I respectfully dissent. An order of consolidation is a matter of discretion with the trial judge, and this court has held that it will not reverse such an order except for abuse of that discretion. Mo. Pac. R.R. Co. v. Ark. Sheriff’s Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983); Ark. R. Civ. P. 42(b). The purpose of Rule 42(b), this court’s rule permitting consolidation, is to further convenience, avoid delay and prejudice, and serve the needs of justice. Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992). The primary concern is efficient judicial administration, as long as no party suffers prejudice by the bifurcation. Id. at 436.
The rule in Arkansas regarding severance is that, where the defendants were involved in the same series of transactions, and where, at trial, the testimony revealed that there were questions of law and fact common to the defendants that arose in their actions, a trial court’s decision to permit joinder of the defendants is correct and prevents needless waste of scarce space on the court’s docket. Dooley v. Cecil Edwards Construction Co., 13 Ark. App. 170, 681 S.W.2d 399 (1984).
The Tumblsons argue that the trial court’s rationale for denying severance for judicial economy cannot stand. They cite Ciba-Geigy Corp. where this court held that “in no area of law are we disposed to promote the interests of judicial economy over a party’s right to receive a fair trial.” 309 Ark. at 437. However, the facts in Ciba-Geigy are so dissimilar to the present case that it is inapplicable. In Ciba-Geigy, the trial court joined a strict liability claim for damages with a claim asserting breach of a settlement agreement arising out of the same dispute. Because evidence of setdement negotiations are inadmissible under Ark. R. Evid. 408, that court’s ruling was clearly reversible error.
The Tumblsons also contend that Ark. Rule Civ. P. 20(a), the permissive joinder rule, is not applicable to this case, because there were no common questions of fact or law between the defendants. They argue that there is no civil conspiracy here, defined by this court as “a combination of two or more persons to accomplish a purpose that is unlawful or oppressive or to accomplish some purpose, not in itself unlawful, oppressive, or immoral, by unlawful, oppressive or immoral means, to the injury of another.” Mason v. Funderbank, 247 Ark. 521, 446 S.W.2d 543 (1969). The Tumblsons compare the present case to Kotteakos v. United States, 328 U.S. 750 (1946), wherein the Court found a lack of interdependence between the thirty-two defendants on trial and eight conspiracies they were accused of to support a conspiracy theory.
However, Harvest Foods contends, and I agree, that the common thread between the defendants here is the corruption of Don Pennington, Harvest Food’s former CEO. It states that the same proof that shows the defendants’ common scheme would have been admissible at separate trials because it proves intent to defraud Harvest Foods. See Ark. Rule Evid. 404(b); Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987).
In my view, evidence of Pennington’s contemporaneous breaches of fiduciary duties alongside the other defendants showed that Pennington and his cohorts were not merely consulting, but consciously working with the same purpose or object in mind — to defraud Harvest Foods. In other words, while all of the schemes and conspiracies involved some slight variations in how they were conducted, they were all designed and calculated to defraud Harvest Foods during essentially the same period of time. In my opinion, this proof evidences a question of fact common to all the defendants in this case, thus satisfying the requirements of this court’s permissive joinder and consolidation rules. At the very least, I cannot say the trial judge abused his discretion in finding these defendants should be made party-defendants in this conspiracy case.