      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00138-CV



                       Rainbow Group, Ltd. and Alan Sager, Appellants

                                                  v.

       Bonnie Wagoner, Morgana Morgan, Debbie Berry, and Debbie Barr Villegas,
            on Behalf of Themselves and Others Similarly Situated, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
      NO. GN9202221-A, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                                           OPINION


                This accelerated appeal arises from a set of orders entered by the trial court relating

to the certification of a class of hairstylists represented by Bonnie Wagoner, Morgana Morgan,

Debbie Berry, and Debbie Barr Villegas, appellees, against their former employer, Supercuts, which

is owned by Rainbow Group, Ltd. and Alan Sager, appellants.1 Specifically, Rainbow Group appeals

a November 23, 2005 order denying its motion to decertify the class and a December 19, 2005 order

granting the hairstylists’ motion to amend the class certification. Because the November 23 order

is not properly subject to an interlocutory appeal and because Rainbow Group failed to timely file

a notice of appeal in relation to the December 19 order, we are compelled to dismiss this appeal for

want of jurisdiction. See Tex. R. App. P. 26.1(b).




       1
           We will refer to appellants collectively as “Rainbow Group.”
                                 PROCEDURAL BACKGROUND

                The instant appeal is the latest progression in nearly fifteen years of litigation between

the hairstylists and Rainbow Group, which began with the hairstylists’ complaint that Rainbow

Group committed breach of contract by refusing to pay them when they were at work but “off the

clock,” i.e., not performing haircuts.

                In 1993, the plaintiffs sought and obtained certification of a class of hairstylists

formerly employed by Rainbow Group to pursue the breach of contract claim for “off the clock”

compensation. Following a removal to federal court and a remand to state court, Rainbow Group

appealed the certification order. This Court affirmed the original certification, holding that the

trial court did not abuse its discretion in determining that the breach of contract claims could be

litigated on a classwide basis. Rainbow Group, Ltd. v. Johnson, 990 S.W.2d 351, 356, 361

(Tex. App.—Austin 1999, pet. dism’d w.o.j.) (Rainbow Group I). This opinion, however, predated

Southwest Refining Co. v. Bernal, 22 S.W.3d 425 (Tex. 2000), and later cases mandating a rigorous

analysis of class certification before a class is certified.2


        2
           The original certification order stated only that, having considered the record, evidence,
and arguments before it, the trial court found the requirements of Texas Rule of Civil Procedure 42
were satisfied. Bernal now requires that a trial court perform a “rigorous analysis” before certifying
a class to determine whether all prerequisites to certification have been satisfied. Southwest Ref. Co.
v. Bernal, 22 S.W.3d 425, 435 (Tex. 2000). One aspect of this change in the law is that
the requirement that the classwide claims “predominate” over individual claims must be rigorously
analyzed by the court at the outset of the litigation. The predominance requirement
must be considered first because it “is one of the most stringent prerequisites to class certification.”
Id. at 433. “The predominance requirement is intended to prevent class action litigation when the
sheer complexity and diversity of the individual issues would overwhelm or confuse a jury or
severely compromise a party’s ability to present viable claims or defenses.” Ford Motor Co. v.
Sheldon, 113 S.W.3d 839, 846 (Tex. App.—Austin 2003, no pet.) (quoting Henry Schein, Inc. v.
Stromboe, 102 S.W.3d 675, 690 (Tex. 2002)). “A lawsuit may be certified for class litigation only

                                                    2
               On remand from Rainbow Group I, the trial court ordered that the trial proceedings

would be bifurcated to first consider the “liability issues common to the class, if any, and the

individual liability issues and the damages if any of those class members who testify live or by

deposition,” while the “individual liability issues, if any, and the amount of damages, if any, suffered

by the non-testifying class members and the amount of attorneys’ fees and costs, if any, to which

Plaintiffs may be entitled, will be determined in a subsequent proceeding or proceedings.” The

plaintiffs then filed a second amended petition, which added quantum meruit as an alternative theory

of recovery. The original class certification order, however, was not amended to add quantum meruit

as a claim certified for classwide adjudication following the filing of the second amended petition.

               Following a bench trial in May 2000, the trial court issued a judgment awarding

only individual damages on the basis of quantum merit to thirteen hairstylists (which included the

four named class representative plaintiffs and nine class members) who appeared and testified at the

trial.3 Although the judgment is silent regarding the breach of contract claims, the parties do not

dispute that these thirteen hairstylists did not prevail on their breach of contract claims.4 The




if it is clear that all elements of plaintiffs’ proposed claims can be tried to a single jury (by both
plaintiffs and defendants) using evidence and arguments equally applicable to every class member.”
Id. at 850 (emphasis added) (citing Bernal, 22 S.W.3d at 435-36). If it is not determinable from the
outset that the individual issues can be considered in a manageable, time-efficient, yet fair manner,
then certification is not appropriate. Bernal, 22 S.W.3d at 436.
        3
         The question of whether individual members of the class who are not joined as plaintiffs
can have their claims separately adjudicated simply because they appear and testify is not before us.
       4
          After Rainbow Group paid the thirteen hairstylists’ individual quantum meruit damages,
the thirteen hairstylists signed releases of the judgment liens.

                                                   3
judgment also recites that “the claims of the remaining class members” were severed and assigned

a new cause number.5

               Rainbow Group appealed the damages award, and the thirteen hairstylists cross-

appealed the denial of their breach of contract claims and the amount of post-judgment interest. See

Rainbow Group, Ltd. v. Johnson, No. 03-00-00559-CV, 2002 Tex. App. LEXIS 6359, at *1

(Tex. App.—Austin Aug. 30, 2002, pet. denied) (Rainbow Group II). In that opinion, this Court

discussed the parties’ dispute as to whether—in light of the second amended petition adding

quantum merit as a claim for relief in the absence of an amendment to the class certification

order—the quantum merit claim could be pursued on a classwide basis. Id. at *5-7. Under the

circumstances presented, this Court “failed to see the significance” of the dispute because the trial

court had not adjudicated any quantum meruit claims on behalf of the class. Id. at *6-7. Rather, the

quantum meruit claims of the thirteen testifying hairstylists had been adjudicated on only an

individual basis. Id. at *7. Accordingly, this Court did “not decide any issues relating to the alleged

quantum meruit class.” Id. (emphasis added).6 Ultimately, this Court reformed the judgment to



       5
         Rainbow Group asserts that it has “challenged that severance in the trial court,” but such
a challenge is not before us in the current appeal.
       6
          We note that in the trial court’s December 19, 2005 order (which is at issue in the current
appeal), in determining whether common issues prevail as to each of the three quantum meruit
elements, the court relies on Rainbow Group II for the proposition that this Court found the
hairstylists’ testimony sufficient to establish each element of quantum meruit and then states “the
Defendants offer no reason why Plaintiffs could not prove [these elements] in the same class-wide
manner.” (Emphasis added). No one disputes, however, that no class claims were adjudicated in
the bench trial that was the subject of Rainbow Group II. See 2002 Tex. App. LEXIS 6359, at *7.
What this Court affirmed in Rainbow Group II was the sufficiency of the individual testimony of
thirteen hairstylists to support the recovery of individual damages on quantum meruit—the testimony
did not establish, and this Court did not affirm, any classwide relief. Id.

                                                  4
include post-judgment interest, reversed and remanded as to attorneys’ fees, and otherwise affirmed

the damages award. Id. at *1-2, *39.

               One month after the issuance of Rainbow Group II, in the severed cause, the

remaining members of the original class filed a “motion to certify quantum meruit claim as a class

action.”7 The motion recognized that the 1993 certification was based on a suit “filed as a breach

of contract action” and that the certification had never been amended to include a quantum meruit

theory of recovery as alleged in the second amended petition.

               Before the motion to certify was heard or ruled on, the hairstylists filed a third

amended petition abandoning the breach of contract claims and asserting quantum meruit as the only

basis for recovery.8 Thus, at this point, the only claim for which a class had been certified was

effectively nonsuited, and the only remaining claim in the lawsuit had yet to have a class certified

or to undergo the “rigorous analysis” required for class certification. See Bernal, 22 S.W.3d at 435.

The third amended petition claimed that “Plaintiffs sue on behalf of themselves and a class defined




       7
          The attorneys for the class also sought to have new class representatives named because
the claims of the original class representatives had been adjudicated on an individual basis in the
bench trial.
       8
          This amended pleading had the legal effect of nonsuiting the claims for breach of contract.
J.M. Huber Corp. v. Santa Fe Energy Res., 871 S.W.2d 842, 844 (Tex. App.—Houston [14th Dist.]
1994, writ denied) (“amended petition also supersedes all prior petitions and operates to dismiss
parties and causes of action to the extent they are omitted from the amended pleading”) (emphasis
added); see also Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972) (amended petition omitting
defendant “operated as a voluntary dismissal as to that party”).

                                                 5
as: All Supercuts hairstylists employed at any time between February 21, 1988 and July 16, 1993 at

a ‘Supercuts’ store operated by Rainbow Group and Alan Sager.”9

               In response, Rainbow Group filed both an opposition to the motion to certify a

quantum meruit class and an answer to the third amended petition, which included a plea to the

jurisdiction. Rainbow Group argued that the trial court did not retain jurisdiction over the “severed”

cause because it was an “empty case”—Rainbow Group asserted that the only claim certified for

class treatment was breach of contract and, because this claim was no longer part of the lawsuit,10

no justiciable cause survived on behalf of the class. Rainbow Group also argued that, under Bernal,

a class action was not the appropriate device for adjudicating the quantum meruit claims and asserted

various affirmative defenses.

               After conducting a hearing, the trial court granted Rainbow Group’s plea to the

jurisdiction without ruling on the hairstylists’ motion to certify. The hairstylists appealed, and

this Court reversed, holding that the bench trial had adjudicated only the individual claims of the

thirteen hairstylists (four named plaintiffs and nine class members) who had appeared and testified.

Because no “class claims” had been adjudicated, the trial court retained jurisdiction over the severed

cause. Wagoner v. Rainbow Group, No. 03-03-00478-CV, 2004 Tex. App. LEXIS 6821, at *13-16



       9
           We note that no court had certified this class; the original, certified class was “All
hairstylists employed by Defendants Rainbow Group Ltd. and Alan Sager at anytime between
February 21, 1988 and the present.”
       10
          Rainbow Group argued that the contract claims had been adjudicated adversely to the class
in the bench trial. However, the trial court expressly severed all classwide claims and adjudicated
only individual claims in the bench trial. Nonetheless, the breach of contract claims on behalf of the
class were effectively nonsuited by the filing of the third amended petition and were no longer part
of the lawsuit.

                                                  6
(Tex. App.—Austin July 29, 2004, pet. denied) (Rainbow Group III).11 As a result, we remanded

the severed cause for further proceedings on the remaining, non-testifying hairstylists’ claims. Id.

                On remand, Rainbow Group filed a “supplemental opposition” to the motion to certify

asking the trial court to rule on that motion, which had yet to be decided given the court’s previous

grant of the plea to the jurisdiction. The trial court declined to rule on that motion, and the case was

reassigned to the central docket. The hairstylists then filed a motion to amend the original class

certification order (1) to permit the remaining members of the original class to pursue their quantum

meruit claims as a Rule 42(b)(4) class action, and (2) to designate Wagoner, Morgan, Berry, and

Villegas as the new class representatives.

                Rainbow Group again requested a ruling on the original motion to certify, arguing that

it was unfair to allow the plaintiffs to file and have heard a duplicative motion when the first one was

still pending. The hairstylists responded that it would be unfair to force the decision to be made on




        11
           Given the current procedural posture of this litigation, it is necessary to further explain our
statements in Rainbow Group III that the “class quantum meruit claims of the non-testifying
hairstylists were not adjudicated . . . but rather were severed” and that, “[b]ecause . . . no final
judgment has been entered on the hairstylists’ class claims, the class certification order may still be
amended.” Id. at *15-16. This language should not be read as expressing the view that a quantum
meruit class had been certified. Our holding should be understood as recognizing that, following the
bench trial, the request in plaintiffs’ pleadings for class certification of the quantum meruit claims
survived for the trial court to consider in the severed cause. At the time of the court’s judgment, the
breach of contract claims for which a class had been certified had not been abandoned. Thus, there
existed a certified class, which could have possibly been amended to include additional claims
should class treatment be warranted. Because the trial court had ruled only on the plea to the
jurisdiction and not the motion to certify, in Rainbow Group III we noted that the issue of whether
a class action was the appropriate method to adjudicate quantum meruit claims was not before this
Court. Id. at *9 n.3. Also, Rainbow Group’s arguments were considered only in light of their claim
that the trial court had denied class relief on the breach of contract claim without considering the
effect of the abandonment of that claim in the third amended petition.

                                                    7
a record that was two years old. The court denied Rainbow Group’s request, and the case remained

on the central docket with the hairstylists’ motion to amend the class certification pending.

               Rainbow Group then filed a motion to decertify the class arguing, in part, that because

the class had only been certified to pursue breach of contract claims, “the class was effectively

decertified when Plaintiffs filed their Third Amended Petition non-suiting their claim for breach of

contract.” Rainbow Group asked that an order be entered reflecting this decertification and argued

that any pleadings asserting a quantum meruit claim on behalf of the remaining hairstylists should

be struck because this claim was barred by limitations.

               On November 8, 2005, the trial court conducted a hearing on Rainbow Group’s

motion to decertify and the hairstylists’ motion to amend the certification. On November 23, the trial

court issued both an order denying Rainbow Group’s motion to decertify the class and a letter

informing the parties that the court would grant the hairstylists’ motion to amend the class

certification and directing their counsel to prepare a draft order. On December 19, the trial court

issued its order granting the motion to amend the class certification. Rainbow Group has sought

review of both orders. In response, the hairstylists have filed a motion to dismiss urging that this

Court lacks jurisdiction over the appeal.


                                            ANALYSIS

               Orders certifying or refusing to certify a class are subject to interlocutory appeal.

Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(3) (West Supp. 2006). Appeals from interlocutory

orders are accelerated. Tex. R. App. P. 28.1. A notice of appeal must state the date of the order from

which appeal is sought. Id. 25.1(d)(2). Rule 26.1 requires that, “in an accelerated appeal, the notice

                                                  8
of appeal must be filed within twenty days after the judgment or order is signed.” Id. 26.1.12 This

deadline may be extended by fifteen days if the appellant files a motion reasonably explaining the

need for an extension. Id. 26.3; see also id. 10.5(b)(2).

                 The order denying Rainbow Group’s motion to decertify the class was signed on

November 23, 2005, and the order granting the hairstylists’ motion to amend the prior class

certification was signed on December 19, 2005. Rainbow Group filed a notice of appeal on

December 27, 2005, stating that it was appealing “from the Order signed on November 23, 2005,

denying Defendant’s Motion to Decertify Class.” Rainbow Group then filed an amended notice of

appeal on January 25, 2006, stating that its December 27 notice “incorrectly referenced only the

November 23, 2005 Order. Defendants hereby amend that notice to appeal the Order signed on

December 19, 2005.” On the same day, January 25, Rainbow Group also filed a second notice of

appeal, stating that it was “appealing the Order signed on December 19, certifying this case as a class

action.” We consider whether our appellate jurisdiction was invoked, first in relation to the

November 23 order, and second in relation to the December 19 order.


November 23 order

                 We lack jurisdiction over an interlocutory appeal of the November 23 order because

an order denying a motion to decertify a class is not within the scope of the statute authorizing

interlocutory appeals. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(3) (allowing interlocutory

appeal of order that certifies or refuses to certify a class action); Bally Total Fitness Corp. v. Jackson,




        12
             All references to “Rules” in this opinion refer to Texas Rules of Appellate Procedure.

                                                    9
53 S.W.3d 352, 358 (Tex. 2001) (order refusing to decertify class is not encompassed by section

51.014(a)(3)). Thus, the November 23 order denying Rainbow Group’s motion to decertify the class

is not appealable on an interlocutory basis.


December 19 order

               Rainbow Group contends that its amended notice of appeal and its second notice of

appeal, both filed January 25, 2006, perfected an appeal of the December 19 order. We disagree.

Although both of these notices express Rainbow Group’s intent to appeal the December 19 order,

neither of these notices was timely filed. The deadline for appealing the December 19 order was

January 9—the first business day following twenty days from the date the order was signed. See

Tex. R. App. P. 4.1, 26.1. This deadline may be extended if a motion for extension together with

a notice of appeal is filed within fifteen days of the deadline. Id. 10.5, 26.3. Rainbow Group did not

file a motion for extension. Even had Rainbow Group been granted a 15-day extension, the latest

date on which a notice of appeal for the December 19 order could have been timely filed was January

24, 2006. Rainbow Group did not file its amended and second notices of appeal until January 25,

2006. Thus, Rainbow Group did not file a notice of appeal of the December 19 order within the

deadline to invoke our appellate jurisdiction of that order. See id. 26.1, 26.3.

               Rainbow Group argues that its January 25 amended notice relates back to its

December 27 notice, thereby timely perfecting appeal of the December 19 order. However, Rule

25.1(f) does not permit an amendment to add an entirely different order from which the appeal is

taken. See id. 25.1(f).




                                                 10
               Rule 25.1(f) permits an amended notice of appeal to “correct[] a defect or omission

in an earlier filed notice.” Id. (emphasis added). This allows for amendments to correct mistakes

or accidents, such as inadvertently omitting one of the statements required by Rule 25.1(d), see

Lefton v. Griffith, 136 S.W.3d 271, 274 n.1 (Tex. App.—San Antonio 2004, no pet.), or correcting

a typographical error, see City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992)

(comparing notices of appeal in two different cases, court contrasted one notice’s typographical error

in cause number of isolated case, which was amendable defect, with another notice’s citation of

wrong cause number in case that had multiple cause numbers involving same parties, which was not

amendable because mistake created confusion as to which judgment party sought to appeal).

               Rule 25.1(f) does not, however, allow an appellant to alter its notice of appeal

from appealing one interlocutory order to appealing an entirely separate interlocutory order. See

Tex. R. App. P. 25.1(f); see also id. 2 (appellate court has power to suspend operation of rule of

appellate procedure, but not in manner that would “alter the time for perfecting an appeal in a civil

case”). We are guided by the analysis of a similar case from our sister court. See Thomas v. Thomas,

No. 14-02-01286-CV, 2003 Tex. App. LEXIS 2180 (Tex. App.—Houston [14th Dist.] Mar. 13,

2003, no pet.). In Thomas, the appellant filed a notice of appeal in November 2002, specifically

stating that she was appealing a July 18, 2002 order. She later asked the court to let her “appeal[]

an order signed October 30, 2002, rather than the July 18, 2002, order specified in her notice of

appeal.” Id. at *2. The court held that this was an ineffective notice and did not allow amendment

under Rule 25.1(f) because




                                                 11
       the notice of appeal filed in this case contains neither a defect nor an omission.
       Appellant specified the order she intended to appeal, however. . . . Appellant now
       asks that we ignore the specific language in her notice of appeal indicating she is
       appealing the July 18th order, and instead, asks that we allow her to appeal a
       completely different order, signed on October 30, 2002, not mentioned in the notice
       of appeal. If the two orders were not separately appealable, appellant could amend
       a notice of appeal. . . . [T]here is no defect or omission in the notice of appeal to be
       amended. No notice of appeal was filed by appellant specifying the intent to appeal
       the October 30th order.


Id. at *3-4. Similarly, Rainbow Group’s December 27 notice of appeal expressly specified an intent

to appeal the November 23 order, giving not just the date of the order but also listing the title of the

motion that was denied by the order. Further, the December 27 notice contained nothing relevant

to the December 19 order or the relief granted by that order, which ruled on a separate motion and

was separately appealable from the November 23 order. Just as the court concluded in Thomas, we

cannot ignore the specific language in Rainbow Group’s initial notice of appeal indicating that it was

appealing the November 23 order and instead allow it, by amendment, to appeal a completely

separate order entered on December 19. See id.

               Accordingly, Rainbow Group cannot now transform its December 27 notice of appeal

(of the November 23 order) into a timely notice of appeal of the December 19 order because this is

not the type of amendment that Rule 25.1(f) was designed to accomplish. See Tex. R. App. P.

25.1(f); see also Crofton v. Amoco Chem. Co., No. 01-01-00526-CV, 2003 Tex. App. LEXIS 4825,

at *9-10 (Tex. App.—Houston [1st Dist.] May 30, 2003, pet. denied) (appellant not permitted

to amend notice of appeal after deadline passed to add another party to appeal because omission

was not mere “clerical defect” contemplated by Rule 25.1(f)); Garcia v. Rodriguez,

No. 08-02-00379-CV, 2003 Tex. App. LEXIS 4225, *4, *6 (Tex. App.—El Paso May 15, 2003,

                                                  12
no pet.) (amendment permitted where appellants erroneously cited date of trial rather than date

judgment signed; noting that this defect was not type that would cause confusion on appeal as to

which order was being challenged on appeal).

                Rainbow Group also argues that its appellate deadline was extended by filing a

request for findings of fact and conclusions of law on January 9. However, the supreme court has

unequivocally held that postjudgment motions do not extend the appellate deadline for filing an

accelerated appeal. In re K.A.F., 160 S.W.3d 923, 924 (Tex. 2005). Specifically, the court held


        that in an accelerated appeal, absent a rule 26.3 [15-day extension] motion, the
        deadline for filing a notice of appeal is strictly set at twenty days after the judgment
        is signed, with no exceptions, and filing a rule 26.1(a) motion for new trial, motion
        to modify the judgment, motion to reinstate, or request for findings of fact and
        conclusions of law will not extend that deadline. Allowing such post-order motions
        to automatically delay the appellate deadline is simply inconsistent with the idea of
        accelerating the appeal in the first place.


Id. at 927 (emphasis added). Because the supreme court expressly included all postjudgment

motions in its holding, we are not persuaded by Rainbow Group’s attempt to distinguish In re K.A.F.

on the basis that it involved a motion to modify and motion for new trial rather than a request for

findings and conclusions. See id.

                Finally, Rainbow Group argues that we should apply the rules liberally to compensate

for the unfair confusion created by the trial court’s procedures—namely, that on November 23, in

addition to signing the order denying the motion to decertify, the trial court also sent a letter directing

the plaintiffs’ counsel to draft an order granting the motion to amend (which was subsequently

signed on December 19). Rainbow Group claims that its appeal should not be dismissed because



                                                    13
it made a bona fide attempt to timely appeal the December 19 order, but was confused as a result of

the trial court’s letter. See generally Grand Prairie Indep. Sch. Dist. v. Southern Parts Imps., Inc.,

813 S.W.2d 499, 500 (Tex. 1991) (amendment permissible to correct defect if appellant timely filed

document in bona fide attempt to invoke appellate jurisdiction). Whatever impressions Rainbow

Group drew from the trial court’s letter, however, Rainbow Group had both of the trial court’s orders

in hand at the time it filed its initial notice of appeal on December 27, and that notice of appeal

referenced only the November 23 order. Considering these circumstances and the prohibition in

Rule 2 against suspending appellate rules to permit an alteration of the time for perfecting civil

appeals, we are unable to accord Rainbow Group’s requested leeway. See Tex. R. App. P. 2.13




       13
           In addition to arguing that the December 19 order was not timely appealed, the hairstylists
contend that, like the November 23 order, the December 19 order purporting to amend the class
certification is not within the scope of the interlocutory appeals statute because it neither certifies
nor refuses to certify a class. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(3) (West Supp.
2006). Although we do not reach this alternative argument because the timeliness issue is
dispositive of our jurisdiction over the December 19 order, we note that when this “amendment” was
made to the class certification, there was no certified class to amend. The previously certified class
for the breach of contract claims had ceased to exist when the breach of contract claims were
nonsuited. See Summit Office Park, Inc. v. United States Steel Corp., 639 F.2d 1278, 1281, 1284-85
(5th Cir. 1981) (affirming district court’s refusal to permit amended pleading where “the cause of
action and original named plaintiff had been dismissed and [] no named plaintiff or certified class
member remained with any further stake in the outcome of the litigation” because “[a] pleading
which abandons the original plaintiff and class and asserts new claims upon which the original
plaintiff and class could not recover has the characteristics of a new lawsuit rather than an amended
complaint”). We express no opinion as to whether the December 19 order can be characterized as
“certifying or refusing to certify” a class for the purposes of section 51.014 when it purports to
amend a nonexistent class and relies on features of the nonexistent class to support the analysis
required by Bernal and its progeny.

                                                  14
                                        CONCLUSION

               Because the November 23 order denying Rainbow Group’s motion to decertify

the class is not subject to an interlocutory appeal and because Rainbow Group failed

to timely appeal the December 19 order, we grant the hairstylists’ motion and dismiss this appeal

for want of jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(3); Tex. R. App. P.

26.1(b), 26.3, 42.3(a).




                                            W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Puryear

Dismissed for Want of Jurisdiction

Filed: March 1, 2007




                                               15
