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Health & Tennis Corporation of America v. Jackson6/5/1996
This appeal is from an order certifying a class pursuant to rule 42 of the Rules of Civil Procedure. Appellant raises seven points of error asserting that the trial court abused its discretion in certifying the class and urging that appellees' counsel must be disqualified. We affirm.
FACTS
Appellee Jackson alleges that the facts are as follows: Jackson told a salesperson for Bally's (predecessor to appellant Health & Tennis Corporation) that he wanted to work out at Bally's health club on a month-to-month basis and that he did not want to enter a contract. The salesperson told him that was "no problem" and accepted his payment of $75.00. She then, however, had him sign a contract, which Jackson apparently either did not read or did not recognize as a contract. Bally's later informed Jackson that he had entered a three-year contract and that, although he had paid .x75, he was only given credit for paying $25. Jackson alleges that he began to receive rude and harassing telephone calls from Bally's and then from Perimeter Credit, L.P., the company to which Bally's turned over his contract for collection. The following is a chronology of the subsequent legal actions:
February 14, 1995: Jackson sues Bally's and Perimeter Credit in County Court at Law No. 3. He alleges violations of the DTPA and the Credit Code, including allegations regarding oral misrepresentations and failure to credit his full $75 payment
March 22, 1995: Jackson settles with Perimeter for $3000. The settlement specifically excludes Jackson's claims against Bally's.
March 29, 1995: Jackson nonsuits Perimeter from the county court at law suit.
May 7, 1995: Jackson deposes Bally's corporate representative and discovers that Bally's routinely charges monthly dues of $6.00 to those customers who purchase on credit, but no monthly dues to those who pay cash.
May 8, 1995: Jackson amends the county court at law suit to delete allegations of violations of the Credit Code. He files suit against Bally's in district court, alleging violations of the DTPA and the Credit Code. The alleged violations do not include allegations regarding oral misrepresentations and failure to credit his full $75 payment, but are limited to the charging of an excessive time-price differential in the form of "monthly dues."
June 14, 1995: Jackson abandons his cause of action arising from Bally's oral misrepresentations and dismisses the county court at law suit with prejudice.
October 30, 1995: Jackson files for class certification in the district court suit. November 7, 1995: The district court holds a hearing on the certification motion. Although numerous exhibits (including deposition testimony) are admitted, only two witnesses testify live-Jackson and his attorney, Barry Snell.
November 8, 1995: Jackson files a Second Amended Original Petition adding a second named plaintiff Freddie Mack.
December 11, 1995: The trial court signs an order certifying the class under TELR. Civ. P. 42(b)(4) and creating two subclasses. The first sub-class (the Credit Code Class) includes those persons who have a claim only under the Credit Code. The second sub-class (the Credit Code/ DTPA Class) includes those persons who meet the criteria oC the Credit Code class, but who also signed a contract with Bally's within the DTPA statute of limitations. The court further requires that each class member's contract with Bally's show that the monthly dues plus the stated finance charges exceed the maximum time-price differential permitted under the Credit Code.
STANDARD AND SCOPE OF REVIEW
Certification of a class req
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