De Los Santos v. Occidental Chemical Corp

In De Los Santos v. Occidental Chemical Corp., 933 S.W.2d 493, 495 (Tex. 1996), the Court held that an interlocutory order that changed a certified class from opt-out to mandatory and created conflict between the class and its counsel altered the fundamental nature of the class and was appealable under the statute. In De Los Santos, plaintiff Grant filed suit against OxyChem and others for injuries caused by a butadiene plant's accidental chemical release. Other plaintiffs intervened and the defendants, facing hundreds of personal injury suits, successfully moved the court to certify a mandatory class over the plaintiffs' vigorous objections. Grant and others appealed the certification, but a group of over 500 plaintiffs represented by attorney Gonzalez did not join in the appeal even though they had initially opposed the certification. While appeals of the certification order were pending, the case was transferred to another court. The new court granted the plaintiffs' motion to reconsider and certified the class as an opt-out class. The Gonzalez plaintiffs and others opted out, and the Grant plaintiffs proceeded to trial. The jury found defendants to be negligent and grossly negligent, and awarded actual damages. Before proceeding to the punitive damages phase of the trial, the defendants offered to settle for $ 65,700,000 provided that a mandatory class was certified and approved by the trial court. The class counsel, who had previously opposed a mandatory class, accepted and joined the defendants in convincing the court to modify the class by changing it from an opt-out class to a mandatory settlement class. This was done over the objection of those plaintiffs who had rejected class counsel's representation by opting out and not participating in the trial. The court of appeals dismissed the objecting plaintiffs' appeal for want of jurisdiction for the proposition that an order changing the size of a class merely modifies a certification order and does not qualify as an "order certifying or refusing to certify a class." In De Los Santos, the trial court modified the class to change it from an opt-out class to a mandatory class. The Court held that this fundamentally altered the nature of the class. "Changing a class from opt-out to mandatory does not simply enlarge its membership; it alters the fundamental nature of the class." De Los Santos, 933 S.W.2d at 495. The Court accordingly held that the court of appeals had jurisdiction over an interlocutory appeal from the trial court's modification of the class even though a modification of a class is not, strictly speaking, "an interlocutory order . . . that . . . certifies or refuses to certify a class" within the meaning of section 51.014(a)(3). TEX. CIV. PRAC. & REM. CODE 51.014(a)(3).