Charles O. "Chuck" Grigson, Gerald Hooks, and Leslie Hooks v. State ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00436-CV
Charles O. “Chuck” Grigson, Gerald Hooks, and Leslie Hooks, Appellants
v.
The State of Texas; The Texas Department of Insurance;
The Texas Commissioner of Insurance; Farmers Group, Inc.;
Farmers Underwriters Association; Fire Underwriters Association;
Farmers Insurance Exchange; Fire Insurance Exchange;
Texas Farmers Insurance Company; Mid-Century Insurance Company of Texas;
Mid-Century Insurance Company; Farmers Texas County Mutual Insurance Company;
Truck Insurance Exchange; and Truck Underwriters Association, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GV-02-002501, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
MEMORANDUM OPINION
The parties are familiar with this appeal’s factual and procedural background, which
we discuss only as necessary to our decision. See Tex. R. App. P. 47.1 (stating appellate court
opinions should be as brief as practicable in addressing issues necessary to final disposition), 47.4
(stating memorandum opinions should be no longer than necessary to advise parties of court’s
decision and basic reasons for it).
Appellees filed a motion to dismiss this appeal, arguing that the district court’s
July 6, 2015 Order of Preliminary Approval is not appealable. Appellants contend that the Order is
appealable as an order certifying a class, and appellant Grigson has filed an amended emergency
motion to stay the sending of class notice pending this appeal. See Tex. Civ. Prac. & Rem. Code
§ 51.014(a)(3) (authorizing appeal from interlocutory order certifying or refusing to certify class in
class-action suit under Texas Rule of Civil Procedure 42).1
However, the record reflects that the district court’s order is interlocutory and not
appealable because it did not certify a class or make any change to the “fundamental nature” of
the class. See Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355, 358 (Tex. 2001) (noting
Texas Legislature’s intent that section 51.014 be “strictly construed” and allow only appeals from
order that certifies or refuses to certify class); Pierce Mortuary Colls., Inc. v. Bjerke, 841 S.W.2d
878, 880-81 (Tex. App.—Dallas 1992, writ denied) (concluding that amended order increasing size
of existing certified class did not certify or refuse to certify class under section 51.014(a)(3) and thus
was not appealable); see also Phillips Petroleum Co. v. Yarbrough, 405 S.W.3d 70, 80 (Tex. 2013)
(holding that trial court’s orders allowing addition of new claim changed fundamental nature of class
and were appealable); De Los Santos v. Occidental Chem. Corp., 933 S.W.2d 493, 495 (Tex. 1996)
(holding that trial court’s second order certifying class, which went beyond merely increasing
number of class members by changing class from “opt out” to mandatory, was fundamental change
justifying appeal from second order). The challenged Order makes no mention of the class other
than acknowledging the class certification in 2003, the eventual appeal of the certification to the
Texas Supreme Court, and the affirmance of the certification on remand to this Court. See Farmers
Grp., Inc. v. Lubin, 222 S.W.3d 417, 419-420 (Tex. 2007); Lubin v. Farmers Grp., Inc., No. 03-03-
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We grant appellees’ Motion for Leave to File Reply in Further Support of Joint Motions
to Dismiss Appellants’ Appeals for Lack of Appellate Jurisdiction and appellant Grigson’s Motion
for Leave to File Sur-Reply in Opposition to Appellees’ Reply and Joint Motions to Dismiss
Appellants’ Appeals for Lack of Appellate Jurisdiction.
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00374-CV, 2009 Tex. App. LEXIS 8584, at *126-27 (Tex. App.—Austin Nov. 6, 2009, no pet.)
(mem. op.).
Appellees’ motion to dismiss this appeal and their response to the motion to stay
correctly note that the district court made no ruling certifying the class, as Grigson’s counsel
acknowledged at the hearing:
THE COURT: And I understood that from the briefing you gave me in advance of
this hearing that you were each trying to spin my prior comments on
the record to be a “oh, we need to recertify this class” from your
perspective and “no we don’t” from their perspective. I understood
that completely.
[GRIGSON’S COUNSEL]: And I think I do, too, Your Honor, that this particular
settlement that you’re approving will not have a separate certification
or refusal to certify.
Further, the court was not persuaded by the Hooks’ counsel’s argument that the death or divorce of
class members meant that the class had “modified itself” and “drastically changed.” The court noted
that in such cases, compensation would go to the decedents’ estates or the marital estates, and
“[w]hether they died or divorced or remarried or whatever, it’s still the same group of people.”
We conclude that the Order of Preliminary Approval is not an order certifying a
class. Without a final judgment or an otherwise appealable order, we may not exercise appellate
jurisdiction. See Tex. Civ. Prac. & Rem. Code § 51.014; Lehmann v. Har-Con Corp., 39 S.W.3d
191, 195 (Tex. 2001). Accordingly, we grant appellees’ motion and dismiss this appeal for want of
jurisdiction. See Tex. R. App. P. 42.3(a). Appellant Grigson’s amended emergency motion to stay
the sending of class notice is denied.
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Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Pemberton and Field
Dismissed on Appellees’ Motion
Filed: August 24, 2015
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