JENNIFER TOWNSEND, Individually and on Behalf of Herself and Others Similarly Situated v. REGIS CORPORATION and DARLEEN MATRANGA, Defendants-Respondents

JENNIFER TOWNSEND, )
Individually and on Behalf of Herself and)
Others Similarly Situated, )
)
Plaintiff-Appellant, )
)
vs. ) No. SD36671
)
REGIS CORPORATION and ) FILED: October 13, 2020
DARLEEN MATRANGA, )
)
Defendants-Respondents. )

APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY
Honorable Jeffrey M. Merrell, Circuit Judge
REVERSED AND REMANDED WITH DIRECTIONS
(Before Rahmeyer, P.J., Scott, J., and Francis, J.)
PER CURIAM. Appellant (“Plaintiff”) seeks our review of an interlocutory
order denying Rule 52.08 class-action certification. 1 Because we cannot do so on
the record before us, we reverse and remand for further proceedings consistent
herewith. The circumstances allow us to be brief, both legally and factually.
Rule 52.08
Rule 52.08(a) lists four prerequisites to class-action certification:
(1) the class is so numerous that joinder of all members is
impracticable [“numerosity”], (2) there are questions of law or

1 Rule references are to Missouri Court Rules (2020).
 fact common to the class [“commonality”], (3) the claims or
defenses of the representative parties are typical of the claims or
defenses of the class [“typicality”], and (4) the representative
parties will fairly and adequately protect the interests of the
class [“adequacy”].
Once those four prerequisites are met, “the class action can be maintained
only if the class satisfies one of the three requirements of Rule 52.08(b).” Meyer
ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712, 715 (Mo. banc 2007). As in
Coplin, Plaintiff here sought Rule 52.08(b)(3) certification, which requires the
court to find the questions of law or fact common to the class “‘predominate over
any questions affecting only individual members’ [“predominance”] and that a
class action is superior to other available methods for the fair and efficient
adjudication of the matter [“superiority”].” Coplin, 220 S.W.3d at 715.
Facts
Plaintiff’s petition included two class-action claims against Regis:
1. A statutory claim for “required minimum wage and overtime
compensation for all hours actually worked by Plaintiff and the
putative class,” described as “stylists employed at Smart-Style [sic]
Hair Salons throughout the State of Missouri in the last three
years.”
2. A common-law “unjust enrichment/quantum meruit” claim “on
behalf of stylists employed at SmartStyle Hair Salons throughout
the State of Missouri in the last five years.”
Plaintiff moved to certify these two claims as class actions, with her petition,
certification motion, and supporting suggestions purporting to establish Rule
52.08(a) & (b)(3)’s requirements. Following briefing and a conference-call
hearing, the trial court denied certification by docket entry stating in its entirety:
“Having considered the pleadings, arguments of counsel heard on April 23, 2020,
and legal citations of the parties, this Court denies Plaintiff’s Motion for Class
Certification. Clerk to notify the parties; So Ordered.”
We granted Plaintiff’s request to appeal. See Rules 52.08(f) & 84.035.
Analysis
Because no one requested findings or conclusions under Rule 73.01(c), we
assume arguendo that no rule, statute, or case law required the trial court to say

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why it ruled as it did. See Dale v. DaimlerChrysler Corp, 204 S.W.3d 151, 163
(Mo.App. 2006), which so states.
Yet Dale further deduced that “to insure meaningful appellate review of the
certification,” federal cases evinced a “rule” that absent relevant findings and
conclusions, “the cause will be remanded for such findings and conclusions, unless
it is apparent from the record the basis on which class certification was granted.”
Id. Deeming it “well settled that federal interpretations of Rule 23 are relevant in
interpreting Rule 52.08” (id. at 161), Dale followed suit, finding its record good
enough to review the trial court’s class-certification ruling without findings and
conclusions. Id. at 163. 2
By contrast, we lack findings or conclusions and cannot glean from the
record why the court denied certification, so Dale counsels us to remand for the
trial court to adequately explain its ruling. 3 Thus we reverse, remand, and direct
the trial court to make relevant findings and conclusions or otherwise explain
sufficiently for meaningful appellate review its decisions whether or not to certify
Plaintiff’s class-action claims under Rule 52.08.

2 For this reason, Dale’s quoted statement about remanding for “findings and
conclusions” seems dicta and somewhat at odds with its reasoned conclusion that no “rule,
statute, or case law” demands such absent a Rule 73.01(c) request. Id. Thus, although
findings and conclusions may be preferable for appellate-review purposes, it may be more
precise to speak in terms of remanding for the trial court to provide support or reasoning
for its decision sufficient for meaningful appellate review. See id. (describing findings and
conclusions as purposed “to insure meaningful appellate review of the certification”).
3 Unless it makes a difference that certification was granted in Dale but denied here. Yet

the only difference we perceive strengthens this situation’s case for remand. Not only is
this record inadequate for appellate review, but the parties on appeal spend page after
page arguing proof pro and con on each class-certification requirement now in play –
numerosity, commonality, typicality, adequacy, predominance, superiority – threatening
to thrust this court into a fact-finder role not properly ours. Such findings “should be
decided in the first instance by the circuit court, and not by this Court on appeal.” Coplin,
220 S.W.3d at 720.

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JENNIFER TOWNSEND, )
Individually and on Behalf of Herself and )
Others Similarly Situated, )
)
Plaintiff-Appellant, )
)
vs. ) No. SD36671
)
REGIS CORPORATION and ) Filed: October 13, 2020
DARLEEN MATRANGA, )
)
Defendants-Respondents. )

APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY

Honorable Jeffrey M. Merrell, Circuit Judge

CONCURRING OPINION

I concur in the opinion of the majority, but write separately to provide more

context and guidance to the attorneys and trial court. The principal opinion relies on

Dale v. DaimlerChrysler Corp, 204 S.W.3d 151 (Mo.App. W.D. 2006); however, Dale

was superseded by our Supreme Court’s decision in Meyer ex rel. Coplin v. Fluor Corp.,

220 S.W.3d 712 (Mo. banc 2007). In Meyer, the trial court denied class action

certification, and made findings on some of the requirements for class action certification

but did not make a finding as to “typicality.” Id. at 714 & n.2. The Supreme Court

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reversed as to some of the requirements on which the trial court had made findings, and

remanded stating “[a]ny finding of typicality or the lack thereof should be decided in the

first instance by the circuit court, and not by this Court on appeal.” Id. at 719-20. The

Supreme Court’s approach subsequently was utilized by the Eastern District in Frank v.

Enviro-Tech Services, 577 S.W.3d 163 (Mo.App. E.D. 2019). In Frank, the trial court

again denied class action certification based on its findings and conclusions as to one of

the requirements of class action certification, but did not “make findings and conclusions

on the remaining three requirements of Rule 52.08(a).” Id. at 165. The Eastern District

reversed as to the requirement on which the trial court had based its denial of class action

certification, and remanded stating “remand is necessary for the trial court to evaluate the

remaining three requirements.” Id. at 169. Findings and conclusions on whether a claim

may be maintained as a class action under Rule 52.08(a) and (b) should be decided in the

first instance by the trial court and not by an appellate court on appeal. 1

I believe Rules 73.01(c) (procedure for requesting “an opinion or findings of

fact,” and indicating all facts not found are considered to have been found in accordance

with the result reached) and 78.07(c) (motion to amend necessary to preserve objection to

form or language of judgment) do not apply to an interlocutory order denying or granting

class action certification. Our Supreme Court in Meyer and the Eastern District in Frank

did not apply or reference either rule even though the interlocutory orders at issue in each

were entered after the modern versions of these rules were adopted (the order on appeal

1
Of course, a trial court need only correctly find and conclude that one of the requirements for class action
certification is lacking for its order denying class certification to be affirmed on appeal in view of the fact
that the party seeking class action certification has the burden to establish all the requirements for class
action certification in order to be entitled to maintain the party’s claim as a class action. Rule 52.08(a) and
(b).

2
in Meyer was entered in June 2005 – see unpublished order at 2005 WL 5988970). In

addition, Rules 73.01 and 78.07 appear to be directed to judgments entered following

trials not interlocutory orders that do not fully resolve any claim in the lawsuit as to all

parties. Finally, in Meadowfresh Solutions USA, LLC v. Maple Grove Farms, LLC,

578 S.W.3d 758, 760-62 (Mo. banc 2019), the Supreme Court made clear that, although

Rule 74.01(a) states “‘[j]udgment’ as used in these rules includes . . . any order from

which an appeal lies,” an appealable interlocutory order that does not “fully resolve[] at

least one claim in a lawsuit and establish[] all the rights and liabilities of the parties with

respect to that claim” is not a judgment and does not have to be denominated a judgment

to be appealed. The outcome in Meadowfresh perhaps was foreshadowed in Elsea v.

U.S. Engineering Company, 463 S.W.3d 409, 413-14 (Mo.App. W.D. 2015), in the

context of a trial court’s denial of class action certification where the Western District

rejected the defendants’ contention that it was “to ‘take the evidence and the reasonable

inferences therefrom in the light most favorable to the judgment,’” and declared that a

class action certification proceeding “is a ‘hearing,’ and the resulting decision is an

‘order,’ which is subject to interlocutory appellate review” and the fact Rule 74.01(a)

includes an appealable order in the definition of judgment “does not control our standard

of review.” 2

Finally, of note, the parties are in sharp disagreement over the rules applicable to

class action certification proceedings. Townsend relies exclusively on the allegations in

her petition to establish the requirements for class action certification under Rule 52.08(a)

2
But cf. Craft v. Philip Morris Companies, Inc., 190 S.W.3d 368, 386 (Mo.App. E.D. 2005), and Dale v.
DaimlerChrysler Corporation, 204 S.W.3d 151, 161-63 (Mo.App. W.D. 2006) (each discussing Rule
73.01(c) in the context of reviewing a trial court’s grant of class action certification).

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and (b)(3), and argues that those allegations should be accepted as true for this purpose

and, when accepted as true, are sufficient to establish all the requirements for certification

that her two class action claims may be maintained as a class action. Regis argues that

Townsend’s allegations in her petition are not sufficient to support class action

certification, that Townsend’s allegations in her petition are not entitled to be accepted as

true for this purpose, and that evidence beyond the allegations in Townsend’s petition is

necessary to support class action certification. 3 I believe this sharp disagreement

between the parties likely will continue and impact the trial court’s decision on remand.

To assist the trial court and the parties on remand, I offer the following observations. 4

“The determination of class certification under Rule 52.08 lies
within the trial court’s sound discretion.” Doyle v. Fluor Corp., 199 S.W.3d
784, 787 (Mo. App. E.D. 2006).

....

In determining whether to certify a proposed class, “a court should
err in favor of, and not against, allowing maintenance of the class action”
because “class certification is subject to later modification.” Hale v. Wal-
Mart Stores, Inc., 231 S.W.3d 215, 222 (Mo. App. W.D. 2007) (further
noting that “Rule 52.08(c)(1) provides for de-certification of a class before
a decision on the merits”); see also Karen S. Little, L.L.C. [v. Drury Inns,
Inc.], 306 S.W.3d [577,] 580 [(Mo. App. E. D. 2010)].

Frank v. Enviro-Tech Services, 577 S.W.3d at 166-67. In addition:

3
The parties devote almost no discussion to the issue on which we base our decision to reverse and
remand.
4
See Henderson v. Henderson, 389 S.W.3d 260, 266 (Mo.App. E.D. 2012) (“This Court’s reversal based
on the issue of dischargeability of the Line of Credit should resolve some of the collateral issues with the
judgment. We briefly address the issue of contempt, however, to assist the trial court upon remand for
reconsideration of the issues of contempt and attorney’s fees in light of this Court’s rulings.”); Reinbott v.
Tidwell, 191 S.W.3d 102, 110-11 (Mo.App. S.D. 2006) (“Given our holding, the resolution of this issue
requires additional factual determinations by the trial court which were not contemplated by the trial court
in view of its erroneous determination to authorize the Reinbotts’ maintenance of the River Bride on the
parts of the Tidwell Property lying outside of the Easement. We offer the following observations for the
purpose of assisting the trial court upon remand.”).

4
 “A class certification hearing is a procedural matter in which the
sole issue is whether plaintiff has met the requirements for a class action.”
Meyer, 220 S.W.3d at 715. “Thus, the trial court has no authority to conduct
a preliminary inquiry into whether the plaintiff has stated a cause of action
or will prevail on the merits.” Id.

....

Rule 52.08 governs the procedure for certifying a class action. The party
seeking class certification bears the burden of proof. Hope [v. Nissan N.
Am., Inc.], 353 S.W.3d [68,] 74 [(Mo.App. W.D. 2011)]. “This burden is
satisfied if there is evidence in the record, which if taken as true, would
satisfy each and every requirement of the rule.” Id. (internal quotation
omitted). “‘In [a] class certification determination, the named plaintiffs’
allegations are accepted as true.’” Id. (quoting Hale, 231 S.W.3d at 227)
(noting that arguments which tend to negate allegations from the petition
should be ignored because such allegations are taken as true for purposes of
a class certification motion). “Therefore, the determination of class
certification is based primarily upon the allegations in the petition.” Id.

Elsea v. U.S. Engineering Company, 463 S.W.3d at 416, 417.

However:

“[a]lthough the class certification decision is independent of the ultimate
merits of the lawsuit, the applicable substantive law is relevant to a
meaningful determination of the certification issues.” Green v. Fred Weber,
Inc., 254 S.W.3d 874, 880 (Mo. banc 2008); Amgen Inc. v. Connecticut Ret.
Plans & Tr. Funds, 568 U.S. 455, 466, 133 S.Ct. 1184, 185 L.Ed.2d 308
(2013) (“Merits questions may be considered to the extent—but only to the
extent—that they are relevant to determining whether the Rule 23
prerequisites for class certification are satisfied.”).

State ex rel. General Credit Acceptance Company, LLC v. Vincent, 570 S.W.3d 42, 47

(Mo. banc 2019). Further, “general conclusory allegations” and “speculation” are not

sufficient to establish the requirements for a class action under Rule 52.08(a) and (b). 5

See Dale v. DaimlerChrysler Corp, 204 S.W.3d at 167 (“general conclusory allegations”

5
In addition to the express requirements of Rule 52.08(a) and (b), “Rule 52.08 presupposes a properly
defined class that is ascertainable and not overbroad. . . . A class definition encompassing more than a
relatively small number of uninjured putative members is overly broad and improper.” State ex rel.
General Credit Acceptance Company, LLC v. Vincent, 570 S.W.3d at 47 (internal citations and quotation
marks omitted).

5
in an amended motion for class action certification “not . . . sufficient to satisfy the

numerosity prerequisite of Rule 52.08(a)(1)”); Frank v. Enviro-Tech Services, 577

S.W.3d at 168 (“‘[A] plaintiff must ordinarily demonstrate some evidence or reasonable

estimate of the number of purported class members.’ Ibe v. Jones, 836 F.3d 516, 528

(5th Cir. 2016). To make a determination on the numerosity requirement, ‘a court must

be presented with evidence that would enable the court to do so without resorting to mere

speculation.’ Mielo v. Steak ’n Shake Operations, Inc., 897 F.3d 467, 484 (3d Cir.

2018).”).

Although, “[a]s a general rule, an evidentiary hearing is not required to determine

if a class action is maintainable,” Dale v. DaimlerChrysler Corp, 204 S.W.3d at 167,

“[w]hen it is unclear from the petition whether class certification may be granted, the trial

court is to allow pre-class certification discovery so that the plaintiff may be afforded the

opportunity to prove the class certification prerequisites.” State ex rel. Coffman Group,

L.L.C. v. Sweeney, 219 S.W.3d 763, 767 (Mo.App. S.D. 2005).

Nancy Steffen Rahmeyer, P.J. – Concurring Opinion Author

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