Mittry v. Bancorpsouth Bank

200 S.W.3d 869, 360 Ark. 249
CourtSupreme Court of Arkansas
DecidedJanuary 6, 2005
Docket04-829
StatusPublished
Cited by7 cases

This text of 200 S.W.3d 869 (Mittry v. Bancorpsouth Bank) 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
Mittry v. Bancorpsouth Bank, 200 S.W.3d 869, 360 Ark. 249 (Ark. 2005).

Opinion

Annabelle Clinton Imber, Justice.

This is an appeal from .an order by the circuit court denying class certification under Rule 23 of the Arkansas Rules of Civil Procedure. The appellants in this appeal are Barbara Mittry, who is the personal representative of the Estate of F.K. “Bill” Mittry, deceased, and Joseph fiarvey, as representatives in their individual capacities and of all others similarly situated. The appellee is Bancorpsouth Bank, formerly known as First United Bank (Stuttgart). On April 5, 2001, Bill Mittry filed a class-action complaint against the appellee for breach of fiduciary duty, gross negligence, and breach of contract as a result of a separate lawsuit initiated and pursued by the appellee at a time when it served as trustee in connection with the issuance and sale of bonds to the 'public to help finance improvements by four development districts in the city of Maumelle (the “Maumelle Bonds”). 1 First United Bank v. Phase II, et al., 347 Ark. 879, 69 S.W.3d 33 (2002). According to the allegations in the complaint, which Harvey later joined, the appellee’s pursuit of the litigation caused a decrease in the secondary market sale price that appellants received when they sold their bonds, thereby causing them to sustain a financial loss. The appellants sought class certification of a class ofMaumelle bondholders “who (a) purchased their bonds before April 5, 1998, and (b) sold their bonds between April 5, 1998 and October 7, 2002.” In its answer, the appellee denied any liability to the bondholders.

Shortly after the filing of the complaint, Mittry filed a motion to certify class and the parties proceeded with discovery. In late 2003, the appellants amended their complaint and motion to certify the class. On April 8, 2004, after a hearing on the issue of class certification, the circuit court denied the appellants’ motion for class certification. That ruling is the subject of this interlocutory appeal. We review a circuit court’s denial of class certification under an abuse-of-discretion standard. Fraley v. Williams Ford Tractor & Equip., 339 Ark. 322, 5 S.W.3d 423 (1999); USH Check Cashers of Little Rock, Inc., v. Island, 349 Ark. 71, 76 S.W.3d 243 (2002).

The crux of the appellants’ appeal concerns whether the proposed class satisfies the predominance, numerosity, and superiority requirements under Ark. R. Civ. P. 23 (2004). 2 In certifying a class action under Ark. R. Civ. P. 23, the circuit court must certify that the following conditions are satisfied:

(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 a class, and (4) the representative parties will fairly and adequately protect the interest of the class. Ark. R. Civ. P. 23(a). Additionally, the court must find that 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).

Fraley v. Williams Ford Tractor & Equip., 339 Ark. at 333, 5 S.W.3d at 430. Here, the circuit court’s order denying class certification states in relevant part:

[T]he questions of law and fact common to the members of the proposed class do not predominate over any questions affecting individual members, and a class action is not superior to other methods for the fair and efficient adjudication of the controversy.
Although facts and legal issues may be common to the class, the heart of Plaintiffs’ claim is based upon the contention that a court action by the defendant caused low bond prices and a diminished sales price. The proposed class consists of approximately nineteen (19) sales of unrated bonds in odd lots by brokers in over the counter transactions during a period of changing interest rates. Given the individual question of causation relative to these sales, joinder and individual determination would be the superior method of achieving fair adjudication. The numerosity requirement is not satisfied and joinder is not impracticable.

The appellants appeal the circuit court’s order, arguing that the circuit court abused its discretion when it determined that the predominance, numerosity, and superiority factors were not satisfied. We affirm the circuit court.

As stated above, Rule 23(b) provides that an action may be maintained as a class action if the prerequisite requirements of Rule 23(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) (2004) (emphasis added). With regard to the predominance requirement of Rule 23, we must decide if the issues common to all plaintiffs “predominate over” the individual issues. Baker v. Wyeth-Ayerst Laboratories, 338 Ark. 242, 992 S.W.2d 797 (1999).

In concluding that the predominance factor was not satisfied in the Baker v. Wyeth-Ayerst Laboratories case, we noted the admonition by the Sixth Circuit Court of Appeals that a court should “ ‘question the appropriateness of a class action’ where ‘no one set of operative facts establishes liability, no single proximate cause equally applies to each potential class member and each defendant, and the individual issues outnumber common issues.’ ” Baker v. Wyeth-Ayerst Laboratories, 338 Ark. at 247, 992 S.W.2d at 800. (citing Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988)). Similarly, in Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991), class certification was proper because the common issues of the defendant’s conduct and causation predominated over and could be resolved prior to addressing the individual and less difficult issues of damages and injuries. This court reiterated in Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995), that a case with “numerous individual issues” can be better resolved on a case-by-case basis.

In contrast, the claim of misrepresentation was the “common linchpin” of every class member’s case in BNL Equity Corp. v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000), and the resolution of that issue predominated over potential individual issues. Moreover, in SEECO, Inc. v. Hales, 330 Ark.

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200 S.W.3d 869, 360 Ark. 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mittry-v-bancorpsouth-bank-ark-2005.