ACCEPTED 03-14-00208-CV 6829516 THIRD COURT OF APPEALS

AUSTIN, TEXAS 9/8/2015 3:06:30 PM JEFFREY D. KYLE

CLERK 

### No. 03-14-00208-CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN
CANYON LAKE ISLAND PROPERTY OWNERS ASSOCIATION, CYNTHIA M. GRIFFIN, RICHARD A. CONLEY AND BILL LESTER, Appellants-Plaintiffs


## v. STERLING/SUGGS LIMITED PARTNERSHIP, NEAL E. SUGGS AND NADINE R. SUGGS, Appellees-Defendants. Interlocutory Appeal from Cause No. C2012-1457B, the 207th Judicial District Court, Coma! County, Texas
APPELLEES'MOTION FORRECONSIDERATION

## ENBANC
MARTIN & 

### DROUGHT, P.C. GERALD T. DROUGHT State BarNo. 06134800 gdrought@mdtlaw.com MATHIS B. BISHOP State BarNo. 24045500 mbishop@mdtlaw.com Bank ofAmerica Plaza, 25th Floor 300 Convent Street San Antonio, TX 78205 Telephone: (210) 227-7591 Facsimile: (210) 227-7924 ATTORNEYS FOR APPELLEES

### TABLE OF CONTENTS TABLE OF CONTENTS
........................................................................................... i 

### TABLE OF AUTHORITIES
.................................................................................... ii I. 

### INTRODUCTION
................................................................................................ 1 II. FACTUAL BACKGROUND
.............................................................................. 1 III. THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN CERTIFYING THE CLASS
.........................................................................2 IV. THE NUMEROSITY REQUIREMENT IS SATISFIED
.................................. 5 V. THE NAMED CLASS REPRESENTATIVES ARE ADEQUATE
..................6 VI. CONCLUSION
....................................................................................................9 CERTIFICATE OF SERVICE
............................................................................... 11 APPENDIX
............................................................................................................. 12

### TABLE 

### OF AUTHORITIES
CASES PAGE Bowden v. Phillips Petroleum Co., 247 S.W.3d 690 (Tex. 2008)
.....................................................................................

### .4 Riemer v. State, 392 S.W.3d, 635 (Tex. 2012)
.....................................................................................7 

### Southwestern Ref Co. v. Bernal, 22 S.W.3d 425 (Tex. 2000)
....,...................................................................................4 

### Sullivan v. Barnett, 471 S.W.2d 39 (Tex. 1971)
........................................................................................3 

### Thillens, Inc. v. Community Currency Exch. Ass 'n of Illinois, Inc., 97 F.R.D. 668 (N.D. Ill. 1983)
...................................................................................8 

### Wright v. Vernon Compress Co., 296 S.W.2d 517 (Tex. 1956)
......................................................................................3 

### RULESAND STATUTES TEX. R. APP. P. 

### 49.7
.................................................................................................... 1 

### Federal Practice & Procedure§ 1762
......................................................................6 

### FederalPractice & Procedure§ 1762, 7.2.A.2
........................................................6 

### FederalPractice & Procedure§ 1762, 7.2.A.3
........................................................7 

### FederalPractice & Procedure 1768
.........................................................................8

11

### APPELLEES' MOTION FOR RECONSIDERATIONENBANC 

### Appellees Sterling/Suggs Limited Partnership, Neal E. Suggs and Nadine R. 

### Suggs file this Motion for Reconsideration En Bane pursuant to TEx. R. APP. P. 49.7 as follows: 

## I. INTRODUCTION Attached under Appendix 

### Tab No.1 is a copy ofthe Opinion issued June 5, 2015 by a 

### Panel consisting of Chief Justice Rose, Justice Pemberton and Justice Goodwin. 1 

### Appellees now ask the Court for reconsideration en bane. II. 

### FACTUAL BACKGROUND The background facts are well known to the Court and need not be recited again at length. In a nutshell, this is an easement dispute brought by Canyon Lake Island Property Owners Association (hereinafter the "Association"), a voluntary association of owners of lots in the Canyon Lake Island Subdivision. The Association filed suit alleging trespass and interference with its members' property rights related to a claimed prescriptive easement, which the Appellees deny. The Appellees filed a motion to certifY the case as a class action, and a joinder seeking to add Cynthia M. Griffin, Richard A. Conley and Bill Lester (hereinafter referred to as "Representative Association Members") as parties and to

1 The Panel denied Appellees' Motion for Rehearing on August 24,2015. 

### 1

### designate them as class representatives. The trial court granted the motion to certify. This interlocutory appeal was then commenced by the Appellants. On June 5, 2015 this Court reversed and remanded the trial court's class certification. Appellees believe there are issues that require further review by the Court in the interest ofjustice. On August 24, 2015, the Appellees' Motion for Rehearing was denied. This Motion requests that the entire Court sitting en bane reconsider the Panel's decision. III. 

### THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN CERTIFYING THE CLASS It 

### is hard to imagine a scenario more appropriate for a class action. It 

### is undisputed that there are approximately 163 lots in the Canyon Lake Island subdivision, approximately 300 current individual property owners, and that joining each ofthe owners as parties to this suit would cost approximately $50,000 in filing fees. The Court could take judicial notice that the Comal County Appraisal District lists the property on which the prescriptive easement is claimed with a value of $134,300, making the $50,000 in filing fees very relevant. It 

### is further undisputed that membership in the Association is voluntary, and that each non-member owner (current or future) could assert claims similar to the Association's claims in the case at bar, and these claims would not be barred by res judicata or collateral estoppel. It 

### is undisputed that subsequent similar suits could
2

### result in inconsistent rulings and judgments. Nevertheless, this Court concluded the trial court failed to conduct a "rigorous analysis" in certifying the class. The rigorous analysis should take into consideration the alternatives to a class action. No suitable alternative to a class action is mentioned by this Appellate Court. There is none? This Court recognizes that these basic facts are uncontroverted, and does not cast doubt on the veracity ofthe Appellees' undisputed assertions. Nevertheless, the Court would require more evidence, the nature ofwhich is left a mystery, and a
more rigorous analysis ofundisputed issues. This is an invasion ofthe trial court's discretion and an unprecedented requirement of a more rigorous analysis of undisputed issues. In ajury trial context, it has long been the law that undisputed issues are not submitted to the fact finder. The reasoning behind this principle is obvious. When
a matter is undisputed, there is no need to present evidence to prove what is not in controversy. 

## See Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex. 1971); 

## Wright v. Vernon Compress Co., 296 S.W.2d 517, 523 (Tex. 1956) ("The trial court is

2 

### While not a ground for appeal, but rather for the Court's information, the Appellees continue to assert the Association has no standing to bring this suit because it is a voluntary association with far less than 100% ofthe property owners being members, and it is seeking to assert rights on property that is not even in the subdivision. The trial court denied the Defendants' motion to dismiss for lack ofstanding presumably because the trial court believed the Plaintiffs could bring their case as a class action. If there is no class certification, the Defendants will reurge their motion to dismiss for lack ofstanding. 

### 3

### required to submit only controverted 1ssues. No jury finding 1s necessary to establish undisputed facts."). It

### is well-settled and undisputed by the parties that a trial court's certification of a class action is reviewed under an abuse of discretion standard. A trial court abuses its discretion ifit acts arbitrarily, unreasonably, or without reference to any guiding principles. 

## See Bowden v. Phillips Petroleum Co., 247 S.W.3d 690, 696 (Tex. 2008). Here the panel of the Court criticizes the trial court's class certification with little indication why class certification is inappropriate in this
case. The only substantive criticism of the certification is that the named class representatives claim to be unwilling to serve, which is addressed below. Otherwise, this Court's opinion provides no guidance to trial courts. It 

### is a vague mandate to scrutinize uncontroverted issues, and would require voluminous evidence to establish matters not in dispute. In a class certification proceeding, the trial court must perform a rigorous analysis to determine whether all the prerequisites to class certification have been met and how the claims will be tried. 

## See Southwestern Ref Co. v. Bernal, 22 S.W.3d 425, 435 (Tex. 2000). The trial court in this case analyzed and made findings as to each ofthe prerequisites to class certification, as set forth in the trial court's thorough and well-reasoned order. Despite the acknowledged abuse of

4

### discretion standard, this Court allows the trial court no discretion in concluding this
case is appropriate for class certification. The trial court recognized the appropriateness of a class action. The alternatives to class certification are unjust and unwieldy: Either the Appellees spend approximately $50,000 in fees tojoin 300 individual property owners (not to mention the additional attorney's fees and expenses, which would far outstrip the value ofthe Appellee's property), or the parties proceed with the litigation despite the known risk of subsequent suits and inconsistent judgments. These are the undisputed alternatives to class certification, which this Court does not deny. This Court improperly substitutes its own judgment for that of the trial court's. Moreover, this Court's opinion would for the first time ever require trial courts to somehow more "rigorously" analyze undisputed facts and issues

- an unprecedented and wholly improper holding. The trial court performed the required rigorous analysis required, and acted within its discretion in certifYing the class. IV. THE NUMEROSITY REQUIREMENT IS SATISFIED This Court would apparently require some additional unspecified evidence to prove that joining 300 additional property owners and trying the case with hundreds ofparties would be "impracticable." It 

### is, ofcourse, possible intheory to join thousands or even millions ofparties to any lawsuit. But our courts have long 5

### recognized that it becomes impracticable at a certain point. This 1s the class action's 

## raison d'etre. Here the facts are undisputed that in the absence of class certification the Appellees would have to spend tens of thousands of dollars andjoin hundreds of parties. The trial court quite reasonably concluded that joining every property
owner is impracticable. What additional evidence beyond the undisputed facts, or what additional analysis this Court would require from the trial court is uncertain. The trial court acted well within its discretion in finding the proposed class meets the requirements ofnumerosity and impracticability. 

# v. THE NAMED CLASS REPRESENTATIVES ARE ADEQUATE This Court voices concern because the class representatives own lakefront lots, and some class members' lots are not on the lakefront. There is no requirement that all class members' claims be identical. 

## Federal Practice & 

## Procedure § 1762 notes: "Plaintiffs' grievances generally must share a common question of law or fact. In fact, only one question oflaw or fact must be common to the proposed class. Some factual differences among class members do not defeat commonality." 

## Federal Practice & 

## Procedure § 1762, 7.2.A.2. Commonality (internal citations omitted). "The typicality requirement centers on 'whetherthe class representative's claims have the same essential characteristics as those ofthe putative class. Ifthe claims arise from a similar course ofconduct and 6

### share the same legal theory, factual differences will not defeat typicality.' Put another way, typicality can be determined by whether there is a sufficient nexus between the claims of the named representatives and those of the class. As with commonality, factual differences do not defeat typicality ifthe course of conduct and the claims are based on the same legal theory." FederalPractice & Procedure 

## § 1762, 7.2.A.3. Typicality (internal citations omitted). The class representatives' lakefront lots do not make them inadequate representatives, nor would they be inadequate iftheir lots did not have lakefront locations. The central issue in this case - what easement rights the owners have
across the Appellees' property
- affects all property owners in the subdivision identically. The possibility that a prescriptive easement might affect the value of the various lots differently does not make the representation inadequate. This conflict, even assuming it exists, is neither "fundamental," nor does it "go to the heart ofthe litigation." See Riemer v. State, 

### 392 S.W.3d, 635 639 (Tex. 2012). This Court recognizes the three named class representatives are "subdivision property owners, Association members, involved in and knowledgeable about the litigation generally, and would be available for trial." In a calculated effort to avoid certification, the class representatives claim to be unwilling to participate. As pointed out in the Appellee's brief, a named defendant class representative's unwillingness to serve as a representative "should not deter a court from naming it
7

### as it representative." Thillens, Inc. 

### v. Community Currency Exch. Ass 'n of Illinois, Inc., 97 F.R.D. 668, 678 (N.D. 

### Ill. 1983). 

### This Court recognizes the rule discussed in Thillens 

### and other cases cited by the Appellees, but finds a distinction between a plaintiff's class representative and
a defendant's class representative. This distinction is misplaced. Here the Appellees bring their own declaratoryjudgment action to determine the absence of any prescriptive easement, among other issues. Thus, the class is in effect a defendant class, even though the class representatives might be called plaintiffs. This Court's "logical concern" about the willingness of the named representatives to represent the class overlooks the more glaring logical concern: How can the Appellees proceed with class certification if each named representative need only profess her unwillingness to serve in order to defeat certification? This is precisely the concern of the many courts that have recognized that unwilling representatives ofa defendant class can still be adequate. See Federal Practice & 

### Procedure 1768. 

### Finally, the Court's concern that the class representatives might opt out is merely hypothetical. They have not opted out or even stated they intend to. Regardless, should they opt out in the future, additional representatives may be named. There mere possibility that the representatives could opt out is hardly grounds for reversal ofclass certification.
8

## VI. CONCLUSION For the foregoing reasons, the Appellees request that the entire Court review this matter. THEREFORE, it is requested that: a) The court grant reconsideration 

## en bane and reset oral argument on this matter; b) The court grant the reliefrequested in the Motion for Rehearing; and c) Appellees be granted such other reliefto which it may be entitled. Respectfully submitted, MARTIN & 

### DROUGHT, P.C. Bank ofAmerica Plaza, 25th 

### Floor 300 

### Convent Street San Antonio, Texas 78205 

### Telephone: (210) 227-7591 

### Telecopier: (210) 227-7924



### GERALD T. DROUGHT State Bar No. 06134800 

### gdrought@mdtlaw.com MATHIS B. BISHOP State BarNo. 24045500 

### mbishop@mdtlaw.com ATTORNEYS FOR APPELLEES

9

### CERTIFICATE OF COMPLIANCE As required by 

### TEx. R. APP. P. 

### 9.4(i)(3), I certify that the Appellees' Motion for Reconsideration 

## En Bane contains 1,916 words, excluding the parts of the Motion that are exempted by 

### TEX. 

### R. APP. P.**9.4(i)~**

# L-L
., -/;)

# $#~~/-/ MATHIS B. BISHOP

10

### CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument will be sent to the following parties ofrecord by: Regular Mail Certified Mail, Return Receipt Requested Hand Delivery 

# >< Facsimile Mr. Tom Newton, Jr. Allen Stein & 

### Durbin 6243 IH-10 West, Ste. 700 San Antonio, TX 78201 

## Facsimile: 738-7488
on the 8th day ofSeptember, 2015.

GERALD T. DROUGHT MATHIS B. BISHOP

11

### Tab No. 1 

### APPENDIX
Opinion issued June 5, 2015

12

### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT 

### AUSTIN
NO. 03-14-00208-CV Canyon Lake Island Property Owners Association, Cynthia M. Griffin, Richard A. Conley, and Bill Lester, Appellants
v. Sterling/Suggs Limited Partnership, Neal E. Suggs, and Nadine R. Suggs, Appellees

FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH .JUDICIAL DISTRICT NO. C2012-1457B, HONORABLE DIB WALDRIP, .JUDGE PRESIDING
MEMORANDUM OPINION
This is an interlocutory appeal from a class certification under Rule 42 of the Texas Rules ofCivil Procedure. See Tex. R. Civ. P. 42 (class actions). Appellant Canyon Lake Island Property Owners Association, an entity representing some of the property owners in the Canyon Lake Island subdivision, filed suit to enforce two easements-one express, the other prescriptive1-burdening a tract ofland owned by appellees Sterling/Suggs Limited Partnership, Neal E. Suggs, andNadine R. Suggs (collectively, "Sterling/Suggs"). Sterling/Suggs deniedthat it
was obstructing the express easement for lake access and maintained that the property owners had not established aprescriptive easement allowingthemto usethe property for anypurpose otherthan
access. Sterling/Suggs then successfully petitioned the district court to certify the Association's

1 A "prescriptive easement" is an easement created from an open, notorious, continuous, exclusive, and adverse use over a statutory period. See Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979). 

### APPENDIX 1lawsuit as a plaintiffclass action-joiningall past, future, and present subdivisionproperty owners
as partyplaintiffs-andit is this class certification that the Association, Griffin, Conley, andLester challengeinthis interlocutoryappeal. Based onourconclusionthatthe districtcourtdid notconduct the rigorous analysis required for class-action certifications, we will reverse the certification and remand for further proceedings. Background Residents and property owners of neighborhoods located on or near a body of water often confront issues involving access to that body ofwater. While this is especially true for properties that lack waterfront, it can also be an issue for waterfront-property owners if, for example, that access affects neighborhood property values orprovides a specialized type ofaccess. But before the circumstances underlying this case arose, the proposed class members in this case-i.e.,thepropertyowners ofCanyonLakeIsland, a subdivision locatedon anorthernpeninsula ofCanyon Lake, in Coma! County-did not face any such lake-access issues. According to the Association, the residents ofthe subdivision had been using and improving' a nearby .704-acre waterfront lot as a community gathering place and means ofaccess to Canyon Lake since 1971. Further, in 2005, adeedconveying five tracts ofreal propertyto Sterling/Suggs, including the .704-
acre waterfront lot discussed above, expressly reserved to all subdivisionpropertyowners a 15-feet wide "pedestrian and vehicular" easement across the
.704-acre lalcefront lot from the lake to aroad running through the subdivision.

2 For example, the Association asserts that the residents paved a road across the property. 2TheAssociationclaims, howeverthatbeginning around 2010, Sterling/Suggsbegan to physically obstruct the property owners' ability to use their express-easement as well as the prescriptive-easement the Association asserts that the residents had secured by their longstanding use and improvement ofthe property. For example, the Association claims that by 2012, Sterling/Suggs hadinstalled a locked gate at the lot'sboundarywith the road; built a fence and gate post inside the lot; destroyed the paved surface built by the property owners' "causing it to be impassablebyvehicle" and "unsafe for foot traffic"; obstructedthe easementwith "theroofedge of
a building," rocks, "huge concretebuilding blocks," andboulders; and placed a boulder at the edge ofthe express-easement location where it meets the lake "to imped[e] pedestrian and vehicular traffic." Accordingly, theAssociationfiled aclaim fortrespass and interferencewithpropertyrights against Sterling/Suggs, seeking injunctive reliefregardingthe obstructions and declaratoryreliefas to the validity and scope ofthe express easement as granted in the 2005 deed and the prescriptive easement ofaccess anduse establishedby 30 years ofthe owners' continuous andadverseuse ofthe lot as a communitypark and gathering area and as a way to access the lake. In response to the Association's lawsuit, Sterling/Suggs denied the establishment ofany prescriptive easement burdening its property, counterclaimed for declaratoryjudgment to that effect, and although not disputing the existence of the express easement, denied that it had obstructed the owners' use ofthat express easement. The Association obtained a temporary injunction prohibiting Sterling/Suggs from obstructing the use of tbe express easement by the subdivision's owners and residents. Soon thereafter, Sterling/Suggs sought to certify the Association's suit as a class action and to specificallyjoin subdivision property owners Griffin, Conley, and Lester as the class representatives. Griffm, Conley, and Lester, who objected to their 

### 3joinder in the suit and to being made representatives, moved to strike Sterling/Suggs's joinder request and to deny the class certification. After a hearing on the certification motion, the district court issued an order certifying the class and naming Griffin, Conley, and Lester as the unwilling class representatives. It is from this certification order that the Association, Griffin, Conley, and Lester now appeal.
Discussion Appellants challenge the district court's class-certification order in three issues-(1) the evidence in the record does not suppmt class certification; (2) the district court shouldhave dismissed Griffin, Conley, andLesteras parties; and (3) Griffin, Conley, andLesterare not appropriate class representatives. The underlying inquirytriggeredbythese challenges, and the scope of our interlocutory review here, is whether the district court properly and accurately perfonned the rigorous analysis required by Rule 42 to certify a class action.
Class-action certification-background and standard ofreview To be certified as a class action, a proposed class must satisfy the requirements of Rule 42 ofthe Texas Rules ofProcedure. See Tex. R. Civ. P. 41; Riemerv. State, 392 S.W.3d 635, 637, 639 (Tex. 2012).3 Sterling/Suggs, as the party seeking to litigate the Association's lawsuit as
a class action, has the burden to establish that the proposed class satisfies Rule 42's requirements. See Comcast v. Behrend, 133 S. Ct. 1426, 1432 (2013) ("The Rule 'does not set forth a mere

3 Because Rule 42 was modeled after Rule 23 of the Federal Rules of Civil Procedure, federal case law interpreting Rule 23 may be relied on as persuasive authority by Texas courts in constming Rule 42. FordMotor Co. v. Sheldon, 22 S.W.3d 444, 452 (Tex. 2000). 4pleading standard.'
.... Rather, a party must not only 'be prepared to prove that there are infact sufficientlynumerousparties, commonquestionsoflaworfact,' typicalityofclaims ordefenses, and adequacy ofrepresentation, as required by Rule 23(a)
.... The party must also satisfy through evidentiary proof at least one of the provisions of Rule 23(b)." (quoting Wal-Mart Stores, 

### Inc.
v. Dukes, 131 S. Ct. 2541, 2551-52 (2011))). The prerequisites to a class action as set forth in Rule 42(a) are: (1) numerosity("the class is so numerous thatjoinderofallmembersis impracticable"); (2) commonality ("there are questions oflaw or fact common to the class"); (3) typicality ("the claims or defenses of the representative parties are typical of the claims or defenses ofthe class"); and ( 4) adequacy ofrepresentation ("the representative parties will fairly and adequately protect the interests ofthe class").
See Tex. R. Civ. P. 42. If these four threshold requirements are met, the class proponent must then assert and establish that the proposed class action falls under at least one of Rule 42(b)'s subdivisions. Forexample, as invoked in the certification orderissuedhere, Rule 42(b)(3) requires that "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication ofthe controversy." Id. 42(b)(3). In addition to (b)(3), Sterling/Suggs asserted in its certification motionthat the proposed class also fit into the categories described in subsection (b)(1): (1) the prosecution ofseparate actions by or against individual members ofthe class would create a risk of 5Id. 42(b). (A) inconsistent or varying adjudications with respect to individual members ofthe class which would establish incompatible standards ofconduct for the party opposing the class, or (B) adjudications with respect to individual members ofthe class which would as apractical matterbe dispositive ofthe interests ofthe other members not parties to the adjudications or substantially impair or impede their ability to protect their interests
....

We review a trial court's decision to certify a class for an abuse ofdiscretion. See, e.g., Bowden v. Phillips Petroleum Co., 247 S.W.3d 690, 696 (Tex. 2008); Southwestern Ref Co.
v. Bernal, 22 S.W.3d 425, 433 (Tex. 2000). A trial court abuses its discretion ifit acts arbitrarily, unreasonably, or without reference to any guidingprinciples. Bowden, 247 S.W.3d at 696; Walker
v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). We do not, however, indulge every presumption in the trial court's favor, as compliance with class-action requirements must be demonstrated rather than presumed. Bowden, 247 S.W.3d at 696 (citing Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 691 (Tex. 2002)). The trial court must perform a "rigorous analysis" of the Rule 42 requirements-both subsection (a)'s threshold requirements and subsection (b)'s categorizations-before certifying a class. See, e.g., Wal-Mart, 131 S. Ct. at 2551-52; Riemer, 392 S.W.3d at 639 ("A trial court must apply a rigorous analysis to determine whether Rule 42's certification requirements have been satisfied." (citing Bowden, 247 S.W.3d at 696; Bernal, 22 S.W.3d at 435 (citing General Tel. Co. ofSw. v. Falcon,457 U.S. 147, 161 (1982))). Courtshave traditionallyconstruedthis directiveto requiretrial courts to, among otherthings, look"'beyondthe pleadings
... as a court must understand the claims, defenses, relevant facts, and applicable

6substantive law in order to make a meaningful detennination ofthe certification issues."' Bernal, 22 S.W.3d at 435 (quoting Castano v. American Tobacco Co., 84 F.3d 734,744 (5th Cir. 1996)). Sterling/Suggs's motion and evidence In its motion seeking to certify the class, Sterling/Suggs argued that if the Association's lawsuit was not certified as a class action that included all past, present, and future
owners oflotsinthe subdivision, itwouldbe subjectto multiple suits regardingwhetherittrespassed
or damaged the express easement and the existence ofthe prescriptive easement. Despite their unwillingness to be either plaintiffs or class representatives, the motion sought to have the Association, Griffm, Conley, and Lester named as class representatives because allowing an "unwilling representative to abdicate would vitiate the effectiveness of [Sterling/Suggs's] class action," and because those proposed representatives "have demonstrated their ability to prosecute and finance this case." The motion listed the prerequisites ofRule 42(a) and stated, with varying degrees of explanation that will be discussed in more detail below, that each requirement had been satisfied. The motion further asserted that the proposed class could be maintained under Rule 42(b)(3) (offering as the support for this assertion the verbatim requirements of that subsection), butit also describedthe class as meetingtherequirements ofsubsections (b)(l)(A) and (b)(1)(B) (again offering as the support for this assertion the verbatim requirements ofthe relevant subsections). At the hearing on its motion to certify the class, Sterling/Suggs introduced into evidence a copy of the subdivision plat, which provides general information regarding the subdivision, including that it consists oflots numbered 1through 171. Sterling/Suggs also offered

7the testimony ofRichard Conley, one ofthe property owners that Sterling/Suggs was seeking to join in the case as an unwilling plaintiff and class representative, whose testimony can be fairly summarized as followsHe owns eight lots in the subdivision (including his homestead), is an Association board member, and has been involved in the litigation, including depositions, planning, and soliciting donations from otherpropertyowners topayfor the litigation. Heunderstands the issues in the case andwouldbeavailableto attendtrial. Hebelieves that the Associationhas or could raise the funds to pay for the legal fees associated with the lawsuit. Lester is retired, lives in Houston, owns one lot in the subdivision, is an Associationboard member, and is actively involved in the litigation.
• Griffin is a real estate broker, owns two ormore lots, is anAssociation boardmember, and is actively involved in the litigation. Hebelieves thatTornNewton, the Association's attorney, is competentand has done a good job handling the case. Neitherhe, Lester, nor Griffin are interestedinbeing a parties to the litigation; none ofthem have sued or threatened to sue regarding the easements. He has no intention of suing Sterling/Suggs personally regarding the easements.
• His property, Lester's property, and Griffin's property are alllakefront property that have direct access to the lake. Having direct lake access is not typical for the other lots in the subdivision because less than halfthe lots are waterfront property.
• He stated that some property owners are ofthe opinion that the easement would raise the value ofall theproperties in the subdivision, butthat others thought some owners might be ofthe opinion that it would be more valuable to those with lakefront property ifthere was no easement.
No other evidence was offered at the hearing, although counsel for the parties presented argument to the court regarding the propriety of class certification. That argument included uncontested assertions thatmembership inthe Association was not mandatory; each ofthe subdivision's owners and residents could assert a claim similarto that ofthe Association's against Sterling/Suggs ifthey 8so desired; and there are approximately 163 lots, approximately 300 current individual property owners, and it would cost approximately $50,000 in filing and service fees tojoin those parties to
a suit. The district court also hadthe parties' pleadings before it.
Class-certification order Inits ordercertifying the class, the district court did not make specifically identified findings or conclusions regarding the Rule 42 prerequisites, but it did find, presumably regarding numerosity, that "the cost of joining approximately 200 individual property owners as plaintiffs in the case, individually, is prohibitive" and that a class action "would be far more manageable and time efficient than trying as many as 200 separate lawsuits." See Tex. R. Civ. P. 42(a)(J) (class action appropriate only if"the class is so numerous thatjoinder ofall members is impracticable"). Likewise, regarding the commonality prerequisite, the court found that- [T]he common issues of fact and law among the class members are whether a prescriptive easement exists on the subject propertybyreason ofalleged use bythe owners and residents ofCanyon Lake Island ofthe claimed easement tract for the purposeoftravelingto andfrom Canyon LakeReservoirfromMilitaryDrive,byfoot and with vehicles, including the towing ofboats and other watercraft, and whether Defendant's obstructedthe easement rights ofthe owners andresident[s] ofCanyon Lake Island
.... See id. 42(a)(2). As to the typicality requirement, the district court listed the elements of the proposed class's claims and defenses and found that "there are no issues offact or Jaw that affect only individual class members"; that "whether the Plaintiffs have a prescriptive easement across the Defendant's tract willbethe object ofmost ofthe efforts ofthe litigants andthe Court"; and that the cases will involve the "same witnesses, the same evidence, [and] the same legal issues." The
9districtcourtnamedtheAssociation, Griffin, Conley, andLesteras theclassrepresentatives andthen determinedthatGriffin, Conley, andLesterwere "qualifiedandadequate"class representatives. See 

### id. 42(a)(3)-( 4) (requiringrepresentatives' claims betypical ofotherclaims and thatrepresentatives adequatelyrepresentclass). Afteracknowledgingintheorderthat someoftheserepresentatives own lakefront properties and may not need an easement to access the lake, the court explained that this didnotdestroytypicalitybecausetherepresentatives "wouldbenefitfrom an additional accessto the lake" and access to the lake for all owners would "likely increase the value ofall the property in the subdivision." The district court noted that the appointed representatives hadbeen involved in the Association's meetings and litigation. Regarding the makeup ofthe class and its claims, the district court then designated the following "classes" ofplaintiffs:

• All current owners ofproperty inthe Canyon Lake Island Subdivision; Allpastowners of propertyinthe CanyonLakeIsland Subdivisionwho acquiredtitle after September 22, 1971; and All future owners ofpropertyin the Canyon Lake Island Subdivision.
Thoseplaintiffs, the districtcourtdetennined next, couldassertthe following "claims anddefenses"
as part oftheir class action: Trespass-'Theplaintiffowned orhad a lawful right to possess real property; [t]he defendant enteredtheplaintiffs landandthat entrywas ... physical,
... intentional,

... voluntary; and [t]he defendant's trespass caused injury to the plaintiffsright of possession."

10• Prescriptive easement-"Theplaintiffs use ofthe claimed easement tract was ... open and notorious,
... adverse to the defendant's claim ofright,
... exclusive, uninterrupted, and
... continuous for a period often years."
• Tortious interference withproperty-"Theinvasionorinterferencewith [p]laintiffs property rights by [d]efendant occurred, that such invasion/interference caused [p]lain tiffdamage, and such invasion/interference was withoutjust cause nor was otherwise excused." Finally, the district court folmd that the proposed class could be maintained under the following Rule 42(b) categories:

• 42(b)(1)(A}--theprosecution ofseparate actions would create arisk ofinconsistent adjudications with incompatible standards of conduct for the party opposing the class;
• 42(b)(1 )(B)-theprosecution ofseparateactionswouldcreateariskofadjudications that would be dispositive of, or substantially impair or impede, interests ofnonparties; and 42(b)(3)-the questions oflaw or fact common to the class members predominate over questions affecting only individuals, and class action is superior to other available methods for the fair and efficient adjudication ofthe controversy.
See id. 42(b)(1 ), (3). Specifically, the district court found that ifSterling/Suggsprevailed inthe suit
as brought bythe Association, it would "likelybe subject to claims by other property owners in the subdivision seeking a prescriptive easement" on the property, but that res judicata or collateralestoppel defenses may not be available because not all the property owners are members of the Association. The district court also found that ifthe Association were to prevail, questions might arise regardingwhetherthe non-members ofthat organization were entitled to the benefits of thatjudgment.

11Rigorous analysis Applyingthe appropriate standard ofreviewto the record before us, we hold that the district court failed to conductthe "rigorous analysis" requiredbyRule 42 in decidingto certify the proposed class. Specifically, we hold that the district court abused its discretion by certifying a class actioninthe absence ofevidence establishingthatthe classmeets Rule 42(a)'snumerosityand adequacy requirements and that it qualifies as a class under Rule 42(b)(1)and (b)(3)'s categories. Numerosity/impracticability Satisfaction ofRule 42's requirement that the proposed class "is so numerous that joinder of all members is impracticable" depends not on some set nwnber of potential class members, but on the particular facts ofeach case. See General Tel. Co. of the Nw., Inc. v. Equal Emp't Opportunity Comm'n, 446 U.S. 318, 330 (1980) ("The numerosity requirement requires examination ofthe specific facts ofeach case and imposes no absolute limitations."); In re TWL Corp., 712 F.3d 886, 894 (5th Cir. 2013) (emphasizing that "thenumber ofmembers in aproposed class is not determinative ofwhetherjoinder is in1practicable"); Zeidman v. J. RayMcDermott & Co., 651 F.2d 1030, 1038 (5th Cir.1981); 7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice &Procedure§ 1762 (3d ed. 2005) (collecting cases in which numerosity
was satisfied with as few as 25 putative class members, but not satisfied with as many as 350, and explaining that this inconsistency "graphically demonstrates that caution should be exercised in relying on acase as aprecedent simplybecause it involves aclass ofaparticular size"). Inanalyzing
a proposed class's compliance with this requirement, courts should consider, in addition to the number ofpotential parties, factors such as judicial economy, the nature ofthe action, the ease
12with which class members may be identified, the geographical location ofclass members, and the likelihood that class members would be unable to prosecute individual lawsuits. See TWL Corp., 712 F.3d at 894. Here, the only numerosity/impracticability information Sterling/Suggs provided
was a subdivision plat showing a group of(essentially) contiguous lots numbered 1through 171, its assertions that there are "as many as 300" owners ofthe lots and that it would cost about $50,000 tojoin the owners, and its unsupported conclusion that "there are so many people, that to try the
case with multiple parties would be impracticable." But aside from this unsupported conclusion, Sterling/Suggs has not explained, much less demonstrated, how it would be impracticable-i.e., extremelydifficult orinconvenient, seeFederalPractice & Procedure § 1762-tojoinall members oftheproposedclass, whichthe evidence shows consists ofreadilyidentifiablereal-propertyowners ofa fixed number of 160 already-identified tracts ofreal property that are all located in the same neighborhood. Without such a showing, the district court's certification could not have been the result ofthe required rigorous analysis ofthe numerosity/impracticabilityrequirement. Adequacy of representation This prerequisite requires a demonstration by the class proponent that the class representatives "will fairly and adequatelyprotect the interests ofthe class." Tex. R. Civ. P. 42(a). Its purpose is to ensure that the representatives' interests are aligned with the interests of the unnamed class members. Factors for the trial court to consider in determining whether this prerequisite has beenmet include the zeal and competence ofclass counsel andthe willingness and abilityofthe representatives to protectthe interests ofthe absentees and to take anactiverole inand control the litigation. Rainbow Grp., Ltd. v. Johnson, 990 S.W.2d 351, 357 (Tex. App.-Austin

131999, pet. dism'd w.o.j.). The primary issue to be considered is whether conflict or antagonism exists between the interests ofthe representatives and those ofthe remainder ofthe class. Riemer, 392 S.W.3d at 639 ('"[A] class representative whose interests conflict with the interests ofother class members may not adequately represent a class."' (quoting State Farm Mut. Auto. Ins. Co.
v. Lopez, 156 S.W.3d 550, 556 (Tex. 2004)); Rainbow G1p., 990 S.W.2d at 357; see Southwestern Bell Tel. Co. v. MarketingonHoldinc., 308 S.W.3d 909, 925 (Tex. 2010) (adequacyconsiderations include representative's connection to the class-wide injury, benefits representative receives; representative's motivation in asserting claims). For a conflict ofinterest to prevent certification, the conflict must be fundamental and go to the heart ofthe litigation. Riemer, 392 S.W.3d at 639 (citing Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 430-31 (4th Cir. 2003)). Based on ourreview ofthe recordhere, Sterling/Suggs failed to demonstrate thatthe three individuals named as unwilling classrepresentatives would adequatelyrepresenttheproposed class. Although the record establishes that the three are subdivision property owners, Association members, involved in and knowledgeable about the litigation generally, and would be available for trial, it also shows that theydo not wantto beplaintiffs orrepresentatives, and unlike more than 50% ofthepropertyowners theywould be representing, thatthey each ownlakefront lots with their
own private access to the lake. The district court found that ajudgment in favor ofthe property owners-i.e., a determination that aprescriptive easement exists-wouldbenefit all lots; however, other than testimony from the one lay witness that two property owners disagree about the effect of
ajudgment, there is nothing in the record to support (or dispute) the district court's finding that a prescriptive easement would lift all boats, as it were. Moreover, the simple fact is that ajudgment infavorofSterling/Suggs-i.e.,thatnoprescriptive easement exist-wouldaffectthe non-lakefront 14owners more adversely than the representatives given that the representatives have waterfront property. On this point alone, the record raises a suggestion of potential conflict that was not properly addressed hy evidence put on by Sterling/Suggs. Anotherpossible sourceofantagonismthat Sterling/Suggshasfailed to addressis the namedrepresentatives'unwillingness to participate as eitherparties orrepresentatives. Whilebeing
anunwilling representative ofa defendant class maynot eliminate someone from being a fair and adequate representative, see Federal Practice & Procedure §§ 1768, 1770, the question is more nuancedin the context ofa plaintiffclass such as wehavehere. A plaintiffsunwillingness to serve
as a representative may "reflect[] antagonism to the suit being brought so that the class's interests would not be adequately protected." Id. § 1768. The issue is further complicated where, again as
wehave here, the designated plaintiffrepresentative is not even a willingparticipant inthe suit. In fact, although we have not found any cases directly on point that support this seemingly logical concern, the SupremeCourthas suggestedthatforcing anunwillingplaintiffto participateina class might abridge that plaintiffs right to his own day in court and invalidate the class-actionrule. See Shady Grove OrthopedicAssocs., P.A. v. AllstateIns. Co., 559 U.S. 393, 394 (2010) (concluding, inpluralityopinion,thatclass actiondoesnotviolateRulesEnablingAct"insofaras it allowswilling plaintiffs to join their separate claims against the same defendants in a class action"); Sergio J. Campos and Howard Erichson, The Future of Mass Torts, 159 U. Pa. L. Rev. PENNumbra 231 (discussing Shady Grove and positing that it stands for propositionthat class action with unwilling plaintiffs '"abridge[s]' one's day in court" and "invalidates rule 23 at the same time"). While it is notdifficultto imaginetheantagonismthatmightarisefrom forcing sucha situation, thebottomline for ourpurposes here is that Sterling/Suggs has not demonstrated that the proposedrepresentatives 15will adequately represent the class. As a result, the district court's certification could not have resulted from a rigorous analysis ofthis adequacy requirement.
Class designations As part ofits rigorous analysis, a trial court must also determine that the proposed class qualifies under at least one of the categories described in Rule 42(b) and then, in its certification, designate the class appropriately such that it can be managed under the applicable category. See Tex. R. Civ. P. 42. The district court here found that the proposed class action satisfies all but one ofRule 42(b)'s subsections-omitting only subsection (b)(2), which most commentators agree is intendedforclass actionsinvolvingcivil-rights issues, see Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 664 (Tex. 2004). This was so despite the fact that there was nothing in the record showing that, for example:

• Sterling/Suggs is under some obligation to treat all subdivision owners alike and that differentjudgments would impair its abilityto maintain that obligation. See Tex. R. Civ. P. 42(b)(l)(A);FederalPractice &Procedure§ 1773 (notingthat (b)(1)(A)is applicablewhere party is required, either by law or by practical necessity (i.e., riparian owner as to downstreampropertyowners) to treatclassmembers alilce); seealsoAmchemProducts, Inc. v. Windsor, 521 U.S. 591,614 (1997) (citingBenjaminKaplan, Continuing Workof the Civil Committee: 1966Amendmentsof the FederalRules of CivilProcedure (I), 81 Harv. L. Rev. 356, 375-400 (1967)).
• Judgment in a separate action would have an adverse effect (beyond a mere precedential effect) on the potential class members-e.g., that there is a limited fund available to satisfy judgments. See Tex. R. Civ. P. 42(b)(1)(B); Federal Practice &Procedure§ 1774 (noting that most common example of (b)(1)(B) class is "one in which the class members have claims against a fimd that may prove insufficient to satisfy all ofthem").
• That a class action would be "superior to other available methods," Tex. R. Civ. 

### P. 42(b)(3)-i.e., the class action must "achieve economies oftime, effort, and expense, and promote ... uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about otherundesirable results." Amchem, 521 U.S. at 614 (quoting Adv. Comm. Notes, 28 U.S.C. App., p. 697). 16In other words, Sterling/Suggs did not meet its burden here and, as a result, the district court's certification could not have been the result ofthe required rigorous analysis. Finally, as noted, the district court's certification orderdesignates the class action as
a (b)(3) class action. This means that its members will be permittedto opt out ofthe class litigation ifthey so choose. See Tex. R. Civ. P. 42(b)(3); Lapray, 135 S.W.3d at 671 (describing mandatory and opt-out classes). Presumably, the three unwilling plaintiffs who are being forced to serve as unwilling representatives ofthe class would seek to exercise that right.
Conclusion Given the lack of evidence in the record regarding numerosity/impracticability, adequacy of representation, and the 42(b) categories, and the potential problems inherent in having unwilling plaintiffs serve as class representatives in an opt-out class, we cannot say that the district court's certification here was the result ofthe rigorous analysis required to certify a class under Rule 42. Accordingly, we hold that the district court abused its discretion in certifying this class. We reverse the district court's class-certification order, decertify the class, and remand this matter to the district court for further proceedings consistent with this opinion.

JeffRose, ChiefJustice Before ChiefJustice Rose, Justices Pemberton and Goodwin Reversed and Remanded Filed: June 5, 2015

17