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Entergy Gulf States5/4/2000
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 first motion for rehearing, Entergy also claimed that the class is improper as certified because the trial court had created a fail-safe class.
Due to two recent Texas Supreme Court opinions addressing class certification, both of which were released after our substituted opinion in this case, we are required to withdraw our previous opinion. See Southwestern Ref. Co. v. Bernal, No. 98-0154, 2000 WL 566745 (Tex. May 11, 2000); Ford Motor Co. v. Sheldon, No. 98-0539, 2000 WL 566766 (Tex. May 11, 2000). In light of Bernal and Sheldon, we must sustain Entergy's contention that individual issues will predominate over common issues, and we must reverse 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.
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). 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) further 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). Since the predominance requirement under Rule 42(b)(4) is one of the most stringent prerequisites to class certification, we will consider it at the outset. See Bernal, 2000 WL 566745, at *7.
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