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SUPREME COURT OF ARKANSAS
No. CV-16-584
ROBINSON NURSING AND Opinion Delivered May 4, 2017
REHABILITATION CENTER, LLC,
D/B/A ROBINSON NURSING AND APPEAL FROM THE PULASKI
REHABILITATION CENTER; COUNTY CIRCUIT COURT
CENTRAL ARKANSAS NURSING [NO. 60CV-14-4568]
CENTERS, INC.; NURSING
CONSULTANTS, INC.; AND MICHAEL HONORABLE TIMOTHY DAVIS
MORTON FOX, JUDGE
APPELLANTS
AFFIRMED IN PART; REVERSED
V. AND REMANDED IN PART.
ANDREW PHILLIPS, AS PERSONAL
REPRESENTATIVE OF THE ESTATE
OF DOROTHY PHILLIPS, AND ON
BEHALF OF THE WRONGFUL DEATH
BENEFICIARIES OF DOROTHY
PHILLIPS; AND ON BEHALF OF
THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED
APPELLEES
KAREN R. BAKER, Associate Justice
Appellants Robinson Nursing and Rehabilitation Center, LLC, d/b/a Robinson
Nursing and Rehabilitation Center; Central Arkansas Nursing Centers, Inc.; Nursing
Consultants, Inc.; and Michael Morton (collectively “Robinson”) bring an interlocutory
appeal of the Pulaski County Circuit Court’s order certifying a class action filed by appellees
Andrew Phillips, as personal representative of the estate of Dorothy Phillips, and others
(collectively “Phillips”). Dorothy Phillips was a resident of Robinson from approximately
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August 19, 2013, until February 22, 2014. On appeal, Robinson argues that Phillips did not
meet his burden of proving commonality, predominance, typicality, and superiority.
Robinson also argues that the class definition is overbroad. We affirm the circuit court’s order
in part and reverse and remand in part.
Facts and Procedural History
On September 4, 2015, Phillips filed his first amended class-action complaint alleging
that Robinson’s business practice of chronic understaffing breaches the admission agreement
and provider agreement, violates the Arkansas Deceptive Trade Practices Act (“ADTPA”),
constitutes negligence and civil conspiracy, and unjustly enriches Robinson. Phillips sought
compensatory, economic and punitive damages, attorney’s fees, interest, and costs. On
September 10, 2015, Phillips filed his amended motion for class certification. Phillips argued
that the class-certification issue before the circuit court was controlled by GGNSC
Arkadelphia, LLC v. Lamb, 2015 Ark. 253, 465 S.W.3d 826. In Lamb, this court affirmed the
certification of contractual and statutory claims against GGNSC in which the plaintiff residents
alleged that GGNSC failed to properly and adequately staff its facilities.
On September 24, 2015, Robinson filed its answer to Phillips’s first amended class-
action complaint, and on September 28, 2015, Robinson filed its response to Phillips’s motion
for class certification. Robinson argued that class certification was inappropriate in the present
case and that Phillips’s motion for class certification should be denied. Specifically, Robinson
argued that the claims and issues in the present case differ significantly from those presented
in Lamb because the Lamb plaintiffs did not assert claims for negligence and unjust enrichment.
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On October 13, 2015, Phillips filed his reply and on October 20, 2015, Robinson filed its
sur-reply.
After conducting a hearing on March 4, 2016, the circuit court entered an order
granting class certification. The circuit court defined the class as
[a]ll residents and estates of residents who resided at the Robinson Nursing and
Rehabilitation Center from June 11, 2010, to present. Excluded from the Class are
(1) residents that have sued in the past or presently have lawsuits pending against any
of the Defendants except the plaintiffs named herein; (2) all present and former
employees, officers, directors, of Defendants; (3) any Class Member who timely elects
to be excluded from the class; and (4) any employee of the Circuit Court of Pulaski
County, Arkansas, or any officer of any court presiding over this action.
The circuit court found that the common questions as to the class members include but are
not limited to:
a. Whether the standard Admission Agreement required the Facility to have
sufficient staff to meet the care needs of the residents as required by state and
federal laws and regulations.
b. Whether Ark. Code Ann. §§ 20-10-201, et seq. imposes minimum staffing
requirements requiring the Facility to have sufficient staff to meet the care
needs of the residents.
c. Whether Defendants failed to meet the minimum staffing requirements of Ark.
Code Ann. §§ 20-10-1201, et. seq., and the Defendants’ admission agreement
by failing to provide sufficient staff to meet the care needs of the residents.
d. Whether failure to meet the minimum staffing requirements required by state
and federal laws and regulations breaches the Defendants’ admission agreement,
Ark. Code Ann. § 20-10-1201, et. seq., and the Arkansas Deceptive Trade
Practices Act.
e. Whether chronically understaffing the Facility in violation of state and federal
laws and regulations is an unconscionable business practice in violation of the
Arkansas Deceptive Trade Practices Act.
f. Whether the Defendants owed a legal duty to the residents to staff the Facility
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in compliance with state and federal laws and regulations;
g. If so, whether the Defendants’ breach of their duty to adequately staff the
Facility in compliance with state and federal laws regulations;
h. Whether failure to staff the Facility in compliance with state and federal laws
and regulations is a breach of the provider agreement;
i. Whether the admission agreement’s failure to disclose the Facility’s history of
understaffing is an omission or concealment which constitutes a violation of the
Arkansas Deceptive Trade Practices Act;
j. Whether the Defendants were unjustly enriched;
k. Whether the Defendants engaged in a civil conspiracy to understaff the Facility
in violation of state and federal laws and regulations; and[1]
l. Whether Michael Morton and the entity Defendants are control persons as
defined in Ark. Code Ann. [§] 4-88-113(d)(1) and therefore jointly and
severally liable for the damages suffered by the Plaintiff Class for the
Defendants’ deceptive trade practices.
Citing to this court’s precedent in Lamb, supra, and Beverly Enterprises-Arkansas, Inc. v. Thomas,
370 Ark. 310, 259 S.W.3d 445 (2007), the circuit court found that the common issues
predominated over the individual issues. The circuit court also found that the requirements
of numerosity, typicality, superiority, and adequacy were satisfied. Finally, the circuit court
found that the class definition was proper and not overbroad.
Robinson now brings its timely interlocutory appeal from the circuit court’s order
granting class certification pursuant to Rule 2(a)(9) of the Arkansas Rules of Appellate
Procedure–Civil.
1
The parties do not address the civil-conspiracy claim on appeal.
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Standard of Review
An interlocutory appeal may be taken from an order certifying a case as a class action
in accordance with Rule 23 of the Arkansas Rules of Civil Procedure. Circuit courts are
given broad discretion in matters regarding class certification, and we will not reverse a circuit
court’s decision to grant or deny class certification absent an abuse of discretion. ChartOne,
Inc. v. Raglon, 373 Ark. 275, 283 S.W.3d 576 (2008). When reviewing a circuit court’s
class-certification order, this court reviews the evidence contained in the record to determine
whether it supports the circuit court’s decision. Teris, LLC v. Golliher, 371 Ark. 369, 266
S.W.3d 730 (2007). Our focus is “whether the requirements of Rule 23 are met,” and “it is
totally immaterial whether the petition will succeed on the merits or even if it states a cause
of action.” Philip Morris Cos. v. Miner, 2015 Ark. 73, at 3, 462 S.W.3d 313 (quoting Am.
Abstract & Title Co. v. Rice, 358 Ark. 1, 9, 186 S.W.3d 705, 710 (2004)).
Class Certification
On appeal, Robinson argues that the present case is fundamentally different from the
certification issues presented in Lamb, supra, and Thomas, supra. Further, Robinson argues that
Phillips has failed to meet his burden of proof under Rule 23 of the Arkansas Rules of Civil
Procedure. Specifically, Robinson argues that Phillips has failed to prove (1) commonality,
(2) predominance, (3) typicality, and (4) superiority. Finally, Robinson contends that the class
definition is overbroad.
Rule 23 of the Arkansas Rules of Civil Procedure governs class actions and class
certification. The rule provides, in pertinent part:
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(a) Prerequisites to Class Action. One or more members of a class may sue or be
sued as representative parties on behalf of all only if (1) the class is so numerous
that joinder of all members is impracticable, (2) there are questions of law or
fact common to the class, (3) the claims or defenses of the representative parties
are typical of the claims or defenses of the class, and (4) the representative
parties and their counsel will fairly and adequately protect the interests of the
class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the
prerequisites of subdivision (a) are satisfied, and the court finds that the
questions of law or fact common to the members of the class predominate over
any questions affecting only individual members, and that a class action is
superior to other available methods for the fair and efficient adjudication of the
controversy.
Therefore, there are six requirements for class-action certification, as stated in Rule 23: (1)
numerosity, (2) commonality, (3) typicality, (4) adequacy, (5) predominance, and (6)
superiority. Gen. Motors Corp. v. Bryant, 374 Ark. 38, 285 S.W.3d 634 (2008). In addition to
the requirements of Rule 23, the court must be able to objectively identify members of the
class. Farmers Ins. Co. v. Snowden, 366 Ark. 138, 233 S.W.3d 664 (2006).
I. Breach of Contract, ADTPA, & Unjust-Enrichment Claims2
On appeal, Robinson argues that the circuit court abused its discretion in finding that
the commonality and predominance requirements of Rule 23 had been met. As to the
breach-of-contract, ADTPA, and unjust-enrichment claims, for the reasons stated in Lamb,
we disagree.
A. Commonality & Predominance
We now turn to the specific requirements of class certification. To certify a class, the
2
Phillips’s unjust-enrichment claim is intertwined with his breach-of-contract and
ADTPA claims. Accordingly, these three claims will be addressed together.
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circuit court must determine that “there are questions of law or fact common to the class.”
Ark. R. Civ. P. 23(a)(2). The commonality requirement is always case specific and
Rule 23(a)(2) does not require that all questions of law or fact raised in the litigation
be common. The test or standard for meeting the rule 23(a)(2) prerequisite is . . . that
there need be only a single issue common to all members of the class . . . When the
party opposing the class has engaged in some course of conduct that affects a group of
persons and gives rise to a cause of action, one or more of the elements of that cause
of action will be common to all of the persons affected.
Union Pac. R.R. v. Vickers, 2009 Ark. 259, at 8–9, 308 S.W.3d 573, 578 (quoting Herbert B.
Newberg, Newberg on Class Actions § 3.10 (3d ed. 1993)). The circuit court “must determine
what elements in a cause of action are common questions for the purpose of certifying a
class,” and commonality is satisfied where “the defendant’s acts, independent of any action by
the class members, establish a common question relating to the entire class.” Id. at 9, 308
S.W.3d at 578 (quoting Williamson v. Sanofi Winthrop Pharms., Inc., 347 Ark. 89, 97, 60
S.W.3d 428, 433 (2001)).
Once commonality is determined when deciding whether to certify a class, the next
question is whether common questions of law and fact predominate over any questions
affecting only individual members. Rosenow v. Alltel Corp., 2010 Ark. 26, 358 S.W.3d 879.
With regard to the predominance requirement of Rule 23(b), we must decide if the issues
common to all plaintiffs predominate over the individual issues. Baker v. Wyeth-Ayerst Labs.
Div., 338 Ark. 242, 992 S.W.2d 797 (1999). The predominance requirement, however, is
more stringent than the commonality requirement. Vickers, 2009 Ark. 259, at 9, 308 S.W.3d
at 578 (citing BPS, Inc. v. Richardson, 341 Ark. 834, 20 S.W.3d 403 (2000)). In Vickers, we
explained the standard for testing predominance:
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When deciding whether common questions predominate over other questions
affecting only individual members, this court does not merely compare the number of
individual versus common claims. Rather, this court decides if the preliminary,
overarching issues common to all class members “predominate over” the individual
issues, which can be resolved during the decertified stage of a bifurcated proceeding.
Thus, the mere fact that individual issues and defenses may be raised regarding the
recovery of individual members cannot defeat class certification where there are
common questions concerning the defendant’s alleged wrongdoing that must be
resolved for all class members.
Id. (internal citations omitted).
If a case involves preliminary issues common to all class members, predominance is
satisfied even if the court must subsequently decertify a class due to individualized damages.
Snowden, 366 Ark. 138, 148, 233 S.W.3d 664, 670. However, if the preliminary issues are
sufficiently individualized, then predominance is not satisfied, and class certification is
improper. Id., 233 S.W.3d at 671.
Phillips contends that the arguments presented in the present case were already rejected
in Lamb and Thomas; thus, we should affirm the circuit court’s finding of commonality and
predominance. We agree.
The commonality requirement is clearly satisfied because, as required in Vickers, supra,
Robinson’s act of understaffing, independent of any action by Phillips, establishes a common
question relating to the entire class. Further, we find that the predominance requirement has
been satisfied. In Lamb, we explained Thomas as follows,
In Thomas, supra, the plaintiffs pursued a class-action suit against a nursing home
located in Batesville. The complaint asserted that, pursuant to the facility’s admission
agreement, as well as the Residents’ Rights Act, the nursing home was obligated to
take care of the residents’ basic daily needs and that the nursing home had failed to
meet this obligation by neglecting to properly and adequately staff the facility. The
circuit court granted class certification, finding that the common issues predominated
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over individual ones. On appeal, the nursing home argued that the circuit court erred
by certifying the class because the identified questions of fact could not be resolved
without a detailed examinations of the individual circumstances of each class member
and because the predominant issues raised involved only individualized issues of
liability, causation, and the existence and extent of injury for each class member. This
court rejected the nursing home’s argument and affirmed the class-certification order,
holding as follows:
We conclude that one main and preliminary overarching issue does exist in this
case, which is whether the Batesville nursing facility was chronically
understaffed so as to violate the residents’ statutory and contractual rights. In its
order, the circuit court found thirteen questions of fact and law and five issues
that must be resolved, which are common to all class members. The five issues
all involved understaffing. The court then found that the common factual and
legal issues predominated over the individual issues because all residents relied
upon the same Resident Admission Agreement and statutory law to assert that
systemic understaffing resulted in undignified living conditions for the residents,
which breached that agreement and violated state law. The circuit court
recognized that once these predominating issues were resolved, the class could
be decertified, if necessary, to determine individual restitution and damage
issues for class members for breach-of-contract and statutory violations.
We hold that the circuit court did not abuse its discretion in determining that
the overarching issue of understaffing is common to the class and may be
resolved before individual issues of damages must be addressed. The
predominance criterion is satisfied in this case. Thomas, 370 Ark. at 318, 259
S.W.3d at 450.
2015 Ark. 253, at 11–12, 465 S.W.3d at 832–33.
Thus, in holding that the circuit court did not abuse its discretion in finding that the
element of predominance had been satisfied, the court explained that “the common,
overarching issues concern whether appellants have liability for chronic understaffing under
the admission agreement and the asserted statutes.” 2015 Ark. 253, at 16, 465 S.W.3d at 835.
Accordingly, based on Lamb, as to the breach of contract, ADTPA, and unjust-enrichment
claims, we hold that the circuit court correctly found that the commonality and predominance
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requirements of Rule 23 had been met.
B. Superiority
Next, Robinson argues that a class action is not the superior method for handling the
litigation in this case. In response, Phillips argues that a class action is the superior method
for resolving the pervasive common question of understaffing.
In finding that the superiority requirement had been satisfied, the circuit court relied
on Lamb and Thomas. In Thomas, this court explained
Rule 23(b) requires that a class action be superior to other available methods for the
fair and efficient adjudication of the controversy. This court has held that the
superiority requirement is satisfied if class certification is the more “efficient” way of
handling the case, and it is fair to both sides. Where a cohesive and manageable class
exists, we have held that real efficiency can be had if common, predominating
questions of law or fact are first decided, with cases then splintering for the trial of
individual issues, if necessary. This court has further stated that when a trial court is
determining whether class-action status is the superior method for adjudication of a
matter, it may be necessary for the trial court to evaluate the manageability of the class.
Thomas, 370 Ark. at 319, 259 S.W.3d at 451 (citing Asbury Auto. Grp., Inc., 366 Ark. at 611,
237 S.W.3d at 469-70 (quoting Van Buren Sch. Dist. v. Jones, 365 Ark. 610, 621, 232 S.W.3d
444, 453 (2006)).
Robinson argues that in requiring individual trials as to injury, causation, and damages,
judicial economy is not met. Phillips correctly notes that this specific argument was rejected
in Lamb. In Lamb, the court explained that “determining the central questions whether
understaffing creates contractual or statutory liability and whether chronic understaffing
occurred are more efficiently handled in a single proceeding.” Id. at 19. In Lamb, we
explained that “the determination of understaffing is not unmanageable simply because twelve
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facilities are involved.” Id. Thus, as in Lamb, the class as certified in the present case is a
cohesive and manageable group because the common question of understaffing can be
ascertained on a classwide basis.
C. Typicality
Next, Robinson argues that the typicality requirement has not been met because
Phillips’s claims are not typical of class members who resided at Robinson prior to or after Ms.
Phillips’s six-month residency from August 2013 to February 2014. Robinson contends that
typicality is not satisfied because staffing during Ms. Phillips’s residency was different from the
staffing before or after. Robinson relies on the written staffing reports and asserts that the
staffing levels at Robinson varied significantly over the course of the class period. Further,
Robinson argues that Phillips’s claims are not typical because his claims narrowly focus on one
potential area of wrongdoing to the exclusion of other events or practices. Phillips has
focused his allegations exclusively on claims of understaffing. Therefore, any class member
who has a claim based on an alternate legal theory would be precluded from bringing such
a claim.
In response, Phillips relies on the circuit court’s finding that this argument requires
resolution of the “ultimate question of whether the nursing home was chronically
understaffed. The Court cannot delve into the merits of the case when deciding the
procedural issue of the class certification.” As to typicality, we agree with Phillips. We have
said that neither the circuit court nor the appellate court may delve into the merits of the
underlying claim when deciding whether the requirements of Rule 23 have been met. Lamb,
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2015 Ark. 253, at 20–21, 465 S.W.3d at 837.
The circuit court specifically found that “[Phillips] alleges the same unlawful conduct
affects hundreds of residents at the Facility. That is, [Robinson’s] normal practice of
chronically understaffing the Facility so as to violate the residents’ contractual and statutory
rights. The alleged conduct is the same and the claims are based upon the same legal theories.
[Phillips] has ‘alleged the same unlawful conduct was directed at or affected both the named
Plaintiff and the class sought to be certified.’ Accordingly, typicality is satisfied.”
The focus of the typicality requirement is on the conduct of the alleged wrongdoer
giving rise to the claim rather than on the injury sustained from the conduct. Kersten v. State
Farm Mut. Auto. Ins. Co., 2013 Ark. 124, 426 S.W.3d 455.
The typicality requirement is stated in Rule 23(a): “One or more members of
a class may sue or be sued as representative parties on behalf of all only if . . . (3) the
claims or defenses of the representative parties are typical of the claims or defenses of
the class.” Ark. R. Civ. P. 23(a). The typicality requirement is satisfied if the class
representative’s claim arises from the same wrong allegedly committed against the
members of the class. Thus, a representative’s “claim is typical if it arises from the same
event or practice or course of conduct that gives rise to the claims of other class
members, and if [the representative’s] claims are based on the same legal theory.”
Moreover, “When it is alleged that the same unlawful conduct was directed at or
affected both the named plaintiff and the class sought to be represented, the typicality
requirement is usually met irrespective of varying fact patterns which underlie
individual claims.” Thus, when analyzing the factor of typicality, this court focuses
upon the defendant’s conduct and not on the injuries or damages suffered by the
plaintiffs.
DIRECTV, Inc. v. Murray, 2012 Ark. 366, at 13–14, 423 S.W.3d 555, 564. (internal citations
omitted). Because the class representative’s claim arises from the same alleged wrongful
conduct, understaffing, the circuit court correctly found that the typicality requirement had
been satisfied.
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D. Class Definition
Robinson argues that the class definition is overbroad. In response, Phillips contends
that the class definition is not overbroad and has been approved by this court in Lamb. We
agree with Phillips because the class definition in the present case is almost identical to the
class definition we approved in Lamb. In finding no abuse of discretion in the circuit court’s
definition of the class, we explained:
Before a class can be certified under Rule 23, the class description must be
sufficiently definite so that it is administratively feasible for the court to determine
whether a particular individual is a member of the proposed class. The class must first
be susceptible to precise definition to ensure that the class is neither “amorphous,” nor
“imprecise.” Furthermore, for a class to be sufficiently defined, the identity of the class
members must be ascertainable by reference to objective criteria.
Appellants misstate our case law as requiring that a class must be defined to limit
membership only to those who have sustained actual harm. What we have said, many
times, is that “[c]learly defining the class ensures that those people who are actually
harmed by a defendant’s wrongful conduct will participate in the relief ultimately
awarded.” Ensuring the participation of all those who have been harmed does not
translate into a requirement that the definition must include an element of actual harm.
On the contrary, it would be improper to define a class by reference to actual injury
because this would require a determination of the merits of a putative class member’s
claim. However, neither the circuit court nor the appellate court may delve into the
merits of the underlying claim when deciding whether the requirements of Rule 23
have been met.
Lamb, 2015 Ark. 253, at 20–21, 465 S.W.3d at 837 (internal citations omitted).
In Lamb, the class definition included residents and estates of residents “who resided
at the Golden Living nursing homes in Arkansas from December 2006, through July 1, 2009.”
Here, the class definition includes residents and estates of residents “who resided at the
Robinson Nursing and Rehabilitation Center from June 11, 2010, to present.” We recognize
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that the class definition here is not a closed group. However, the class definition is sufficiently
definite so that it is administratively feasible for the court to determine whether a particular
individual is a member of the proposed class.
Because the present class definition is nearly identical to the class definition in Lamb,
the circuit court did not abuse its discretion in defining the class.
Having found the above requirements for a class action to be satisfied, we affirm the
circuit court’s class certification as to Phillips’s claims of breach of contract, ADTPA, and
unjust enrichment.
II. Negligence
Next, Robinson argues that Phillips’s negligence claim is inappropriate for class
certification. Specifically, Robinson contends that the foundational elements of breach,
causation, and injury are incapable of classwide resolution. In response, Phillips relies on Lamb
and urges us to affirm the circuit court’s order. However, this argument is misplaced because
Lamb did not contain a negligence claim and was not certified in Lamb’s class-certification
order. Therefore, Lamb is not on point for our analysis of the negligence claim.
A. Commonality & Predominance
Turning to our review of commonality and predominance with regard to negligence,
we must review the elements of negligence. Under Arkansas law, in order to prevail on a
claim of negligence, the plaintiff must prove that the defendant owed a duty to the plaintiff,
that the defendant breached the duty, and that the breach was the proximate cause of the
plaintiff’s injuries. Branscumb v. Freeman, 360 Ark. 171, 200 S.W.3d 411 (2004) (citing Wilson
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v. Rebsamen Ins., Inc., 330 Ark. 687, 957 S.W.2d 678 (1997)). The burden in a negligence
case is always on the party asserting the claim; negligence is never assumed. Yanmar Co., Ltd.
v. Slater, 2012 Ark. 36, 386 S.W.3d 439 (citing Morehart v. Dillard Dep’t Stores, 322 Ark. 290,
908 S.W.2d 331 (1995)). Negligence may be established by direct or circumstantial evidence,
but a plaintiff may not rely on inferences based on conjecture or speculation. Id. (citing Ark.
Kraft v. Cottrell, 313 Ark. 465, 855 S.W.2d 333 (1993)). Therefore, negligence requires an
individual analysis of each plaintiff’s specific allegations. Even assuming there are questions
common to each class member, we cannot say that these common issues clearly predominate
over the individual issues. Stated differently, there is “no one set of operative facts” to
establish Robinson’s liability to any given class member. Vickers, 2009 Ark. 259, at 19, 308
S.W.3d at 582–583 (citing Baker, 338 Ark. at 247, 992 S.W.2d at 800). Here, each class
member’s claim would result in an individualized inquiry as to whether understaffing was the
proximate cause of his or her injury. Because the individualized questions concerning
proximate causation clearly predominate over the common questions, class certification as to
Phillips’s negligence claim is inappropriate. Accordingly, under the facts of this case, the
proximate-causation analysis necessarily requires an individual inquiry, which renders Phillips’s
negligence claim inappropriate for class certification.
Based on the highly individualized nature of the negligence claim, we hold that the
circuit court abused its discretion in certifying the class action as to negligence. Accordingly,
we reverse and remand with instructions to decertify the class as to Phillips’s negligence
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claim.3
Affirmed in part; reversed and remanded in part.
KEMP, C.J., and GOODSON, HART, WYNNE, and WOMACK, JJ., concur in part and
dissent in part.
JOHN DAN KEMP, Chief Justice, concurring in part and dissenting in part.
I concur with the majority that the circuit court did not abuse its discretion in finding that the
proposed class fulfilled the Rule 23 requirements of commonality, predominance, superiority,
and typicality on Phillips’s breach of contract, Arkansas Deceptive Trade Practices Act, and
unjust enrichment claims. See Ark. R. Civ. P. 23 (2016). I also concur with the majority that
the circuit court did not abuse its discretion in defining the class. But I dissent from the
majority’s holding that the circuit court abused its discretion in certifying the class action on
Phillips’s negligence claim. In my view, the circuit court properly granted Phillips’s motion
for class certification, without delving into the merits of each claim, based on the class-
certification criteria set forth in Rule 23. For these reasons, I concur in part and dissent in
part.
When reviewing a circuit court’s class-certification order, we review the evidence
contained in the record to determine whether it supports the circuit court’s decision. See
Georgia-Pac. Corp. v. Carter, 371 Ark. 295, 265 S.W.3d 107 (2007). We have stated that
3
Because we hold that the predominance requirement has not been satisfied as to the
negligence claim, we do not reach the other requirements of Rule 23 of the Arkansas Rules
of Civil Procedure.
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the issue of whether to certify a class is not determined by whether the plaintiff or
plaintiffs have stated a cause of action or will prevail on the merits, but rather whether
the requirements of Rule 23 are met. We have also observed that it is totally
immaterial whether the petition will succeed on the merits or even if it states a cause
of action. An order denying or granting class certification is separate from the merits
of the case. Although we do not delve into the merits of the underlying claims in a
potential class-action case, we will review the trial court’s order to determine whether
the requirements of Rule 23 are satisfied.
Am. Abstract & Title Co. v. Rice, 358 Ark. 1, 9, 186 S.W.3d 705, 710 (2004) (internal citations
omitted).
The overarching question relating to the entire class is whether Robinson chronically
understaffed its facility in violation of the residents’ statutory and contractual rights. Here, the
majority mistakenly delves into the merits of the underlying claims in the class-action case by
certifying the class on all claims except negligence. This court has stated that a circuit court
may not consider “whether the plaintiffs will ultimately prevail, or even whether they have
a cause of action,” because “the propriety of a class action is ‘basically a procedural question.’”
Fraley v. Williams Ford Tractor & Equip. Co., 339 Ark. 322, 335, 5 S.W.3d 423, 431 (1999)
(quoting Farm Bureau Mut. Ins. Co. v. Farm Bureau Policy Holders & Members, 323 Ark. 706,
709, 918 S.W.2d 129, 130 (1996)). Thus, any underlying claims, such as negligence, are for
the jury to decide at trial. Accordingly, I would hold that the circuit court properly granted
Phillips’s motion for class certification and would affirm.
GOODSON and WYNNE, JJ., join this opinion.
JOSEPHINE LINKER HART, Justice, concurring in part and dissenting in part.
I agree with the majority’s holding that the negligence claim in this case is not
amenable to class certification and should be decertified. I respectfully dissent, however, from
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the majority’s conclusion that the circuit court properly certified as a class action appellees’
claims that were based on contract, unjust enrichment, and the Arkansas Deceptive Trade
Practices Act.
In GGNSC Arkadelphia, LLC v. Lamb, 2015 Ark. 253, 465 S.W.3d 826, this court
emphasized that the common factual and legal issues predominated over the individual issues
because all residents relied on a standard admission agreement and statutory law to assert
chronic understaffing. In Lamb, chronic understaffing was shown through an objective
examination of the mandatory written reports of all shifts that failed to meet minimum staffing
requirements. Ark. Code Ann. § 20-10-1407 (Repl. 2014). Thus, understaffing could be
determined on a classwide basis.
Here, however, the majority goes a step further. There is no suggestion of chronic
understaffing in violation of the statutory staffing-to-resident ratios provided in Ark. Code
Ann. § 20-10-1403. Rather, appellees are relying on the general language that “the staffing
standard required by this subchapter shall be the minimum number of direct-care staff
required by nursing facilities and shall be adjusted upward to meet the care needs of residents.”
Ark. Code Ann. § 20-10-1402(b)(1). Unlike a determination of staffing that is based on
specific ratios, this staffing standard is subjective and leaves the court without an objective
standard to ascertain, on a classwide basis, whether Robinson was understaffed. A
determination of the care needs of the residents and whether any upward adjustment was
required would require a highly individualized inquiry as to each resident because each
resident clearly had different care needs.
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Cite as 2017 Ark.
Because the court must consider each class member’s care needs, there is no one set
of operative facts to establish appellants’ liability to any given class member. Rather, the issue
of understaffing and whether each class member’s care needs were met is sufficiently
individualized and fails to satisfy the commonality and predominance requirements. Thus,
even though appellees allege understaffing, this case is not similar to Lamb, and it was
inappropriate for the circuit court to certify the case as a class action.
WOMACK, J., joins.
Hardin, Jesson & Terry, PLC, by: Kirkman T. Dougherty, Jeffrey W. Hatfield, Stephanie
I. Randall, and Kynda Almefty, for appellants.
Campbell Law Firm, P.A., by: H. Gregory Campbell; and Reddick Moss, PLLC, by:
Brian D. Reddick, for appellee.
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