
 
                                                                                                    
  


 
 
 
NUMBER 13-02-540-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG

 
J.C. PENNEY COMPANY, INC., ET AL.,                                     Appellant,
v.
GAYLE G. PITTS, ET AL.,                                                             Appellee.



On appeal from the 214th District Court
of Nueces County, Texas.




 O P I N I O N   O N   M O T I ON   F O R   R E H E A R I N G

       Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Opinion by Chief Justice Valdez
          Appellees have filed a motion for rehearing in cause number 13-02-540-CV.  After
reviewing the motion and our original opinion, we find the motion for rehearing should be
denied but that two corrections should be made to our original opinion.  J.C. Penney Co.
v. Pitts, No. 13-02-540-CV, 2004 Tex. App. LEXIS 6294, at *10-*11 (Tex. App.–Corpus
Christi July 15, 2004, no pet. h.). 
          Footnote thirteen states:
Rule 42(e) provides that “[a] class action shall not be dismissed or
compromised without the approval of the court, and notice of the proposed
dismissal or compromise shall be given to all members of the class in such
a manner as the court directs.”  Tex. R. Civ. P. 42(e).

This version of rule 42(e) was amended effective January 1, 2004.  Accordingly, footnote
thirteen is ordered changed to:
At the time Henry Schein, Inc. was handed down, rule 42(e) read: “[a] class
action shall not be dismissed or compromised without the approval of the
court, and notice of the proposed dismissal or compromise shall be given to
all members of the class in such a manner as the court directs.”  The rule
was amended effective January 1, 2004 and now provides in pertinent part: 

(1)(A) The court must approve any . . . dismissal . . . of the
claims, issues, or defenses of a certified class.

(B) Notice of the material terms of the
proposed . . . dismissal . . . shall be given to all members in
such manner as the trial court directs.

Tex. R. Civ. P. 42(e).

          In the third sentence of the last paragraph under the subheading “1.  Abandonment,”
we stated, “Thus, any attempt to abandon these claims could trigger the notice
requirements of rule 42(e).”  This sentence is ordered changed to:
Thus, any attempt to abandon these claims on appeal of a certified class
could trigger the notice requirements of rule 42(e)(1)(B). 

          Appellee’s motion for rehearing is denied. 
 


                                                                                                                   
                                                                        Rogelio Valdez,
                                                                        Chief Justice

Opinion delivered and filed
this 12TH day of August, 2004.
