JCB, INCORPORATED, doing business as Conveying & Power Transmission Solutions, Plaintiff - Appellant
THE HORSBURGH & SCOTT COMPANY, Defendant-Appellee
from the United States District Court for the Western
District of Texas
HAYNES, HO, and DUNCAN, Circuit Judges.
C. HO, CIRCUIT JUDGE:
case is a perfect example of when we should certify cases,
and why certification is valuable. We are presented with a
question of pure statutory interpretation on a recurring
issue of interest to citizens and businesses across Texas.
What's more, it is a question that divided judges on this
court. As reflected in our competing concurring opinions,
different judges on this court have disagreed about whether
the district court correctly interpreted the Texas Sales
Representative Act ("TSRA"). See JCB, Inc. v.
Horsburgh & Scott Co., 912 F.3d 238, 241-46 (5th
Cir. 2018) (Ho & Duncan, JJ., individually concurring)
("Horsburgh I"). But we all agreed that
reasonable minds could differ. So rather than provide a
partial answer-binding only litigants who file in federal
court, not those in state court- we instead certified the
question to the Supreme Court of Texas, which can speak with
authority for all litigants, in state and federal court
alike. See, e.g., id. at 243 (Ho,
have that answer, and accordingly affirm in part and reverse
and remand in part.
& Power Transmission Solutions ("CPTS") was an
independent sales representative for the Horsburgh &
Scott Company, earning a commission on every sale. After the
parties terminated their agreement, Horsburgh owed CPTS
approximately $280, 000 in commissions. Over the next year
and a half, Horsburgh made consistent but untimely payments.
Eventually, CPTS sued Horsburgh in Texas state court under,
inter alia, the TSRA. Horsburgh removed to federal
court. While the lawsuit was pending, Horsburgh paid off the
rest of its outstanding commissions.
district court granted summary judgment to Horsburgh. In
relevant part, it determined that the TSRA only allows for
treble damages for "unpaid commissions due."
According to the court, Horsburgh had paid all of its
past-due commissions, so there was no longer anything
"unpaid" or "due." CPTS appealed solely
with respect to its TSRA claim.
A principal who fails to comply with a provision of a
contract under Section 54.002 relating to payment of a
commission . . . is liable to the sales representative in a
civil action for: (1) three times the unpaid commission due
the sales representative; and (2) reasonable attorney's
fees and costs.
Bus. & Com. Code § 54.004. The only questions in
dispute are (1) whether there are any "unpaid
commissions due" to treble, and (2) whether, in the
absence of a treble damages award, CPTS is nevertheless
entitled to attorney's fees.
concluded that § 54.004(1) is ambiguous because it is
unclear "[a]t what moment in time" courts must
"determine the amount of any 'unpaid commission
due'" subject to trebling. See Horsburgh I,
912 F.3d at 239. Further, we determined it was "not
clear" whether the TSRA provides for attorney's fees
when the plaintiff is not entitled to treble damages. See
id. at 241.
certified two questions to the Supreme Court of Texas:
(1) What timing standard should courts use to determine the
existence and amount of any "unpaid commissions
due" under the treble damages provision of Tex. Bus.
& Com. Code § 54.004(1)?
(2) May a plaintiff recover reasonable attorney's fees
and costs under Tex. Bus. & Com. Code § 54.004(2),
if the plaintiff does not receive a treble damages award
under Tex. Bus. & Com. Code ...