source: Caselaw Access Project

author: DAVID PURYEAR, Justice.

license: Public Domain

text:
    Jan LUBIN, Gilberto Villanueva, Michael Paladinao, Gerald Hooks and Lesly K. Hooks, Appellants, v. FARMERS GROUP, INC.; Farmers Underwriters Association; Fire Underwriters Association; Farmers Insurance Exchange; Fire Insurance Exchange; Texas Farmers Insurance Company; Mid-Century Insurance Company of Texas; Mid-Century Insurance Company; Truck Insurance Exchange; Truck Underwriters Association; Farmers Texas County Mutual Insurance Company; The State of Texas; Texas Department of Insurance; and Texas Commissioner of Insurance, Appellees.
    No. 03-03-00374-CV.
    Court of Appeals of Texas, Austin.
    Jan. 21, 2005.

      David Burrow, Alice Oliver-Parrott, Burrow & Parrott, LLP, Joe W. Redden, Jr., W. Curt Webb, David W. Jones, Russell S. Post, Beck, Redden & Secrest, LLP, Dwight E. Jefferson, Dwight E. Jefferson, PLLC, Houston, Villanueva & Pa-ladino, Philip K Maxwell, Joe K. Longley, Longley & Maxwell, L.L.P., Stephen L. McCleery, Austin, Michael T. Gallagher, Dan Downey, Houston, for Lubin, Pat Ma-loney, Jr, Maloney, Jefferson & Dugas, Curt L. Cukjarti, Trey Martin, Conry Davidson, Martin & Cukjati, LLP, San Antonio, John A. Davis, Jr., Steven R. Davis, R. Martin Weber, Jr., Davis & Davis, Steven M. Smoot, Houston, William J. Skepnek, Skepnek Law Firm, P.A., Lawrence, for Villanueva, Joseph C. Blanks, Doucette, for Hooks & Hooks.
    David C. Mattax, Chief, Financial Litigation Division, James R. Wenzek, Jeff Graham, Asst. Atty’s Gen., Amy Warr, Finance Litigation Div., Austin, for State, Tex. Dept, of Ins. & Tex. Comm.
    Gerard G. Pech, Layne E. Kruse, Richard N. Carrell, Katherine D. Mackillop, Marcy Hogan Greer, Michael Scott Incer-to, Mary Schaerel Diets, Fulbright & Ja-worski, LLP, Austin, for Farmers Parties.
    Before Chief Justice LAW, Justices KIDD and PURYEAR; Justice KIDD Not Participating.
   OPINION

DAVID PURYEAR, Justice.

The issue in this interlocutory appeal is whether article 21.21, section 17 of the insurance code allows the Attorney General to maintain a class action without satisfying the class action prerequisites set out in article 21.21, section 18. See Tex. Ins. Code Ann. art. 21.21, §§ 17, 18 (West Supp.2004-05). Section 17 of article 21.21 authorizes the Attorney General, at the request of the Texas Department of Insurance (the “Department”), to institute a class-action suit to recover from an insurer damages for injuries done to the insurance-buying public. Id. § 17(a). Section 18 sets out procedural requirements for class actions, including the appointment of a class representative. Id. § 18. In this case, the Attorney General initiated a class action under section 17, but did not comply with section 18’s procedural requirements; in particular, no class representative was appointed. The district court found that strict compliance with section 18 was unnecessary because the Attorney General was qualified through his capacity as par-ens patriae to adequately represent the interests of the potential class members without the appointment of a class representative. Appellants, individual policyholders who intervened and objected to the class settlement agreement, contend that the trial court erred in allowing the Attorney General to pursue a class action without satisfying the requirements ordinarily applied to class action lawsuits. We agree and hold that the Attorney General must comply with the procedural requirements of section 18 to maintain a class-action suit under section 17. Accordingly, we reverse the district court’s order certifying the class and remand the cause to the district court for further proceedings.

PROCEDURAL AND FACTUAL BACKGROUND

In late 2001, Farmers stopped offering HO-B (“all-risk”) homeowners policies and began offering HO-A (“stated-peril”) homeowners policies that limited coverage for water damage and eliminated mold coverage. The Department investigated and discovered that even with the reduced coverage, Farmers’ premiums had in fact increased. The Department determined that the rate increase was due to the method Farmers used to calculate homeowner rates. Although Farmers had established discounts based on a policyholder’s good credit, geographic location, and age of the home, those discounts were not applied uniformly, resulting in over- and undercharges, unfair rates, and geographic discrimination.

In late 2001, the Office of the Attorney General opened an investigation into Farmers’ failure to disclose the use of credit scoring in determining rates or the particulars of its management-fee arrangement with subsidiaries. In June 2002, the Attorney General opened a separate antitrust investigation into whether Farmers was improperly tying auto and homeowners policies and whether it engaged in an unlawful boycott when it discontinued offering all-risk insurance.

The Department referred its investigation to the Attorney General, and on August 5, 2002, the Attorney General sued Farmers, alleging that Farmers failed to adequately disclose its rating practices and the use of credit scoring and that some of its rating practices were unfairly discriminatory. On August 13, 2002, the Commissioner of Insurance began an administrative proceeding against Farmers and issued an emergency cease and desist order, ordering Farmers to change its rating practices within three months. On August 30, 2002, Farmers filed suit in district court, appealing the cease and desist order and seeking a declaration that the Commissioner of Insurance lacked regulatory authority over Farmers.

On November 30, 2002, the State, the Attorney General, the Department, and the Commissioner of Insurance entered into a Memorandum of Understanding (“MOU”) with Farmers, settling the administrative proceeding and the Attorney General’s investigations and suit and setting forth the terms of a “global settlement.” Under the settlement, the Attorney General was to amend his pleadings to transform the suit into a settlement class action including all claims that had been or could be made by individual policyholders in Texas. The MOU stated that the amended suit:

shall include (and the Parties will stipulate to) the definition of a settlement class or class with settlement sub-classes under Rule 42 of the Texas Rules of Civil Procedure and the parens patriae doctrine, and based upon the [Attorney GeneralJ’s authority under article 21.21 § 17 of the Texas Insurance Code....

Under the MOU, Farmers agreed to reduce homeowners’ base rates by 6.8% immediately, refrain from increasing those base rates until August 31, 2003, and adopt nondiseriminatory discounts based on a home’s age and location and the insureds’ credit history. The MOU also created several settlement funds. Farmers agreed to offer refunds to past policyholders who did not renew their homeowners’ policies when Farmers replaced the HO-B policies with HO-A policies. One fund was to be used to compensate policyholders who were wrongly denied any discounts, and another was to reimburse policyholders for any overcharges associated with erroneous credit information. The MOU also called for the payment of $2 million in attorneys’ fees and costs to the State, included a provision allowing either party to terminate the settlement agreement if more than 2% of the eligible policyholders opted out of the settlement, and required Farmers to discontinue its practice of tying one kind of policy with another.

On December 18, as required by the MOU, the Attorney General filed his first amended petition “in the name of the State of Texas ... and on behalf of the Commissioner of Insurance ..., the Department of Insurance ..., and certain classes of Texas homeowners and automobile insureds.” The amended petition stated, “At the request of the Commissioner and in the public interest, the State, by and through the Office of the Attorney General, brings these claims as a class action pursuant to Tex. Ins.Code art. 21.21, § 17 and Tex.R. Civ. P. 42 on behalf of the Settlement Classes,” and defined the following three settlement classes: the “Rate Class,” the “Discount Class,” and the “Credit Usage Notice Class.” The petition also alleged:

The prerequisites to maintaining a class action under the Texas Insurance Code have been met. The classes are so numerous that joinder of all members is impracticable, there are questions of law or fact common to the classes, the claims that Plaintiffs have brought are typical of the claims of class members, and the State ■will fairly and adequately protect the interests of the classes.... Furthermore, the questions of law or fact common to each 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 of the controversy.

On February 18, 2003, the Attorney General filed a second amended petition making the same substantive allegations. The Attorney General changed the manner in which he purported to represent the class parties from stating that he was bringing the suit “on behalf of ... certain classes of Texas homeowners and automobile insureds” to asserting that he was bringing the suit “in the interest of Farmers’ Texas homeowners-insuranee policyholders and the Automobile Insurers’ automobile-insurance policyholders.” (Emphasis added.) The description of the Attorney General’s role changed as well, to state, “At the request of the Commissioner and in the public interest, the State, by and through the Office of the Attorney General, brings these claims as a class action pursuant to Tex. Ins. Code Ann. art. 21.21, § 17 and as parens patriae under Tex.R. Civ. P. 42 to seek restitution for insureds of Defendants.” The petition again alleged that the prerequisites to maintaining a class action under the insurance code were met, and added an assertion that the prerequisites to maintaining a class action as parens patriae were also satisfied.

The district court conducted a lengthy hearing on the class certification issue and heard testimony from several witnesses. One of the main issues was whether sections 17 and 18 of article 21.21 of the insurance code authorized the Attorney General to bring a class action suit without satisfying traditional class-action prerequisites, in particular, the appointment of a class representative who would adequately represent the interests of the class and whose claims were typical of the class. See Tex. Ins.Code Ann. art. 21.21, §§ 17, 18(a)(3), (a)(4). The Attorney General argued that he was not required to designate a class representative because section 18(a) applied by its terms only to “private class actions” and because the Attorney General was, as a matter of law, unauthorized to enter into an attorney-client relationship with an individual class representative. One of Farmers’s witnesses, Professor Samuel Issacharoff, agreed and opined that a suit brought by the Attorney General under section 17 was comparable to a parens patriae action brought under federal law.

On June 27, 2002, the court signed an “Order of Preliminary Approval,” finding that the Attorney General could bring the class action. The court found that the Attorney General could, “fulfill the role of the Settlement Classes’ Counsel” by virtue of “the parens patriae authority granted in section 17 of article 21.21 of the Insurance Code and Rule 42 of the Texas Rules of Civil Procedure.” The court further found that, if the requirements of Rule 42 and section 18 had to be satisfied:

each of those requirements has been met, specifically: (a) each of the Settlement Classes is so numerous that join-der of all members is impracticable; (b) there are questions of law or fact common to the Settlement Classes which predominate over any individual questions; (c) the claims or defenses brought by the State on behalf of Farmers’ policyholders are typical of the claims or defenses of the Settlement Classes and the State is authorized to bring claims on behalf of the Settlement Classes; (d) in negotiating and entering into the Settlement Agreement, the State has fairly and adequately represented and protected the interests of the Settlement Classes; (e) the questions of law or fact common to the Settlement Classes predominate over any questions affecting only individual members; and (f) certifying this Action as a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

Appellants brought this interlocutory appeal. See Tex. Ins.Code Ann. art. 21.21, § 18(d) (authorizing interlocutory appeals of certification orders). Appellants argue that the district court abused its discretion in certifying the settlement class action because (1) the Attorney General is not exempt from the requirements of section 18 and rule 42; (2) there is no class representative; (3) settlement classes are subject to heightened scrutiny; (4) the Attorney General lacks authority to assert the class’s strongest claims; (5) there is a conflict of interest between the Attorney General and the Department; (6) there is intra-class conflict; and (7) the Attorney General failed to evaluate some of the released claims. Because we conclude that the district court committed an error of law in certifying the settlement class without a class representative, we limit our review to that issue alone.

STANDARD OF REVIEW

We review a trial court’s preliminary order to certify a class for an abuse of discretion. Southwestern Ref. Co. v. Bernal, 22 S.W.3d 425, 433 (Tex.2000); see General Motors Corp. v. Bloyed, 916 S.W.2d 949, 955 (Tex.1996). A trial court abuses its discretion when ruling on class certification if it does not properly apply the law to the undisputed facts. State Indus., Inc. v. Fain, 38 S.W.3d 167, 169 (Tex.App.-Waco 2000, pet. denied).

Because the trial court’s ruling was based on its construction of sections 17 and 18 of the insurance code, we apply rules of statutory construction in deciding to what extent the Attorney General must comply with section 18(a) of article 21.21 of the insurance code in bringing a class-action suit under section 17. Statutory-construction is a question of law we review de novo. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989). In construing a statute, the primary objective is to determine and give effect to the legislature’s intent, beginning with the plain and common meaning of the statute’s words. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003). We are bound to construe the statute as written, and if possible, ascertain the legislature’s intent from the language used in the statute. Texas Workers’ Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex.2000). In ascertaining legislative intent, we may consider the evil sought to be remedied, the legislative history, and the consequences of a particular construction. See Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998). Additionally, we must consider the statute as a whole rather than as isolated provisions and should not give one provision a meaning inconsistent with other provisions, although it might be susceptible to such a construction standing alone. Barr v. Bernhard, 562 S.W.2d 844, 849 (Tex.1978).

DISCUSSION

The issue is whether sections 17 and 18 of article 21.21 authorize the Attorney General to bring a parens patriae action or, alternatively, whether he may bring a class action without complying with the class action requirements of section 18, subsections (a)(3) and (4).

We begin our analysis with a textual review of sections 17 and 18. Section 17 is entitled “Class Actions.” Tex. Ins.Code Ann. art. 21.21, § 17. Section 17(a) authorizes a class action for damages if a member of the insurance-buying public is harmed by an unlawful deceptive trade practice. Id. The suit may be brought by “the individual damaged ... on behalf of himself and others similarly situated” or by the Attorney General at the request of the Board of Insurance. Id. In either situation, the plaintiff may seek damages, costs and attorneys’ fees, injunctive relief, and any other relief the court deems proper. Id. § 17(a), (b). Subsection (c) authorizes a court to award attorney’s fees to a defendant insurer where an “individual plaintiff’ has sued in bad faith or for the purpose of harassment. Id. § 17(c). Subsection (e) prohibits a class-action suit by an individual or the Attorney General if the Attorney General had already initiated an “administrative class action under Section 14 of this Article” against the same insurer for the same acts or practices. Id. § 17(e).

Section 18 is entitled “Class Action: Procedure.” Id. § 18. Paragraph (a) provides that a court may allow one or more class members to act as “representative parties” and to sue or be sued on behalf of the class if the number of potential class members is so large that it would be impracticable to join each individually, the class members share common questions of law or fact, the representative’s claims are typical of individual class members’ claims, and the representative would fairly and adequately protect the interests of the individual class members. Id. § 18(a) (referred to as “numerosity,” “commonality,” “typicality,” and “adequacy of representation” requirements). Under section 18(b), “an action may be maintained as a class action if the prerequisites of Subsection (a)” are met and one of the following is true: (1) prosecution of separate actions by individual class members would create a risk of inconsistent adjudications or individual adjudications essentially disposing of the non-party class members’s interests or substantially impairing their ability to protect their interests; (2) the opposing party has acted or refused to act on grounds generally applicable to the class, thereby making appropriate injunctive or declaratory relief with respect to the class as a whole; or (3) common questions of law or fact predominate over individual issues, making a class action superior to other methods for a fair and efficient adjudication of the controversy. Id. § 18(b). The remainder of section 18 can be summarized as follows: subsection (c) directs the courts to consider cases interpreting federal Rule 23 for guidance in construing section 18; subsection (d) requires an expedited certification proceeding and authorizes an interlocutory appeal from a certification order; notice is discussed in subsections (e), (f), and (i); subsection (g) requires court approval of an agreement dismissing, settling, or compromising the class action; subsection (h) allows the creation of subclasses; subsection (j) authorizes the court to manage the proceedings; and subsection (k) provides for the tolling of limitations. Id. § 18(c)-(j) (West Supp. 2004-05).

Parens Patriae

Appellees argue that section 17 of article 21.21 of the insurance code grants parens patriae authority for the Attorney General to bring this type of class action, pointing to the evolution of the parens patriae doctrine and the legislative history of article 21.21. Derived from the English common law, parens pat-riae means “parent of the country,” and enabled the King to act as guardian for “infants, idiots, and lunatics.” See Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982); Hawaii v. Standard Oil Co., 405 U.S. 251, 257, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972); Black’s Law Dictionary 1114 (6th ed.1990). In the United States, the parens patriae doctrine expanded to include state-brought suits to “prevent or repair harm to its quasi-sovereign interests.” Hawaii, 405 U.S. at 257-58, 92 S.Ct. 885. To have standing under parens patriae, a governmental entity must establish that the state has a quasi-sovereign interest, apart from the interests of private parties, there is an injury to a substantial segment of its population, and the injured individuals could not obtain complete relief through a private suit. Alfred L. Snapp, 458 U.S. at 607-08, 102 S.Ct. 3260.

According to appellees, the legislative purpose behind the passage of article 21.21 can be traced to Hawaii v. Standard Oil Co. and California v. Frito-Lay, Inc., 474 F.2d 774 (9th Cir.1973), both of which concerned the use of parens patriae power. The issue in Hawaii was whether a particular federal statute authorized a state to sue for damages for injury to its economy. 405 U.S. at 252-53, 92 S.Ct. 885. Acting in its proprietary capacity, in its parens pat- riae capacity, and as the representative of a class, Hawaii sued Standard Oil for antitrust violations. Id. at 253, 92 S.Ct. 885. The Supreme Court held that in determining whether Hawaii could maintain the action, the issue was not whether Hawaii could sue on behalf of its citizens under general parens patriae principles but whether the injury was compensable under the statute in question. Id. at 259, 92 S.Ct. 885. The Court held that the statute authorized a state to recover for injuries suffered in its capacity as a consumer of goods and services, but not for economic injuries to the sovereign interests of a state. Id. at 265, 92 S.Ct. 885. The Court concluded that if the statute were intended to allow a state to recover for damage to its general economy, then “we should insist upon a clear expression of a congressional purpose to make it so, and no such expression is to be found in” the statute. Id. at 264, 92 S.Ct. 885.

The issue addressed in Frito-Lay was whether a state could sue as parens patri-ae for injury to the business or property of the state’s citizens. See 474 F.2d at 775. California sued Frito-Lay, arguing that the practical inability of an injured citizen to bring an individual antitrust suit warrants a state to act on behalf of the individual. Id. The Ninth Circuit noted that parens patriae actions had not been recognized as a basis for recovery of money damages for injuries suffered by individuals; instead, parens patriae actions were generally used to “halt injury to a quasi-sovereign state interest ... ‘apart from that of particular individuals who may be affected.’ ” Id. (quoting Georgia v. Pennsylvania R.R., 324 U.S. 439, 451, 65 S.Ct. 716, 89 L.Ed. 1051 (1945)). The court observed that the state was acting “not as parens patriae in the sense in which that term is recognized in this country, but as guardian ad litem” for the class it purported to represent and that the state’s procedure bypassed the procedural requirements of Rule 23. Id. at 776 & n. 9. Heeding the Supreme Court’s admonition in Hawaii, the Ninth Circuit concluded that “if the state is to be empowered to act in the fashion here sought, we feel that authority must come not through judicial improvisation but by legislation and rule making.” Id. at 777.

Under Hawaii and Frito-Lay, without a specific statutory grant of authority, the Attorney General may not rely on a general invocation of parens patriae authority to bring suit for damages on behalf of individually injured persons. See Hawaii, 405 U.S. at 264-65, 92 S.Ct. 885; Frito-Lay, 474 F.2d at 777. We disagree with appellees’ assertion that the legislature, in drafting article 21.21 of the insurance code, provided a “classic grant of statutory parens patriae authority to the Attorney General to protect the interest of Texas insureds.”

The general rule in Texas is that the Attorney General can only act within the limits of the Texas Constitution and statutes. Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex.2001). Consistent with this rule, absent a special provision, the Attorney General must comply with the same rules of procedure as other litigants. Texas Dep’t of Corrections v. Herring, 513 S.W.2d 6, 7-8 (Tex.1974). Parens patriae has been used sparingly in Texas. Lakeshore Util. Co. v. Texas Natural Res. Conservation Comm’n, 92 S.W.3d 556, 565 (Tex.App.-Austin 2002, pet. granted). Clear legislative intent is required before we will recognize parens patriae authority to sue for monetary damages. See Hawaii, 405 U.S. at 264, 92 S.Ct. 885.

A plain reading of article 21.21 reveals no clear grant of parens patriae authority under sections 17 and 18. The legislature explicitly stated that in interpreting section 18, courts should be guided by federal cases construing the federal class action rule, and throughout article 21.21, the statutory language references “class actions,” not parens patriae suits. As the Supreme Court made clear, parens patriae actions are not interchangeable with class actions: “Parens patriae actions may, in theory, be related to class actions, but the latter are definitely preferable in the antitrust area. Rule 23 provides specific rules for delineating the appropriate plaintiff-class, establishes who is bound by the action, and effectively prevents dupli-cative recoveries.” Id. at 266, 92 S.Ct. 885.

A comparison to a federal statute that expressly grants parens patriae authority further supports our reading of article 21.21 as nothing more than a class action statute. The Hart-Scott-Rodino Antitrust Improvements Act of 1976, enacted soon after the Hawaii and Frito-Lay decisions, authorizes states’ attorneys general to sue for monetary relief on behalf of state residents injured by federal antitrust violations. See 15 U.S.C.A. § 15c (West 1997) (the “HSRA”) (“Any attorney general of a State may bring a civil action in the name of such State, as parens patriae on behalf of natural persons residing in such State.”). The HSRA’s provisions allowing state attorneys general to bring parens patriae suits on behalf of state residents were enacted to remedy the difficulties and complexities associated with certifying and maintaining antitrust class actions under federal Rule 23 and in distributing damages. Illinois v. Abbott & Assocs., Inc., 460 U.S. 557, 573 n. 29, 103 S.Ct. 1356, 75 L.Ed.2d 281 (1983); see New York v. Reebok Int’l Ltd., 96 F.3d 44, 46 (2d Cir.1996). Congress understood that an individual consumer overcharged a small amount lacked a practical, individual remedy and that Rule 23 class-action suits were ineffective because large consumer classes with small individual claims were unmanageable. See H.R.Rep. No. 94r-499, pt. 1, at 2575-76 (1976).

The HSRA illustrates the kind of “clear and express” statutory mandate required to create parens patñae authority. It does not refer to class actions or class action procedures but instead explicitly allows a state attorney general to bring a civil action in the state’s name as parens patriae on behalf of the state’s citizens. 15 U.S.C.A. § 15c. In contrast, nothing in article 21.21’s language or legislative history indicates that the legislature intended to create parens patriae authority as an alternative to class actions in this context. See Tex. Ins.Code Ann. art. 21.21, § 17(a) (“If a member of the insurance buying public has been damaged by an unlawful method, act, or practice ... the Board may request the Attorney General to bring a class action.... ”). We therefore hold that article 21.21 of the insurance code does not grant parens patriae authority.

Modifted Class Action

Appellees concede that the settlement class does not have a class representative; thus, the settlement class does not meet the typicality and adequacy of representation prerequisites. However, they contend the Attorney General is not required to do so, arguing that section 17 allows for two different types of class action suits — (1) one brought by an individual, and (2) one brought by the Attorney General — and that only actions brought by individuals must meet the prerequisites of section 18(a). According to appellees, the legislature has determined that the Attorney General adequately fulfills the role of class representative, thus obviating the need for a traditional class representative with typical claims. For support, they focus on the first sentence of section 18(a): “The court shall permit one or more members of a class to sue or be sued as representative parties on behalf of the class only if’ the prerequisites of numerosity, commonality, typicality, and adequacy of representation are satisfied. Tex. Ins.Code Ann. art 21.21, § 18(a) (emphasis added). Appellees conclude that only in class actions initiated by individual class members must the prospective class satisfy section 18(a)’s prerequisites. In other words, ap-pellees assert that when the Attorney General institutes a class action under article 21.21, he is not constrained by the traditional class action requirements and need only comply with section 18(b) because the legislature has already determined that he is an adequate class representative. We disagree.

Statutory Language

A review of the language used in article 21.21 shows that a class-action suit brought by the Attorney General should be treated the same as one brought by a member of the insurance-buying public. Article 21.21 provides for two types of class-action suits: (1) an administrative civil enforcement class action under section 14 and (2) a more traditional section 17 class action. See Tex. Ins.Code Ann. art. 21.21, §§ 14 (West Supp.2004-05) (“Administrative Class Action”), 17 (“Class Actions”). The two types of suits address two distinct circumstances: (1) recovery through an administrative class action of unlawfully obtained premiums after a Board finding that an insurer committed some sanctionable act, and (2) recovery of damages after a judicial determination that an insurer has committed a sanctiona-ble act. Clearly, section 17 authorizes a class action by either the Attorney General or an individual. See id. § 17(a). Such a suit, however, may only be brought if “a member of the insurance buying public has been damaged.” Id. In other words, even at the insistence of the Board, the Attorney General cannot initiate a class action to recover damages done only to the State or the Department in their proprietary capacities. A class action for damages may be brought under section 17 only when the public has been injured, although it offers two choices as to who may initiate such an action.

We disagree with appellees that section 18 creates two types of class actions that may be brought on behalf of the injured insurance-buying public. Indeed, section 18(b), which mandates compliance with the subsection (a) class action prerequisites, makes clear that section 17 class actions brought by the Attorney General are subject to the same prerequisites as those initiated by individual class members. Subsection 18(b) does not distinguish suits brought by class members from those brought by the Attorney General in requiring compliance with subsection (a)’s prerequisites. Compare id. § 18(a) with id. § 18(b). Under appellees’ argument, the Attorney General could bring a class action on behalf of any number of class members without regard to typicality or commonality of injury or adequacy of representation. Appellees’ argument lacks support in the plain language of section 18(b), which does not qualify its requirement of section 18 compliance based on the initiator of the suit. The language is clear: all section 17 class actions must meet the requirements of section 18(a).

Legislative History and Federal Rule 23

Article 21.21 was enacted in 1951 to bar insurers from discriminating in the setting of premiums. See Act of June 7, 1951, 52d Leg., R.S., ch. 491, § 2, 1951 Tex. Gen. Laws 868, 1075-76. In 1973, the legislature enacted House Bill 417, which amended article 21.21, adding section 14, “Administrative Class Actions,” section 17, “Class Actions,” and section 18, “Class Action: Procedure.” See Act of May 10, 1973, 63d Leg., R.S., ch. 143, § 2, 1973 Tex. Gen. Laws 322, 338-41. The parties disagree over the legislative purpose behind the enactment of House Bill 417. Appellees assert that the legislative history shows that the legislature intended to exempt Attorney General class actions from traditional class-action requirements, citing the committee notes on sections 17 and 18, which state that section 17 “[djelineates the procedures available for class actions,” and that section 18 “[s]ets out the procedure for a private class action and is the same as” the procedure formerly included in the DTPA. House Comm, on Bus. & Indus., Bill Analysis, Tex. H.B. 417, 63d Leg., R.S. (1973). Although appellees argue that by “private class action” the committee meant one instituted by an injured individual, the notes can also be interpreted as distinguishing “a private class action,” which must be brought by a person aggrieved by an insurer’s conduct or the Attorney General, from a section 14 “administrative class action” brought by the Attorney General at the Department’s request.

According to appellants, the bill was enacted in response to the Texas Supreme Court’s decision in Commercial Travelers Life Insurance Co. v. Spears, which revealed the problem with the former version of Rule 42 under which class action certification depended on whether the class action was “true,” “hybrid,” or “spurious.” See 484 S.W.2d 577, 578-79 (Tex.1972) (orig.proceeding). A year after the Spears decision, the legislature enacted article 21.21’s class action provisions, using Rule 23⅛ procedures and federal decisions construing Rule 23 as precedent. See Bernal, 22 S.W.3d at 433; Stary v. DeBord, 967 S.W.2d 352, 353 (Tex.1998).

The language of section 18 mirrors that found in federal Rule 23, which includes subtitles for each subsection. For example, Rule 23(a) is titled, “Prerequisites to a Class Action,” and Rule 23(b) is “Class Actions Maintainable,” making it clear that subsections (a) and (b) were intended to work together. Before individuals may sue on behalf of a class, they must first satisfy the subsection (a) prerequisites. After those prerequisites are satisfied, the class action can only be “maintained” if the elements of subsection (b) are present. In other words, subsection (a) determines whether an individual can represent the class, and if so, subsection (b) determines whether the suit may be maintained as a class action. Although section 18 does not include these same titles, it is modeled after Rule 23 and the descriptive phrases of Rule 23 may properly guide our construction of section 18.

Federal Case Law

A review of federal case law reveals that some courts have approved of a state’s attorney general acting as a class representative. In some of those cases, however, the state itself was part of the injured class and therefore satisfied the “typicality” requirement, a fact not present in the case before us. See State Teachers Ret. Bd. v. Fluor Corp., 73 F.R.D. 569, 572 (S.D.N.Y.1976) (holding that state attorney general may act on behalf of out-of-state class members when state agency he represents is allied with class members and agency’s representativeness is sufficiently shown); In re Antibiotic Antitrust Actions, 333 F.Supp. 278, 280 (S.D.N.Y.1971) (court determined states’ claims were typical of consumer claims because states supported welfare programs that reimbursed for prescription drugs and therefore stood “in the shoes of a substantial number of purchasers of the drugs”); see generally In re Anthracite Coal Antitrust Litigation, 78 F.R.D. 709 (M.D.Pa.1978) (state-plaintiff satisfied requirement that it be personally affected and harmed by defendant in same manner as proposed class but did not satisfy other requirements for class certification, such as common questions of law and fact). In other cases in which state attorneys general were allowed to represent a class, the attorneys general represented other governmental entities. See Illinois v. Brunswick Corp., 32 F.R.D. 453, 460 (N.D.Ill.1963) (attorney general acted as class representative in antitrust suit brought by “the State of Illinois, for itself, its agencies and public institutions, the various school districts of the State ... and all other Illinois school districts similarly situated by class”); see generally Minnesota v. United States Steel Corp., 44 F.R.D. 559 (D.Minn.1968) (attorneys general, representing plaintiff-states in antitrust suit, allowed to represent class of governmental entities); Illinois v. Harper & Row Publishers, Inc., 301 F.Supp. 484 (N.D.Ill.1969) (same).

When a state-plaintiff has not been injured in the same manner as the members of a class, however, courts have frequently refused to allow the attorney general to act as class representative. See Illinois ex. rel. Bowman v. Home Fed. Sav. & Loan Ass’n, 521 F.2d 704, 707 (7th Cir.1975) (state’s attorney sought to sue savings and loan associations on behalf of citizens seeking home mortgage loans but did not allege that state sought such a loan; “[a] state, like any plaintiff-representative, may maintain a class action on behalf of its citizens only if it satisfies the requirements of Rule 23,” and “[s]ince the State’s Attorney is not a member of the class which he purports to represent, the district court properly dismissed the complaint”); see also In re Rusty Jones, Inc., 128 B.R. 1001, 1012-15 (N.D.Ill.1991) (proposed class representatives (attorney general, banking commissioner, insurance commissioner, and governmental committee) could not satisfy requirements of Rule 23(a) and could not adequately and fairly represent the proposed class).

We conclude that absent express statutory language granting the Attorney General parens patriae authority, the Attorney General cannot maintain a class action without satisfying the class-action prerequisites. Article 21.21, which mirrors the federal class-action rule, contains no clear, express grant of authority for the Attorney General to assume parens patri-ae authority. Further, the Attorney General has not shown that the State has suffered an injury similar to those suffered by the class members and thus has not shown that he may act as the class representative himself. Therefore, the Attorney General must comply with the class-action prerequisites listed in section 18.

1. Class Representative and the Attorney General as Class Counsel

The Attorney General maintains that he may not act as class counsel in the usual meaning of the term. Jeff Boyd, Deputy Attorney General, testified that there was no authority for the Attorney General to have an attorney-client relationship with individuals other than state officials, agencies, or employees. Professor Issacharoff read 17(a) to “grant the Attorney General the capacity to bring a class action when requested by” the Department and opined that allowing the Attorney General to represent an individual would create a “bizarre mechanism” whereby he might have to solicit a class representative. Issacha-roff continued:

I’ll concede that the AG could easily find somebody to put up as a named plaintiff if they had to. But the reason that it’s not required in the AG class actions, I believe, is that when the AG speaks on behalf of the citizens of the state, the legitimacy of representation is presumed, or conclusively presumed, as opposed to when a private party does that_It is presumed that certain officials can act on behalf of the people that they already represent.

However, the plain language of sections 17 and 18 does not show a legislative intent to allow the Attorney General to avoid meeting the class representative requirement. See generally Susan Beth Farmer, More Lessons from, the Laboratories: Cy Pres Distributions in Parens Patriae Antitrust Actions Brought by State Attorneys General, 68 Fordham L.Rev. 361, 376-81 (1999). Indeed, section 17 arguably confers on the Attorney General the very authority Boyd and Issaeharoff testified was lacking — the authority to represent “a member of the insurance buying public [who] has been damaged by an unlawful method, act, or practice.” Tex. Ins.Code Ann. art. 21.21, § 17(a); cf. Texas Dep’t of Mental Health & Mental Retardation v. Petty, 778 S.W.2d 156, 163 (Tex.App.-Austin 1989, writ dism’d w.o.j.) (citing Act of May 27, 1981, 67th Leg., R.S., ch. 874, § 1, 1981 Tex. Gen. Laws 3330, 3331 (repealed 1989)) (statute provided that Attorney General “may represent a class of individuals composed of veterans” injured by Agent Orange).

2. Does Adequacy of Representation Excuse Section 18 Compliance?

Appellees contend that strict compliance with section 18 and Rule 42 is unnecessary because the Attorney General will adequately represent the class members. However, the Supreme Court rejected a similar argument that as long as there was adequate representation, technical compliance with federal Rule 23 and its notice provisions was unnecessary. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176-77, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). The Eisen Court held that a finding of adequate representation did not excuse the class representative from giving notice to potential class members under Rule 23. Id. The Court observed that under the petitioner’s argument, notice would not be required at all, and stated, “This cannot be so, for quite apart from what due process may require, the command of Rule 23 is clearly to the contrary.” Id. In other words, “individual notice to identifiable class members is not a discretionary consideration to be waived in a particular case. It is, rather, an unambiguous requirement of Rule 23.” Id. at 176. Similarly, section 18 imposes unambiguous requirements, not discretionary considerations, on class actions brought under the insurance code.

Appellees argue that strict compliance is unnecessary if the settlement is determined to be fair, but in Amchem Products, Inc. v. Windsor the Supreme Court rejected the same argument:

The safeguards provided by the Rule 23(a) and (b) class-qualifying criteria, we emphasize, are not impractical impediments — checks shorn of utility — in the settlement class context. First, the standards set for the protection of absent class members serve to inhibit appraisals of the chancellor’s foot kind— class certifications dependent upon the court’s gestalt judgment or overarching impression of the settlement’s fairness. Second, if a fairness inquiry under Rule 23(e) controlled certification, eclipsing Rule 23(a) and (b), and permitting class designation despite the impossibility of litigation, both class counsel and court would be disarmed.... Federal courts, in any case, lack authority to substitute for Rule 23’s certification criteria a standard never adopted — that if a settlement is “fair,” then certification is proper.

521 U.S. 591, 621-622, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); see also Ortiz v. Fibreboard Corp., 527 U.S. 815, 849, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) (“a fairness hearing ... is no substitute for rigorous adherence to those provisions of the Rule ‘designed to protect absentees’ ”). Further, the Texas Supreme Court recently reaffirmed that the law requires strict compliance with Rule 42’s class-action requirements. See Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 670-71 (Tex.2004). In Lapray, the court admonished trial courts to perform a “rigorous analysis” to determine whether all prerequisites to class certification have been met, and stated, “All prerequisites means all prerequisites.” Id. at 671 (quoting Bernal, 22 S.W.3d at 435) (emphasis added); see also McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 232 (Tex.2001) (subjecting settlement class action to “heightened scrutiny”). Although the district court made an alternative finding that the Attorney General did comply with the procedural requirements of Rule 42 and section 18, the record shows a lack of strict compliance with Rule 42 and article 21.21, section 18(a) and (b) because no class representative was appointed. See Tex.R. Civ. P. 42(a)(3), (4); Tex. Ins.Code Ann. art. 21.21, § 18(a)(3), (4).

Finally, to ensure fair and adequate representation there must be (1) an absence of antagonism between the class representative and the class members and (2) an assurance that the class representative will vigorously prosecute the class members’ claims and defenses. Forsyth v. Lake LBJ Inv. Corp., 903 S.W.2d 146, 150 (Tex.App.-Austin 1995, writ dism’d w.o.j.); see General Tel. Co. of the SW v. Falcon, 457 U.S. 147, 157 n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).

Although the district court found that there were no conflicts between the class and the Attorney General, it had no class representative against which conflicts could be measured. The record shows that a discovery dispute arose between the Attorney General and appellants/interve-nors, putative members of the class he sought to represent. Appellants, as putative class members, sought documentation related to the settlement negotiations resulting in the MOU, some of which were in the possession of two senators involved in settling the dispute. The Attorney General resisted, and the district court granted the Attorney General a protective order. Further, there was evidence that the Attorney General himself initially saw the seeds of possible conflict. In a letter to Farmers, Executive Deputy Commissioner of Insurance Casari said, “Farmers’ proposal clearly attempts to use Farmers’ significant market share as leverage to induce a conflict between the Department’s responsibilities to protect policyholders from unfair acts and to also promote competition in the marketplace.” The Attorney General may be conflicted by the dual roles he purports to play as both the Department’s attorney and the class representative. See Trbovich v. United Mine Workers of Am., 404 U.S. 528, 539, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972) (discussing conflicting interests of Secretary of Labor in protecting rights of union members). A class representative against whom the adequacy of settlement can be measured is indispensable to protect both the class and Farmers. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985) (notice, opportunities to be heard and to opt out, and adequate representation are fundamental due process components of class litigation); Hansberry v. Lee, 311 U.S. 32, 44-45, 61 S.Ct. 115, 85 L.Ed. 22 (1940) (persons with conflicting interests who are inadequately represented in prior action cannot be bound by prior judgment); see also Amchem Prods., 521 U.S. at 625-26 & n. 20, 117 S.Ct. 2231 (adequacy inquiry uncovers conflicts of interest between representative and class members). We hold that the Attorney General must comply with section 18.

CONCLUSION

Appellees argue that only some of the rules set out in section 18 and Rule 42 apply to class actions brought by the Attorney General: “Although section 18(a) & (b) are inapplicable to this suit, other portions of section 18 are indeed applicable. Indeed, section 18(g), requiring court approval of the settlement, applies because unlike section 18(a), section 18(g) is not limited by its terms to class actions brought by a class member ‘on behalf of others similarly situated.” We disagree. As in federal Rule 23, section 18(a) determines whether a party can represent a class, and section 18(b) determines whether the suit may be maintained as a class action. Section 18(a) does not excuse a class action brought by the Attorney General under section 17 from strict compliance with the other rules set out in section 18 and Rule 42. Nor may the Attorney General bring this suit under parens patri-ae powers without an explicit grant of those powers in this context.

Section 17 allows the Attorney General to bring a class action at the Department’s request if a member of the insurance-buying public has been damaged by an unlawful act. Tex. Ins.Code Ann. art. 21.21, § 17(a). Section 18 provides that a class action may be instituted if the requirements of numerosity, commonality, typicality and adequacy of representation are met. Id. § 18. We are bound by the plain language of the statutes, see Bernal, 22 S.W.3d at 435 (citing Amchem Prods., 521 U.S. at 620, 117 S.Ct. 2231), and do not believe that the legislature intended sections 17 and 18 to allow the Attorney General to bring a class action suit without complying with the traditional class action requirements. Unlike the legislative history of the HSRA, the legislative history of article 21.21 does not show an intent to exempt the Attorney General from the requirements of Rule 42 or section 18(a). As stated in Frito-Lay, such an exemption would ignore the problems associated with class actions: “The joining of the claims of numerous, dispersed claimants in a single judicial action is inherently complicated and requires safeguards if injustice is to be avoided.” See 474 F.2d at 777 n. 11. When the Attorney General brings a class action suit pursuant to article 21.21, section 17 of the insurance code, he must comply with the requirements outlined in section 18(a) and (b). We reverse the trial court’s judgment certifying the class and remand the case for proceedings consistent with this opinion.

      . There are eleven appellees, all related or associated insurance providers. We will refer to appellees collectively as "Farmers.”

      . "Tying" is the practice of conditioning the sale of one policy on the purchase of another, for example, requiring a purchaser to buy an auto policy as a condition of obtaining a homeowners policy.

      . Originally, the suit was brought not as a class action but "in the name of the State of Texas and on behalf of the Texas Commissioner of Insurance” against Farmers for "deceptive, misleading, and discriminatory homeowners-insurance practices” in violation of the insurance code and the Deceptive Trade Practices Act. See Tex. Bus. & Com.Code Ann. §§ 17.41-.63 (West 2002 & Supp.2004-05) (the “DTPA”).

      .Section 83.051 of the insurance code authorizes the Commissioner of Insurance to issue an emergency cease and desist order if he believes an insurer is committing an unfair act that is fraudulent, endangers public safety, or will cause imminent public injury incapable of being rectified and likely to have effect. Tex. Ins.Code Ann. § 83.051 (West Supp. 2004-05).

      . The Rate Class was to encompass all Farmers’ Texas homeowners-insurance policyholders whose policies began or were renewed between December 28, 2001 and December 27, 2002, or who received notice after November 14, 2001 that their HO-B policies would not be renewed. The Discount Class was to consist of all Texas homeowners-insur-anee policyholders who were eligible to receive certain discounts from November 16, 2000 through December 10, 2002. The Credit Usage Class was to include all Texas homeowners or auto-insurance policyholders who received or should have received a credit usage notice from October 1, 1999 through February 28, 2003.

      . Under federal law, an attorney general may sue as parens patriae on behalf of the state’s citizens for monetary relief for injury done to citizens by antitrust violations. 15 U.S.C.A. § 15c(a) (West 1997). This legislation was designed to enhance the effectiveness of antitrust enforcement on behalf of small consumers by authorizing states’ attorneys general to bring suits in their capacities as parens patriae on behalf of their citizens without compliance with Federal Rule of Civil Procedure 23 prerequisites for maintaining a federal class action. Illinois v. Abbott & Assocs., Inc., 460 U.S. 557, 573 n. 29, 103 S.Ct. 1356, 75 L.Ed.2d 281 (1983). Texas Rule of Civil Procedure 42 ("Rule 42”) was patterned after Federal Rule of Civil Procedure 23 ("Rule 23”). Story v. DeBord, 967 S.W.2d 352, 353 (Tex.1998). Rule 42 and section 18 of article 21.21 are nearly identical, and those rules, along with Rule 23, impose the same requirements for establishing the propriety of a class-action suit. Compare Fed.R.Civ.P. 23 with Tex.R. Civ. P. 42 and Tex. Ins.Code Ann. art. 21.21, § 18 (West Supp.2004-05).

      . The Hookses, who are also class members in a breach of contract suit brought against Farmers in August 2002 by Sandra Geter in Jefferson County, further assert in this appeal that the Attorney General was not authorized to release the claims of the Geter class dealing with Farmers’ contractual obligation to renew HO-B policies. On October 21, 2004, the Beaumont Court of Appeals reversed the trial court’s order certifying the Geter class and remanded the cause to allow the trial court to consider notice and opt-out issues and to "rigorously analyze [class] cohesiveness,” relying on a recent supreme court decision regarding class certifications under rule 42(b)(s) of the rules of civil procedure. Farmers Group, Inc. v. Geter, 2004 WL 2365394, at 3-4, Nos. 09-03-404-CV, 09-03-396-CV, 2004 Tex.App. LEXIS 9364, at *13-17 (Beaumont Oct. 21, 2004, no pet.) (memorandum op.) (citing Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 667-70 (Tex.2004)).

      . The Board is empowered to "investigate into the affairs of every person engaged in the business of insurance in this state” to determine whether "such person has been or is engaged in any unfair method of competition or in any unfair or deceptive act or practice.” Tex. Ins.Code Ann. art. 21.21, § 5 (West Supp.2004 — 05).

      . Section 14, entitled "Administrative Class Action,” authorizes the Department to order an insurer to refund premiums to policyholders injured by the insurer's unlawful acts. Tex. Ins.Code Ann. art. 21.21, § 14(a) (West Supp.2004-05). If the insurer fails to comply with the Department’s refund order, the Department may ask the Attorney General to sue the insurer to enforce the order. Id. § 14(b).

      . "Quasi-sovereign” interests include those touching on the "health and well-being — both physical and economic — of its residents in general." Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982).

      . Appellees cite Bara v. Major Funding Corporation Liquidating Trust, 876 S.W.2d 469 (Tex.App.-Austin 1994, writ denied), and Texas Department of Mental Health & Mental Retardation v. Petty, 778 S.W.2d 156 (Tex.App.-Austin 1989, writ dism’d w.o.j.), asserting that "Texas courts have recognized the validity of statutory parens patriae suits brought by the Attorney General in order to restore unlawfully obtained funds to Texas citizens.” However, we note first that our reference to section 17 in Petty was dicta and second that the other two cited statutes explicitly allowed the Attorney General to intervene in suit or represent certain individuals. See 778 S.W.2d at 163 (citing former section 32.51 of education code, which required compliance with Rule 42 and allowed Attorney General to join as class action plaintiff, see Act of May 29, 1971, 62d Leg., R.S., ch. 620, § 1, 1971 Tex. Gen. Laws 2006, 2015 (repealed 1993), and article 4447w, section 6 of revised statutes, which specifically authorized Attorney General to represent "class of individuals composed of veterans,” see Act of May 27, 1981, 67th Leg., R.S., ch. 874, § 1, 1981 Tex. Gen. Laws 3330, 3331 (repealed 1989)). In Bara, we held that a DTPA suit brought by the Attorney General in the State’s name and on behalf of "a specified group of individuals” was a "de facto class action” that tolled the running of limitations against individuals while they were part of the Attorney General's suit. 876 S.W.2d at 472-73. Petty and Bara do not support a conclusion that section 17 grants the Attorney General parens patriae authority to sue.

      . Appellees cite the comments preceding House Bill 417, which enacted the DTPA and expanded article 21.21 to allow class actions, in which then-Attorney General John Hill stated:
      [House Bill 417] strikes directly at the inequities now existing in consumer protection legislation, and will provide remedies under which the Attorney General’s Office can properly determine between premeditated practiced deception and honest error. ... Under our system as it now stands, a suit can be filed by a consumer against a person or organization committing an act, but the consumer must prove common law fraud. The present conditions provide only for the Attorney General’s office to bring a restraining order and limits their ability to prosecute. The common law remedy is not adequate for a consumer to recover the loss, thereby making this bill a major step in the direction of providing the consumer, through the Attorney General’s office, with the necessary tools for equitable recovery subject to, of course, a ruling in favor of the consumer.
      House Comm, on Bus. & Indus., Bill Analysis, Tex. H.B. 417, 63d Leg., R.S. (1973). This explains the rationale for allowing the Attorney General to bring a class-action suit but does not answer whether, in doing so, the Attorney General must comply with section 18(a).

      . As supporting authority, appellees cite In re Toys “R” Us Antitrust Litigation, 191 F.R.D. 347 (E.D.N.Y.2000), and In re Sclater, 40 B.R. 594, 595 (E.D.Mich.1984). In Toys “R” Us, the attorney general sued pursuant to his statutory parens patriae authority, which is lacking here. 191 F.R.D. at 349. In Sclater, the attorney general was allowed to act as class representative under his parens patriae authority and under a state law allowing him to “bring a class action on behalf of persons residing in or injured in this state.” 40 B.R. at 597. The Sclater court relied on distinguishable federal cases, and we decline to follow its reasoning.


author: BOB PEMBERTON, Justice.

text:
    Kenneth A. ROBERSON, Jr., Appellant, v. CITY OF AUSTIN and Jester Development Corporation, Appellees.
    No. 03-03-00457-CV.
    Court of Appeals of Texas, Austin.
    Jan. 21, 2005.

      Brandon W. Beasley, Travis R. Phillips, Law Office of Travis R. Phillips, P.C., Austin, for appellant.
    Nancy K. Matchus, Asst. City Atty., Austin, for appellee.

      Before Justices B.A. SMITH, PURYEAR and PEMBERTON.
   OPINION

BOB PEMBERTON, Justice.

This case involves a dispute between Kenneth A. Roberson, the City of Austin, and Jester Development Corporation regarding an unrecorded sanitary sewer easement. We decide whether Roberson’s suit under the Uniform Declaratory Judgment Act (“UDJA”) was a proper means of determining the validity of the easement. We also decide whether the trial court abused its discretion in including “proximate cause” and “new and independent cause” definitions and instructions in takings-claim jury questions regarding remainder damages and whether the trial court properly granted summary judgment against Roberson’s claim that the City’s failure to notify him of an unrecorded easement’s existence violated his constitutional rights. For the reasons stated below, we affirm in part, reverse in part, and remand for a determination of whether attorney’s fees are warranted.

BACKGROUND

In 1979, Jester Development Corporation (“Jester”) began development of the Jester Estates subdivision in the City of Austin. Under the development plan approved by the City, Jester was responsible for designing and constructing sewer lines for the subdivision. City policy then required Jester to dedicate sanitary sewer easements to the City. See Austin City Code § 41-29 (Mun.Code Corp.1967).

In 1980, Jester’s engineering subcontractor, Espey, Huston & Associates, Inc. (“Espey”), designed and installed a sewer line running along a portion of the north side of what would later become appellant Kenneth A. Roberson’s property. Although the subdivision’s plat correctly indicated that there was a utility easement on the east boundary of the subject property, it did not reflect that there was a sanitary sewer easement along the north edge of the property. On March 26, 1980, Jester separately dedicated to the City a sanitary sewer easement along the north side of the subject property, allowing the City to perpetually maintain the sewer line. The executed easement was forwarded to the City but was not recorded in the Travis County deed records. On July 1, 1982, the City accepted ownership and responsibility for maintaining the sewer line.

A home builder then constructed a house on the subject property. Roberson purchased the property and the house on March 1, 1983. The purchase documents did not reflect the presence of the sanitary sewer easement located on Roberson’s northern lot line.

The sewer line under Roberson’s property also ran beneath the property of his rear neighbor, Johnny Paul. In 1985, Paul had sued the City for damages allegedly caused by settling of the fill covering the buried sewer line. In response to the lawsuit, the City investigated and confirmed that it did not have recorded easements for the sewer lines running through Jester Estates. The Assistant Director of Engineering for the City’s Water and Wastewater Utility considered a plan to have Espey contact affected Jester homeowners and inform them of the easements. Although the assistant director contacted Espey, the other residents of the subdivision were not notified of the easement problem by either Espey or the City. The City settled the lawsuit with Paul in 1988.

In 1997, Roberson noticed problems with his deck support and cracks in concrete flatwork on the northern side of the property. He also saw evidence of soil subsidence on the north and east side of his property. Roberson asked Paul if he had also experienced problems on his adjacent property. Paul referred Roberson to his attorney, who then informed Roberson that an unrecorded sewer main ran beneath their properties. According to Roberson, this was when he first learned of the easement and sewer line.

On May 29, 1998, Roberson sued the City under the UDJA seeking a declaration that the easement was invalid and that he owned the portion of the sewer line and sanitary sewer easement within his property boundaries. He sought attorney’s fees and an injunction to bar the City from preventing his removal of the line. Roberson also brought alternative inverse condemnation and bad-faith taking claims. See Tex. Const, art I, § 17. In addition to these state law claims, Roberson brought six claims alleging violation of his rights under the United States Constitution. See 42 U.S.C. § 1983. Among these claims were alleged violations of his equal protection, substantive due process, and procedural due process rights. See U.S. Const, amend. XIV, § 1. In response, the City filed a general denial and sought a declaration under the UDJA that, by either express dedication or by implication, the City owned the wastewater line and associated easement. The City also asserted an alternative counterclaim for condemnation. See Tex. Prop.Code Ann. § 21.017 (West 2004).

The trial court granted a no-evidence partial summary judgment in favor of the City on Roberson’s bad-faith taking and constitutional claims. The case proceeded to jury trial. The jury found the City had neither a valid express easement nor an implied easement. The jury also made findings that the fair market value of the easement as of the date of trial was $6,000, that the damage to the remainder of Roberson’s property by reason of the taking was $25,000 as of the date of trial, and that Roberson’s reasonable attorney’s fees for preparation and trial totaled $111,227.

Following the verdict, Roberson moved for judgment under his UDJA claim, which would have authorized the trial court to award him attorney’s fees. See Tex. Civ. Prac. <⅞ Rem.Code Ann. § 37.009 (West 1997). He also sought the above damages awarded by the jury as compensation for the City’s taking of the easement and damages to the remainder. The trial court denied Roberson’s proposed election to recover under the UDJA because it decided that the action should have been brought as a trespass to try title action rather than as a request for a declaration. See Tex. Prop.Code Ann. § 22.001 (West 2004). But it did award Roberson the $31,000 of damages he had sought: $6,000 for the value of the easement and $25,000 for damage to the remainder of the property. As a result of the condemnation, the trial court also awarded the City title to the sanitary sewer easement. This appeal followed.

DISCUSSION

Roberson brings three issues on appeal. First, he contends that the trial court abused its discretion by holding that the UDJA was unavailable and denying him attorney’s fees. Second, he asserts that the trial court erred by including “proximate cause” and “new and independent cause” instructions and definitions in the jury questions regarding his remainder damages. Third, he argues that the trial court erred in granting summary judgment to the City on his procedural due process, substantive due process, and equal protection claims. We will address each issue in turn.

Declaratory judgment act and attorney’s fees

In his first issue, Roberson argues that the UDJA is a proper vehicle for determining the validity of an easement. We agree.

The body of law regarding the interrelation of trespass to try title, the UDJA, and easements remains contradictory and confused. See Martin v. Amerman, 133 S.W.3d 262, 264 (Tex.2004) (addressing, in boundary dispute case, confusion over applicability of UDJA and trespass to try title, but not mentioning easements or other nonpossessory property interests). The UDJA allows a party to seek a declaration of rights, status, or other legal relations under a deed, will, written contract, or other writings. Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (West 1997). It is to be liberally construed and administered. Id. § 37.002(b).

Texas courts have often applied the UDJA in construing the existence and scope of easements. See, e.g., Holmstrom v. Lee, 26 S.W.3d 526, 532 (Tex.App.-Austin 2000, no pet.) (affirming trial court’s declaratory judgment that plaintiffs had easement appurtenant to use water and septic lines); see also Koonce v. J.E. Brite Estate, 663 S.W.2d 451, 452 (Tex.1984) (determination under UDJA of whether implied easement by necessity had been established); Jones v. Fuller, 856 S.W.2d 597, 602 (Tex.App.-Waco 1993, writ denied) (declaratory judgment that deed had conveyed to plaintiffs valid easements appurtenant).

Texas courts have also allowed parties to use trespass to try title actions to determine issues involving easements. See, e.g., Ellis v. Jansing, 620 S.W.2d 569, 569 (Tex.1981) (trespass to try title case involving claim of adverse possession of storm sewer easement owned by City of Waco); see also Texas Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145, 152 (Tex.App.-Austin 1998, no wilt) (discussing trespass-to-try-title claim urging court to void State’s easement, but dismissing claim on other grounds). “A trespass to try title action is the method of determining title to lands, tenements, or other real property.” Tex. Prop.Code Ann. § 22.001 (West 2004). In an action for trespass to try title, the defendant must be the person in possession if the property is unoccupied, or must be a person claiming title thereto if the property is occupied. Tex.R. Civ. P. 784. The trespass to try title cause of action does not allow for the recovery of attorney’s fees. Martin, 133 S.W.3d at 264.

In other cases, however, Texas courts have held that trespass to try title is not available where the property interest at issue is an easement or other nonpossesso-ry interest. See, e.g., Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712, 714 (1956) (stating that remedy of trespass to try title is not available to owner of ordinary easement because such owner does not have right to present possession); see also T-Vestco Litt-Vada v. Lu-Cal One Oil Co., 651 S.W.2d 284, 291 (Tex.App.Austin 1983, writ ref'd n.r.e.) (holding that royalty interest is nonpossessory interest insufficient to support possessory remedies such as trespass to try title).

The supreme court recently clarified the differences between the two remedies in a boundary dispute case. Martin, 133 S.W.3d at 267-68. The court stated that “[a] boundary determination necessarily involves a question of title, else the parties would gain nothing by the judgment.” Id. at 267. Moreover, the court held that the trespass to try title statute expressly provides that it is “the method of determining title to ... real property.” Id. Thus, when one seeks title to property, trespass to try title, and not the UDJA, is the proper cause of action. See Martin, 133 S.W.3d at 267-68; see also Kennesaw Life & Accident Ins. Co., 694 S.W.2d 115, 117-18 (Tex.App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.) (holding in case concerning fee simple ownership of property that UDJA provides procedure for construction or validity of deeds, but substantive rights of parties in dispute over ownership of property are governed by trespass to try title).

Although Martin made explicit that boundary dispute claims are in fact trespass to try title claims and not UDJA claims, it made no mention of whether the existence and validity of easements may be determined by a declaration under the UDJA. See generally Martin, 133 S.W.3d at 262. What remains unclear is whether, under the Martin court’s rationale, easement claims would be considered “title” claims only. For the reasons stated below, we hold that they are not.

We first note that the court’s reasoning in Martin was confined to pos-sessory interests in property. See id. For example, the court stated that the trespass-to-try-title statute is typically used to clear problems in chains of title or to recover possession of land unlawfully withheld. Id. at 265. The court further declared that a boundary dispute inherently concerns title and possession of property. Id. In contrast, an easement is a nonpossessory property interest. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex.2002) (“Unlike a pos-sessory interest in land, an easement is a nonpossessory interest that authorizes its holder to use the property for only particular purposes.”). Put simply, an easement does not divest fee ownership of the property. See State v. Ware, 86 S.W.3d 817, 826 (Tex.App.-Austin, 2002, no pet.) (citing Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953, 956 (1952)) (fee ownership of land remains in grantor of easement).

Second, we generally have not applied the remedy of trespass to try title to non-possessory property interests such as easements. See T-Vestco, 651 S.W.2d at 291; see also Mission, 294 S.W.2d at 714. Although in some circumstances we have allowed trespass to try title as a vehicle to determine easement rights, see Callaway, 971 S.W.2d at 152, Mission and other cases render the applicability of trespass to try title to easement claims somewhat uncertain. See Mission, 294 S.W.2d at 714; see also Ellis, 620 S.W.2d at 569. Such uncertainty never existed in cases concerning boundary disputes. Hunt v. Heaton, 643 S.W.2d 677, 679 (Tex.1982) (explicitly holding that boundary disputes can be determined under trespass to try title cause of action).

Finally, we note that a large number of easement cases have been decided under the UDJA. See, e.g., Holmstrom, 26 S.W.3d at 532; see also Koonce, 663 S.W.2d at 452; Jones, 856 S.W.2d at 602. In addition, the UDJA, which is to be liberally construed, itself states that it applies to determine the validity of deeds. Tex. Civ. Prac. & Rem.Code Ann. §§ 37.004, 37.002(b).

For these reasons, we hold that Roberson could properly bring his claims regarding the easement under the UDJA. To do otherwise would render the UDJA’s language concerning its use in determining the validity of deeds meaningless. See Tex. Gov’t Code Ann. § 311.021(2) (West 1998) (stating that it is presumed that entire statute is intended to be effective); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, (Tex.2001) (“We must presume that the Legislature intends an entire statute to be effective .... ”). Because the trial court denied Roberson’s award of attorney’s fees on the basis that the UDJA was not an appropriate vehicle for determining the validity of an easement, we sustain Roberson’s first issue.

Our holding does not mean that the trial court is required to award attorney’s fees. The UDJA allows courts to award reasonable and necessary attorney’s fees that the court considers to be equitable and just. Tex. Civ. Prac. & Rem.Code Ann. § 37.009. However, the award of attorney’s fees under the UDJA is a matter of discretion. Unified Loans, Inc. v. Pettijohn, 955 S.W.2d 649, 654 (Tex.App.-Austin 1997, no pet.) (“A prevailing party in a declaratory judgment action is not entitled to attorney’s fees simply as a matter of law; entitlement depends on what is equitable and just and the trial judge’s power is in that respect discretionary.”); see Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) (holding in child support case that court’s order will not be disturbed on appeal unless complaining party can show clear abuse of discretion). Thus, although the trial court could award attorney’s fees, it was not required to do so and may have had alternate grounds for denying Roberson’s request. See Unified Loans, 955 S.W.2d at 654. Therefore, we will remand to the trial court for determination of whether attorney’s fees should be awarded.

Jury charge

In his second issue, Roberson argues that the trial court erroneously included “proximate cause” and “new and independent cause” instructions and definitions accompanying the jury questions concerning remainder damages. He claims that the inclusion of this language was harmful because it caused the jury to award him less than his full damages. We disagree.

When there is a claim that the jury charge included a mistaken application of the law, we review the jury instructions de novo. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 525 (Tex.2002) (stating that question of whether definition in jury charge misstated law was legal question that court of appeals properly reviewed de novo). So long as the charge is legally correct, a trial judge is accorded broad discretion regarding the submission of questions, definitions, and instructions to the jury. Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex.1999). Thus, we will review the trial court’s legally correct definitions, instructions, and questions to the jury for an abuse of discretion. See Texas Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990); Ganesan v. Vallabhaneni, 96 S.W.3d 345, 350 (Tex.Civ.App.-Austin 2002, pet. denied). We will find an abuse of discretion only if the questions and definitions were arbitrary, unreasonable, or without reference to guiding principles. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996); Ganesan, 96 S.W.3d at 350. We will not reverse unless we find that an error in the jury charge caused an improper judgment to be rendered. Tex. R.App. P. 44.1(a)(1).

In most circumstances, inverse condemnation damages consist of two elements: (1) the fair market value of the part taken, and (2) the damages caused to the remainder of the tract by reason of the taking. See State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 197 (1936); Uselton v. State, 499 S.W.2d 92, 96 (Tex.1973) (“[W]ith very few exceptions ... the courts of this State have followed the form and wording of issues suggested in Carpenter as consistently as if Carpenter had said no variation under any circumstances is permissible .... ”).

However, when there has been evidence of damage to property beyond the loss in value associated with the property right taken, Texas courts have departed from Carpenter and held that it must be shown that the State’s actions were the proximate cause of the damage. State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 736 (1941); Brandywood Housing, Ltd. v. Texas Dep’t of Transp., 74 S.W.3d 421, 426 (Tex.App.-Houston [1st Dist.] 2001, pet. denied); Tarrant Reg’l Water Dist. v. Gragg, 43 S.W.3d 609, 621 (Tex.App.-Waco 2001), aff'd, 47 Tex. Sup.Ct. J. 707, 151 S.W.3d 546 (Tex., 2004).

In Hale, for example, a landowner brought a takings claim alleging that the State’s construction of a road prevented the free flow of flood water and had damaged his farmland. Hale, 146 S.W.2d at 734. The court stated that “[t]he true test is, did the State intentionally perform certain acts in the exercise of its lawful authority ... which resulted in the taking or damaging of plaintiffs property, and which acts were the proximate cause of the taking or damaging of such property.” Id. at 736 (emphasis added).

Gragg concerned an inverse condemnation action alleging that the construction and operation of a reservoir by the State exacerbated flooding conditions on the plaintiffs’ property. Gragg, 43 S.W.3d at 612-13, 621. Citing Hale, the Waco court held that the test was whether the State had exercised its lawful authority to construct and operate the reservoir for public use and whether this was a proximate cause of the taking or damaging of the property. Id. at 621.

In Brandywood, the plaintiffs alleged that the State’s reconstruction of a highway caused repeated flooding of an apartment complex. Brandywood, 74 S.W.3d at 423-24. The court stated that the plaintiff was “required to prove that TexDOT’s intentional acts in building the roadway proximately caused its damages. Without causation, there can be no taking.” Id. at 426.

In this case, the record indicates that Roberson sought damages beyond the value of the sewer line easement and the effect the existence of the easement had on the market value of the remainder of his property. Specifically, he argued that the sewer line easement and the accompanying sewer line caused physical damage to his deck, concrete slab, and adjoining slab. Roberson’s amended pleadings asserted that “[ajpart from the diminution in market value, Plaintiff will in all probability continue to suffer damages to his house caused by the existence and location of the Sewer Main.” In support of these claims, Roberson presented a report by a professional engineer that concluded that settling and sinkholes observed on the property may have been related to settling of the trench-fill soils covering the sewer line. The same report estimated the cost to adequately compact the trench fill materials at $415,000 to $480,000.

In response to Roberson’s evidence of property damage, the City presented evidence that the presence of the sewer trench was not the cause of the damages. This included testimony by the developer that the fill was compacted, testimony by the home builder that the foundation rested on rock and not fill, survey data that the house was not built over the easement, and testimony from a structural engineer that there was no evidence that the sewer trench was causing settling or cracking of the house or front driveway. The structural engineer offered his opinion that any cracking in the driveway was due to soil erosion caused by water runoff from the property of Roberson’s uphill neighbor. He estimated that remedying this problem would cost between $7,500 and $20,000. The City also elicited an admission from Roberson’s expert that without further study he could not tell what was causing the sinkholes and depressions on Roberson’s property.

Although this case does not entail damage to property by flooding, we find that it presents issues similar to those in Hale, Gragg, and Brandywood. The takings claims in each of those cases involved physical damage to property, as opposed to a loss in property value due to the taking, and a dispute between the parties as to the proximate cause of the damages. See Hale, 146 S.W.2d at 734, 736; Brandywood, 74 S.W.3d at 423-24, 426. Gragg, 43 S.W.3d at 612-13, 621. In like manner, Roberson alleged physical damages to his property, damages that were separate from the value of the easement and the impact of the easement’s existence on the market value of the remainder of his property. The dispute between the City and Roberson as to causation of the damages in this case also parallels the flooding cases. Therefore, we find that the trial court’s addition of “proximate cause” and “new and independent cause” definitions and instructions into the remainder damages questions submitted to the jury was not arbitrary, unreasonable, or without reference to guiding principles. See Mercedes-Benz, 925 S.W.2d at 666. Thus, we hold that the trial court did not abuse its discretion. We overrule Roberson’s second issue.

Summary judgment

In his final issue, Roberson argues that the trial court erred in granting no-evidence partial summary judgment in favor of the City on his procedural due process, substantive due process, and equal protection claims brought under 42 U.S.C. § 1983. These claims were based on Roberson’s allegation that the City decided not to notify him of the easement and sanitary sewer line running across the north side of his property. Roberson asserts he presented sufficient evidence in support of these claims and, accordingly, that the trial court erred in granting the City’s no-evidence partial summary judgment motion on these claims. We disagree.

Because the propriety of a summary judgment is a question of law, we review the district court’s decision de novo. Texas Dep’t of Ins. v. American Home Assurance Co., 998 S.W.2d 344, 347 (Tex.App.Austin 1999, no pet.). Summary judgment will be proper if the non-movant failed to produce summary judgment evidence raising a genuine issue of material fact. Tex.R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). A genuine issue of material fact exists if the non-movant produces more than a scintilla of evidence establishing the existence of the established element. Ridgway, 135 S.W.3d at 600; Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex.2000).

Municipalities may be sued for deprivation of constitutional rights under section 1983, but such deprivations must be pursuant to an official policy or pursuant to a widespread custom of the municipality. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). An official custom is a persistent and widespread practice of City officials or employees which is so common and well-settled that, though not officially adopted and promulgated, can be said to fairly represent municipal policy. Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir.2002); Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984). An official policy or custom must have been made by the municipality’s lawmakers or by those “whose edicts or acts may fairly be said to represent official policy....” Monell, 436 U.S. at 694, 98 S.Ct. 2018. Therefore, liability cannot rest on the policy or custom of an individual official. Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir.1984); Monell, 436 U.S. at 691, 98 S.Ct. 2018 (holding that municipality will not be held liable for constitutional tort solely on basis of respondeat superior). Thus, municipal liability under § 1983 requires three elements: (1) a policymaker, (2) an official policy or custom, and (3) a violation of constitutional rights whose “moving force” is the policy or custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.2001) (citing Monell). These three attribution principles are necessary to distinguish individual violations of employees from those that can be fairly identified as actions of the government itself. Id.

We now determine whether Roberson presented evidence that the “moving force” of the City’s actions was an official policy or custom. See id. Roberson’s response to the City’s Motion for Partial Summary Judgment in this case stated that “the summary judgment evidence is uncontroverted that all levels of City government were involved in the deprivation of Plaintiffs federal civil rights.” In support of his claim, Roberson presented the deposition of the City’s designated representative, two 1985 City memoranda regarding the investigation into the lack of recorded easements, and a copy of the City’s settlement agreement with Roberson’s neighbor. The first three of these sources indicate that an assistant director of the City of Austin Water and Wastewa-ter Utilities Department contacted Espey regarding the unrecorded easements and requested that Espey notify the affected landowners and remedy the problem. One of the letters indicated that a courtesy copy was to go to the director of the department. The settlement agreement reveals that the City was party to an agreement whereby Roberson’s neighbors were not to disclose the terms of the settlement for two years.

This evidence establishes that certain City officials knew of the easement problem. Based on other evidence and the jury’s finding of fact, it is also clear that Roberson was never notified of the existence of the easement and sewer line. Nevertheless, the evidence produced by Roberson does not demonstrate that the City acted pursuant to an official policy or pursuant to a persistent and widespread custom of not notifying landowners of unrecorded City easements. See Pineda, 291 F.3d at 328; Webster, 735 F.2d at 841. By itself, the fact that he was not notified is not sufficient to demonstrate that the actions complained of were more than potential violations by individual City officials. Without such a demonstration, the City cannot be held liable. See Piotrowski, 237 F.3d at 578. In like manner, the fact that the City settled a single dispute with Roberson’s neighbor is not sufficient evidence of a City custom so widespread that it should be considered “official.” See Monell, 436 U.S. at 694, 98 S.Ct. 2018.

Moreover, Roberson failed to identify a policymaker “whose edicts or acts may fairly be said to represent official policy.” See Monell, 436 U.S. at 694, 98 S.Ct. 2018. Although he can point to knowledge by an assistant director of the Water and Waste-water Utilities Department, he did not present evidence to support the authority of that official to represent official policy for the City. Similarly, Roberson did not present evidence demonstrating that the nondisclosure clause in his neighbors’ settlement was to prevent Roberson or other Jester Estate property owners from learning of the presence of unrecorded easements in the subdivision. Nor was he able to indicate who in the City authorized the settlement with his neighbors, whether that person had the authority to decide that subdivision property owners should not be notified of the unrecorded easement, or whether such nondisclosure clauses are a common practice of the City.

Consequently, we find that Roberson did not present more than a scintilla of evidence showing that the City’s failure to notify him of a sanitary sewer easement on his property was made by a policymaker or was made pursuant to official City policy or custom. Ridgway, 135 S.W.3d at 600; Morgan, 27 S.W.3d at 929. Therefore, Roberson’s evidence was not sufficient to support a finding that the City’s actions in this case fairly represent municipal policy such that the City can be held liable. See Pineda, 291 F.3d at 328; Webster, 735 F.2d at 841. Thus, we overrule Roberson’s final issue.

CONCLUSION

Because the UDJA is a proper vehicle for determining the validity of easements, we hold that the trial court’s basis for denying Roberson’s claim of attorney’s fees was in error. But we hold that the trial court did not abuse its discretion in submitting the proximate-cause and new- and-independent cause definitions and instructions here. Finally, we find that Roberson did not present more than a scintilla of evidence to support a required element of his constitutional tort claims. Thus, the trial court did not err in granting partial summary judgment in favor of the City on those claims. We affirm in part, reverse in part, and remand to the trial court for a determination of whether Roberson should receive attorney’s fees.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 37.004 (West 1997).

      . The exact reason the Roberson property sanitary sewer easement and other easements for Jester Estates were not recorded remains unclear. However, the record indicates that there was uncertainty among Jester, Espey, and the City of Austin as to which party was responsible for recording the easements.

      . Subsidence is the sinking or settling of land. It can be caused by the compaction of loose soils, the withdrawal of ground water, or other reasons.

      . A confidentiality agreement in the settlement of the Paul's lawsuit against the City precluded Paul from telling anyone about the problem for two years. Although this clause had expired by 1997, its existence may explain Paul's reluctance to answer Roberson's question directly.

      . We express no opinion regarding whether trespass to try title is also an appropriate means of determining easement rights. We merely hold that Martin does not foreclose the resolution of easement disputes by means of a declaratory judgment under the UDJA.

      . Question No. 8 asked: "What damages, if any, occurred to Kenneth Roberson’s property as of July 22, 2002, which are proximately caused by the taking of the 7.5 foot strip of land as an easement for public sewer service purposes.” It was proceeded by the following definitions and instructions:
      "PROXIMATE CAUSE,” means that cause which, in a natural and continuous sequence, unbroken by any new and independent cause, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause.
      "NEW AND INDEPENDENT CAUSE,” means the act or omission of a separate and independent agency, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question and thereby becomes the immediate cause of such occurrence.
      The charge also contained a Question 6 that was identical to Question 8 except that the date of valuation was July 1, 1982.

      . Roberson also offered his own affidavit, the affidavit of the builder of his home, an engineering report, and an appraiser's report. However, this additional evidence is not relevant to the determination of City policy or custom.