author: LEE ANN DAUPHINOT, Justice. SUE WALKER, Justice

text:
    Jeffery Scott DAVIS, Appellant, v. The STATE of Texas, State.
    No. 2-04-355-CR.
    Court of Appeals of Texas, Fort Worth.
    March 24, 2005.

      Gregory J. King, Wichita Falls, for Appellant.
    Tim Cole, Montague, for Appellee.
    Panel B: DAUPHINOT, HOLMAN, and WALKER, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

A jury convicted Appellant Jeffery Scott Davis of the manufacture of more than 400 grams of methamphetamine and assessed punishment at fifty years’ confinement and a $100,000 fine. The trial court sentenced him accordingly. In one issue, Appellant challenges the trial court’s denial of his motion to suppress the fruits of the search warrant subject to which the contraband was seized. Because we hold that the trial court abused its discretion in denying Appellant’s motion to suppress, we reverse the trial court’s judgment.

Background Facts

We set out in whole the affidavit in question, submitted to the magistrate by Officer John Spragins of the Wichita Falls, Texas police department:

CASE # TF-03-0081 WARRANT (DA) #

AFFIDAVIT FOR SEARCH AND ARREST WARRANT

THE STATE OF TEXAS COUNTY OF MONTAGUE

The undersigned Affiant, being a Peace Officer under the laws of the State of Texas and being duly sworn, on oath makes the following statement and accusations:

1. There is in MONTAGUE County, Texas, a suspected place and premises described and located as follows: A single family mobile home that is know as 701 Young Street, Nocona, Montague County, Texas. Said residence is grey in color with white trim. S[ai]d residence is located on the west side of the roadway and the front door faces east.

Said suspected place and premises, in addition to the foregoing description, also includes all other buildings, structures, places, vehicles on said premises and within the curtilage, if said is a residence, that are found to be under the control of the suspected party named below and in, on, or around which said suspected party may reasonably reposit or secrete property that is the object of the search requested herein.

2. There is at said suspected place and premises property concealed and kept in violation of the laws of the State of Texas and described as follows: drugs kept, prepared, or manufactured in violation of the laws of this state, to-wit, Methamphetamine. Further, Affiant believes that suspected party has at said suspected place other paraphernalia, implements, and instruments used in the commission of the offense of Manufacture and Distribution of Methamphetamine.

3.Said suspected place and premises are in charge of and controlled by each of the following persons: Jeffery Scott Davis, white male, DOB 01 — 22—76[.]

4. It is the belief of Affiant, and he hereby charges and accuses, that: Jeffery Scott Davis is intentionally and knowingly in unlawful possession of a controlled substance listed in the Texas Health and Safety Code, to wit, Methamphetamine.

5. Affiant has probable cause for said belief by reason of the following facts: Your Affiant is a Texas commissioned Peace Officer and has been so commissioned for over 10 years. Your Affiant is employed by the Wichita Falls Police Department and assigned, as a Narcotics Investigator, to the North Texas Regional Drug Enforcement Task Force. During the time your Affiant has been assigned as a Narcotics Investigator, your Affiant has been responsible for several investigations of controlled substances violations including the Manufacture and Distribution of Methamphetamine. In addition, your Affiant has attended training in narcotics investigations including search warrant preparation, evidence collection and investigations of individuals who derive substantial income from the illegal importation, manufacture, distribution, and sale of illegal controlled substances. Your Affiant has also attended basic and advanced training in clandestine laboratories and is certified by the Drug Enforcement Administration to enter and seize clandestine drug manufacturing laboratories.

Your Affiant, along with Task Force investigators and DPS Investigators, ha[s] been conducting a joint investigation regarding Jeffery Scott Davis[’s] involvement in the Manufacture and Distribution of Methamphetamine. During this investigation investigators have gathered information that Davis was manufacturing methamphetamine at 701 Young Street, Nocona, Texas. Investigators have received information from confidential informants that stated Davis was manufacturing the methamphetamine inside the residence as well as in a shed located in the backyard of said residence. Investigators have received information that Davis was purchasing items used in the manufacture of methamphetamine including starter fluid (ether) and coffee filters. Investigators have received information from Crime Stoppers that described a chemical odor emitting from the residence at 701 Young Street and that Davis was manufacturing methamphetamine at the residence.

On 03-18-03, at approximately 0400 hrs, Officer Mitchell Westervglt was on patrol in Nocona and drove past residence. Westervelt stated that he could smell a strong chemical odor he has associated with the manufacture of methamphetamine emitting from the residence at 701 Young Street. Wester-velt informed Chief Holcomb of the odor and Holcomb contacted your Affiant.

Based on the information received from numerous sources and the odor emitting from the residence, your Affiant firmly believes that Jeffery Scott Davis is intentionally and knowingly in possession of a quantity of methamphetamine at the above listed location.

Further, based on your Affiant’s experience as an Investigator, it is known that drug dealers normally keep certain records indicating drug quantities handled, cost, prices, names and telephone number of buyers and suppliers as well as information regarding bank accounts. It can also be presumed that these and other records indicating premise occupancy/residence will be found on the said property. Your Affiant further alleges that weapons found on the said property are seizable as indicative of drug dealings since possession of a firearm tends to demonstrate a likelihood that the dealer took steps to prevent contraband, paraphernalia and the proceeds (money) from being stolen, similarly as other tools of the trade (scales, plastic baggies, cutting equipment and narcotics equipment) which are also seizable would be kept. Further, your Affiant alleges the above constitute specific articulable facts from which a reasonable person could draw [a] rational inference that large sums of cash found at the premise (absent proof to the contrary) were derived from illegal narcotics sales and therefore subject to seizure.

In response to this affidavit, the magistrate issued a combination arrest and search warrant for Appellant at the Young Street address.

Officer Spragins, the affiant, is a police officer assigned as a narcotics investigator to the North Texas Regional Drug Enforcement Task Force. Consequently, as his affidavit points out, he received specialized training in narcotics investigations, search warrant preparation, evidence collection, and investigations of individuals in the illegal drug trade. Spragins also attended “basic and advanced training in clandestine laboratories and is certified by the Drug Enforcement Administration to enter and seize clandestine drug manufacturing laboratories.”

Spragins, task force investigators, and DPS investigators had been conducting a joint investigation of Appellant. According to Spragins’s affidavit, during the investigation the investigators gathered information that Appellant was manufacturing methamphetamine at 701 Young Street in Nocona, Texas. Spra-gins stated in the affidavit that

[ijnvestigators have received information from confidential informants that stated Davis was manufacturing the methamphetamine inside the residence as well as in a shed located in the backyard of said residence. Investigators have received information that Davis was purchasing items used in the manufacture of methamphetamine including starter fluid (ether) and coffee filters. Investigators have received information from Crime Stoppers that described a chemical odor emitting from the residence at 701 Young Street and that Davis was manufacturing methamphetamine at the residence.

In one issue, Appellant argues that the trial court erred by denying his motion to

suppress because, within the four corners of the affidavit, there were not specific, credible facts to allow a magistrate to determine that the information in the affidavit was reliable enough to provide a substantial basis for the magistrate’s conclusion that an offense had been committed and that contraband would probably be found at the residence at 701 Young Street in Nocona. The State concedes that “the background information in the warrant supplied by Spragins was conclu-sory and failed to provide enough detail to alone provide- probable cause for the search.” The State argues, however, that this warrant is a “ ‘smell’ warrant which was never intended to ... rise or fall upon the corroborating facts stated in the affidavit.” Instead, the State argues that the critical information is contained in the portion of the affidavit that states,

On 03-18-03, at approximately 0400 hrs, Officer Mitchell Westervelt was on patrol in Nocona and drove past residence. Westervelt stated that he could smell a strong chemical odor he has associated with the manufacture of methamphetamine emitting from the residence at 701 Young Street. Westervelt informed Chief Holcomb of the odor and Holcomb contacted your Affiant.

STANDARD OF REVIEW

The State argues that the affidavit in this case “rests or falls upon the adequacy of the information supplied to Investigator Spragins by Officer Westervelt.” As Appellant points out, this court has explained that if an affiant is seeking a search warrant, the evidence will be considered evidence of a persuasive character in obtaining a warrant when the magistrate finds the affiant qualified to recognize the odor of the contraband.

A search warrant must be based upon probable cause. Under the Fourth Amendment, an affidavit is sufficient to establish probable cause if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed. Probable cause sufficient to support a search warrant exists if the facts contained within the four corners of the affidavit and the reasonable inferences drawn therefrom justify the magistrate’s conclusion that the object of the search is probably on the premises at the time of issuance. No magical formula exists for stating such information. In ascertaining whether a search warrant is based on probable cause, the affidavit is interpreted in a common-sense, realistic manner, and the magistrate is entitled to draw reasonable inferences from the facts contained therein. The magistrate’s determination of probable cause is given great deference by the reviewing court.

In this review, we are to determine whether there is a fair probability, not an actual showing, that contraband or evidence of a crime will be found in a particular place in light of the totality of the facts set forth in the affidavit. The officer’s affidavit must provide the magistrate with a substantial basis for concluding that a search would uncover evidence of wrongdoing. The informant’s reliability and basis of knowledge are relevant in determining the value of his assertions. Corroboration of the details of an informant’s tip through independent police investigation can also be relevant in the magistrate’s determination of probable cause. Likewise, the affidavit should set forth the foundation for the officer’s belief in an informant’s credibility and veracity. However, “a deficiency in one may be compensated ... by a strong showing as to the other, or by some other indicia of reliability,” all of which are relevant considerations under the totality of the circumstances. As a reviewing court, we are to ensure that the magistrate had a substantial basis for concluding that probable cause exists.

Analysis op Spragins’s Affidavit

Although Spragins states in his affidavit that investigators had received information from confidential informants that stated Davis was manufacturing the methamphetamine inside the residence as well as in a shed located in the backyard of said residence and that Davis was purchasing items used in the manufacture of methamphetamine including starter fluid (ether) and coffee filters, the affidavit provides no indication of a date or time frame for either the investigation or the tips. Nor does the affidavit provide any suggestion that the information came from reliable sources or any hint of what the basis of their information might be. The affidavit does not show that Spragins ever verified that Appellant lived at the Young Street address or had ever been present at the Young Street address.

Spragins also avers that investigators had received information from Crime Stoppers that described a chemical odor emitting from the residence, but again, there is no mention of a time frame, nor is there a description of the chemical odor or any information that could tend to connect the chemical odor to the manufacture of drugs.

Spragins states in the affidavit that Chief Holcomb contacted him with the information that Westervelt had smelled an odor he associated with the manufacture of methamphetamine on the day the warrant was issued. Nowhere in the affidavit, however, is there any explanation of West-ervelt’s expertise or experience in recognizing an odor associated with the manufacture of methamphetamine. There is no description of Westervelt’s training or experience in general as a peace officer or specifically in connection with drugs. There is no information regarding the number of times Westervelt had smelled an odor he “associated with the manufacture of methamphetamine” or whether Westervelt was correct in associating the odor with the manufacture of methamphetamine. Indeed, Spragins could not recall Westervelt’s name at the suppression hearing; he recalled only that Westervelt was a Nocona police officer. There is no evidence in the affidavit that Spragins had any knowledge of Westervelt’s experience or expertise or that Westervelt was part of the task force or investigation team.

There is also no evidence explaining why Westervelt believed the odor emanated from the specific Young Street address in question. There is no evidence describing the circumstances under which he smelled the odor. Did he remain in his car in the street? Did he pull into the driveway? The affidavit does not tell us. There is no evidence in the affidavit that Spragins himself ever went to Appellant’s residence before swearing to the affidavit, had any personal knowledge of any activities occurring at the residence, or verified Wester-velt’s observations. Similarly, there is no indication that anyone from the task force or the joint investigation team went to Appellant’s residence, had personal knowledge of activities occurring at the residence, or verified Westervelt’s observations. Although the State is correct that the veracity of the officer providing information to the affiant is presumed if it is unchallenged, expertise is not presumed.

The dissent argues that in order to give a “common sense and reasonable interpretation” of the statement that Westervelt smelled a strong chemical odoi that he “has associated ... with the manufacture of methamphetamine,” we must add to the affidavit information that is contained nowhere in it. The dissent adds to the four corners of the affidavit that Westervelt “had enough experience and expertise that he had previously smelled the same chemical odor and had previously associated it with the manufacture of methamphetamine.”

We are not permitted to create from whole cloth facts not contained within the four corners of the affidavit. Therefore, we do not know that Westevelt had any experience as a police officer. From the affidavit, we do not know whether this was his first day as a peace officer or whether he had many years’ experience. The dissent claims Westervelt had previously smelled the same odor and had previously associated it with the manufacture of methamphetamine. Again, this is not what the affidavit says. Nowhere does the affidavit say that Westervelt has previously smelled a chemical odor that actually was associated with the manufacture of methamphetamine. An objective reading of the affidavit reveals that on the morning in question, Westervelt smelled a strong chemical odor and has associated it with the manufacture of methamphetamine. The affidavit does not say that he ever smelled either the odor or methamphetamine in the past, and it does not say that he correctly associated the odor with the manufacture of methamphetamine in the past.

The dissent also tries to use Spragins’s demonstrated experience and professional knowledge to minimize the absence of such information about Westervelt and the absence of any evidence that Spragins verified any evidence in the affidavit. With all respect to the dissent’s position, it does not matter how many years’ experience Spra-gins had, how many drug task forces he is a member of, how many narcotics investigation training schools he has attended, or how many certifications he has. The affidavit provides no evidence that Spragins ever went to the location, smelled the odor there, or verified any information. Spra-gins refers to a Crime Stoppers tip, but there is no indication that he ever verified it. He mentions that other investigators obtained information from confidential informants, but again, there is no evidence in the affidavit that he ever verified the information, and the affidavit does not show the reliability of the informants or the source of their information, nor does Spragins state other than generally the specific information they provided. Equally important, Spragins provides us no time frame for the Crime Stoppers tip or the Crime Stoppers observation, the date other investigators received information from the informants, the date the informants observed the activity they reported, or the timing of any investigative activity on his part or that of the task force. The only date we are provided is that of Wester-velt’s drive-by.

Our sister court in Houston has explained,

To justify a magistrate’s finding that an affidavit is sufficient to establish probable cause to issue a search warrant, the facts set out in the affidavit must not have become stale when the magistrate issues the search warrant. Probable cause ceases to exist when, at the time the search warrant is issued, it would be unreasonable to presume the items remain at the suspected place.
The proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued. When the affidavit recites facts indicating activity of a protracted and continuous nature, i.e., a course of conduct, the passage of time becomes less significant.

The dissent apparently places importance on the fact that Spragins “swore that he firmly believed Appellant was intentionally and knowingly in possession of a quantity of methamphetamine at his residence.” Yet, again, the affidavit provides no evidence that Spragins ever confirmed that Appellant was connected in any way to the Young Street address.

The case now before this court is in many ways similar to Lowery v. State. In Lowery, multiple informants provided information, but the affidavit in support of the warrant did not detail the reasons they were reliable or the source of their information. As the Lowery court explained, “Probable cause does not arise by virtue of the fact that several people, whose identity, reliability, credibility, or basis of knowledge is unestablished, gave officers information concerning criminal activity.”

While information from an unnamed informant alone does not establish probable cause, the informant’s tip combined with independent police investigation may provide a substantial basis for the probable-cause finding. In the case before us, even the unnamed informants’ information combined with Westervelt’s observations do not create circumstances sufficient to provide probable cause necessary to justify the warrant. In Lowery,

The “critical tipster” also stated that he had been in the house within forty-eight hours and had observed persons in the house who, in his opinion, were under the influence of amphetamines. The affidavit, however, gives no basis in the informant’s experience to lead the magistrate to accept this assessment. Further, the affidavit provides no details concerning the critical informant’s knowledge that a female goes to the house to exchange sex for narcotics or his basis of personal experience that the house has been used for dealing narcotics for the past several years. Without such information, the informant’s statements fail to give rise to probable cause.

In Lowery, the State argued, as does the dissent in the case now before this court, that the individual details in the affidavit, taken as a whole, reveal a substantial basis for the magistrate to justifiably infer probable possession of the illegal drug. In Lowery, the State specifically argued that there was probable cause because: (1) several informants told Officer Crawford that there was a drug lab located in an underground house where Lowery lived; (2) subsequent investigation showed Lowery’s address to be 911 Camellia Drive and corroborated that the house had underground rooms; (3) Officer Crawford said that Patton, Lowery’s roommate who allegedly brought in supplies for the lab, drove a black Mercedes, and the affiant regularly observed a black Mercedes parked at the house over a two-month period; (4) a reliable informant reported hearing about an amphetamine lab on Camellia Drive; and (5) a relative of a drug purchaser (the untested informant) heard about the presence of amphetamines inside the house at 911 Camellia Drive. The Lowery court, however, rejected these arguments, pointing out, “hearsay-upon-hearsay may be utilized to show probable cause if the underlying circumstances indicate a substantial basis for crediting the hearsay at each level.”

As does the dissent in the case now before this court, the State in Lowery also argued that the affidavit, taken as a whole, revealed a substantial basis for the magistrate to justifiably infer the alleged perpetrators possession of illegal drugs. The Lowery analysis addressed further argument by the dissent in the present case:

Corroboration of the details of an informant’s tip by independent police work is another relevant consideration in the totality-of-the-eircumstances analysis. An informant’s tip combined with independent corroboration by police investigation may provide a substantial basis for the magistrate’s finding of probable cause.
We find no case holding that probable cause existed absent any showing of the informant’s reliability, credibility, or basis of knowledge without independent police corroboration of facts giving rise to probable cause. Absent independent police corroboration of the reported criminal activity, there must be some reasonable basis for crediting the information contained in the affidavit. Here, officers did not independently corroborate any facts supporting a reasonable belief that amphetamine was located at 911 Camellia Drive. Thus, even if the facts provided to officers by informants, taken as a whole, would be sufficient to establish probable cause, the affidavit still must contain information that would allow the magistrate independently to .determine the credibility, reliability, or basis of knowledge of the sources of those facts.

As the State concedes, the affidavit in this case “rests or falls upon the adequacy of the information supplied to Investigator Spragins by Officer Westervelt.” Because the affidavit is silent as to Westervelt’s experience, his proximity to the residence at 701 Young Street other than the fact that he “drove past” the residence, the length of time he spent outside the residence, or anything else that would show the reliability of his suspicion, the affidavit is insufficient to support the warrant.

Conclusion

Under the standard of review given above, the trial court abused its discretion in denying Appellant’s motion to suppress. We therefore sustain Appellant’s sole issue, reverse the judgment of the trial court, and remand this cause to the trial court for a new trial without the evidence that should have been suppressed.

WALKER, J., filed a dissenting opinion.

SUE WALKER, Justice

dissenting.

I respectfully dissent. I would hold that, based on Officer Spragins’s probable cause affidavit, the magistrate had a substantial basis for concluding that the search warrant would uncover evidence of wrongdoing, specifically evidence of possession and manufacture of methamphetamine, and that, therefore, the trial court properly denied Appellant Jeffery Scott Davis’s motion to suppress. Accordingly, I would overrule Appellant’s issue and affirm the trial court’s judgment.

A distinction exists between the standards of review applicable to warrantless searches and searches pursuant to a search warrant. Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App.2004). The standard of review to be applied to the review of a magistrate’s determination of probable cause in issuing a search warrant is the deferential standard of review articulated in Illinois v. Gates and in Johnson v. State Swearingen, 143 S.W.3d at 811 (instructing appellate courts to apply the “deferential standard of review articulated in Gates and Johnson” in reviewing a magistrate’s decision to issue a warrant).

The deferential standard of review was articulated in Gates as follows:

we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations. The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed.

462 U.S. at 238-39, 103 S.Ct. at 2332 (citations omitted). In Johnson, the standard was articulated as follows:

Appellate court review of the sufficiency of an affidavit is not a de novo review. The magistrate’s determination of probable cause should be given great deference by the reviewing court. “[T]he traditional standard for review of an issuing magistrate’s probable cause determination has been that so long as the magistrate had a ‘substantial basis for ... eonelud[ing]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.”

803 S.W.2d at 289 (citations omitted).

The sufficiency of a search warrant affidavit is determined by considering the totality of the circumstances set forth in the affidavit. Gates, 462 U.S. at 238, 103 S.Ct. at 2332. The affidavit must be interpreted in a common sense and realistic manner, and reasonable inferences may be drawn from the facts and circumstances within the four corners of the affidavit. Jones v. State, 833 S.W.2d 118, 123-24 (Tex.Crim. App.1992), cert, denied, 507 U.S. 921, 113 S.Ct. 1285,122 L.Ed.2d 678 (1993).

The majority’s thoughtful analysis is flawed, in my view, because the majority does not interpret the affidavit in a common sense and realistic manner and does not defer to reasonable inferences that may be drawn from the facts and circumstances within the four corners of the affidavit. Instead, in my opinion, the majority dissects the affidavit in a hypertechnical way, at odds with the required standard of review, instead of focusing on the totality of the circumstances set forth in the affidavit.

The majority holds that the affidavit is silent as to Westervelt’s experience, his proximity to the residence, the length of time he spent outside the residence, or anything else that would show the reliability of Officer Westervelt’s suspicion. Accordingly, the majority holds that the affidavit is insufficient to support the warrant. The affidavit states, however,

On 3-18-03, at approximately 0400 hrs, Officer Mitchell Westervelt was on patrol in Nocona and drove past [the] residence. Westervelt stated that he could smell a strong chemical odor he has associated with the manufacture of methamphetamine emitting from the residence at 701 Young Street. Wester-velt informed Chief Holcomb of the odor and Holcomb contacted your Affiant.

The majority concedes that the magistrate was entitled to rely upon this information as reliable but claims the affidavit does not set forth information establishing Westervelt’s expertise or experience in recognizing an odor associated with the manufacture of methamphetamine. The affidavit indicates that Westervelt is a police officer, that on March 18th he personally smelled a strong chemical odor emitting from Appellant’s residence, and that he “has associated” that smell “with the manufacture of methamphetamine.” A common sense and reasonable interpretation of this statement demonstrates that Westervelt, a police officer, has enough experience and expertise that he has previously smelled the same chemical odor and “has associated” it previously with the manufacture of methamphetamine. See Gish v. State, 606 S.W.2d 883, 886 (Tex.Crim.App.1980) (officer affiant did not detail his expertise in recognizing smell of ether; affidavit simply stated that he smelled it and that it was associated with manufacture of methamphetamine). I cannot agree with the majority that a police officer who has had the experience of previously smelling the strong chemical odor associated with the manufacture of methamphetamine must say more than this to establish his expertise and ability to recognize the same smell when he smells it again. Nor can I agree with the majority that Officer Westervelt needed to explain why he believed the odor emanated from Appellant’s residence — the why is because he smelled it coming from that location. Such a holding fails to interpret the affidavit in a common sense and realistic manner and fails to permit reasonable inferences from the facts and circumstances within the four corners of the affidavit. See Jones, 833 S.W.2d at 123-24.

Looking to the totality of the circumstances presented in Spragins’s affidavit and giving great deference to the magistrate’s probable cause determination, I would hold that the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Officer Spragins is a ten-year police veteran. He is a Narcotics Investigator assigned to the North Texas Regional Drug Enforcement Task Force. He has attended training in narcotics investigations, including the manufacture of controlled substances, and is certified by the Drug Enforcement Agency to enter and seize clandestine drug manufacturing laboratories. As a Narcotics Task Force Investigator, he, along with other investigators, “have been conducting” an investigation regarding Davis’s manufacture and distribution of methamphetamine; that is, they were currently involved in the investigation. “During this investigation investigators have gathered information that Davis was manufacturing methamphetamine at 701 Young Street, Nocona, Texas.” Investigators obtained additional data from confidential informants who said Appellant was manufacturing methamphetamine inside a shed in his backyard, from Crime Stoppers who told police Appellant was manufacturing methamphetamine at his house and described a chemical odor emitting from Appellant’s residence, and from Appellant’s purchase of starter fluid and coffee filters, items used in the manufacture of methamphetamine. Officer Westervelt smelled a strong chemical odor he has associated with the production of methamphetamine coming from Appellant’s residence on March 18, 2003, and “[biased on the information received from numerous sources and the odor emitting from the residence,” Officer Spra-gins swore that he firmly believed Appellant was intentionally and knowingly in possession of a quantity of methamphetamine at his residence. Spragins obtained the search warrant that day, March 18, 2003, authorizing him to search Appellant’s residence and outbuildings at 701 Young Street for methamphetamine and evidence of its manufacture.

Giving great deference to the magistrate’s determination of probable cause, Officer Spragins’s affidavit sets forth a substantial basis for the magistrate’s conclusion that a search would uncover evidence of wrongdoing, specifically possession or manufacture of methamphetamine. I would overrule Appellant’s issue and affirm the trial court’s judgment.

      . Wynn v. State, 996 S.W.2d 324, 327 (Tex. App.-Fort Worth 1999, no pet.).

      . U.S. CONST, amend. IV; TEX. CONST, art. I, § 9; Tex.Code Crim. Proc. Ann. art. 18.01(b) (Vernon Supp.2004-05); Jones v. State, 833 S.W.2d 118, 123 (Tex.Crim.App.) cert, denied, 507 U.S. 921, 113 S.Ct. 1285, 122 L.Ed.2d 678 (1993); cf. Cates v. State, 120 S.W.3d 352, 355 n. 3 (Tex.Crim.App.2003) (setting forth the distinction between a suppression hearing and a Franks hearing where additional evidence may be admitted to show the falsity of assertions within an affidavit).

      . Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983); see U.S. CONST, amend. IV.

      . Cassias v. State, 719 S.W.2d 585, 587-88 (Tex.Crim.App.1986) (op. on reh’g).

      . Frazier v. State, 480 S.W.2d 375, 379 (Tex. Crim.App.1972).

      . Ellis v. State, 722 S.W.2d 192, 196 (Tex. App.-Dallas 1986, no pet.).

      . Gates, 462 U.S. at 236, 103 S.Ct. at 2331; Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App.2004).

      . Gates, 462 U.S. at 238, 103 S.Ct. at 2332; Hennessy v. State, 660 S.W.2d 87, 89 (Tex. Crim.App.1983) (holding that the informant’s basis of knowledge, or reliability, along with his veracity, or credibility, are relevant considerations in the totality of the circumstances, citing Gates).

      . Gates, 462 U.S. at 236, 103 S.Ct. at 2331; Swearingen, 143 S.W.3d at 809-10.

      . Gates, 462 U.S. at 230, 103 S.Ct. at 2328.

      . Id. at 241-42, 103 S.Ct. at 2333-34.

      . Id. at 229, 103 S.Ct. at 2327-28.

      . Id. at 233, 103 S.Ct. at 2329.

      . Id. at 236, 103 S.Ct. at 2331; see Bower v. State, 769 S.W.2d 887, 902 (Tex.Crim.App.) (holding we do not conduct a de novo review but look to the evidence as a whole and determine whether there is substantial evidence to support the magistrate’s decision), cert, denied, 492 U.S. 927, 109 S.Ct. 3266, 106 L.Ed.2d 611 (1989), overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 685 n. 6 (Tex.Crim.App.1991); see also Cates, 120 S.W.3d at 355 n. 3 (recognizing that before a Franks hearing may be held, defendant must make a substantial preliminary showing of falsity in the "four comers” of the probable cause affidavit).
      The foregoing discussion of the law relies heavily on Justice Livingston's analysis in Davis v. State, 144 S.W.3d 192, 196-98 (Tex. App.-Fort Worth 2004, pet. filed) (op. on reh’g).

      . Rowell v. State, 14 S.W.3d 806, 809 (Tex. App.-Houston [1st Dist.] 2000) (citations omitted), affd, 66 S.W.3d 279 (Tex.Crim.App. 2001).

      . 843 S.W.2d 136 (Tex.App.-Dallas 1992, pet. ref’d).

      . Id. at 141.

      . Janecka v. State, 739 S.W.2d 813, 825 (Tex. Crim.App.1987).

      . Lowery, 843 S.W.2d at 140-41 (citations omitted).

      . Id. at 140.

      . Id. at 141.

      . Id. (citations omitted).

      . Id. at 142.

      . Compare Gish v. State, 606 S.W.2d 883, 885-86 (Tex.Crim.App.1980) (upholding warrant when affiant detective stated, in addition to fact that law enforcement smelled ether, a substance used in the manufacture of methamphetamine, ' outside appellant's rural house, that (1) affiant saw known manufacturer of methamphetamine purchase, under suspicious circumstances, 11½ liters of phenylac-etone, a substance used in the manufacture of methamphetamine; (2) affiant saw this man take the phenylacetone to appellant's residence in Houston; (4) affiant saw appellant with a man at the storage warehouse; (5) according to affiant’s informer, whose infor
        mation had proved correct the previous day, the known manufacturer ordered a case of methylamine, a substance used in conjunction with phenylacetone to manufacture methamphetamine, and then left Houston; and (6) appellant’s and the manufacturer’s cars, as well as appellant himself, were then seen at appellant’s rural residence by other law enforcement officers); Moulden v. State, 576 S.W.2d 817, 818-19 (Tex.Crim.App.1978) (upholding warrantless search of automobile when both officers at scene smelled burnt marihuana and "[ijt [wa]s apparent from the record ... that the searching police officer ... knew what the smell of burnt marihuana was”) (emphasis added); Wynn, 996 S.W.2d at 327 (upholding warrant based on affidavit of officer who smelled the odor, establishing his expertise in the manufacture of methamphetamine, especially the unique odor produced during the manufacturing process, and providing information from a proven confidential informant); Chavez v. State, 769 S.W.2d 284, 287-88 (Tex.App.-Houston [1st Dist.] 1989, pet. ref'd) (upholding warrant based on two affidavits, one from officer who stated that he smelled odor that he knew through his past experience as a peace officer was associated with the manufacture of methamphetamine and the other from a property manager who explained in detail that he recognized the distinctive smell because he had smelled it about two years earlier in a methamphetamine lab he discovered at another rental property).

      . 462 U.S. 213, 234-38, 103 S.Ct. 2317, 2330-32, 76 L.Ed.2d 527 (1983).

      . 803 S.W.2d 272, 289 (Tex.Crim.App.1990) (disapproved in part by Heitman v. State, 815 S.W.2d 681, 685 n. 6 (Tex.Crim.App.), cert, denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1078 (1991)).

      . United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (holding information provided by other police officers is presumed reliable by magistrate); Janecka v. State, 739 S.W.2d 813, 825 (Tex.Crim.App. 1987) (same); Marquez v. State, 725 S.W.2d 217, 233 (Tex.Crim.App.) (same), cert, denied, 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987).

      . The majority omits the "has” from its analysis; thereby concluding that Officer Westervelt never previously smelled the odor associated with the manufacture of methamphetamine.

      . I cannot agree with the majority that the affidavit fails to provide a time frame for the mentioned investigation — the affidavit indicates this investigation is currently ongoing— or fails to associate Appellant with the 701 Young Street residence.

      . The majority claims that the State concedes the affidavit rests or falls on the adequacy of the information supplied to Investigator Spra-gins by Officer Westervelt, but the State's brief argues, “The combination of information from the two officers informed the magistrate that a police officer who knows the smell produced by a methamphetamine lab detected the odor of a lab coming from Appellant’s home, and that a very experienced investigator with other corroborating facts concluded that the smell was probably coming from methamphetamine production in the home.”

      . The cases cited by the majority are, in my opinion, not controlling. Rowell v. State involved a warrant to search for a firearm allegedly located at the appellant’s residence, and the warrant was issued six months after appellant redeemed the pawned firearm, not a warrant issued on the same date that a police officer smelled a strong chemical odor emanating from the residence to be searched like in this case. 14 S.W.3d 806, 810 (Tex.App.Houston [1st Dist.] 2000), aff⅜ 66 S.W.3d 279 (Tex.Crim.App.2001) (explaining that "[t]he warrant was not issued for another six months after the second redemption”). Lowery v. State involves information provided by a "tipster” who had been given the information by a third person, not information provided by a police officer based on personal knowledge on the date of the issuance of the warrant like in this case. 843 S.W.2d 136, 141— 42 (Tex.App.-Dallas 1992, pet. ref'd) (explaining that “the untested informant’s secondhand information” which was not corroborated was not reliable).


source: Caselaw Access Project

author: Justice LANG.

license: Public Domain

text:
    Gordon STEIN d/b/a Stein & Associates, Appellant, v. Darwin DEASON, Appellee.
    No. 05-03-01812-CV.
    Court of Appeals of Texas, Dallas.
    April 21, 2005.

      Timothy D. Zeiger, McKinley & Zeiger, P.C., and Brent William Bailey, Dallas, for Appellant.
    Steve Sumner, Sumner, Schick, Hamilton & Pace, and Jerrod L. Davis, Dallas, for Appellee.
    Before Justices FITZGERALD, LANG, and LANG-MIERS.
   OPINION NUNC PRO TUNC

Opinion by

Justice LANG.

We withdraw our January 10, 2005 opinion and issue this nunc pro tunc opinion in its place to correct the style of this case. The judgment remains unchanged.

In a single issue in this interlocutory appeal, Gordon Stein d/b/a Stein & Associates contends the trial court erred in overruling his special appearance in a suit brought by Darwin Deason. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(7) (Vernon 2004-05). For the following reasons, we resolve Stein’s issue against him and affirm the trial court’s order.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2001, Deason, a Texas resident, hired Stein, a California resident, to produce architectural design work for residential construction on property Deason owned in California. This design work was completed in September 2001. According to Dea-son, on a visit to Deason in Dallas at an unspecified date in 2001, Stein represented to Deason that he was a licensed architect. In November 2002, Deason went to California to discuss with Stein modification of the original design project. As a result of the meeting, Deason hired Stein for the “redesign” project. Stein was to: (1) make changes to the schematic design drawings developed during the original design project; (2) Work with the local building officials and the local architectural review committee to obtain the necessary-approvals and variances for the construction; and (3) work with Deason’s Dallas, Texas general contractor.

In December 2002, Stein sent Deason an invoice respecting the redesign project for $35,000. Deason paid this invoice. Stein also quoted Deason a fee of more than $2 million for the entire redesign project. In March 2003, Stein completed the schematics and sent them to the general contractor. Later in March, Stein resigned from the redesign project, but he agreed to attend meetings with local building officials regarding approval and permits for the redesign. A newly-hired architect asked Stein for the original schematics and other materials that Stein prepared, including a license to use the schematics. Stein refused to release the documents unless he was paid for the meetings he attended with the local building officials after he announced his intention to resign.

Deason sued Stein asserting these causes of action: (1) violation of the Texas Deceptive Trade Practices Act arising from allegations that Stein represented that he was a licensed architect, when in fact he was not licensed; (2) breach of contract by refusing to deliver the schematics after resigning, attempting to collect a debt not owed, and failing to “acknowledge” the license; (3) fraud; and (4) violation of the Texas Debt Collection Practices Act. As damages, Deason requested (1) restitution of all consideration Deason paid to Stein, including payments for the original architectural design work and the $35,000 payment; (2) treble, mental anguish, and punitive damages; (3) pre- and post-judgment interest; (4) attorney’s fees; and (5) all costs of court.

After Stein failed to answer, Deason obtained a default judgment. Subsequently, Stein filed a “Rule 120a Special Appearance,” which was supported by a .his affidavit, a “First Amended Rule 120a Special Appearance,” and a “Motion for New Trial Subject to Rule 120a Special Appearance.” The special appearance was set for a hearing. Deason moved for a continuance of the hearing on the special appearance and filed a response to Stein’s special appearance, supported by affidavits. Following a hearing, the trial court signed an order overruling -Stein’s special- appearance. This accelerated appeal timely followed. See Tex.R.Ajpp. P. 28.1.

II. STANDARD OF REVIEW AND APPLICABLE LAW

“[Pjersonal jurisdiction concerns the court’s power to bind a particular person or party.” CSR Ltd., v. Link, 925 S.W.2d 591, 594 (Tex.1996) (orig.proceeding). A special appearance is used to challenge the trial court’s jurisdiction over the person based on the claim that such person is not amenable to process in this State. See Tex.R. Civ. P. 120a.

The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provisions of the Texas long-arm statute. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex.2002). A nonresident defendant challenging personal jurisdiction through a special appearance carries the burden of negating all bases of personal jurisdiction. Id. The exercise of personal jurisdiction over a nonresident is ultimately a question of law that often requires the resolution of factual issues as well. Kytel Int’l Group, Inc. v. Rent-A-Ctr., Inc., 132 S.W.3d 717, 719 (Tex.App.Dallas 2004, no pet.) (citing Marchand, 83 S.W.3d at 794). We review the trial court’s fact findings for legal and factual sufficiency, but conduct a de novo review of its legal conclusions. Id. Because the trial court did not file findings of fact and conclusions of law in this case, we imply all findings of fact necessary to support the trial court’s order that are supported by the evidence. Id. at 720 (citing Marchand, 83 S.W.3d at 795). The trial court’s order overruling Stein’s special appearance states that the trial court considered Stein’s special appearance, Deason’s response, original petition, and motion for default judgment, the affidavits on file, and the arguments of counsel. Accordingly, the record reflects that the trial court did not consider any evidence offered at the hearing on the special appearance, and there is no reporter’s record of the hearing in the appellate record.

A Texas court may exercise jurisdiction over a nonresident defendant if (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with the due process clause of the United States Constitution. Marchand, 83 S.W.3d at 795. The Texas long-arm statute permits Texas courts to exercise jurisdiction over a nonresident that does business in Texas. Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 1997). The long-arm statute defines “doing business” as (1) contracting by mail or otherwise with a Texas resident with performance either in whole or in part in Texas, (2) commission of a tort in whole or in part in Texas, (3) recruitment of Texas residents, directly or through an intermediary located in Texas, or (4) performance of any other acts that may constitute doing business. Id. The broad language of the long-arm statute permits a Texas court to exercise jurisdiction as far as the federal constitution will permit. Marchand, 83 S.W.3d at 795. Consequently, in determining whether jurisdiction exists, we need only determine whether the exercise of jurisdiction comports with the due process clause of the United States Constitution. See City of Riverview, Mich. v. Am. Factors, Inc., 77 S.W.3d 855, 857 (Tex.App.-Dallas 2002, no pet.).

The due process clause of the federal constitution permits a court to exercise jurisdiction over a nonresident defendant if (1) the defendant has purposefully established minimum contacts with the forum state, and (2) the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Federal due process requires the defendant to “purposefully avail” itself of the privilege of conducting activity within the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The defendant’s activities must justify a conclusion that the defendant could reasonably anticipate being haled into a Texas court. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002), cert, denied, 537 U.S. 1191, 123 S.Ct. 1271, 154 L.Ed.2d 1025 (2003). While not determinative, foreseeability is an important consideration in deciding whether a nonresident defendant has purposefully established minimum contacts with the forum state. Marchand, 83 S.W.3d at 795.

A defendant’s contacts with a forum state may give rise to either general or specific jurisdiction. Id. at 795-96. The issue in this appeal is whether specific personal jurisdiction vested. Specific jurisdiction exists if the defendant’s activities have been “purposefully directed” to the forum and the litigation results from injuries arising out of or relating to those activities. Magic House AB v. Shelton Beverage L.P., 99 S.W.3d 903, 908 (Tex.App.Dallas 2003, no pet.). The defendant’s purposeful conduct, not the unilateral acts of the plaintiff, must have caused the contact. Helicópteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417, 104 S.Ct'. 1868, 80 L.Ed.2d 404 (1984). In analyzing minimum contacts, it is not the number, but rather the quality and nature of the nonresident defendant’s contacts with the forum state that are important. Gustafson v. Provider HealthNet Servs., Inc., 118 S.W.3d 479, 483-84 (Tex.App.Dallas 2003, no pet.). In determining specific jurisdiction, we focus on the relationship among the defendant, the forum, and the litigation. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 228 (Tex.1991).

In addition to minimum ■ contacts with the forum state, personal jurisdiction requires that the exercise of jurisdiction comport with traditional notions of fair play and substantial justice. Marchand, 83 S.W.3d at 795. In determining whether the exercise of jurisdiction will offend traditional notions of fair play and substantial justice, the following factors are considered: (1) the burden on the nonresident defendant; (2) the forum state’s interest in adjudicating the dispute; (3) the plaintiffs interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental, substantive social policies. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Guardian Royal, 815 S.W.2d at 228. Consideration of the fair-play analysis is separate and distinct from the minimum-contacts issue. It is unlikely that the exercise of jurisdiction will fail the fair-play analysis because the minimum-contacts analysis encompasses so many considerations of fairness. Schlobohm v. Schapiro, 784 S.W.2d 355, 357-58 (Tex.1990).

III. DISCUSSION

The original petition did not recite personal jurisdictional facts. Stein met his initial burden by pleading in the special appearance that he was a resident of California, not Texas. See Temperature Sys., Inc. v. Bill Pepper, Inc., 854 S.W.2d 669, 673 (Tex.App.-Dallas 1993, writ dism’d by agr.). However, we must consider other jurisdictional facts alleged by Deason in his response to the special appearance. There, Deason alleged certain facts to support specific jurisdiction. He supported his response with his own affidavit and that of his contractor. Specifically, Dea-son claimed that (1) Stein misrepresented that he was a licensed architect when he came to Dallas on an unspecified date in 2001 on the original design project, and because he did not make a representation later in the redesign transaction, Deason continued to believe that Stein was an architect and relied on that representation in Texas; (2) Stein sent a letter to Texas in which he threatened to withhold the schematics unless he was paid a disputed debt; and (3) the agreement as to the redesign project was performable in part in Texas since Stein was to send and did send the schematics to the general contractor in Dallas for review and approval, Stein talked by telephone to the contractor three times about the plans, Stein talked by telephone to Deason about progress, and payment was sent by Deason from Dallas.

A. Consideration of the Affidavits Filed by Deason

First, we address Stein’s contention that Deason’s affidavits were untimely served and should not have been considered by the trial court as evidence. The affidavits were attached to the response, which was served the same day as the special appearance hearing. See Tex.R.Civ. P. 120a(3) (providing that all affidavits be “served at least seven days before the [special appearance] hearing”). The record shows that Deason filed a “Motion for Continuance of the Hearing on Defendant’s Rule 120a Special Appearance” in which, as an alternative to a continuance, he requested that the seven-day requirement for the service of affidavits be waived. Although there is no written order in the record, a docket sheet entry shows the trial court granted Deason leave to file his affidavits. On appeal, Stein argues that because the hearing was non-evidentiary, the trial court had no factual basis justifying its decision to grant leave to file the affidavits on the day of the hearing. However, the verified motion for continuance explained the reason for the late filing. Moreover, the record does not show that Stein responded to the motion for continuance or objected to the timeliness of the affidavits or going forward with the hearing. See S.P.A. Giacomini v. Lamping, 42 S.W.3d 265, 269-70 (Tex. App.-Corpus Christi 2001, no pet.). Accordingly, we reject Stein’s arguments that the trial court should not have considered Deason’s affidavits as evidence.

B. Specific Jurisdiction

Second, we address whether the evidence is legally and factually sufficient to support the trial court’s implied findings that the claimed contact established specific jurisdiction under the tort or contract theories alleged.

Stein argues that for there to be specific jurisdiction, there must be a nexus between the particular transaction at issue and the elements of the causes of action sued upon. See Schlobohm, 784 S.W.2d at 358 (“The cause of action must arise from, or be connected with, such act or transaction.”). In his affidavit, Stein contends that the alleged misrepresentation that he was a licensed architect was made in connection with the separate, prior completed design project. Hence, he says, there is no nexus between the misrepresentation and the redesign project, which he says is the subject of the suit. The first transaction was the design of a home on property Deason owned in California, and the second transaction was the redesign of that home.

Deason, on the other hand, claims the transactions are connected and both found the basis of his suit. According to Dea-son’s affidavit, Stein completed the first design project in September 2001. Then, later, but it is unclear when, Deason went to California to meet with Stein to engage him for the redesign as a separate transaction. According to Deason, the alleged misrepresentation by Stein that he was a licensed architect took place in Dallas only as to the first, completed transaction on an unspecified date in 2001. There is no allegation that Stein made any such representation during the second transaction. Yet, Deason claims, in his affidavit, that the alleged misrepresentation was not retracted and he “relied upon” that representation “in making the decision to hire Stein as my architect in the [rjedesign.”

Stein’s distinction between the transactions is not determinative. We note that Deason’s claims include fraud and restitution of fees from the original design project as well as the redesign project.

The authorities respecting specific jurisdiction cited by the parties are not in disagreement. They direct us to evaluate the nature and quality of the defendant’s acts. See Am. Type Culture Collection, Inc., 83 S.W.3d at 806 (citing Guardian Royal Exch. Assurance Ltd., 815 S.W.2d at 280 n. 11); see also Burger King Corp., 471 U.S. at 474-75, 105 S.Ct. 2174. We must determine if the defendant “purposefully established ‘minimum contacts’ ” with Texas. Burger King Corp., 471 U.S. at 474, 105 S.Ct. 2174; Guardian Royal Exch. Assurance, Ltd., 815 S.W.2d at 226-27. Additionally, due process requires that a defendant not be haled into Texas court unless his activities should have led him to reasonably anticipate being answerable here. Schlobohm, 784 S.W.2d at 359; City of Riverview, Mich., 77 S.W.3d at 858. Accordingly, a court must consider “foreseeability,” meaning that “[w]here a defendant sends false information into a state, knowing it will be relied upon by a resident of the forum state, there is a foreseeable consequence of direct economic injury to the resident at its domicile.” Shapolsky v. Brewton, 56 S.W.3d 120, 134 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (citing Mem’l Hosp. Sys. v. Fisher Ins. Agency, Inc., 835 S.W.2d 645, 650 (Tex-App.-Houston [14th Dist.] 1992, no writ)).

In the authorities offered by Deason, the analysis in each case began with review of a telephone call made between the plaintiff, in Texas, and the alleged tortfeasor in another state, where the alleged tortfeasor induced the plaintiff to act in reliance upon the representation made. Michiana Easy Livin’ Country Inc. v. Holten, 127 S.W.3d 89, 94, 96-97 (Tex.App.-Houston [1st Dist.] 2003, pet. granted); Boissiere v. Nova Capital, LLC, 106 S.W.3d 897, 902-04 (Tex.App.-Dallas 2003, no pet.); Shapolsky, 56 S.W.3d at 126, 132-34; Mem’l Hosp. Sys., 835 S.W.2d at 650-51. It is readily apparent in the facts described in each case that the plaintiff claimed that he relied upon the representation of the defendant and was injured.

The jurisdictional facts alleged by Deason cannot be evaluated in isolation from the claims alleged. While the merits of the claim are not to be determined at this stage, we must, nevertheless, view the facts alleged in the context of the tort alleged to have been committed in whole or in part in Texas. See Bruno’s Inc. v. Arty Imports, Inc., 119 S.W.3d 893, 897 (Tex.App.-Dallas 2003, no pet.); Portland Sav. & Loan Ass’n v. Bernstein, 716 S.W.2d 532, 535 (Tex.App.-Corpus Christi 1985, writ ref'd n.r.e.), overruled on other grounds by Dawson-Austin v. Austin, 968 S.W.2d 319, 323 (Tex.1998); Arterbury v. Am. Bank & Trust Co., 553 S.W.2d 943, 947 (Tex.Civ.App.-Texarkana 1977, no writ). Of course, Deason claims Stein’s representation that he was a “licensed” architect is the basis for his fraud claim. Fraud is “a two-element tort which is not actionable until relied upon to the detriment of the person to whom the representations were made.” Hoppenfeld v. Crook, 498 S.W.2d 52, 56 (Tex.Civ.App.-Austin 1973, writ refd n.r.e.); see Valsangiacomo v. Americana Juice Import, Inc., 35 S.W.3d 201, 210 (TexApp.-Corpus Christi 2000, no pet.) (where “[a]n essential element of a fraud claim is reliance on the misrepresentation”: no specific jurisdiction where shipment of product, alleged as basis of fraudulent inducement claim, could not have induced buyer to enter contract when contract was in place prior to shipment).

The critical element of inducement in a fraud claim is sufficiently alleged where Deason states (1) he never would have hired Stein had he known he was not licensed, and (2) he relied upon Stein’s 2001 representation that he was a “licensed” architect when he decided to hire Stein for the redesign project in 2002. Cf. Valsangiacomo, 35 S.W.3d at 210. However, we must go further and evaluate whether the alleged misrepresentation, made in Texas, was “purposeful” and the injury to Deason in Texas was “foreseeable.” The purposefulness of the Texas contact, that is, the representation made in Dallas, is not addressed by Stein in his affidavit. Stein admits he came to Texas respecting the design project. He does not deny he made the representation. Likewise, Stein does not shed any light on the foreseeability issue. In fact, Deason’s claim of reliance upon the representation in deciding to hire Stein on the redesign project is unassailed. Stein asserts only that his visit to Dallas was regarding the original design project. We conclude that Stein should have understood that the consequences of his having made the representation in Texas could reasonably lead to being haled into court in Texas. Moreover, our courts have concluded that telephone calls, alone, can be a sufficient contact. The fact that Stein made the representation to Deason while physically present in Dallas is significant. Deason has met his burden of presenting sufficient jurisdictional facts. Accordingly, the allegations are legally and factually sufficient to support the trial court’s implied finding that Stein purposefully established minimum contacts with Texas so that specific jurisdiction exists.

Next, we must address the concept of “fair play and substantial justice.” This analysis is separate and distinct from the minimum contacts analysis. See Maryland, 83 S.W.3d at 795.

As we see it, Stein raises three points on this issue. First, he claims that the burden on him is “pronounced” since the location of performance, the real estate, and some of the witnesses is in California. Second, he claims he is not required by California law to be “licensed” as an architect to provide architectural services, so the issue of how California regulates building design and construction is not compelling for Texas. Third, he contends that “permitting this suit to go forward on the basis of a few letters, phone calls, and invoices sent to [Deason] in Texas” would “offend the notion of fair play and substantial justice.” We do not agree with Stein’s contentions.

We note that once a court determines that a nonresident defendant has purposefully established minimum contacts, only in rare instances will the exercise of jurisdiction not comport with fair play and substantial justice. See Guardian Royal Exch. Assurance, Ltd., 815 S.W.2d at 231. The case before us does not present such a rare case. First, the fact that Stein resides in California is not persuasive in deciding personal jurisdiction. See Burger King Corp., 471 U.S. at 476,105 S.Ct. 2174. Nothing in the record indicates that litigation in Texas would be excessively burdensome or inconvenient to Stein. Second, the State of Texas has a strong interest in regulating commercial transactions with its citizens, especially where a tort is alleged to have been committed in whole or in part in Texas, in conjunction with the commercial transaction. See Shapolsky, 56 S.W.3d at 134-35. The jurisdictional allegations do not necessarily implicate the alleged California policy and law respecting licensure of architects. Deason claims, simply, that Stein represented, in Texas, that he was a “licensed” architect. Deason contends he never would have hired Stein “on the Redesign, or at all,” had he known Stein was not licensed. Whether Stein complied with California law respecting performance of architectural services is not part of Deason’s complaint. Finally, we cannot focus, as does Stein, only on mail and telephone contacts. Deason’s claim, not contradicted by Stein, that Stein made the critical alleged misrepresentation while he was present in Dallas, tilts toward a conclusion that the exercise of specific jurisdiction would not offend traditional notions of fair play and substantial justice. See Marchand, 83 S.W.3d at 795.

We conclude that the evidence is legally and factually sufficient to support the trial court’s implied finding that the exercise of specific jurisdiction over Stein does not offend traditional notions of fair play and substantial justice.

Having concluded that the there is specific jurisdiction over Stein in the trial court, we need not address the balance of the parties’ arguments.

IV. CONCLUSION

In our de novo review of the trial court’s denial of Stein’s special appearance, we carefully scrutinize whether the quality and nature of the acts alleged to provide the jurisdictional contact reflect that they have been “purposefully directed” to the state of Texas. Whether the facts alleged in this case to support a finding of personal jurisdiction are considered individually or in the aggregate, we conclude that the tests required by due process and Texas precedents are met. We resolve Stein’s issue against him. The trial court’s order overruling Stein’s special appearance is affirmed.


author: Chief Justice VALDEZ.

text:
    FIDELITY AND GUARANTY LIFE INSURANCE COMPANY, Appellant, v. Rebecca PINA, Francisca Morales and Rosa G. Cortez, Appellees.
    No. 13-04-008-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    April 28, 2005.
    Rehearing Overruled July 14, 2005.

      Jaime Saenz, Brownsville, L. Joseph Loveland, Atlanta, GA, Michael W. Youtt, Kevin D. Mohr, Houston, for Appellant.
    G. Wade Caldwell, Martin, Drought & Torres, Inc., Cori R. Conner, San Antonio, David N. Calvillo, McAllen, for Appellee.
    Before Chief Justice VALDEZ and Justices CASTILLO and GARZA.
   OPINION

Opinion by

Chief Justice VALDEZ.

Appellant, Fidelity and Guaranty Life Insurance Company (“F & G”), brings this interlocutory appeal from an order of the trial court certifying a class action in a consumer fraud case. Because appellees, Rebecca Pina, Francisca Morales, and Rosa G. Cortez, have failed to provide evidence of class-wide reliance on F & G’s misrepresentation regarding the characteristics of its annuities, we reverse and remand.

The Maximus Annuities

Appellees are teachers at the Edcouch-Elsa Independent School District in Texas. They each individually purchased 403(b) fixed annuities known as “Maximus” annuities which were sold by F & G as retirement investments. The Maximus annuities were fixed deferred annuities with an accumulation phase and a payout phase. During the accumulation phase, a policyholder would contribute money either through a lump sum or periodic deposits. During the payout or “annuitization” phase, the policyholder begins to draw payments from the annuity. The Maximus annuities were specifically intended as a retirement supplement for employees of public schools; the teachers would typically pay regular amounts from their paychecks into the annuity over a period of many years. This would generate interest and grow into a more significant amount which could be drawn from upon the teachers’ retirement.

F & G, an insurance company, entered the 403(b) market in the early 1990s, establishing an exclusive “Agency and Distribution Agreement” with R.W. Durham & Company. In exchange for supplying customers for its annuities, F & G would pay Durham various amounts according to a schedule of commissions. The commissions paid to Durham for its services were allegedly on the “high end” of industry practice, and F & G was consequently required to design an annuity product with a high profit margin.

F & G ultimately designed the Maxi-mus annuities with a high front-loaded interest rate. All money deposited into the Maximus account would be assigned the “current money interest rate” for the first year it was held in the account. This rate was to be higher than the industry standard and therefore attract a large amount of customers, and was sometimes referred to as the “teaser” rate. After the first year, however, all deposits would be considered “old money” and assigned a different, much lower rate of interest. Statements sent by F & G to customers did not disclose the exact old money interest rate, but included the following statement: “THE CURRENT INTEREST RATE ON NEW MONEY IS: 7.25% [example]. Current interest rates declared for new premiums include some bonus interest during the first twelve months. A different rate may be credited after the first twelve months.” The interest rate on new money for the named plaintiffs averaged around 7.25%; the old money rates were typically between 3.5 and 4%. The Maximus annuities also had substantial long-term surrender penalties, in order to retain customers once deposits began.

The Maximus annuities were sold to teachers in Texas, California, Connecticut, New Jersey and Oklahoma for several years. In 1998, however, Durham signed a new distribution agreement with another company, and F & G terminated its arrangement with Durham and withdrew from the 403(b) market in December of 1999.

The Class Certification Hearing

The named plaintiffs all purchased their annuities through Durham agents. It was allegedly not disclosed to them at any point that the high introductory interest rates paid on their money would decline after the first year. Upon discovering the new money/old money-design of their annuity, they filed suit against F & G under various provisions of the Deceptive Trade Practices Act, Texas Insurance Code, and common law claims of fraud and misrepresentation. They also requested class certification of all purchasers of the Maximus annuities pursuant to Texas Rule of Civil Procedure 42(a) and (b)(3). See Tex.R. Civ. P. 42. The named plaintiffs alleged that they should be permitted to sue on behalf of all Maximus purchasers because (1) the class was so numerous that joinder of all members in an individualized basis was impracticable, (2) there were questions of law or fact common to the class, (3) the claims of the representative policyholder parties were typical of the claims of the class, and (4) the representative parties would fairly and adequately protect the interests of the class.

Judge Leticia Hinojosa of the 139th District Court conducted a two-day hearing on the class certification issue. On December 19, 2003, Judge Hinojosa entered an order certifying the class, defining the class as “All fixed annuities sold by F & G through [Durham] under the trade names Maximus I, Maximus II, Maximus X, Maximus XV, and Maximus SP.” The class was certified with respect to the claims arising under the consumer protection statutes and insurance codes of Texas, California, Connecticut, New Jersey and Oklahoma. The request to certify the fraud and negligent misrepresentation claims were denied.

Judge Hinojosa’s order of certification did not include legal or factual findings, nor did it include a trial plan. On January 8, 2004, Judge Hinojosa resigned from the bench without entering any further orders. The case was then transferred by the local administrative judge to Judge Noe Gonzalez of the 370th District Court. Judge Gonzalez indicated that he would review the paper record from the hearing. After conducting this review, Judge Gonzalez issued findings of fact and conclusions of law as well as a trial plan. The trial plan contemplated five sets of jury instructions in order to handle the claims arising from five different states.

F & G now appeals from the certification order in three issues: (1) because individual issues of causation, reliance, and the discovery rule predominate over common issues, the trial court abused its discretion in certifying a consumer fraud class; (2) a class action is not superior to other available methods for the fair and efficient adjudication of the controversy, and the trial court therefore abused its discretion in certifying a class; and (3) because the trial court that entered the trial plan did not hear- the evidence presented at the class certification hearing, the trial court failed to perform a rigorous analysis of the requirements for class certification, and thus abused its discretion in certifying a class.

Successor Judges

We first address F & G’s third issue, which asserts that the required rigorous analysis of the class certification request was not performed. In a class certification proceeding, the trial court must perform a rigorous analysis to determine whether all the prerequisites to class certification have been met and how the claims will be tried. See Southwestern Ref. Co. v. Bernal, 22 S.W.3d 425, 435 (Tex.2000).

F & G complains that under the rigorous analysis rule, Judge Gonzalez should not have entered findings of fact and conclusions of law in support of Judge Hinojosa’s class certification order without hearing evidence. F & G cites to the rules of civil procedure for support of its contention, arguing that although Texas Rule of Civil Procedure 18 allows the successor to a retired or deceased judge to hear and determine undisposed motions and to approve “statements of facts,” the rule does not allow a successor judge to- enter findings of fact and conclusions of law without hearing evidence. See Tex.R. Civ. P. 18. F & G also cites to W.C. Banks, Inc. v. Team, Inc., 783 S.W.2d 783, 784 (Tex.App.Houston [1st Dist] 1990, no writ) and Bexar County Ice Cream Co., Inc. v. Swensen’s Ice Cream Co., 859 S.W.2d 402, 404 (Tex.App.-San Antonio 1993, writ denied), overruled on other grounds by Barraza v. Koliba, 933 S.W.2d 164, 167 (Tex.App.-San Antonio 1996, writ denied), in support of its claim that successor judges are prevented from issuing findings and conclusions in cases initiated by their predecessors without hearing evidence.

We disagree with F & G’s interpretation of the law. Rule 18 allows successor judges to dispose of unresolved matters and enter various orders so long as the successor judge does not render judgment without hearing evidence. See Tex.R. Civ. P. 18. Although findings of fact and conclusions of law are not specifically discussed in this rule, rule 18 operates in conjunction with section 30.002 of the remedies code, which allows the successor of a deceased judge to enter findings of fact and conclusions of law for cases pending at the death of his predecessor. See Tex. Civ. PRAC. & Rem.Code Ann. § 30.002(b) (Vernon 1997). While neither of these rules addresses this exact situation in which a judge resigns from the bench and the case is transferred, both of them imply that so long as an order has been entered, successor judges may enter findings of fact and conclusions of law. This conclusion is strongly supported by the holding in Lykes Bros. Steamship Co., Inc. v. Benben, 601 S.W.2d 418, 420 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ ref d n.r.e.), in which the Houston appellate court found no error when a successor judge entered findings of fact and conclusions of law after the predecessor judge had resigned from the bench.

Furthermore, the cases cited by F & G as support are not on point, as neither of them involved a case in which judgment had already been fully rendered. In W.C. Banks, after a hearing presided over by the original judge, a successor judge signed the final judgment without hearing evidence. See W.C. Banks, 783 S.W.2d at 786. The appellate court ruled this was impermissible. Id. Likewise, in Swensen’s Ice Cream, the original judge pronounced judgment orally from the bench but then died before the judgment was reduced to writing. See Swensen’s Ice Cream, 859 S.W.2d at 404. The successor judge not only entered final judgment but also expanded on the earlier pronounced judgment without hearing any additional evidence. Id. The appellate court, noting that “a judge who has heard no evidence cannot rule on a case,” simply treated the additional terms of the judgment entered by the successor as a nullity, relying only on the oral pronouncement from the deceased judge. Id.

Here, Judge Hinojosa resigned from the bench after duly entering a final order of class certification. Judge Gonzalez then thoroughly reviewed the record from the proceedings presided over by Judge Hino-josa and entered findings of fact and conclusions of law in support of the previously rendered judgment. Judge Gonzalez did not expand or limit in any way Judge Hinojosa’s ruling or the class certification order. Although this situation is not directly addressed by the rules of civil procedure, Judge Gonzalez’s actions were a reasonable interpretation and application of the rules so as to avoid unnecessary relitigation of already resolved issues. See Sharp v. International Business Machines Corp., 927 S.W.2d 790, 795 (Tex.App.-Austin 1996, writ denied) (allowing relaxation of strict procedural requirements in the interests of judicial efficiency). We therefore conclude that it was not an abuse of discretion for the trial court to enter its findings of fact and conclusions of law without hearing additional evidence, and we accordingly overrule this issue on appeal.

Class Certification

. We now turn to F & G’s primary contention on appeal: whether the trial court erred in granting the order to certify the consumer class.

Our review of an interlocutory appeal from a class certification order is limited to determining whether the trial court’s order constituted an abuse of discretion. Ford Motor Co. v. Ocanas, 138 S.W.3d 447, 451 (Tex.App.-Corpus Christi 2004, no pet.); see also Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 690-91 (Tex.2002). Although we discuss the propriety of the class certification in light of the claims asserted by the named plaintiffs (i.e., misrepresentation of the design of the Maximus annuities), we are in no way evaluating the merits of these claims. See Intratex Gas Co. v. Beeson, 22 S.W.3d 398, 404 (Tex.2000) (“Deciding the merits of the suit in order to determine its maintainability as a class action is not appropriate.”).

Typically under this standard of review, the appellate court must indulge every presumption favorable to the trial court’s ruling. See Graebel/Houston Movers, Inc. v. Chastain, 26 S.W.3d 24, 29 (Tex.App.-Houston [1st Dist.] 2000, pet dism’d w.o.j.). On certification issues, however, the appellate court is not bound by this presumption and must independently determine whether the requirements of rule 42 have been fully satisfied. See Ford Motor Co., 138 S.W.3d at 451; see also Henry Schein, 102 S.W.3d at 691; Bernal, 22 S.W.3d at 435 (determining that actual compliance with rule 42 “must be demonstrated; it cannot be presumed”).

Under rule 42(a), every class action must satisfy four threshold requirements: numerosity, commonality, typicality, and adequacy of representation. See Tex.R. Civ. P. 42(a). Then, in addition to satisfying these four requirements, the class certification must also satisfy at least one of the subparts of rule 42(b). See Tex.R. Civ. P. 42(b). In their motion for class certification, appellees alleged that their motion for class certification was maintainable pursuant to rule 42(b)(3), which permits class actions when common questions of law or fact predominate and a class action is superior to other forms of adjudication. See id.

F & G contests the adequacy of the class’s compliance with the 42(b)(3) requirement of predominance and superiority. We first consider the predominance requirement because it is one of the most stringent prerequisites to class certification. See Ford Motor Co., 138 S.W.3d at 452. In evaluating whether common issues predominate, courts must identify the controlling substantive issues of the case and assess which issues will predominate to determine whether those issues are in fact common to the class. Snyder Communications, L.P. v. Magana, 142 S.W.3d 295, 300-01 (Tex.2004). Courts must therefore determine whether common or individual issues will be the object of most of the efforts of the litigants and the court. Id. at 301. If there are some common questions of law or fact, but the focus of the litigation will be mainly on individual issues, the court cannot certify the class under rule 42(b)(3). Id. We therefore must identify the major issues which will be the focus of the litigation.

Under the Deceptive Trade Practices Act in Texas, a consumer may maintain an action for economic damages or damages for mental anguish against a party who has used or employed a false, misleading or deceptive act or practice relied on by a consumer to the consumer’s detriment. See Tex. Bus. & Com.Code Ann. § 17.50(a) (Vernon 2002). In California, a consumer may maintain an action under the Consumers Legal Remedies Act if the consumer suffered damages as a result of reliance upon another party’s misrepresentation regarding the quality or characteristics of goods or products. See Cal.Civ.Code § 1770 (Deering 2005); see also Wilens v. TD Waterhouse Group, Inc., 15 Cal.Rptr.3d 271, 120 Cal.App.4th 746, 755 (Cal.App.2003). Establishing liability in both these states under the consumer protection laws requires that there be a finding that the consumer relied on the misrepresentation. An overwhelming majority of the class membership hails from these two states (88%), indicating that reliance will be a major focus of the litigation. Accordingly, this Court must determine if reliance will be a common and predominant issue, justifying class certification, or an individual issue. See Snyder Communications, 142 S.W.3d at 301. It is particularly difficult to establish commonality and predominance of reliance in a group setting because, as one court noted:

Reliance is a thought process or one step in a larger thought process; ... [it] can be shown only by demonstrating the person’s thought processes in reaching the decision. Proof of reliance or lack of reliance necessarily requires an individualized determination because, under all the same facts and circumstances, one person may have relied on the misrepresentation in reaching a decision while another did not rely on it in reaching the same decision.

Grant Thornton, L.L.P. v. Suntrust Bank, 133 S.W.3d 342, 355 (Tex.App.-Dallas 2004, pet. filed) (emphasis added).

In the Henry Schein opinion, the Texas 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. According to the holding in Ilemy Schein, reliance upon misrepresentations made to consumers must be proved with class-wide proof; class-wide proof requires the existence of class-wide evidence. See Schein, 102 S.W.3d at 693. Class-wide evidence requires that there be no differences in how individual members of the class relied on the misrepresentation. Id. at 693 (“Inescapably individual differences cannot be concealed in a throng.”). The court did not entirely preclude class actions in which reliance was an issue, but it did make such cases a near-impossibility:

If a plaintiff could prove reliance in an individual action with the same evidence offered to show class-wide reliance, then the issue is one of law and fact common to the class. The question the court must decide before certifying a class, after rigorous analysis and not merely a lick and a prayer, is whether the plaintiffs have demonstrated that they can meet their burden of proof in such a way that common issues predominate over individual ones.

Id. at 694. Under this standard, it is not enough to demonstrate that a defendant wanted purchasers to rely on its misrepresentations in choosing or staying with a particular product; instead there must be evidence that the purchasers actually did rely on the misrepresentations “so uniformly that common issues of reliance predominate over individual issues.” Id. In the case of Henry Schein, there was “significant evidence that purchasers relied on recommendations from colleagues and others rather than any statements made directly or indirectly by [the defendant].” Id.

The Henry Schein test for class-wide reliance was applied by this Court in the Ford Motor Co. opinion, in which the named plaintiffs attempted to certify a class of all consumers who had purchased F-150 trucks with a Class III towing package. Ford Motor Co., 138 S.W.3d at 450. The Class III package was advertised as including a special, larger radiator but actually was sold with only the base radiator. Id. The trial court certified a class consisting of all purchasers of the F-150 with the Class III towing package; however, relying on Henry Schein, we reversed and remanded the certification order because there was no evidence presented showing that all purchasers actually relied uniformly on Ford’s promise of a larger radiator in making their purchase. Id. at 453. Despite the fact that the misrepresentation clearly occurred and the purchases were then made by all class members, the class also had to show that every purchaser relied on the misrepresentation in making the purchase. Id.

In the current case before us, the three named plaintiffs all provided deposition testimony regarding their reasons for purchasing the Maximus annuity. Rebecca Pina, when questioned as to her reasons for purchasing the Maximus annuity, replied “Because I liked the 7.2 [percent interest rate]. When I saw that number, I said, it’s earning pretty good interest.” Rosa Cortez, when asked the same question, said “Well, it was the interest rate, the 7.25 that caught my eye. I purchased it.” When questioned further on what she would have done if she had realized at the time that the introductory interest rate would only apply to new money, Ms. Cortez answered, “I don’t know what I would have done back then.” Francisca Morales was asked by counsel: “The representation made to you that you were going to get 7.25 percent was what you relied on in deciding to buy the product, correct?” She replied “Correct.” During the same deposition, however, Ms. Morales noted that had the interest rate been 6 percent instead of 7.25, that rate “was just as good as 7, in my opinion.” Although all of the named plaintiffs noted that the new money interest rate presented to them was the reason they initially invested in the Maxi-mus annuity, none of them specifically stated that they actually relied on the interest rate to both remain constant and apply to all monies deposited.

Here, the named plaintiffs provided some evidence that they all relied on the new money interest rate when making their purchases. Each individual’s reliance, however, was highly personalized; two of the plaintiffs indicated that the interest rate could have been different or temporary and this may not have affected their purchase. Furthermore, there was no evidence demonstrating class-wide uniform reliance by all purchasers. The trial court’s findings of fact and conclusions of law noted that “there was class-wide evidence that Class members purchased annuities primarily due to the initial interest rate;” however, there was no discussion of what that class-wide evidence may have been, and appellees do not direct us to any such evidence in the record. Instead, ap-pellees re-direct us to the above-mentioned testimony of the three named plaintiffs, each of which display differences and do not indicate how or whether other members of the class may have weighed the importance of the new money interest rate in making their investment decision. 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 Schein appears to hold open the possibility, there is yet to be a case that has reached the courts of appeals in Texas since the Henry Schein opinion that has encountered a situation in which class-wide proof of reliance could be found.

Conclusion

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.” Henry Schein, 102 S.W.3d at 701; Ford Motor Co., 138 S.W.3d at 454. 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. Ford Motor Co., 138 S.W.3d at 454.

Given our holding on this issue, we decline to address appellant’s remaining issues on appeal. See Tex.R.App. P. 47.1. We reverse the judgment of the trial court and remand for further proceedings.

      . F & G sold five different types of Maximus annuities to the class members: Maximus I, Maximus II, Maximus X, Maximus XV, and Maximus SP. The overall design and basic features of these annuities were all the same and any differences between them were irrelevant for purposes of this litigation.

      . Before 1997, statements read "A different rate will be credited after the first twelve months” (emphasis added).

      . The order excluded from the class the following parties: (1) any annuity sold by Du-rhan agents to employees of private schools or other private employers, who would not be governed under the governmental plan exemption under ERISA; (2) all present or former officers or directors of F & G since January 1, 1993; (3) all persons who surrendered their annuities (a) more than four years before the suit was filed for policyholders in Texas, (b) more than three years before the suit was filed for policyholders in California, Connecticut and Oklahoma, and (c) more than six years before the suit was filed for class members in New Jersey; (4) all persons who, while represented by an attorney, have signed a release of F & G for the claims made in this suit; (5) all policyholders who have died and F & G had paid a death benefit under the annuity; and (6) any group contract holder where the annuities were sold through individual certificates.

      . Claims based on consumer protection statutes were certified as follows.
      Texas: Texas Business and Commerce Code § 17.46(b)(5), (7), and (24) and § 17.45(5); Texas Insurance Code article 21.21.
      California: California Civil Code (Consumers Legal Remedies Act) § 1770(a)(5), (7), and (14)
      Connecticut: Connecticut General Statute, § 42-110b(a) and applicable regulations established under § 42-110b(c).
      New Jersey: New Jersey Statutes §§ 56:8-2, 56:8-2.2 and 56:8-19.
      Oklahoma: 15 Oklahoma Statutes §§ 751, 752(14), and 753(5), (7) and (20).