Supreme Court of Texas
                     ══════════
                      No. 19-0612
                     ══════════
Mosaic Baybrook One, L.P., and Mosaic Baybrook Two, L.P.,
                       Petitioners,

                            v.

                      Paul Simien,
                       Respondent

═══════════════════════════════════════
           On Petition for Review from the
    Court of Appeals for the First District of Texas
═══════════════════════════════════════

         ~ consolidated for oral argument with ~

                     ══════════
                      No. 21-0159
                     ══════════
Mosaic Baybrook One, L.P.; Mosaic Baybrook Two, L.P.; and
                Mosaic Residential, Inc.,
                       Petitioners,

                            v.

                      Paul Simien,
                       Respondent
   ═══════════════════════════════════════
              On Petition for Review from the
       Court of Appeals for the First District of Texas
   ═══════════════════════════════════════

                     Argued September 21, 2022

       JUSTICE BUSBY delivered the opinion of the Court, in which
Justice Lehrmann, Justice Boyd, Justice Devine, and Justice Young
joined.

      JUSTICE BLAND filed a dissenting opinion, in which Chief Justice
Hecht, Justice Blacklock, and Justice Huddle joined.

      These two interlocutory appeals arise from a single suit by
respondent Paul Simien against his landlords, petitioners Mosaic
Baybrook One, L.P., Mosaic Baybrook Two, L.P., and Mosaic
Residential, Inc. (collectively, “Mosaic”). 1   Their dispute concerns a
“Water/Sewer Base Fee” that Mosaic billed tenants each month to
recover certain amounts it had paid the municipal utility district. This
fee included not only (1) each apartment’s allocated portion of the
utility’s customer service charge for water and sewer service, but also
(2) an undisclosed amount equivalent to part of the utility’s charges for
non-water emergency services.
      Simien sued Mosaic under the Water Code on behalf of a tenant
class, alleging that this practice “violate[d] [administrative rules]



      1  Mosaic Baybrook One, L.P., and Mosaic Baybrook Two, L.P., each
owned one of the two parcels of land on which Simien’s apartment complex was
located. Mosaic Residential, Inc. served as the management company and
employed the relevant personnel for Mosaic’s operations at Simien’s complex.




                                     2
regarding submetering of utility service . . . or nonsubmetered master
metered utility costs.”    TEX. WATER CODE § 13.505. 2         Among other
things, the rules provide that “[c]harges billed to tenants for submetered
or allocated utility service may only include bills for water or wastewater
from the retail public utility.” 16 TEX. ADMIN. CODE § 24.124(a). 3
       In its first appeal (No. 19-0612) (“Simien 1”), Mosaic challenges
the trial court’s grant of Simien’s motion for partial summary judgment
on liability, as well as the court’s subject-matter jurisdiction over
Simien’s requests for particular elements of damages. We conclude the
trial court has jurisdiction because at least some damages are available
for this statutory claim. And we affirm the partial summary judgment
because Simien’s lease did not authorize Mosaic to charge him for non-
water emergency services. Mosaic overcharged Simien in violation of
the statute and rules by including undisclosed non-water charges
Simien did not owe in the base fee it billed him for water and wastewater
utility service.




       2 In 2017, several months after Simien filed suit, the Legislature
amended section 13.505 of the Water Code. Except where otherwise indicated,
any citations to section 13.505 of the Water Code in this opinion refer to the
pre-amendment version of that statute that became effective on September 1,
2013. Act of May 13, 2013, 83d Leg., R.S., ch. 171, § 83, 

, 809-10 (amended 2017) (current version at TEX. WATER CODE § 13.505).
       3 After Simien filed suit, the applicable PUC rules were renumbered
and recodified using substantially identical language. See 

,
2718, et seq. (2014), adopted by 

 (2014), amended by 

 (2018) (now codified at 16 TEX. ADMIN. CODE §§ 24.275, et seq.). For
consistency with the parties’ briefing, we refer to the pre-amendment
numbering of the relevant PUC rules.




                                      3
      In its second appeal (No. 21-0159) (“Simien 2”), Mosaic challenges
Simien’s standing and argues that the trial court abused its discretion
by certifying a class under Rule 42 of the Texas Rules of Civil Procedure.
We hold that Simien has standing because he paid the fee.
      As to class certification, Mosaic’s primary challenge is that the
trial court did not conduct a rigorous analysis and significantly
misunderstood the law because Simien’s claim fails on the merits. But
the merits are relevant only to the extent a rigorous analysis shows that
the claim is legally baseless or that the court misunderstood the law in
some other manner that affects the requirements for class certification.
Here, we have affirmed the partial summary judgment for Simien, and
Mosaic has identified no other disputed legal issue regarding its claim
that could have a significant effect on any certification requirement.
      Mosaic also argues that the trial court’s order failed to address its
defenses.   But the court disposed of all but one defense prior to
certification, and it accounted for the remaining defense of limitations
in setting the class period. We therefore affirm the certification order.

              FACTUAL AND PROCEDURAL BACKGROUND

      Mosaic operates as the corporate landlord of various properties,
including the Baybrook Village apartments, a residential apartment
complex near Houston that includes over 700 apartment units. Mosaic
has owned and managed Baybrook Village since May 2015.




                                    4
       In July 2015, Mosaic hired RealPage Utility Management
(“RealPage”) 4 to prepare monthly statements for the tenants of
Baybrook Village. As part of that process, Mosaic sent RealPage a
sample lease used by prior management. Mosaic carried forward most
of the sample lease’s terms in the leases it signed with Simien and other
tenants. Some of the changes Mosaic made to the sample lease are
relevant in evaluating the parties’ positions about whether the leases
authorize Mosaic to charge Simien for fire, EMS, and law enforcement
services. We therefore examine the leases in some detail.
       A.     The leases
       Paragraph seven of the sample lease provided that the landlord
would pay for certain items, if checked, and the tenant would “pay for
all other utilities and services.”     The sample lease also included a
“LEASE      ADDENDUM         FOR     ALLOCATING          SERVICES       AND
GOVERNMENTAL FEES,” which contained the following statement in
paragraph two:
       Reason for allocation. Apartment owners receive bills for
       services provided to residents and charges for various
       governmental fees. These are direct costs that the
       apartment community incurs. In order to help control the
       cost of rent, we have chosen to allocate the services and
       governmental fees indicated below through an allocated
       bill using a standardized formula to distribute those costs
       fairly.




       4 Mosaic actually contracted with Velocity Utility Management, Inc., a
separate entity that later became part of RealPage. We use “RealPage” to refer
to both entities.




                                      5
        Paragraph three of the addendum then provided that the landlord
“will allocate the following services and governmental fees,” and it
printed various types of fees with a box that could be checked by each to
indicate if that particular fee would be allocated to tenants. The box for
“Emergency services fee” was not checked.          Paragraph three also
included some blank lines on which other types of fees could be written
in and checked. In the sample lease, the following fees were written in
and checked: (1) “Pest Control Fees $3.50 mo”; (2) “Law Enforcement
Fee. $4.29 mo”; (3) “Water Fire Protection $8.05mo”; and (4) “Ambulance
Fee $1.40mo.”
        In advising RealPage how to set up billing for new tenants and
lease renewals, Mosaic sent an e-mail instructing RealPage to
“disregard the ambulance, law enforcement, etc., it’s all included in the
water/sewer.” In response, RealPage requested that Mosaic “remove the
below from the Government Fees addendum” and indicated that
RealPage’s billing “[s]etup” for Baybrook Village would include a
“Water/Sewer Base Fee” that “will include minimum [water/sewer]
charges from [the municipal utility district] plus Law Enforcement,
Ambulance, & Fire Protection.” Thus, RealPage said it was “going to
include all those fees as one charge, within the water and sewer base
fees.” The e-mail also included a header entitled “Remove:” followed by
an image of the four fees that had been written in and checked in the
sample lease.
        In June 2016, Simien signed a lease with Mosaic for an apartment
at Baybrook Village with an initial lease term of July 1, 2016, to July 31,
2017.    Like the sample lease, Simien’s lease included a “LEASE




                                    6
ADDENDUM FOR ALLOCATING SERVICES AND GOVERNMENT
FEES,” and the box for allocating an “Emergency services fee” was not
checked. Unlike the sample lease, paragraph three of the addendum in
Simien’s lease includes only three fees that are written in and checked:
(1) “Pest Control Fees $3.50 mo”; (2) “Convergent Billing Fee $3.50”; and
(3) “valet trash $25.00.” Fees for law enforcement, ambulance, and fire
service were not written in.
      B.     The tenants’ monthly account statements
      For each month that he lived at Baybrook Village, Simien
received a residential account statement from Mosaic, which RealPage
generated as follows. As reflected in its rate orders, Harris County
Municipal Utility District 55 (“the MUD”) imposed various rates and
charges for the services it provided customers, including a monthly
service charge, a monthly water service rate, a monthly sewer service
rate, a monthly fire protection rate, a monthly emergency medical
service rate, and a monthly law enforcement service rate. For Baybrook
Village, the MUD billed those amounts to Mosaic’s accounts 5 and sent
separate monthly invoices for the services provided to each building
directly to Mosaic. The monthly invoice that Mosaic received from the
MUD for each building assessed fees in lump sums on a building-wide
basis with itemized subtotals listed for (1) “WATER”; (2) “SEWER”;
(3) “LAW ENF FEE”; (4) “SERVICE CHARGE”; (5) “FIRE”; and



      5  After the old management company “finaled” its account, the MUD
restarted a new account for Mosaic for the Baybrook Village complex. Mosaic
had multiple account numbers with the MUD, each of which corresponded to a
different range of numbered apartment units at Baybrook Village.




                                    7
(6) “EMS FEE.” Mosaic then sent those invoices to RealPage to prepare
the residential account statements that were sent to each tenant.
      RealPage was responsible for calculating each tenant’s portion of
the line items for “WATER” and “SEWER” listed in the MUD invoices.
RealPage combined those two amounts and listed the sum on the
tenant’s monthly account statement as a single line item for
“Water/Sewer.”
      RealPage was also responsible for calculating each tenant’s
portion of the line items for “LAW ENF FEE,” “SERVICE CHARGE,”
“FIRE,” and “EMS FEE” listed in the MUD invoices, which it did as
follows. RealPage divided each of the line items by the number of
apartment units in the building. RealPage then combined those four
amounts and listed the total on each tenant’s monthly account
statements as a single line item labeled “Water/Sewer Base Fee”—the
item in dispute.
      Each month, Simien received a residential account statement
that listed total amounts due for “Property Charges” and “Billed
Charges.” The “Billed Charges” were further broken out into line-item
subtotals for (1) “Water/Sewer Base Fee”; (2) “Water/Sewer”; (3) “Pest
Control”; and (4) “Trash.” Simien regularly paid Mosaic’s “Water/Sewer
Base Fee” each month until his lease ended in September 2017.
Throughout Simien’s residence at Baybrook Village, Mosaic and
RealPage assessed a uniform “Water/Sewer Base Fee” on each
apartment every month. RealPage stopped preparing bills for Baybrook
Village at some point in 2018 after advising Mosaic in January of that
year that the charges labeled collectively as “Water/Sewer Base Fee”




                                  8
should not be lumped together. But Mosaic continued to use the same
format and line-item descriptions on every tenant’s residential account
statement until at least December 2018.
      C.     Simien’s suit and the parties’ pleadings
      On February 6, 2017, Simien filed a class action petition and jury
demand against Mosaic. Simien alleged that he routinely paid Mosaic
over $50 per month in water and sewer charges when his actual charges
should have been approximately $17 less. Simien alleged that Mosaic
had violated the Water Code and applicable Public Utility Commission
(“PUC”) rules by assessing and collecting water and sewer base fees in
excess of the actual water and sewer base fee that the MUD imposed on
Mosaic. Simien sought the statutory remedies that section 13.505 of the
Water Code provided for tenants at that time, which include three times
the amount of all overcharges, a civil penalty of one month’s rent for
each class member for each violation, and reasonable attorney’s fees.
      Mosaic filed its answer on March 3, 2017. In addition to generally
denying Simien’s allegations, Mosaic asserted several affirmative
defenses, including the statute of limitations under section 16.003(a) of
the Civil Practice and Remedies Code. 6
      After amendments to section 13.505 (which we discuss later)
became effective in mid-2017, Mosaic specially excepted to Simien’s
petition, contending that the amendments applied retroactively to
Simien’s still-pending claims. Mosaic asked the trial court to strike from
Simien’s live pleading all allegations relating to remedies that did not


      6 Mosaic also asserted as affirmative defenses challenges to Simien’s
standing and the trial court’s subject-matter jurisdiction.




                                    9
survive the amendments to section 13.505.        Alternatively, Mosaic
argued the trial court should dismiss Simien’s claims because they were
based on alleged violations that fall under the PUC’s exclusive
jurisdiction post-amendment.     Following a hearing, the trial court
overruled the special exceptions and denied the motion to dismiss in
March 2018.
      D.      Summary judgment proceedings
      Simien filed a traditional motion for partial summary judgment
in June 2018. He asserted that charging tenants the fire, EMS, and law
enforcement fees violated the Water Code and the PUC’s rules, resulting
in an overcharge for which Simien and the class may recover under
section 13.505. Simien argued that recovery was warranted regardless
of whether the violation was viewed as charging the fees at all or
packaging them as part of a “base fee” that included both water and non-
water related charges. Simien asked the trial court to hold that Mosaic
had (1) violated the Water Code and PUC Rules as a matter of law, and
(2) “overcharged” Simien under section 13.505 in the amount of $16.67
per month.
      In response, Mosaic argued that Simien’s claim for overcharges
failed as a matter of law. In Mosaic’s view, the “Water/Sewer Base Fee”
on the tenant bill was just a misnomer for otherwise permissible charges
for fire, EMS, and law enforcement services, which were not regulated
by Chapter 13 of the Water Code or PUC rules.
      Following a hearing, the trial court signed its initial order
granting Simien’s motion for partial summary judgment on September




                                  10
10, 2018. 7 Mosaic then moved the trial court to permit an interlocutory
appeal of the summary judgment ruling under section 51.014(d) of the
Civil Practice and Remedies Code so that the court of appeals could
determine the viability of Simien’s cause of action.
       The trial court granted the motion in an order signed on October
24, 2018. 8 That order states that the trial court’s “September 10, 2018
Order granting the Plaintiff’s Motion for Partial Summary Judgment,
which was filed on June 27, 2018, is hereby vacated and replaced with
this Order, which is an amendment of that prior order.” The following
paragraph then states that Simien’s June 27, 2018 motion for partial
summary judgment “is hereby granted.”
       After making the required findings, the order permits Mosaic to
file an application for interlocutory appeal under section 51.014(f) of the
Civil Practice and Remedies Code, defining the controlling question of
law as follows:
       [W]hether it was a violation of Section 13.5031(3) of the
       Texas Water Code and Rule 24.123(e), Rule
       24.124(a),(b),(c), and (e), and Rule 24.125(a),(f), and (k) of
       the PUC Rules (16 TEX. ADMIN. CODE § 24.121 et seq.),
       thereby establishing liability under Section 13.505 of the
       Texas Water Code, to charge the Plaintiff, Paul Simien, on
       a per-unit basis, certain charges from the retail public


       7 As discussed below, the trial court subsequently vacated and replaced
its September 10, 2018 order multiple times.
       8 The trial court subsequently signed two orders on November 20, 2018,
each of which states that it “amends and replaces” the October 24 order
granting permission to appeal. The two orders are substantially identical
except with respect to whether the order’s identification of the controlling
question of law references all of the PUC rules listed in the corresponding
portion of the initial October 24 order or only Rule 24.124(a).




                                     11
        utility (Harris County Municipal Utility District No. 55),
        including a monthly fire protection service charge, a
        monthly emergency medical service charge, and a law
        enforcement service charge, which were combined
        together, along with a monthly service charge on which the
        Plaintiff does not assert a claim, and described as a
        “Water/Sewer Base Fee” in the monthly bills to the
        Plaintiff.
        Mosaic filed a notice of appeal as well as an application for
permission to appeal, which the court of appeals denied. 

(Tex. App.—Houston [1st Dist.] 2019) (per curiam). In a one-paragraph
opinion, the court concluded that Mosaic’s petition “failed to establish
each requirement of Texas Rule of Appellate Procedure 28.3(3)(e)(4)
[sic].” 

 9
        E.      Class certification proceedings
        While Mosaic pursued its interlocutory appeal of the partial
summary judgment,         Simien pursued class certification in the trial
court. On September 21, 2018, Simien filed his opposed motion for class
certification and attached a proposed trial plan.
        The motion states that Simien “presents a single statutory claim
pursuant to the Texas Water Code . . . and [PUC] Rules . . . for excessive
and unlawful water and wastewater fees charged to residential
apartment tenants” at Baybrook Village. Simien sought to certify one
class composed of current and former tenants at Baybrook Village who


        9This “tellingly . . . identical typographical error” appears in many of
the First Court of Appeals’ boilerplate memorandum opinions denying
petitions for permission to appeal. See Indus. Specialists, LLC v. Blanchard
Refin. Co., 

, 18 (Tex. 2022) (plurality op.); 

 at 36 n.20 (Busby,
J., dissenting).




                                       12
were charged and paid a “Water/Sewer Base Fee” in excess of $20 during
the Class Period, which the motion defined as June 1, 2015, through
September 30, 2017. Simien argued that he paid $163 in unlawful fees
for fire, EMS, and law enforcement services.            Based on Mosaic’s
discovery responses, he estimated that over 750 other tenants were
likewise charged a collective total of $358,000 in hidden fees during the
proposed 28-month class period.
       Mosaic filed a response in opposition.        With one exception, 10
Mosaic’s response did not challenge whether Simien had established any
prerequisite to class certification. Instead, relying on the arguments
from the parties’ earlier briefing regarding Mosaic’s special exceptions
and Simien’s entitlement to partial summary judgment, Mosaic argued
that the trial court had not conducted (and could not conduct) the
required “rigorous analysis” of the prerequisites for class certification
because any ruling would be based on a “significant misunderstanding
of the law” under Exxon Mobil Corp. v. Gill, 

 (Tex.
2009) (per curiam).
       Following a hearing, the trial court granted Simien’s motion for
class certification on October 24, 2018—one minute after signing the
initial order granting Mosaic’s request for permission to appeal the prior
order granting summary judgment. The class certification order defined
the class (with certain exclusions) as “[a]ll Texas residents who, during
the Class Period [of June 1, 2015, to September 30, 2017], (i) are or were
tenants at Baybrook Village . . . and (ii) were charged and paid a


       10Mosaic challenged Simien’s adequacy as a class representative, but it
has not raised that challenge in this Court.




                                     13
‘Water/Sewer Base Fee’ in excess of $20.” The trial court found that the
following constitute issues of law or fact common to the members of the
class: (1) “[w]hether Defendants charged their tenants a ‘Water/Sewer
Base Fee’ that includes non-water and non-wastewater charges for Fire,
EMS, and Law Enforcement”; (2) “[w]hether the inclusion of the Fire,
EMS, and Law Enforcement charges in the ‘Water/Sewer Base Fee’
violated the Texas Water Code and PUC Rules”; (3) “[w]hether the Fire,
EMS, and Law Enforcement charges constitute an ‘overcharge’ pursuant
to Section 13.505”; and (4) “[i]f the answer to [number three] is ‘yes,’
whether each member of the Class is entitled to statutory damages as
provided by Section 13.505.”
      The order states that the trial court had reviewed Simien’s
proposed trial plan, which the trial court “believes explains in adequate
detail how this matter can proceed on a manageable, classwide basis.”
The order also includes the trial court’s findings “that the only issues of
fact regarding individual class members are the amount of the charges
and the amount of the payments, and that such information is readily
available and accessible from Defendants’ electronic databases, and can
be extracted in summary reports with little effort.” Thus, “very little
time will be expended on any individual issues relating [to] the quantum
of the charges assessed and paid.” Although the trial court “reserve[d]
the right to enter additional orders relating to the Class certification,”
Mosaic raised no objections in the trial court regarding the content of
the class certification order or the referenced trial plan’s compliance
with any requirement of Rule 42(c)(1)(D) and did not ask the trial court




                                    14
to make any alterations or amendments to the order under Rule
42(c)(1)(C).
       Mosaic filed an interlocutory appeal of the class certification
order. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(3). In addition to
reiterating its challenge to the rigor of the trial court’s analysis under
Gill, Mosaic argued that the trial court’s failure to identify or discuss
the defenses asserted in Mosaic’s original answer provided independent
grounds for reversal of the class certification order.
       The court of appeals affirmed.          

 (Tex. App.—
Houston [1st Dist.] 2020). Declining to reach the merits of the trial
court’s rulings on summary judgment, the court rejected Mosaic’s
argument that reversal of the class certification order was required
under Gill. 

. The court also rejected Mosaic’s challenge to
the trial court’s compliance with Rule 42(c)(1)(D), concluding that the
trial court’s rulings on Mosaic’s special exceptions and Simien’s motion
for summary judgment adequately addressed Mosaic’s defenses. 

.

               STATUTORY AND REGULATORY BACKGROUND

       A.      The PUC’s statutory authority to regulate water bills
       Chapter 13 of the Water Code provides that the PUC “may
regulate and supervise the business of each water and sewer utility
within its jurisdiction, including ratemaking and other economic
regulation.” TEX. WATER CODE § 13.041(a). 11 The PUC is authorized to


       11  See also TEX. WATER CODE § 13.002(23) (defining “[w]ater and sewer
utility,” “public utility,” or “utility” for purposes of Chapter 13 to exclude “any




                                        15
“do all things, whether specifically designated in [Chapter 13] or implied
in th[at] chapter, necessary and convenient to the exercise of these
powers and jurisdiction.” Id.
       Subchapter M of Chapter 13 regulates how apartment landlords
may bill their tenants for water and wastewater-related charges,
whether submetered or allocated. See id. §§ 13.501-13.506. Submetered
utility service commonly refers to “[w]ater utility service that is master
metered for the owner by the retail public utility [here, the MUD] and
individually metered by the owner at each dwelling unit,” as well as
“wastewater utility service based on submetered water utility service.”
16 TEX. ADMIN. CODE § 24.121(c)(12). 12            “Nonsubmetered master
metered utility service”—also referred to as allocated service or
nonsubmetered service—includes “water utility service that is master
metered for the apartment house but not submetered,” as well as
“wastewater utility service based on master metered utility service.”
TEX. WATER CODE § 13.501(4).               The service in this case was
nonsubmetered, but an understanding of both types of service is helpful
in analyzing the issues before us.



person or corporation not otherwise a public utility that furnishes the services
or commodity only to itself or its employees or tenants as an incident of that
employee service or tenancy when that service or commodity is not resold to or
used by others”); 16 TEX. ADMIN. CODE § 24.121(14) (defining “[u]tility service”
to “include[] only drinking water and wastewater”).
       12 But see, e.g., 16 TEX. ADMIN. CODE § 24.121(c)(12) (defining
submetered utility service to additionally include “water utility service
measured by point-of-use submeters when all of the water used in a dwelling
unit is measured and totaled” and “wastewater utility service based on total
water use as measured by point-of-use submeters”).




                                      16
      Submetered service. Section 13.503 provides that the PUC
“shall encourage submetering of individual rental or dwelling units by
master meter operators or building owners to enhance the conservation
of water resources.” Id. § 13.503(a). Section 13.503 requires the PUC to
“adopt rules and standards” under which landlords “may install
submetering equipment for each individual rental or dwelling unit for
the purpose of fairly allocating the cost of each individual rental or
dwelling unit’s water consumption.”        Id. § 13.503(b).   The PUC’s
submetering rules must, “[i]n addition to other appropriate safeguards
for the tenant,” require that a landlord “may not impose on the tenant
any extra charges, over and above the cost per gallon and any other
applicable taxes and surcharges that are charged by the retail public
utility to the [landlord],” except as provided by section 13.503. Id.
      Nonsubmetered service. Section 13.5031 separately provides
that “[n]otwithstanding any other law,” the PUC “shall adopt rules and
standards governing billing systems or methods used by” landlords “for
prorating or allocating among tenants nonsubmetered master metered
utility service costs.” Id. § 13.5031. “In addition to other appropriate
safeguards for the tenant,” id., section 13.5031 specifically directs the
PUC to adopt rules requiring that “except as provided by this section, [a
landlord] may not impose additional charges on a tenant in excess of the
actual charges imposed on the owner or condominium manager for
utility consumption by the . . . apartment house.” Id. § 13.5031(3). The
section also specifically requires the PUC to adopt rules requiring the
inclusion of “a clear written description of the method of calculation of
the allocation of nonsubmetered master metered utilities” in tenants’




                                    17
leases, id. § 13.5031(1), as well as requiring landlords to “maintain
adequate records regarding the utility consumption of the . . . apartment
house, . . . the charges assessed by the retail public utility, and the
allocation of the utility costs to the tenants,” id. § 13.5031(4).
       Private enforcement.          At the time Simien filed this suit,
Subchapter M also provided a private enforcement mechanism for
certain billing practices as follows:
       In addition to the enforcement provisions contained in
       Subchapter K, if [a landlord] violates a rule of the utility
       commission regarding submetering of utility service . . . or
       nonsubmetered master metered utility costs, the tenant
       may recover three times the amount of any overcharge, a
       civil penalty equal to one month’s rent, reasonable
       attorney’s fees, and court costs from the [landlord].
       However, [a landlord] is not liable for a civil penalty if the
       [landlord] proves the violation was a good faith,
       unintentional mistake.
Id. § 13.505.
       B.       PUC billing rules
       Exercising its statutory grant of authority, the PUC promulgated
several rules that are collected in Title 16, Chapter 24, Subchapter H of
the Texas Administrative Code. Subchapter H “appl[ies] to apartment
houses . . . billing for water and wastewater utility service on a
submetered or allocated basis.” 16 TEX. ADMIN. CODE § 24.121(b). 13 The
following rules are relevant here.




       13Under Rule 24.123, “[a] rental agreement provision that purports to
waive a tenant’s rights or an owner’s responsibilities under this subchapter is
void.” 16 TEX. ADMIN. CODE § 24.123(e).




                                      18
       Rule 24.124 (now 24.281). 14 This rule, entitled “Charges and
Calculations,” regulates whether and to what extent landlords may pass
along to their tenants various amounts they paid the utility for water
and wastewater service. Rule 24.124(a) addresses which amounts from
the utility’s water bills can be included:
       Prohibited charges. Charges billed to tenants for
       submetered or allocated utility service may only include
       bills for water or wastewater from the retail public utility
       and must not include any fees billed to the owner by the
       retail public utility for any deposit, disconnect, reconnect,
       late payment, or other similar fees.
Id. § 24.124(a).
       Other parts of the rule provide various methods for calculating
how much of these eligible amounts should be billed to each individual
tenant. Subsections (b) and (c) specify the amount to bill each tenant
for the utility’s customer service charges and dwelling unit base charges,
which are not volume-based. Id. § 24.124(b)-(c). And subsection (e)
provides an exclusive list of five formulas that may be applied to
determine the amount to bill each tenant for the volume-based
component of the utility’s charges. Id. § 24.124(e)(1), (e)(1)(A), (e)(2).
For landlords who have been using a different formula, subsection (f)
sets forth three options: “(1) adopt one of the methods in subsection (e)
of [the rule]; (2) install submeters and begin billing on a submetered
basis; or (3) discontinue billing for utility service.” Id. § 24.124(f).


       14  As noted above, the applicable PUC rules were renumbered and
recodified using substantially identical language after Simien filed this suit.
See supra at 3 n.3. We cite the original rule numbers, but we also provide in
this section the current numbers of the most relevant rules.




                                      19
      Rule 24.125 (now 24.283). The next rule, entitled “Billing,”
contains various regulations regarding the preparation, form, and
content of the landlord’s bills to tenants. For example, subsection (f)
lists information that must be included on the landlord’s monthly bill.
Among other requirements, landlords’ bills must include: (1) the “total
amount due for submetered or allocated water”; (2) the “total amount
due for submetered or allocated wastewater”; (3) the “total amount due
for dwelling unit base charge(s) or customer service charge(s) or both, if
applicable”; and (4) the “total amount due for water or wastewater
usage, if applicable.” Id. § 24.125(f). Subsection (e) adds that “charges
for submetered or allocated utility service must be separate and distinct
from any other charges on the bill.” Id. § 24.125(e).
      C.     The 2017 amendments
      In 2017, the Legislature materially amended section 13.505 of the
Water Code in the following ways. First, the amendments provide that
the PUC “has exclusive jurisdiction for violations under this
subchapter.” TEX. WATER CODE § 13.505(b). Second, the Legislature
defined “overcharge” to mean “the amount, if any, a tenant is charged
for submetered or nonsubmetered master metered utility service to the
tenant’s dwelling unit after a violation occurred relating to the
assessment of a portion of utility costs in excess of the amount the tenant
would have been charged under this subchapter.” Id. § 13.505(a). Third,
the Legislature omitted certain forms of recovery from the private-
enforcement mechanism provision, which now provides:
      If [a landlord] . . . violates a rule of the utility
      commission regarding utility costs, the person claiming the
      violation may file a complaint with the utility commission.




                                    20
       . . . If the utility commission determines that the
       [landlord] overcharged a complaining tenant for water or
       wastewater service from the retail public utility, the utility
       commission shall require the [landlord] to repay the
       complaining tenant the amount overcharged.
Id. § 13.505(c).
                                  ANALYSIS

I.     Jurisdiction: The legislative repeal of certain remedies
       did not affect the trial court’s subject-matter jurisdiction,
       and Simien has standing.
       We granted Mosaic’s petitions for review of the trial court’s orders
granting partial summary judgment (Simien 1) and class certification
(Simien 2). We begin by considering Mosaic’s jurisdictional challenges.
In both Simien 1 and Simien 2, Mosaic contends the trial court lacked
subject-matter jurisdiction over Simien’s requests for certain statutorily
created remedies, which Mosaic argues were retroactively repealed
when the Legislature amended section 13.505 in 2017. In Simien 2,
Mosaic also contends the Court should dismiss Simien’s claims because
he lacks the injury constitutionally required for standing. We address
these challenges in turn. 15
       A.     Mosaic’s remedy-specific              challenges       do    not
              implicate jurisdiction.
       Asserting that “whether a court has jurisdiction over a particular
remedy versus a statutory claim as a whole are separate inquiries,”


       15Although the Legislature amended section 13.505 in 2017 to provide
the PUC with “exclusive jurisdiction for violations under this subchapter,” TEX.
WATER CODE § 13.505, neither party has urged on appeal that the PUC has
exclusive jurisdiction over Simien’s suit, which was already pending when the
amendment became effective.




                                      21
Mosaic contends the trial court should have dismissed Simien’s requests
for certain elements of damages and other forms of relief—the trebling
of overcharges, the one-month rent penalty, and attorney’s fees—for lack
of subject-matter jurisdiction because the Legislature amended
section 13.505 to eliminate that relief while the case was pending. We
reject this jurisdictional challenge for three reasons.
      First, we disagree with Mosaic’s suggestion that trial courts
partially lose jurisdiction whenever an element of damages is not
available in a particular case for some legal reason. Of course, we have
repeatedly recognized that “each party must establish that he has
standing to bring each of the claims he himself alleges—meaning that
the court must assess standing plaintiff by plaintiff, claim by claim.”
Heckman v. Williamson County, 

 (Tex. 2012)
(emphasis added).      And we have treated “injunctive relief [and]
damages” as separate “claim[s]” for this purpose. 

; see also
TransUnion LLC v. Ramirez, 

 (2021). But we have
never suggested that the standing analysis extends to particular
elements of damages or other monetary relief when other elements are
legally available.
      To the contrary, the U.S. Supreme Court has long described
redressability as an “‘irreducible’ component of standing” and has
recognized that “the ability to effectuate a partial remedy satisfies th[at]
redressability requirement.” Uzuegbunam v. Preczewski, 

 (2021) (emphasis added) (quoting Spokeo, Inc. v. Robins, 

330, 338 (2016)). 16 We also agree with Simien that accepting Mosaic’s
novel rule would be inconsistent with our recognition in Dubai
Petroleum Co. v. Kazi that “the modern direction of policy is to reduce
the vulnerability of final judgments to attack on the ground that the
tribunal lacked subject matter jurisdiction.” 

 (Tex.
2000) (quotation marks omitted).
       Second, the Legislature did not completely repeal the underlying
statutory requirements or the remedies available for violating them, as
it did in Dickson v. Navarro County Levee Improvement District No. 3,

 (Tex. 1940). Cf. Quick v. City of Austin, 

 (Tex. 1998) (“When a right or remedy is dependent on a statute,
the unqualified repeal of that statute . . . deprives a court of subject
matter jurisdiction over the cause.”) (emphases added). Here, even if the
amendments were retroactive, the current statute still requires a
landlord “to repay the complaining tenant the amount overcharged.”
TEX. WATER CODE § 13.505(c). Thus, at least one statutory remedy of
damages is still available to tenants.
       Third, the retroactive effect of the 2017 amendments falls outside
the scope of Mosaic’s appeals. The issue was not listed in any of the trial
court’s orders permitting interlocutory appeal, and Mosaic specifically

       16 Accord Pike v. Tex. EMC Mgmt., LLC, 

, 774 (Tex. 2020)
(“[A] plaintiff does not lack standing in its proper, jurisdictional sense simply
because he cannot prevail on the merits of his claim; he lacks standing [when]
his claim of injury is too slight for a court to afford redress.” (quotation marks
omitted)); Heckman, 

 (holding that a putative class
representative “need not have standing on each and every one of the class’s
claims in order to satisfy the standing requirement” and that “[s]o long as an
individual plaintiff has standing on some claim, he has standing to pursue class
certification as to that claim”).




                                       23
disclaimed the issue when it sought permission to appeal from the trial
court. We therefore express no view on the retroactivity issue, which
remains open for further litigation.
      B.     Simien has standing.
      Characterizing Simien’s claim as a procedural complaint about
form rather than substance, Mosaic next contends that Simien lacks
standing to sue under section 13.505 because mislabeling an otherwise-
valid non-water charge amounts to a “bare procedural violation,” which
is insufficient to establish the constitutionally required injury. Spokeo,
578 U.S. at 342. But Simien alleges he parted with money that he would
not have owed or paid had Mosaic complied with PUC rules—a loss that
is one of the “most obvious” of “traditional tangible harms.”
TransUnion, 

. We therefore hold that Simien has
pleaded a cognizable injury.
      “A court has no jurisdiction over a claim made by a plaintiff
without standing to assert it.” DaimlerChrysler Corp. v. Inman, 

 (Tex. 2008). Standing is a component of subject-matter
jurisdiction that cannot be waived and thus may be raised at any time,
including on appeal. West Orange-Cove Consol. I.S.D. v. Alanis, 

 (Tex. 2003). “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.’” Meyers
v. JDC/Firethorne, Ltd., 

 (Tex. 2018) (quoting TEX.
CONST. art. 1, § 13).




                                   24
      “The standing analysis begins with determining the nature of the
wrong being alleged and whether there was a causal connection between
a defendant’s conduct and the injury caused by the alleged wrong.”
Linegar v. DLA Piper LLP (US), 

 (Tex. 2016). “[T]o
establish standing, a plaintiff must plead facts demonstrating that the
plaintiff suffered an injury, this injury is fairly traceable to the
defendant’s conduct, and this injury is likely to be redressed by the
requested relief.” Meyers, 

. The “alleged injury must
be concrete and particularized, actual or imminent, not hypothetical.”
DaimlerChrysler Corp., 

 (footnotes omitted).
      Mosaic contends that the mere mislabeling of an otherwise valid
non-water charge amounts to a “bare procedural violation” under Spokeo
and TransUnion. Unlike in those cases, however, Simien has alleged
that he suffered direct economic harm from Mosaic’s labeling because it
induced him to pay Mosaic more money than Mosaic was legally entitled
to collect. “[T]hat sort of pocketbook injury is a prototypical form of
injury in fact.” Collins v. Yellen, 

, 1779 (2021); see also
Data Foundry, Inc. v. City of Austin, 

, 696 (Tex. 2020)
(“Data Foundry thus alleges an injury that is particularized to it—Data
Foundry suffers financial harm because it must pay Austin Energy a
particular sum of money that exceeds what Data Foundry contends it
should have to pay.”); Czyzewski v. Jevic Holding Corp., 

 (2017) (“For standing purposes, a loss of even a small amount of
money is ordinarily an ‘injury.’”); Warth v. Seldin, 

(1975) (recognizing that “out-of-pocket losses . . . are obviously more




                                   25
palpable and concrete than those held sufficient to sustain standing in
other cases”).
      Simien’s allegations allow for a reasonable inference that the
alleged pocketbook injury was fairly traceable in part to the format of
Mosaic’s billing, which therefore was not “divorced from any concrete
harm.” TransUnion, 

. As discussed in detail in Part II,
the parties dispute not only whether the disputed emergency fees can
properly be charged under the lease but also, even if so, whether they
were properly included in charges billed for utility service. Which party
is correct goes to the merits, not to subject-matter jurisdiction. See Pike,
610 S.W.3d at 774.
      In sum, Simien has alleged not just the “[d]eprivation of a
procedural right,” but also the existence of a “concrete interest that is
affected by the deprivation.” Summers v. Earth Island Inst., 

 (2009); see also Lujan v. Defenders of Wildlife, 

,
572 n.7 (1992) (“The person who has been accorded a procedural right to
protect his concrete interests can assert that right . . . .”). We therefore
hold that Simien has sufficiently alleged an injury in fact.
II.   Summary judgment: Simien established a violation of
      section 13.505 of the Water Code.
      As explained above, the trial court certified for permissive
interlocutory appeal the question at the heart of its order granting
partial summary judgment: whether Mosaic violated Chapter 13 or
related PUC rules that trigger liability under section 13.505.           In
deciding this question by partial summary judgment early in the case,
the court commendably followed our instruction that “dispositive issues
should be resolved by the trial court before [class] certification is




                                    26
considered.” State Farm Mut. Auto Ins. Co. v. Lopez, 

 (Tex. 2004). Although the court of appeals opted not to “accept” the
appeal of the partial summary judgment, TEX. CIV. PRAC. & REM. CODE
§ 51.014(f), 17 we agree with the trial court that Simien 1 meets the
requirements for a permissive appeal, see id. § 51.014(d), and we have
jurisdiction to review that court’s order granting partial summary
judgment under our decision in Sabre Travel International, Ltd. v.
Deutsche Lufthansa AG, 

 (Tex. 2019). 18
       Turning to the merits of Simien 1, we conclude that Simien
conclusively established a violation of relevant PUC rules and a
resulting overcharge under section 13.505. We therefore affirm the trial
court’s grant of partial summary judgment in Simien’s favor.
       A.       Standard of review
       “We review summary judgments de novo, taking as true all
evidence favorable to the nonmovant, and indulging every reasonable
inference and resolving any doubts in the nonmovant’s favor.” Energen
Res. Corp. v. Wallace, 

, 509 (Tex. 2022) (quotation marks
omitted). “When the trial court does not specify the grounds for its
ruling, a summary judgment must be affirmed if any of the grounds on

       17   See 644 S.W.3d at 671-72.
       18 See Sabre Travel, 

 (“If the trial court concludes that
the threshold requirements are satisfied and certifies the interlocutory order
according to section 51.014(d), it ‘permits an appeal’ from the order, and this
Court’s jurisdiction is then proper . . . regardless of how the court of appeals
exercises its discretion over the permissive appeal.”). Accord Dougherty v. N.
Tr. Co., 

, 709 (Tex. 2022) (per curiam) (“Notwithstanding the
court of appeals’ refusal to accept the appeal, this Court has jurisdiction to
review the trial court’s interlocutory order on the merits.”); Valero Refinery-
Tex., LP v. Vela, 

, 710 (Tex. 2022) (per curiam) (same).




                                        27
which judgment is sought are meritorious.” Merriman v. XTO Energy,
Inc., 

 (Tex. 2013).
       “A party moving for traditional summary judgment bears the
burden of proving there is no genuine issue of material fact as to at least
one essential element of the cause of action being asserted and that it is
entitled to judgment as a matter of law.” Lightning Oil Co. v. Anadarko
E&P Onshore, LLC, 

 (Tex. 2017). “[T]he burden then
shifts to the non-movant to disprove or raise an issue of fact as to at least
one of those elements.” Amedisys, Inc. v. Kingwood Home Health Care,
LLC, 

 (Tex. 2014).
       “The non-movant has no burden to respond to or present evidence
regarding the motion until the movant has carried its burden to
conclusively establish the cause of action or defense on which its motion
is based.” State v. Ninety Thousand Two Hundred Thirty-Five Dollars
& No Cents in U.S. Currency ($90,235), 

 (Tex.
2013). 19 “On appeal, the movant still bears the burden of showing that
there is no genuine issue of material fact and that the movant is entitled
to judgment as a matter of law.” Rhone-Poulenc, Inc. v. Steel, 

 (Tex. 1999).




       19 See also Amedisys, 

 (“[I]f the movant does not
satisfy its initial burden, the burden does not shift” and “the non-movant’s
failure to answer or respond cannot supply by default the summary judgment
proof necessary to establish the movant’s right to judgment.”); M.D. Anderson
Hosp. & Tumor Inst. v. Willrich, 

 (Tex. 2000) (per curiam)
(“The nonmovant has no burden to respond to a summary judgment motion
unless the movant conclusively establishes its cause of action or defense.”).




                                     28
      B.     Section 13.505 and related PUC rules apply to bills
             for water utility service costs that include
             compensation for non-water charges.
      Mosaic complains that the trial court misconstrued the extent to
which section 13.505 governs Mosaic’s ability to bill tenants for the
disputed MUD fees for two reasons.           First, Mosaic argues that
Chapter 13 and associated PUC rules regulate only how landlords pass
on to their tenants “charges related to . . . drinking water and
wastewater service” imposed by a retail public utility; they do not
regulate the billing of “fees that are not for or related to” such service.
Thus, Mosaic contends that its decision to increase the “Water/Sewer
Base Fee” it charged tenants by an amount equal to the non-water fees
for fire, EMS, and law enforcement services it paid the MUD cannot
result in liability under section 13.505, regardless of whether Mosaic
had authority to charge tenants for those non-water services.
      In other words, Mosaic argues that the statutes and rules
addressing landlord billing draw a distinction between utility charges
that are related to water service costs (regulated) and utility charges
that are unrelated to water service costs, such as emergency service fees
(unregulated). Unlike the dissent (which we address in Part II.D.), all
parties take the position that both per-gallon usage charges and fixed
base charges related to the cost of water service fall on the regulated
side of this line; Mosaic’s primary argument is that charges for fire,
EMS, and law enforcement fall on the unregulated side even if bundled




                                    29
with fixed water service charges into a “Water/Sewer Base Fee.” 20 As
discussed below, we conclude that Mosaic’s argument is based on an
incorrect reading of the statute and rules.
       Second, Mosaic points out that it did not bill Simien separately
for the MUD fees for fire, EMS, and law enforcement services, as it
believes it was authorized to do under the lease, and that such a bill
would have offset any potential overcharge liability it incurred by
including an amount equal to those fees in the Water/Sewer Base Fee.
In Mosaic’s view, even if bundling non-water MUD fees with water-
related fees violated a PUC rule, that violation did not result in an
“overcharge” recoverable under section 13.505 because Simien would
have owed the additional sums under his lease in any event.                We
conclude in Part II.C. that this argument fails because the lease does
not authorize Mosaic to charge Simien the disputed non-water fees.
       Statutory and regulatory construction present questions of law
for the court, which we review de novo. Maxim Crane Works, L.P. v.
Zurich Am. Ins. Co., 

, 557 (Tex. 2022). “When construing
a statute, our primary objective is to determine the Legislature’s intent
which, when possible, we discern from the plain meaning of the words
chosen.” In re Estate of Nash, 

 (Tex. 2007). “We use
definitions prescribed by the Legislature and any technical or particular



       20 Specifically, Mosaic recognizes that Rule 24.124(a) regulates fees
“that relate to allocated utility service but that are not actual usage charges
for water or wastewater,” observing that such fees are “within the Rule’s
regulatory scope.” In Mosaic’s view, however, “nothing in that rule was
intended to expand the scope of the PUC Rules’ regulatory reach to fees
completely unrelated to water or wastewater service.”




                                      30
meaning the words have acquired.” City of Rockwall v. Hughes, 

 (Tex. 2008). Otherwise, “[w]ords not statutorily defined
bear the common, ordinary meaning unless a more precise definition is
apparent from the statutory context or the plain meaning yields an
absurd result.” Fort Worth Transp. Auth. v. Rodriguez, 

 (Tex. 2018). “Further, courts should not give an undefined statutory
term a meaning out of harmony or inconsistent with other provisions,
although it might be susceptible of such a construction standing alone.”
Tex. Dep’t of Transp. v. Needham, 

 (Tex. 2002). “In
ascertaining a term’s meaning, courts look primarily to how that term
is used throughout the statute as a whole.” 

       Turning to Mosaic’s first argument, section 13.505 provided at the
time Simien filed this suit that “the tenant may recover” if the landlord
“violates a rule of the utility commission regarding . . . nonsubmetered
master metered utility costs.”      TEX. WATER CODE § 13.505.          Mosaic
contends that this section creates liability only for a landlord’s “potential
errors in calculation” when following a prescribed formula for allocating
utility service charges, and it does not reach “rule violations that do not
involve miscalculations regarding the correct usage-related charge.”
       But none of those words appear in the statute. The ordinary
meaning of “regarding” is expansive and synonymous with terms like
“respecting,” “concerning,” or “referring to.” 21 Rule 24.124(a) provides



       21 See WEBSTER’S NEW UNIVERSAL UNABRIDGED DICTIONARY 1622
(1996) (defining “regarding” to mean “with regard to; respecting; concerning”);
WEBSTER’S NEW COLLEGIATE DICTIONARY 965 (1980) (defining “regarding” to
mean “with respect to: CONCERNING”); THE AMERICAN HERITAGE




                                      31
that “charges billed to tenants for . . . allocated utility service may only
include bills for water or wastewater from the retail public utility.” This
rule concerns or refers to nonsubmetered utility costs because it
determines how such costs may—and may not—be billed to tenants.
The rule also carries out the Legislature’s directive to “adopt rules and
standards . . . for prorating or allocating among tenants nonsubmetered
master metered utility service costs.”      TEX. WATER CODE § 13.5031.
Because Rule 24.124 is a rule “regarding . . . nonsubmetered master
metered utility costs,” id. § 13.505, the statute provides a cause of action
for violations of that rule.
       We also reject Mosaic’s related argument that section 13.505 and
Rule 24.124(a) only regulate charges that are actually for or related to
water utility service, and thus they do not apply when landlords increase
the water utility service charges they bill to tenants by an amount
equivalent to various undisclosed non-water fees.         Under Mosaic’s
theory, even a landlord’s blatant padding of a tenant’s water bill—such
as increasing the tenant’s water usage charge or base fee to three times
the amount that the public utility charged the landlord—would not
violate the rule because the inflated portion of the charges are not truly




DICTIONARY OF THE ENGLISH LANGUAGE (5th ed.) (2011) (defining “regarding”
to mean “[i]n reference to; with respect to; concerning”).




                                    32
for utility service; they are literally for nothing that the tenant received
at all. 22 That makes no sense. 23
       Mosaic’s reading ignores the Legislature’s choice to prohibit the
“impos[ition]” of “additional charges on a tenant . . . for utility
consumption” that are “in excess of the actual charges imposed on” the
landlord. Id. § 13.5031(3). The PUC implemented this statute through
Rule 24.124, which similarly prohibits including non-water fees in the
“[c]harges billed to tenants for . . . utility service.”
       We understand Rule 24.124(a) to provide that if (1) a dollar
amount is “billed to tenants” as a “[c]harge[] . . . for submetered or
allocated utility service,” 24 then (2) that charge (a) “may only include
bills for water or wastewater from the public utility,” and (b) “must not
include any fees billed to the owner by the retail public utility for any
deposit, disconnect, reconnect, late payment, or other similar fees.” 16


       22  But cf. TEX. WATER CODE § 13.504 (“If, during the 90-day period
preceding the installation of individual meters or submeters, a [landlord] . . .
has increased rental rates and the increase is attributable to increased costs of
utilities, the [landlord] . . . shall immediately reduce the rental rate by the
amount of the increase and refund all of the increase that had previously been
collected within the 90-day period.”).
       23 The dissent appears to misunderstand Mosaic’s theory. The dissent
argues that the padded amount is not a charge “for water or wastewater from
the retail public utility,” so bundling it with a regulated charge would violate
the rule. Post at 9-10 (Bland, J. dissenting). We agree with the dissent, but
Mosaic does not. In Mosaic’s view, the rule governs only to the extent the
landlord is passing on to tenants a charge for water or wastewater from the
retail public utility, so it does not apply to any other amounts that the landlord
includes in the charge.
       2416 TEX. ADMIN. CODE § 24.124(a). Or, in the words of section 13.5031,
if the amount is “impose[d] . . . on a tenant . . . for utility consumption.” TEX.
WATER CODE § 13.5031(3).




                                       33
TEX. ADMIN. CODE § 24.124(a). The language of the “must not include”
clause—labeled (2)(b) above—is a carve-out that prohibits landlords
from billing for certain non-volume water utility service costs that would
otherwise fall within the scope of the Rule’s preceding text. Thus, Rule
24.124(a), like section 13.5031(3), prohibits any amount that a landlord
bills a tenant for utility service from including non-water charges.
       The record shows that the amounts Mosaic billed its tenants for
the “Water/Sewer Base Fee” included not only (1) a customer service
charge for water utility service that Mosaic allocated to each apartment
using the formula provided by Rule 24.124(c), 25 but also (2) an amount
equivalent to the non-water charges for fire, EMS, and law enforcement
services that Mosaic paid the MUD for each apartment. Thus, Mosaic
violated Rule 24.124(a).
       This conclusion also is supported by and best harmonizes other
PUC rules implementing Chapter 13 of the Water Code. See supra at
22-23. For example, Mosaic’s interpretation of section 13.505 would
create an end-run around Rule 24.125(e), which forbids the bundling of
fees related to water and wastewater service with any fees unrelated to
such service. 26 Mosaic’s base fee likewise violates this rule. And it
violates Rule 24.125(f), which requires the landlord’s bill to state the



       25“If the retail public utility’s rate structure includes a customer service
charge, the owner shall bill each dwelling unit the amount of the customer
service charge divided by the total number of dwelling units, including vacant
units, that can receive service through the master meter serving the tenants.”
16 TEX. ADMIN. CODE § 24.124(c).
       26 “[C]harges for submetered or allocated utility service must be
separate and distinct from any other charges on the bill.” Id. § 24.125(e).




                                        34
total amount due for customer service charges. 27 Here, Mosaic’s bill
does not mention customer service charges, which make up only part of
the “Water/Sewer Base Fee,” and the amount due for those charges
cannot be determined from the bill.
       Similarly, Rule 24.124(f) provides that landlords who do not wish
to install submeters must either use one of the PUC-approved allocation
formulas or stop billing tenants for utility services.                Mosaic’s
interpretation would practically eviscerate that rule by allowing
landlords to “use” an approved allocation formula to make an initial
calculation and then make arbitrary adjustments wholly outside of that
formula based on the amounts of non-water charges.
       Moreover, under the version of section 13.505 currently in effect,
“[t]he utility commission has exclusive jurisdiction for violations under
the subchapter.” TEX. WATER CODE § 13.505(b). But if Mosaic’s proposed
interpretation is correct, then neither the PUC nor a trial court would
be able to confirm its jurisdiction over claims like Simien’s without first
permitting discovery and conducting a mini-trial on whether a
seemingly water-related charge on a tenant’s bill was in fact
attributable to costs unrelated to water service. Cf. Oncor Elec. Delivery
Co. v. Chaparral Energy, LLC, 

 (Tex. 2018) (“When
an agency has exclusive jurisdiction, courts lack jurisdiction until the
party has exhausted all administrative remedies before the agency.”).
Thus, under the current statutory scheme, tenants pursuing a

       27 “The bill must clearly state that the utility service is submetered or
allocated, as applicable, and must include all of the following: . . . (3) total
amount due for dwelling unit base charge(s) or customer service charge(s) or
both, if applicable . . . .” 16 TEX. ADMIN. CODE § 24.125(f).




                                      35
contractual remedy to recoup utility fees assessed in violation of their
lease—as Mosaic has repeatedly argued Simien should have done—
would not discover their failure to exhaust administrative remedies
until they are midway through litigation, having wasted considerable
judicial resources along the way. For these additional reasons, Mosaic’s
construction is untenable.
      Finally, contrary to Mosaic’s assertions, our construction need not
result in DTPA-like liability for Simien’s misbilling claims because the
pre-2017 version of section 13.505 also provides landlords with a defense
when “the violation was a good faith, unintentional mistake.” TEX.
WATER CODE § 13.505.
      C.     Mosaic’s lease-based challenges to the summary
             judgment also fail.
      We next consider Mosaic’s second argument that even if it
violated PUC rules, it did not “overcharg[e]” Simien for water or
wastewater service, so it has no obligation to repay any “amount
overcharged.” Id. One of the grounds for Simien’s motion for partial
summary judgment was that “[n]owhere in [his] lease or in applicable
sections of the Texas Water Code and PUC Rules does it provide for
[Mosaic] to pass along to tenants as water and wastewater charges any
non-water charges for EMS fee, Law Enforcement Fee, and Fire.”
Mosaic challenges this ground in its briefing here, contending that the
lease did authorize it to charge tenants for the non-water MUD fees, and
therefore there can be no “overcharge” liability under section 13.505 for
marking up tenant bills for water and wastewater charges in an amount
equal to the non-water fees.




                                   36
       This narrower theory presents the following question: whether an
overcharge occurs under section 13.505 when a landlord-imposed water
utility service fee includes undisclosed amounts equivalent to non-water
fees paid by the landlord, or whether an overcharge also requires proof
that the landlord lacked contractual authority to impose the non-water
fees even if properly disclosed. We need not resolve that question today
because we conclude Simien conclusively established that his lease did
not obligate him to pay any part of the fees for fire, EMS, or law
enforcement that the MUD charged Mosaic. 28
       “In construing [an] agreement, we first determine whether it is
possible to enforce the contract as written, without resort to parol
evidence.” J.M. Davidson, Inc. v. Webster, 

 (Tex.
2004). 29   “If the language lends itself to a clear and definite legal
meaning, the contract is not ambiguous and will be construed as a
matter of law.” Great Am. Ins. Co. v. Primo, 

 (Tex.


       28We agree with the dissent that Simien has not pleaded a contract
claim for breach of the lease. Post at 17. Rather, Simien has pleaded a
statutory claim under section 13.505 of the Water Code to recover the amount
overcharged due to a violation of an applicable PUC rule. As we have
explained, Mosaic disputes whether including the non-water charges counts as
an “overcharge” under the statute because it maintains those charges were
otherwise authorized by the lease. Thus, we examine whether the lease
authorized the charges to resolve Mosaic’s statutory argument, not to rule on
an unpleaded claim for breach of the lease.
       29 Cf. Kachina Pipeline Co. v. Lillis, 

 (Tex. 2015)
(“[E]xtrinsic evidence can be considered only to interpret an ambiguous
writing, not to create ambiguity.”); Italian Cowboy Partners v. Prudential Ins.
Co. of Am., 

 (Tex. 2011) (“Only where a contract is
ambiguous may a court consider the parties’ interpretation and admit
extraneous evidence to determine the true meaning of the instrument.”
(quotation marks omitted)).




                                      37
2017). “If, however, the language of a policy or contract is subject to two
or more reasonable interpretations, it is ambiguous.” Nat’l Union Fire
Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 

 (Tex.
1995).
         “We must give effect to the parties’ intentions, as expressed in
their agreement,” and “[w]e will give a contract language its plain,
grammatical meaning unless it would clearly defeat the parties’
intentions.” Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 

, 479 (Tex. 2019) (quotation marks omitted). “[A]ll the usual
‘rules of construction’ apply, like the familiar presumptions favoring
consistent usage, disfavoring surplusage, and using the plain meaning
of undefined terms.” Perthuis v. Baylor Miraca Genetics Labs., LLC, 

, 236 (Tex. 2022).       “[W]e examine the entire lease and
attempt to harmonize all its parts, even if different parts appear
contradictory or inconsistent.” Endeavor Energy Res., L.P. v. Energen
Res. Corp., 

, 148 (Tex. 2020) (quotation marks omitted).
Thus, “[a] contract is not necessarily ambiguous simply because some
sections arguably conflict.” NuStar Energy, L.P. v. Diamond Offshore
Co., 

 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
For example, “[c]onsistent with our long-established precedent that no
one phrase, sentence, or section of a contract should be isolated from its
setting and considered apart from the other provisions, a specific
contract provision controls over a general one.” Pathfinder Oil & Gas,
Inc. v. Great W. Drilling, Ltd., 

 (Tex. 2019) (cleaned
up).




                                    38
         “If the contract is subject to two or more reasonable
interpretations after applying the pertinent rules of construction,
however, the contract is ambiguous, creating a fact issue on the parties’
intent.” ConocoPhillips Co. v. Koopman, 

 (Tex.
2018).     “Whether a particular provision or the interaction among
multiple provisions creates an ambiguity is a question of law.” State
Farm Lloyds v. Page, 

 (Tex. 2010). With these
principles in mind, we turn to the lease language at issue.
         In arguing that Mosaic was entitled to charge the disputed MUD
fees to Simien under his lease, Mosaic relies primarily on language in
paragraph seven of the lease, which is titled “Utilities and Services.”
Paragraph seven provides that Mosaic will pay for any item if checked
and lists several options, none of which are checked. Paragraph seven
then states that Simien will “pay for all other utilities and services,
related deposits, and any charges or fees on such utilities and services
during [his] Lease term.” Standing alone, such “catch-all” language
would support Mosaic’s interpretation of the lease.
         But Simien’s lease also included various addenda, including an
addendum for allocating water and wastewater costs and a separate
addendum for allocating government fees. The latter addendum (quoted
in full on page 4, supra) addresses “direct costs that the apartment
community incurs” for “services provided to residents and charges for
various governmental fees.” It provides that Mosaic “ha[s] chosen to
allocate the services and governmental fees indicated below using a
standardized formula to distribute these costs fairly.” But no selections
are indicated for any of the enumerated services or fees, including an




                                   39
unchecked box labeled “Emergency services fee.” Because Mosaic chose
not to select the box for emergency services and omitted the write-in
selections for the MUD-imposed fire, EMS, and law enforcement fees
used in the sample lease, the addendum does not permit Mosaic to pass
such fees on to Simien.
      “Consistent with our long-established precedent that provisions
should be considered together and harmonized, when possible, so that
none will be rendered meaningless, ‘a specific contract provision controls
over a general one.’” Wal-Mart Stores, Inc. v. Xerox State & Loc. Sols.,
Inc., No. 20-0980, __ S.W.3d __, 

, at *12 (Tex. Mar. 17,
2023) (quoting Pathfinder Oil & Gas, 

). We agree with
Simien that the specific lease addendum for government fees controls
over the general agreement to pay for all other utilities and services in
paragraph five of the lease. This interpretation gives meaning to both
provisions without rendering either one superfluous. See 

 at *14 &
n.92; G.T. Leach Builders, LLC v. Sapphire V.P., LP, 

 (Tex. 2015).
      Mosaic contends that “the government fees allocation addendum
intentionally does not include emergency services” because “the per-unit
MUD service charges were not intended to be, and were not, allocated.”
As such, Mosaic contends it did not need to select or include those fees
in the addendum. We are not persuaded by Mosaic’s argument that
“[b]ecause the fees are charged on a per-unit basis, they are necessarily
not allocated.”
      The MUD billed Mosaic directly, and it sent Mosaic an aggregate
bill for each metered building. That bill included not only building-wide




                                   40
charges for water and sewer usage and a related service charge, but also
the disputed building-wide fire, EMS, and law enforcement fees.
Although the MUD used the number of units per building in calculating
the amount of the building-wide fees it imposed on Mosaic, the MUD did
not bill each tenant or tell Mosaic how it would be fair to distribute the
charges and fees among its tenants. 30 Thus, if Mosaic wished to bill its
tenants for those charges and fees, it was up to Mosaic and the tenants
to agree (subject to applicable laws and regulations) on a formula to use
in allocating them fairly.
       As discussed, Mosaic and its tenants did agree to an addendum
regarding when and how to allocate government fees. The disputed fees
here fall within the description of “direct costs that the apartment
community incurs” in the paragraph of the addendum titled “[r]eason
for allocation.” In addition, “[p]er dwelling unit”—the method actually
used by Mosaic and RealPage to distribute the disputed fees among the
building’s tenants—is one of the available “allocation method[s]” listed
in the paragraph of the addendum titled “[a]llocation procedures.” 31 Yet


       30 Even if the manner in which the MUD calculated its aggregate
building-wide fee amounts were somehow relevant to the question whether
Mosaic engaged in “allocation” when it divided those fees among its tenants on
a per-unit basis, the record confirms that Mosaic was not simply passing
through a fee that the MUD imposed on each current unit occupant. In
particular, the MUD bills to Mosaic also included additional “true-up”
installment charges for fire fees that Mosaic had incurred but failed to pay in
prior years, and Mosaic chose to allocate those fees to Simien (who was not a
tenant in those years) and other current tenants. The current tenants thus
paid Mosaic more than the per-unit fire fee specified in the MUD’s rate order.
        Similarly, paragraph twelve of Simien’s lease—which Mosaic’s relied-
       31

upon provision incorporates by reference—provides that “[i]f a utility is




                                      41
Mosaic did not select that method in the addendum.                   Nor did it
“indicat[e] below” that it “ha[s] chosen to allocate the . . . governmental
fees” in dispute by selecting the box for emergency services or writing in
selections for those fees. Thus, the parties did not agree that Mosaic
could bill its tenants for the disputed fees it incurred.
       For these reasons, we conclude that Mosaic failed to raise an issue
of fact regarding whether it had a right to charge Simien the disputed
MUD fees under his lease. We affirm the trial court’s partial summary
judgment.
       D.     The statute and rules do not support the dissent’s
              proposed limits on the PUC’s regulatory authority.
       Our dissenting colleagues largely do not take issue with our
reasons for rejecting either of Mosaic’s arguments. Indeed, they agree
that Rule 24.124 “prohibit[s] bundling of other charges with ‘charges
billed to tenants for submetered or allocated utility service.’” Post at 8
(Bland, J., dissenting).
       Instead, the dissent begins by characterizing Mosaic’s conduct as
nothing more than applying “imprecise billing label[s]” to charges that
“were not fabricated.”       Id. at 1.      To the contrary, the non-water
emergency service charges were not owed under the lease, as Simien



submetered or prorated by an allocation formula, we’ll attach an addendum to
this Lease in compliance with state-agency rules.” Although Mosaic has
argued that the disputed MUD fees did not need to be selected on the
addendum for allocating government fees because they are per-unit fees, a per-
unit fee is still a form of “prorat[ing] by allocation formula.” As such, Simien’s
lease required per-unit fees to be set forth in an addendum to the lease just as
it required an addendum setting forth Mosaic’s chosen formula for calculating
its allocation of water and sewer fees.




                                       42
could have discovered if Mosaic had disclosed their true nature. By
bundling those charges into the base fee Mosaic billed Simien for water
and wastewater utility service, Mosaic overcharged him in violation of
section 13.505 and Rule 24.124.
      The dissent also expresses concern that “statutory liability” for
violating the rule is too “sweeping.” Id. at 1. But that concern should
be—and has been—addressed to the Legislature that created the
liability, which responded by amending the statute after this suit was
filed to give the PUC exclusive jurisdiction over landlord billing
violations and limit the available remedies.
      The dissent then turns to the merits, advocating a new ground—
one Mosaic does not brief in this Court—for holding that Simien failed
to establish a violation. Specifically, the dissent contends that “the
governing statute and its implementing rules” have a more “limited
scope,” which covers only metered per-gallon charges for actual water
usage. Id. Thus, the relevant statute and rules do not apply to the fixed
water service charge that Mosaic bundled with non-water charges for
fire, EMS, and law enforcement services into the “Water/Sewer Base
Fee.” Id. at 9-10. In the dissent’s view, Simien’s statutory claim fails
not because the statute and rules do not reach non-water charges
bundled with regulated service charges (as Mosaic argues), but because
the statute and rules do not actually regulate service charges and
therefore do not prohibit bundling them with non-water charges.
      The dissent takes this position without any briefing from the
parties or from the agency charged with implementing this statute—the
power of which it proposes to limit. As noted above, Mosaic’s position is




                                   43
that the statute and rules do apply to the water service charges. Given
the parties’ agreement on this matter, our usual practice is to assume
for purposes of our decision that they are correct.          See, e.g., City of
Houston v. Hous. Prof’l Fire Fighters’ Assn., Nos. 21-0518, 21-0755, __
S.W.3d __, 

, at *5 (Tex. Mar. 31, 2023); Pike, 610
S.W.3d at 782 (“The rule that points not argued will not be considered
is more than just a prudential rule of convenience; its observance, at
least in the vast majority of cases, distinguishes our adversary system
of justice from the inquisitorial one.” (quoting United States v. Burke,

 (1992) (Scalia, J., concurring))).
       Even if Mosaic had taken the position advocated by the dissent,
however, we conclude that position is not supported by the statute or
rules. The Water Code requires the PUC to “adopt rules and standards
governing billing systems or methods used by” landlords “for prorating
or allocating among tenants nonsubmetered master metered utility
service costs.” TEX. WATER CODE § 13.5031 (emphasis added). 32 And the
Code provides a cause of action for violating a PUC rule regarding
“nonsubmetered master metered utility costs.” Id. § 13.505. The dissent
contends that the MUD’s flat customer service charge—which Mosaic
included in its “Water/Sewer Base Fee”—does not qualify as a “master-
meter[ed]” charge because it is not “measured in gallons used.” Post at
13. But the statute and rules do not regulate only billing of volume-




       32And the PUC has done so, “establish[ing] a comprehensive regulatory
system” of “practices involving submetered and allocated billing . . . for water
and sewer utility service.” 16 TEX. ADMIN. CODE § 24.121(a).




                                      44
based charges calculated using a master meter. Rather, they regulate
the billing of all costs of master metered utility service.
       Of course, all water utility service involves the use of meters—
whether only master meters or also submeters. Yet the statute and
rules concerning the costs of such service go beyond prescribing how
tenants are billed for the metered gallons they use; they also address
how tenants are billed for related fees that are not volume-based and
cover other costs of providing the service. In particular, the statute and
rules recognize that a fixed charge not dependent on the amount of
water used is a type of “rate” for water utility “service,” and that
“service” involves not only the amount furnished or supplied but also the
lines and facilities used. 33 In addition, the record illustrates that the
“costs” of providing master metered utility service go beyond per-gallon
usage charges.      The MUD’s rate order describes its fixed customer
service charge as being “for the sale of water, collection, and disposal of
sewer.” And the MUD’s billing vendor testified that the service charge—
which utilities also refer to as a “base rate”—“relates to the delivery of”
water and sewer service “[be]cause it is for maintenance [of] waterlines
and sewer lines.” Maintenance of lines and other facilities is certainly a
cost of providing any sort of utility service.


       33 See TEX. WATER CODE § 13.002(21) (defining “service” to include “any
act performed, anything furnished or supplied, and any facilities or lines
committed or used by a retail public utility in the performance of its duties”);
id. § 13.002(17) (defining “rate” as “every . . . charge . . . for any service . . .
described in [the definition just quoted],” including operating facilities for
distribution or sale of water or collection of wastewater); 16 TEX. ADMIN. CODE
§ 24.121(c)(3) (“[a] customer service charge is a rate that is not dependent on
the amount of water used through the master meter”).




                                        45
      Moreover, in exercising its authority to regulate how the costs of
master metered utility service are billed to tenants, the PUC crafted the
primary rule at issue so that it specifically addresses costs beyond per-
gallon usage charges—including fixed customer service charges. Rule
24.124(e) recognizes that “the retail public utility’s master meter bill for
water and sewer service to the tenants” may include “dwelling unit base
charges or customer service charges.” 16 TEX. ADMIN. CODE § 24.124(e)
(emphases added). And subsection (c) provides that “[i]f the retail public
utility’s rate structure includes a customer service charge, the [landlord]
shall bill each dwelling unit the amount of the customer service charge
divided by the total number of dwelling units, including vacant units,
that can receive service through the master meter serving the tenants.”
Id. § 24.124(c) (emphases added).
      Finally, subsection (a)—which Simien contends Mosaic violated
by including non-water amounts in the service charge for water and
wastewater—expressly covers fixed as well as volume-based “[c]harges
billed to tenants for submetered or allocated utility service.” The latter
half of the subsection provides that such charges “must not include any
[utility] fees [for] deposit, disconnect, reconnect, late payment, or other
similar fees.” Id. § 24.124(a). None of those fees are based on the
number of gallons used, which confirms that the Rule’s scope is not
limited to charges that are “initially master-metered,” as the dissent
advocates. Post at 8.
      A separate point emphasized in the dissent is that subsection (a)
applies only to charges for “allocated utility service.”      The dissent
observes that this phrase is defined as “[w]ater or wastewater utility




                                    46
service that is master metered to [a landlord] by a retail public utility
and allocated to tenants by the [landlord].”      16 TEX. ADMIN. CODE
§ 24.121(c)(1). And it contends that because the MUD calculated its
customer service charge to Mosaic using the number of apartments
served, Mosaic’s billing of that charge to its tenants was not for
“allocated” utility service. Post at 13.
       But as we explained in Part II.C. in rejecting a similar argument
Mosaic makes regarding the lease, the MUD sent Mosaic an aggregate
bill stating the total customer service charge for each metered building.
Although the MUD used the number of apartments in calculating the
amount of the building-wide charge it imposed on Mosaic, the MUD did
not bill each tenant or tell Mosaic how it should allocate the charge to
each tenant.     Rather, Rule 24.124(c)—which we just quoted—told
Mosaic how to allocate that charge: divide it by the total number of
dwelling units that can receive service through the master meter.
Mosaic then billed Simien for the amount of the customer service charge
so allocated. Because Mosaic also added non-water amounts to that
allocated service charge, it violated Rule 24.124(a).
       In sum, the Water Code authorizes the PUC to regulate billing for
non-volume water service charges, and its rules expressly apply to the
MUD’s fixed customer service charge.       Simien has established that
Mosaic overcharged him in violation of section 13.505 of the Water Code
and PUC Rule 24.124(a) by including non-water amounts in that service
charge, and the trial court correctly granted partial summary judgment
in his favor.




                                    47
III.   Class certification: the trial court did not abuse its
       discretion in certifying a class under Rule 42.
       In its second appeal (No. 21-0159, Simien 2), Mosaic argues the
Court should reverse the court of appeals’ judgment affirming the class
certification order for two reasons. 34 Mosaic first challenges the rigor of
the trial court’s assessment of the underlying substantive law as part of
its consideration of the prerequisites to certifying a class. Alternatively,
Mosaic contends that the trial court’s failure to list the elements of its
pleaded     affirmative   defenses   in   the   class   certification   order
independently warrants reversal. We address each challenge in turn.
       A.     The trial court did not base its decision to certify a
              class on a significant misunderstanding of law.
       Rather than challenge the trial court’s finding that any particular
prerequisite to class certification was met, Mosaic’s sole argument in
support of reversal under Gill hinges on the correctness of the trial
court’s partial summary judgment, which we have affirmed.                We
therefore reject Mosaic’s argument that the trial court erroneously
based its decision to certify a class on a significant misunderstanding of
the law.
       “Courts must perform a ‘rigorous analysis’ before ruling on class
certification to determine whether all prerequisites to certification have
been met.” Sw. Refin. Co. v. Bernal, 

 (Tex. 2000); see
also Compaq Comput. Corp. v. Lapray, 

 (Tex. 2004)

       34“This Court has jurisdiction to review an interlocutory appeal of an
order certifying or denying certification of a class action without regard to
whether a conflict exists between courts of appeals.” Bowden v. Phillips
Petroleum Co., 

 (Tex. 2008) (citing TEX. CIV. PRAC. & REM.
CODE § 51.014(a)(3); TEX. GOV’T CODE § 22.225(d)).




                                     48
(“All prerequisites means all prerequisites. This includes all four
elements of rule 42(a) as well as one of several elements of rule 42(b).”).
And “the substantive law . . . must be taken into consideration in
determining whether the purported class can meet the certification
prerequisites under [Rule] 42.” Gill, 

 (quoting Union
Pac. Res. Grp. v. Hankins, 

 (Tex. 2003)). Indeed,
Rule 42 requires that the certification order specify “the elements of
each claim or defense asserted in the pleadings.”           TEX. R. CIV. P.
42(c)(1)(D)(i).   Thus, as we explain today in American Campus
Communities v. Berry, a court’s task in applying Rule 42 “is to correctly
understand the law governing the nature and elements of the claim and
to gauge the claim’s suitability for class resolution on the basis of that
understanding.” __ S.W.3d __, slip op. at 15-16 (Tex. Apr. 21, 2023)
(No. 21-0874).
       A defendant asserting that “a class has been certified based on a
significant misunderstanding of the law,” Gill, 

, may
obtain reversal in two ways. First, if the proposed class claim has “no
basis in law,” Berry holds that “the ‘rigorous analysis’ necessary to
certify a class cannot meaningfully be performed, and reversal of the
class certification is required.” __ S.W.3d __, slip op. at 22.
       Second,    the   defendant    may     show    that    a    significant
misunderstanding of the law “[a]ffect[s] . . . the requirements for class
certification.” Gill, 

 (quotation marks omitted). When
a trial court’s certification order reveals an incorrect understanding of a
claim or defense that may have materially impacted its analysis of a
certification requirement, it is not for a reviewing court to guess whether




                                    49
the trial court would still have exercised its discretion to certify a class
had its understanding been correct.          Rather, if it appears that
certification may still be appropriate under a correct understanding, the
reviewing court should reverse the certification and remand for the trial
court to receive additional evidence or argument from the parties if
necessary, conduct a rigorous analysis, and exercise its discretion based
on that understanding. See Phillips Petroleum Co. v. Yarbrough, 

 (Tex. 2013); Gill, 

; BMG Direct Mktg.,
Inc. v. Peake, 

 (Tex. 2005).
       In this case, although the parties’ dispute about the definition of
overcharge under section 13.505 may well be “an important substantive
issue,” Mosaic has not challenged the trial court’s finding on any
certification prerequisite by explaining how the dispute “could have a
significant effect” on that prerequisite. BMG Direct Mktg., 

. In BMG, for example, the defendant asserted that “application
of the voluntary-payment rule causes individual issues to predominate
and therefore precludes class certification.” 

. But here, as in
Southwestern Bell Telephone Co. v. Marketing on Hold, Inc., it appears
from the record that “[w]hether [the defendant] was authorized to
charge [the disputed] fees on the services in question . . . [is] susceptible
to class-wide proof.” 

 (Tex. 2010).
       Because Mosaic failed to raise any substantive challenges to
certification other than its attack on the now-affirmed partial summary
judgment, we reject Mosaic’s argument that the trial court failed to
conduct a rigorous analysis in certifying the class.




                                     50
       B.      The class certification order addressed Mosaic’s live
               defense.
       Mosaic also argues that the trial court ignored its mandatory
obligation to address and list the elements of Mosaic’s pleaded
affirmative defenses, which Simien characterizes as a harmless
technicality that Mosaic has waived.            We conclude the matter was
preserved and the court complied with its obligation.
       “An order certifying a class action must define the class and the
class claims, issues, or defenses, and must appoint class counsel under
Rule 42(g).”       TEX. R. CIV. P. 42(c)(1)(B).       In addition to other
requirements, Rule 42 provides that an order granting class certification
“must state” (1) “the elements of each claim or defense asserted in the
pleadings”; (2) “why the issues common to the members of the class do
or do not predominate over individual issues”; and (3) “how the class
claims and any issues affecting only individual members, raised by the
claims or defenses asserted in the pleadings, will be tried in a
manageable, time efficient manner.”             TEX. R. CIV. P. 42(c)(1)(D),
(c)(1)(D)(i), (c)(1)(D)(vi), (c)(1)(D)(viii).
       “[A] trial plan is required in every certification order to allow
reviewing courts to assure that all requirements for certification under
Rule 42 have been satisfied.”            Lopez, 

.     “The
formulation of a trial plan assures that a trial court has fulfilled its
obligation to rigorously analyze all certification prerequisites, and
‘understands the claims, defenses, relevant facts, and applicable
substantive law in order to make a meaningful determination of the
certification issues.’” 

 (quoting Bernal, 

).




                                         51
      “Rule 42 does not require adoption of a trial plan as a mere
formality; rather, . . . the rule requires a rigorous analysis and a specific
explanation of how class claims are to proceed to trial.” Henry Schein,
Inc. v. Stromboe, 

 (Tex. 2002). “A trial court’s
certification order must indicate how the claims will likely be tried so
that conformance with Rule 42 can be meaningfully evaluated.” Bernal,

.
      Here, the parties dispute whether Mosaic properly preserved a
complaint about the trial court’s compliance with Rule 42(c)(1)(D), as
well as whether such complaints are subject to harmless-error review
even when preserved. We agree with Mosaic that it was not required to
make any additional post-certification objections in the trial court to
preserve for appellate review an error in omitting one of its defenses.
Mosaic raised the defenses in a timely answer and opposed class
certification, which made the trial court aware of the need to address
those defenses if it certified a class. See TEX. R. APP. P. 33.1(a).
      In addition, a court’s failure to address live defenses is an abuse
of discretion that is harmful by its nature. Even in cases where class
certification may well be appropriate following a rigorous analysis of the
certification prerequisites, “[a]ctual conformance with Rule 42 is
indispensable, and compliance with the rule must be demonstrated, not
presumed.” Stonebridge Life Ins. Co. v. Pitts, 

 (Tex.
2007); see also Yarbrough, 

. We therefore turn to the
merits of Mosaic’s challenge to the trial court’s compliance with Rule
42(c)(1)(D).




                                     52
      Mosaic correctly points out that the affirmative defenses it
pleaded were not included in the class certification order or in the trial
plan it referenced. With the exception of Mosaic’s limitations defense,
however, all of Mosaic’s pleaded defenses were disposed of by the trial
court’s rulings on special exceptions and summary judgment prior to
class certification. Thus, there was no reason to address those defenses
in the order. The merits of the court’s interlocutory rulings on the
defenses are not before us.
      As to Mosaic’s limitations defense, Rule 42(c)(1)(D) requires a
trial court to either dispose of a defense on the merits before certifying
a class or address the defense in its certification order and explain how
it will be tried. We conclude the trial court properly did the latter as
part of its class definition.   A limitations defense requires proof of
“(1) when the cause of action accrued, and (2) that the plaintiff brought
its suit later than the applicable number of years thereafter.” Draughon
v. Johnson, 

, 89 (Tex. 2021). Simien’s suit was filed on
February 6, 2017, and the class includes only tenants who lived at
Baybrook Village from June 1, 2015, through September 30, 2017, and
were charged (and paid) the disputed fees during that time period.
Although the parties disputed which statute of limitations was
applicable, none disputed that the limitations period was at least two
years. Mosaic does not challenge the class definition, nor does it argue
that the class includes any claims barred by limitations.
      By date-restricting the certified class to include only members
with claims that are timely under Mosaic’s understanding of the statute
of limitations, the trial court fully addressed Mosaic’s defense and left




                                   53
no issues to be tried. In this situation, the court’s failure to recite the
elements of the limitations defense does not preclude “a meaningful
determination of the certification issues,” Lopez, 

, that
the Rule 42(c)(1)(D) requirements were designed to help inform. Just as
we have refused to read Rule 42 to “require a ‘trial plan’ by that name,
set out in a separate document,” Henry Schein, 

, we
do not read Rule 42 to require that the class certification order
separately enumerate the elements of a limitations defense so long as
those elements are accounted for on the face of the order. Because all
claims in the class defined by the trial court were brought less than two
years after they accrued upon payment of the disputed fees, we conclude
the trial court addressed Mosaic’s only live defense as required by
Rule 42(c)(1)(D) and did not abuse its discretion in certifying the class.

                              CONCLUSION

      We affirm the trial court’s grant of partial summary judgment in
Simien’s favor, as well as the court of appeals’ judgment affirming the
trial court’s order certifying a class under Rule 42.



                                         J. Brett Busby
                                         Justice

OPINION DELIVERED: April 21, 2023




                                    54