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Click here for the full text of this decision FACTS:North American Mortgage Co. made a mortgage loan to Donald Lee O’Hara Jr. and Cheryl O’Hara and charged them $125 for preparing the documents, as it normally did its mortgage loan customers. The O’Haras, on behalf of themselves and all others similarly situated, sued North American, alleging that the charge violated 83.001 of the Texas Government Code, which prohibits the unauthorized practice of law. After a hearing, the trial court certified a class of North American’s mortgage loan customers over a certain time period who were charged the same fee. North American appealed, arguing that several requirements of Rule 42 of the Texas Rules of Civil Procedure regarding class certification had not been met, namely, commonality, typicality, predominance, superiority, and adequacy of representation. The court of appeals rejected all but the last argument, finding that class representatives could not adequately represent both groups at once. The court of appeals ordered the trial court to certify a class and prepare a trial plan. HOLDING:Reverse in part and remanded to the trial court. The court of appeals did not cite the Texas Supreme Court’s opinion in Southwestern Refining Co. v. Bernal, which had issued several weeks earlier, according to the Supreme Court’s opinion. On remand, North American argued that Bernal required the trial court to prepare a trial plan, even though the court of appeals had not included that requirement in its opinion, and the trial court apparently agreed. The O’Haras asked the court to recertify the same class excluding those borrowers whose deeds of trust do not provide for non-judicial foreclosure, but the court refused to certify any class. Because the trial court did not certify a class, it did not prepare a trial plan. “Bernal clearly holds that a trial plan is part of the rigorous analysis”[c]ourts must perform . . . before ruling on class certification.’ The court of appeals’ judgment ordering certification before any trial plan has been developed directly conflicts with Bernal,” the Supreme Court writes. “On remand, the trial court should reconsider the class action requirements in light of the court of appeals’ opinion and, consistent with that court’s rulings, conduct such further proceedings as may be necessary to determine whether and how class claims can be tried in light of that opinion.” OPINION:Per curiam.

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