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Wal-Mart Stores v. Doris Forte, 15-0146 (TexApp Dist 05/20/2016)

In 1992, appellant Wal-Stores, Inc. began operating "Vision Centers" in its Texas retail stores, selling a variety of ophthalmic goods; it leased office space near the Vision Centers to optometrists which required the office to be open at least 45 hours per week or pay $200 per day in liquidated damages. Appellees filed suit alleging the lease violated the Texas Deceptive Trade Practices-Consumer Protection Act which provides that a retailer of ophthalmic goods may not directly control the professional judgment or manner of practice of an optometrist. Following a jury trial awarding the appellees damages, appellant appealed contending that is conduct did not violate the act. The supreme court accepted certification to determine which statute governs the civil penalty awarded and whether the classification of damages permits recovery. The supreme court held that neither party directly requested an explanation of Texas law and therefore opted to answer "hypothetical" questions to provide guidance. The supreme court held that Tex. Civ. Prac. & Rem. Code §41.002(a) is indicative to determine that civil penalties can fall under the ordinary meaning of "damages" and provide a maximum limitation as to damages that may be awarded. Chapter 41 therefore can limit the amount of exemplary damages relative to compensatory damages and precludes an award of exemplary damages unless other damages are awarded. With hesitation, the supreme court certified the questions as "yes" stating that Chapter 41 classifies civil penalties as exemplary damages and, because appellees did not recover other damages, Chapter 41 bars recovery of the civil penalties as exemplary damages.

Wal-Mart Stores, Incorporated v. Doris Forte, O.D.; Bridget Leesang, O.D.; David Wiggins, O.D.; and John Boldan, O.D., Supreme Court, Case No.: 15-0146, 09/23/2015

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ON CERTIFIED QUESTIONS FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Argued September 23, 2015

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