     Case: 12-40854   Document: 00513736358     Page: 1   Date Filed: 10/27/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                       Fifth Circuit

                                                                      FILED
                                 No. 12-40854
                                                                 October 27, 2016
                                                                   Lyle W. Cayce
                                                                        Clerk
DORIS FORTE, O.D., on behalf of herself and all other similarly situated
persons; BRIDGET LEESANG, O.D.; DAVID WIGGINS, O.D.; JOHN
BOLDAN, O.D.,

             Plaintiffs - Appellees

v.

WAL-MART STORES, INCORPORATED,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and JOLLY, and SMITH, Circuit Judges.
PER CURIAM:
      The Texas Supreme Court has resolved the certified questions in this
case. In the light of its answers, we now vacate the district court’s judgment
and remand for further proceedings.
      Plaintiffs, a group of optometrists who leased office space from Wal-Mart
Stores, Inc., in its retail stores, sued Wal-Mart for violations of the Texas
Optometry Act, Tex. Occ. Code §§ 351.001-.608. They alleged that Wal-Mart,
in violation of the Act, attempted to control their practice of optometry by
exercising influence over their hours. Plaintiffs conceded that they did not
    Case: 12-40854      Document: 00513736358      Page: 2    Date Filed: 10/27/2016



                                   No. 12-40854
suffer any compensatory damages, but instead sought civil penalties under the
Act. After trial, a jury returned a verdict in the Plaintiffs’ favor, and the
district court entered judgment in the amount of $1,395,400, consisting
entirely of statutory civil penalties.
      Wal-Mart appealed the district court’s judgment. In our first opinion
addressing the matter, we held that (1) Wal-Mart could properly be held liable
under the Act, but that (2) the damages awarded, “civil penalties” assessed
under the Optometry Act, were awarded in violation of Chapter 41 of the Texas
Civil Practices and Remedies Code. 1 Forte v. Wal-Mart Stores, Inc., 763 F.3d
421 (5th Cir. 2014) (“Forte I”). However, we subsequently vacated that opinion.
In our second opinion, we (1) vacated the original opinion; (2) adopted the
holding of the original opinion as to liability, finding again that Wal-Mart was
properly found liable for violating the Optometry Act; (3) found that the issue
of whether damages were proper implicated important issues of Texas law as
to which there was no controlling precedent; and (4) certified two questions
concerning the issue to the Texas Supreme Court. Forte v. Wal-Mart Stores,
Inc., 780 F.3d 272, 278 (5th Cir. 2015) (“Forte II”). We certified the following
questions:
      1. Whether an action for a “civil penalty” under the Texas Optometry
          Act is an “action in which a claimant seeks damages relating to a
          cause of action” within the meaning of Chapter 41 of the Texas Civil
          Practice and Remedies Code. In other words, are civil penalties
          awarded under Tex. Occ. Code § 351.605 “damages” as that term is
          used in Tex. Civ. Prac. & Rem. Code § 41.002(a).




      1  Chapter 41 provides, in relevant part, that “exemplary damages may be awarded
only if damages other than nominal damages are awarded.” Tex. Civ. Prac. & Rem. Code
§ 41.004(a).
                                          2
    Case: 12-40854    Document: 00513736358     Page: 3   Date Filed: 10/27/2016



                                 No. 12-40854
      2. If civil penalties awarded under the Texas Optometry Act are
         “damages” as that term is used in Tex. Civ. Prac. & Rem. Code
         § 41.002(a), whether they are “exemplary damages” such that Tex.
         Civ. Prac. & Rem. Code § 41.004(a) precludes their recovery in any
         case where a plaintiff does not receive damages other than nominal
         damages.
      The Texas Supreme Court accepted the certified questions and answered
both questions “yes,” reaching the same outcome as we did originally in Forte
I. Wal-Mart Stores, Inc. v. Forte, --- S.W. 3d ---, No. 15-0146, 2016 WL 2985018
(Tex. May 20, 2016), reh’g denied (Sept. 23, 2016) (“Forte III”). In other words,
the Texas Supreme Court found that “civil penalties” under the Optometry Act
were, by operation of Chapter 41, unavailable to private plaintiffs who had not
sustained any actual damages.
      The parties were subsequently ordered to file letter briefs addressing (1)
what matters remain for adjudication in the light of the Texas Supreme Court’s
opinion, and (2) what action this Court should now take. As to the first issue,
the parties agree that Forte III resolved the merits of this matter, and that the
district court’s judgment regarding damages must be vacated; attorneys’ fees
are the only matter that remains in this case. The parties disagree over the
second issue. The Optometrists argue that they are entitled to attorneys’ fees
and so this Court should remand to the district court for proceedings regarding
fees. Wal-Mart argues that the Optometrists are not entitled to fees, and that
this Court should find as much as a matter of law.
      We find that the best course is to remand this case to the district court
so that it may determine in the first instance whether the Optometrists are
entitled to attorneys’ fees in the light of the Texas Supreme Court’s opinion
and the correspondent vacatur of their damages award.


                                       3
    Case: 12-40854    Document: 00513736358     Page: 4   Date Filed: 10/27/2016



                                 No. 12-40854
      Accordingly, we AFFIRM the district court’s judgment regarding Wal-
Mart’s liability and REVERSE and VACATE the district court’s judgment
regarding damages. The case is REMANDED to the district court for further
proceedings consistent with this opinion, our opinion in Forte II, and the Texas
Supreme Court’s opinion in Forte III.




                                        4
