*2 voluntary in this lawsuit. if the Even McKEITHEN, C.J., Before BURGESS payment doctrine is be contested in GAULTNEY, and JJ. case, appears this it from the evidence presented by Plaintiff the issue is MEMORANDUM OPINION may not individual and be determined as another common on a class wide BURGESS, DON Justice. basis. Patrick Peake filed suit on behalf clear the trial court considered the himself and a putative statewide class of defense and found it did not bar class BMG Direct who paid music club members certification because it will either late fees to Direct Marketing, BMG recovery by bar all class certify moved to a class. BMG upon pleadings, none. Based and opposed the motion. Following hearing, a Dallas, our decision TCI Cablevision of granted Owens, (Tex.App.- Inc. v. 837 S.W.3d BMG brings interlocutory appeal. by agr.),2 Beaumont agree.
BMG claims has satis In requirements fied the of Rule 42 and Ber payment doctrine raised to bar was recov 42; nal. See Tex.R. Crv. P. and South by ery charged cable television Refining western Co. v. companies. We noted: issue, its first course, contends predominate courts, will recognize the Texas over common issues because the expressed Ty- requires an v. Tyler, ler denied): into the voluntariness of each class Houston [14th Dist.] fees, precluding “[M]oney voluntarily paid member’s of late with full plead recognize 1. We note that BMG affir- 2. We TCI Cablevision decided Bernal, supra, Bernal did not ad- hearing mative defense until after the on class employing the certification, dress doc- prior but it was raised class; decertify a thus it trine does not hearing argued. and issue was our matter. control decision in this a determina the action. Such rule barred all the upon review of an inappropriate coercion can- deception, duress or action. See Peltier certifying class although back it was order be received Hilton, Inc. v. Enterprises, demand or paid upon illegal void or *3 denied). (Tex.App.-Tyler in upon a claim which had no foundation 621-22 no cause of the class has If BMG believes paid fact and was without consider- added). action, it can take to are measures Id. there (emphasis ation.” Computer however, Compaq whether the resolve that issue. See question, is (Tex. 779, LaPray Corp. v. 79 S.W.3d voluntary payment applies doctrine here filed) 2002, (citing pet. App.-Beaumont preclude to 166a.). 91, “Decertification Tex.R. Civ. P. Id. at 844. Owens however, appropri the is the of contended the doctrine (quoting Id. Em procedural tool.” ate full did “because he did not have Sch. Bds. Co. Tex. Ass’n ployers Cas. of of all the Id. Owens knowledge facts.” Fund, Comp. Workers’ Self-Ins. the material related to maintained facts 1994, 470, (TexApp.-Austin claim were “whether the late fees were w.o.j.)). writ dism’d reasonably of related costs ment and constituted reasonable advance simple: the BMG’s defense is Here, Peake, estimate of those costs.” Id. applies doctrine argues pay knowledge he did not with “full members, had full and all other class all facts” dis- of the because BMG never facts, and there knowledge of the material member, him, closed or class other allegation of or has been no duress fee represented whether the reasonable of application Peake’s contest coercion. damages. estimation of the actual he, equally simple: and all the doctrine is that failure to Peake’s assertion BMG’s have full other class precludes applying disclose the knowledge the material facts. However of no mem- payment doctrine because class decided, the substantive issue is class the requisite “full paid ber with the knowl- or See lives dies toto. Graebel/Houston edge.” Chastain, Movers, 24, 2000, (Tex.App.-Houston [1st Dist.] 34-35 “side-stepped” TCI’s
BMG contends we w.o.j.). pet. dism’d argument that the the certification. barred action an position BMG’s that disagree. split noted a of authori- We determine necessary jurisdictions in ty among existed other voluntarily in- paid each class member plying the doctrine to late fees cable counter to the de- correct because Peake’s Id. at that services. 845. We concluded based on knowledge” is want of “full fense “[cjonsidering split authority and the all the material failure disclose BMG’s that he did not have [plaintiffs] statement agreement failure that the —a facts, full the material class. be common to entire would far that the from clear the trial court did abuse applies Accordingly, here.” Id. doctrine pre- finding common we not convinced the 42(b)(4). Is- Tex.R. Civ. P. dominate. See certifying class. abused its discretion one is overruled. sue Id. argues did typicality adequacy pre- or satisfy not not correct did certification. See requisites for class determine whether (4). 42(a)(3), Tex.R. Civ. P. As set forth payments by will then entered that the above, the or claims defenses of Peake are all voluntary. class members were How- typical of claims or defenses ever, whether an individual’s class. BMG contends Peake’s voluntary depends by definition—on indi- — payment of his late him vidual choice and individual circumstances.
from as an serving repre- Salvaggio v. Indep. See Houston Sch. sentative. Peake contends he did “vol- Dist., 307-08 untarily” vis a pay, voluntary pay- vis the [14th Dist.] doctrine, ment because he did not have full w.o.j.) (voluntary payment precluded knowledge material facts. Whether group taxpayers class certification of *4 payments Peake’s case-by-case because of need for factual properly substantive analysis). Class certification is improper appeal. court predomi- here because individual issues nate. See Southwestern Co. Ref. BMG further claims Peake’s testi I respect- mony him it does not because fully dissent. support allegations petition. its order the trial court “[m]any found
the factual points details [BMG] being appear in error on do
[Peake]
have relevance the ultimate resolu
tion of the contested this lawsuit.
Further, clearly factual details are
readily available to both [Peake] for [BMG] [Peake] TEXAS DEPARTMENT OF PUBLIC entirety proposed class from SAFETY, Appellant, Although records.” BMG sum
[BMG’s] marily contends the trial court abused its in finding Peake an Jerry MOORE, Appellee. B.
representative, no contest is made to the specific findings the court’s Hav order. No. 01-02-01147-CV. ing complaints regarding reviewed BMG’s testimony, say we are unable Dist.). (1st the trial erred in its conclusions. Issue two is overruled. May AF- the trial court is FIRMED. GAULTNEY, Justice,
DAVID B.
dissenting. possible do not believe to determine each trials
payment by volun- each member was
tary. But that is what this certifica- If requires. plaintiff as
certified, loses trial
ment is to be voluntary, judgment found