Star Houston, Inc.// Cross-Appellant,Volvo Cars of North America, LLC N/K/A Volvo Car USA, LLC v. Volvo Cars of North America, LLC N/K/A Volvo Car USA, LLC, and Board of the Texas Department of Motor Vehicles// Star Houston, Inc., and Board of the Texas Department of Motor Vehicles

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00239-CV

Appellant, Star Houston, Inc. //

Cross-Appellant, Volvo Cars of North America, LLC n/k/a Volvo Car USA, LLC

v.

Appellees, Volvo Cars of North America, LLC n/k/a Volvo Car USA, LLC and the Board

of the Texas Department of Motor Vehicles // Cross-Appellees, Star Houston, Inc.

and the Board of the Texas Department of Motor Vehicles

FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-21-000052, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING

CONCURRING OPINION

I concur with the Court’s conclusions that (1) Volvo has standing to bring its

cross-appeal from the Board’s Final Order, (2) the Board did not err by concluding that the CSI

and SSI Dealer Incentive Programs violated Occupations Code Sections 2301.467(a) and

2301.468, and (3) the Board did not err by concluding that the other four Dealer Incentive

Programs did not violate the statutory provisions alleged by Star. Therefore, I join in the judgment

that the trial court’s order is affirmed. However, I write separately because I disagree with the

Court’s analysis of why Volvo has standing to challenge the Board’s rulings that the CSI and SSI

programs violated the two statutory provisions.

In Volvo’s cross-appeal, it challenges the Board’s determination that the CSI and

SSI programs violated the Occupations Code, arguing that there is not substantial evidence that

supports the relevant findings of fact and conclusions of law. In response, the Board asserts that

Volvo lacks standing to bring its appeal. Relying on a common-law theory of standing, the Board

contends that Volvo has no concrete injury because it is the prevailing party on the ultimate issue

of Volvo’s termination of Star’s franchise agreement for good cause. See, e.g., Heckman

v. Williamson County, 369 S.W.3d 137, 154 (Tex. 2012) (“In Texas, the standing doctrine requires

a concrete injury to the plaintiff and a real controversy between the parties that will be resolved by

the court.”); see also Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 484 (Tex. 2018) (“The

standing requirement derives from the Texas Constitution’s provision for separation of powers

among the branches of government, which denies the judiciary authority to decide issues in the

abstract, and from the open courts provision, which provides court access only to a ‘person for an

injury done him.’” (quoting Tex. Const. art. I, § 13)). The Board argues that because it did not

take any action against Volvo in the Final Order based on the two conclusions of law, such as

requiring it to discontinue the CSI and SSI bonus programs, Volvo is not harmed by any part of

the decision. 1

1 The Board also asserts that Volvo’s alleged injury is not redressable by the Court because

Volvo asks the Court to reverse the finding that the CSI and SSI programs violate the Occupations

Code and to render a decision in Volvo’s favor, correctly pointing out that we do not have the

authority to render judgment. See Heckman v. Williamson County, 369 S.W.3d 137, 155-56 (Tex.

2012) (explaining that for plaintiff to satisfy redressability element of standing, “he must simply

establish a ‘substantial likelihood that the requested relief will remedy the alleged injury in fact’”

(quoting Vermont Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771 (2000)). Instead,

“[i]n a suit for judicial review of an agency action, the reviewing court is empowered to issue only

a general remand when it finds error that prejudices an appellant’s substantial rights.” See Ford

Motor Co. v. Butnaru, 157 S.W.3d 142, 149 (Tex. App.—Austin 2005, no pet.) (citing Tex. Gov’t

Code § 2001.174(2)). I note that Volvo’s request for relief beyond what the Court is empowered

to grant does not render its injury not redressable. Were we to find that the Board erred by finding

the programs violated the Code, we could either reverse the findings and conclusions and take no

other action or reverse the findings and conclusions and remand for further proceedings if

necessary. See Tex. Gov’t Code § 2001.174(2).

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Although the Board addresses Volvo’s injury in terms of whether it is concrete and

redressable, elements of the common-law standing analysis, it also contends that the Court may

not reverse the Board’s findings or conclusions under a substantial-evidence analysis. The Board

argues that Volvo’s substantial rights have not been prejudiced by the Board’s decision “because

Volvo won and nothing in the order adversely affects Volvo’s rights. Because [the Board] did not

order Volvo to discontinue use of its CSI/SSI bonus program, it may continue to use the program,

and its rights are not prejudiced in any way.”

Volvo counters that the Board’s “erroneous findings and conclusions expose Volvo

to further litigation and the risk of responsibility for alleged damages under the hybrid claims

resolution process afforded by Section 2301.805 of the Texas Occupations Code,” and therefore,

it has standing because it is an aggrieved party under the Administrative Procedure Act (APA).

See Tex. Gov’t Code § 2001.171 (“A person who has exhausted all administrative remedies

available within a state agency and who is aggrieved by a final decision in a contested case is

entitled to judicial review under this chapter.”). “Standing to sue may be predicated on either

statutory or common law.” Bickham v. Dallas County, 612 S.W.3d 663, 669 (Tex. App.—Dallas

2020, pet. denied). “When standing has been statutorily conferred, the statute itself serves as the

proper framework for a standing analysis, rather than common-law rules.” City of Dallas v. East

Vill. Ass’n, 480 S.W.3d 37, 43 (Tex. App.—Dallas 2015, pet. denied) (citing Hunt v. Bass,

664 S.W.2d 323, 324 (Tex. 1984); Everett v. TK–Taito, LLC, 178 S.W.3d 844, 851 (Tex. App.–Fort

Worth 2005, no pet.)). Accordingly, I would analyze Volvo’s standing under the APA as an

aggrieved party, rather than applying the common-law standing analysis advocated by the Board.

Courts applying the APA have held that to have standing to seek judicial review of

an order, a party must be aggrieved by the final order, not merely by an underlying finding or

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conclusion. See, e.g., GTE Sw. Inc. v. Public Util. Comm’n of Tex., 37 S.W.3d 546, 548 (Tex.

App.—Austin 2001, no pet.). Courts have also held that “[a] party is not aggrieved for purposes

of APA section 2001.171 by a final order that provides the result that party sought.” City of

Galveston v. Flagship Hotel, Ltd., 319 S.W.3d 948, 952 (Tex. App.—Austin 2010, pet. denied).

Volvo argues that the Board misconstrues Volvo’s challenge to the order as a complaint about

conclusions of law and findings of fact that do not change the Board’s order. As Volvo points out,

in its underlying suit, Star both (1) filed a protest challenging whether Volvo had good cause to

terminate Star’s franchise and (2) asserted counterclaims challenging whether Volvo’s Dealer

Incentive Programs, including the CSI and SSI programs, violate various provisions of

Occupations Code Chapter 2301. Therefore, Volvo argues, while Volvo sought the Board’s ruling

that Volvo had good cause to terminate Star’s franchise, the Board’s findings and conclusions that

the CSI and SSI programs violate Code Sections 2301.467(a) and 2301.468 are not a result that

Volvo sought.

In addition, even though in its order the Board did not take action against Volvo for

the statutory violations, Volvo asserts that the Board’s alleged error “has the potential to cause

Volvo further injury because Texas implemented a ‘hybrid claims resolution process’ for certain

civil damages claims relating to the sale of motor vehicles in Texas.” See Subaru of Am., Inc.

v. David McDavid Nissan, Inc., 84 S.W.3d 212, 224 (Tex. 2002) (explaining that “the Code creates

a hybrid claims-resolution process by which parties may seek damages for certain Code violations”

and that “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 violations”); Buddy Gregg

Motor Homes, Inc. v. Marathon Coach, Inc., 320 S.W.3d 912, 916 (Tex. App.—Austin 2010, no

pet.) (summarizing hybrid claims-resolution process for Code-based claims); see also Tex. Occ.

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Code § 2301.805(a) (providing that dealer who has established certain Code violations may bring

DTPA suit against manufacturer for damages). Volvo points out that under this process “if a

franchised dealer establishes certain violations of the Occupations Code, including Sections

2301.467 and 2301.468, the dealer can seek damages that resulted from the violation.” (Emphasis

added (citing Tex. Occ. Code § 2301.805; Subaru, 84 S.W.3d at 222-26; Buddy Gregg Motor

Homes, 320 S.W.3d at 914, 916). In a Section 2301.805 action, the trial court “must give deference

to the findings of fact and conclusions of law of the board contained in any final order that is the

basis of the action.” Tex. Occ. Code § 2301.805(b). Accordingly, I would conclude that Volvo

has standing as an aggrieved party under APA Section 2001.171 because the Board’s findings and

conclusions on Star’s counterclaim for statutory violations were not a result sought by Volvo, and

those findings and conclusions have the potential to be used against it in a Code-based proceeding

by Star. 2

I have two primary concerns with the Court’s analysis. My first concern is that its

statement about the res judicata effect of agency findings and conclusions may be misinterpreted

as a change to the law. The Court states that this Court’s opinion in Champlin Exploration, Inc.

v. Railroad Commission of Tex., 627 S.W.2d 250, 252 (Tex. App.—Austin 1982, writ ref’d n.r.e.),

2 The Court offers its advisory opinion to the parties that a Section 2301.805 suit by Star

would be unsuccessful. See slip op. at 11 n.5. The likelihood of success or failure of a Code-based

suit by Star has no bearing on the question of its statutorily provided ability to bring such a suit

and Volvo’s accompanying interest in being able to challenge any findings and conclusions by the

Board before needing to defend against the suit. Moreover, the viability of such a suit by Star is

not a matter before the Court in this appeal. See, e.g., Texas Ass’n of Bus. v. Texas Air Control Bd.,

852 S.W.2d 440, 444 (Tex. 1993) (explaining that Texas Supreme Court has construed Texas

Constitution’s “separation of powers article to prohibit courts from issuing advisory opinions

because such is the function of the executive rather than the judicial department”); see also Tex.

Const. art. II, § 1 (separation of powers).

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identified an “exception for standing to challenge agency findings or conclusions,” slip op. at 11,

“where the finding or conclusion would operate as res judicata or collateral estoppel in a

subsequent proceeding,” id. at 10 (quoting Champlin, 627 S.W.2d at 252). However, in Champlin,

the Court identified this exception as an exception to the more general appellate “rule prohibiting

a prevailing party from appealing a favorable judgment to attack adverse findings,” 627 S.W.2d at

252, not as an exception to the principle of administrative law “that an administrative

determination should not be regarded as res judicata for the purpose of subsequent judicial

proceedings,” id. at 253. The Court further stated, “Although an agency decision may be binding

on the agency, it will not be given res judicata effect in court.” Id.; Texas State Bd. of Veterinary

Med. Exam’rs v. Jefferson, No. 03-14-00774-CV, 2016 WL 768778, at *6 (Tex. App.—Austin

Feb. 26, 2016, no pet.) (mem. op.) (citing Champlin as “recognizing that agency decision may be

binding on agency even though it would not be given res judicata effect in court”); see also

Continental Imports, Inc. v. Mercedes-Benz USA, LLC, No. 03-21-00377-CV, 2023 WL 114876,

at *9 (Tex. App.—Austin Jan. 6, 2023, pet. filed) (mem. op.) (“An agency is not bound to follow

its decisions in contested cases in the same way that a court is bound by precedent.” (quoting

Flores v. Employees Ret. Sys. of Tex., 74 S.W.3d 532, 544-545 (Tex. App.—Austin 2002, pet.

denied)). I would not go so far as to suggest that the Board may be bound by this decision in future

administrative proceedings when it is not necessary to do so to decide whether Volvo has standing.

My second concern is that the Court’s description of the hybrid claim-resolution

process established by Occupations Code Section 2301.805 could be misinterpreted as allowing

another dealer to use the Board’s findings and conclusions against Volvo in a Section 2301.805

proceeding without first exhausting their own administrative remedies. Compare slip op. at 11

(“Accordingly, here, the question is whether the findings and conclusions made against Volvo’s

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CSI and SSI programs will preclude Volvo from contesting the same issues in a future proceeding

brought by a different dealer.” (emphasis added)) with Buddy Gregg, 320 S.W.3d at 916

(summarizing Texas Supreme Court’s holding in Subaru and stating that “the legislature

contemplated a ‘hybrid claims resolution process’ whereby a plaintiff must first exhaust his

remedies before the Division ‘to obtain a [Division] decision about Code violations, if any, to

support a [Code-based] claim based on Code violations’” (emphasis added) (quoting Subaru,

84 S.W.3d at 224)). Although the Court states that Volvo argues “that it was aggrieved by the Final

Order despite its lack of present action or relief because the rulings that the programs violated the

two statutes could let other dealers ‘seek damages that resulted from the violation’ of applying the

programs to those dealers,” slip op. at 9, Volvo never mentions other dealers in its briefing or

suggests that other dealers might be able use these adverse findings and conclusions against it in

subsequent proceedings. Consequently, I would not express an opinion on the ability of other

dealers to use the Board’s findings and conclusions of statutory violations against Volvo in a

subsequent proceeding. See id. (“Thus, other Volvo dealers who were subjected to CSI and SSI

could raise against Volvo elsewhere the conclusions from the Final Order that those programs were

deemed unlawful.”).

Because I concur in the rest of the Court’s analysis and with the disposition reached,

I join in the judgment.

__________________________________________

Gisela D. Triana, Justice

Before Chief Justice Byrne, Justices Triana and Kelly

Filed: May 25, 2023

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