



State Farm v. Lopez, et al.



NUMBER 13-99-814-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
____________________________________________________________________

STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY AND WENDY L. GRAMM,     Appellants,

v.

ALICIA LOPEZ, ADAN MUNOZ, JR., JUAN LLANES,
DIANA MORENO, AND ALBERT ALANIZ,    Appellees.
____________________________________________________________________

On appeal from the 332nd District Court of Hidalgo County, Texas.
____________________________________________________________________

OPINION ON MOTION FOR REHEARING
Before Justices Hinojosa, Rodriguez, and Chavez (1)
Opinion by Justice Hinojosa

Appellants have filed a motion for rehearing in which they contend that this Court should remand the class certification
order to the trial court for the creation of a trial plan.  In support of this contention, appellants cite Southwestern Refining
Co., Inc. v. Bernal, 22 S.W.3d 425, 435 (Tex. 2000)(holding that a rigorous analysis is required before a ruling on class
certification is made), and this Court's opinion in Nissan Motor Co., Ltd. v. Fry, 27 S.W.3d 573, 592 (Tex. App.--Corpus
Christi 2000, pet. denied)(remanding a class certification order to the trial court for formulation of a trial plan).
Appellants filed a supplemental brief after the supreme court issued Bernal, but they cited Bernal only to support their
argument that a trial court must look beyond the pleadings in order to see whether an actionable claim has been pleaded.
Appellants did not claim that Bernal required the trial court to formulate a trial plan.  We hold that appellants have waived
this issue.
Even if this issue was not waived, we do not read either Bernal or Nissan to require a trial plan in every class certification
order.  In Bernal, the supreme court held that:
[a] trial court's certification order must indicate how the claims will likely be tried so that conformance with Rule 42 may
be meaningfully evaluated. "Given the plaintiffs' burden, a court cannot rely on [mere] assurances of counsel that any
problems with predominance or superiority can be overcome.
Bernal, 22 S.W.3d at 435 (citations omitted).
Because Nissan involved different models of vehicles, different causes of action, and purchasers of both new and used
vehicles, this Court held that the trial court had erred in determining that common issues would predominate over
individual issues without a trial plan to formulate how the case would be tried.  Nissan, 27 S.W.3d at 592.  However, the
instant case is very different from Nissan.  In this case, the class members have the same policy language and the same set
of facts surrounding the alleged failure of appellants to pay a sufficient dividend.
Appellants raised three issues on appeal:  (1) the jurisdiction of the trial court to hear the case, (2) the typicality of the class
representatives, and (3) whether the class representatives could adequately represent the class.  Indeed, appellants did not
complain of the predominance of common issues or the superiority of the class action method.
We hold that a trial plan is not necessary in this case.  Appellants' motion for rehearing is overruled.


FEDERICO G. HINOJOSA
Justice



Publish.  Tex. R. App. P. 47.3.


Opinion on Motion for Rehearing
delivered and filed this
the 3rd day of May, 2001.
1. Retired Justice Melchor Chavez, assigned to this Court by the Chief Justice of the Texas Supreme Court pursuant to Tex.
Gov't Code Ann. § 74.003 (Vernon 1998).
