Wall v. Parkway Chevrolet Inc.

The trial court could have reasonably concluded that the necessity of individualized determinations regarding alleged misrepresentations and failure to disclose, the application of the law to those facts, and questions related to damages reasonably foreclosed certification of the class. Accordingly, the trial court did not abuse its discretion in refusing to certify the class.

X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:In spring 2001, Houston television reporter Marvin Zindler presented a story about car buyers being charged for coupon books. Carl Wall sued Parkway Chevrolet in the summer of 2001, seeking actual and punitive damages for himself and similarly situated consumers. The petition alleged that Parkway deceptively included a “fee for ‘consumer services’” on the purchase invoice with no explanation other than that it was part of the price of the vehicle. Wall alleged that the “fee” was for a book of “coupons that are worthless and that cannot be used by Wall or the Class members,” that Parkway knew the coupons were worthless, and that, if Parkway had informed him and other class members that the book was worthless, they would not have purchased it. Instead, Wall alleged, he and the other class members relied on Parkway’s misrepresentations to their detriment. Wall alleged that this practice constituted both laundry-list violations under �17.46(b)(12) of the Deceptive Trade Practices Act Consumer Protection Act and unconscionable conduct under �17.45(5) of the DTPA. In his original petition, Wall defined the class of plaintiffs as “all customers who have purchased a vehicle from Parkway Chevrolet, Inc. (“Parkway”) and who were charged a fee for a discount coupon book, disguising the charge as “Consumer Services,” “Intelesys,” “NACC,” or other such non-descriptive or misleading terms (hereinafter collectively referred to as “Consumer Services”).” He sought actual and exemplary damages for himself and the class. In a third amended petition, the appellants, Wall and Thomas E. Swaney, who had joined the class action as a named plaintiff and joined dealer Mac Haik Ford as a defendant, alleged that both dealers were “engaged in a deceptive act and practice involving the charging of a fee in connection with the sale of automobiles which is deceptively included without explanation on the purchase invoice.” They alleged that, “in exchange for the fee of several hundred dollars, the consumer receives a ‘coupon book’ which purports to offer ‘free’ services at the dealer,” but it is not disclosed that the customers has paid hundreds of dollars for these purportedly free services. They alleged that, despite numerous complaints and investigations by television reporter Marvin Zindler and the Texas Attorney General’s office, the dealers continued to engage in this “misleading, deceptive, fraudulent, and apparently highly lucrative scheme to defraud the trusting consumers.” Wall and Swaney alleged that this practice constituted a number of “laundry list” violations of ��17.50(a)(1) and 17.46(b) of the DTPA, as well as unconscionable conduct under ��17.50(a)(3) and 17.45(5) of the DTPA. Wall and Swaney defined the plaintiff class as consisting of two subclasses. They defined subclass A(1) as “all Texas consumers who have purchased a vehicle from Parkway Chevrolet, Inc. (“Parkway”), on or after July 23, 1999 and were charged a fee under the designations such as ‘NACC,’ ‘Consumer Benefits & Services (ECBP),’ ‘NADW,’ ‘Intelesys,’ and/or other similar designations in connection with the purchase of the vehicle.” They defined subclass A(2) as “all Texas consumers who have purchased a vehicle from Mac Haik Ford on or after March 8, 2001 and were charged a fee under the designations such as ‘NACC,’ ‘Consumer Benefits & Services (ECBP),’ ‘NADW,’ ‘Intelesys,’ and/or other similar designations in connection with the purchase of the vehicle.” Excluded from both subclasses were those persons who had already received a full refund of the fee charged. The only differences between the subclasses were that one subclass included customers of Parkway Chevrolet and the other, customers of Mac Haik Ford, and that the alleged wrongdoing ran from different dates at the two dealerships. Wall and Swaney moved for class certification under Texas Rule of Civil Procedure 42. The trial court denied Wall’s and Swaney’s request for class certification, and this interlocutory appeal ensued. HOLDING:Affirmed. The trial court could have reasonably concluded that the necessity of individualized determinations regarding alleged misrepresentations and failure to disclose, the application of the law to those facts, and questions related to damages reasonably foreclosed certification of the class. According, the court holds that the trial court did not abuse its discretion in refusing to certify the class. OPINION:Evelyn V. Keyes, J.; Nuchia, Jennings and Keyes, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Trending Stories

 

Featured Product

Global Briefing

A weekly, curated selection of our international content from around the globe, across the business of law, in-house, regulatory, technology and more, with expert insights from our senior editors.

Learn More

More from ALM

 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Privacy Policy

About Us / Contact Us / Site Map / Advertise With Us/ Customer Service / Terms of Service/ FAQ / Privacy Policy

Publications

Law Topics

Rankings

More

Law.com

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.