Faigin v. Diamante

2012 Ark. 8, 386 S.W.3d 372, 2012 WL 89978, 2012 Ark. LEXIS 13
CourtSupreme Court of Arkansas
DecidedJanuary 12, 2012
DocketNo. 11-691
StatusPublished
Cited by11 cases

This text of 2012 Ark. 8 (Faigin v. Diamante) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Faigin v. Diamante, 2012 Ark. 8, 386 S.W.3d 372, 2012 WL 89978, 2012 Ark. LEXIS 13 (Ark. 2012).

Opinion

KAREN R. BAKER, Justice.

| ^Appellants A1 Faigin, N.G. Faigin, and James Bodge bring this interlocutory appeal from an order of the Saline County Circuit Court denying class certification pursuant to Arkansas Rule of Civil Procedure 23. We have jurisdiction pursuant to Arkansas Rule of Appellate Procedure-Civil 2(a)(9) (2011). See also THE/FRE, Inc. v. Martin, 349 Ark. 507, 78 S.W.3d 723 (2002). Appellants argue that the circuit court erred in denying class certification by (1) looking to the merits of the defense; (2) sua sponte deeming class counsel inadequate and using that inadequacy as a basis to deny the class; (3) redefining the proposed class in a way that denied its numerosity; (4) redefining the proposed class in a way that denied its commonality; (5) redefining the proposed class in a way that denied its predominance and superiority; and (6) redefining the proposed subclass in a way that ignores the damage done to the property of the subclass and failing to permit intervention and certification of the subclass. We affirm.

The Faigins own a lot in the Diamante Subdivision of Hot Springs Village, Arkansas. 12Their lot is subject to the supplemental declaration of covenants and restrictions filed in connection with the property requiring the Faigins to become full golf-club members in appellee Diamante, a private-membership golf club, and to pay monthly membership dues to Diamante. In accordance with the supplemental declaration, Diamante is entitled to a lien on the lot for any unpaid monthly dues together with late charges and interest, and Diamante may foreclose upon the lien.

Diamante asserted a lien on the lot owned by the Faigins on October 14, 2010, for failure to pay the dues, and thereafter filed a complaint in foreclosure on the lot on November 16, 2010, in the circuit court of Saline County, Arkansas. Diamante averred that the Faigins owed $3,341.91 and that their failure to pay the dues constituted a breach of contract. In their answer, the Faigins denied owing the debt and asserted that their obligation to pay dues should be excused due to a material breach by appellee. Specifically, they alleged that Diamante had materially breached the supplemental declaration because certain memberships are deferred and the owners were not currently paying dues. The Faigins requested that the circuit court declare the lien filed against their property void, prohibit Diamante from collecting dues from them, and declare the supplemental declaration unenforceable.

The Faigins filed a motion for class certification and the appointment of class counsel on January 5, 2011, so that they could be sued as representative parties on behalf of all lot owners in the Diamante and Diamante Villas subdivisions in Hot Springs Village, Arkansas. They asserted that the plan of development for the lots as set forth in the supplemental declaration did not permit amendment of the requirement to pay monthly dues and that Diamante’s failure to Rcollect from all lots owners constituted a breach of contract. They sought exclusion of Diamante, Cooper Land Development, and deferred lot owners so that they could raise the defenses in their answer on behalf of all lot owners. The Faigins also wanted to be sued and to raise defenses on behalf of all lot owners who were not in breach.

James Bogue is a lot owner in Diamante, and he signed an addendum to a contract for the sale of real property at the time that he purchased his lot. He sought to intervene in the foreclosure case and certify a subclass to be sued and to raise defenses to the addendum on behalf of himself and all other lot owners who signed a similar document. The interve-nor wanted to be sued and to raise defenses to the addendum on behalf of lot owners who were not in breach and who were required to pay monthly golf dues.

Diamante responded that class certification was not appropriate because only seven foreclosure cases were pending regarding the lots in the subdivisions. Diamante asserted that only those seven lot owners could assert a defense that appellee had materially breached the supplemental declaration by not collecting monthly dues from each lot owner. The circuit court held a hearing on the motions on March 11, 2011. The motion for class certification and appointment of counsel was denied. The court also denied the motion for intervention and to certify a subclass. From that order, appellants bring this timely appeal.

Rule 23 provides that one or more members of a class may sue or be sued in a representative capacity only if the class is so numerous that joinder of all members is impracticable and there are questions of law or fact common to the class. Ark. R. Civ. P. 23(a). The claims or defenses of the representative parties must be typical of the claims or defenses of 14the class, and the representative parties and their counsel must fairly and adequately protect the interests of the class. Baptist Health v. Hutson, 2011 Ark. 210, 382 S.W.3d 662. 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. Ark. R. Civ. P. 23(b). The six requirements for class-action certification are (1) numerosity, (2) commonality, (3) typicality, (4) adequacy, (5) predominance, and (6) superiority. See Gen. Motors Corp. v. Bryant, 374 Ark. 38, 285 S.W.3d 634 (2008).

The determination that the class-certification criteria have been satisfied is a matter within the broad discretion of the trial court, and this court will not reverse the trial court’s decision absent an abuse of that discretion. ChartOne, Inc. v. Raglon, 373 Ark. 275, 283 S.W.3d 576 (2008). In reviewing a class-certification order, this court focuses on the evidence in the record to determine whether it supports the trial court’s conclusion regarding certification. Id. Neither the trial court nor this court shall delve into the merits of the underlying claims when deciding whether the Rule 23 requirements have been met. Id. In this regard, “ ‘a trial court may not consider whether the plaintiffs will ultimately prevail, or even whether they have a cause of action.’ ” Bryant, 374 Ark. at 42, 285 S.W.3d at 638 (quoting Carquest of Hot Springs, Inc. v. Gen. Parts, Inc., 367 Ark. 218, 223, 238 S.W.3d 916, 920 (2006)). We view the propriety of a class action as a procedural question. See id.

Appellants raise several arguments for reversal; however, the issue that resolves this appeal | ¡¡is one regarding commonality. Rule 23(a)(2) of the Arkansas Rules of Civil Procedure requires a determination by the trial court that “there are questions of law or fact common to the class.” All questions of law or fact raised in the litigation need not be common. Id. The test or standard for satisfaction of the commonality requirement is that there need be only a single issue common to all members of the class. Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

GGNSC Arkadelphia, LLC v. Lamb
2015 Ark. 253 (Supreme Court of Arkansas, 2015)
Watkins v. State
2014 Ark. 283 (Supreme Court of Arkansas, 2014)
Smith v. Hobbs
2014 Ark. 270 (Supreme Court of Arkansas, 2014)
Diamante, LLC v. Dye
2013 Ark. 501 (Supreme Court of Arkansas, 2013)
O'Guinn v. Little River Memorial Hospital
2013 Ark. App. 593 (Court of Appeals of Arkansas, 2013)
Kersten v. State Farm Mutual Automobile Insurance Co.
2013 Ark. 124 (Supreme Court of Arkansas, 2013)
Chambers v. State
2012 Ark. 407 (Supreme Court of Arkansas, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
2012 Ark. 8, 386 S.W.3d 372, 2012 WL 89978, 2012 Ark. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faigin-v-diamante-ark-2012.