The full case caption appears at the
end of this opinion. OPINION This is an accelerated appeal in which Entergy Gulf States, Inc., et al. (“Entergy”) appeals an order granting class certification to Billy Joe Butler, et al. (“Butler”). Entergy contends that class certification is improper because individual issues will predominate over common issues, certification of the class is not the superior method for resolving this controversy, the named plaintiffs’ claims are not typical, and the named plaintiffs are not adequate representatives of the class. Additionally, in its motion for rehearing, Entergy also claims that the class is improper as certified because the trial court has created a fail-safe class. We overrule these contentions and affirm the trial court’s order granting class certification. In January 1997, many customers of Entergy in the Southeast Texas region suffered substantial power outages. These outages were triggered by the occurrence of a major ice storm moving through the area. The class proponents claim, however, that due to Entergy’s failure to properly maintain the system before the storm, the power outages lasted an unreasonably lengthy period of time, and this interruption caused them to sustain various damages. These utility customers, who were without power for varying periods of time, sought class certification. After hearing the certification evidence, the trial court signed an order granting class certification to “all Texas customers of Defendant Entergy whose electrical service was interrupted between January 11, 1997 through January 22, 1997, and who have sustained damages as a result of said disruption of service.” Findings of fact and conclusions of law were filed along with this order. Entergy contends, in this interlocutory appeal, that the trial court erred in granting this class certification, that the certification constitutes an abuse of discretion, and that the class must be decertified. A trial court has broad discretion to determine whether to grant or deny class certification, and once this decision is made, the appellate court should not overturn the decision to substitute its judgment for that of the trial court. American Express Travel Related Servs. Co. v. Walton, 883 S.W.2d 703, 707 (Tex. App.-Dallas 1994, no writ). In any review of a class certification, the reviewing court should reverse the certification order only if the record shows a clear abuse of discretion. St. Louis Southwestern Ry. Co. v. Voluntary Purchasing Groups, Inc., 929 S.W.2d 25, 29 (Tex. App.-Texarkana 1996, no writ), citing Walton, 883 S.W.2d at 711. A trial court abuses its discretion when the order is arbitrary and unreasonable. See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987). In order to obtain certification, a party must satisfy the four requirements of Rule 42(a), as well as one of the requirements of Rule 42(b). See Tex. R. Civ. P. 42(a), (b). However, before we review whether the trial court abused its discretion by making this determination, we will first consider the appropriateness of the certified class definition. Entergy claims that when the trial court defined this class, it abused its discretion by creating a fail-safe class. See Intratex Gas Co. v. Beeson, 43 Tex. Sup. Ct. J. 489, 2000 WL 266700 (March 9, 2000). This contention, though, is made for the first time in Entergy’s motion for rehearing, and a complaint which is initially brought to the court’s attention in such a motion is untimely. See Thornton v. D.F.W. Christian Television, Inc., 925 S.W.2d 17, 21 (Tex. App.-Dallas 1995), rev’d on other grounds, 933 S.W.2d 488 (Tex. 1996). Therefore, we are not required to address this claim. However, since the Texas Supreme Court has recently spoken on this specific issue, we will nonetheless address Entergy’s additional complaint. “For a class to be sufficiently defined, it must be precise; the class members must be presently ascertainable by reference to objective criteria.” Beeson, 2000 WL 266700 at *4. In Beeson, the Texas Supreme Court held that a class definition which rests on the resolution of the ultimate liability question fails to meet this criteria because it is not objective or precise and the members cannot be ascertained until after the liability issue has been determined. Id. at *5-6. They determined that such a class, appropriately named a fail-safe class, is unacceptable because it inevitably creates one-sided results. Id. at *6. If the defendant is found liable, class membership is then ascertainable and the litigation comes to an end. A determination that the defendant is not liable, however, obviates the class, thereby precluding the proposed class members from being bound by the judgment. Id. at *6. In the case at hand, however, this is not the situation presented by the certified class definition. The trial court defined the class as “all Texas customers of Defendant Entergy whose electrical service was interrupted between January 11, 1997 through January 22, 1997, and who have sustained damages as a result of said disruption of service.” This class is precise and ascertainable by reference to objective criteria. It can easily be determined who had their service interrupted in this time period and who claims to have suffered damages as a result of this interruption. In fact, every plaintiff who asserts any type of civil claim must be able to assert in their original pleadings the relief they are seeking as a result of the defendant’s alleged wrongdoing. See Tex. R. Civ. P. 47. While we can see how a fail-safe class, as defined in Beeson, could potentially disallow class definitions that rest on the determination of legal conclusions besides liability, we believe that the class definition in this case is clearly not such a class. There is no ultimate legal conclusion which must be made in order to ascertain the class, and a finding of liability or nonliability on the part of Entergy for the said interruption will bind all class members and prevent them from bringing another suit. Fail-safe classes are not allowed because they present a means of risk-free litigation for the potential members of the class. Beeson, 2000 WL 266700 at *6. The present certified class definition, however, does not present such a situation. This point of error is overruled.
[FOOTNOTE 1] Since the trial court’s certified class definition is proper, this Court must now determine whether the trial court abused its discretion by finding that all of the requirements for class certification had been met. In this case, the trial court found that all requirements for class certification had been met under Rule 42(a) and Rule 42(b)(4). Rule 42(a) requires class proponents to prove that (1) the class is so numerous that joinder is impracticable, (2) the class has common questions of law or fact, (3) the representatives’ claims are typical of the class claims, and (4) the representatives will fairly and adequately protect the interests of the class. Tex. R. Civ. P. 42(a). In other words, class proponents must prove numerosity, commonality, typicality, and adequate representation. See Forsyth v. Lake LBJ Inv. Corp., 903 S.W.2d 146, 150 (Tex. App.-Austin 1995, writ dism’d w.o.j.). Rule 42(b)(4) requires that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Tex. R. Civ. P. 42(b)(4). Entergy’s first contention is that the common issues do not predominate over the individual issues, as required under Rule 42(b)(4), and that as a result, class certification was improper.
[FOOTNOTE 2] The test for evaluating predominance is “not whether the common issues outnumber the individual issues, but instead whether common or individual issues will be the object of most of the efforts of the litigants and the court.” Glassell v. Ellis, 956 S.W.2d 676, 686 (Tex. App.-Texarkana 1997, pet. dism’d w.o.j.), quoting Life Ins. Co. of Southwest v. Brister, 722 S.W.2d 764, 772 (Tex. App.-Fort Worth 1986, no writ).
[FOOTNOTE 3] Entergy claims that the numerous individual issues surrounding causation and damages will assuredly predominate every asserted cause of action.
[FOOTNOTE 4] The law is clear, however, that certification will not be prevented merely because damages must be determined separately for each member of the class. Central Power & Light Co. v. City of San Juan, 962 S.W.2d 602, 610 (Tex. App.-Corpus Christi 1998, pet. dism’d w.o.j.), citing Angeles/Quinoco Sec. Corp. v. Collison, 841 S.W.2d 511, 516 (Tex. App.-Houston [14th Dist.] 1992, no writ). Entergy contends that this law does not dispose of the issue at hand because every member of this class would not only have to separately prove their damages, they would also have to individually prove that Entergy caused that damage. Entergy argues that this would result in a series of mini-trials, rather than one collective trial, and as such is not a case that should be certified as a class action. See LaFleur v. Entergy, Inc., 737 So.2d 761 (La. Ct. App. 1998); Brown v. New Orleans Pub. Serv., Inc., 506 So.2d 621 (La. Ct. App. 1987, writ denied). Entergy believes that since both LaFleur and Brown specifically deal with class certifications against utility companies after the occurrence of a severe weather event, those cases provide guiding principles that should be followed by this Court. It is true that the LaFleur case arose out of the same ice storm and that the surrounding facts, participating parties, and alleged causes of actions are similar to the case at hand. However, in the LaFleur case, the lower court denied the class certification. LaFleur, 737 So.2d 761. Therefore, the reviewing court merely had to find that the lower court did not abuse its discretion by denying certification. This is very different than finding that the lower court did abuse its discretion by certifying the class. Under the abuse of discretion standard, the LaFleur court may have affirmed a class certification as well. See Ford Motor Co. v. Sheldon, 965 S.W.2d 65 (Tex. App.-Austin 1998, pet. granted). In the Brown case, on the other hand, the reviewing court did overrule a trial court’s decision to certify a class of individuals who went without power for a number of hours. See Brown, 506 So.2d 621. That court decided that the lower court abused its discretion by certifying the class because not only were the class members’ damages different, but the causative link between the members’ injuries and the defendant’s conduct varied from member to member. Id. at 623. The Brown court concluded that “if it [this suit] were to proceed as a class action, [it] would quickly disintegrate into an unmanageable multitude of small suits with individual issues and evidence, . . . .” Id. at 624. The Austin Court of Appeals has also recently dealt with this issue and takes a different approach from that taken by the Louisiana court in the Brown case. In Sheldon, 965 S.W.2d 65, the Austin court held that even though individual trials may be necessary on the causation and damages issues, the lower court can certify a class to first determine the common issues that exist among the members of the class. Id. at 69. It reasoned that allowing bifurcation of individual and common issues is in the best interest of both parties and that it is clearly the best use of the judicial system’s time and resources. Id. We agree. It is true that in Sheldon the trial court acknowledged the fact that a phase of individual trials might be necessary after the common issues were decided. Id. at 68-69. However, the certification order itself did not explicitly mention bifurcating the trial between a class phase and an individual phase. Id. at 74 n.2. The reviewing court simply reasoned that since the trial court only made findings of common issues through part of the causation element, this indicated its recognition that there would need to be individual findings on causation and damages. Id. The reviewing court assumed that all issues not designated as common questions would be tried individually. Id. In the case at hand, Entergy points out that Butler’s claims of system-wide failure do nothing to address the specific cause of each individual’s injuries and that the trial court failed to address in its list of common issues how these alleged breaches affected causation. However, it is important to note that the trial court did recognize that the class might have to be modified and that members of the class might have to be divided into various subclasses. We believe that since the court recognized that severance of the class might become necessary, and since certifying a class to try these common issues achieves economies of time, effort, and expense, the lower court made the correct decision by certifying this class. Clearly, the trial court anticipated allowing the class to try the common issues first, and then anticipated modifying the class when trying the individual issues, if the case reaches that point. This type of bifurcation is allowed, and it would be beneficial to all those involved in this suit. Id. at 69. Additionally, the law clearly states that even in cases where it is not conclusively established that common issues will predominate, the most efficient approach is for the trial court to certify the class, and if necessary after the case is developed, modify or decertify the class. Dresser Indus., Inc. v. Snell, 847 S.W.2d 367, 375 (Tex. App.-El Paso 1993, no writ), citing Brister, 722 S.W.2d at 775; see also Microsoft Corp. v. Manning, 914 S.W.2d 602, 607 (Tex. App.-Texarkana 1995, writ dism’d). A certification order is always subject to later modification if circumstances so require. Manning, 914 S.W.2d at 607. Another reason Entergy believes this class should be decertified is the tariff agreement between Entergy and the Public Utilities Commission. Entergy claims that this agreement precludes one or more of the class members’ causes of action as a matter of law. However, “[t]he probability of the plaintiffs’ success on the merits of their claims is an improper standard by which to measure class certification.” Manning, 914 S.W.2d at 607, citing Clements v. League of United Latin Am. Citizens (LULAC), 800 S.W.2d 948, 951 (Tex. App.-Corpus Christi 1990, no writ). Decertification of the class is not the appropriate procedural tool. See Intratex Gas Co. v. Beeson, 960 S.W.2d 389, 394 (Tex. App.-Houston [1st Dist.] 1998), rev’d on other grounds, 43 Tex. Sup. Ct. J. 489, 2000 WL 266700 (March 9, 2000), citing Employers Cas. Co. v. Texas Ass’n of Sch. Bds. Workers’ Compensation Self-Insurance Fund, 886 S.W.2d 470, 477 (Tex. App.-Austin 1994, writ dism’d w.o.j.). The Texas Supreme Court recently concluded that this type of tariff can limit damages to necessary repairs and physical damages caused by the utility’s negligence, and that it is not unreasonable on its face. Houston Lighting & Power Co. v. Auchan USA, Inc., 995 S.W.2d 668 (Tex. 1999). In Auchan, the supreme court affirmed the granting of a summary judgment for the utility on claims for economic damages beyond those set forth in the tariff. Id. Entergy has moved for a partial summary judgment on this basis, and this is the procedural tool that should be used to deal with this issue. Finally, Entergy alleges that their defenses make the alleged causes of action unsuitable for class certification. It claims that since its alleged defenses are so individualized, they will have to be considered on a member-by-member basis and this will cause the common issues to be predominated by these defenses. However, the presence of an arguable defense peculiar only to various members will not destroy the entire class. Central Power & Light Co., 962 S.W.2d at 610, citing Angeles/Quinoco Sec. Corp., 841 S.W.2d at 516. This point of error is overruled. Entergy’s next contention is that certifying a class is not the superior method for resolving this controversy. According to Rule 42(b)(4), class proponents must also prove that certifying the class is the superior method for adjudicating the case. Tex. R. Civ. P. 42(b)(4). Factors relevant to assessing the superiority of a class action include: (1) the interests of members of the class in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of the class; (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (4) the difficulties likely to be encountered in the management of a class action. Id. In making this determination, the trial court should consider what other procedures exist for disposing of the dispute and compare those to the judicial resources and potential prejudice to absent class members involved in pursuing the class action. Rainbow Group, Ltd. v. Johnson, 990 S.W.2d 351, 360 (Tex. App.-Austin 1999, pet. dism’d w.o.j.), citing Brister, 722 S.W.2d at 772. In the case at hand, the trial court stated that certifying the class was the superior method for adjudicating this controversy for the following reasons: Here the Class members are so numerous that their joinder or intervention would burden not only this Court, but also other courts in counties served by the Defendants, especially in that the number of individual actions, even assuming consolidations would be appropriate, would be quite large. Given the commonality of issues in this cause, and in that this Court has already achieved a substantial degree of familiarity with the relevant issues, having presided over a three-day hearing and having reviewed the copious briefs of the parties, the potential filing of tens of thousands of individual lawsuits would constitute an egregious waste of not only judicial resources, but also resources of the various litigants. Additionally, class action is superior since it would clearly be economically unreasonable for Class members to individually adjudicate separate claims, particularly where certain critical issues are factual, requiring substantial discovery, expert testimony and trial time. In fact, given the potential costs of this litigation, absent certification of the Class defined herein, most, if not all, individual Class members and a substantial percentage of commercial Class members would essentially be frozen out from pursuing their claims due to the extreme disparity between the individual amounts in controversy versus the probable costs of litigation. We agree with the reasoning set forth in the court’s certification order and conclude that, for the above stated reasons, class certification is the superior method of adjudicating this controversy. Entergy argues that this is not a superior method because a single jury will not have the physical capacity to sit through a trial that is bound to be overcome by many individual issues. They argue that a single jury must decide all liability and damages issues because “piecemeal” trials should be avoided. See Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30 (Tex. 1994); Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648 (1958). However, as previously stated, the Sheldon case held that Rule 42(b) creates an exception to this general idea that bifurcation should be avoided. Sheldon, 965 S.W.2d at 68. Further, the Sheldon case held that “[t]he efficiency interests the Iley court cited for unitary trials actually favor the bifurcated trial of the common and individual issues in this case.” Id. at 69. Since a bifurcation of the individual issues will take place, the idea that one jury would be unable or unwilling to decide all liability and damages issues will not come into play. Additionally, Entergy argues that this is not the superior method for adjudicating this claim because a vast majority of the Jefferson County residents suffered power outages or were affected by power outages during this storm. Entergy therefore claims that the trial court erred in denying its motion to transfer venue as part of the court’s certification order, and that this decision is reviewable by interlocutory appeal because it has a direct effect on the superiority element of Rule 42(b)(4). See Tex. R. App. P. 29.6(a)(2). Generally, a trial court’s decision not to transfer venue is not subject to an interlocutory appeal. Tex. R. Civ. P. 87(6). Further, venue has never been held to have a direct effect on a certification order, and we do not believe that it has a direct effect on the order in this case. Whether this action proceeds as a class action or as individual causes of action, Entergy’s alleged problems with venue would still exist. This problem is not interfering with or impairing the effectiveness of the relief sought or the relief that may be granted on appeal. This point of error is overruled. Next, Entergy contends that the class should be decertified because the class representatives’ claims are not typical. Under Rule 42(a), class proponents must prove numerosity, commonality, typicality, and adequate representation in order to be certified as a class. See Forsyth, 903 S.W.2d at 150. Entergy claims that the class members failed to prove typicality for the following reasons: the class representatives’ claims are contradictory, especially with regard to the priority of restoration; the claims of the class representatives do not arise from the same legal theory as those that might arise from other class members; and many defenses are applicable to only certain class members. However, the court stated in its certification order that [T]he claims of the Representative Plaintiffs, as well as the defenses available to the Defendants, are virtually identical and share substantially identical factual and legal foundations with the claims and/or defenses of the Class members. Accordingly, the “typicality” requirement of Rule 42(a)(3) is satisfied. We agree with the trial court. The United States Supreme Court has defined typicality as mandating that the representatives “possess the same interest and suffer the same injury.” East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453, 462 (1977). However, the claims do not have to be identical. Employers Cas. Co., 886 S.W.2d at 475. It is not necessary that the named representatives suffer precisely the same injury as the other class members. Snell, 847 S.W.2d at 372. There simply must be a nexus between the injuries suffered by the representatives and the injuries suffered by the other members of the class. Id. To be typical, the named claims must arise from the same event or course of conduct giving rise to the other class members’ claims. Manning, 914 S.W.2d at 613. The claims or defenses do not have to be identical or perfectly coextensive, only substantially similar. Snell, 847 S.W.2d at 372. In other words, the class representatives’ claims must arise out of the same event or course of conduct as the other class members’ claims. In this case, the class representatives can show that this occurred. The nexus between the representatives’ claims and the other members’ claims is Entergy’s alleged failure to properly prepare and maintain the utility system, which resulted in Entergy’s inability to respond to the unforeseen weather conditions in a timely and adequate manner. This claim meets the typicality requirement, and so does the crux of Entergy’s defenses. This point of error is overruled. Finally, Entergy argues that this class must be decertified because the named plaintiffs are not adequate representatives of the class. According to Rule 42(a), the class representatives must meet this requirement. Tex. R. Civ. P. 42(a). Adequate representation requires both an absence of antagonism between the class representatives and the class members, and an assurance the representative parties will vigorously prosecute the class claims and defenses. E & V Slack, Inc. v. Shell Oil Co., 969 S.W.2d 565, 568 (Tex. App.-Austin 1998, no pet.). Only a conflict that affects the very subject matter of the litigation will defeat a party’s representative status. Manning, 914 S.W.2d at 614. Entergy argues that the class representatives do not meet this test because their viewpoints on the priority of restoration are adverse to one another, and it claims that deciding who should have been given priority goes to the heart of the representatives’ primary complaints about Entergy’s failure to timely restore power. However, the representatives’ viewpoints on priority do not truly affect their primary complaint. The class representatives are claiming that Entergy was ill-prepared and that this conduct before the storm caused the unreasonably long power failure to occur. In the common issues that were certified, priority would never come into play, because the focus would be on Entergy’s conduct and whether it breached a duty that it owed to the class members. On this point, there is no antagonism between the class representatives and the class members; therefore, the representatives can fairly and adequately protect the interests of the class members. This point of error is overruled. The order certifying the class is affirmed. DONALD R. ROSS, JUSTICE CONCURRING OPINION It is with reluctance and reservations that I concur in this opinion. My reluctance and reservations in certifying this large number of consumers as a class in this cause of action is because these specific damages for those within this class certification may not have issues of common questions of law and fact on the matter of causation. I do not believe that a fair trial can result if the general causation of not being prepared for the ice storm is treated as the specific causation of all damages incurred by all of the class even though no connection is shown between the specific cause and the damages to some of the litigants. For example, if it is shown that a fallen limb was the cause of the outage by consumers in one geographical location, any negligence contributed to that fallen limb should not be considered a causation of other geographical areas that were totally unaffected by the damage to the power lines by that fallen limb. For example, a misrepresentation as to when the power would be restored that was relied on by one customer to his detriment should not have any bearing on the causation of damages to customers to whom this representation was not made. If the facts in this case dealt with one common source as the causation of damages, class certification would be in order, but in viewing the entire distribution system of the utility company, different factors are alleged to have caused the power outages, and some of these factors may be determined to be related to fault by the defendant and some may not; some of these outages may have been the causation of some damages to some of the litigants and to others it may be totally unrelated. I concur in this opinion only because the trial judge at any time may make a determination to decertify the class or may find some way to group members of the class so that the proper issues relating to the parties can be severed out and tried separately. I respectfully concur. BEN Z. GRANT, JUSTICE Date Argued: February 8, 2000 :::FOOTNOTES:::
FN1 In its motion for rehearing, Entergy also claims that the members of the certified class have altered the trial court’s certified class definition through their argument to this Court, and that this Court has approved this altered definition. Neither this Court nor the members of the class altered the trial court’s given definition; nor does either have the power or authority to do so. See Beeson, 2000 WL 266700 at *6-8. We approve the certified class definition that was stated by the trial court.
FN2 The trial court, in its order granting class certification with findings of fact and conclusions of law, found the common issues to include, but not be limited to, the following: (i) whether Entergy and the remaining Defendants were negligent in failing to properly maintain the distribution system to ensure continued receipt of electrical services; (ii) whether Entergy and the remaining Defendants misrepresented their ability and intentions to maintain service-related manpower, materials and equipment at levels necessary to ensure continuation of electrical service and/or in order to limit interruption of service to a reasonable basis; (iii)whether Entergy and the remaining Defendants acted willfully, recklessly or with conscious indifference to the rights of the customers of Entergy in misrepresenting material facts regarding their intention and/or ability to maintain the service-related manpower, equipment and materials as detailed hereinabove, and/or their ability to timely reinstate electrical power in the event of a weather-related power outage; (iv) whether Entergy and the remaining Defendants acted willfully, recklessly or with conscious indifference by failing to take appropriate preventive maintenance actions to prevent and/or limit weather-related power outages including, but not limited to, whether Energy [sic] completed appropriate vegetation-related preventive maintenance to its distribution and/or transmission system; (v) whether Entergy and/or the remaining Defendants violated the Deceptive Trade Practices Act; (vi) whether Entergy and/or the remaining Defendants violated certain express and implied warranties made either directly to the Representative Plaintiffs and Class members or for the benefit of the Representative Plaintiffs and Class members to third parties, including the PUC and certain governmental entities; (vii)whether Entergy and/or the remaining Defendants breached certain contractual obligations related to continuation and/or reinstatement of electrical service, which contractual obligations were owed by Entergy either directly to the Representative Plaintiffs and the Class members or by Entergy to certain third-party entities, including the PUC and various governmental entities for the benefit of the Representative Plaintiffs and Class members. (viii)whether wrongful acts and/or omissions on the part of Entergy and/or the remaining Defendants constitute fraud, constructive fraud, negligent misrepresentation, breach of contract, negligence, gross negligence, conspiracy and/or other violations of Texas common law; (ix) whether the Defendants violated their service obligations related to PURA, including their obligations to provide “continuous and adequate” electrical service, whether the Class members were damaged as a result of said violations and whether the Class members may pursue a claim for recovery of said damages. (x) whether the Representative Plaintiffs and Class members are entitled to prejudgment interest on their damages, including contract claimed damages under Texas law; (xi) whether the Representative Plaintiffs and Class members are entitled to punitive damages under Texas law; (xii)whether the Representative Plaintiffs and Class members are entitled to recover their reasonable and necessary attorney’s fees, litigation expenses and court costs in prosecuting this action under Texas law; (xiii)the determination of the measure and/or methodology for quantifying the damages resulting from the wrongful acts and omissions on the part of Entergy and the remaining Defendants; (xiv)whether the duty of Entergy and the remaining Defendants to provide electrical energy to the customers of Entergy, including the Representative Plaintiffs and Class, is governed by tariffs approved by regulatory agencies, whether said tariffs set standards for “quality of service”, and whether said tariffs preclude all or a portion of the claims of the Representatives [sic] Plaintiffs and the Class; and (xv) Other additional common issues of law and fact.
FN3 Entergy claims that the test for whether common issues predominate also includes determining if a judgment in favor of the class members settles the entire controversy, and if all that remains is for the other class members to file proof of their claims. See Microsoft Corp. v. Manning, 914 S.W.2d 602, 611 (Tex. App.-Texarkana 1995, writ dism’d); Life Ins. Co. of Southwest v. Brister, 722 S.W.2d 764, 772 (Tex. App.-Fort Worth 1986, no writ). While this is true in certain cases, this additional test is not applied in all cases, and we do not think that it is an appropriate test to apply in this case. See Glassell v. Ellis, 956 S.W.2d 676, 686 (Tex. App.-Texarkana 1997, pet. dism’d w.o.j.).
FN4 Entergy claims that the negligence, gross negligence, fraud, negligent misrepresentation, violations of the Deceptive Trade Practices Act, breach of warranty, breach of contract, and violations of the Texas Public Utility Regulatory Act claims will all be predominated by the individualized issues of causation and damages.
Entergy Gulf States Inc., et al. v. Butler, et al. IN THE COURT OF APPEALSSIXTH APPELLATE DISTRICT OF TEXASAT TEXARKANA No. 06-99-00082-CV May 4, 2000 ENTERGY GULF STATES, INC., ET AL., Appellants V. BILLY JOE BUTLER, ET AL., Appellees On Appeal from the 172nd Judicial District Court Jefferson County, Texas Trial Court No. E-156,275 Cornelius, C.J., Grant and Ross, JJ. The opinion of the court was delivered by: Justice Ross Concurring Opinion by Justice Grant
