Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

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United States Court of Appeals
Fifth Circuit
F I L E D
In the
November 5, 2004
United States Court of Appeals
Charles R. Fulbruge III
for the Fifth Circuit
Clerk
_______________
m 03-21002
_______________
ARTURO FLORES,
Plaintiff-Appellant,
VERSUS
MILLENNIUM INTERESTS , LTD., ET AL.,
DEFENDANTS,
MILLENNIUM INTERESTS, LTD.,
Defendant-Appellee.
* * * * * * * * * * * * * * *
PEDRO FLORES AND MARIBEL FLORES,
Plaintiffs-Appellants,
VERSUS
MILLENNIUM INTERESTS, LTD., ET AL.,
Defendants,
MILLENNIUM INTERESTS, LTD.,
Defendant-Appellee.
* * * * * * * * * * * * * * *

ALEJANDRO VERGARA AND JOAQUINA VERGARA,
Plaintiffs-Appellants,
VERSUS
MILLENNIUM INTERESTS, LTD., ET AL.,
Defendants,
MILLENNIUM INTERESTS, LTD.,
Defendant-Appellee.
* * * * * * * * * * * * * * *
_______________
m 03-21003
_______________
ARTURO FLORES,
Plaintiff-Appellant,
VERSUS
MILLENNIUM INTERESTS , LTD., ET AL.,
DEFENDANTS,
MILLENNIUM INTERESTS, LTD.,
Defendant-Appellee.
* * * * * * * * * * * * * * *
2

PEDRO FLORES AND MARIBEL FLORES,
Plaintiffs-Appellants,
VERSUS
MILLENNIUM INTERESTS, LTD., ET AL.,
Defendants,
MILLENNIUM INTERESTS, LTD.,
Defendant-Appellee.
* * * * * * * * * * * * * * *
ALEJANDRO VERGARA, ET AL.,
Plaintiffs,
ALEJANDRO VERGARA,
Plaintiff-Appellant,
VERSUS
MILLENNIUM INTERESTS, LTD., ET AL.,
Defendants,
MILLENNIUM INTERESTS, LTD.,
Defendant-Appellee.
3

_________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________
Before SMITH, WIENER, and PICKERING,
("Millennium"), develops residential subdivi-
Circuit Judges.
sions in the Houston area, financing most of its
sales using contracts for deeds. The plaintiffs
PER CURIAM:
are from three families who purchased houses
from Millennium under contracts for deeds.
This case, in which federal jurisdiction is
grounded in diversity of citizenship, raises
In July 2000, Millennium retained Concord
important issues of Texas law that the Texas
Servicing Corp. ("Concord") to perform ac-
courts have not resolved. Accordingly, we
counting and reporting services for the con-
certify the unresolved questions to the Su-
tracts. Concord provided two annual state-
preme Court of Texas.
ments to each of Millennium's customers, an
Annual Interest Statement and an Escrow An-
CERTIFICATION FROM THE
alysis. In 2002 and 2003, Concord transmitted
UNITED STATES COURT OF AP-
to plaintiffs these annual statements for calen-
PEALS FOR THE FIFTH CIRCUIT
dar years 2001 and 2002, respectively.
TO THE SUPREME COURT OF
TEXAS, PURSUANT TO TEXAS
In 2001, the Texas Legislature renumbered
CONSTITUTION ART. 5, � 3-c, AND
and revised Texas Property Code � 5.077.
RULE 58 OF THE TEXAS RULES OF
Effective September 1, 2001, � 5.077(a) re-
APPELLATE PROCEDURE.
quires a seller of an executory contract to pro-
vide annual statements to its purchaser, and
TO THE SUPREME COURT OF TEXAS
� 5.077(b) lists seven items that must be
AND HONORABLE JUSTICES THEREOF:
included in each such statement. Of the seven
items, two were not included in the statements
I. Style of the Case
that Concord issued to plaintiffs: � 5.077-
(b)(1), the "amount paid under the contract,"
The style of the case in which certification
and � 5.077(b)(3), the "number of payments
is made is Flores v. Millennium Interests, Ltd.,
remaining under the contract."
Case No. 03-21002, in the United States Court
of Appeals for the Fifth Circuit, on appeal
Subsection (c) of � 5.077 contains a penalty
from the United States District Court for the
provision for a seller's failure "to comply with
Southern District of Texas.
Subsection (a)." It makes the seller liable to
the purchaser for "(1) liquidated damages in
II. Statement of the Case
the amount of $250 a day for each day after
January 31 that the seller fails to provide the
The defendant, Millennium Interests, Ltd.
purchaser with the statement; and (2) reason-
4

able attorney's fees."
with � 41.003 of the Civil Practice and Reme-
dies Code to recover "liquidated damages"
Plaintiffs sued, asserting, inter alia, claims
under � 5.077 of the Texas Property Code?
against Millennium under � 5.077 and against
Concord under the Federal Fair Debt Collec-
IV. Questions Certified
tion Practices Act. The district court entered
summary judgment for Millennium on all
1. If a seller under a contract for deed
claims. Plaintiffs appeal only in regard to the
sends a purchaser a statement under � 5.077(a)
adverse ruling on � 5.077.
that omits any of the applicable information
listed in � 5.077(b) of the Texas Property
III. Legal Issues
Code, specifically in the information required
by � 5.077(b)(1) or (3), or both, is the seller
The district court ruled that "[t]o claim
liable to the purchaser for $250 per day liqui-
damages for an incomplete statement, the pur-
dated damages as set forth in � 5.077(c)?
chaser must show an actual injury resulting
from the omission," and that "[b]ecause Mil-
2. If a seller under a contract for deed
lennium's omission resulted in no actual harm,
sends a purchaser a statement that omits
it is not liable for damages under the statute."
information required by �� 5.077(b)(1) and
The court further reasoned that a violation can
(3), must the purchaser prove actual harm or
stem only from the failure to send any
injury to recover liquidated damages under the
statement at all, and the statements in question
statute?
"were not so deficient that they constituted no
statements at all." Resolution of this case
3.
In 2001, 2002, and 2003, did the statu-
turns on the answers to the following
torily defined "exemplary damages" in chapter
questions: (1) Does the seller under a
41 of the Texas Civil Practice and Remedies
contract for deed violate the statute if the
Code encompass the statutorily defined "liqui-
statement furnished to the purchaser does not
dated damages" in � 5.077 of the Texas Prop-
strictly comply with the statute, i.e., omits
erty Code, so that to recover under � 5.077 of
information required by the statute, or may the
the Property Code a purchaser would have to
seller satisfy the statute by substantial compli-
comply with � 41.003 of the Civil Practice and
ance, i.e., by furnishing a statement containing
Remedies Code?
less than all the required contents?; and (2) if
the seller may satisfy the statute by substantial
We disclaim any intention or desire that the
compliance and does so, must the purchaser
Supreme Court of Texas confine its reply to
prove "actual harm" to recover statutory
the precise form or scope of the questions
damages from the seller? This case also raises
certified. The answers provided by the Su-
the question whether, in calendar years 2001
preme Court of Texas will determine the issues
through 2003, "exemplary damages" as de-
on appeal in this case. The record and copies
fined in Chapter 41 of the Texas Civil Practice
of the briefs are transmitted herewith.
and Remedies Code included "liquidated
damages" as defined in � 5.077 of the Texas
QUESTIONS CERTIFIED.
Property Code, making it necessary for a
purchaser under a contract for deed to comply
5