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Mosaic Baybrook One, L.P. v. Simien

Court of Appeals of Texas, First District

June 13, 2019

MOSAIC BAYBROOK ONE, L.P. AND MOSAIC BAYBROOK TWO, L.P., Appellants
v.
PAUL SIMIEN, Appellee

          On Appeal from the 133rd District Court Harris County, Texas Trial Court Case No. 2017-08379

          Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

          OPINION DISSENTING FROM DENIAL OF EN BANC RECONSIDERATION

          EVELYN V. KEYES JUSTICE

         Appellee Paul Simien is the representative plaintiff in a class action brought by apartment tenants against appellant apartment building owners, Mosaic Baybrook One, L.P. and Mosaic Baybrook Two, L.P. (collectively, Mosaic), seeking damages for Mosaic's collection of a surcharge on the tenants' water bills. By a per curiam memorandum opinion issued February 19, 2019, a panel of this Court denied, without explanation, Mosaic's petition for permission to appeal the controlling question of law in the trial court's summary judgment in favor of Simien-the proper construction of the applicable sections of the Water Code on which Mosaic's liability to the class depends. Mosaic filed a motion for en banc reconsideration of this Court's denial of permission to appeal. Like the panel, the en banc Court has denied reconsideration of Mosaic's petition for permissive appeal. The certification of the class is the subject of a simultaneously-filed interlocutory appeal under Texas Civil Practice and Remedies Code section 51.014(a)(3), which is pending separately in this Court. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(3), (d); Tex.R.App.P. 28.3 (permissive appeals). I would grant permission to appeal the controlling issue of Mosaic's liability to the class certified by the trial court to this Court, and I would hear that appeal together with the related interlocutory appeal of right concerning the issue of class certification.

         To be entitled to a permissive appeal from an interlocutory order that would not otherwise be appealable, the requesting party must establish that (1) "the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion" and (2) "an immediate appeal from the order may materially advance the ultimate termination of the litigation." Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d); see Tex. R. App. P. 28.3(e)(4); Tex.R.Civ.P. 168.

         Here, the petition for permissive appeal satisfies both requirements of Rule of Appellate Procedure 28.3(e)(4). The question of law certified to this Court by the trial court is the proper construction of the sections of the Water Code upon which Mosaic's liability to the class depends; and it makes no sense to hear the companion interlocutory appeal of class certification without determining whether the class is viable. Thus, granting the permissive appeal would clearly materially advance the ultimate resolution of the case, which denial of permission to appeal can only hinder and delay the ultimate termination of the litigation, with increased expense both to the litigants and to the courts, in violation of the very purpose of the rules, justifying en banc reconsideration because of the "extraordinary circumstances" of the case. See Tex. R. Civ. P. 1 ("The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law . . . with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable. . . .").

         "En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court's decisions or unless extraordinary circumstances require en banc consideration." Tex.R.App.P. 41.2(c). This case presents such extraordinary circumstances. Accordingly, I would grant en banc reconsideration, and I would withdraw the panel's February 19, 2019 per curiam opinion and grant Mosaic permission to appeal the trial court's summary judgment on liability together with the related appeal of class certification.

         Facts

         This case, like Phillips Petroleum Co. v. Yarbrough, 405 S.W.3d 70 (Tex. 2013), is a class action. Here, Simien sued Mosaic, entities that own apartment buildings, for violations of the Texas Water Code and the Texas Administrative Code (TAC). The Texas Legislature required the Public Utility Commission (PUC) to enact rules governing water billing. See Tex. Water Code Ann. § 13.5031(a). Simien alleged that, while he was living at Baybrook Village, an apartment building owned by Mosaic, he was routinely charged a monthly "Water/Sewer Base Fee" of $36.71. He further alleged that Mosaic used the fee as a profit center in direct contravention of the Water Code in that Mosaic was billed less than $20 per unit per month, resulting in an overcharge to Simien of $16.71 per month.

         Prior to a 2017 amendment of Water Code section 13.505 to remove a tenant's private cause of action and transfer billing disputes to the PUC, that section allowed a tenant to sue and recover from an owner three times the amount of any overcharge, a civil penalty equal to one month's rent, reasonable attorney's fees, and court costs. See Act of May 13, 2013, 83rd Leg., R.S., ch. 171, § 83, 2013 Tex. Gen. Laws 772, 809-10 (2013) (amended 2017) (current version at Tex. Water Code § 13.505). Simien brought suit on behalf of himself and all others similarly situated under Water Code section 13.505.

         After discovery, Simien moved for partial summary judgment on liability, seeking to have the trial court declare that Mosaic violated the Water Code and the TAC as a matter of law. Following a hearing, the trial court granted partial summary judgment on liability in Simien's favor on September 10, 2018, but held off entering the order until after class certification had been heard so that the interlocutory appeals could go up to this Court together. The trial court certified the class by order entered October 24, 2018. Mosaic sought interlocutory appeal of the class certification under section Civil Practice and Remedies Code section 51.014(a)(3), and that interlocutory appeal was docketed in this Court under cause number 01-18-01049-CV. The underlying case continued, however, in the trial court.

         The trial court rendered its Amended Order granting permission to appeal the partial summary judgment on liability under Civil Practice and Remedies Code section 51.014(d) on November 20, 2018. The Amended Order framed the controlling question of law for which permission to file an interlocutory appeal was granted as follows:

[W]hether it was a violation of Section 13.5031(3) of the Texas Water Code and Rule 24.124(a) of the PUC Rules (16 TEX. ADMIN.CODE § 24.121 et seq.), thereby establishing liability under Section 13.505 of the Texas Water Code, to charge the Plaintiff, Paul Simien, on a per-unit basis, certain charges from the retail public utility (Harris County Municipal Utility District No. 55), including a monthly fire protection service charge, a monthly emergency medical service charge, and a law enforcement service charge, which were combined together, along with a monthly service charge on which the Plaintiff does not assert a claim, and described as a "Water/Sewer Base Fee" in the monthly bills to the Plaintiff. . . .

         The trial court's Amended Order also explained why there was a substantial ground for disagreement regarding ...


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