Autobahn Imports, L.P. v. Jaguar Land Rover N. Am., L.L.C.

Case: 17-10737 Document: 00514553404 Page: 1 Date Filed: 07/13/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 17-10737 July 13, 2018

Lyle W. Cayce

Clerk

AUTOBAHN IMPORTS, L.P.,

Doing Business as Land Rover of Fort Worth,

Plaintiff–Appellee,

versus

JAGUAR LAND ROVER NORTH AMERICA, L.L.C.,

Defendant–Appellant.

Appeal from the United States District Court

for the Northern District of Texas

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This is a dispute between a U.S. car distributor, Jaguar Land Rover

North America (“Jaguar”), and a franchised dealership, Autobahn Imports

(“Autobahn”), concerning chargebacks of around $300,000 in incentive pay-

ments the distributor had made to the dealer. The Board of the Texas Depart-

ment of Motor Vehicles (the “Board”) declared the chargebacks invalid, and

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Jaguar exercised its statutory right of review in the state appellate court.

While that appeal was pending, Autobahn sued for damages based on the

Board’s findings, claiming violations of the Texas Deceptive Trade Practices

Act (“DTPA”) and breach of contract. Before the state court of appeals had

completed its review, the federal district court granted summary judgment to

Autobahn on its various claims. Because Autobahn’s antecedent failure to

exhaust divested the district court of power to decide the claim when it did,

summary judgment is vacated and remanded.

I.

Jaguar offers an incentive known as the “Business Builder Program,”

which provides dealers a percentage of the retail price of every vehicle sold if

certain conditions are met. The relevant terms are set out in the Business

Builder Program Manual (“Manual”) and the Operations Bulletin (“Rules”),

collectively referred to as the Business Builder Contracts. 1 According to

Jaguar, dealerships are entitled to incentive payments if they (1) deliver each

new vehicle to the “end-user”; (2) submit the end-user’s name and address to

Jaguar; and (3) maintain the necessary documentation to support that address.

The Rules define an “end user” as “a purchaser/lessee purchasing or leasing a

vehicle from an authorized Dealership for retail, commercial or business use,

with no intent to resell. An approved leasing company purchasing to lease is

considered an end user.” The Rules offer no definition of an “approved leasing

company.”

In 2010, a dispute arose regarding the procedures and policies governing

the 2011 Business Builder Program, and Autobahn filed a complaint with the

1See also Autobahn Imports, L.P. v. Jaguar Land Rover N. Am., L.L.C., No. 17-10349,

2018 WL 1612252, at *1 (5th Cir. Apr. 3, 2018) (per curiam) (unpublished).

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Texas Department of Motor Vehicles. Before the Board acted, Jaguar and

Autobahn entered into the 2011 Settlement Agreement, which outlined certain

“Handover Policies” that Autobahn would follow. That agreement required

Autobahn to extend to “[e]very retail purchaser . . . an invitation to visit Auto-

bahn’s dealership personally” to receive the vehicle, or to conduct the handover

“at the residence/office of the purchaser or end-user.” The agreement stated

that “[a]ll deliveries . . . will be conducted by trained Autobahn personnel.”

The parties dispute the reach of the agreement. Jaguar asserts that the

Handover Policies apply to all “end users,” while Autobahn insists that it

applies only to “individual retail purchasers, not leasing companies.”

A new dispute regarding the 2013 Business Builder Program forms the

principal basis for the current action. Jaguar conducted an audit of Autobahn’s

sales from February 2013 through January 2014. The auditor looked at 134

sales files, “all of which involved sales to leasing companies,” and claimed that

in 90 cases, Autobahn was not entitled to an incentive payment because

“[d]elivery was not made to the vehicle’s end-user by an authorized Land Rover

retailer representative.” Instead, the leasing agency delivered the vehicle to

the lessee. The auditor initiated 91 chargebacks for incentive payments. 2

Autobahn appealed, and Jaguar affirmed all but 5, resulting in $317,204.80 in

chargebacks.

In May 2014, Autobahn filed a complaint with the Board, alleging that

the chargeback violated Section 2301.467(a)(1) of the Texas Occupations Code,

which prohibits a manufacturer, distributor, or representative from

2“A manufacturer or distributor may make charge-backs to a dealer if, after an audit,

the manufacturer or distributor has reasonable grounds to conclude that the dealer commit-

ted fraud with respect to the incentive program.” TEX. OCC. CODE § 2301.475(b).

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“requir[ing] adherence to unreasonable sales or service standards.” 3 Autobahn

sought “a declaration from the Board that [Jaguar’s] interpretation of ‘end-

user’ to exclude a leasing company purchasing a vehicle from Autobahn” vio-

lated that prohibition.

The Board referred Autobahn’s complaint to an administrative law judge

(“ALJ”) at the State Office of Administrative Hearings. In August 2015, the

ALJ issued a Proposal for Decision, concluding that the chargebacks violated

Section 2301.467(a)(1). The ALJ noted that the dispute ultimately turned on

the question “whether a leasing company is an end-user under the terms of the

Business Builder documents.” The ALJ thought yes. While noting that neither

the Manual nor the Rules define “an approved leasing company,” she still found

that “[s]ales to leasing companies are qualified sales under Business Builder

according to the Program documents.” She concluded that Jaguar’s “charge-

backs to Autobahn for sales to leasing companies . . . [were] invalid under . . .

§ 2301.467(a)(1) for requiring adherence to unreasonable sales or service

standards.” 4

The Board adopted the ALJ’s findings of fact and conclusions of law and

issued a final order stating that Jaguar “improperly charged back against

[Autobahn] certain incentive payments for sales to leasing companies and that

those chargebacks are invalid and rescinded.”

In November 2016, Jaguar appealed the Board’s order to the state court

3 TEX. OCC. CODE § 2301.467(a)(1). Autobahn also alleged that the action violated

Section 2301.468, which prohibits a manufacturer or distributor from “treat[ing] franchised

dealers of the same line-make differently,” see id. at § 2301.468, but the parties agree that

Autobahn has since conceded that claim.

The ALJ also concluded that Jaguar’s chargebacks violated § 2301.468 “for treating

4

Autobahn unfairly or inequitably in its sale of [Jaguar’s] vehicles,” but Autobahn has since

abandoned that claim.

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of appeals. 5 During the pendency of that appeal, Autobahn sued in state

court, 6 claiming breach of contract and violations of the DTPA, the latter of

which would entitle it to treble damages. 7

Jaguar removed, and Autobahn sought summary judgment. It claimed

(1) Jaguar’s “violation[] of Section 2301, as found by the Board, establish[es]

Autobahn’s claim under the [DTPA] as a matter of law” and (2) that “the Board

expressly found that the underlying agreements . . . collectively constitute valid

and enforceable contracts that [Jaguar] breached by virtue of wrongful charge-

backs.” Jaguar replied that (a) the action was premature because Autobahn

had not yet exhausted its administrative remedies and that (b) even if the

action were properly before the court, Autobahn was not entitled to treble dam-

ages on summary judgment because it had not established that Jaguar acted

“knowingly” as required by the DTPA.

The federal district court rejected Jaguar’s exhaustion argument, rea-

soning that “the Board’s final order is final and enforceable.” The court then

granted summary judgment on Autobahn’s DTPA and breach-of-contract

5 The Texas Court of Appeals’s review of Board decisions is fairly deferential. The

court will “reverse or remand a case for further proceedings if substantial rights of the appel-

lant have been prejudiced because the administrative findings, inferences, conclusions, or

decisions are (A) in violation of a constitutional or statutory provision; (B) in excess of the

agency’s statutory authority; (C) made through unlawful procedure; (D) affected by other

error of law; (E) not reasonably supported by substantial evidence considering the reliable

and probative evidence in the record as a whole; or (F) arbitrary or capricious or characterized

by abuse of discretion or clearly unwarranted exercise of discretion.” Jaguar Land Rover

N. Am. v. Bd. of the Tex. Dep’t of Motor Vehicles, No. 3-16-00770-cv, 2017 WL 6756997, at *5

(Tex. App.―Austin Dec. 21, 2017, no pet.) (internal quotations omitted).

Separate suit was necessary because the Texas Occupations Code does not grant the

6

Board authority to award damages for the relevant claims.

7 While these proceedings were underway, Jaguar credited the $317,204.80 charge-

back to Autobahn’s customer account, “subject to a full reservation of rights, without waiver

of its claims or defenses . . . , and subject to the right to insist upon the return of [the] sum in

the event Jaguar ultimately prevails in its appeal or otherwise obtains relief.”

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claims but denied “double recovery” as to the latter. Jaguar appealed, and, in

the interim, the Texas Court of Appeals affirmed the Board’s order. 8

II.

A.

The parties dispute the point at which the Board’s order became final for

purposes of administrative exhaustion. We agree with Jaguar that Autobahn

filed too soon.

Sitting in diversity, we apply Texas substantive law on the exhaustion

question, 9 “look[ing] first [and foremost] to the final decisions of the Texas

Supreme Court.” 10 Where that court has yet to speak directly to the question,

“we must make our best Erie guess,” 11 with the recognition that “non-binding

language from the [Texas] [S]upreme [C]ourt is the second- or third-best pre-

dictive indicium of how [it] might decide.” 12

Our analysis begins and ends with Subaru of America v. David McDavid

Nissan, 84 S.W.3d 212, 221 (Tex. 2002), which offers the court’s most thorough

explication of exhaustion and the Board’s jurisdiction. A car dealership had

sued a manufacturer for several Code violations without first having sought

administrative relief. The court began its analysis by explaining that Texas

8 Jaguar, 2017 WL 6756997, at *9 (“We cannot conclude that there is no reasonable

basis in the record for the determination that the chargebacks violated section 2301.467(a)(1)

or that the determination was arbitrary, capricious or affected by legal error.”).

9Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165, 166 (5th Cir. 2014) (“Texas

law must apply in this appeal; which leads us to the question of whether the exhaustion of

administrative remedies under Texas law is jurisdictional or merely a condition precedent

that may be forgiven.”).

10 Austin v. Kroger Tex. LP, 746 F.3d 191, 196 (5th Cir. 2014).

11 Howe ex rel. Howe v. Scottsdale Ins. Co., 204 F.3d 624, 628 (5th Cir. 2000).

12In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Prod. Liab. Litig., 888 F.3d

753, 774–75 (5th Cir. 2018).

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agencies enjoy two forms of jurisdiction: “primary” and “exclusive.” Id. at 220.

The former is “prudential,” the latter “jurisdictional.” Id. Hence, where the

agency possesses exclusive jurisdiction, “a party must first exhaust adminis-

trative remedies before a trial court has subject matter jurisdiction over a dis-

pute.” Id. at 222. As for Code-based claims, the Texas Motor Vehicle Commis-

sion Code “creates a hybrid claims-resolution process” whereby “the Board has

exclusive jurisdiction . . . over claims and issues the Code governs, [and] a party

must exhaust administrative remedies to obtain a Board decision about Code

violations, if any, to support a DTPA or bad-faith claim based on Code viola-

tions.” Id. at 224 (emphasis added).

After identifying exhaustion as jurisdictional, the court opined on when

it first occurs:

The Board’s decision becomes “final” (and thus a party has ex-

hausted administrative remedies) for purposes of a party’s pursu-

ing damages in a trial court for Code-based claims: (1) after the

time to seek substantial-evidence review of the Board decision ex-

pires, if no affected person seeks such review . . . ; or (2) after an

affected person who seeks judicial review exhausts the

substantial-evidence review avenues . . . .

Id. It is undisputed that Autobahn filed for damages, and the district court

granted summary judgment in its favor, before completion of substantial-

evidence review. Subaru thus suggests the district court lacked subject-matter

jurisdiction to enter summary judgment.

The federal district court dismissed the above-cited language as “nothing

more than dicta” unsupported by the very statutory authorities upon which the

Subaru court purportedly had relied. The court concluded that the Board order

was clearly a “final board order”—noting that the order itself was titled “Final

Order”—and pointed to statutory provisions stating that an appeal of a final

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board order should not affect its enforcement. 13 The district court thus con-

cluded Autobahn need not wait for the Texas Court of Appeals.

We cannot agree. It is “error” for a “federal district court [to] dismiss[]

[the Texas Supreme Court’s] language as [mere] dictum.” DePuy, 888 F.3d

at 774. Though the district court’s position finds some support in the relevant

statutes, its decision pays insufficient homage to the body charged with final

interpretive authority over the statutes at issue.

As an initial matter, the dictum from Subaru likely isn’t “mere dicta,”

but rather binding “judicial dictum.” Texas courts recognize two types of dicta:

obiter dictum, which “is a statement not necessary to the determination of the

case and that is neither binding nor precedential,” and judicial dictum, which

“is a statement made deliberately after careful consideration and for future

guidance in the conduct of litigation.” Lund v. Giauque, 416 S.W.3d 122, 129

(Tex. App.—Fort Worth 2013, no pet.). 14 The latter “should be followed unless

found to be erroneous.” Id.

Subaru’s language bears all the hallmarks of judicial dictum. Its intro-

ductory sections carefully trace the nature of the Board’s jurisdiction, the con-

tours of exhaustion for Code-based claims, and their combined effect on a

“[t]rial court’s adjudicat[ive]” role in the hybrid-claims process. Subaru,

84 S.W.3d at 223–24. The court was careful to delineate exactly how a party

exhausts its claims in the hybrid-claims process, emphasizing that “the Board’s

decision becomes ‘final’ (and thus a party has exhausted administrative reme-

dies) for purposes of a party’s pursuing damages in a trial court . . . after . . .

substantial-evidence review” is completed. Id. at 224 (emphasis added). And

13 See TEX. GOV. CODE §§ 2001.176, 2001.144(a)(2)(A); TEX. OCC. CODE § 2301.755.

14 See also Seger v. Yorkshire Ins. Co., 503 S.W.3d 388, 399 (Tex. 2016); Palestine

Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex. 1964).

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the court ratified its view of finality, stating that “any further reference to final

board findings means ‘final’ as we define this term here.” Id. at 224 n.2 (empha-

sis added). Language as to when exhaustion occurs was plainly intended to

guide future courts and litigants on the appropriate time to file for damages

based on Code violations. And though the Texas high court is certainly free to

revisit that binding dictum, we lack the authority to do so. 15

Autobahn resists on two accounts. First, the language from Subaru “was

not necessary to the resolution of the case,” and second, it is “impossible” that

the statement was made “deliberately after careful consideration,” because

there was no briefing on the issue.

Both rebuttals fail badly. The first zeros in on the wrong distinction:

Even if necessity to the outcome might separate some holdings from dicta, 16 it

certainly cannot discriminate among gradations of the latter. And as for the

second reply, it assumes too much of counsel and far too little of our state-court

colleagues. Subaru itself proves as much.

In the alternative, Autobahn avers more forcefully that the language

from Subaru “lacks even ‘persuasive’ force because it is erroneous.” This asser-

tion requires that we train our attention carefully on the two relevant statutory

provisions with which Subaru purportedly conflicts: Texas Occupations Code

15 Cf. Terminiello v. City of Chi., 337 U.S. 1, 5 (1949) (explaining, in the First Amend-

ment context, that “the gloss which [a state court] placed on the ordinance gives it a meaning

and application which are conclusive on” federal courts); accord Gooding v. Wilson, 405 U.S.

518, 520 (1972) (“Only the [state] courts can supply the requisite construction, since of course

‘we lack jurisdiction authoritatively to construe state legislation.’” (quoting United States v.

Thirty-seven (37) Photographs, 402 U.S. 363, 369 (1971))).

16We state this only provisionally because the language of a decision may carry bind-

ing weight even when unnecessary to the particular result. Cf. Saucier v. Katz, 533 U.S. 194,

207 (2001) (explaining that courts can decide whether an underlying constitutional violation

took place even if qualified immunity bars the suit and renders the antecedent constitutional

judgment unnecessary to the result), rev’d on other grounds in Pearson v. Callahan, 555 U.S.

223, 242 (2009).

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§ 2301.755 and Texas Government Code § 2001.176(b)(3). The first reads as

follows:

An appeal under this subchapter does not affect the enforcement

of a final board order unless:

(1) the enforcement of the order is enjoinable under

Chapter 65, Civil Practice and Remedies Code, and under

principles of primary jurisdiction; or

(2) the board, in the interest of justice, suspends the

enforcement of the order pending final determination of the

appeal.

TEX. OCC. CODE. § 2301.755 (emphasis added). Similarly, Texas Government

Code § 2001.176 states that “[u]nless otherwise provided by statute,” the filing

of a petition for review “does not affect the enforcement of an agency decision”—

such as the Board decision at issue here—for which substantial-evidence

review is authorized. TEX. GOV. CODE § 2001.176(b)(3) (emphasis added).

Autobahn contends that Section 2301.755 “plainly means that if one

party appeals an adverse final board order, and if neither of the two exceptions

applies, then the other party may file, prosecute, and obtain judgment in an

action to enforce the final board order.” Autobahn claims that Section

2001.176(b)(3) points in the same direction and that both provisions apply to

anyone—court or administrative agency—with the authority to enforce a

Board order.

Jaguar’s counter is plain enough. It reads the statutes’ references to

“enforcement” to cover only the Board’s own enforcement of its orders and not

the initiation of a damages action in a trial court. As proof, Jaguar cites Section

2301.805(b), which clarifies that the trial court in a damages action is not tech-

nically enforcing the Board’s order but instead “giv[ing] deference to the

[Board’s] findings of fact and conclusions of law” “in the interest of judicial

economy and efficiency.” TEX. OCC. CODE § 2301.805(b).

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These dueling interpretations turn on a recurring source of uncertainty

in statutory interpretation: To whom is the statute addressed? Subaru tacitly

embraces Jaguar’s narrowing construction, and Autobahn offers nothing on

appeal to show that that interpretive choice was an unreasonable one. In the

absence of error, that judicial dictum should control.

But even if Subaru’s language were not binding, the district court should

have granted it heavy weight in wagering its Erie guess. See DePuy, 888 F.3d

at 774. Subaru’s language is at least arguably consistent with the statutory

scheme, and it provides the clearest signal of the position of Texas’s highest

civil court. Given that far “weak[er]” dictum is generally “relevant to the [Erie]

inquiry,” id. at 775, Subaru’s unmistakable clarity ought to have controlled.

In short, Autobahn failed to exhaust before the federal district court

entered judgment in its favor. Because that failure was jurisdictional, the

district court lacked the power to decide the case when it did. See Subaru,

84 S.W.3d at 218.

B.

Autobahn asserts, by way of a supplemental letter, that even if it failed

to exhaust before entry of summary judgment, the issue is “moot” because the

state court of appeals has since rejected Jaguar’s challenge to the Board’s

determinations. But Autobahn offers no support for that conclusional propo-

sition. And when pressed at oral argument to explain how we could affirm a

jurisdictionally defective judgment, Autobahn’s only answer was to resist the

premise, insisting that it had successfully exhausted with the Board’s deter-

mination. But having just crossed that bridge, we see no permissible way to

reach Autobahn’s preferred result.

Nothing in the post-judgment developments changes things. In Grupo

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Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 571 (2004), the Court

explained, albeit in the context of diversity jurisdiction, that “the jurisdiction

of the court depends upon the state of things at the time of the action brought.”

(internal quotation omitted). 17 Here, the jurisdictional defect not only was

present at the time of filing but persisted through summary judgment. 18 Given

that the court lacked the authority to decide the case when it did, we cannot

now “hypothesize [its] subject-matter jurisdiction for the purpose” of passing

upon, and potentially affirming, its merits determination. See Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 577 (1999).

The Texas Supreme Court has described just one potentially relevant

escape hatch from the failure to exhaust in this context: “[I]f the impediment

to jurisdiction could be removed, then the court may abate proceedings to allow

a reasonable opportunity for the jurisdictional problem to be cured.” 19 But

nothing in Texas law suggests this “opportunity” persists after judgment; the

caselaw and common sense prove the opposite. 20 And though some courts have

17This court and others have cited Grupo Dataflux in the context of exhaustion with-

out second-guessing its applicability. See, e.g., Nat’l Football League Players Ass’n v. Nat’l

Football League, 874 F.3d 222, 225 (5th Cir. 2017); accord Doctors Nursing & Rehab. Ctr. v.

Sebelius, 613 F.3d 672, 677 (7th Cir. 2010) (noting that although the time-of-filing rule “is

primarily encountered when determining the prerequisites of diversity jurisdiction,” it “is not

so limited”).

18 Although the possibility for abatement would seem to cut against a strict time-of-

filing rule, see Subaru, 84 S.W.3d at 228, we need not square that circle, as the court lacked

jurisdiction not merely at the time of filing but also when it entered summary judgment.

Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 805 (Tex. 2001); see also Subaru,

19

84 S.W.3d at 228.

20For federal-exhaustion examples, see National Football League, 874 F.3d at 227 n.5

(holding the failure to exhaust in arbitration before a court filing could not be “cured by the

subsequent issuance of an arbitral award”); accord Macon v. Youngstown Sheet & Tube Co.,

698 F.2d 858, 861 & n.2 (7th Cir. 1983) (same); Galvan v. SBC Pension Benefit Plan, 204 F.

App’x 335, 339 (5th Cir. 2006) (rejecting the argument that a plaintiff’s “administrative reme-

dies were exhausted after she filed her original complaint”); accord Whitley v. Dr. Pepper

Snapple Grp., Inc., 4:17-CV-0047, 2017 WL 4155257, at *4 (E.D. Tex. Sept. 19, 2017) (citing

Galvan to reject the argument that the “[d]efendants’ exhaustion argument [was] moot since

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appeared to excuse post-filing jurisdictional defects when cured before judg-

ment, 21 here the defect remained through the early stages of this appeal. Auto-

bahn cites no authority to suggest a jurisdictional defect like this can be

“mooted” through exhaustion after the fact. 22

Accordingly, the summary judgment is VACATED and REMANDED. 23

administrative remedies [were] exhausted” after filing but before the court ruled). For a

Texas-exhaustion example, see Gorman, 753 F.3d at 169 (where a plaintiff filed suit, and

only afterward received her right-to-sue letter from the Texas Commission on Human Rights,

we deemed the defect cured, but emphasized the issue turned on whether the requirement of

a right-to-sue-letter was a “jurisdictional defect, which cannot be excused, or a condition

precedent, which may” (emphasis added)).

21 See, e.g., Mathews v. Diaz, 426 U.S. 67, 75 (1976); see also Positive Black Talk Inc.

v. Cash Money Records, Inc., 394 F.3d 357, 367 (5th Cir. 2004) (excusing failure to register a

copyright—which the court believed was a “jurisdictional prerequisite” to an infringement

suit—where the requirement was “satisf[ied] . . . before final judgment” (emphasis added)),

abrogated on other grounds by Reed Elsevier, Inc. v. Munchnick, 559 U.S. 154, 160 n.2 (2010);

H & D Tire & Auto.-Hardware, Inc. v. Pitney Bowes Inc., 227 F.3d 326, 328 (5th Cir.

2000) (“Even if a court lacks jurisdiction at the time of removal and regardless of whether

there was an objection to the removal, the judgment will stand if the court had jurisdiction

at the time it entered judgment.”); Ellison Steel, Inc. v. Greystar Constr. LP, 199 F. App’x

324, 327 (5th Cir. 2006) (“[I]n some cases this Court will not disturb a judgment even though

a jurisdictional defect existed at some point prior to entry of judgment if jurisdiction existed

at the time judgment was entered.”). But see Bowles v. Russell, 551 U.S. 205, 214 (2007)

(“Court[s] ha[ve] no authority to create equitable exceptions to jurisdictional requirements

. . . .”).

22 An exception concerns a federal court’s ability to cure imperfect diversity by dis-

missing a “dispensable nondiverse party . . . even after judgment has been rendered.” Grupo

Dataflux, 541 U.S. at 573 (emphasis added) (citing Newman–Green, Inc. v. Alfonzo–Larrain,

490 U.S. 826, 832 (1989)); id. (explaining that even “courts of appeals . . . have the authority

to cure a jurisdictional defect by dismissing a dispensable nondiverse party” even after judg-

ment has been entered). But in reversing this circuit, the Court made clear this was the

exception, not the rule. See id. at 574 (cautioning against “manufactur[ing] brand-new excep-

tion[s]” to the time-of-filing rule).

23 Under ordinary circumstances, our analysis would end here, without comment on

the merits of the summary judgment decision. But in light of the Texas court’s post-judgment

ratification of the Board’s findings and the possibility that the district court may retain

jurisdiction on remand, we write briefly to note that summary judgment on the DTPA claim

was likely unwarranted.

Autobahn is entitled to treble damages if Jaguar’s conduct was “committed

knowingly,” TEX. BUS. & COMM. CODE § 17.50(b)(1), that is, with “actual awareness, at the

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We place no limitation on the matters that the district court can address on

remand.

time of the act or practice complained of, of the falsity, deception, or unfairness of the act or

practice giving rise to the [dealer’s] claim,” id. § 17.45(9). Actual awareness requires that “a

person must think to himself at some point, ‘Yes, I know this is false, deceptive, or unfair to

him, but I’m going to do it anyway.’” St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co.,

974 S.W.2d 51, 53−54 (Tex. 1998). That is a high bar indeed, and the summary judgment

record appears insufficient to surmount it.

The mere fact that the Board adopted Autobahn’s interpretation of the contract terms

does not show that Jaguar acted knowingly. At a minimum, there appears to be a genuine

dispute of material fact as to whether Jaguar acted based on a good-faith interpretation of

the relevant contract provision when it initiated the chargebacks and when it continued to

withhold the funds during the appeal, particularly because the contract does not define the

term “approved leasing company.” “[A] party’s state of mind is inherently a question of fact

which turns on credibility,” and “[c]redibility determinations . . . are within the province of

the fact-finder.” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1265 (5th Cir. 1991).

Though “[t]his is not to say that the court can never enter summary judgment when intent

or state of mind is at issue . . . , the court must be vigilant to draw every reasonable inference

from the record in a light most flattering to the nonmoving party.” Id. at 1266. That posture

suggests summary judgment on the DTPA claim was premature.

14