File: 000710 - From documents transmitted: 01/15/2002
IN THE SUPREME COURT OF TEXAS
............
No. 00-0710
............
McAllen Medical Center, Inc., Petitioner

v.
Ramiro Cortez, Jr., et al., Respondents

....................................................
On Petition for Review from the
Court of Appeals for the Thirteenth District of Texas
....................................................
Argued on March 21, 2001
Justice O'Neill delivered the opinion of the Court.
Plaintiff brought this putative class action against a doctor
and the hospital where he practiced, claiming that they had
misrepresented the hospital's cardiac surgeons' qualifications. When the
plaintiff settled with the doctor, the trial court certified a
“settlement-only” plaintiff class, preliminarily approved the
settlement, and scheduled a fairness hearing at which it would review
and finalize both the certification and the settlement. See Tex. R. Civ.
P. 42. The hospital attempted to appeal the trial court's order, but the
court of appeals dismissed the appeal. 17 S.W.3d 305. It held that the
hospital lacked standing to challenge the order and that the challenge
to both certification and settlement was premature pending the fairness
hearing's disposition. Id. at 309-10. We hold that the hospital's
certification challenge is ripe and that it has standing to appeal the
trial court's order. Accordingly, we reverse the court of appeals'
judgment dismissing the hospital's appeal and remand the case to that
court for further proceedings.
I. Background


Ramiro Cortez, Jr., filed this putative class action against
McAllen Medical Center (MMC) and Dr. Francisco Bracamontes, a cardiac
surgeon at MMC. Cortez alleges that Bracamontes and MMC misrepresented
to cardiac-surgery patients that all MMC cardiac surgeons were board
certified. He seeks economic damages from both MMC and Bracamontes, and
damages for mental anguish and intentional infliction of emotional
distress from Bracamontes. Two-and-one-half weeks after filing suit,
Cortez reached a tentative settlement with Bracamontes, and they jointly
moved for the trial court to certify a class for purposes of approving
the settlement. The proposed class consisted of everyone who had cardiac
surgery at MMC from December 1, 1993, to May 21, 1999. MMC
received less than one day's notice of the certification hearing. MMC
appeared at the hearing and asked the trial court to delay ruling on the
motion until MMC could evaluate it. The trial court questioned MMC's
standing to contest either the certification or the settlement, but gave
MMC three days to file objections. MMC's objections contended that it
had inadequate time to prepare for the hearing and that the proposed
class met none of the criteria for class certification under Texas Rule
of Civil Procedure 42. The trial court implicitly overruled MMC's
objections when it entered an order that (1) certified a class action
“for purposes of settlement with Defendant Bracamontes only,” (2)
preliminarily approved the settlement, (3) scheduled a fairness hearing

on the settlement, and (4) provided for class notice of the class action
and the proposed settlement.
The class notice is directed not just to Bracamontes's patients,
but to all patients who had cardiac surgery at MMC. The notice also
describes class claims against both Bracamontes and MMC. The order
recites that it will not prejudice any other defendant's right to
contest class certification with respect to claims against it, and
provides that the court will rescind the certification if it does not
approve the settlement after the fairness hearing. MMC filed an
interlocutory appeal, and the parties agreed to postpone the fairness
hearing pending the court of appeals' decision. The fairness hearing has
not yet occurred.
MMC claims that it is directly affected by, and therefore has
standing to contest, the Bracamontes class certification, class notice,
and settlement. But the court of appeals dismissed MMC's appeal, holding
that it did not have jurisdiction because MMC had shown no injury that
would give it standing to appeal. 17 S.W.3d at 305. The court did not
consider the class notice improper or harmful to MMC, and it did not
believe that MMC's potential complaints about the settlement gave MMC
standing to appeal the certification. Id. at 309-10. The court of
appeals further held that the appeal was premature pending the trial
court's disposition at the fairness hearing. Id. We granted review to
consider whether the court of appeals correctly decided that it lacked
jurisdiction. See Qwest Communications Corp. v. AT&T, 24 S.W.3d 334,
335-36 (Tex. 2000).

II. The Court of Appeals' Jurisdiction

A court of appeals' judgment in an appeal from an interlocutory
class-certification order is generally conclusive on the law and facts
and may not be appealed to this Court. See Tex. Gov't Code §
22.225(b)(3). Here, however, the court of appeals did not consider the
merits of MMC's challenge, but instead dismissed the appeal on
jurisdictional grounds. 17 S.W.3d at 310. When a court of appeals
determines that it lacks jurisdiction over an interlocutory appeal, this
Court has jurisdiction to review that decision. Qwest, 24 S.W.3d at
335-36. The parties do not dispute that the trial court's order
certifies a class action and is thus subject to interlocutory appeal.
See Tex. Civ. Prac. & Rem. Code § 51.014(a)(3) (allowing appeal from an
interlocutory order that certifies or refuses to certify a class
action). But the interlocutory appeal statute does not supplant the
constitutional requirement that the court of appeals have subject-matter
jurisdiction, and both ripeness and standing are necessary components of
that jurisdiction. Patterson v. Planned Parenthood of Houston &
Southeast Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998). Thus, we must
decide whether the trial court's order is ripe for review and whether
MMC has standing to challenge it.

A. Ripeness
Texas courts have no authority to render advisory opinions.
Patterson , 971 S.W.2d at 442- 43 . This prohibition encompasses cases
that are not yet ripe. Id. The ripeness doctrine avoids premature
adjudication on a hypothetical set of facts. Id. at 444. Cortez contends

that MMC's challenges to the class-certification order and the
settlement are not ripe. We address each of these arguments in turn.
1. The Class-Certification Order
This Court has not determined when an order certifying a
settlement-only class becomes ripe for appellate review. But we have
held that the trial court must conduct a complete review of Rule 42's
criteria before determining that a case may proceed as a class action.
Southwestern Ref. Co. v. Bernal, 22 S.W.3d 425, 435 (Tex. 2000). And we
have noted that settlement does not eliminate the need for a rigorous
inquiry into the class action's propriety. General Motors Corp. v.
Bloyed, 916 S.W.2d 949, 954 (Tex. 1996). Our focus here is when that
rigorous inquiry should occur so that it becomes ripe for appellate
review.
Cortez claims that, in this case, the class-action inquiry will
occur at the fairness hearing, and the trial court will then review Rule
42's numerosity, commonality, typicality, and adequacy-of-
representation criteria. Because no final determination has been made,
he reasons, appellate review of the trial court's order is premature.
But Cortez's argument echoes the “certify now and worry later” approach
that we have rejected. Bernal, 22 S.W.3d at 435. We require courts to
“perform a 'rigorous analysis' before ruling on class certification to
determine whether all prerequisites to certification have been met.” Id.
(emphasis added). We see no reason why settlement-only classes should
merit less rigorous treatment.
It is true that settlement-only classes present different

concerns than litigation classes. Thus, in deciding whether to certify a
settlement-only class, class-action criteria designed to protect absent
class members demand heightened scrutiny. See Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 620 (1997) See Footnote 1 ; Bloyed, 916 S.W.2d
at 954. These protections may lose effect if the trial court waits until
the fairness hearing to consider them.
For example, the trial court has a special responsibility to
protect absent class members from unwarranted or overbroad class
definitions. See Amchem, 521 U.S. at 620; Ford Motor Co. v. Sheldon, 22
S.W.3d 444, 453 (Tex. 2000) (“A properly defined class is essential to
the maintenance of a class action.”). Strict scrutiny of Rule 42's
criteria will likely inform and influence the trial court's class
definition. For instance, careful consideration of whether, or which,
common questions of law or fact will predominate over individual class
members' questions will influence the class's structure and, by
definition, the necessary class notice. If notice is sent to a broadly
defined settlement class without regard to these considerations, the
trial court's ability to later adjust the class at the fairness hearing
and still protect all class members' interests may be severely limited.
The trial court in this case “conditionally” certified an
“opt-out” class, and ordered notice sent to “[a]ll persons who underwent
cardiac surgery at [MMC] from December 1, 1993 until May 21, 1999.” The
opt-out deadline is five days before the scheduled fairness hearing.

Consequently, the class members must make their election before the
trial court determines at the fairness hearing whether the class was
properly defined in the first instance. And absent class members may be
confused if, after considering Rule 42's criteria, the trial court
redefines the class or determines that it cannot ultimately be
maintained. See Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345,
352- 53 (1983) (observing that class members may rely on pending class
action to protect their rights, and so forgo individual suits); Mars
Steel Corp. v. Continental Ill. Nat'l Bank & Trust Co., 834 F.2d 677,
681 (7th Cir. 1987) (noting that, by the time class members learn that
class certification has fallen through, their only option will be to
litigate their individual claims using increasingly stale evidence).
Rule 42's typicality and adequacy-of-representation criteria
similarly demand heightened scrutiny when a settlement occurs. These
criteria require the trial court to consider whether the asserted claims
are “typical” of the putative class, and whether the class
representative and its counsel will “fairly and adequately” protect the
class's interest. Tex. R. Civ. P. 42(a)(3), (a)(4). If the class
includes members with diverging or conflicting interests, a single class
representative's claims may not be typical, and a settlement that is
fair for the representative may be unfair for the class as a whole. See
Amchem, 521 U.S. at 625-28; Bloyed, 916 S.W.2d at 959. Even when the
class members share a broad area of common interest, a class-wide

settlement may benefit the defendant, the class representative, and
class counsel far more than it benefits unnamed class members whose
claims the settlement extinguishes. See, e.g., Kamilewicz v. Bank of
Boston Corp., 92 F.3d 506, 508-09 (7th Cir. 1996). And when a settlement
occurs, the potential for class representatives and counsel to ignore
differences among class members, or even collude with defendants at
absent class members' expense, mandates that the trial court rigorously
scrutinize Rule 42's typicality and adequacy-of-representation criteria.
See Ortiz v. Fibreboard Corp., 527 U.S. 815, 847 (1999) (requiring
heightened scrutiny because “[i]n settlement-only class actions the
procedural protections built into the Rule to protect the rights of
absent class members during litigation are never invoked in an
adversarial setting”) (citing Amchem, 521 U.S. at 620)).
Here, the trial court has allowed Cortez and his counsel to
compose and send class notice, to represent themselves to the class as
its spokesmen, and to formulate and defend the class settlement, without
first determining that Rule 42's typicality and
adequacy-of-representation requirements are met. Whether or not they
are, Rule 42 requires the trial court to make that determination before
it permits Cortez and his counsel to take action on the class's behalf.
Because the certification order here permits Cortez and his counsel to
proceed without first meeting these requirements, the order is ripe for
appellate review. See Patterson, 971 S.W.2d at 444.

Cortez argues that the trial court's deferring full
consideration of Rule 42's criteria until the fairness hearing offers
benefits to the class that balance any potential harm. He notes, for
instance, that a class notice distributed upon preliminary class
certification allows the proposed class members to appear at the
fairness hearing and object to both certification and settlement. But
class notice distributed after the trial court conducts a careful Rule
42 analysis achieves the same purpose and provides absent class members
greater protection. Then, after they receive notice, class members may
still voice their concerns at the fairness hearing, and the trial court
may alter, amend, or withdraw its certification order at any time before
final judgment to protect their interests. See Tex. R. Civ. P. 42(c)(1).

When a trial court preliminarily certifies a settlement-only
class action, the effect on the course of the proceedings is immediate,
significant, and perhaps irreparable if it is later determined that the
class cannot be maintained. We hold that such an order may not be
shielded from appellate review merely because it is termed “preliminary”
or because the trial court may later reconsider its ruling at a fairness
hearing. A fairness hearing is no substitute for rigorous adherence to
Rule 42's class-action criteria. See Amchem, 521 U.S. at 620. Once the
trial court certified the settlement class against Bracamontes, its
order was ripe for appellate review, and the court of appeals erred in
dismissing MMC's appeal as “premature.”

2. The Proposed Settlement

MMC also asked the court of appeals to disapprove certain
aspects of the proposed settlement between Bracamontes and the Cortez
class. The court refused, however, determining that MMC's complaints
were “premature” pending the trial court's disposition at the fairness
hearing. 17 S.W.3d at 310. We agree with the court of appeals that the
proposed Bracamontes settlement is not ripe for review, although the
court of appeals may consider the settlement's terms insofar as they may
relate to reviewing the certification order. See Amchem, 521 U.S. at
619-22.
Unlike the trial court's decision to certify a class action,
which immediately and directly impacts the proceedings' course with
possibly irremediable consequences, the trial court's preliminary
approval of the Bracamontes settlement has no binding force. Rather, the
settlement does not gain legal effect until the trial court gives its
final approval. Tex. R. Civ. P. 42(e). The trial court has a duty at the
fairness hearing to examine the proposed settlement thoroughly, with
input from objectors, and may approve the settlement only if the court
determines that it is fair. See Bloyed, 916 S.W.2d at 958. Until then,
the proposed settlement's terms do not affect the parties or the
proceedings, and appellate review is premature.
B. Standing

Although the class certification order is ripe for appellate
review, only a party with standing may seek that review. See Torrington
Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2001) . An issue is ripe when
it presents a fully developed controversy, while standing requires that

the controversy adversely affect the party seeking review. Planned
Parenthood, 971 S.W.2d at 442.
The court of appeals held that MMC had no standing to challenge
the trial court's certification order. 17 S.W.3d at 310. In its
analysis, the court relied upon Fifth Circuit authority for the
proposition that “non-settling defendants generally have no standing to
complain about a settlement, since they are not members of the settling
class.” Id. at 309 (emphasis in original) (citing Transamerican Ref.
Corp. v. Dravo Corp., 952 F.2d 898, 899 (5th Cir. 1992)). Concluding
that any injury MMC might suffer from the Bracamontes settlement was
speculative and premature, the appellate court held that MMC lacked
standing to appeal the certification order because “MMC [could not] do
indirectly what it may not do directly.” Id. at 310. Thus, the court of
appeals presumed that if the Bracamontes settlement does not affect MMC,
neither does the certification.
Cortez echoes the court of appeals' reasoning here, arguing that
the order has no effect on MMC because it certifies a class only for the
limited purpose of settling with Bracamontes. Cortez contends MMC will
only be affected if and when the trial court certifies a class against
MMC, and until then MMC has no standing to appeal. In response, MMC
suggests that Rule 42 does not allow the trial court to certify a class
action against fewer than all defendants. In any event, MMC notes
several ways in which the certification order injures it, giving MMC
standing to pursue its appeal. We need not decide today whether

Rule 42 generally prohibits piecemeal certification against individual
defendants. Rather, we hold that a nonsettling defendant has standing to
contest certification of a settlement class if the nonsettling defendant
can show that the certification adversely affects it. Determining
adverse effect necessarily requires a case-specific inquiry. We conclude
that, in this case, MMC has shown sufficient adverse effect to confer
standing to appeal the certification order.
The certification order defines a broad settlement class.
Although the order purportedly concerns a proposed settlement with
Bracamontes, the class includes everyone who had cardiac surgery at MMC
from December 1, 1993, to May 21, 1999. The class is not limited to
patients Bracamontes treated or those who might otherwise have
encountered Bracamontes while at MMC. Moreover, the approved notice to
the broadly defined class treats MMC as a class defendant. The notice
provides:
1.Notice. . . . The purpose of this Notice is to inform you of the
pendency of a class action against Defendants McAllen Medical Center,
Inc. (“MMC”), and Francisco I. Bracamontes, M.D. (“Settling Defendant”),
(collectively “Defendants”), and the proposed settlement with the
Settling Defendant.
2.Description of the Litigation. This Lawsuit was filed against
Defendants and Settling Defendant alleging misrepresentations concerning
the level of services, and the overcharging for such services, by
Defendants and Settling Defendant to all persons who underwent cardiac
surgery at McAllen Medical Center from December 1, 1993, until May 21,

1999. The lawsuit alleges, among other things, that Defendants knowingly
misrepresented the qualifications of the physicians performing cardiac
surgery at McAllen Medical Center and the quality of services provided
to cardiac patients at MMC.
. . .
4.Proposed Settlement with Settling Defendant. . . . Class Counsel has
investigated the claims against Settling Defendant and believe he was
not responsible for the misrepresentations at issue. . . .
5.Class Counsel's Fees. There will be no attorney's fees paid to Class
Counsel as part of the proposed settlement with Settling Defendant.
Class Counsel believe, however, that the Settling Defendant's
cooperation will add significant benefit to the claims of the Class set
forth in the Lawsuit.
(Emphasis added). See Footnote 2
The class notice speaks of a class action against both MMC and
Bracamontes, suggesting incorrectly that a class action has been
certified against both defendants. The notice describes the plaintiffs'
claims against both defendants, but, by stating that Bracamontes is not
responsible for the misrepresentations, it clearly implies that all
fault lies with MMC. It also advises class members that the settlement
with Bracamontes will help the class litigate against MMC, even though
no such class has been certified.
The certification order and class notice adversely impact MMC by
allowing class counsel to assert MMC's complicity to the broadly defined
class and solicit claims against MMC, while at the same time denying MMC
the opportunity to object because the order purportedly relates only to

a settlement with Bracamontes. Even more damaging, the class notice has
the trial court's imprimatur, priming the class to participate in a
virtually certain future attempt to have the trial court certify a class
against MMC. And even if the claims against MMC do not ultimately
achieve class status, class counsel has a head start on representing the
settlement-only class members in future individual claims against MMC,
whether those claims are limited to the purely economic-injury claims
asserted here or encompass more potentially lucrative individual
personal-injury claims. Such strategic tactics should not deprive MMC of
the opportunity to object to a potentially damaging certification order
just because the class is limited to the settling defendant.
Cortez suggests that recognizing MMC's standing to appeal
unfairly elevates a nonsettling party's interests over the settling
parties' interests. Clearly, a nonsettling defendant may not thwart a
settling defendant's decision to settle and has no standing to object to
a settlement, or certification of a settlement class, simply because it
might strategically prefer to have company in the courtroom. Here,
however, MMC complains not that Bracamontes prefers to settle, but that
the class certification and notice adversely affect MMC's legal
interests.
Moreover, fairness to absent class members is at least as
important as fairness to individual defendants. We reject MMC's argument
that it has standing simply as a surrogate for unnamed class members,
but note that the trial court's responsibility to protect the class

allows it to deny class- action certification even when the named
plaintiff and the only defendant prefer it. See Bloyed, 916 S.W.2d at
954. We hold that MMC's certification challenge is ripe and that MMC has
standing to raise it. Accordingly, the court of appeals erred in
dismissing MMC's appeal of the certification order for want of
jurisdiction.
III. Our Jurisdiction


Rather than limiting our review to deciding the court of
appeals' jurisdiction, MMC claims we have conflicts jurisdiction to
review the merits of the trial court's certification order. See Tex.
Gov't Code § 22.225(b)(3). Jurisdiction over interlocutory appeals is
generally final in the courts of appeals. See Tex. Gov't Code §
22.225(b). But this Court has jurisdiction over interlocutory appeals
when the court of appeals' decision conflicts with a prior decision of
another court of appeals or this Court on a question of law material to
the decision of the case. See id. §§ 22.225(c); 22.001(a)(2). Without
such a conflict, our jurisdiction is limited to deciding whether the
court of appeals correctly exercised or refused to exercise its
jurisdiction. See Tex. Gov't Code § 22.225(b); Qwest, 24 S.W.3d at
335-36. For cases to conflict for jurisdictional purposes, “'the
conflict must be on the very question of law actually involved and
determined, in respect of an issue in both cases, the test being whether
one would operate to overrule the other in case they were both rendered
by the same court.'” Coastal Corp. v. Garza, 979 S.W.2d 318, 319-20

(Tex. 1998) (quoting Christy v. Williams, 298 S.W.2d 565, 568-69 (Tex.
1957)) (quoting West Disinfecting Co. v. Trustees of Crosby Indep. Sch.
Dist., 143 S.W.2d 749, 750 (Tex. 1940))). In determining conflicts
jurisdiction, we decide whether the rulings in the allegedly conflicting
cases are “'so far upon the same state of facts that the decision of one
case is necessarily conclusive of the decision in the other.'” Id.
(quoting Gonzalez v. Avalos, 907 S.W.2d 443, 444 (Tex. 1995)) (quoting
Christy, 298 S.W.2d at 567). Although factual identity is not required,
no conflict between the cases exists if “a material factual difference
legitimately distinguishes their holdings.” Id. at 320.
MMC contends that the court of appeals' opinion in this case
conflicts with St. Louis Southwestern Railway Co. v. Voluntary
Purchasing Groups, Inc., 929 S.W.2d 25 (Tex. App. _ Texarkana 1996, no
writ). There, the trial court certified a mandatory class action
“subject to further order of the Court.” 929 S.W.2d at 28. Appellees
argued that this language made the order only preliminary and not
subject to interlocutory appeal under section 51.014(a)(3) of the Civil
Practice and Remedies Code. 929 S.W.2d. at 29. The court of appeals
rejected that argument and held that this general language did not
preclude interlocutory appeal under section 51.014(a)(3). 929 S.W.2d. at
29. The court determined that the certification order's “subject to
further order” language merely expressed what is true in every
class-certification decision: that is, under Rule 42, a class-

certification order is always subject to alteration, amendment, or
withdrawal. Id. at 29. The court reasoned that the interlocutory-appeal
statute would be meaningless if a court could insulate its certification
order from review merely by including general language reflecting Rule
42's terms in the order. Id.
MMC contends that here the court of appeals must have determined
that, because the certification order was termed “preliminary,” MMC's
appeal was premature under section 51.014. This holding, MMC contends,
conflicts with St. Louis Southwestern. We disagree. Contrary to MMC's
suggestion, the court of appeals here accepted jurisdiction under
section 51.014(a)(3), noting “[w]e construe MMC's points as an
interlocutory challenge to certification which section 51.014(a)(3)
permits.” 17 S.W.3d at 308. Thus, the court noted its jurisdiction under
the statute just as the St. Louis Southwestern court did. On this point,
the cases do not conflict.
The court of appeals here acknowledged its jurisdiction under
the statute, but also held that MMC, a nonsettling defendant, lacked
standing to contest a settlement with another defendant, and that MMC's
objections to the settlement's terms were premature because the fairness
hearing had not occurred. Id. at 309-10. Although the court declined to
consider whether the trial court properly applied the Rule 42 criteria
until after the fairness hearing, it did so based upon the erroneous
presumption that any effect the certification might have on MMC would
not occur unless and until the settlement was approved. Id. at 310.

Thus, the court based its holding on a perceived link between the
certification order and the settlement and its conclusion that neither
affected MMC until after the settlement hearing. In contrast, the court
in St. Louis Southwestern did not address a jurisdictional question that
turned on standing, and its rationale is materially distinguishable from
the court of appeals' reasoning here. Because there are material factual
and legal differences that legitimately distinguish the two holdings,
our conflicts jurisdiction is not invoked. See Coastal, 979 S.W.2d at
319-20. Accordingly, our review is limited to determining whether the
court of appeals properly exercised its jurisdiction. See Qwest, 24
S.W.3d at 335-36.
IV. The Severance Order
After the court of appeals dismissed MMC's appeal, and while
MMC's petition for review was pending in this Court, the trial court
allowed Cortez to file a Fourth Amended Petition. The amended petition
(1) states that Cortez seeks to represent a class only against
Bracamontes, (2) adds four new plaintiffs who seek to represent a class
only against MMC and three new MMC-related entities, (3) asserts new
claims of unjust enrichment and breach of fiduciary duty, and (4)
alleges additional misrepresentations and breaches of contract. After
filing their amended petition, the plaintiffs moved the trial court to
sever their claims into two separate causes with the Cortez class
proceeding against Bracamontes only, and the new plaintiffs proceeding
against MMC and related entities. The trial court granted the severance

motion, but we stayed the trial court's order to protect our
jurisdiction pending our disposition. See Tex. R. App. P. 29.3.
While an interlocutory appeal from a certification order is
pending, the trial court may not make an order that “interferes with or
impairs the jurisdiction of the appellate court or effectiveness of any
relief sought or that may be granted on appeal.” Tex. R. App. P.
29.5(b). The trial court's severance order in this case, issued while
MMC's appeal was pending, clearly impairs the effectiveness of the
relief MMC seeks. MMC claims it has standing to challenge the
certification order based upon injuries it alleges result from the
order: an overly broad class and an inaccurate and prejudicial class
notice. If the trial court's severance order is given effect, MMC will
no longer be a party to the case in which it alleges injury. Although
MMC could attempt to intervene in the severed cause, the time for
appealing the certification order would have expired and MMC would have
no avenue for relief. See Tex. R. App. P. 26.1(b), 28.1. While Cortez
promises not to argue that severance affects this Court's jurisdiction
over MMC's appeal, standing is a component of subject-matter
jurisdiction and cannot be waived. Texas Ass'n of Bus. v. Texas Air
Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). Because the severance
order interferes with the effectiveness of the appellate relief MMC
seeks, we vacate the order to protect the court of appeals'
jurisdiction. See Tex. R. App. P. 29.5(b), 29.6(a)(2).

V. Conclusion

We hold that MMC has standing to challenge the trial court's
certification order, and that its appeal is ripe for review.
Accordingly, we reverse the court of appeals' judgment dismissing MMC's
appeal on jurisdictional grounds and remand the case to the court of
appeals for further proceedings consistent with this opinion. To protect
the court of appeals' jurisdiction, we vacate the trial court's
severance order.

Harriet O'Neill
Justice
OPINION DELIVERED: August 30, 2001.
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Footnote 1
The federal class-action rule was the model for Texas Rule 42. See Fed.
R. Civ. P. 23. Accordingly, decisions interpreting the federal rule may
be persuasive when interpreting Rule 42. Intratex Gas Co. v. Beeson, 22
S.W.3d 398, 403 n.4 (Tex. 2000).
-------------------
Footnote 2
The class notice was published in June 1999. In July 1999, the trial
court ordered a supplemental class notice. It is unclear from the record
whether this supplemental notice was actually published. Nevertheless,
the portions of the notice we recite are materially the same as those
contained in the supplemental notice.
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File Date[01/15/2002]
File Name[000710]
File Locator[01/15/2002-000710]