The Coastal Corporation, Coastal Holding Corporation, CIC Industries, Inc., Coastal States Crude Gathering Co., Coastal Refining & Marketing, Inc., Javelina Company, and American Chrome & Chemicals, Inc., Petitioners

Jorge Garza, et al., Respondents

Justice Enoch delivered the opinion of the Court, in which Chief Justice Phillips, Justice Spector, Justice Baker, and Justice Abbott join.

Justice Hecht filed a dissenting opinion, in which Justice Owen and Justice Gonzalez joined.

Justice Hankinson did not participate in the decision.

This is an interlocutory appeal from a class-certification order. Residential property owners in Corpus Christi sued several chemical manufacturers and commercial facility owners for property damage from alleged long-term emissions of contaminants. The trial court certified two main classes, each with several subclasses. The court of appeals affirmed. Several named defendants filed applications for writ of error, asserting that this Court has jurisdiction to consider the interlocutory appeal because the court of appeals' opinion conflicts with RSR Corp. v. Hayes . We disagree. Consequently, we dismiss this appeal for want of jurisdiction.

Jorge Garza and others (the "Property Owners") filed six separate suits against The Coastal Corporation and others (collectively, "Coastal") asserting that Coastal's facilities' alleged emissions of benzene and hexavalent chromium diminished their property value. Some Property Owners also complained that their property was contaminated with groundwater hydrocarbon emissions, further devaluing their property.

The Property Owners moved to certify a class including the owners of about 2,500 nearby parcels of residential real property. The trial court certified two different classes. The "I-37 North" class consisted of all persons owning single-family residential real property on June 1, 1991, within a certain geographical boundary. The trial court divided this class into five subclasses based on the date on which the class member acquired the property, and an additional subclass of property owners whose property overlies the alleged surface groundwater hydrocarbon contamination.

Each member of the second class, the "I-37 South" class, belonged to one of two geographical subclasses: (1) the Leopard Street Location subclass; and (2) the Agnes Street Location subclass. The trial court also divided the "I-37 South" class into five subclasses according to property acquisition date.

Coastal appealed the class-certification order. Such an interlocutory order is appealable to the court of appeals under section 51.014 of the Texas Civil Practice and Remedies Code. The court of appeals affirmed the class-certification order.

Section 22.225(b)(3) of the Texas Government Code makes jurisdiction over interlocutory appeals generally final in the courts of appeals. However, section 22.225(c) vests jurisdiction in this Court over, among other matters, interlocutory appeals "in which one of the courts of appeals holds differently from a prior decision of another court of appeals or of the supreme court . . . ." Section 22.225(c) expressly incorporates the standards for conflict jurisdiction in section 22.001(a)(2) of the Government Code. That section grants this Court jurisdiction over "case[s] in which one of the courts of appeals holds differently from a prior decision of another court of appeals or of the supreme court on a question of law material to a decision of the case." Coastal asks us to exercise jurisdiction over the class-certification order pursuant to these provisions.

Noting that it is "difficult . . . to establish conflicts jurisdiction," we stated in Gonzalez v. Avalos that "[f]or this Court to have jurisdiction on the ground of conflict it must appear that the rulings in the two cases are 'so far upon the same state of facts that the decision of one case is necessarily conclusive of the decision in the other.'" In Christy , we remarked that

[f]or jurisdiction to attach on the basis of conflict[,] "[t]he conflict must be on the very question of law actually involved and determined, in respect of an issue in both cases, the test being whether one would operate to overrule the other in case they were both rendered by the same court."

Though this standard is strict, it does not require factual identity for two cases to conflict. While occasionally this Court has suggested that cases cannot conflict without nearly identical facts, more often we have emphasized that the decisions need only be "so far upon the same state of facts " that they would control one another. In short, cases do not conflict if a material factual difference legitimately distinguishes their holdings. On the other hand, immaterial factual variations do not preclude a finding of jurisdictional conflict. A conflict could arise on very different underlying facts if those facts are not important to the legal principle being announced.

In applying the Christy standard, we have ignored factual differences not material to the holdings being compared. we had to decide whether section 101.106 of the Civil Practice and Remedies Code is an "immunity" statute for purposes of triggering a right of interlocutory appeal under former section 51.014(5) of the Civil Practice and Remedies Code. The court of appeals in Obersteller held that section 101.106 was not an immunity statute, while other courts in City of Galveston v. Whitman earlier had concluded to the contrary. Even though these three cases arose under very different facts -- Obersteller involved a suit by a high school student against his coach for intentional infliction of emotional distress; Whitman involved a suit against emergency service dispatchers for alleged delay in responding to an emergency; and Davis involved a suit against a bus driver arising from a traffic accident --we held in Obersteller that the conflicting statutory interpretations vested this Court with jurisdiction over the interlocutory appeal.

With this understanding of our conflict jurisdiction in mind, we turn to whether the court of appeals' opinion in this case conflicts with RSR Corp. v. Hayes , as Coastal asserts.

In RSR , the Dallas Court of Appeals overturned a class-certification order. Residential property owners had sued the owner of a lead smelter, claiming that airborne lead emissions had caused them personal injury and property damage. The plaintiffs asserted causes of action for nuisance, trespass, strict liability, intentional tort, and negligence. After the trial court certified a class of residential property owners within a two-mile radius of the lead smelter, RSR took an interlocutory appeal. The court of appeals reversed the class-certification order because "common" questions did not predominate over individual issues.

Coastal argues that RSR and this case are so similar that this Court has conflict jurisdiction. For example, Coastal points out that the plaintiffs in both cases complained that airborne contaminants adversely affected residential property values. The causes of action alleged in both cases significantly overlapped. Additionally, Coastal notes that in both cases the plaintiffs offered expert testimony in the form of isoplethic maps -- maps with concentric circles indicating levels of pollution -- to depict contamination levels. Moreover, Coastal asserts that in both cases, the effects of the contaminants varied depending on the property's location. In short, Coastal contends that, with the exception of the personal injury claims at issue in RSR , the courts of appeals in both cases answered exactly the same questions about commonality, and that because the courts reached different conclusions, this Court has conflict jurisdiction.

We disagree. This case does not meet the statutory standards for conflict jurisdiction. The decision in RSR does not "hold[] differently" from the court of appeals' decision in this case on "a question of law material to a decision of the case."

First, RSR involved certification of personal injury claims in addition to the property claims; this case does not. The RSR court noted that the undisputed facts in that case demonstrated that lead poisoning affects people differently depending on their unique characteristics. Thus, it held that "the questions concerning a class plaintiff's personal injuries and RSR's liability thereon are not questions common to the class . . . ." Here, the trial court refused to certify any personal injury claims. While RSR might fairly be read to blur the distinction between personal injury and property damage claims, we still cannot say that the court of appeals in RSR held differently than the decision here. As one mass-tort scholar has explained, "personal injury mass tort class actions need to be distinguished from property damage class actions. The latter have been more frequently certified and inherently tend to involve both greater homogeneity among class members and greater commonality in their factual issues." Because this case does not involve certification of personal injury claims, we cannot say that the decisions are in conflict on a material question of law such that this Court has conflict jurisdiction.

Second, the rather complex subclass structure created by the trial court in this case makes it different from the single class at issue in RSR . The RSR court had concluded that a finding of RSR's liability to one set of class members would not mean that it was liable to another set. Here, the subclass structure may produce the commonality of issues that the RSR court found lacking. And whether it does or does not produce commonality, the subclass structure renders this case factually and legally distinct from RSR . An order certifying two classes, each with several subclasses, of property damage plaintiffs simply poses different questions than an order certifying a single class of personal injury and property damage plaintiffs.

Finally, there was undisputed evidence in RSR that "within a significant area of the geographic class, 70% of the class members d[id] not have hazardous levels of lead on their land." In this case, however, there is evidence supporting the contention that all members of the class have been damaged in some way by contaminants. Particularly when coupled with the subclass structure, this distinction between RSR and this case further supports our conclusion that the decisions are not in "conflict" as that term is statutorily defined for purposes of conflict jurisdiction.

In short, the courts of appeals in RSR and in this case did not "hold differently" on the same "question of law." Thus, this Court cannot exercise conflict jurisdiction over this interlocutory appeal. We therefore withdraw our order granting the applications for writ of error as improvidently granted and dismiss this appeal for want of jurisdiction.

______________________

Craig T. Enoch

Justice

Opinion delivered: July 14, 1998

___ S.W.2d ___.

673 S.W.2d 928 (Tex. App.--Dallas 1984, writ dism'd w.o.j.).

See former Tex. Civ. Prac. & Rem. Code § 51.014(3) (allowing interlocutory appeal from order that "certifies or refuses to certify a class in a suit brought under Rule 42 of the Texas Rules of Civil Procedure"). The section designation for this provision was changed in 1997. The current version, which is substantially identical, is now found at Tex. Civ. Prac. & Rem. Code § 51.014(a)(3).

___ S.W.2d ___.

Tex. Gov't Code § 22.225(b)(3).

Tex. Gov't Code § 22.225(c).

Tex. Gov't Code § 22.001(a)(2).

Gonzalez v. Avalos , 907 S.W.2d 443, 444 (Tex. 1995).

Id. , quoting Christy v. Williams , 298 S.W.2d 565, 567 (Tex. 1957).

Christy , 298 S.W.2d at 568-69, quoting West Disinfecting Co. v. Trustees of Crosby Indep. Sch. Dist. , 143 S.W.2d 749, 750 (Tex. 1940).

See Gonzalez , 907 S.W.2d at 444; Christy , 298 S.W.2d at 567.

Friday v. Grant Plaza Huntsville Assocs. , 610 S.W.2d 747, 750 (Tex. 1980) (emphasis added); accord Dixon v. Southwestern Bell Tel. Co. , 607 S.W.2d 240, 241 (Tex. 1980); Rogers v. Rogers , 561 S.W.2d 172, 172-73 (Tex. 1978); Hopkins v. First Nat'l Bank , 551 S.W.2d 343, 345 (Tex. 1977); John Farrell Lumber Co. v. Wood , 400 S.W.2d 307, 308-09 (Tex. 1966); Langdeau v. Republic Nat'l Bank , 341 S.W.2d 161, 163 (Tex. 1960); International Harvester Co. v. Stedman , 324 S.W.2d 543, 546 (Tex. 1959); State v. Wynn , 301 S.W.2d 76, 79 (Tex. 1957).

See, e.g. , Newman v. Obersteller , 960 S.W.2d 621, 622 (Tex. 1997); Friday , 610 S.W.2d at 750; Rogers , 561 S.W.2d at 173; Langdeau , 341 S.W.2d at 163.

960 S.W.2d 621 (Tex. 1997).

That section provides:

A judgment in an action or settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gives rise to the claim.

Tex. Civ. Prac. & Rem. Code § 101.106.

919 S.W.2d 929, 932 (Tex. App.--Houston [14th Dist.] 1996, writ denied).

846 S.W.2d 84, 88 (Tex. App.--Dallas 1992, no writ).

960 S.W.2d at 622; see also Rogers , 561 S.W.2d at 173 (finding a conflict where factual differences were "without materiality or significance"); Langdeau, 341 S.W.2d at 163 (finding conflict between factually dissimilar cases on question of whether federal banking statute superseded Texas venue statutes).

673 S.W.2d 928 (Tex. App.--Dallas 1984, writ dism'd w.o.j.).

Id. at 933.

Id. at 929-30.

Id.

Id. at 933; see also Tex. R. Civ. P. 42(b)(4).

Tex. Gov't Code § 22.001(a)(2); see also Christy , 298 S.W.2d at 567.

RSR , 673 S.W.2d at 933.

John C. Coffee, Jr., Class Wars: The Dilemma of Mass Tort Class Action , 95 Colum. L. Rev. 1343, 1344 n.2 (1995); see also In re School Asbestos Litigation , 789 F.2d 996, 1010 (3d Cir. 1986) (noting that another asbestos case involved more difficult commonality issues "because of the complexity of the causation questions in personal injury suits"); Heather M. Johnson, Note, Resolution of Mass Product Liability Litigation Within the Federal Rules: A Case for the Increased Use of Rule 23(b)(3) Class Actions , 64 Fordham L. Rev. 2329, 2329 n.2 (1996) ("Mass torts involving property damage often involve greater homogeneity among class members, greater commonality of factual issues, and are more likely to be certified as class actions.").

RSR , 673 S.W.2d at 933.

Id. at 932.