# BMG Direct Marketing, Inc. v. Peake

> Texas Supreme Court · November 18, 2005 · 49 Tex. Sup. Ct. J. 84

URL: https://www.frixlaw.com/law-library/cases/9843642

## Case

- **Full name:** BMG DIRECT MARKETING, INC., Petitioner, v. Patrick PEAKE, Individually and as Representative of Others Similarly Situated, Respondent
- **Court:** Texas Supreme Court
- **Decided:** November 18, 2005
- **Citations:** 49 Tex. Sup. Ct. J. 84; 178 S.W.3d 763; 2005 Tex. LEXIS 846; 2005 WL 3077425
- **Precedential status:** Published
- **Opinion:** Concurrence by Hecht
- **Judges:** O'Neill, Jefferson, Hecht, Brister, Medina, Green, Johnson, Willett, Wainwright
- **Cited by:** 124 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9843642

## How later opinions describe it (automated extraction)

- noting, however, that "an adequate legal remedy may render equitable claims of unjust enrichment and equitable defenses of voluntary-payment unavailable” and citing Matagorda County, 52 S.W.3d 128, 133-135 (Tex.2000)
- stating that payment of judgment without expressed intent to appeal moots appeal but that payment with that type of expression does not
- explaining that, since 1890, Texas courts have held the “usury statute prevented [the] voluntary-payment defense”
- noting that “this Court has affirmatively applied the rule only once in the last forty years, and that holding has itself been modified since”

## Opinion text

Justice HECHT,
concurring.
I agree with the Court that “the voluntary-payment doctrine’s full-knowledge requirement has been met” in this case, and that “the classmembers’ unlawful-penalty allegation, under the circumstances presented here, does not implicate the type of fraud, duress or coercion that would preclude the voluntary-payment defense”. 1 All of the class’s arguments thus having been rejected, and a dispositive defense having been conclusively established, the class cannot proceed on any claim it has asserted (those being only for damages, not injunctive relief), and the case is at an end. Because this is an interlocutory appeal from a class certification order, this Court cannot issue a judgment on the merits, so it remands the case to the trial court with the elliptic direction to “determine the effect of BMG’s voluntary-payment defense on the requirements for class certification”. 2 Since “dispositive issues should be resolved by the tidal court before certification is considered”, 3 and now the Court has resolved a dispositive issue for the trial court, there is nothing left for the trial court to do but dismiss the case. I concur in remanding the case for that purpose.
. Ante at 778.
. Id. at 778.
.State Farm Mut. Auto. Ins. Co. v. Lopez, 156 S.W.3d 550, 557 (Tex.2004).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9843642. Public record. Not legal advice.