed administrator, experienced the statute’s were unspecified incorpo- email that terms DOT,” id., 234, 115 at 513 U.S. S.Ct. at contract, rated reference into its but pointed regu out that “the DOT’S when Ron asked to see them at the Nassau ... contemplate lations ‘ticket con they he were not avail- airport, was told ordinarily would be enforceable un tracts’ Black, Thus, unlike the airline in able. ” der ‘the contract law of the States.’ regula- prevented AirTran is federal (quoting 115 S.Ct. Fed. relying incorporated tion from on an con- (1982)). Reg. quoted by The source supply tract term for which it failed to the Court is the announcement Fed required notice. See 14 C.F.R. 253.4. by the that, Register adoption eral of the DOT’S The result unlike the airline in Black, Board, predecessor, AirTran has identified neither a the Civil Aeronautics regulation provi- federal nor a contractual regulations concerning of the federal rely sion on which it can to limit Ron’s obligation provide passen of carriers to available remedies for breach of contract. gers with the text of terms that are incor porated reference the contract of A breach-of-contract claim that re very regulations on which —the lates to an airline’s services is not il following excerpts Ron relies. As the simply remedy because the of a preempted lustrate, the same source also clarified monetary damages common-law claim for when an airline fails to with federal specifically is not described in the contract regulations requiring the text of the con regulation. a federal This can be itself, incorporated tract’s be “immedi seen Wolens in which Court ately public available to the wherever its plaintiffs held claims —who mentioned, previously regu- originating point in the United States. 10. As the federal lations into the contract in Black See 14 C.F.R. 250.2. Ron's was not compensation overbooked, concerned who alleged to have been and it did boarding were for denied from an overbooked originate not in the United States. flight, regulations apply flights and those tickets are sold” such that the airline is pursue available relying barred from on the incorporated remedies.15

terms, then a state-law claim for breach of preempted:12

contract is not Board is requiring [T]he a two-step no- suggested commenter [One has] tice to consumers: Each ticket must preemption be specific more so as not to notice, have a which can presumably preempt State contract remedies and standardized, will be the contract “plain-language” statutes. The Board may incorporate terms in several enu- agrees suggestion with this with respect merated areas ... and each carrier remedies, to contract and has clarified must ensure that concise and correct the fundamental provision information concerning these terms is stating that the aspects enforcement immediately available to the public are in rule addition to other reme- wherever its tickets are sold.16 dies law.13

[One commenter questioned has] wheth Board has provisions [T]he modified the er there would any penalty be outside of of the rule to make “pen- clear that the contract law for refusing carriers alty” of an airline being not able to comply with the rule. The Board has enforce a term applies respect civil penalty authority under section 901 to a passenger who has received the Act, can issue cease and desist required notice.14 orders, and can injunctive seek relief

from a U.S. District Court if needed. However, we would expect that pri Without the enforcement mechanism of mary mechanism would be enforcement term, voiding the contract penalty level}17 contract law at the local for violating the rule would be limited to penalty a civil sum, action the airline. we conclude that AirTran failed however, passenger, could still be to establish in its motion for summary disadvantaged such a case if the judgment term that Ron’s breach-of-contract were still considered valid. penal- Civil claim preempted. was Although AirTran will ties in most cases be far less effec- makes a number arguments appeal tive, costly administer, and far more that were not raised its summary-judg- simply than voiding motion,18 the term and allow- ment a summary judgment must Carriage, 11. Notice of Terms of Contract of 14. Id. 52128-02, (Nov. 19, Fed.Reg. 1982) 47 (codified 253). pt. at 14 C.F.R. 15. Id. at 52131-32. Abbott, 624, 642, Bragdon 12. See 524 U.S. 16. Id. at 52132. 2196, 2207, (1998) 118 S.Ct. 141 L.Ed.2d 540 (“[T]he agencies well-reasoned views of the added). (emphasis 17. Id. at 52133 implementing body a statute 'constitute a experience and informed to which Among things, 18. other argues litigants may properly courts and resort for (1) ” prove Ron failed to the existence "of a guidance.' Co., (quoting Skidmore v. &Swift imposing upon AirTran the obli- 134, 139-140, 161, 164, 323 U.S. 65 S.Ct. claims, gations granting remedy he him the (1944))). L.Ed. 124 invokes”; (2) he prove Ron failed to contract; (3) Carriage, Notice of Terms of AirTran breached Contract of Ron elect- 52128-02, (Nov. 19, Fed.Reg. 1982) (4) 47 (codified ed to price; receive a refund of his ticket 253). pt. at 14 C.F.R. by rejecting Ron created his own loss Air- pointed incorporated provision grounds expressly or fall out

stand on McConnell, posted included in on in issue was notices presented the motion. signs airline’s counters. therefore not con- at the ticket S.W.2d at 341. We do Casas, Thus, in the airline arguments. We at 525. did the merits of these sider 253.4(b), summary- airline’s with section whereas cannot make the also here, the evidence is that the did arguments for it. comply. not at a Ours is not the first court arrive the dissent also would affirm Although such this. See Pnce v. Delta result as (D.Vt. Airlines, Inc., ground that the sum- F.Supp.2d on the alternative 1998) (“[Wjhether pro- mary-judgment not notice was evidence fails address or in a fact in whether AirTran has a ticket office to the Prices is material vided Bahamas, this would inconsistent summary judg- be with dispute, precluding It applicable ... If with 14 standard of review. is complying ment. notice § provided, undisputed that AirTran stated con- C.F.R. was by that will bound the claim firmation notice the text of con- Prices not be term.”). Thus, inspection we available example, restriction tract was counter,” summary judgment cannot affirm based on “customer sendee and AirTran § was its provision produced 253.5—a that is cited evidence that this “stan- C.F.R. dissent, which AirTran has by language” though but on dard contract —even relied, with which in its compliance carriage never AirTran states contract proved.19 nor In a that text is at AirTran’s “air- alleged neither available argument, port city Although ticket related the dissent asserts offices.” confirmatory follow email provide should Casas American fails to no- (5th Inc., Cir.2002) Airlines, by tice required regulations, 304 F.3d 517 federal we case, contends under that an air- all inferences in must draw reasonable fa- may rely respondent, line terms vor incorporated that, matter, as showing complied practical reference without it and conclude a 253.4(a) 253.4(b), with section or the sec- the customer-service counters referenced actually in this in are This tions at issue case. the email ticket offices. Casas, however, the court specifically provided consistent affidavits Air- offices, proffered arrangements; and passengers Tran's alternative ticket have the (5) expenses chartering Ron's upon request right, any location where consequential damages. neither direct nor the carrier's tickets are sold within the Nothing prevents raising AirTran from these States, charge by United to receive free of any subsequent summary issues motion for delivery the full mail or other text of judgment. term; incorporated each such (b) may The terms include and provides part 19. This as relevant obtain from location follows: where the carrier’s tickets are sold within 253.8, Except provided each air the United States further information ... ticket, carrier shall include on or with or 253.5(a). confirmatory given passen- other written instrument to a provided to Ron him email informed ger, the contract embodies “may inspected be the contract at AirTran incorporates and contract, terms reference in that Airways customer service counter.” conspicuous notice that: statement was not limited to locations (a) where Any incorporated by reference are sold, contract, were tickets contained mention passengers may inspect availability copy of a incorporated by the full term text of each delivery reference at the carrier's mail or other service. Bain, kind in the In example, light for attested first of its nation. Susan Tran. manager’s reasoning “AirTran the of the went the United States Court that she to Circuit Casas v. four take the Fifth agents Appeals and directed to office” Airlines, Inc., American manifest “to the ticket copies of the 304 F.3d pas- (5th Cir.2002), them that the and instructed counter” 523-25 should given care sengers would be “customer attempt the passenger’s conclude that to agents Bain stated “[t]hree kits.” carriage avoid terms contract of is a with me and we avoidance, remained in the office matter in which the began filling out the documentation plead prove. had the burden - kits,” fourth and the obtained care conclusively evidence summary-judgment we need- “transportation information that terms of the of car- proves the from transport ed riage passen- the airline between pro- to the hotel.” also ger, required and the was not agents a one of the duced statement prove complied it the federal with in AirTran’s office who remained regulation question. response, In as a Tracey Lynes Bain. identified herself genuine did not raise a fact agent” “customer and claimed whether issue as to the airline failed to (Air duty place was “on work [her] she 253.4(b) Title comply with Office)” at the time of these events. Tran Regulations. Federal Because Code of in- Together, support the these statements summary-judgment evidence does not office was under ference the AirTran necessary regarding raise the fact issues charge employee of an AirTran avoidance, this matter the trial court did a was both a “customer service” office and summary granting judgment. not err in office. ticket reasoning This court should follow the from not pile the Fifth Circuit and should pre- We therefore sustain sole issue genuine upon inference inference to find for our review. sented issue of material fact.

IV. Conclusion Background bur- Because AirTran did meet its conclusively to establish its entitle- den is a Appellant/plaintiff Avi Ron resident grounds express- ment to on Texas, Houston, very experienced and a motion, raised in ly 5,000,000 has flown traveler. He over fur- we reverse and remand the case for miles, approxi- estimates that he flies opin- proceedings consistent with this ther . flights per year. December mately 200 On ion. 9, 2009, on the purchased he airline tickets appellee/defendant internet from (FROST, J., dissenting). him fly Airways, family his FROST, Justice, KEM THOMPSON Nassau, Orlando, from Bahamas to Florida dissenting. 3, 2010, way back to on their January 3, 2010, AirTran January court bars an airline Houston. On Today this flight. against suit enforcing of its contract of cancelled the his provisions AirTran, of this of a Ron asserts that because because cancellation, private he had to charter fact issue as to whether purported Fort Lauder- plane fly with Title sec from Nassau to airline failed to 253.4(b) dale, expenses Regu and incur additional of the Code of Federal Florida tion $11,491.86,which he holding appears in the total amount of lations. This to be See Regulations. Federal of the Code of AirTran. At the recover from seeks to Airlines, Inc., 304 American summary- Casas v. granted court time the trial (5th Cir.2002). 517, AirTran, Under F.3d 523-25 in favor of fol which this court should precedent, Air- this asserting against Ron was claim that low, may exculpa prove AirTran claim. a breach-of-contract Tran was were which it relies tory provisions upon summary judgment, In its motion for into its contract incorporated by reference asserted, among grounds, other AirTran compliance with showing Ron without with claim fails as Ron’s breach-of-contract 253.4(b).1 Thus, 253.4(a) or section section terms of Air- of law under the a matter noncompliance with the extent provide carriage, which Tran’s contract preclude regulations these would not entitled to receive exculpa enjoying the benefits of incurred expenses for any compensation non-compliance such tory provisions, Ron contends cancellations. due a matter in avoidance would constitute granting sum- that the trial court erred which Ron exculpatory provisions, of AirTran be- mary judgment in favor pleading have the burden of would cause, Ron, summary- according to v. Peat Marwick proving. See KPMG shows that judgment evidence Corp., County Housing Finance Harrison 14, Title section failed 746, (Tex.1999); Secu 749-50 253.4(b) Regula- of Federal Code Brocail, 14- v. No. rity Group, comm Inc. cannot claim tions and therefore AirTran 5514333, 09-00295-CV, at *11 2010 WL of the contract terms the benefit Dec. (Tex.App.-Houston Dist.] [14th recovering com- preclude Ron from would denied) (mem. op.). pet. expenses incurred due pensation flight cancellations. Passenger’s Failure to Raise Genuine Reasoning in

The Fifth Casas Circuit’s Matter in Fact Issue as to Airlines, American Avoidance Appeals States Court of United produced whether Ron determining In pas- that a the Fifth Circuit has concluded re- raising genuine fact issue evidence contractually bound senger can be avoidance, it is first garding this matter provisions incorporated by exculpatory necessary to review the text of section of car- into an airline’s contract reference 253.4,which reads as follows: rea- gave passenger if the airline riage (a) A ticket or other written instrument provisions, these but sonable notice of that embodies the contract requiring that the airline show without 258.4(b) by ref- may incorporate contract terms Title section compliance with 1. The provide free tion 253.4 complied city gers upon request under full text of required under section 253.5. ^[3] at each of its public inspection provide ticket offices under section majority But, with section 253.4. See ante requires as construed each copies states notice of incorporated the airline to of these terms to by the airline in Casas term available majority, 253.4(b), ^[1] 253.4(b), Though airport make the passen- sec- ^[2] p. sas spection provided with section in Casas that the airline Casas court regarding offices. See did not conclude that the either section 253.4 or section Casas, exculpatory court did not 304 F.3d at 523-25. The Casas at each of its reasonable id. 253.4, and there is no statement did address whether the airline exculpatory provisions, the Ca- provisions require compliance with notice to the airport made the full text of available for 253.5. See passenger complied ticket in- (i.e., affidavit, full In stating erence without their his Ron text), agent if it testifies that AirTran does so shall contain be at the Nas- sau told him that she did not have notice to the accompanied the terms and condition of Ron’s contract required part. addition with AirTran available in the Bahamas. law, carrier other remedies an air Presuming for sake of argument that claim the may not benefit genuine Ron’s affidavit raises a fact issue of, and the as to whether AirTran made available by, any incorpo- be bound contract term public in the inspection Bahamas full the reference if term by rated notice of the text of each term by refer- provided has not been to that ence into its contract of sum- carriage, the in part. accordance with this mary judgment evidence does not address (b) air Each carrier shall make the full (a whether AirTran had a ticket office by text of each term that it incorporates location where AirTran sold tickets were reference a contract of avail- carriage that the charge was under of an AirTran inspection able for of its public each employee) in the Bahamas. majority The airport city ticket offices. concludes that it is reasonable to infer that AirTran customer-service are counters (c) carrier free provide Each shall (1) ticket upon following: offices based mail charge by delivery or other 253.5, under required AirTran was to passengers, upon request, their give inspect Ron notice that he could full copy incorpo- of the text of its terms the full text of each term incorporated by rated reference into a contract. airport reference at AirTran’s city tick- keep Each shall at all carrier available (2) offices; et AirTran’s contract of car- times, charge, at all free locations riage states that the full text of such terms where its tickets are sold within inspection is airport available for at its united States information sufficient (3) offices; city confirmatory ticket enable to order text the full email Ron received AirTran states of such terms. may that AirTran’s contract of carriage be (West 2013). § 14 C.F.R. 258.4 used in As inspected at AirTran’s customer-service this regulation, ticket office means ante at A pp. counters. See 796-97. station, office, or other location where tick- statement AirTran that certain terms charge ets are that is under of a sold may be at ticket inspected offices and an- person employed the airline.2 other statement these (West 2013). § inspected C.F.R. be customer-ser- language majority 2. The cites Feder- from the need not be available at locations where the Register, al in which the Civil Aeronautics airline’s tickets are sold that are not under charge person employed by Board that "each carrier ensure states must of a the airline. 253.3, §§ and correct concise information concern- See 14 253.4. Civil immediately says these terms is to the available Aeronautics Board so in the same docu- public Register. wherever its tickets are sold.” Ante at ment in the Federal See Rules Board, p. (quoting Regulations, Regulations, Civil Rules and Civil Aeronautics F.R. Board, (Nov. 19, 1982) (stating Aeronautics 47 F.R. 52132 253.4(b), (Nov. 19, 1982)). language might sug- adopting This the Board "[i]n gest incorporated by suggestion that terms reference in a that the full text of the carriage inspec- public contract of must be available for be made available for public inspection airport wherever an airline’s tickets tion airlines’ ticket at the But, unambiguous are under sold. lan- than at all ticket loca- offices rather sales tions"). guage regulations, this information Challenge Passenger’s Suffi- reasonably lead to a Failure does not vice counters ciency of under Section counters Notice that customer-service conclusion 253.5, Notice there is Which Constitutes ticket offices. Because Passenger in Accor- summary-judgment in the evi- Provided testimony there dance With Part 253 was a customer-service dence majority airport, counter Nassau addition, matter this prove various state- this conclusion from infers avoidance, Ron that “notice of must show affida- ments two has not been [exculpatory provisions] majority id. then infers vits. See provided to in accordance [Ron] that the customer service counter 253.4(a). Presuming 14 C.F.R. part.” charge of under the Nassau was compliance argument sake upon Based employee. See id. 253.4(b) with section constitutes notice inferences, foregoing majority part to Ron in provided accordance as to genuine finds a fact issue whether Regulations, 253 of Code of Federal where a location in Nassau Air- there was notice under 253.5 also constitutes section under Tran tickets were that was sold provided to in accordance with notice Ron employee. charge of This Regula- part 253 of of Federal Code fact genuine should not a issue find regulation provides This as follows: tions. by summary judgment unrea- precluding summary- sonable inferences from 253.8, provided in each Except air one infer- by piling evidence or ticket, shall on or with a carrier include Schlumberger upon ence another. See given to or other written instrument & Surveying Corp. Well v. Nortex Oil Gas the contract passenger, embodies (Tex.1968); Corp., 435 S.W.2d by terms ref- incorporates Eagle Engstrom v. First Nat’l Bank contract, conspicuous erence Lake, (Tex.App.-Hous- that: notice denied). 1996,writ ton [14th Dist.] (a) Any by terms incorporated reference light all Considering the evidence contract, passengers may are Ron, crediting most favorable evidence the full term inspect text of each incor- jurors favorable to Ron if reasonable porated reference carrier’s could, contrary and disregarding evidence offices, passen- or ticket not, jurors reason- unless reasonable could gers right, upon request any have find, jurors able and could not fair-minded where tickets are location the carrier’s upon evi- based States, within the sold to receive United dence, there was a location Nassau charge by delivery free of mail or other where tickets were sold was the full text of each such incor- charge employee. an AirTran under term; porated Tamez, Trucks, See Mack Inc. v. (b) include (Tex.2006). If S.W.3d 582-84 there passengers may any obtain from Bahamas, were no such locations in the location where the carrier’s tickets are then there was no violation of section within the States further sold United 253.4(b). Because Ron did not raise fact concerning: information avoidance, regarding matter in issue (1) Limits on granting liability the trial court did not err the air carrier’s summary judgment. personal injury passen- or death of See KPMG Peat Marwick, loss, deláy gers, damage, at 749-50. or S.W.2d including fragile rated baggage, or reference in contract of car goods riage goods; because notice had not been perishable provided the passengers under 253.5. See (2) restrictions, including pe- time Claim Price, id. plaintiff submitted evi within which must file riods indicating dence that the two passengers bring or a claim an action (the son) plaintiff had and her not received or or carrier its acts omissions those the “Notice of Incorporated Terms” re agents; of its quired section 253.5. See 14 C.F.R. (3) Rights change of the carrier § 253.5 (requiring Incorporat a “Notice of (Rights terms of the contract. Terms”); Price, F.Supp.2d ed at 230. however, change price, governed plaintiff in Price did not allege that 253.7); §by the airlines failed to with section (4) Rules about reconfirmation of reser- 253.4(b) produce evidence of such vations, times, check-in and refusal to comply. failure id. at See 230-32. The carry; that, Price court comply “[i]f stated notice (5) Rights of the carrier and limitations with 14 provid C.F.R. was not concerning delay perform or failure to ed, the Prices will be bound service, including changes, schedule sub- But, claim restriction Id. at term.” carrier or air- stitution alternate air the “notice with 14 complying craft, and rerouting. § 253.4” to which the referred was (West 2013). Ron does 253.5, under notice section which is re that AirTran to comply not assert failed 253.4(a). quired by section See 14 C.F.R. with 253.5. notice to section Because Ron 253.4, 253.5; Price, §§ 5 F.Supp.2d at 230- section 253.5 notice under constitutes Indeed, though 32. the Price court men exculpatory provisions Ron of the in accor- requirements in passing tioned of sub with if part dance even Ron had (b) (c) 253.4, sections of section proved comply AirTran failed with Price court never stated that these subsec 253.4(b), proof section this would not allow required notice tions of the avoid the exculpato- Ron to enforcement of 253.4(a). Price, 5 F.Supp.2d section See 253.4(a). ry provisions under section 231. majority parties Neither nor the cited, revealed, Today’s have holding potentially research has has devastat- any any jurisdiction from in which an ing consequences case United States provi industry. was not allowed to a airline enforce airline this court’s con- Under 253.4, carriage its contract if an against sion of a struction of section FR airline’s incorporated by because the airline failed to standard terms that are 253.4(b). comply majori with section of carriage reference into its contract be- Airlines, Inc., ty single airport Price v. Delta cites 5 come unavailable in a (D.Vt.1998). airline, See office then the F.Supp.2d ante at ticket of that case lose all pp. protections 795-96. But the Price did not will of these any regarding issue section contractual all of the air- against involve terms 253.4(b). Price, F.Supp.2d passengers See line’s in interstate and 230- over- summary- transportation during period The Price a air court denied seas motion which are unavailable filed two airlines and these terms plaintiff inspection. apply raised a result will held that had fact This harsh pre issue to whether airlines were how far one ticket office is matter enforcing incorpo passengers’ respective from domiciles provision cluded places where or from tickets, despite their

purchased terms are available

fact that these internet.

time on the

Conclusion the enforcement

Today the court bars airline’s contract of from an upon purport- based whether the airline issue as to

ed fact Title

failed

253.4(b) Regula- of Federal Code be for this The better course would

tions. reasoning of the adopt the sound

court to v. American Air-

Fifth Circuit Casas

lines, and conclude that the regarding to raise a fact issue

failed majority piles

matter in avoidance. reaching inference in upon

inference Even if Ron had conclusion.

opposite this fact regard, a fact issue in this

raised to avoid en- would not be sufficient

issue con- AirTran’s

forcement of 253.4(a). Rath-

tract terms under section

er, challenge have had to Ron also would with section complied the airline

whether

253.5, Accord- Ron has not done so. should affirm the trial

ingly, this court not, I Because it does judgment.

court’s

respectfully dissent.

H.N., Appellant, FAMILY AND

DEPARTMENT OF SERVICES,

PROTECTIVE

Appellee.

No. 08-11-00364-CV. Texas, Appeals

Court

El Paso. 13, 2013.

March

Case Details

Case Name: Avi Ron v. Airtran Airways, Inc.

Court Name: Court of Appeals of Texas

Date Published: Mar 12, 2013

Citation: 397 S.W.3d 785

Docket Number: 14-11-01110-CV

Court Abbreviation: Tex. App.