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Civil Litigation No. 05-02-00105-CV, 7/22/2003. Click here for the full text of this decision FACTS:The trial court granted summary judgment in favor of the appellees (collectively “Lincoln”) on alleged violations by Lincoln of the Telephone Consumer Protection Act. The appellants (collectively “Kondos”) contend the trial court erred by granting summary judgment in favor of Lincoln. HOLDINGReversed, vacated and remanded. The court fails to see how the parties’ efforts will be spent predominantly on the issues the trial court defined as common among the class. For the most part, these issues are questions of law. Although some of them may be legally complex, the amount of the parties’ efforts necessary to brief and argue these issues to the trial court does not appear to be extensive. Based on the requirement that each plaintiff must prove no express invitation or permission to establish a violation of the TCPA, Forman v. Data Transfer Inc.,164 F.R.D. 400 (E.D. Pa. 1995), held that the individual issues of express invitation or permission predominated over common issues; thus, the court denied certifying a class alleging violations of the TCPA. The Formancourt explained that “[p]laintiff’s proposed ‘common’ questions[, including whether or not express invitation or permission was given,] are inherently individualized, requiring inquiry into the particular circumstances of each transmission.” The court further explained that the “gravamen of [a] plaintiff’s complaint is not a common course of conduct by [a] defendant, but rather a series of individual transmissions under individual circumstances.” Although Formanis not controlling authority, Texas Rule of Civil Procedure 42 is patterned after Federal Rule of Civil Procedure 23; thus, federal decisions and authorities interpreting current federal class-action requirements provide persuasive authority. The court agrees with the conclusion in Forman that the issue of permission will be the object of most litigants’ efforts and, thus, the individual, and not common, issues predominate in this case. In reaching the same conclusion as Forman, the court assumes � favorably to Kondos and in accord with Forman� that express permission is required to send a fax advertisement without violating the TCPA and that implied permission is not relevant under the TCPA. However, the court need not reach this issue and does not express any opinion that this proposition is correct. Because the trial court incorrectly concluded that “questions of law or fact common to the class would predominate over questions affecting only individual members,” Texas Rule of Civil Proceduree 42(b)(4), the court concludes the trial court abused its discretion by certifying a class without performing a “rigorous analysis” on whether all prerequisites to certification have been met. The trial court made two rulings on the merits of the case before giving notice to the class. The requirements for class notice set forth in rule 42(c)(2) and (3) make clear that notice is to be given to the class prior to a determination on the merits. Although the majority in Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352 (Tex. 2001) (Owen, J. dissenting), held the issue was premature for determination on interlocutory appeal, the analysis and cases set forth in the dissent make clear that rule 42 also envisions that notice will be given to the class, and class members given an opportunity to opt-out, before the trial court addresses the merits of the class claims. Failing to do so results in the court not giving the class members the notice required by rule 42(c)(2) and envisioned by rule 42(c)(3). The court concludes the plaintiffs should be allowed to decide whether to attempt to re-certify a class on remand or to pursue their claims individually. The court will not presume plaintiffs would have proceeded in the same manner with the summary judgment motion had the trial court not certified the class. The court concludes the entire case should be remanded for further proceedings. OPINION:Moseley, J.; Moseley, Bridges and Lang, JJ.

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