OPINION
Hаl LaPray, Tracy D. Wilson, Jr., and Alisha Seale Owens (plaintiffs/appellees) filed suit on behalf of themselves and all others similarly situated against Compaq Computer Corporation. The suit alleges computers sold or manufactured by Compaq incorporate a defective floppy disk controller (FDC). The suit expressly *784 “does not seek claims for consequential damage as the result of the actual loss or corruption of data.” Plaintiffs only causes of action are (1) declaratory judgment; (2) breach of contract; and (3) breach of express warranty.
In their petition, plaintiffs sought, and were granted, certification of a class dеfined as themselves and all private 1 purchasers of certain Compaq computers. 2 In its order, the trial court made findings of fact and conclusions of law and incorporated a trial plan. The trial court found class certification proper under both Tex.R. Civ. P. 42(b)(2) and 42(b)(4). The trial court declared:
First and predominately, under TRCP 42(b)(2) the Court certifies the counts for declaratory relief which, if granted, would lead to enforcement of the remedies permitted by the written warranty (of repair, replacement or refund.)
The Court also separately certifies under TRCP 42(b)(2) the counts for declaratory relief and breach of warranty that Compaq argues could become a predicate fоr monetary damages outside the four corners of the written warranty (money damages for, alternatively, breach by sale and breach by failure to repair).
The trial court then found it was also appropriate to certify a class for damages under Rule 42(b)(4). Compaq appeals raising ten issues. 3
In its first two issues, Compaq contends the trial court abused its discretion in certifying the mandatory class for declaratory relief pursuant to Tex.R. Civ. P. 42(b)(2). Compaq first argues the trial court’s order ignored established Texas law in certifying a mandatory class for declaratory relief. This argument has two grounds: 1) Plaintiffs’ claims for damages preclude their request for declaratory relief; and 2) the certification order results in an impermissible advisory opinion that would give rise to piecemeal litigation. Next, Compaq argues the trial court erroneously held that a damages class can be certified under Tex.R. Civ. P. 42(b)(2).
In support of its first ground, Compaq cites
Koch Oil Co. v. Wilber,
Similarly in
Tucker,
In
Boatman,
plaintiffs’ original petition alleged the Boatmans negligently diverted the natural flow of water from their land.
Boatman,
In
Universal Printing,
a homebuilder sued neighboring homeowners to prevent them from blocking an alley.
Universal Printing,
None of these cases found declaratory relief improper on the basis intimated by Compaq — because plaintiffs sought damages. Rather, in Koch and Tucker it was because the declaratory judgment was sought on issues which had previously been presented in the suit. Here, plaintiffs sought declaratory relief in their original petition. In Boatman, the court noted:
The Declaratory Judgments Act provides that a person interested under a deed or other writing constituting a contract may have the court determine any question of construction or validity arising under the instrument and obtain a declaration of rights, status, or other legal rеlations under it. In addition, a person whose rights, status, or other legal relations are affected by a statute may have the court determine any question of construction or validity arising under the statute and obtain a declaration thereunder. The Act provides a procedural method for deciding the validity or proper construction of a written instrument or a statute. A declaratory judgment should not be rendered when there is no claim that a statute or a deed is ambiguous or invalid.
Next, Compaq claims the trial court’s certification order “contravenes Texas’ prohibition on rendering advisory opinions and piecemeal litigation.” The cases cited by Compaq in support of this claim are inapposite to the case at bar.
In
Space Master International, Inc. v. Portar-Kamp Manufacturing. Co.,
Likewise, in
Southwest Airlines Co. v. Texas High-Speed Rail Authority,
Similarly, in
Marlow v. American Suzuki Motor Corp.,
Compaq cites
Paulsen v. Texas Equal Access to Justice Foundation,
Compaq does not address the cases recognizing the appropriаteness of “hybrid” classes in certain cases.
See TCI Cablevision of Dallas, Inc. v. Owens,
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Further, Compaq argues the trial court’s order “contravenes the firmly established rule that ‘where the damage has already occurred, use of the Declaratory Judgments Act is plainly inappropriate.’ ”
Small v. Sussman,
No. 94 C 5200,
The court in
Sussman
granted defendants’ motion to dismiss plaintiffs complaint for failure to state a claim.
Suss-man,
Neither Sussman nor Hoagy Wrecker Service concerned an appeal from a class сertification. Further, unlike the plaintiff in Sussman, damages are not the only relief plaintiffs may obtain in this case. Plaintiffs seek relief under the warranty to repair, replace, or refund; damages are sought only in the event of a breach. While the plaintiff in Hoagy Wrecker Service had the option of seeking damages, here the warranty expressly excludes seeking relief by way of damages.
In
Cunningham Brothers,
Compaq cites no Texas cases adopting or applying this “firmly established rule.” Compaq cites cases where the plaintiffs complaint was dismissed for failure to state a claim and cites no case where this rule was used to decertify a class. If Compaq believes the class has no cause of action, there are mechanisms to resolve that issue.
See
Tex.R. Civ. P. 91, 166a. “Decertification of the class, however, is not the appropriate procedural tool.”
Employers Cas. Co. v. Tex. Ass’n of Sch. Bds. Workers’ Comp. Self-Ins. Fund,
Lastly, Compaq claims plaintiffs failed to establish the prerequisite under Rule 42(b)(2) to maintain a class action. Compaq contends the record does not support the trial court’s finding that it “has acted or refused to act on grounds gener-álly applicable to the class.” Tex.R. Crv. P. 42(b)(2). According to Compaq, the trial court’s finding is based upon its erroneous position that Compaq “does not deny” it has acted or refused to act. The trial court made other findings, namely:
• “Compaq denies that its FDC is defective.”
• “Compaq denies that class members are entitled to any remedies or, alter *788 natively, that SOFTPAQ 13456 addresses any issues with the FDC.”
• “The crux of this dispute comes down to whether or not the FDC is defective. This point has been madе time and time again by Compaq’s lawyers and Compaq’s witnesses. Unless there is a judgment that the FDC is defective, Compaq will not provide any remedy, regardless of the type and manner of notice and opportunity to cure.”
• “Plaintiffs contend that Compaq has not yet provided the limited remedies that are expressly afforded by Compaq’s Limited Warranty.”
Compaq does not challenge these findings. Accordingly, we reject Compaq’s claim that there is no evidence in the record to support the trial court’s determination.
Compaq further contests the trial court’s finding that declaratory relief is appropriate.
See
Tex.R. Civ. P. 42(b)(2). Compaq asserts that beсause plaintiffs’ sole remaining claim is for breach of express warranty, and the remedy for breach of warranty is damages, this suit is really only about damages. The trial court made extensive findings to the contrary and more than adequately set forth its rationale regarding the appropriateness of declaratory relief in this case. Compaq does not attack the trial court’s findings or conclusions; rather Compaq insists only that the claim for declaratory relief is a sham. The trial court found otherwise and absent a showing that the record demonstrates an abuse of discretion, we will not disturb that finding. Also, while we can appreciate Compaq’s views on hybrid classes, they are not binding upon this court. To the contrary, our decision in
TCI Cablevision,
Furthermore, the certification order expressly states the trial court’s belief that should the FDC be found defective, Compaq will honor the warranty. Based on the court’s order, it would appear that Compaq’s specter of damages from breach of warranty will arise only if Compaq chooses not to honor the warranty. We do not assume that Compaq’s certainty of damages indicates an intent to breach, but we cannot say the trial court abused its discretion in finding declaratory relief appropriate because it presumes Compaq will nоt breach. Having rejected all of Compaq’s arguments under issues one and two, those issues are overruled.
In its third issue, Compaq claims the trial plan set forth in the certification order violates
Southwestern Refining Co. v. Bernal,
In Bernal, plaintiffs sought class certification for a personal injury suit arising from a refinery tank fire. Id. at 428. The trial court certified the class and directed it to proceed in three phases: 1) to determine general liability and gross negligence; 2) to determine punitive damages; and 3) to determine causation and actual damagеs. Id. The certification order was modified by the court of appeals to require determination of the class representatives’ actual damages before assessment of punitive damages for the class. Id. The Supreme Court of Texas held “the trial court’s certification order was an abuse of discretion because common issues do not predominate” and reversed and remanded the cause for further proceedings. Id. at 439. The court expressly did not consider “Southwestern’s other objections to the class action or the trial plan.” Id.
In its opinion, the Bernal court first considered the requirement of predomi *789 nance under Rule 42(b)(4) and concluded the individual issues predominated over the cоmmon ones in this class. Id. at 433-36. In dicta, 5 the court then turned to Rule 42(b)(4)’s requirement of superiority and found class treatment was not superi- or to other available methods of a fair and efficient adjudication. Id. at 437-38.
Regarding predominance, the Bemal court observed class action will rarely be an appropriate device for resolving personal injury claims because such claims often present thorny causation and damage issues with highly individualistic issues. Id. at 436. The court found the common issues of liability and whether the materials released by the exposure were capable of causing the alleged harm were outweighed by the following individual issues: 1) whether and to what extent each class membеr was exposed; 2) whether that exposure was the proximate cause of the harm to each member; 3) whether and to what extent other factors contributed to the alleged harm; and 4) the amount of compensatory damages owed each class member. Id. at 436-37. The court noted the latter issues also included highly individualistic variables such as dosage, location, activity, age, medical history, sensitivity, and credibility. Id. at 437.
Considering superiority, the court observed the trial plan did not permit Southwestern to challenge causation and damages on an individual basis. Id. at 437. The court concluded a class action which allowed Southwestern to exеrcise that right would not be superior treatment. Id. Compaq’s intimation that the Bemal court rejected the trial plan”on the sole basis that it did not permit individual defenses is erroneous. Not only did the court decline to address the merits of the trial plan per se, what the court actually held was that the trial plan for class action was not (and due to the numerous individual issues could not be) superior.
It is Compaq’s complaint that the trial plan precludes it from presenting individual defenses. Specifically, that it may not introduce individual evidence on “post sale use, configuration, data loss, consequential damages, or problems (or lack thereof)” or “actual purchase process or individual reliance or ... failure to give Compaq notice and an opportunity to cure.” But under plaintiffs’ theory — that if the FDCs do not meet specifications Compaq must honor the terms of the warranty — these are not defenses. Compaq raised this same objection to the trial plan and the trial court expressly found:
Given the Named Plaintiffs’ causes of action, the Court is not persuaded that there will be any individual causation or damages issue that would survive summary judgment and would be submitted to a jury. For example, Compaq will not be able to submit an issue on whether the FDC defect caused a particular loss of data (or other problem) to a particular class member, because the class is not seeking consequential damages.
The trial court’s order thoroughly addresses each issue Compaq claims it is entitled to contest individually and finds otherwise. Compaq has not demonstrated on appeal that the trial court abused its discretion.
Compaq further alleges the trial plan’s use of sample cases violates
Bernal,
Compaq cites
Becton Dickinson & Co. v. Usrey,
Compaq further protests the trial plan as not being “concrete” enough to satisfy
Bernal.
Our review of the certification order compels us to disagree. The trial court clearly performed a rigorous analysis after determining how the claims can, and will likely, be tried.
See Bernal,
In issue four, five, and six, respectively, Compaq contends plaintiffs’ claims and its defenses present such overwhelming individual issues of fact as to make the class fail the typicality, predominance, and superiority requirements of Tex.R. Civ. P. 42. We first note that typicality is a requirement for class certification under Rule 42(a)(3) while predominance and superiority are requirements for a class certified under Rule 42(b)(4).
Underpinning Compaq’s argument regarding these requirements is its assertion that “the class covers approximately 1.8 million computers” and “these issues are necessarily unique to each class member’s computer.” While the class may cover 1.8 *791 million computers, 6 it only covers two FDC models, SiS 6801 or ITE 8661. Furthermore, the trial court found, and Compaq does not dispute, the SiS 6801 and ITE 8661 “differ only in name. Except for the logo printed on the chip case, they are the same.”
We first address Compaq’s contention that plaintiffs fail to meet the typicality requirement of Tex.R. Civ. P. 42(a)(3).
7
“Generally, the typicality requirement mandates that the class representatives possess the same interests and suffer the same injury as the class.”
State Farm Mut. Auto. Ins. Co. v. Lopez,
Here, the underlying theory is the same for all class members. The trial court did not abuse its discretion in finding typicality here. Issue four is overruled. Because the trial court certified the class under Rule 42(b)(2), and only alternatively certified the class under Rule 42(b)(4), and having found the trial court did not abuse its discretion in certifying a(b)(3) class, it is unnecessary to address issues five and six challenging the requirements of predominance and superiority.
Issue seven charges that plaintiffs’ breach of warranty claim requires the application of different states’ laws, rendering any classwide trial and jury instructions incomprehensibly chaotic. Compaq relies upon the authority of
Spence v. Glock,
The only conflict Compaq points to is “the policy interests of states that refuse to allow breach of warranty claims where the product at issue has not actually malfunctioned.”
8
The cases referred to by Compaq are
Briehl v. General Motors Corp.,
Compaq also neglects to discuss
Microsoft Corp. v. Manning,
Software, however, is not like tires or cars. Tires and cars have a distinctly limited usable life. At the end of the product’s life, the product and whatever defect it may have had pass away. If a defect does not manifest itself in that time span, the buyer has gotten what he bargained for. Software’s useful life, howevеr, is indefinite. Even though the defect is not manifest today, perhaps because the user is not using the data compression feature, it may manifest itself tomorrow. The only way for an MS-DOS 6.0 buyer to avoid the possibility of injury is to pay for the upgrade, never use the data compression feature, or use another operating system. The buyer never gets what he bargained for, i.e., an operating system with an effective data compression feature.
Manning,
In its eighth issue Compaq asserts plaintiffs do not satisfy the adequacy of representation prerequisite under Tex.R. Civ. P. 42(a)(4).
9
Specifically, Compaq claims plaintiffs presented no proof they understood the strategies being taken on behalf of the class or the potential adverse effect of such strategies on absent class members. Relying on
Berger v. Compaq Computer Corp.,
While the representative’s knowledge of the litigation is a factor in deciding adequate representation,
see Union Pacific Resources Group, Inc. v. Hankins,
Comaq further argues that by disclaiming consequential damages and abandoning claims for injunctive relief, implied warranty and revocation of acceptance, plaintiffs have sacrificed the interests of certain absent class members. We first note that consequential damages, breach of implied warranty, and revocation of acceptance are expressly excluded by the warranty.
The decision to disclaim consequential damages does not proscribe recovery of consequential damages by claimants who have experienced data loss, as Compaq claims. The trial court specifically excluded those claims from the class action so they will not be litigated. Therefore, those parties can opt out of the class action and pursue their claims for data loss.
See Manning,
Likewise, the abandonment of other theories of liability would not bind those who opt out of the class action. While those who choose to be part of the class might be bound — upon a determination the claim arose from the same operative facts — that possibility alone does not establish the trial court abused its discretion in finding the representatives to be adequate.
Compaq argues that “[c]laim preclusion prevents splitting a cause of action under the principle of
res judicata.” Bartkowiak v. Quantum Chem. Corp.,
Adequacy of representation is a fact question addressed to the sound
*794
discretion of the trial court and so long as there is evidence to support the trial court’s decision, it will not be disturbed.
See Peters v. Blockbuster;
In issues nine and ten, Compaq claims the trial court abused its discretion in admitting testimony from Plaintiffs’ four experts. Appellees argue the trial court is not limited to admissible evidence when making a certification determination. In its reply brief, Compaq asserts only that it has authority for its position and it did not waive error. None of the cases cited by Compaq involved a class certification.
See K-Mart Corp. v. Honeycutt,
The majority of the courts of appeals have consistently held “[t]he evidence on which a trial court bases its certification ruling need not be in a form necessary to be admissible at trial.”
Henry Schein, Inc. v. Stromboe,
For all of the above reasons, we affirm the trial court’s class certification order.
AFFIRMED.
Notes
. Excluded from the class are "[a]ll government entities, bodies and agencies of any character, federal, state, or local, and their employees (in that capacity only); the presiding judge(s) and other cоurt personnel; the Named Defendants and their employees.”
. "[A]ny Compaq computer model that contains a SiS 6801 or ITE 8661 FDC, which are identified as being desktop Presario model numbers 2266, 2275, 2281, 2285V, 2286, 2412ES, 2416ES, 5070, 5184, 5185, 5301, 5304, 5304b, 5340, 5345, 5360, 5365, 5410, 5440, 5441, 5451, 5452, 5460, 5461, 5465, and 5710, Presario laptop model numbers 17XL2, 17XL266, 17XL274, 17XL264, 17XL266, 17XL260, 17XL261, 17XL262, 17XL275, 17XL265, AND 1700T[CTO].”
.We first note that Compaq’s brief does not argue the issues as listed at the beginning of Compaq’s brief. We have attempted to reconcile Compaq’s list of issues with its argument headings by ascribing all of Compaq’s arguments to a particular issue.
.
Sheldon
was reversed on the basis that the class definition failed to meet the clearly-ascertainable requirement.
Sheldon,
. Because the court reversed certification on the issue of predominance, it was unnecessary to address superiority.
. We say “may” because Compaq fails to provide a record reference for this factual assertion.
. Requiring that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.”
.Compaq fails to cite any precedent at this juncture but in a footnote refers to a "discussion of 'unmanifested defect’ cases, supra." In a 75-page brief, this reference is less than helpful.
. Requiring that "the representative parties will fairly and adequately protect the interests of the class.”
. It was not our intention in
Peters v. Blockbuster, Inc.,