ADT Security Services, Inc. v. Hunter Hawa, Individually and as Representative of Others Similarly Situated

• Court: Court of Appeals of Texas
• Decided: November 3, 2005
• Docket: 09-04-00536-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-04-536 CV

ADT SECURITY SERVICES, INC., Appellant

V.

HUNTER HAWA, INDIVIDUALLY AND AS REPRESENTATIVE OF OTHERS

SIMILARLY SITUATED, Appellee

On Appeal from the 58th District Court

Jefferson County, Texas

Trial Cause No. A-171007

MEMORANDUM OPINION

Hunter Hawa (Hawa) sued ADT Security Services, Inc. (ADT) for breach of contract and unjust enrichment. Hawa alleged that ADT failed to provide a three-month limited warranty at no charge as provided under his contract and requested that the court certify a class of similarly situated individuals under Rule 42. See Tex. R. Civ. P. 42. The trial court granted Hawa's motion for class certification under Rule 42(b)(4) of the Texas Rules of Civil Procedure. ⁽¹⁾ ADT filed an interlocutory appeal pursuant to section 51.014(a)(3) of the Texas Civil Practice and Remedies Code.

ADT raises five issues contesting whether the trial court appropriately certified the class. First, ADT asserts the trial court abused its discretion by deciding the breach of contract issue on its merits. Second, ADT asserts the trial court abused its discretion in applying the parol evidence rule to prohibit extrinsic evidence of an undefined term, "Quality Service Plan." Third, ADT contends the court improperly applied rules of contract construction to render the term "Quality Service Plan" meaningless. Fourth, ADT contends the trial court failed to rigorously analyze whether class certification was proper. Fifth, ADT asserts the trial court abused its discretion by certifying a class action without creating an adequate trial plan.

We hold that the trial court's order certifying the class fails to comply with Rule 42's requirements. See Tex. R. Civ. P. 42. As a result, we reverse the certification order and remand for proceedings consistent with this opinion.

ADT'S CONTRACT AND HAWA'S BREACH OF CONTRACT CLAIM

ADT provides residential security systems and monitoring to customers. When ADT contracted with Hawa to install an alarm system in his home, he signed a Residential Services Contract. The Residential Services Contract has a three-month limited warranty that provides:

LIMITED WARRANTY. During the first three (3) months after installation, we will repair or, at our option, replace any defective part of the system, including wiring, and will make any needed mechanical adjustments, all at no charge to you. We will use new or functionally operative parts for replacements. This limited warranty is for your benefit only, and may not be enforced by any other person. This limited warranty gives you specific legal rights. The laws of the state where this Contract was signed may also give you additional rights.

The Residential Services Contract also describes the restrictions in the limited warranty:

WARRANTY EXCLUSIONS. . . THE LIMITED WARRANTY AND, IF PURCHASED, THE EXTENDED LIMITED WARRANTY DO NOT APPLY IF WE DETERMINE UPON INSPECTION THAT ANY OF THE FOLLOWING CONDITIONS CAUSED THE NEED FOR SERVICES: A. Damage resulting from accidents, Acts of God, alterations or misuse; B. You fail to properly close or secure a door, window or other point protected by an alarm device; C. You fail to properly follow the operating instructions; D. Trouble in a telephone line or due to interruption of power; E. Repairs needed to window foil, security screens, exterior mounted devices, or PROM (Programmable Read Only Memory), batteries; F. Ordinary maintenance or wear and tear; G. Alterations to your premises; or H. Alterations to the system made at your request, or made necessary by a change to your premises, damage to your premises or the alarm system, or for any other cause beyond our control . . .

ADT offered, and Hawa purchased, an extended limited warranty affording additional warranty coverage for three years. The extended warranty provided:

EXTENDED LIMITED WARRANTY. If you have purchased our Extended Limited Warranty, we will extend the Limited Warranty explained above for the term of this contract. The Extended Limited Warranty will automatically renew for successive two (2)-year terms at our then-current annual service charge unless terminated by either party's written notice given at least thirty (30) days before the end of the then-current term.

A box located on the first page of the contract, and apparently checked by ADT's salesperson, reflects that Hawa opted to purchase the extended warranty. A corresponding box labeled "Annual Service Charge," reflects that ADT charged Hawa $72.00.

Hawa contends that, during the first year of the warranty, the $72.00 Annual Service Charge should have been reduced to $54.00 to account for the three months of free warranty protection described in the Limited Warranty paragraph. In essence, he contends he paid $72.00 when under the terms of his contract he should have been charged only $54.00.

However, ADT contends that the $72.00 charge is actually a nine-month charge, prorated over 12 months. Essentially, ADT's position is that its annual charge was $96 per year, and that $72 represents a charge for nine months. ADT explains that it did not subsequently increase its annual charge in year two or year three of the contract "because ADT decided that it would be too costly in terms of customer phone calls and possible cancellations to change the annual charge after the first year."

ADT supported its position with the affidavit of Tim McKinney, the Vice-President of Residential Sales for ADT, who testified that consumers who opted to buy the extended limited warranty were charged a nine-month rather than a twelve-month rate. ADT also included an internal memo dated March 6, 1989, reflecting that the charge in the first year was prorated.

Customers opting to purchase the extended limited warranty also receive a "Quality Service Plan." The term "Quality Service Plan" is not specifically listed in the definitions' section of the Residential Services Contract, and the parties disagree on its meaning. Hawa contends that the Quality Service Plan creates no contractual obligation beyond that created by the Extended Limited Warranty. Hawa's argument is premised on the language used in the contract, the absence of a separate definition of Quality Service Plan, and the integration clause found in ADT's form contract.

ADT maintains that its Quality Service Plan is distinct from the Extended Limited Warranty, and that because the term "Quality Service Plan" is not defined in the contract, ADT should be permitted to introduce parol evidence to provide meaning to the term. ADT further asserts that since parol evidence is required as to "Quality Service Plan," the focus of any future trial would be whether each individual class member received independent consideration in return for ADT's providing the Quality Service Plan. ADT reasons that the necessity for parol evidence as to its bargain with individual customers would make the individual transactions the focus of any trial. Because ADT contends its evidence would need to address what each customer knew or expected to receive with respect to the Quality Service Plan, ADT concludes that the necessity for the finder of fact to evaluate each contract and the extent of its bargain with each of its customers destroys the predominance of any common issues.

Of further importance to Hawa's breach of contract claim is the integration and merger clause of the Residential Services Contract, which provides:

ENTIRE AGREEMENT. THIS CONTRACT CONSTITUTES OUR ENTIRE AGREEMENT. BY SIGNING IT YOU ADMIT THAT YOU ARE NOT RELYING ON OUR ADVICE OR ADVERTISEMENTS. YOU AGREE THAT YOU AND WE ARE NOT BOUND BY ANY REPRESENTATION, PROMISE, CONDITION, INDUCEMENT OR WARRANTY, EXPRESS OR IMPLIED, THAT IS NOT INCLUDED IN WRITING IN THIS CONTRACT. THE TERMS AND CONDITIONS OF THIS CONTRACT APPLY AS PRINTED WITHOUT ALTERATION OR QUALIFICATION, UNLESS A CHANGE IS APPROVED IN WRITING BY OUR AUTHORIZED REPRESENTATIVE. THE TERMS AND CONDITIONS OF THIS CONTRACT SHALL GOVERN EVEN IF YOU SUBMITTED A PURCHASE ORDER OR OTHER DOCUMENT WITH INCONSISTENT OR ADDITIONAL TERMS AND CONDITIONS.

Hawa argues that the contract's entireties clause bars ADT's parol evidence. ADT asserts that it does not.

CERTIFICATION ORDER

On December 8, 2004, the trial court entered an order certifying a class as follows:

DAMAGE CLASS (TRCP 42(a) and 42(b)(4))

All persons or entities who: 1) entered into a services contract with ADT to cover residential property located in the State of Texas 2) during the four years prior to the date of filing of this lawsuit, through the date of certification 3) who elected the Quality Service Plan/Extended Limited Warranty during the Limited Warranty period of their services contract and 4) were assessed and paid for the Extended Limited Warranty during the Limited Warranted period of their services contract.

The trial court also excluded some groups from the class. The exclusions are not pertinent to our opinion, and the groups excluded by the trial court's certification order are not further mentioned.

The trial court also made the following findings of fact and conclusions of law that are relevant to this opinion:

(1) that the provisions of the Residential Services Contract are "unambiguous";

(2) that the "unambiguous nature of the contract terms at issue in this lawsuit and the comprehensive merger clause drafted by ADT in Paragraph 27 dictate that no individual determination will be necessary to resolve the claims and defenses in this proposed class action";

(3) that the classes' claims "rest on a single common issue: was ADT's assessment and collection of annual service charges for the Quality Service Plan/Extended Limited Warranty during the coverage period of the Limited Warranty a breach of contract?";

(4) that the resolution of this common issue "will be a matter for the Court";

(5) that "no fact issue exists [as to individual damages] and individual damages will be a matter for resolution by the Court";

(6) that "this matter can easily and efficiently be managed through to a conclusion on a class-wide basis without impairing or affecting in any way the substantive or procedural rights of either side in this litigation"; and

(7) that "all issues presently raised or anticipated in this litigation will be resolved by the Court making the involvement of a jury unnecessary."

STANDARD OF REVIEW AND RULE 42(c)(1)(D)

In evaluating the appeal of a class certification order, we do not apply a deferential standard of review, but evaluate the trial court's "'actual, not presumed, conformance with [Rule 42 of the Texas Rules of Civil Procedure]. . . .'" National Western Life Ins. Co. v. Rowe, 164 S.W.3d 389, 392 (Tex. 2005) (quoting Henry Schein, Inc. v. Stromboe,102 S.W.3d 675, 690 (Tex. 2002). Rule 42, among other requirements, provides that an order granting or denying class certification shall state:

(i) the elements of each claim or defense asserted in the pleadings;

(ii) any issues of law or fact common to the class members;

(iii) any issues of law or fact affecting only individual class members;

(iv) the issues that will be the object of most of the efforts of the litigants and the court;

(v) other available methods of adjudication that exist for the controversy;

(vi) why the issues common to the members of the class do or do not predominate over individual issues;

(vii) why a class action is or is not superior to other available methods for the fair and efficient adjudication of the controversy; and

(viii) if a class is certified, how the class claims and any issues affecting only individual members, raised by the claims or defenses asserted in the pleadings, will be tried in a manageable, time efficient manner.

Tex. R. Civ. P. 42(c)(1)(D). ⁽²⁾

DID THE COURT FIND THAT ADT BREACHED ITS CONTRACT?

With respect to the potential breach of contract claim, and with respect to the existing record at the certification hearing, the trial court accurately identified the contractual issue to be resolved at a trial. In its certification order, the trial court states: "Plaintiff's claims rest on a single common issue: was ADT's assessment and collection of annual service charges for the Quality Service Plan/Extended Limited Warranty during the coverage period of the Limited Warranty a breach of contract?" The certification order states that the issue's resolution "will be a matter for the Court." ⁽³⁾ The certification order does not expressly indicate whether the trial court intended to decide this issue as a matter of law or to decide the issue at a trial, with the trial judge acting as the trier of fact. However, the trial court's statement in the certification order that the issue would be resolved without the necessity of a jury could be interpreted to indicate the trial court's intent to dispose of the case and any contested issue as a matter of law rather than at a trial.

Under these circumstances, the certification order is ambiguous regarding whether the trial court intended to try the contract issue as a finder of fact, or adjudicate the issue as a matter of law. We also note that although no jury demand had been filed, either party could still demand a jury trial. See Tex. R. Civ. P. 216. Further, in our view, both the breach of contract issue and the damages issue are likely to involve the necessity of a trial by a finder of fact.

The confusion created by the trial judge's statement that the breach of contract issue was "a matter for the court" is further compounded by the certification order's reference to the certified class as a "damage" class. This reference implies that the trial court had resolved the contract issue adversely to ADT. However, at the class certification hearing, the trial court indicated that it did not "believe that there [would] be much in the way of [a] fact question." Thus, under the record on appeal, we are unable to determine whether the trial court intended to try the breach of contract issue as a question of fact, or whether it intended presently, or in the future, to adjudicate the issue as a matter of law. The Rules of Civil Procedure require the certification order to reflect how the class claims will be tried. See Tex. R. Civ. P. 42(c)(1)(D)(viii). Because the trial court's order does not clearly explain how the claims are to be tried, it violates Rule 42.

HAWA'S UNJUST ENRICHMENT CLAIM

Hawa asserted in his suit that: "ADT has been unjustly enriched by the money it has received in service charges for Extended Limited Warranties during the time period of the Limited Warranty. Plaintiff and the Class are entitled to recover the amounts assessed as service charges for Extended Limited Warranties during the Limited Warranty period so that ADT will not be unjustly enriched."

Hawa asserts his unjust enrichment count as an alternative to his breach of contract claim, because Hawa's pleadings state that the unjust enrichment claim is made "[i]n the event that the [Residential Service Contract is] determined to be vague or not [to] control the issue of the lawsuit." "A party may recover under the unjust enrichment theory when one person has obtained a benefit from another by fraud, duress, or the taking of an undue advantage." Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992). A claim for unjust enrichment may arise when the "person sought to be charged [has] wrongfully secured a benefit or [has] passively received one which it would [be] unconscionable to retain." City of Corpus Christi v. S.S. Smith & Sons Masonry, Inc., 736 S.W.2d 247, 250 (Tex. App. - Corpus Christi 1987, writ denied). Hawa's unjust enrichment count is set out as a separate claim from his breach of contract claim. "[T]heories of different counts may be contradictory and may support inconsistent remedies. The allegations of one count may not be used to impeach or contradict allegations in another count." 2 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 8:57 at 397 (2d ed. 2003).

Even though Hawa asserts his unjust enrichment claim as an alternative theory of recovery, the trial court's certification order must explain how it intends to handle the claim. Rule 48 of the Texas Rules of Civil Procedure specifically allows a party to set forth alternative claims. Tex. R. Civ. P. 48; Regency Advantage Ltd. Partnership v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex. 1996). When alternative theories are pled, the evidence is sufficient to submit the alternative theories to the jury, and the defendant's acts are the proximate cause of the same damages under both theories, a plaintiff is entitled to make a post-verdict election of the recovery that affords the larger recovery. Birchfield v. Texarkana Mem'l Hosp., 747 S.W.2d 361, 367 (Tex. 1987).

In summary, Texas law does not prohibit a party from proceeding to trial on alternative theories. Since the trial court determined the contract to be unambiguous, we recognize the possibility that the trial court does not intend to reach Hawa's unjust enrichment claim. However, the certification order does not dispose of the unjust enrichment count. The record reflects no summary judgment, dismissal, or severance of the unjust enrichment claim. The trial court's certification order does not expressly address whether the trial court intends to try Hawa's unjust enrichment count, and gives no meaningful explanation regarding how it would try Hawa's unjust enrichment theory.

Moreover, the certification order's silence on Hawa's unjust enrichment theory is inconsistent with Rule 42's requirement that the court state the elements of each claim asserted in the pleadings and, where alternative theories are pled, explain "how the class claims and any issues affecting only individual members, raised by the claims or defenses asserted in the pleadings, will be tried in a manageable, time efficient manner." Tex. R. Civ. P. 42(c)(1)(D)(i),(viii). The trial of an unjust enrichment claim would likely vary significantly from that of a breach of contract claim. The issues submitted to the jury on an unjust enrichment claim, the evidence that is relevant and admissible, and the measure of damages might differ significantly from a breach of contract claim. The certification order before us fails to address how Hawa's unjust enrichment count would be tried, and whether the various elements involving class certification are met regarding this count under the requirements of Rule 42(b).

In National Western Life Ins. Co. v. Rowe, 164 S.W.3d 389 (Tex. 2005), the Texas Supreme Court recently reversed a trial court class certification order in a case that included an unjust enrichment count. The reason offered by the Rowe Court, in part, in reversing the class certification order was the absence of any meaningful explanation of how the court would try damages. Id. at 392. The Supreme Court concluded that "[t]he trial court did not perform the rigorous analysis required by [Southwestern Refining Co. v.] Bernal, [22 S.W.3d 425 (Tex. 2000)] to determine whether class action requirements have been met in this case." Id.

In Union Pacific Resources Group, Inc. v. Hankins, 111 S.W.3d 69 (Tex. 2003), and in Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675 (Tex. 2002) the Texas Supreme Court also reversed orders certifying classes where the claims included counts for unjust enrichment. In Hankins, the Court concluded that a lack of commonality existed when, under the facts of that case, the damages recoverable were not subject to generalized proof. See 111 S.W.3d at 74. In Stromboe, the plaintiffs' primary claim was for breach of contract but other claims, including unjust enrichment, were asserted. The Texas Supreme Court noted:

Even if the court were correct that the plaintiffs' primary action is for breach of contract and their primary damage claim disgorgement--and it is far from clear to us that this is an accurate assessment of the plaintiffs' contentions-- the plaintiffs have not abandoned their other actions and damage claims, and there is nothing in the trial court's order or the court of appeals' opinion to indicate how these other issues are to be tried.

102 S.W.3d at 688.

The certification order before us does not discuss how the court intended to resolve Hawa's unjust enrichment claim. Because the certification order does not rigorously analyze the unjust enrichment claim, dispose of it, or inform us of how such a claim would be tried, the order does not comply with the requirements of Rule 42.

DAMAGES

With respect to damages, the certification order contemplates that damages will be resolved as a matter of law. The trial court's certification order states, "Indeed as both parties are relying on the same records for a damage determination, no fact issue exists and individual damages will be a matter for resolution by the Court. . . . "[A]ll issues presently raised or anticipated in this litigation will be resolved by the Court making the involvement of a jury unnecessary."

While a trial court may examine and look at issues, and potential evidence, in determining whether to certify a class, "[d]eciding the merits of the suit in order to determine the scope of the class or its maintainability as a class action is not appropriate." Intratex Gas Co. v. Beeson, 22 S.W.3d 398, 404 (Tex. 2000). With respect to damages in breach of contract cases, the general rule is that "the complaining party is entitled to recover the amount necessary to put him in as good a position as if the contract had been performed." Smith v. Kinslow, 598 S.W.2d 910, 912 (Tex. Civ. App. - Dallas 1980, no writ).

Generally, in a breach of contract case, the normal measure of damages is just compensation for the loss or damage actually sustained, commonly referred to as the benefit-of-the-bargain. See SAVA Gumarska in Kemijska Industria D.D. v. Advanced Polymer Sciences, Inc., 128 S.W.3d 304, 317 n. 6 (Tex. App. - Dallas 2004, no pet.). Although not entirely clear, it appears to have been the trial court's view that a benefit-of-the-bargain measure of damages would apply. If, upon trial, ADT was shown to have breached its contract by failing to provide three free months of limited warranty service, it appears the trial court intended to look at the business records of ADT and evaluate the damages on an individual basis without allowing a trier of fact to resolve any factual dispute.

We do not disagree that a benefit-of-the-bargain measure would likely apply to Hawa's claims. But we disagree that damages are likely to be capable of being resolved as a matter of law. ADT argues on appeal, and argued in the trial court, that it provided not only the Extended Limited Warranty for the payment of the annual charge of $72, but also a Quality Service Plan. In our view, ADT's contention that the Quality Service Plan had value, and ADT's evidence concerning the bundling of the Quality Service Plan with the Extended Limited Warranty, raises the potential that the evidence at trial would likely be sufficient to create a fact issue on damages flowing from any alleged breach by ADT's alleged failure to provide three months of free warranty service.

ADT argues that the consideration, in part, provided to the putative class members was its Quality Service Plan. Therefore, according to ADT, "This additional benefit, by itself, would justify Hawa's first three monthly $6 payments of the Annual Service Charge."

At oral argument, ADT agreed that the Extended Limited Warranty and Quality Service Plan were never sold separately. As reflected by ADT's contract, the service option of "Extended Limited Warranty/Quality Service Plan" is on the same line in the "Services to be Provided" section of the contract and would be selected by checking a single box at the side of the option. The services provided for these charges by ADT are "bundled," and the services cannot be purchased separately. Thus, because the value, if any, of the Quality Service Plan is contested, and because the service is bundled, a simple mathematical calculation of $6 per month as damages would not necessarily follow from ADT's alleged failure to provide three free months of warranty service.

Because the trial court plan failed to discuss how it would resolve disputed issues of fact and indicates that it intended to dispose of the issue on motion practice, the current trial plan is inadequate. The trial court erred in deciding at the class certification stage, on this record, that damage claims would be resolved as a matter of law.

PAROL EVIDENCE OF CONTRACT TERMS

ADT contends that class certification is not appropriate because individual issues predominate. ADT argues that parol evidence will be needed to determine the meaning of its contract with each individual class member. ADT's argument revolves around the meaning of "Quality Service Plan" as used in ADT's Residential Service Contract.

"Quality Service Plan" is found in three places in ADT's contract. In Section 2 of the Residential Service Contract under the title "Services to be Provided," there is a line for "Quality Service Plan/Extended Limited Warranty," and a box beside that term is checked if the customer purchases the Extended Limited Warranty. Section 4 of the contract contains a line to be initialed if the customer declines the "Quality Service Plan/Extended Limited Warranty." Finally, the Table of Contents refers to Section 14 of the contract as relevant to "Extended Limited Warranty (QSP)." Section 14 of the contract, however, only refers to Extended Limited Warranty, and does not expressly define the benefits of ADT's Quality Service Plan. There are no other sections of the contract that mention the term "Quality Service Plan."

Because the term is not expressly defined, ADT asserts that the term requires it to introduce evidence extrinsic to the contract to give meaning to the contract with respect to the meaning of "Quality Service Plan." If it were allowed to introduce evidence of the meaning of "Quality Service Plan," ADT contends that its evidence would prove that "ADT's QSP provides for a discount on non-warranty covered repairs and an extension of the limited warranty through the contract's full term." We note, however, that ADT's position that its contract provided customers with a discount on non-warranty covered repairs is not mentioned as an obligation within the four corners of the Residential Service Contract. Hawa asserts that the integration clause of ADT's contract bars ADT from introducing evidence that adds to or varies the written terms of the contract. Where a written agreement is fully integrated, the parol evidence rule precludes the enforcement of inconsistent prior or contemporaneous agreements. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 32 (1958). "Merger, with respect to the law of contracts, refers to the extinguishment of one contract by its absorption into another contract and is largely a matter of the intention of the parties." Smith v. Smith, 794 S.W.2d 823, 827-828 (Tex. App. - Dallas 1990, no writ). "An integration clause is in essence the merger doctrine memorialized." Id. at 828.

Under Texas law, however, the existence of an integration provision does not always prohibit the introduction of testimony to show the terms of the agreement where the contract, on its face, shows that it is not fully integrated. See Bob Robertson, Inc. v. Webster, 679 S.W.2d 683, 688-89 (Tex. App. - Houston [1st Dist.] 1984, no writ). Also, a court in evaluating a contract may conclude that the contract is integrated with respect to some of its terms, but not integrated with respect to others. Magnolia Warehouse & Storage Co. v. Davis & Blackwell, 108 Tex. 422, 195 S.W. 184, 185 (1917).

The issue presented in this appeal is whether the contract is fully integrated with respect to the meaning of ADT's Quality Service Plan. We expressly do not address whether the contract is fully integrated in all respects, since the issue before us is limited to whether this particular aspect of the contract is integrated.

By including an integration clause, the parties intended the contract to reflect the terms of the agreement between them without the need to resort to parol evidence. Also, neither of the parties pled that the contract was ambiguous; so the question of the term's meaning is a question of law for the court. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)). A contract is unambiguous if it can be given a definite or certain legal meaning. DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999).

The trial court found ADT's contract to be unambiguous. With respect to the meaning of the term "Quality Service Plan," we also conclude that the agreement Hawa signed is not ambiguous as it can be given a definite legal meaning.

In interpreting a contract, we look at the contract as a whole. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). When the Residential Service Contract is viewed as a whole, we find that the meaning of ADT's "Quality Service Plan" can be given a definite legal meaning.

First, we observe that the limited warranty and extended limited warranty are subject to various exclusions in Section 15. These exclusions include damage from accidents or Acts of God. Thus, there are some circumstances not covered by either the limited warranty or the extended warranty where ADT's equipment might fail to operate and ADT's customers might reasonably call upon ADT to repair ADT-installed equipment. Recent experience with the loss of services due to Hurricanes Katrina and Rita are possible examples of situations where ADT customers might desire service that would probably not be covered by ADT's limited or extended warranties.

Under such a circumstance, we further observe that Section 17 of the contract requires ADT, at its customer's request, to replace ADT provided equipment that is otherwise excluded from the warranty "at [its] then-prevailing prices." Thus, the contract contemplates that ADT would provide equipment and services that under some circumstances were not covered by its warranties at its then prevailing prices. In other words, in such a circumstance, ADT contractually bound itself to provide equipment and services at its existing prices. As stated by the Texas Supreme Court in Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951):

[A] contract is ambiguous only when the application of pertinent rules of interpretation to the fact of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. . . . In other words, if after applying established rules of interpretation to the contract it remains reasonably susceptible to more than one meaning it is ambiguous, but if only one reasonable meaning clearly emerges it is not ambiguous.

In our view, property damages to homes related to Hurricanes Katrina or Rita demonstrate that a term in a contract creating a contractual obligation to replace or repair equipment at prevailing prices in circumstances such as those not otherwise covered by the express terms of the warranties are obligations that may have significant value. The services that ADT contractually bound itself to provide, that were not otherwise covered by the warranty, in our view constitute the Quality Service Plan provided under ADT's contract.

Construing the contract in this manner upholds the integration clause of ADT's contract and creates a consistent result for all ADT customers. Because the term "Quality Service Plan" is capable of being given meaning without the necessity of parol evidence, we find no error in the trial court's determination that it intended to exclude ADT's evidence that its Quality Service Plan obligated it to give customers discounts on its usual price. We further point out, however, that whether ADT's proffered evidence would be admissible in a trial involving an unjust enrichment claim is not before us.

CONCLUSION

"[A] trial plan is required in every certification order to allow reviewing courts to assure that all requirements for certification under Rule 42 have been satisfied." State Farm Mut. Auto. Ins. Co. v. Lopez, 156 S.W.3d 550, 556 (Tex. 2004) (emphasis in original). As discussed above, the trial court's certification order fails to demonstrate that all of Hawa's claims, his potential damage theories, and the court's trial plan meet the requirements of Rule 42. The certification order dated December 8, 2004 is reversed and the cause remanded for further proceedings. We need not address the other issues raised because the remaining arguments and issues will likely be impacted by the trial court's additional proceedings.

REVERSED AND REMANDED.

____________________________

HOLLIS HORTON

Justice

Submitted on September 1, 2005

Opinion Delivered November 3, 2005

Before McKeithen, C.J., Gaultney and Horton, JJ.

1.

This suit was instituted under former Rule 42(b)(4) of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 42(b)(4)(Vernon 2003)(repealed 2003). In 2003, the Texas Supreme Court deleted the provisions of former Rule 42(b)(3) and renumbered all pertinent parts of former Rule 42(b)(4) as current Rule 42(b)(3). See Tex. R. Civ. P. 42(b)(3); see Order Amending Texas Rules of Civil Procedure, Oct. 9, 2003 (Tex. Misc. Docket No. 03-9160). Although this suit was instituted prior to the changes in Rule 42, the trial court's certification occurred after Rule 42 was amended. We find no substantive changes in the former Rule 42 and the current Rule 42 relevant to the issues in this appeal, no reason the current version of the Rule cannot be applied, and no injustice in the application of the current Rule. Thus, we analyze the issues under, and cite to the current version of Rule 42 as the applicable Rule. See also Tex. R. Civ. P. 814 (explaining that the Rules of Procedure govern "actions brought after they take effect, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event the former procedure shall apply").

2. For the same reasons as explained in footnote 1, we cite to the current rule. Although not identical to the express language in the former rule, the current rule does not expand the interpretation of the requirements that courts perform a rigorous analysis before certifying a class as discussed by the Texas Supreme Court in Southwestern Refining Co. v. Bernal, 22 S.W.3d 425 (Tex. 2000) and Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675 (Tex. 2002).

3. The record also reflects that no party, as of the date of the certification order, had filed a request for a jury trial.