J.C. Penney v. Pitts

Full title: J.C. PENNEY COMPANY, INC., ET AL., Appellant, v. GAYLE G. PITTS, ET AL.…

Court: Court of Appeals of Texas, Thirteenth District, Corpus Christi

Date published: Aug 12, 2004

No. 13-02-540-CV (Tex. App. Aug. 12, 2004)

Opinion

No. 13-02-540-CV

Opinion Delivered and Filed: August 12, 2004.

On appeal from the 214th District Court of Nueces County, Texas.

Before Chief Justice VALDEZ and Justices HINOJOSA and RODRIGUEZ.

OPINION ON MOTION FOR REHEARING

Opinion by Chief Justice VALDEZ.

Appellees have filed a motion for rehearing in cause number 13-02-540-CV. After reviewing the motion and our original opinion, we find the motion for rehearing should be denied but that two corrections should be made to our original opinion. J.C. Penney Co. v. Pitts, No. 13-02-540-CV, 2004 Tex. App. LEXIS 6294, at *10-*11 (Tex. App.-Corpus Christi July 15, 2004, no pet. h.).

Footnote thirteen states:

Rule 42(e) provides that "[a] class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such a manner as the court directs." TEX. R. CIV. P. 42(e).

This version of rule 42(e) was amended effective January 1, 2004. Accordingly, footnote thirteen is ordered changed to:

At the time Henry Schein, Inc. was handed down, rule 42(e) read: "[a] class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such a manner as the court directs." The rule was amended effective January 1, 2004 and now provides in pertinent part:

(1)(A) The court must approve any . . . dismissal . . . of the claims, issues, or defenses of a certified class.

(B) Notice of the material terms of the proposed . . . dismissal . . . shall be given to all members in such manner as the trial court directs.

TEX. R. CIV. P. 42(e).

In the third sentence of the last paragraph under the subheading "1. Abandonment," we stated, "Thus, any attempt to abandon these claims could trigger the notice requirements of rule 42(e)." This sentence is ordered changed to:

Thus, any attempt to abandon these claims on appeal of a certified class could trigger the notice requirements of rule 42(e)(1)(B).

Appellee's motion for rehearing is denied.