December 9, 2021, opinions

Designated for publication

  • Cleven v. Mid-America Apartment Communities, Inc., No. 18-50846, c/w Brown v. Mid-America Apartment Communities, Inc., No. 18-50851, appeal from W.D. Tex.
    • Owen, C.J. (Owen, Smith, Dennis), Dennis, J., dissenting; class action, breach of contract
    • On a Rule 23(f) appeal, reversing district court’s certification of classes in two actions against apartment company arising from whether company’s late-fee regime complied with the pre-2019 version of § 92.019 of the Texas Property Code.
    • The Court noted, “The central issue in the present cases is whether common questions predominate over individual issues, which largely depends on the interpretation of section 92.019. … In both Cleven and Brown, MAA challenges the district court’s construction of section 92.019, and the proper construction is a necessary antecedent to the predominance issue.”
    • The district court had held that § 92.019 was not satisfied if the landlord did not first make an estimate of its late payment damages before assessing a late fee–i.e., that the predominant common issue was that the landlord, MAA, had issued a flat-fee late fee rather than first calculating in each instance it late payment damages.
    • The Court held, “We begin with the text of section 92.019, which requires a late fee to be ‘a reasonable estimate of uncertain damages to the landlord that are incapable of precise calculation and result from late payment of rent.’ … Under the district court’s reading of section 92.019, the punitive provisions apply if the landlord cannot demonstrate that an actual calculation of potential damages was made. This amounts to strict liability, without regard to whether the substantive requirements of section 92.019 were in fact met, which are that, at the time the lease was signed, the late fees were ‘a reasonable estimate of uncertain damages to the landlord that are incapable of precise calculation and result from late payment of rent.’ The statute does not require the landlord to engage in a process to arrive at a reasonable late fee; it just requires that the late fee agreed upon be a reasonable estimate of damages that are incapable of precise calculation.”
    • Accordingly, the Court remanded to the district court to determine if, in light of this interpretation, class certification was appropriate.
    • Judge Dennis dissented. He opined that the majority improperly reviewed the district court’s decision about the meaning of § 92.019, as that was a merits question rather than a class certification issue. “At this stage, the plaintiffs must show only that they raise a common question of law, not that the question will ultimately be decided in a way that is favorable to the proposed class’s claims.” He also opined that, were the merits issue properly before the Court, he would find that the district court’s interpretation of the statute comported with a plain-language reading of the text.
  • Med-Cert Home Care, L.L.C. v. Becerra, 20-10443, appeal from N.D. Tex.
    • Elrod, J. (Dennis, Elrod, Duncan), Medicare
    • Reversing district court’s holding that HHS violated medical care provider of procedural due process rights when it sought to recoup overpaid Medicare funds before a hearing with an administrative law judge. The Court applied its decision from Sahara Health Care Inc. v. Azar, 975 F.3d 523 (5th Cir. 2020), to hold that no procedural due process violation occurred, and remanded to the district court to consider the provider’s alternative claims.
  • Molina v. Home Depot USA, Inc., 21-20128, appeal from S.D. Tex.
    • Elrod, J. (Dennis, Elrod, Duncan), personal tort
    • On personal injury claim against the plaintiff’s former employer arising from a workplace incident, affirming in part–affirming summary judgment in favor of employer on inadequate assistance and inadequate training claims, vacating in part–concluding that a genuine issue of material fact exists on the inadequate equipment claim, and remanding for further proceedings.


  • Alameda v. Garland, 19-60531, petition for review of BIA order
    • per curiam (Smith, Stewart, Graves), immigration
    • Denying Mexican citizen’s petition for review of BIA order upholding the denial of his asylum claims.
  • U.S. v. Singleton, 21-30021, appeal from E.D. La.
    • per curiam (Stewart, Haynes, Ho), criminal, sentencing
    • Dismissing as frivolous appeal from denial of defendant’s motion to correct his sentence pursuant to Federal Rule of Criminal Procedure 35(a).
  • Jones v. Great Southern National Bank, 21-60434, appeal from S.D. Miss.
    • per curiam (King, Costa, Ho), timeliness
    • Dismissing for lack of appellate jurisdiction an appeal where the Notice of Appeal had not been filed within thirty days of the final judgment.