Reliance Health Care, Inc. Ovation Health Systems, Inc. Rhc Operations, Inc. Eagle Health Systems, Inc. Gnnc, Inc., D/B/A Gosnell Therapy and Living Srcnc, Inc., D/B/A the Crossing at Riverside Health and Rehabilitation Bvnc, Inc., D/B/A Mountain Meadows Health and Rehabilitation Slnc, Inc., D/B/A Southfork River Therapy and Living Nashville Nursing and Rehab, Inc. Beebe Retirement Center, Inc. Wcnc, Inc., D/B/A Katherine's Place at Wedington Gvnc, Inc., D/B/A Gassville Therapy and Living Mhcnc, Inc., D/B/A Care Manor Nursing and Rehab Mhhnc, Inc., D/B/A Hiram Shaddox Geriatric Health and Rehab Nwa Nursing Center, LLC, D/B/A the Maples at Har-Ber Meadows Fpnc, Inc., D/B/A Twin Lakes Therapy and Living Txknc, Inc., D/B/A Bailey Creek Health and Rehab Westwood Health and Rehab, Inc. Bryan M. Adams Anthony Brandon Adams John Ellis Gena Turner Amy Rollins And Andrea Neil v. Katherine Jones Mitchell, as Special Administrator of the Estate of John L. Mitchell, Barbara Ann Phillips, as Special Administratrix of the Estate of Barbara Jean Crowe, Michael Askue, as Special Administrator of the Estate of Debra Irene Watkins, Martha Gray Donnell Jessie Marie Melton, as Special Administrator of the Estate of Vernie Marie Graveline, Dale Fountain, as Special Administrator of the Estate of Laura Fountain, Mike Mims, as Special Administrator of the Estate of Mary Mims, Betty Sue Bradford Kristin McCuistion Billy Ray Brewer Lois Henley Heather Staton Peggy Howerton, as Personal Representative of the Estate of Melvin Howerton, Tammie Skaggs, as Special Administratrix of the Estate of Patricia Ann San Migel, Mary Molitor, as Special Administrator of the Estate of Willard Molitor, Steve Harrelson, as Special Administrator of the Estate of Harvey "curtis" Jones Jana Dawn Smith, as Personal Representative of the Estate of Donald Keith Smith, And Andy Wiggs, as Personal Representative of the Estate of Harold Lee Wiggs

2023 Ark. 165

• Court: Supreme Court of Arkansas
• Decided: November 16, 2023
• Status: Published

Opinion

Cite as 2023 Ark. 165 SUPREME COURT OF ARKANSAS No. CV-23-95

Opinion Delivered: November 16, 2023 RELIANCE HEALTH CARE, INC.; OVATION HEALTH SYSTEMS, INC.; APPEAL FROM THE MISSISSIPPI RHC OPERATIONS, INC.; EAGLE COUNTY CIRCUIT COURT HEALTH SYSTEMS, INC.; GNNC, INC., [NO. 47BCV-19-236] D/B/A GOSNELL THERAPY AND LIVING; SRCNC, INC., D/B/A THE HONORABLE TANYA M. ALEXANDER, CROSSING AT RIVERSIDE HEALTH JUDGE AND REHABILITATION; BVNC, INC., D/B/A MOUNTAIN MEADOWS HEALTH APPEAL DISMISSED. AND REHABILITATION; SLNC, INC., D/B/A SOUTHFORK RIVER THERAPY AND LIVING; NASHVILLE NURSING AND REHAB, INC.; BEEBE RETIREMENT CENTER, INC.; WCNC, INC., D/B/A KATHERINE’S PLACE AT WEDINGTON; GVNC, INC., D/B/A GASSVILLE THERAPY AND LIVING; MHCNC, INC., D/B/A CARE MANOR NURSING AND REHAB; MHHNC, INC., D/B/A HIRAM SHADDOX GERIATRIC HEALTH AND REHAB; NWA NURSING CENTER, LLC, D/B/A THE MAPLES AT HAR-BER MEADOWS; FPNC, INC., D/B/A TWIN LAKES THERAPY AND LIVING; TXKNC, INC., D/B/A BAILEY CREEK HEALTH AND REHAB; WESTWOOD HEALTH AND REHAB, INC.; BRYAN M. ADAMS; ANTHONY BRANDON ADAMS; JOHN ELLIS; GENA TURNER; AMY ROLLINS; AND ANDREA NEIL APPELLANTS

V.

KATHERINE JONES MITCHELL, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF JOHN L. MITCHELL, DECEASED; BARBARA ANN PHILLIPS, AS SPECIAL ADMINISTRATRIX OF THE ESTATE OF BARBARA JEAN CROWE, DECEASED; MICHAEL ASKUE, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF DEBRA IRENE WATKINS, DECEASED; MARTHA GRAY DONNELL; JESSIE MARIE MELTON, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF VERNIE MARIE GRAVELINE, DECEASED; DALE FOUNTAIN, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF LAURA FOUNTAIN, DECEASED; MIKE MIMS, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF MARY MIMS, DECEASED; BETTY SUE BRADFORD; KRISTIN MCCUISTION; BILLY RAY BREWER; LOIS HENLEY; HEATHER STATON; PEGGY HOWERTON, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MELVIN HOWERTON, DECEASED; TAMMIE SKAGGS, AS SPECIAL ADMINISTRATRIX OF THE ESTATE OF PATRICIA ANN SAN MIGEL, DECEASED; MARY MOLITOR, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF WILLARD MOLITOR, DECEASED; STEVE HARRELSON, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF HARVEY “CURTIS” JONES; JANA DAWN SMITH, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DONALD KEITH SMITH, DECEASED; AND ANDY WIGGS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF HAROLD LEE WIGGS, DECEASED APPELLEES

RHONDA K. WOOD, Associate Justice

2 This is an interlocutory appeal of the Mississippi County Circuit Court’s order

certifying a class action. Because a majority of this court has granted a writ of certiorari in

Reliance Health Care, Inc. v. Mitchell, No. CV-23-290, vacating the class-certification order

because it was entered before an order on pending motions to compel arbitration, this appeal

is dismissed as moot.

The class plaintiffs represent the estates of former residents, as well as some current

and former residents, of fourteen different nursing homes. The complaint alleged that these

nursing homes were systematically understaffed, causing residents to receive insufficient care.

The complaint alleged that this conduct constituted breach of contract and unjust

enrichment and violated the Arkansas Civil Rights Act and the Arkansas Deceptive Trade

Practices Act.

This complaint was initially removed to federal court and later remanded to the

circuit court. Mitchell v. Reliance Health Care Inc., No. 3:19-CV-00370-LPR, 2020 WL

5089585, at *1 (E.D. Ark. Aug. 28, 2020). Back at circuit court, the nursing homes moved

to compel arbitration for all but two of the named plaintiffs. Soon after, the plaintiffs filed a

motion for class certification. In response, the nursing homes argued that the lawsuit should

be stayed pending a ruling on their motions to compel. See Ark. Code Ann. § 16-108-207

(Repl. 2016). The circuit court conducted a hearing on both the motions to compel

arbitration and the motion for class certification. However, it granted plaintiffs’ motion for

class certification without ruling on the motions to compel arbitration.

The case then proceeded to this court on two separate tracks. First, the nursing homes

sought review through an interlocutory appeal of the class-certification order. See Ark. R.

3 App. P.–Civ. 2(a)(9). Second, the nursing homes petitioned for writ of prohibition,

mandamus, and certiorari. They cited section 16-108-207(f), which provides as follows: “If

a party makes a motion to the court to order arbitration, the court on just terms shall stay

any judicial proceeding that involves a claim alleged to be subject to the arbitration until the

court renders a final decision under this section.” Thus, they argued, granting a writ of

certiorari and reversing the class-certification order pending a decision on the motions to

compel was warranted. See Altice USA, Inc. v. City of Gurdon ex rel. Kelley, 2022 Ark. 199,

at 3, 654 S.W.3d 641, 645 (suggesting a writ petition as an appropriate method to enforce

section 16-108-207).

On September 28, 2023, a majority of this court granted the nursing homes’ writ

petition; along with this opinion handed down today is a separate substituted syllabus entry

that has been issued in that separate case. See Reliance Health Care, Inc. v. Mitchell, No. CV-

23-290 (Ark. Nov. 16, 2023). In granting the nursing homes’ petition, a majority of this

court vacated the circuit court’s order granting class certification and ordered the court to

rule on the motions to compel before ruling on class certification. This renders the

interlocutory appeal of the vacated class-certification order moot. That class-certification

order no longer stands. On remand, once the circuit court addresses the motions to compel

arbitration, it may reexamine whether to certify the case as a class action.

Appeal dismissed.

Special Justice TIFFANY MILLIGAN BROWN joins.

BAKER, J., concurs.

HUDSON, J., dissents.

4 WOMACK, J., not participating.

COURTNEY RAE HUDSON, Justice, dissenting. The majority opinion dismisses

this interlocutory appeal based on its September 28, 2023 order granting appellants’ petition

for extraordinary relief in Reliance Health Care, Inc. v. Mitchell, No. CV-23-290. Because I

disagree with the ruling of the majority of the court in case No. CV-23-290, I would address

the merits of this class-certification appeal rather than dismiss it as moot. Thus, I respectfully

dissent.

At the August 31, 2022 hearing on appellants’ motions to compel arbitration and

appellees’ motion for class certification, the circuit court denied appellants’ request to stay

its decision on class certification pending further discovery on issues affecting arbitration.

The court then entered an order on September 30, 2022, certifying the class. However,

rather than seeking extraordinary relief from this court at that time, appellants instead elected

to pursue their appeal of the class-certification order. It was not until seven months later, on

May 2, 2023, after appellants had filed both the record and their opening brief in the current

appeal, that they filed their petition for a writ of prohibition, mandamus, and/or certiorari,

alleging that the circuit court erred by not deciding the arbitration issue first. While

requesting that this court issue an extraordinary writ to the circuit court reversing the class-

certification order, directing it to enter an order staying all proceedings in this case pending

the resolution of the motions to compel arbitration, and barring it from exercising

jurisdiction over any other issues, appellants’ petition failed to recognize that the circuit

court had lost jurisdiction to act due to their own pending appeal. See, e.g., State ex rel. 93rd

General Assembly v. McClane, 2023 Ark. 3, 657 S.W.3d 872 (holding that once the record is

5 lodged in the appellate court, the circuit court no longer exercises jurisdiction over the

parties and the subject matter in controversy). We have held that the circuit court retains

jurisdiction over matters that are independent of, or collateral to, the matter under review.

Id. Appellants certainly cannot argue that the issue of class certification is independent of, or

collateral to, their motions to compel arbitration given their insistence in both their writ

petition and their brief in this appeal that “the pending arbitration motions directly affect the

scope of any class or classes in this matter.” (Emphasis in original.)

A majority of this court compounded the error by granting appellants’ petition by

syllabus entry without explaining our decision or identifying which of appellants’ requests

for relief were being granted while, at the same time, we still had jurisdiction of this

interlocutory appeal. This error necessitated the substituted order entered today in case No.

CV-23-290. I initially voted to take appellants’ petition as a case both to provide the parties

and the circuit court with a more fulsome explanation of our decision and to avoid the

jurisdictional problem caused by our earlier order. Now that the issue is again before us, I

would deny appellants’ request for an extraordinary writ as is reflected in the substituted

order in case No. CV-23-290. Accordingly, I would address the issues presented in this

interlocutory appeal.

Wright, Lindsey & Jennings LLP, by: Judy Simmons Henry, Gary D. Marts, Jr., and

Michael A. Thompson, for appellants.

Campbell Law Firm, P.A., by: H. Gregory Campbell; Reid, Burge, Prevallett & Coleman,

by: Robert Coleman; Marks, Balette, Giessel & Young, PLLC, by: David Marks and Jacques

Balette; and Robert H. Edwards, for appellees.