*1 body parts and permanent a claim- loss of determining for process Division’s injuries. It is life-altering LIBs should other serious continuing eligibility for ant’s anyone else for Division or impossible determination original the same be actually will or know whether loss of use deny A claimant to or benefits. grant to When, by good permanent. a benefit total and may request carrier be insurance science, notice to advances in medical by giving fortune or conference review resolve so that he attempting impairments improve after to parties claimant’s other statutory eligibility meets dispute. longer See no Lab.Code 410.023-.025; LIBs, not receive a 28 Tex. Admin. Code he should criteria hold, windfall, merely resolve then- parties If the cannot as the Court would § 141.1. provide conference or Legislature the benefit review failed dispute at arbitration, Surely parties may proceed unique circumstance. a Division a nonsensi- where did not intent such hearing, contested case Division, dispute and officer I would hold that the hearing hears cal result. See admin- proceedings. charged a record of the with the effective makes which is benefits, jurisdic- § income parties 410.151. The istration Tex. Lab.Code continuing the Division’s that decision to a claimant’s appeal tion to consider Further, respectfully § See id. 410.202. receive I panel. eligibility to LIBs. provides Act the Division dissent. See id. to monitor carrier actions. power 414.002(a). It actions
§ lists numerous violations
that constitute administrative carrier, a carrier’s including
an insurance claim when evi- of a to benefits
contest liability. See id. clearly indicates
dence sanctioning The Act
§ 415.002. allows when violate such penalties carriers MORTON, Petitioner, T. Kevin Act, guards of the and therefore provisions by car- harassing actions against potential See receiving LIBs. against
riers claimants Hung NGUYEN and Carol S. 415.021(a).3 already the Act § Because id. Nguyen, Respondents. contesting procedure provides No. 12-0539. benefits, eligibility current claimant’s need there was no for the Texas. Supreme Court of provision in the statute. separate include a
Aug. 2013. III. Conclusion Rehearing Nov. Denied func- LIBs for Section 408.161 awards to a total impairments equate
tional arguing "revers[e] not should Although parties, I do Division not raised trig- the Labor required that section 410.209 of modif[y]” believe decision as Code, provides which for reimbursement id. Rath- ger potential reimbursement. See who has over- funds to an insurance carrier er, entirely determina- view this is an new claimant, applies as this. paid a in cases such entitlement of a claimant’s current tion Liberty and the id. 410.209. Mutual original grant appeal and not an LIBs that Adcock was Division do contend of LIBs. are not entitled to LIBs and thus *2 Law, G. Bailey, Attorney
Robert TX, Houston, Kevin T. Petitioner Bai- ley. Stratton, Leigh Eddy
Bobbie
L. De Los
Jr.,
Santos
Baker Donelson Bearman
PC, Houston, TX,
&
Caldwell
Berkowitz
Respondents Hung Nguyen.
opinion
Justice GREEN delivered the
Court,
in which Chief Justice
JEFFERSON,
HECHT,
Justice
Justice
JOHNSON,
GUZMAN, and
Justice
joined.
Justice DEVINE
Chapter
Texas
imposes various conditions
requirements
and disclosure
sellers en-
tering
contracts for
known
into
deed—also
“executory
conveyance
contracts for the
.
property.”
of real
See PROp.Code
A
to comply
5.061-.085.
seller’s failure
requirements
entitles
buyer
to “cancel
and rescind”
refund of
for deed
“receive a full
E.g.,
id.
seller.”
viding
in this
that the annual statement must in-
primary
issue
alia,
clude,
paid
who exercised
inter
the amount
is whether a
and rescind
statutory right
to cancel
the contract and the number of
*3
contract).
to
seller
must restore
the
contract for deed
remaining under the
the
buyer received under
the
benefits
2009, Nguyens
In November
the
notified
hold that
contract. We
they
exercising
Morton that
were
their
con-
remedy
caneellation-and-rescission
to
right
cancel and rescind the
of benefits
templates mutual restitution
Nguyens
contract for deed. The
demand-
Thus, we
conclude
among
parties.
monthly
thirty-four
pay-
ed return of all
buyers here must restore
ments,
payment,
the down
and
taxes
form
enrichment in the
supplemental
premiums
during
they paid
and insurance
buyers’
occupation
for
interim
of rent
Morton ordered the
the contract’s term.
and re-
property upon
of the
cancellation
allegedly
house
Nguyens out
and
deed. We re-
of the contract for
scission
began
Nguyens by
to harass the
demand-
appeals’ judgment,
the court of
verse
and
ing payments under the contract
de-
trial
the case to the
part, and remand
vacate
manding
immediately
this
proceedings
court for
consistent with
Nguyens
Morton
sued the
property.
opinion.
Nguyens
for breach of contract. The
counterclaimed,
monetary
seeking
dam-
Background
I.
rescission,
ages,
statutory damages
and
Morton,
January
sell-
Kevin
as
alleged
Proper-
due to
violations under the
er,
buy-
Nguyen, as
Hung
and Carol
Code,
Code,
ty
the Decep-
the Finance
ers,
a contract for deed. The
entered into
(DTPA).
tive Trade Practices Act
Morton
required
Nguyens
to make
contract
asserted various affirmative defenses to
$5,
monthly
in-
payment
down
Nguyens’
alleged
counterclaims and
$1,
approximately
for
stallments
533.90
that he was
entitled
setoff
years
obtaining the
thirty-five
before
amount of the fair market rental value of
provided
initial
deed.
an
Nguyens
the time the
years,
rate
8.875%. After five
interest
occupied the house.
yearly
was
the interest rate
set
escalate
trial,
Following
bench
the trial court
The trans-
1% until it reached 12.875%.
found that Morton failed to
en-
purportedly
action was
structured to
pertain-
various
sections of
out new fi-
courage
Nguyens
seek
ing to
disclosures
contract-for-deed
years
few
after
nancing arrangement
in a
law,
transactions. As a matter of
the trial
rebuilding
credit. The
also
Nguyens
their
court found that Morton’s good-faith de-
insurance,
agreed
pay
for homeowners’
fense based
Flores Millennium In-
taxes,
and homeowners’ associa-
terests, Ltd.,
(Tex.2005),
513 The trial did not find contract. claims. court Ante at 511. But our task here DTPA, written, apply violated the and the court the statute as Morton isit for damages reversed the award not within appeals power our our role to resolve See the Finance 869 S.W.3d at Code. Court’s concern. As the Accordingly, sup- no cause of action said repeatedly, quite recently: even anguish an award of mental dam- ports (cid:127) “The aim of construction Nguyens’ pleadings Because the do ages. give to determine and effect support anguish an award for mental Legislature’s intentf.]” CHCA Wom- claim, other the court Hosp., Lidji, an’s L.P. also should have reversed the (Tex.2013); in conjunction award with reversal of the (cid:127) It is “cardinal begin law” we Code claim.3 Finance Civ. P. Tex.R. plain language and common mean- “judgment (providing that a . ing of the in the words statute. Trax pleadings”). court shall conform to the States, Inc., ler v. Entergy Gulf (Tex.2012); S.W.3d IV. Conclusion (cid:127) (and end) “begin often Accordingly, grant petition Morton’s Legislature’s chosen language,” Chris and, hearing argu- for review without oral Inc., Aetna, tus Coast v. Health Gulf Tex.R.App. ment, P. 59. we reverse the (Tex.2013), be appeals’ judgment of the court portion cause “the truest manifestation affirming the trial court’s awards of actual what lawmakers intended is what rescission, cancellation enacted.” Combs v. Roark Amuse anguish damages, mental —L.P., Vending, ment & fees, and we remand the case to the trial -, -, 2013 WL *2 for proceedings court consistent with this (Tex. 8, 2013); March opinion. (cid:127) language “voted-on law, is what constitutes and when concurring Justice BOYD filed a unambiguous statute’s words are dissenting opinion, in which Justice yield interpretation, but one ‘the and Justice LEHRMANN WILLETT ” judge’s inquiry is at an end.’ Id. joined. (quoting Alex Mgmt. Sheshunoff BOYD, joined by Justice Justice Servs., Johnson, L.P. v. LEHRMANN, *8 WILLETT and Justice 644, (Tex.2006)); concurring part dissenting part. (cid:127) equals text “[Ujnambiguous determi- result).”
The Court is that a ap- (barring bothered literal native text an absurd —Gen., plication Subchapter Chapter Attorney of D of 5 of In re Office of S.W.3d-,-, Property the Texas 2013 “result[s] Code WL (Tex. 2013).1. purchasers an *4 executory Mar. windfall” anguish damages held 3. The court of that Morton are recoverable for the Property by Code found violations the trial argue waived the issue he did not court this case. "that the trial court could not have awarded . anguish damages conjunction mental with also, Reitz, e.g., 1 v. Rachal 403 S.W.3d Property 369 [the Code] violations.” 840, 844, (Tex. May 2013 WL at *3 assuming pled Even at 676. the Chatha, 2013); AView & M Univ. v. Prairie anguish damages 500, 507, mental for the (2012); Tex. Mut. 430, claims, Ruttiger, we are not convinced that mental Ins. Co. v. added). join Because I cannot the principles phases of announced these al- this lan- holding ignoring not because we without statutory construction Court’s dissent Legislature’s policy altogether, respectfully guage the ways agree is easier to avoid opinion. or because it part choices from this Court’s the choices ourselves. To making policy Legislature’s policy
contrary, the I. applying part often the most difficult choices is Statutory Remedy under job, particularly when judiciary’s Property Code But choices. “we do with those disagree D of 5 of the Chapter among policy options and choose pick Code, Property Texas has spoken.” on which to make provided that a seller’s failure Partners, L.P. Due- Operating F.F.P. into entering before certain disclosures nez, Up- conveyance executory contract real holding policy choices deed) (i.e., a contract for judiciary’s role foundational within separation powers constitutional purchaser to cancel re- entitles branches, necessary the three among executory and receive scind the sys- liberty unique that our protect made to the full refund of guarantees. phi- government tem of seller. explained long ago: losopher Montesquieu 5.069(d)(2), 5.070(b)(2), [Tjhere powers liberty is no added). 5.072(e)(2) (emphases seller’s from separated legis- be not judging yet provision violation of another powers. it lative and executive Were cancel and re- purchaser entitles the the life and joined legislative, executory contract and receive scind the would be liberty subject exposed seller: from the control; arbitrary the judge would (A) the return legislator. joined it to the be the Were under the con- kind made might power, judge behave executive tract; and of the oppressor. with all violence (B)reimbursement for: (T. Spirit of Laws Montesquieu, The C. (i) any payments purchaser ed.1977) (T. trans., Nugent D. Carrithers property; taxing authority 1750). trans. 1st ed. Nugent case, majority present In the (ii) of any improvements the value purchaser’s recovery holds that a purchas- made to the Chapter D of 5 of the er. must be Texas reduced added). 5.085(c)(2)(emphases Id. purchaser the value of benefits language, the Despite unambiguous from That be
received the seller. violation of Court holds that seller’s policy, repeatedly but the Code good *9 purchas- the is to these statutes does entitle purchaser the entitled states payments full all er to “a refund of payments refund of all receive “receive full Prop.Code of made the seller” or “the return the made to seller.” 5.072(e)(2) (em- the seller.” 5.070(b)(2), any kind made to payments of Samudio, 363, (Tex.2012); 174, (Tex.2012); Lopez, 370 S.W.3d 368 In re 372 S.W.3d 176 Combs, Kimbrell, (Tex.2012); Geophysical v. 340 Co. v. 356 S.W.3d TGS-NOPEC Molinet 432, (Tex.2011). 407, (Tex.2011); 439 411 Zurich Ins. Co. Am.
515 Instead, purchas- Court holds that the statute” to consequences the determine the er is entitled to receive the difference be- Hash, of the violation. Hines v. payments purchaser tween the 464, (Tex.1992); see also and the “value interim [purchaser’s] I, AHF-Arbors at Huntsville LLC v. property.” Ante at 512. occupation of Dist., Walker Cnty. App. view,
Because, purchas- the Court’s in (Tex.2012) Hines). 835-36 (quoting er is the rental value of the “liab[le] here, Legislature But is silent on id., property during their occupation,” the effect 'of a noncompliance seller’s purchaser cannot receive “a refund of full that, it expressly statute: states payments made to the seller.” For the when the seller fails to below, I believe the reasons discussed statute, purchaser entitled “a strayed from its role Court has both and full refund of all principles its construction in seller!’ Regardless of the Leg Whether this case. islature be “puni intended this relief to tive,” it is the relief Legislature ex Purpose? A. No Punitive pressly provided and thus the relief that First, the Court asserts that its con the courts must award. is appropriate struction of statute event, In any provides Court no because the statute’s “cancellation-and-re support Legisla for its assertion that the remedy scission is not intended to be ture does not intend statute’s reme punitive.” Ante at Ignoring 511. for a .this dies to be “punitive.”2 This Court has lack support moment the for this as previously that Subchapter liqui held D’s sertion, precedent to the con and fact, is, damages “penal dated provision trary, best indication what “punitive nature” and than rather com intended found in the See, pensatory.” Flores v. e.g., words the Millennium chose. Inter — (Tex ests, Ltd., Combs, -, S.W.3d at WL .2005) that, . previously *2. It also is true when a Court noted requires severity damages statute that the of the certain conduct is statute’s many “silent the effect formula noncompliance, impose on “would instances purpose we must consider the a fine far beyond damages pur states, plus anguish damages "Like the Deceptive mental treble dam- [Texas Trade 17.50(d) (attor- Practices —Consumer Protection Act’s ages appropriate); when id. (DTPA)] remedy, restoration fees). hold, ney’s did not indicate in Cruz cancellation-and-rescission is not in- any way, provisions punitive merely provides tended to be —it nature, non-punitive are see option unwinding the transac- provi- S.W.3d at and the tion,” Restoration, Inc., citing v. Andrews Cruz liability sions at issue here are the statute's S.W.3d Cruz, Ante damages provisions (though are ex- In Court held that the "re- nonexclusive). pressly See DTPA, provision of the storfation]” 5.069(d)(2), 5.070(b)(2), 5.072(e)(2). " 17.50(b)(3), punitive 'pun- was not ” below, addition to the differences discussed accomplished ishment' under the DTPA "is yet significant this demonstrates another dif- through liability the statute's ference between the statute at issue Cruz— practices provision prohibiting deceptive — provided top which for additional relief allowing recovery damages, of actual n damages designed to make claimant anguish damages, mental treble provides violations, Id.; whole—and the statute here—which knowing fees.” 17.50(b)(1) for return under the *10 § of all made see also Tex. Bus. & Com.Code (authorizing damages the award of economic invalid contract. 516 Trumps All? v. De B. “Rescind” likely to Brown
chaser suffer.” is 560, Cruz, 566 156 S.W.3d La Second, that, using by the Court reasons not Legislature did even if the Finally, “rescind,” Legislature “in the word 5.070, 5.069, to be 5.072 intend sections Subchapter D’s cancellation-and-re tended nature, that I am convinced punitive in contemplate remedy to scission also. recovery “all permitting mutual restitu common law element of Al- inherently punitive. to seller”'is that, I agree general at 511. tion.” Ante consti- provisions of these though violation Legislature that the ly, presume we could “false, act misleading, deceptive or tutes a meaning knows and intends common Deceptive Texas practice” under the or “rescind,” construing but in a word like Act Protection Trade Practices-Consumer every give we “must effect to this statute Prop.Code 5.069(d)(1), §§ (DTPA), see word, clause, that Legis and sentence” 5.070(b)(1), 5.072(e)(1), en- some claimants Attorney has used. In re lature Office of titled recover under to — Gen., at-, 2013 WL DTPA, as recover under the will not also added). Here, Legis (emphasis at *4 who, this demonstrates. Claimants purchaser is entitled lature stated that only sec- Nguyens, like recover executory con “to cancel and rescind the 5.070, 5.069, do not receive tions or 5.072 pay tract and receive full refund of provisions the benefit of DTPA’s Prop.Code ments made to the seller" Tex. less the damages, actual much recovery of 5.072(e)(2) (em 5.070(b)(2), See id. punitive provisions.3 more DTPA’s added). phasis 5.069, 5.070, liqui- Unlike the 5.072. provided under section dated intended Legislature If the had that (d) 5.077(c), 5.077, (providing liq- § see id. “the only entitled to common purchaser be day, up per restitution,” to $250 uidated law element of mutual ante value), it capped (and, total should recovery of the amounts would) conclude, ]” have these must ended “obvious! deed paid a contract for obtained the reference to provisions after 5.069, 5.070, and 5.072 violation of sections contract,” “executory omitting relation the harm caused” “bears no of all phrase “and recéive a full refund Flores, See 185 wrongful contract. completely. payments made the seller” (construing S.W.3d at phrase, did not omit that 5.077). it. Because but done so for “every phrase pre- or in a statute is word “punitive” Regardless of whether how intentionally sumed to been used with have be, may I see no need the statute Allen, meaning In re and a purpose,” history argue or to legislative consider (Tex.2012) (quoting State “purpose” unstated about the statute’s (Tex.2010)), W., v. K.E. is clear. If when its stated effect language not read out of guide” Legislature’s words are “surest State, Traxler, statute. See also Perkins intent, see (Tex.1963) (“[I]t 140, 146 is settled only here S.W.2d I can conclude S.W.3d at presumed in a every word statute intended Legislature specifically purpose; used for a “a been purchasers receive refund full statutory construction is seller.” cardinal rule of 17.50(b)(3) provision at issue did not recover under Because —the DTPA, at 823. could not seek an order Cruz. *11 sentence, clause is to made to the each and word ments seller.” Tex. 5.069(d)(2),5.070(b)(2),5.072(e)(2). possi- if reasonable and given effect be ble”). view, the use my In short, In the Court’s construction of us give the word “rescind” does not provision the DTPA in Cruz may have Leg- ignore the rest of what the license been consistent with the language of that said. islature statute, but that same construction is not entirely consistent with the dissimilar lan- Cruz C. Controls? guage statute at issue here. Be- Third, incorrectly, the Court I relies — Legislature’s language matters, cause .the Restoration, believe—on Cruz v. Andrews constructipn our of very different statuto- Inc., In ry language Cruz of no help is here. provision interpreted Legislature provided DTPA which the D. “Rescind” mean doesn’t “rescis- a court may any party “restore sion”? suit real money property, person- or or al, which been viola- acquired Finally, the Court confirms its unwill- subchapter.” this tion of Tex. Bus. & Com. ingness allow the of the stat- language 17.50(b) added). (emphases § Rea- ute to control the outcome of soning that words “restore” when it concludes that “notice and restitu- root,” (2) “the same “restitution” share restitution,” tion or a tender of which are “[rjescission ‘common, merely the short- is prerequisites to the law remedy common composite remedy name’ hand for the rescission, “are not prerequisites to the restitution,” rescission and “rescis- cancellation-and-reseission one-way is sion not a street” but instead D, long as the affirmative “requires a mutual restoration and ac- (or the buyer relief to can be reduced counting,” the concluded in Cruz Court to) subject buyer’s reciprocal ob- the Legislature intended that an or- ligation restitution.” Ante at 511. In con- “restoring” property der DTPA words, having other decided that the Leg- from sumer must also deduct that award justi- islature’s use of the “rescind” word the value of benefits the consumer ignoring fies the statute’s refund-of-all- received. 825-26. provision, the Court then con- that, agree actually, do not our that Cruz controls cludes really in this in Cruz decision case. statute doesn’t mean “rescind” “rescis- “restoration,” Instead, just authorized and not to sion” all. it means “restitu- consumer, tion,” “to any party but to the or what the calls “the common Court 17.50(b)(3). § law element of suit.” mutual restitution.” Id. at Tex. Com.Code Bus. & contrast, By Surely, the statutes here dictate that’s what meant, view, “purchaser receive a so. In my ... full refund it could have said point gone seller.” at this from Court PROp.Code 5.070(b)(2), law, interpreting making a law to be- 5.072(e)(2). And, more believes is a importantly, proper cause it restitution (with only remedy, statute Cruz authorized restoration but rescission its inconven- prerequisites) of amounts in violation” ient notice and' tender “acquired so, doing statute. not. has demon- Bus. & Com.Code 17.50(b)(3). contrast, why By wrong the statute strated its conclusion to be- requires pay- gin a “full refund of here with.
II. Amity BRITAIN, Appellant Samantha Conclusion v. construction principles Our of Texas. STATE focus require Legisla- Court Legisla- ture’s words to determine No. PD-0175-13. this not we do because ture’s intent. We Appeals of Criminal of Texas. agree policy sometimes, vigorously dis- choices— 9,Oct. agree must take the “[w]e —but 27, Rehearing Denied Nov. word, its respect policy at its choices, revising a statute under resist interpreting it.” Christus guise Inc., Aetna, v.
Health Coast Gulf Even if we the Legislature could
were convinced purchasers to allow have intended payments” “a full refund of all
receive seller, “must adopt to the the Court interpretation statute that Congress to its text.... ‘If
most faithful something into different from
enacted law intended, it amend the
what it should ” to its intent.’ re statute to conform
Allen, quoting S.W.3d at 708 Harbison Bell, 180, 199, 129 S.Ct. 556 U.S. (2009) (Thomas, J., con- L.Ed.2d (quoting Lamie v. States
curring) United
Trustee, 540 U.S. 124 S.Ct. (2004)).
I decision re- agree the Court’s Nguyens’ award of
verse anguish damages, I
fees and mental but that Morton is entitled to mutual
disagree upon
restitution the rescission con-
tract for deed. Because the Nguyen’s are entitled to' said
“a full refund of all
seller,” respectfully part concur in part.
dissent