NO. 06-14-00106-CV IN THE SIXTH COURT OF APPEALS TEXARKANA, TEXAS
P ETER G. M ILNE , I NDIVIDUALLY , P ETER G. M ILNE P.C., & H EALY , M ILNE & A SSOCIATES , P.C. Appellants

v.

V AL R YAN & J OY R YAN Appellees Appeal from the 4th Judicial District Court

Rusk County, Texas O RAL A RGUMENT R EQUESTED BRIEF FOR APPELLANTS

J. CHAD PARKER Cparker@theparkerfirm.net Bar Card No: 15489000 FORREST F. MAYS Fmays@theparkerfirm.net Bar Card No: 24072228 THE PARKER FIRM, P.C. 3808 Old Jacksonville Rd. Tyler, Texas 75701 (903) 595-4541 - telephone (903) 595-2864 - facsimile Attorneys for Appellants Peter G. Milne, Ind., Peter G. Milne, P.C., ACCEPTED 06-14-00106-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 2/17/2015 1:24:11 PM DEBBIE AUTREY

CLERKPETER G. MILNE Pmilne@tylertaxlaw.com Bar Card No. 24037118 327 W. Houston St. Tyler, Texas 75702 903-593-9300 - telephone 903-593-9325 - facsimile Attorneys for Appellant Milne & Associates, P.C.

iI DENTITY OF P ARTIES AND C OUNSEL

Appellants/Defendants Peter G. Milne, Individually Peter G. Milne, P.C. Healy, Milne & Associates, P.C. Counsel for Appellants J. CHAD PARKER Bar Card No: 15489000 FORREST F. MAYS Bar Card No: 24072228 THE PARKER FIRM, P.C. 3808 Old Jacksonville Rd. Tyler, Texas 75701 Attorneys for Appellants Peter G. Milne, Ind., & Pe ter G. Milne, P.C., PETER G. MILNE Bar Card No. 24037118 327 W. Houston St. Tyler, Texas 75702 Attorneys for Appellant Healy, Milne & Associates, P.C. Appellees/Plaintiff Val Ryan Joy Ryan Counsel for Appellees James A. Holmes State Bar No. 00784290 212 South Marshall Henderson, Texas 75654

iiT ABLE OF C ONTENTS

I DENTITY OF P ARTIES AND C OUNSEL

.................................................. .................... ii
I NDEX OF A UTHORITIES

................................................... ..................................... v-vi S TATEMENT OF THE C ASE

................................................... ................................ ... vii
I SSUES P RESENTED

................................................... ............................................. viii 1. Did the district court err by failing to meet th e clearly-ascertainable requirement in its class definition contrary to Intratex Gas Co. v. Beeson , 22 S.W.3d 398, 403 (Tex. 2000)? 2. Did the district court err by certifying claims of unconsionability under the Texas Deceptive Trade Practices Act against the Hic ks Defendants in violation of Tex. R. Civ. P. 42(a)(2) and 42(b)(3) because individualized inquiries into whether such actions took advantage of the lack of knowledge, ability, experience or capacity of class members are imperative and cannot be resolved by only looking to Appellees claims? 3. Did the district court err by certifying claims of unconscionability and breach of fiduciary duty against the Hicks Defendan ts where they are not typical of Appellees claims? 4. Did the district court err in certifying claims for declaratory judgment against Appellants where the proposed claims for cl ass-wide relief relate exclusively or predominately to money damages in vi olation of Tex. R. Civ. P. 42(b)(2). S TATEMENT OF F ACTS

................................................... .................................... 1–4 A. The Appellees Claims ...........................

................................................... .1–2 B. The Hicks Defendants, the 2001 Permanent Injunct ion, and relationship with Appellants .................. .............................................2-3 C. Proceedings in the district court .............. ..................................................3 -4 S UMMARY OF THE A RGUMENT

................................................... ..........................5–6
iiiS TANDARD OF R EVIEW
................................................... ...................................... 6–7

A RGUMENT

................................................... ................................................... ......7-17 I. The district court erred in its class definition and violated the clearlyascertainable requirement of a class definition ... .....................................7–10 II. The district court erred by certifying claims o f unconscionability against the Hicks Defendants because common issues of law and f act do not predominate .......................................

................................................... ...10-14 III. The district court erred by certifying claims of unconscionability and breach of fiduciary duty against the Hicks Defe ndant because they are not typical of Appellees claims .......... ............................................15 IV. The district court erred in certifying claims f or declaratory judgment against Appellants in violation of Tex. R. Civ. P. 42(b)(2) because the proposed claims for class-wide relief relate exclus ively or predominately to money damages .................................... ..................................................1 6-17 C ONCLUSION AND P RAYER

.................................................. ....................................17 C ERTIFICATE OF C OMPLIANCE WITH R ULE 9.4( E ) ................................................. ..18 C ERTIFICATE OF S ERVICE

.................................................. ......................................19

ivI NDEX OF A UTHORITIES

Cases Allison v. Citgo Petroleum Corp. , 151 S.W.3d 402, 425 (5th Cir. 1998) ............... .......................................6, 16 Bailey v. Kemper Casualty Ins. Co. , 83 S.W.3d 840, 847 (Tex. App. – Texarkana 2002, pe t dism’d w.o.j ) ....6, 7 Bolin v. Sears, Roebuck & Co. , 231 F.3d 970, 978 (5th Cir. 2000) ................. ............................................16 Dafforn v. Rousseau Assocs., Inc. , 1976–2 Trade Cases ¶ 61, at 219 (N.D. Ind.1976) ... ..................................10 East Texas Motor Freight v. Rodriguez , 431 U.S. 395, 403 (1977) .......................... ................................................ 15 Entex v. City of Pearland , 990 S.W.2d 904, 909 (Tex. App.–Houston [14th Dist.] 1999, no pet.) ......7 Forsyth v. Lake LBJ Inv. Corp. , 903 S.W.2d 146, 149 (Tex. App.– Austin 1995, writ d ism'd w.o.j.) ...........7 Gilchrist v. Bolger , 89 F.R.D. 402, 406 (S.D.Ga.1981) .................. ...........................................15 Henry Schein, Inc. v. Stromboe , 28 S.W.3d 196, 200–01 (Tex. App.– Austin 2000, pet. dism'd w.o.j.)...6, 13 Hi–Lo Auto Supply, L.P. v. Beresky , 986 S.W.2d 382, 386 (Tex. App.–Beaumont 1999, no pe t.) ......................6

Intratex Gas Co. v. Beeson , 22 S.W.3d 398, 403 (Tex. 2000) .................... ......................................vi, 5, 9

vPellman v. Cinerama, Inc. ,

89 F.R.D. 386, 389 (S.D.N.Y.1981) ................. ............................................15 Peltier Enterprises, Inc. v. Hilton , 51 S.W.3d 616, 623–24 (Tex. App. – Tyler 2000, pet. denied)................5, 12 Southwest Refining Co. v. Bernal , 22 S.W.3d 425, 433 (Tex. 2000) .................... ..............................................11 Spera v. Fleming, Hovenkamp & Grayson, P.C. , 4 S.W.3d 805, 810 (Tex. App.—Houston 1999, no pet . ) ...........................11 Texas S. Rentals, Inc. v. Gomez , 267 S.W.3d 228, 244 (Tex. App. – Beaumont 2008, no pet.).......................5 Wente v. Georgia Pacific Corp. , 712 S.W.2d 253, 257 (Tex. App.—Austin 1986, no writ ) .......................... 11 Statutes Tex. Bus. & Com. Code Ann. § 17.45(5) (Vernon Supp. 1998) .............................12 Rules Tex. R. Civ. P. 42 ................................ ............................................. vi, 6 , 11, 15–17

viS TATEMENT OF THE C ASE

Nature of the case Val & Joy Ryan (“Appellees”) sued Defendants Richar d Hicks, Individually and d/b/a Elder Advisory Servic es and Elder Advisory Tax Group, LLC (“Hicks Defendants”), Appellants, and others for numerous causes of action arising from Hicks’ provision of l egal services and/or Medicaid planning services purporte dly in violation of a 2001 injunction from the 114 thDistrict Court, Smith County. Hicks was an independent contractor of Appellants Peter G. Milne, P.C. and H ealy, Milne & Associates, P.C. over the period of 2005 to 2012. (4RR: 9, 11, 14.) Appellees sought certificat ion of approximately 450-575 members on claims of unconscionability under the Texas DTPA, breach of fiduciary duty, declaratory relief, and vicarious l iability under theories of partnership, joint enterprise, an d civil conspiracy. (2CR: 278–309; 6RR: 23–24.) Trial court 4th Judicial District Court, Rusk County Honorable Clay Gossett Trial court’s disposition Entered Order of Class Certification that Granted Appellees’ Motion and Supplemental Motions for Clas s Certification as to claims of unconscionability and breach of fiduciary duty against Hicks Defendants, granted as to Appellees’ claims for declaratory rel ief and vicarious liability under theories of partnership, joint enterprise, and civil conspiracy against Appellants , and denied as to Appellees’ claims for unconscionabilit y and breach of fiduciary duty against Appellants (3CR: 526.)

viiI SSUES P RESENTED

1. Did the district court err by failing to meet th e clearly-ascertainable requirement in its class definition contrary to Intratex Gas Co. v. Beeson , 22 S.W.3d 398, 403 (Tex. 2000)? 2. Did the district court err by certifying claims of unconsionability under the Texas Deceptive Trade Practices Act against RichardHicks in violation of Tex. R. Civ. P. 42(a)(2) and 42(b)(3) because indiv idualized inquiries into whether such actions took advantage of the lack of knowledge, ability, experience or capacity of class members are imperat ive and cannot be resolved by only looking to Appellees claims? 3. Did the district court err by certifying claims of unconscionability and breach of fiduciary duty against the Hicks Defendan ts where they are not typical of Appellees claims? 4. Did the district court err in certifying claims for declaratory judgment against Appellants where the proposed claims for cl ass-wide relief relate exclusively or predominately to money damages in vi olation of Tex. R. Civ. P. 42(b)(2).

viiiS TATEMENT OF F ACTS

A. The Appellees Claims Appellees Val & Joy Ryan moved Val’s parents from L ouisiana to Autumn Leaves Nursing Home in Henderson around November 20 07. (6RR: 28-29.) The Ryans spoke with Raymond Pyle, a social worker at A utumn Leaves, about Val’s parents’ financial situation and Mr. Pyle furnishedthe Ryans with Richard Hicks telephone number. ( Id . at 29.) The Ryans called and made an appointment with Hicks at his office in Tyler. ( Id .) According to Mr. Ryan, Hicks notified the Ryans that they needed to “stay away from the government, you don’tneed the government to pay for anything, you need to try to do this on your own.”( Id .) Ryan testified that Hicks encouraged them to invest in National Note of Utah to help finance their parents’ nursing home expenses. ( Id .) Ryan testified that the he and his wife went home to think about it and then decided they wished to inve st and called Hicks back to make another appointment. ( Id . at 29–30.) Hicks did not charge the Ryans anythin g for his services related to the investment but did ask the Ryans whether they and their parents were in need of various legal documents that could be drafted for them. ( Id

. at 30.) They said they were and obliged his service s for a fee of $3,000.00 which they paid to Elder Advisory Services. ( Id at 30–31, 38; 8RR: PX1H.) Ryan testified that during these meetings, he heard the name Peter Miln e referenced and was presented with brochures and business cards bearing his name. ( Id . at 31; 8RR: PX1C–PX1E.)

Page 1Ryan testified that once the documents were drafted , Hicks personally delivered them

to him and his parents at Autumn Leaves. (6RR: 36–3 8.) Ryan testified that he did not receive any Medicaidadvice from Hicks other than that Medicaid was not proper for their situati on and they should pursue private pay for their parents’ nursing home expenses. (6RR: 50.) Ryan testified that Hicks represented to them that he was not a lawyer. ( Id . at 51.) Ryan stated that he felt that if it was necessary for them to meet Milne, that Hi cks would have introduced them and that they did not feel it was necessary to “che ck out his story” because Hicks had a nice office. ( Id .) B. The Hicks Defendants, the 2001 Permanent Injunct ion, and relationship with Appellants Hicks testified that he negotiated with the Texas U nauthorized Practice of Law Committee in 2001 and entered an agreed injunction in the 114th District Court of Smith County on the grounds that the Committee dete rmined that providing Medicaid planning services was considered the practice of la w. (4RR: 10.) Hicks stated that, after the injunction was entered, he changed the wa y he performed his services by working in direct relationship with a law firm. ( Id .) Appellant Peter G. Milne, P.C. was formed in 2005. (3CR: 510.) Peter G. Milne, P.C . dissolved in 2007 and Healy, Milne & Associates, P.C. was formed and operated fr om October 2006 until July 2010. ( Id .) Peter G. Milne, P.C. was reinstated in 2010. ( Id .) Hicks testified that he and Milne entered an oral agreement whereby Milne w ould “assist me in cases where Page 2we were assisting individuals with Medicaid plannin g once they were placed into a

nursing facility.” (4RR: 7.) For cases in which cli ent intake originated with Hicks’ office, Hicks testified that he would obtain 75% an d Appellants would receive 25% of the fee. (4RR: 16.) For cases in which client in take originated with Milne’s office, Hicks would obtain 60% of the fee and Appellants wo uld obtain 40%. Hicks was an independent contractor of Appellants Peter G. Milne , P.C. and Healy, Milne & Associates, P.C. over the period of 2005 to 2012. ( 4 RR 9, 11, 14.) C. Proceedings in the district court Appellees’ live pleading is their Fifth Amended Pet ition and they have filed a Motion and three supplemental motions for Class Certification. (1CR: 144, 106, 162, 2CR: 261, 3CR: 316.) Through those Motions they ha ve sought certification of the claims of unconscionability under the DTPA and brea ch of fiduciary duty against the Hicks Defendants and Appellants, certification of theories of vicarious liability through partnership, joint enterprise, and civil co nspiracy, and a declaratory judgment that Appellants were in violation of the 2001 injun ction rendered against the Hicks Defendants. Two hearings were held on the class certification motions. (5 RR, 6 RR.) Appellees constructed a Master Exhibit List contain ing all people believed to constitute potential members of the proposed Class. (2CR: 278–309.) Hicks served Amended Answers to Interrogatories on August 30, 2014, in which he claimed that all of the services he provid ed to those on the Master Exhibit

Page 3List were enjoined services pursuant to the terms o f the 2001 Permanent Injunction.

(2CR: 273.) Appellees supplemented their Class Cert ification Motion to alert the district court of these developments. (2CR: 261.) H owever, of those on the Master Exhibit List, 114 are what have been termed “acknow ledged clients” to whom Hicks and Appellants provided services jointly and in whi ch both partook of the fee. (3CR: 392.) Another group containing 219 clients are “sma ll case” clients whom Hicks never disclosed to Appellants and for which Hicks r etained the entire fee. (3CR: 392–393.) Another group containing approximately 12 7 people are “simple case” clients whom Hicks alleges were made known by Milne but whom Milne authorized Hicks to perform services that involved the practic e of law and that he told Hicks he could retain the entire fee. (3CR: 393.) The Court entered its Order on Class Certification on November 26, 2014. (3CR: 526.)

Page 4S UMMARY OF THE A RGUMENT

The district court erred by violating the clearly-a scertainable requirement of a class definition by framing the class definition as a legal conclusion; i.e. the class encompasses those who paid a fee for “enjoined serv ices” performed by Richard Hicks since January 1, 2005. This definition necess arily requires a determination on the merits before the court can ensure the existenc e of a class which renders it impossible to define at least a portion of the clas s until ultimate liability as to that person is made. This violates Intratex Gas Co. v. Beeson , 22 S.W.3d 398, 403 (Tex. 2000). The district court erred by certifying claims of unconscionability against the Hicks Defendants because common issues of law and f act do not predominate with respect to the third and fourth elements of the unc oncionability claims – whether the Hicks Defendants’ actions took advantage of the lac k of knowledge, ability, experience, or capacity of the proposed Class to a grossly unfair degree. Such an answer as to Appellees does not answer the question for the approximately 450-575 people that have been proposed as members of the Cl ass and precludes certification. See Peltier Enterprises, Inc. v. Hilton , 51 S.W.3d 616, 623–24 (Tex. App. – Tyler 2000, pet. denied); Texas S. Rentals, Inc. v. Gomez , 267 S.W.3d 228, 244 (Tex. App. – Beaumont 2008, no pet.). The district court erred in certifying claims for u nconscionable conduct and

Page 5breach of fiduciary duty against the Hicks Defendan ts because Appellees’ claims are

not typical of the proposed Class. The district court erred in certifying claims for d eclaratory judgment against Appellants in violation of Tex. R. Civ. P. 42(b)(2 ) because the proposed claims for class-wide relief relate exclusively or predominate ly to money damages. See Allison v. Citgo Petroleum Corp. , 151 S.W.3d 402, 425 (5th Cir. 1998).

S TANDARD OF R EVIEW An appellate court reviews the decision of the tria l court in certifying or refusing to certify the class for abuse of discreti on. Bailey v. Kemper Casualty Ins.
Co. , 83 S.W.3d 840, 847 (Tex. App. – Texarkana 2002, p et dism’d w.o.j ) (citing Hi–Lo Auto Supply, L.P. v. Beresky , 986 S.W.2d 382, 386 (Tex.App.-Beaumont 1999, no pet.)). A trial court abuses its discretion onlyif it “fails to properly apply the law to the undisputed facts or acts arbitrarily, unreas onably, or without reference to any guiding principles.” Bailey , 83 S.W.3d at 847 (citing Henry Schein, Inc. v. Stromboe , 28 S.W.3d 196, 200–01 (Tex.App.-Austin 2000, pet. d ism'd w.o.j.)). In conducting this review, the court must view the evidence in th e light most favorable to, and indulge every presumption in favor of, the trial co urt's action. Bailey , 83 S.W.3d at 847 (citing Entex v. City of Pearland , 990 S.W.2d 904, 909 (Tex.App.-Houston [14th Dist.] 1999, no pet.)). An appellate court may not substitute its judgment for that of

Page 6the trial court, even if it would determine the iss ues differently than the trial court.

Bailey , 83 S.W.3d at 847 (citing Forsyth v. Lake LBJ Inv. Corp. , 903 S.W.2d 146, 149 (Tex.App.-Austin 1995, writ dism'd w.o.j.)).

A RGUMENT I. The district court erred in its class definition and violated the clearlyascertainable requirement of a class definition The district court’s Order on Class Certification s tates that Appellees and their attorney are appointed to represent a class consist ing of “All individuals and entities who/which paid a fee for enjoined services performe d by Richard Hicks since January 1, 2005.” For purposes of this suit, “enjoined serv ices” means any of the services listed in the 2001 injunction entered against HICKS by the 114 Judicial District Court of Smith County, Texas. [sic] (4CR: 527.) In listin g the issues of law and fact common to the class, the Court included among them: “ 7. Whether the 2001 injunction requires that Hicks be an “employee” of a lawyer or law firm in order to provide the enjoined services.” (4CR: 530.) The Cou rt goes on to state that “The Court finds that because Hicks’ violations of the 2 001 injunction are uncontested and have been admitted in open Court, the Court and the parties will concentrate the bulk of their efforts on the following issues: . . . 1. Whether the law firms’ admitted failure to “employ” Hicks violated the terms of the 2001 in junction . . . 4. Whether Plaintiffs

Page 7are entitled to declaratory judgment that Defendant s violated the 2001 injunction.”

(4CR: 530 – 531.) The class is not clearly-ascertainable because the definition of “enjoined services” under the 2001 injunction necessarily req uires a determination on the merits before at least a portion of the class meets the de finition. Approximately 114 of the proposed members of the Class belong to a group con sisting of clients for whom the Hicks Defendants and Appellants provided services j ointly over the time duration that the definition encompasses – the so-called “acknowl edged clients”. (2CR: 175-179; 5RR: 19–20, 28–31.) For that group, a determination on the merits on three separate issues must be resolved by the Court before the cla ss is properly defined: (1) Whether Appellants are bound by the 2001 injunc tion either by virtue of participating in the 2001 proceedings or being a re al party in interest when the injunction was rendered. (4CR: 477–478, 503–504); (2) Whether the Court may interpret the 2001 injunc tion of the 114th Judicial District Court . (4CR: 476, 502); and (3) If “yes” to Nos. 1 & 2, whether the 2001 Injunc tion required Hicks to be an “employee” of Appellant law firms to not be in viol ation of the Injunction. (8RR: 226–229) For a class definition to be objective and its mem bers presently ascertainable, the definition cannot require a determination of th e merits. Deciding the merits of the

Page 8suit in order to determine the scope of the class o r its maintainability as a class action

is not appropriate. Intratex Gas Co. v. Beeson , 22 S.W.3d 398, 404 (Tex. 2000). A proposed class definition that rests on the paramou nt liability question cannot be objective, nor can the class members be presently a scertained; when the class definition is framed as a legal conclusion, the tri al court has no way of ascertaining whether a given person is a member of the class unt il a determination of ultimate liability as to that person is made. Id . A fail-safe class that is based on resolving the ultimate liability issue is bound only by a judgmen t favorable to plaintiffs but not by a judgment favorable to defendants. Id . at 404–05. Certifying a fail-safe class inevitably creates one-sided results. If the defend ant is found liable, class membership is then ascertainable and the litigation comes to a n end. A determination that the defendant is not liable, however, obviates the clas s, thereby precluding the proposed class members from being bound by the judgment. The Texas Supreme Court does not support such a result when “[r]ule [42] was nev er meant to be an exception to the rules of res judicata or to provide a risk-free method of litigation.” Id . at 405 (quoting Dafforn v. Rousseau Assocs., Inc. , 1976–2 Trade Cases ¶ 61, at 219 (N.D. Ind.1976)). While the trial court possesses significant discret ion to modify the class definition or even decertify the class as the case develops, the trial court must still certify only those classes that are sufficiently defined and mee t the Rule 42 requirements. Beeson , 22 S.W.3d at 405.

Page 9Because a determination on the merits will be requi red to see whether

“enjoined services” were provided to members of the Class, the class is not presently ascertainable and a fail-safe class has been constructed. What is particularly damaging to Appellants about this fail-safe definit ion is that, even were these issues to be resolved as a matter of law in their favor, the proposed Class would not be bound by the judgment because they were not ascerta inable when the Class was certified and Appellants cannot rely on res judicat a to prevent subsequent litigation. Because the class definition in this case is not pr ecise, and its members cannot be ascertained until the alleged ultimate liabilityissue is decided, the district court abused its discretion when it certified the class. Id . at 405. II. The district court erred by certifying claims o f unconscionability against the Hicks Defendants because common issues of law a nd fact do not predominate
The district court’s Order on Class Certification g ranted Appellees’ Motion for Class Certification as to their claims for unconsci onable conduct. (4CR: 526.) The Order defined the inquiry into unconscionable condu ct as “whether the defendant committed an act or practice that, to a consumer’s detriment, took advantage of his lack of knowledge, ability experience or capacity t o a grossly unfair degree.” ( Id . at 528.) Under Rule 42, “common” questions must predominate over questions

Page 10affecting only individual class members. Tex. R. Ci v. P. 42(b)(4). A common

question exists when the answer as to one class mem ber is the same as to all. Spera v. Fleming, Hovenkamp & Grayson, P.C. , 4 S.W.3d 805, 810 (Tex.App.—Houston 1999, no pet .). Common questions that do not produ ce common answers do not satisfy the Rule 42 commonality requirement. Wente v. Georgia Pacific Corp. , 712 S.W.2d 253, 257 (Tex.App.—Austin 1986, no writ). Th e “predominance requirement ... is one of the most stringent prerequisites to c lass certification.” Southwest Refining Co. v. Bernal , 22 S.W.3d 425, 433 (Tex. 2000). Courts determine if common issues predominate by identifying the substantive issues that will control the outcome of the litigation, assessing which issues will predominate , and determining if the predominating issues are, in fact, common to the cl ass. Id . at 434. The test for predominance is not whether common issues outnumber uncommon issues, but whether common or individual issues will be the sub ject of most of the litigant's and court's efforts. If, after common issues are resolv ed, presenting and resolving individual issues is likely to be an overwhelming o r unmanageable task for a single jury, then common issues do not predominate. Bernal , 22 S.W.3d at 434. Ideally, a judgment in favor of the named plaintiffs should de cisively settle the entire controversy, and all that should remain is for othe r class members to file proofs of claim. Id . It is improper to certify a class without knowing how the claims can and
Page 11will likely be tried. Id . at 435. Individual scrutiny by the trial court is necessary to

ensure that certification does not “restrict a part y from presenting viable claims or defenses without that party's consent.” Id

. The Court granted certification of claims of uncons cionability under the DTPA. Unconscionability requires proof of (1) an act or p ractice that, (2) to a person's detriment, (3) takes advantage of his lack of knowl edge, ability, experience, or capacity, (4) to a grossly unfair degree. Tex.Bus. & Com.Code Ann. § 17.45(5) (Vernon Supp.1998). There must be a showing of whatthe consumer could have or would have done if he had known about the informati on. See Peltier Enterprises, Inc. v. Hilton , 51 S.W.3d 616, 623–24 (Tex. App. – Tyler 2000, pe t. denied). The proposed class has ranged in approximation from between approximately 450-575 members depending upon the data being looke d at. (2CR: 278–309; 6RR: 23–24.) Disparities between the variety of ages, ed ucation, experience, and capacity of people who encountered the Hicks Defendants and engaged their services is relevant to elements three and four of the unconsci onability claims and Appellants should be permitted to explore those issues to dete rmine viable defenses. Bernal , 22 S.W.3d at 435. Inescapably individual differences cannot be concealed in a throng. The procedural device of a class action eliminates the necessity of adducing the same evidence over and over again in a multitude of indi vidual actions; it does not lessen
Page 12the quality of evidence required in an individual a ction or relax substantive burdens

of proof. Henry Schein, Inc. v. Stromboe , 102 S.W.3d 675, 693–94 (Tex. 2002). Of the voluminous documents submitted to the Court at the certification hearing on July 10, 2014, PX1 and DX1, DX3 & DX4 co ntains documents most relevant to the appellate court’s review of the dis trict court’s certification of the unconscionability cause of action. PX1 contains fil es retrieved from the Hicks Defendants pertaining to services provided by them to clients from 2005 onward. (6RR: 18; 8RR: 155.) Of those files appearing in PX1, approximately 211 of them contain no reference to Appellants. (8RR: 298–310) Only 24 of them contain references to Appellant Healy, Milne & Associates, Inc either in an “engagement letter” (contract) or other reference. (8RR: 315–31 7). Only 51 of them contain any reference to Peter G. Milne or Peter G. Milne, PC e ither in an “engagement letter” (contract) or other reference. (8RR: 318–320) In 16 of those files where reference was made to Healy, Milne & Associates, PC or Peter G. M ilne, PC, such references were dated at times when Peter G. Milne, PC or Healy, Mi lne & Associates, PC were terminated entities. 1 Of those client files appearing in Exhibit PX1 al l but the those

1 Peter G. Milne, PC was formed January 12, 2005 andofficially terminated December 12, 2007, but performed no business from October 4, 2006 until it s termination. Peter G. Milne PC was reinstated effective July 27, 2010. (4CR: 509–525.) Healy, Mil ne & Associates, PC was formed on October 4, 2006 and terminated effective December 27, 2010, but performed no business from July 27, 2010 until its termination. ( Id .) References were made to Peter G. Milne, PC or He aly, Milne & Page 13appearing in the following footnote were clients wh ose dealings with the Hicks

Defendants appear to have taken place through a Pow er of Attorney (“POA”) or other Responsible Party (“RP”). 2Appellants urge they should not be denied individu al inquiries into whether and to what extent each of these clients, or their POA or responsible parties on their behalf, were taken adv antage of due to lack of knowledge, ability, experience, or capacity, if any. (5RR: 42– 44; 6RR: 79–83.) Appellants would urge that they are in a unique pos ition in this litigation by virtue of the fact that the Hicks Defendants have n ot even filed an answer, let alone shown any interest in asserting any defenses to the allegations being made by Appellees. This makes Appellants’ interest in pursu ing viable defenses that are not but could otherwise be asserted by the Hicks Defend ants all the more important.

Associates, PC in files pertaining to the following people at times when both entities were not performing business or had terminated. Bohling, Rob ert, Boyd, Beatrice, Brown, Jimmy & Elizabeth, Byrd, Ron, Cadena, Noe, Calendar, Odaysel, Chapa, E sther, Clark, Cochran, William, Bruce & Laura, David, Robert, Millard, Derosset, Eads, Gerard, Finley, Doris, Guidry, Lula, Harris, Mary Ruth, & Jones, Edward. (2CR: 279–287, 289–90.)

2 Askew, Bassett, Beasley, Benefield, Bland, Blomqui st, Bohling, Bomer, Booth, Brady, Brown, Jimmy & Elizabeth, Burgamy, Cable, Camp, Cannon, Carter, Catlett, Chandler, Chapa, C., Clark, O., Cochran, Collins, Concepcion, Conner, Cordell, Craig, Dailey, Deaver, Denney, Dews, Dutoit, Eckstadt, Elledge, Elliot, Fleming, Futch, Gaddie, Garcia, R., Gonzalez, J., Goodman, Goodner, Grider, Grigg, Guidry, Guinn, Gurganus, Haight, Hal lbrook, Hallette, Hancock, Hand, Heldt, Heppner, Hernandez, H., Hernandez, P., Herwood, Hig ginbotham, Hippler, Honeycutt, H., Honeycutt, K., Hood, Florine, Hood, Floyd, Hooper, P.B., Hornbuckle, Horton, House, Huff, Isaacks, Jackson, Nancy, Jackson, R., Jones, E., Jo nes, L., Jordan, Kirby, Lackey, Landon, Lavender, Wiklund, Wilbanks, Williams, J., Williams, T., Wren tz, Page 14III. The district court erred by certifying claims of unconscionability and

breach of fiduciary duty against the Hicks Defendan t because they are not typical of Appellees claims The claims of the class representatives must be typ ical of the claims of the class as a whole. Tex. R. Civ. P. 42(a); Gilchrist v. Bolger , 89 F.R.D. 402, 406 (S.D.Ga.1981); Pellman v. Cinerama, Inc. , 89 F.R.D. 386, 389 (S.D.N.Y.1981). The United States Supreme Court has defined the typical ity requirement as mandating that the representative “possess the same interests and suffer the same injury.” East Texas Motor Freight v. Rodriguez , 431 U.S. 395, 403 (1977). Although it is not nece ssary that the named representative suffer precisely the same injury as the other class members, there must be a nexus between the injury s uffered by the representative and the injuries suffered by other members of the class

. See Gilchrist , 89 F.R.D. at 404–05. The claims of unconscionability and breach of fiduc iary duty against the Hicks Defendants are not typical of Appellees’ claims. Unlike the acknowledged clients, Appellees had no contract with Hicks. (2CR: 234–235 , 5RR: 27, 6RR: 48.) Unlike approximately 211 members of the proposed class for which there was no evidence that Hicks represented Appellants’ involvement, App ellees have testified that it was falsely represented to them that Appellants were in volved. 6RR: 31, 8RR: 298–310.)

Page 15IV. The district court erred in certifying claims f or declaratory judgment against Appellants in violation of Tex. R. Civ. P. 42(b)(2) because the proposed claims for class-wide relief relate exclus ively or predominately to money damages Injunctive or declaratory relief is not appropriate when “final relief relates exclusively or predominately to money damages.” In Allison v. Citgo Petroleum Corp. , the Fifth Circuit held that “monetary relief pred ominates . . . unless it is incidental to requested injunctive or declaratory r elief.” 151 F.3d 402, 415 (5th Cir. 1998). Incidental means that “damages flow directlyfrom liability to the class as a whole on the claims forming the basis of the injunc tive or declaratory relief.” Id . The mere recitation of a request for declaratory relief cannot transform damages claims into a [Rule 23(b)(2)] class action. Bolin v. Sears, Roebuck & Co. , 231 F.3d 970, 978 (5th Cir. 2000). [Rule 23(b)(2)] states that certif ication is proper for a class seeking “final injunctive relief or corresponding declarato ry relief.” Id . Thus, the declaratory relief must “as a practical matter afford[ ] injunc tive relief or serve[ ] as a basis for later injunctive relief.” Id

. Similar to Bolin , Appellees seek declaratory relief under the Texas Uniform Declaratory Judgment Act that the Hicks Defendants and Appellants were in violation of the 2001 Injunction. However, “besides authorizi ng a declaratory judgment, the declaratory judgment act does not create remedies o therwise unavailable to the

Page 16plaintiffs.” Id . at 977. In this case, there are no “specific clai ms that form the basis of

. . . the declaratory relief” – Appellees only seeka declaration that the Hicks Defendants or Appellants are in violation of the 20 01 Injunction for which monetary damages are not an incidental result. Certification under Tex. R. Civ. P. 42(b)(2) was an abuse of discretion because the only meaningful relief sought on behalf of the class is for monetary damages, not declaratory relief.

C ONCLUSION AND P RAYER Appellants would show that the district court abuse d its discretion by failing to correctly apply the law to the undisputed facts or acted arbitrarily, unreasonably, or without reference to any guiding p rinciples by improperly defining the class, certifying claims of unconscion ability and breach of fiduciary duty against the Hicks Defendants when common issue s of law and fact do not predominate and Appellees claims are not typical of the proposed Class, and certifying claims for declaratory relief against Ap pellants upon which the relief sought is predominately or exclusively monetary. Ap pellants respectfully request that this Court reverse the judgment of district co urt and remand to the district court to decertify the class.

Page 17CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e)

1. This brief complies with the type-volume limitati on of Texas Rule of Appellate Procedure 9.4(e)(i)(2)(B) because, according to theMicrosoft Word 2010 word count function, it contains 2,683 words on pages 7- 17, excluding the parts of the brief exempted by Texas Rule of Appellate Proce dure 9.4(e)(i)(1). 2. This brief complies with the typeface requirement s of Texas Rule of Appellate Procedure 9.4(e) because it has been prepared in pr oportionally spaced typeface using Microsoft Word 2010 software in Time s New Roman 14-point font in text and Times New Roman 12-point in footno tes.

/s/ J. Chad Parker J. Chad Parker

Page 18CERTIFICATE OF SERVICE

I certify that a true and correct copy of the Brief of Appellant PETER G. M ILNE , I ND ., PETER G. M

ILNE , P.C. was served by electronic service and/or email to th e following counsel of records on February 17, 2015. James A. Holmes Law Office of James Holmes, PC 212 South Marshall Henderson, TX 75654 Via Email Peter G. Milne Peter G. Milne, PC 327 W Houston Tyler, TX 75702 Via Email /s/ J. Chad Parker J. Chad Parker

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