McAllen Medical Center, Inc. v. Cortez, Ramiro, Jr. and that Class of all Persons who Underwent Cardiac Surgery at McAllen Medical Center from December 1, 1993 through May 21, 1999--Appeal from 92nd District Court of Hidalgo County
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
MC ALLEN MEDICAL CENTER INC., Appellant,
RAMIRO CORTEZ, JR., AND
THAT CLASS OF TEXAS RESIDENTS
ON WHOM FRANCISCO I. BRACAMONTES,
M.D. PERFORMED SURGERY AT THE
MC ALLEN MEDICAL CENTER, Appellees.
On appeal from the 92nd District Court of Hidalgo County, Texas.
OPINION ON REMAND
Before Justices Hinojosa, Ya ez, and Rodriguez
Opinion by Justice Ya ez
In this interlocutory appeal, McAllen Medical Center, Inc. (MMC), a non-settling defendant, appeals from a trial court order preliminarily certifying a Asettlement only@ plaintiff class and preliminarily approving a settlement with a settling co-defendant. In our original opinion in this case, issued on April 6, 2000, we dismissed the appeal and held that MMC lacked standing to challenge the trial court=s order preliminarily certifying the settlement class. McAllen Med. Ctr., Inc. v. Cortez, 17 S.W.3d 305, 310 (Tex. App.BCorpus Christi 2000), rev=d, 66 S.W.3d 227, 230 (Tex. 2001). The Texas Supreme Court reversed our judgment and remanded the cause to us for further proceedings. Cortez, 66 S.W.3d at 230. We hold the trial court erred in preliminarily certifying the settlement class without first determining whether rule 42's certification requirements of numerosity, commonality, typicality, and adequacy of representation were met. See Tex. R. Civ. P. 42; Cortez, 66 S.W.3d at 233-34. Accordingly, we reverse the trial court=s certification order and remand this cause to the trial court for further proceedings consistent with this opinion and the supreme court=s opinion.
Because the factual and procedural background in this case was set forth in our original opinion and the supreme court=s opinion, we will not discuss it here. See Cortez, 17 S.W.3d at 307-08; Cortez, 66 S.W.3d at 230-31.
Rule 42 Analysis
MMC contends the trial court erred in preliminarily certifying the Asettlement only@ class prior to determining whether the class certification requirements of rule 42 were met. The supreme court agreed. See Cortez, 66 S.W.3d at 232-34 (holding requirement that courts perform Arigorous analysis@ under rule 42 prior to certification extends to Asettlement only@ classes). In this case, the record reflects that the trial court did not conduct a rule 42 review prior to certifying the settlement class. In rejecting the trial court=s approach of postponing the class-action inquiry until the fairness hearing, the supreme court noted its rejection of the Acertify now and worry later@ approach. See id. at 232 (citing Southwestern Ref. Co. v. Bernal, 22 S.W.3d 425, 435 (Tex. 2000).
We hold that the trial court abused its discretion in certifying the Asettlement only@ class prior to conducting a rule 42 analysis. We therefore reverse the trial court=s order and remand this cause for further proceedings consistent with this opinion and the supreme court=s opinion. See id. at 232-34.
Because this issue is dispositive, we need not address MMC=s remaining issues. See Tex. R. App. P. 47.1.
LINDA REYNA YA EZ
Do not publish. Tex. R. App. P. 47.3.
Opinion delivered and filed this the
8th day of August, 2002.