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Click here for the full text of this decision FACTS:Fidelity and Guaranty Life Insurance Co. (F&G) sold investment annuities to teachers at the Edcouch-Elsa Independent School District, among others. The annuities � called “Maximus” annuities � were specially intended as a retirement supplement for public school employees. F&G had an arrangement with R. W. Durham & Co. to provide the Maximus annuities. Because R. W. Durham had a high commission schedule, the annuities were designed with a high profit margin. The Maximus annuity was front-loaded to provide a high interest rate during the first year, in order to attract customers. After that, the money was considered “old money,” and would be subject to lower interest rates for following years. The annuity was advertised as having a current interest on “new money” at 7.5 percent, though acknowledged that “a different rate may be credited after the first twelve months.” After a first-year average of 7.25 percent, the average interest rate after that was between 3.5 percent and 4 percent. Three teachers in the Edcouch-Elsa ISD filed a class action on behalf of themselves and other teachers who bought the Maximus annuities in Texas, California, Connecticut, New Jersey and Oklahoma. The three were the named plaintiffs, and they alleged that causes of action against F&G under the Deceptive Trade Practices Act, the Texas Insurance Code and common-law fraud and misrepresentation. Judge Leticia Hinojosa conducted a two-day hearing on the class certification issue and ordered that the class be certified with respect to the claims arising under the consumer protection statutes and insurance codes of Texas, California, Connecticut, New Jersey and Oklahoma. The judge did not allow the certification of the common-law claims. Three weeks after her order, but before she had made any further orders, Hinojosa resigned from the bench. The case was transferred to Judge Noe Gonzalez, who indicated he would review the paper record from the hearing. Following the trial plan, Gonzalez entered findings of fact and conclusions of law. F&G now appeals. It contends Gonzalez should not have entered findings of facts and conclusions of law based on Hinojosa’s findings, and should have conducted a rigorous analysis of the evidence himself. F&G further contends that the class was improperly certified. HOLDING:Reversed and remanded. With respect to Gonzalez’s entry of findings and conclusions without holding his own hearing, the court agrees that T.R.Civ.P. 18 allows successor judges to dispose of unresolved matters and enter various orders to long as the successor judge does not render judgment without hearing evidence. The court disagrees, however, with F&G’s application of the rule in this case, finding that Rule 18 works in conjunction with Civ. Prac. & Rem. Code �30.002, which allows successor judges of a deceased judge to enter findings of fact and conclusions of law for cases pending at the death of his predecessor. Though neither rule precisely covers this situation � where the previous judges has resigned � the court reaches the same result, as both the rule and the statute imply that so long as an order has been entered, successor judges may enter findings of fact and conclusions of law. The court adds that Gonzalez’s findings and conclusions did not expand or limit Hinojosa’s class certification order. Turning then to whether the class certification was proper, the court finds the primary disagreement is whether this consumer class meets the T.R.Civ.P. 42(b)(3) class-certification requirement of predominance of common issues. The court thus examines the issues common to this case. Under the DTPA a consumer must prove that he or she relied on the other party’s misleading or deceptive act. Reliance, the court observes, requires individualized determinations to see what was going on in a person’s mind that led him or her into making a particular decision. The court looks to Henry Schein, Inc. v. Stomboe, 102 S.W.3d 675 (Tex. 2002), for guidance. In that opinion, the Supreme Court “severely limited the ability of potential plaintiffs to form a class when the issue of reliance is of importance to the resolution of the class claim.” Under the Supreme Court’s standard, it is not enough to demonstrate that a seller wanted buyers to rely on its misrepresentations in choosing or staying with a particular product. Instead, there must be evidence that the buyers actually did rely on the misrepresentation in the same way throughout the class. In this case, the teachers all said that the high interest rate caught their eye or was an important part of their decision to buy the Maximus annuities, none of them noted that the high interest rate was the actual reason they made the purchase. None of them specifically stated that the actually relied on the interest rate to both remain constant and to apply to both new and old money. The court adds that all of the women’s decisions were highly personalized, and different among the three of them. There was no evidence, either, that there was any class-wide uniform reliance by other potential class members. “Indeed, it is difficult to imagine what could possibly qualify in this case as class-wide evidence of reliance on F&G’s misrepresentations. Furthermore, we question whether there is any way, given the individualized nature of reliance, that a Deceptive Trade Practices Act-based claim premised on misrepresentation could ever be certifiable as a class action under the rule enunciated in Henry Schein. Although Henry Scheinappears to hold open the possibility, there is yet to be a case that has reached the courts of appeals in Texas since the Henry Scheinopinion that has encountered a situation in which class-wide proof of reliance could be found. . . . We do not say that ‘no class can be certified in this case; that matter must be decided by the trial court in the first instance.’ . . . We limit our conclusion to holding only that appellees failed to show that individualized determinations of reliance would not predominate over common questions of law or fact.” OPINION:Rogelio Valdez, C.J.; Valdez and Justices Castillo and Garza, JJ.

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