St. Stephen's Cemetery Association v. Tina Seaton

RENDERED: NOVEMBER 10, 2022; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2022-CA-0080-ME

ST. STEPHEN’S CEMETERY
ASSOCIATION; BARBARA
HOUSER; BRUCE D. ZIMMERMAN;
HERB ZIMMERMAN; MARK
HOLLAND; AND TONY BOSTIC APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ERIC J. HANER, JUDGE
ACTION NO. 17-CI-001663

TINA SEATON; CRYSTAL RAY;
KELLY BRYANT; PAMELA
WILKERSON; TINA CLARK; AND
CURRENTLY UNKNOWN,
UNDISCLOSED, UNLOCATED
PROSPECTIVE MEMBERS OF
THEIR CLASS APPELLEES

OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING

** ** ** ** **

BEFORE: CALDWELL, GOODWINE, AND MAZE, JUDGES.
CALDWELL, JUDGE: The Jefferson Circuit Court certified a class action, for

liability purposes only, in a case involving alleged misconduct by the St. Stephen’s

Cemetery Association (the Cemetery) and some of its former board members or

employees (collectively, Appellants). The only issue in this expedited appeal is

whether the trial court erred by certifying the class. After examining the relevant

law and having conducted oral arguments, we conclude the court did not abuse its

discretion by certifying the overall class but improperly certified four fail-safe

subclasses. Therefore, we affirm in part, vacate in part, and remand.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

Given the extremely narrow issues before us, the relevant facts and

procedural history are straightforward. The operative second amended complaint

was filed by six plaintiffs in 2018. This complaint generally alleges Appellants

engaged in a pattern or practice of misconduct, such as not providing purchased

grave plots, burying bodies in incorrect locations, and placing the remains of

multiple persons in the same grave.

Later in 2018, plaintiffs filed a motion for class certification, for

liability purposes only. The motion asked the trial court to certify a class

consisting of “citizens of the United States of America who purchased and/or

whose family members purchased burial plots and services at St. Stephen’s

Cemetery from Defendants from 1992 to present.” Plaintiffs sought to have the

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court also certify four subclasses, essentially containing: 1) persons whose loved

ones’ remains were lost or misplaced; 2) persons whose loved ones’ graves were

improperly maintained; 3) persons who did not receive headstones they purchased

from defendants; and 4) persons whose grave plots are occupied by the remains of

someone the purchaser did not authorize to be buried in that plot.

After a protracted delay,1 the trial court granted the motion for class

certification in 2022 and certified the following class and subclasses:

All individual citizens of the United States of America
who purchased and/or whose family members purchased
burial plots and services at St. Stephen’s Cemetery from
Defendants between January 1, 1992 and February 24,
2017. . . .

Subclass 1 – Lost and/or misplaced remains

All individual citizens of the United States of America
whose loved ones were buried or interred at St. Stephen’s
Cemetery between January 1, 1992 and February 24,
2017, and whose remains can no longer be located and/or
whose loved ones’ remains were exhumed without
knowledge or consent and/or those whose loved ones
have been buried in a single plot containing multiple
people.

Subclass 2 – Improper Maintenance of Graves

All individual citizens of the United States of America
whose loved ones were buried or interred at St. Stephen’s
Cemetery between January 1, 1992 and February 24,

1
The unfortunate delay in ruling on the motion for certification was caused by factors such as
the court conducting two oral arguments which were several months apart, the parties engaging
in mediation, and the retirement of the original circuit court judge.

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 2017, and whose remains were improperly interred or
improperly maintained, including, but not limited to,
improper maintenance of loved ones’ headstones and the
grounds surrounding their loved ones’ graves resulting in
property damage in violation of Kentucky law.

Subclass 3 – Failure to provide headstones

All individual citizens of the United States of America
who purchased, or whose loved ones purchased,
headstones from Defendants between January 1, 1992
and February 24, 2017, and who did not receive the
headstones they purchased.

Subclass 4 – Sale of previously sold or occupied
cemetery plots

All individual citizens of the United States of America
who have or whose loved ones purchased a grave plot
from Defendants between January 1, 1992 and February
24, 2017 that is currently occupied by someone other
than the purchaser, or the person the purchaser allowed to
be buried in the plot, or has been sold to someone else.

Appellants’ brief, Ex. A, p. 12-13. Appellants then filed this interlocutory,

expedited appeal. See CR2 23.06; Hensley v. Haynes Trucking, LLC, 549 S.W.3d

430, 436 (Ky. 2018).

ANALYSIS

A. Standards of Review

The scope of our certification review is narrow. Hensley, 549 S.W.3d

at 436. We may not “reach and conclusively determine a substantive issue that

2
Kentucky Rule of Civil Procedure.

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reaches the merits of a case when simply reviewing the propriety of the trial

court’s class-action certification determination.” Id. at 442. Instead, “the only

question” we may properly address “is whether the trial court properly certified the

class . . . .” Id. at 436. Since the certification decision is fact-intensive, our review

is governed by the abuse of discretion standard, meaning that we may disturb the

certification decision only if it is “arbitrary, unreasonable, unfair, or unsupported

by sound legal principles.” Id. at 444 (citation omitted).

B. Requirements for Certification

To obtain class certification, a plaintiff must satisfy both CR 23.01

and 23.02. Manning v. Liberty Tire Services of Ohio, LLC, 577 S.W.3d 102, 110

(Ky. App. 2019). CR 23.01 provides class certification may be proper if:

(a) the class is so numerous that joinder of all members is
impracticable, (b) there are questions of law or fact
common to the class, (c) the claims or defenses of the
representative parties are typical of the claims or
defenses of the class, and (d) the representative parties
will fairly and adequately protect the interests of the
class.

Those four prongs are usually shortened to numerosity, commonality,

typicality, and adequacy of representation. Hensley, 549 S.W.3d at 442-43.

CR 23.02(c), the applicable subsection here, provides in relevant part

that a class action is proper if the four requirements of CR 23.01 have been

satisfied and “the court finds that the questions of law or fact common to the

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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.”

Finally, since CR 23.01 and 23.02 are quite similar to their federal

counterparts, Kentucky courts often examine federal precedent when determining

certification issues. See, e.g., Nebraska All. Realty Company v. Brewer, 529

S.W.3d 307, 311 (Ky. App. 2017). As it pertains to this appeal, our Supreme

Court has adopted the holding of the United States Supreme Court that

“certification is proper only if the trial court is satisfied, after a rigorous

analysis, that the prerequisites of [the certification rules] have been satisfied.”

Hensley, 549 S.W.3d at 445 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

338, 350-51, 131 S. Ct. 2541, 2551, 180 L. Ed.2d 374 (2011)) (emphasis added by

Hensley). “Frequently that ‘rigorous analysis’ will entail some overlap with the

merits of the plaintiff’s underlying claim. That cannot be helped.” Dukes, 564

U.S. at 351, 131 S. Ct. at 2551. But courts have “no license to engage in free-

ranging merits inquiries at the certification stage. Merits questions may be

considered to the extent – but only to the extent – that they are relevant to

determining whether the . . . prerequisites for class certification are satisfied.”

Amgen Inc. v. Connecticut Retirement Plans and Tr. Funds, 568 U.S. 455, 466,

133 S. Ct. 1184, 1194-95, 185 L. Ed. 2d 308 (2013).

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 C. Fail-Safe Subclasses3

Before we may address other issues, we must resolve an antecedent

concern: did the trial court certify a fail-safe class? As we explained, defining a

class is an “essential prerequisite to maintaining a class action.” Manning, 577

S.W.3d at 110 (citations omitted). And the class definition “must be sufficiently

3
The parties did not specifically raise a fail-safe class argument in their briefs, but we explored
the issue at oral argument. Thus, it is proper to address it in this Opinion. See, e.g., Elk Horn
Coal Corp. v. Cheyenne Resources, Inc., 163 S.W.3d 408, 424 (Ky. 2005), overruled on other
grounds by Calloway Cnty. Sheriff’s Department v. Woodall, 607 S.W.3d 557 (Ky. 2020)
(“Finally we would note that this separation of powers issue was not raised in the lower courts,
but rather it was raised sua sponte by members of this Court during oral argument. The parties
addressed the issue and we have confined ourselves to the record. Thus we are not precluded by
any rule or constitutional provision from addressing this issue.”). Moreover, though “[t]his issue
was not raised on appeal” and we did not “go looking for it[,]” we inevitably “bump into it
squarely out of the gate” when reviewing the propriety of the class certification – i.e., the issue of
whether the trial court certified a fail-safe class “flows naturally under our appellate review of
the issue raised.” Barker v. Commonwealth, 341 S.W.3d 112, 114 (Ky. 2011). We will confine
our review to the record and applicable law. Priestley v. Priestley, 949 S.W.2d 594, 596 (Ky.
1997) (citations omitted) (holding that “[s]o long as an appellate court confines itself to the
record, no rule of court or constitutional provision prevents it from deciding an issue not
presented by the parties[.]”). And the fact that we are reviewing whether a class is fail-safe on
our own initiative is not novel as we have done so at least twice before (although in unpublished
decisions which we cite merely to show that our review here is not unusual). Hitachi Automotive
Systems Americas, Inc. v. Held, No. 2019-CA-001318-ME, 2020 WL 2510534, at *3 (Ky. App.
May 15, 2020); Sullivan University Systems, Inc. v. McCann, No. 2020-CA-000118-ME, 2020
WL 5587316, at *2 (Ky. App. Sep. 18, 2020).

Finally, because the parties did not explicitly raise this argument, our review proceeds
under the palpable error standard found in CR 61.02. Barker, 341 S.W.3d at 114 (reviewing
such an issue under the palpable error standard found in the Rules of Criminal Procedure);
Blackaby v. Barnes, 614 S.W.3d 897, 899 n.3 (Ky. 2021) (noting that the palpable error
standards contained in the criminal and civil rules are “identical”). An error is palpable if it is
“so serious that it would seriously affect the fairness to a party if left uncorrected.
Fundamentally, a palpable error determination turns on whether the court believes there is a
substantial possibility that the result would have been different without the error.” Hibdon v.
Hibdon, 247 S.W.3d 915, 918 (Ky. App. 2007) (internal quotation marks and citations omitted).

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definite so that it is administratively feasible for the court to determine whether a

particular individual is a member of the proposed class.” Id. (citations omitted).

Fail-safe classes are improper because they “are not administratively feasible.

They inevitably require mini-trials to determine which individuals belong to the

class.” Bohannan v. Innovak International, Inc., 318 F.R.D. 525, 529 (M.D. Ala.

2016).

A fail-safe class is one which “cannot be defined until the case is

resolved on its merits. It bases its membership not on objective criteria, but on the

legal validity of each member’s claim. To determine class membership, the merits

of each individual claim must be examined.” Manning, 577 S.W.3d at 110

(internal quotation marks and citations omitted). In short, “[b]y its very nature, a

fail-safe class includes only those who are entitled to relief.” Id. at 110-11

(internal quotation marks and citation omitted). Or, as a federal court in

Pennsylvania succinctly noted, “[a] fail-safe class is one that defines its members

by the plaintiff’s liability – all individuals wronged by the defendant, in the classic

formulation.” Zarichny v. Complete Payment Recovery Services, Inc., 80 F. Supp.

3d 610, 624 (E.D. Pa. 2015). See also 1 William B. Rubenstein, Newberg and

Rubenstein on Class Actions § 3:6 (6th ed. 2022). One blatant example of a fail-

safe class occurred when a federal court in California was asked to certify classes

consisting of persons who purchased computer products which had been “falsely

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advertised” by the defendant. Brazil v. Dell Inc., 585 F. Supp. 2d 1158, 1167

(N.D. Cal. 2008). The court held the classes were fail-safe because “[t]o determine

who should be a member of these classes, it would be necessary for the court to

reach a legal determination that Dell had falsely advertised.” Id. See also AT&T

Corp. v. Feltner, No. 2020-CA-1500-ME, 2021 WL 2753980, at *3-4 (Ky. App.

Jul. 2, 2021) (holding that a class was fail-safe when it was defined as “[a]ll real

property owners in the Commonwealth of Kentucky on whose real property

Defendants committed trespass, nuisance and/or negligent property damage”)

(cited only as an illustration).

Here, we have a unique situation in that the main class definition itself

is not fail-safe, but all four subclasses are.4 Specifically, the overall class contains,

with some exceptions not relevant here, “[a]ll individual citizens of the United

States of America[5] who purchased and/or whose family members purchased

4
A court has the ability to divide a class into subclasses, and each subclass is then “treated as a
class . . . .” CR 23.03(7). Therefore, we must scrutinize each subclass rigorously.
5
It is unclear why the class is limited only to citizens of the United States since the same alleged
wrongdoing could have been inflicted upon non-citizens. Similarly, the class broadly uses the
expansive term “loved ones,” not next of kin. Long ago, in a decision which has not been
overruled, Kentucky’s then-highest court held that:

A recovery may be had by the next of kin or the surviving
spouse for an unwarranted interference with the grave of a
deceased, or for the infliction of an injury to a corpse, if either be
done (a) maliciously, (b) or by gross negligence, (c) or wantonly,
i.e., with a reckless disregard of the rights of another, (d) or for an
unlawful or secret disinterment or displacement thereof, or (e) an
action of trespass quare clausum fregit may be maintained by the

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burial plots and services at St. Stephen’s Cemetery from Defendants between

January 1, 1992 and February 24, 2017 . . . .” That definition does not premise

class membership on Appellants’ liability.

By contrast, membership in the four subclasses clearly is based upon

having been wronged by Appellants. Subclass one contains persons whose loved

ones’ remains cannot be located, were exhumed without consent, or are buried

with others in a single plot – i.e., having been wronged by Appellants, and not

simply persons whose loved ones should be buried in a known and marked plot, for

example.

The same conclusion holds true for subclass two, which consists of

persons whose loved ones’ remains “were improperly interred or improperly

maintained, including . . . improper maintenance of loved ones’ headstones and the

grounds surrounding their loved ones’ graves resulting in property damage in

violation of Kentucky law.” That subclass explicitly premises its membership

holder of the title, or the person in possession, of the lot on which a
grave is located, or (f) for the removal of a body from one grave to
another by those in authority and control of the cemetery or burial
ground, without notice, or an opportunity, to him who in law is
entitled to be present, if he desires, before its removal.

Louisville Cemetery Ass’n v. Downs, 241 Ky. 773, 45 S.W.2d 5, 6 (1931) (emphasis added)
(citations omitted). The parties do not address whether the class definition should use the more
precise term next of kin instead of loved ones, so we will not extend this already lengthy Opinion
by addressing the matter. But we caution the trial court on remand to ensure that any class
contains only persons who would potentially be entitled to recover from Appellants. If
necessary, the trial court may modify the class definition. Hensley, 549 S.W.3d at 450.

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upon persons toward whom Appellees acted “improperly” and in “violation of

Kentucky law.” It is blatantly fail-safe as is but could be a viable sub-class without

those determiners.

As for subclass three, its membership consists of persons who did not

receive headstones which they, or their loved ones, purchased. In other words, to

join that subclass a person (or the person’s loved one) must not have received

bargained for goods and services from Appellants. The subclass is fail-safe.

Finally, subclass four is also fail-safe. Although the language

defining the subclass is imprecise at times, it consists of persons whose loved ones’

grave “is currently occupied by someone other than the purchaser, or the person

the purchaser allowed to be buried in the plot, or [the plot] has been sold to

someone else.” Again, a person must have been wronged by Appellants to be a

member of that subclass.

While this Court may understand the benefit of having sub-classes for

organizational purposes of a complex litigation, the subclasses must not be fail-

safe. These subclasses are fail-safe, a defect which is serious, obvious, and unfair

as to rise to the level of being palpable error. Hibdon, 247 S.W.3d at 918. We

decline to let such error go uncorrected. Because the main class is not fail-safe,

and each of the sub-classes would otherwise fit within the main class, the prudent

action at this interlocutory juncture is to direct the trial court to issue a new class

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certification order which does not contain the fail-safe subclasses. See CR

23.03(3) (“An order that grants or denies class certification may be altered or

amended before final judgment.”).6

D. CR 23.01 Factors

1. Numerosity

CR 23.01(a) provides that a class action is permissible if “the class is

so numerous that joinder of all members is impracticable . . . .” That prong is

usually referred to simply as numerosity.

There is no requirement that a class have a particular baseline

membership number to satisfy the numerosity requirement. Manning, 577 S.W.3d

at 112. But a class representative must provide a “reasonable estimate of the

number of purported class members.” 35A C.J.S. Federal Civil Procedure § 89

(2022). See also Sowders v. Atkins, 646 S.W.2d 344, 346 (Ky. 1983). When

addressing numerosity, courts may consider factors like “the size of the class, the

ease of identifying its members and determining their addresses, facility of making

service on them, and their geographic dispersion.” Hensley, 549 S.W.3d at 443

(citation omitted). Of course, “impracticability,” as used in CR 23.01, “does not

mean impossibility. The class representative need show only that it is extremely

6
We express no opinion on whether the trial court should certify revised subclasses on remand.

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difficult or inconvenient to join all members of the class.” Hensley, 549 S.W.3d at

443 (citation omitted).

Here, Appellees admit that it “is not possible to quantify the precise

number of Class Members” but the Cemetery’s records contain “the names of over

1,550 individuals who either purchased graves or were interred at the Cemetery”

during the covered time period. Appellees’ brief, p. 19. And Appellees have

presented an affidavit from an accountant opining that the Cemetery’s records

show sixty-seven “instances of a single grave having been attributed to more than

one person” and “approximately two-hundred seventy (270) separate, conflicting

entries for individuals . . . .” Appellees’ brief, Ex. 6, p. 3.

Appellants assert the class lacks numerosity since there are only a

handful of named plaintiffs.7 But Appellants cite only to CR 23.01 in the

numerosity section of their brief. In other words, Appellants cite to no authority

whatsoever holding that there must be a host of named class representatives in

order to satisfy the numerosity prong. Moreover, though there is no absolute

minimum number of class members, many courts have found “a class of 40 or

more members raises a presumption of impracticability of joinder based

on numbers alone.” 1 William B. Rubenstein, Newberg and Rubenstein on Class

7
The trial court granted summary judgment for Appellants on at least some claims of three of the
six named plaintiffs. However, those orders are interlocutory at this juncture and, in any event,
do not change our conclusions.

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Actions § 3:12 (6th ed. 2022). See also 1 McLaughlin on Class Actions § 4:5 (18th

ed. 2021). Here, the accountant’s affidavit shows there are potentially many more

than forty class members. In sum, we discern no abuse of discretion in the trial

court’s numerosity conclusion.

2. Commonality

CR 23.01(b) provides in relevant part that a class action is permissible

if “there are questions of law or fact common to the class . . . .” That prong is

usually referred to simply as commonality. Appellants argue there is not

commonality because the putative class members’ claims are “highly

individualized” because there is not “one common answer” which “can be drawn

from one single finding on any of the allegations . . . .” Appellants’ brief, p. 18.

As the United States Supreme Court has held, commonality “is easy to

misread, since any competently crafted class complaint literally raises common

questions.” Dukes, 564 U.S. at 349, 131 S. Ct. at 2551 (internal quotation marks,

brackets, and citation omitted). Instead, “[c]ommonality requires the plaintiff to

demonstrate that the class members have suffered the same injury . . . .” Id. at 349-

50, 131 S. Ct. at 2551 (internal quotation marks and citation omitted). The claims

“must depend upon a common contention . . . of such a nature that it is capable of

classwide resolution – which means that determination of its truth or falsity will

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resolve an issue that is central to the validity of each one of the claims in one

stroke.” Id. at 350, 131 S. Ct. at 2551.

Even one common question may be sufficient. Id. at 359, 131 S. Ct.

at 2556. And since the focus is on “whether the defendant’s conduct was common

as to all of the class members[,]” commonality may exist “even if some

individualized determinations may be necessary to completely resolve the claims

of each putative class member . . . .” Summit Medical Group, Inc. v. Coleman, 599

S.W.3d 445, 449-50 (Ky. App. 2019) (internal quotation marks and citations

omitted). In short, satisfying the commonality requirement “is not a herculean

task.” Nebraska All. Realty Company, 529 S.W.3d at 312.

Much of Appellants’ argument is based upon the perceived

differences between the four subclasses. However, we have already concluded that

the subclasses must be vacated, so any differences within or between them are

irrelevant.

Additionally, CR 23.01 “does not require that all questions of law or

fact be common.” Wiley v. Adkins, 48 S.W.3d 20, 23 (Ky. 2001) (emphasis

added). The trial court recognized there would be some individualized inquiries,

but nonetheless held that there were common questions of law or fact, such as

whether Appellants “fail[ed] to deliver the burial products and services that their

customers purchased.” Appellants’ brief, Ex. A, p. 9.

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 Appellants look too granularly at the issue instead of properly

focusing on the overarching allegations. For example, Appellants argue that

showing that one class member did not receive a purchased headstone would not

prove that other class members did not receive a purchased headstone. Perhaps so.

But the allegations are that Appellants had a practice of failing to provide, for

example, purchased headstones. Of course, like any class action, there are some

differences between each particular potential class member’s claim(s), but the

presence of some individualized aspects does not defeat commonality. See, e.g.,

32B AM. JUR. 2D Federal Courts § 1511 (2022) (footnotes and citations omitted)

(noting that “as long as all putative class members were subjected to the same

harmful conduct by the defendant, the commonality requirement for class

certification will endure many legal and factual differences among the putative

class members.”).

Here, as the trial court aptly noted, the core of defendants’ alleged

misconduct was common to all class members. In other words, showing that one

class member did not receive a purchased headstone may not prove that another

class member did not receive a purchased headstone. But Appellants claim

misconduct common to all class members, which is the lens through which

commonality is viewed. And the trial court certified a class as to liability only, so

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the potentially individual damages is irrelevant, despite Appellants’ seeming

arguments to the contrary.8

Finally, although each case is factually distinguishable, at least two

other courts have certified classes in analogous situations. See, e.g., In re Tri-State

Crematory Litigation, 215 F.R.D. 660, 690 (N.D. Ga. 2003) (citation omitted)

(“Plaintiffs have listed numerous questions of law or fact common to the entire

class, including: (1) whether the Tri-State Defendants mishandled, or failed to

carry out the proper cremation of, remains delivered to them for cremation; (2) if

the Tri-State Defendants mishandled, or failed to carry out the proper cremation of,

remains delivered to them for cremation, over what time period did these acts take

place; (3) whether Funeral Home Defendants are directly liable for their own

action and inaction; (4) whether Funeral Home Defendants are vicariously liable

for the actions of the Tri-State Defendants; and (5) whether Funeral Home

Defendants have breached any contracts with Plaintiffs. The Court finds that

Plaintiffs have satisfied the minimal showing required to establish commonality of

the legal and factual questions raised in this action.”); Wofford v. M.J. Edwards &

Sons Funeral Home Inc., 528 S.W.3d 524, 529-30, 543 (Tenn. Ct. App. 2017)

8
Appellants strenuously challenged the propriety of certifying a class for liability purposes only
in the trial court. However, Appellants “concede that ‘liability-only’ class certification is
appropriate” if the requirements of CR 23.01 and 23.02 are satisfied. Appellants’ reply brief, p.
3. Thus, under these facts, we will merely assume that it was permissible to certify such a
liability-only class, provided the requirements of CR 23.01 and 23.02 were otherwise met.

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(affirming a trial court’s rejection of an argument by a funeral home that claims

would require individualized proof in a case involving allegations that the

defendant had improperly disposed of remains, including – as here – allegedly

having buried multiple persons’ remains in the same grave, because “[t]he central

issue in this case moving forward is whether a funeral home has a duty beyond

dropping off human remains at the cemetery. This issue is common to all parties

in this case. The trial court found it better to proceed toward adjudicating that

question as a class action. Given that the alternative potentially is hundreds of

separate trials with contradictory results, we agree.”). In sum, given the relatively

low bar for satisfying the commonality prong, we discern no abuse of discretion in

the trial court’s conclusions.

3. Typicality

CR 23.01(c) provides in relevant part that a class action may be

proper if “the claims or defenses of the representative parties are typical of the

claims or defenses of the class . . . .” That prong is generally referred to simply as

“typicality.” As the similarities between the parties’ arguments regarding the two

prongs demonstrate, there often is significant overlap between the commonality

and typicality prongs. See, e.g., General Telephone Co. of Southwest v. Falcon,

457 U.S. 147, 157, 102 S. Ct. 2364, 2370, 72 L. Ed. 2d 740, n.13 (1982).

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 We have explained the intended difference between commonality and

typicality as follows: “Unlike commonality, which focuses on the group

characteristics such as the relationship of common facts and legal issues related to

the class as a whole, typicality examines the individual characteristics of the named

plaintiffs in relation to the class.” Manning, 577 S.W.3d at 114. Our Supreme

Court has instructed that “claims and defenses are considered typical if they arise

from the same event, practice, or course of conduct that gives rise to the claims of

other class members and if the claims of the representative are based on the same

legal theory.” Hensley, 549 S.W.3d at 443 (citation omitted).

Thus, the crux of the typicality prong is whether the claims “are all

based on the same legal theory . . . .” Id. at 448. Some courts have held that “a

liberal construction may be applied to find typicality as long as no express conflict

between the representative party and the class exists . . . .” Caruso v. Celsius

Insulation Resources, Inc., 101 F.R.D. 530, 534 (M.D. Pa. 1984).

Here, Appellants’ disagreement to the contrary notwithstanding,

Appellees’ claims are based on the same core legal theories. As the trial court

held, Appellees assert “each of them has suffered one or more of the different types

of injuries suffered by the members of their proposed class” and “as a whole, they

[Appellees] have suffered all of the same types of injuries suffered by members of

their proposed class.” Appellants’ brief, Ex. A, p. 10.

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 Thus, we do not agree with Appellants’ repeated insistence that the

Appellees’ claims are atypical because they present “truly a one-by-one, plot-by-

plot question . . . .” Appellants’ brief, p. 15. Again, for example, the fact that there

may be multiple persons in one grave does not inherently mean that other graves

contain multiple people. But that is not the requirement. Instead, the commonality

requirement asks simply whether Appellees’ claims are aligned with those of the

putative class members regarding core allegations and legal theories. They are.9

Moreover, Appellants have shown no express conflicts between the named

plaintiffs and the remainder of the putative class members.

In short, though we recognize that there are potentially some

individual aspects to each named and putative class member’s claims, we discern

no abuse of discretion in the trial court’s typicality determination.

9
For example, the accountant averred that, in his review, “the errors and discrepancies identified
in the official Cemetery records pertaining to the class Plaintiffs are common and typical of other
errors and discrepancies identified in the records and on-sight inspection.” Appellees’ brief, Ex.
6, p. 3. The expert similarly averred that the “official cemetery records exhibited a pattern of
incomplete, illegible and contradictory information” such that “[t]he discrepancies and
conflicting data contained in these official records are persistent across the period official records
were examined.” Id. at p. 3-4. Appellants argue the accountant’s affidavit is of no consequence
because improper recordkeeping is not actionable. And, standing alone, perhaps such
bookkeeping is not. But the affidavit highlights the allegations that the Cemetery’s records are
so consistently incorrect or inscrutable (i.e., common and typical) that it cannot be known with
requisite certainty who is buried in any individual plot, or how many remains may be buried in a
single plot. Whether those claims ultimately prove successful is beyond the scope of this
interlocutory appeal.

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 4. Adequacy of Representation

Finally, CR 23.01(d) provides in relevant part that a class action may

be proper if “the representative parties will fairly and adequately protect the

interests of the class.” Our review of this prong focuses on the adequacy of both

the named class representatives and counsel. Manning, 577 S.W.3d at 115.

As the United States Supreme Court explained, “[t]he adequacy

inquiry . . . serves to uncover conflicts of interest between named parties and the

class they seek to represent. A class representative must be part of the class and

possess the same interest and suffer the same injury as the class members.”

Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625-26, 117 S. Ct. 2231, 2250-

51, 138 L. Ed. 2d 689 (1997) (internal quotation marks, brackets, and citations

omitted). See also Hensley, 549 S.W.3d at 443.

As we construe it, Appellants do not vigorously dispute the trial

court’s adequate representation conclusion. We thus will not belabor the point as

we discern no obvious abuse of discretion in the trial court’s conclusions.

E. CR 23.02 Requirements

Having addressed CR 23.01, we turn to CR 23.02, which provides in

relevant part:

An action may be maintained as a class action if the
prerequisites of Rule 23.01 are satisfied, and in addition:

....

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 (c) 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. The matters
pertinent to the findings include: (i) the interest of
members of the class in individually controlling
the prosecution or defense of separate actions; (ii)
the extent and nature of any litigation concerning
the controversy already commenced by or against
members of the class; (iii) the desirability or
undesirability of concentrating the litigation of the
claims in the particular forum; (iv) the difficulties
likely to be encountered in the management of a
class action.

“There are no bright line rules to determine whether common

questions predominate.” In re Select Comfort Corp. Securities Litigation, 202

F.R.D. 598, 610 (D. Minn. 2001). Instead, the issue must be analyzed in light of

the particular facts and circumstances of each case, id., which means “[t]here is

little uniform guidance on how to assess when common issues predominate over

individual ones.” Daye v. Community Financial Service Centers, LLC, 313 F.R.D.

147, 166 (D.N.M. 2016). See also 7AA Mary Kay Kane, Fed. Prac. & Proc. Civ.

§ 1778 (3d ed. 2022). Since the ultimate merits of the case are not before us, our

narrow focus is on whether Appellees have adequately shown

“that questions common to the class predominate, not that those questions will be

answered, on the merits, in favor of the class.” Amgen Inc., 568 U.S. at 459, 133

S. Ct. at 1191.

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 The United States Supreme Court has held that the core of the

predominance inquiry is whether the common issues “are more prevalent or

important than the non-common, aggregation-defeating, individual issues.” Tyson

Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453, 136 S. Ct. 1036, 1045, 194 L. Ed.

2d 124 (2016) (citation omitted). If there are dominant common issues, then the

predominance requirement is satisfied “even though other important matters will

have to be tried separately . . . .” Id. (citation omitted). In other words, “a case

need not present only common questions to merit certification, and the presence of

some individual questions does not destroy predominance . . . .” Daye, 313 F.R.D.

at 166.

Though they appear similar,10 the predominance test is not intended to

be a mere regurgitation of the commonality or typicality requirements. Instead, the

predominance test is “stricter” because it addresses “not just that common issues

exist,” but whether those common issues “are more prevalent than non-common

issues.” 2 William B. Rubenstein, Newberg and Rubenstein on Class Actions §

4:51 (6th ed. 2022). See also Amchem Products, Inc., 521 U.S. at 624, 117 S. Ct.

at 2250.

10
See, e.g., In re New Motor Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6, 19 (1st
Cir. 2008); Kleen Products LLC v. International Paper, 306 F.R.D. 585, 592 (N.D. Ill. 2015).

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 The trial court found that there are predominant common questions of

law and fact, the resolution of which “would substantially advance the

determination of the claims of the members of [Appellees’] proposed class . . . .”

Appellants’ brief, Ex. A, p. 11. The court held that any individualized issues,

especially regarding damages, would be “relatively simple to resolve in a separate

trial after the trial on the common questions of law and fact.” Id. Finally, the court

concluded that a class action “is superior to other available methods for the fair and

efficient adjudication of the controversy” because it would be “an inefficient use of

judicial time and resources” to make “each individual plaintiff . . . present the same

proof concerning [Appellants’] alleged practices in separate trials” and some

persons would “refrain from pursuing litigation for purely economic reasons” if

required to present their claims in an individual case. Id. at 11-12.

In their briefs, Appellants do not vigorously contest many of those

conclusions, such as the efficiency of pursuing class action relief or the likelihood

that some persons with potentially meritorious claims would not individually

pursue them due to the inevitable individual litigation costs vis-à-vis the potentially

recoverable damages. Those findings are, essentially, a conclusion that a class

action is superior to other methods for resolving the claims at hand. We perceive

no abuse of discretion regarding those superiority, efficiency-based findings. See,

e.g., Wright v. Country Club of St. Albans, 269 S.W.3d 461, 467-68 (Mo. Ct. App.

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2008) (citation omitted) (“Based on the facts before us, class action would be

superior to other methods of adjudication in that, in the absence of class action, the

potential expense of the litigation in relation to the relatively small recovery

amount for each plaintiff would prevent most, if not all, injured parties from

initiating a lawsuit. Judicial economy and efficiency dictate that all such possible

claims against Defendants be tried in one class action lawsuit, rather than

numerous lawsuits.”); Bobbitt v. Milberg LLP, 338 F.R.D. 607, 625 (internal

quotation marks and citations omitted) (D. Ariz. 2021) (“Where damages suffered

by each putative class member are not large, this factor weighs in favor of

certifying a class action. For example, class litigation is superior when a group

composed of consumers or small investors typically will be unable to pursue their

claims on an individual basis because the cost of doing so exceeds any recovery

they might secure. In addition, class litigation is superior when it will reduce costs

and conserve judicial resources.”).

However, Appellants do vigorously contest the trial court’s

conclusion that common issues predominate over individual ones. But Appellants’

arguments are largely a reiteration of their previously discussed arguments

regarding typicality and commonality.

We begin by noting that Appellants again refer to the individualized

damages which each class member may have suffered. Again, any differences

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regarding damages among the class members is irrelevant since this is a liability-

only class. Moreover, though any broad legal principle may be subject to

exceptions, “the black letter rule is that individual damage calculations generally

do not defeat a finding that common issues predominate . . . .” 2 William B.

Rubenstein, Newberg and Rubenstein on Class Actions § 4:54 (6th ed. 2022).

The main issues here are Appellees’ allegations that Appellants

consistently failed in their duties, such as to provide bargained-for tombstones and

to reserve burial plots solely for the purchasers thereof, or their designees. The

Appellees have argued that Appellants had a pattern or practice of such alleged

misconduct, as highlighted by the accountant’s notation of incomplete,

indecipherable, or erroneous records. In other words, the core underlying facts for

each class member would be strikingly similar, and those main issues dominate

over any individualized ones. See, e.g., In re Tri-State Crematory Litigation, 215

F.R.D. at 696 (“The facts of this case are essentially identical for every Plaintiff:

Plaintiffs allege that each and every Plaintiff relied on a Funeral Home Defendant

to handle the cremation of Plaintiff’s loved one. Each and every Plaintiff claims

that a Funeral Home Defendant failed to perform that service in a manner that

conformed to the standard of care for the funeral home industry, and the Plaintiff

suffered emotional injury because the Funeral Home Defendant failed to perform

to the standard of care. The Court concludes that variations in conduct from one

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Plaintiff to another do not predominate over the overwhelming common issues

related to Defendants’ conduct.”). Appellants have not shown that special,

individualized claims would predominate over those common, main issues.11

Consequently, when considering all the facts and circumstances of this case, we

discern no abuse of discretion in the trial court’s conclusion that Appellants

satisfied the requirements of CR 23.02.

F. Summation

The certification process in this case has been hard fought. All parties

have presented reasonable arguments in favor of their positions. Other jurists may

have reached different conclusions than did the trial court. But the question is not

what we, or another court, would conclude. The question is whether the trial

court’s decision was so ill-founded as to be an abuse of discretion. It is not.

As our Supreme Court explained, albeit in a factually different

context, “it is possible for a trial court to rule contrary to what an appellate court

would rule without abusing its discretion” and an appellate court “is powerless to

disturb such rulings.” Miller v. Eldridge, 146 S.W.3d 909, 917 (Ky. 2004). Under

that deferential standard, we must affirm the decision to certify a class even though

we recognize that the evidence may also have permitted different conclusions. The

11
Appellants essentially repeat their argument that Appellees’ claims cannot be resolved without
analyzing each and every grave. We disagree, for the same core reasons previously discussed.

-27-
trial court engaged in the requisite “rigorous analysis” and its conclusions are not

unsupported by sound legal principles. However, the decision to certify the fail-

safe subclasses is not supported by sound legal principles. Consequently, the

certification of the subclasses must be vacated, and the matter remanded with

instructions to issue a new certification order which does not contain fail-safe

subclasses.12

CONCLUSION

For the foregoing reasons, the Jefferson Circuit Court is affirmed as to

the decision to certify a liability-only class. The Jefferson Circuit Court’s

certification of the fail-safe subclasses is vacated. This case is remanded for entry

of a new order defining the class membership which does not contain fail-safe

provisions, after which the case shall proceed to resolution on the merits.

ALL CONCUR.

BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:

David A. Shearer, Jr. Jasper Ward
Christopher T. Brann Alex C. Davis
Ft. Mitchell, Kentucky Mark K. Gray
Matthew L. White
Stephen A. Brooks
Louisville, Kentucky

12
We have considered all of the arguments in the parties’ briefs, but decline to address
arguments which are irrelevant, redundant, underdeveloped, or otherwise unnecessary for us to
consider in order to resolve the limited issues properly before us.

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