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No. 05-01-01228-CV, 7/22/2003. Click here for the full text of this decision FACTS:This case is an interlocutory appeal of an order granting class certification. Texas Civil Practice and Remedies Code �51.014(a)(3). However, while the interlocutory appeal was pending and despite the express statutory provision that such an appeal “shall have the effect of staying the commencement of a trial in the trial court pending resolution of the appeal,” �51.014(b), the parties filed and scheduled a hearing on, and the trial court heard and decided, motions for summary judgment on the underlying case. The trial court subsequently entered a final judgment disposing of the underlying case on the merits, based on the summary judgments. The appellees (collectively “Kondos”) filed suit alleging appellants (collectively “Lincoln”) violated the Telephone Consumer Protection Act and requested that the suit be certified as a class action. The court granted class certification. As permitted by the statute, Lincoln appealed the trial court’s class certification order, asserting the court abused its discretion by granting appellees’ motion for class certification. The appeal was handled on an accelerated basis and set for oral argument as requested by the parties. However, before the case was argued on appeal, the parties moved for summary judgment before the trial court. Further, and despite the automatic staying effect of the interlocutory appeal, the trial court proceeded to hear and decide the motions for summary judgment, and granted summary judgment for Lincoln. After all non-TCPA claims had either been severed or nonsuited, the trial court signed a final judgment. In a separate appeal, Kondos complains the trial court erred by granting summary judgment in favor of Lincoln HOLDINGDismissed as moot. A summary judgment hearing is considered a “trial” within the meaning of Texas Rule of Civil Procedure 63, which provides that amended pleadings offered within seven days of the date of trial shall be filed only after obtaining leave of the court. The court considers it almost axiomatic that conducting a summary judgment hearing, and/or entering a final judgment based in whole or part on an order granting a motion for summary judgment, is a “trial” within the meaning of �51.014(b) and is thus subject to the automatic stay that arises from filing a notice of appeal of an order certifying or refusing to certify a class of litigants. The principles underpinning the legislative intent expressed in connection with ��51.014(a)(3) and 51.014(b) apply equally to traditional trials and summary judgments alike. Further, the opposite conclusion would mean a trial court could decide a summary judgment motion, and perhaps enter a final judgment based on that determination, before the judicial system determines the identity of the parties who are to be bound by the result of that litigation. This would permit, if not require, the parties and the court to expend the very “lawyer effort, client money, and judicial time” the legislature sought to conserve by enacting �51.014(b). Even if the merits of the case are subject to speedy resolution through the summary judgment process, thus “saving” judicial resources, such savings may well prove chimerical as the courts have to wrestle with the res judicata effects of the trial court’s ruling on the merits. Such an expenditure of judicial resources may be necessary regardless of the trial court’s rulings on the class issue or the merits. This court has the power to order a trial court to stay commencement of a trial or a summary judgment hearing. Here, neither party requested a stay from this court. Moreover, the parties sought to commence the “trial” below by filing and/or arguing motions for summary judgment while this appeal was pending. Courts are limited by the mootness doctrine to deciding only cases in which an actual controversy exists. Any interlocutory class certification orders merge into the final judgment in this case. Absent a motion for new trial, a trial court loses its plenary power to reconsider its final judgment, including any interlocutory certification orders merged into the final judgment, 30 days after the final judgment is signed. If a motion for new trial is filed, the trial court loses its plenary power 30 days after the date the motion for new trial is denied either by a signed order or by operation of law. Thus, for some time now the trial court has had no plenary power to reconsider its final “interlocutory” judgment and its interlocutory class certification order. And the trial court will not regain plenary jurisdiction over the case unless the other appeal of this case (i.e., the appeal of the final judgment) results in a remand to the trial court. By rendering a final judgment during this appeal, the trial court also rendered itself powerless to reconsider its class certification ruling were the court to conclude here the ruling was entered in error. As a result, any decision made in this appeal would not affect the rights of the parties. Further if the conclusion were the opposite � that the trial court properly certified the class � then the rights of the parties would nevertheless be subject to the disposition of the appeal concerning the final judgment. The court declines to decide the issues piecemeal through two appeals involving the same case. The court concludes that, by rendering a final judgment, the trial court rendered the interlocutory appeal of the class certification order moot. OPINION:Moseley, J.; Moseley, Bridges and Lagarde, JJ.

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