IN THE SUPREME COURT OF TEXAS
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9552;═══
No. 07-0028
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Best Buy =
Co., and Best Buy Stores, L.P., =
Petitioners,
v.
Velma V. Barrera,=20
Individually and on Behalf of Others Similarly Situated, =
Respondent
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552;═
On Petition for Review from =
the
Court of Appeals for the Thirteenth =
District of=20
Texas
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PER =
CURIAM
=20
Consumers brought this class-action suit for =93money had and =
received=94 to=20
recover a restocking fee that was deducted from refunds made on certain =
returned=20
merchandise. The trial court certified a =
statewide=20
class, and the court of appeals affirmed. 214 S.W.3d =
66,=20
71. We conclude that individualized inquiry will predominate over =
common=20
issues of proof, making the claim inappropriate for class certification. =
Accordingly, we decertify the class and remand the case=20
to the trial court for proceedings consistent with this opinion.
=20
On January 23, 2003, Velma Barrera purchased a radar detector =
from Best=20
Buy for $199.99 plus tax. Barrera was given a receipt for the purchase =
which=20
contained a statement notifying her that =93[a] 15% restocking fee will =
be charged=20
on returns or exchanges of any opened: notebook computer, camcorder, =
digital=20
camera or radar detector, unless defective.=94 The same notice was =
posted in the=20
store. Two days after her purchase, Barrera returned the detector. Best =
Buy=20
accepted the return and issued Barrera a receipt, which she signed. The =
return=20
receipt reflected the restocking charge and bore the same restocking-fee =
notice=20
that appeared on her original purchase receipt. The receipt also stated =
that=20
Barrera had =93read and agreed to all return and refund policies printed =
on the=20
back of this receipt and posted in the store,=94 although Barrera denied =
reading=20
the receipt. Best Buy subsequently refunded Barrera the purchase price =
less a=20
$30 restocking fee.
=20
Barrera brought this class-action suit against Best Buy Co., Inc. =
and=20
Best Buy Stores, L.P. (collectively =93Best Buy=94) alleging a cause of =
action for=20
=93money had and received/unjust enrichment=94 and seeking return of the =
restocking=20
fee. See id. After a hearing, the trial court certified the =
following=20
class: =93All Texas residents who were charged a =
15%=20
Restocking Fee when they returned or exchanged an opened notebook =
computer,=20
camcorder, digital camera or radar detector.=94 The court of appeals =
affirmed the=20
trial court=92s certification order. Id. Barrera here disavows an=20
unjust-enrichment theory of recovery and relies solely upon her claim =
for =93money=20
had and received=94 to support class certification. Best Buy contends =
resolution=20
of an equitable claim for =93money had and received=94 will inevitably =
turn on=20
individual issues that will predominate at trial, and therefore, under =
Texas=20
Rule of Civil Procedure 42(b)(3), class =
certification=20
is inappropriate. Barrera responds that common issues will predominate =
because=20
the 15% restocking fee is a uniform, automatic, mandatory fee that was =
charged=20
in the exact same way to each member of the class, regardless of his or =
her=20
individual circumstances. According to Barrera, class certification is=20
appropriate because the only issue to be decided is whether the 15% =
restocking=20
fee =93in equity and good conscience=94 belongs to the class members, =
and Best Buy=92s=20
liability will turn exclusively on the answer to that question. =
Following our=20
reasoning in Stonebridge Life Insurance Co. v. Pitts, ___ S.W.3d =
___=20
(Tex. 2007),=20
we agree with Best Buy.
=20
A claim for =93money had and received=94 is equitable in nature. =
Stonebridge, ___ S.W.3d at ___ n.1. In =
defending=20
against such a claim, a defendant may present any facts and raise any =
defenses=20
that would deny the claimant=92s right or show that the claimant should =
not=20
recover. Id. at=20
___. =93Equitable defenses raise important substantive issues =
that may have=20
a significant effect on class-action litigation.=94 Id. at =
___; see=20
BMG Direct Mktg., 178 S.W.3d at 777. In order to determine which =
individuals=20
should recover the restocking fee, then, Best Buy is entitled to present =
=93facts=20
or defenses that tend to show the [restocking fee] =91in equity and good =
conscience=92 belong[s] to the company under the particular =
circumstances of each=20
case.=94 See Stonebridge, ___ =
S.W.3d at=20
___.
=20
In Stonebridge, which also involved certification of a=20
=93money-had-and-received=94 class, we examined the evidence that would =
be relevant=20
to determining =93equity and good conscience=94 in the context of a =
uniform,=20
allegedly misleading, telemarketing scheme. Id. at ___. Factors relevant to that assessment, we =
said,=20
included individual class members=92 knowledge that they were being =
charged, their=20
desire for the product irrespective of how the charge was made, and =
whether=20
individual class members knowingly consented to the charge. Id. at=20
___. We held that the defendant was entitled to inquire into =
individual=20
class members=92 knowledge and understanding about the disputed charge =
in order to=20
demonstrate in whose favor the equities weighed. Id. at ___. Because the class representatives failed =
to prove at=20
the outset that individual issues could be considered in a fair, =
manageable, and=20
time-efficient manner on a class-wide basis, we held that the =
predominance=20
requirement had not been met. Id. at=20
___.
=20
Like the defendant in Stonebridge, Best Buy seeks an=20
individualized inquiry into each class member=92s actual knowledge =
regarding the=20
restocking fee. Specifically, Best Buy claims the notice of the =
restocking=20
charge that appeared on customer receipts and the posting of signs =
announcing=20
the restocking policy demonstrate that at least some class members were =
aware of=20
the restocking policy and voluntarily agreed to it. Best Buy also =
asserts that,=20
inevitably, some customers purchase merchandise with the intention of =
returning=20
it after use, presenting an equitable =93unclean hands=94 defense with =
respect to=20
some class members. As in Stonebridge, equitable defenses like =
these=20
demonstrate that =93the vast majority of the litigation could be spent =
trying to=20
determine which individuals should recover their [restocking fees] under =
the=20
equities presented and which should not.=94 See id. at ___.
=20
Barrera asserts that Best Buy waived these individualized =
defenses by=20
failing to affirmatively plead them. But even if Best Buy failed to =
adequately=20
plead actual knowledge or unclean hands as =
Barrera=20
contends and Best Buy disputes, such issues in a claim for =93money had =
and=20
received=94 are not matters of avoidance but relate to the equities =
necessary to=20
determine liability in the first instance. To recover, the class members =
must=20
demonstrate that the restocking fee =93in equity, justice and law=94 =
belongs to=20
them. Staats v. Miller, 243 S.W.2d 686, 687 (Tex. =
1951). And=20
Best Buy =93may present any facts and raise any defenses that would deny =
the=20
claimant=92s right or show that in equity and good conscience the =
claimant should=20
not recover.=94 Stonebridge, ___ S.W.3d at =
___.=20
Because =93equity and good conscience=94 govern resolution of the class =
claims, the=20
individualized inquiry Best Buy seeks relates directly to Barrera=92s=20
case-in-chief and does not present an independent affirmative defense as =
this=20
Court has traditionally defined that term. See Gorman v. Life Ins. =
Co. of N.=20
Am., 811 S.W.2d 542, 546 (Tex. =
1991).
=20
We recognize that the claim Barrera asserts involves issues that =
are=20
common to the class; presumably, the restocking fee was uniformly =
calculated and=20
applied when consumers returned the specified items. But just as in=20
Stonebridge, there are =93inescapably individual differences =
between each=20
class member=92s experience . . . that could =
determine in=20
whose favor the equities weigh in resolving their claims.=94 ___ S.W.3d =
at ___=20
(citing Sw. Ref. Co. v. =
Bernal, 22=20
S.W.3d 425, 435-36 (Tex. 2000)). We conclude that =
Barrera failed=20
to prove at the outset that individual issues governing a class claim =
for =93money=20
had and received=94 can be considered in a fair, manageable, and =
time-efficient=20
manner on a class-wide basis, and thus failed to satisfy Rule =
42(b)(3)=92s=20
predominance requirement.
=20
Accordingly, without hearing oral argument pursuant to Rule =
59.1=20
of the Texas Rules of Appellate Procedure, we reverse the court of =
appeals=92=20
judgment and remand the case to the trial court for further proceedings=20
consistent with this opinion.
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p; =
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nbsp; =20
OPINION=20
DELIVERED: November 30, 2007