                                    Cite as 2017 Ark. 162

                SUPREME COURT OF ARKANSAS
                                       No.   CV-16-584

ROBINSON NURSING AND                              Opinion Delivered   May 4, 2017
REHABILITATION CENTER, LLC,
D/B/A ROBINSON NURSING AND                        APPEAL FROM THE PULASKI
REHABILITATION CENTER;                            COUNTY CIRCUIT COURT
CENTRAL ARKANSAS NURSING                          [NO. 60CV-14-4568]
CENTERS, INC.; NURSING
CONSULTANTS, INC.; AND MICHAEL                    HONORABLE TIMOTHY DAVIS
MORTON                                            FOX, JUDGE
                    APPELLANTS
                                                  AFFIRMED IN PART; REVERSED
V.                                                AND REMANDED IN PART.


ANDREW PHILLIPS, AS PERSONAL
REPRESENTATIVE OF THE ESTATE
OF DOROTHY PHILLIPS, AND ON
BEHALF OF THE WRONGFUL DEATH
BENEFICIARIES OF DOROTHY
PHILLIPS; AND ON BEHALF OF
THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED
                    APPELLEES


                            KAREN R. BAKER, Associate Justice


       Appellants Robinson Nursing and Rehabilitation Center, LLC, d/b/a Robinson

Nursing and Rehabilitation Center; Central Arkansas Nursing Centers, Inc.; Nursing

Consultants, Inc.; and Michael Morton (collectively “Robinson”) bring an interlocutory

appeal of the Pulaski County Circuit Court’s order certifying a class action filed by appellees

Andrew Phillips, as personal representative of the estate of Dorothy Phillips, and others

(collectively “Phillips”). Dorothy Phillips was a resident of Robinson from approximately
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August 19, 2013, until February 22, 2014. On appeal, Robinson argues that Phillips did not

meet his burden of proving commonality, predominance, typicality, and superiority.

Robinson also argues that the class definition is overbroad. We affirm the circuit court’s order

in part and reverse and remand in part.

                                   Facts and Procedural History

       On September 4, 2015, Phillips filed his first amended class-action complaint alleging

that Robinson’s business practice of chronic understaffing breaches the admission agreement

and provider agreement, violates the Arkansas Deceptive Trade Practices Act (“ADTPA”),

constitutes negligence and civil conspiracy, and unjustly enriches Robinson. Phillips sought

compensatory, economic and punitive damages, attorney’s fees, interest, and costs. On

September 10, 2015, Phillips filed his amended motion for class certification. Phillips argued

that the class-certification issue before the circuit court was controlled by GGNSC

Arkadelphia, LLC v. Lamb, 2015 Ark. 253, 465 S.W.3d 826. In Lamb, this court affirmed the

certification of contractual and statutory claims against GGNSC in which the plaintiff residents

alleged that GGNSC failed to properly and adequately staff its facilities.

       On September 24, 2015, Robinson filed its answer to Phillips’s first amended class-

action complaint, and on September 28, 2015, Robinson filed its response to Phillips’s motion

for class certification. Robinson argued that class certification was inappropriate in the present

case and that Phillips’s motion for class certification should be denied. Specifically, Robinson

argued that the claims and issues in the present case differ significantly from those presented

in Lamb because the Lamb plaintiffs did not assert claims for negligence and unjust enrichment.


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On October 13, 2015, Phillips filed his reply and on October 20, 2015, Robinson filed its

sur-reply.

       After conducting a hearing on March 4, 2016, the circuit court entered an order

granting class certification. The circuit court defined the class as

       [a]ll residents and estates of residents who resided at the Robinson Nursing and
       Rehabilitation Center from June 11, 2010, to present. Excluded from the Class are
       (1) residents that have sued in the past or presently have lawsuits pending against any
       of the Defendants except the plaintiffs named herein; (2) all present and former
       employees, officers, directors, of Defendants; (3) any Class Member who timely elects
       to be excluded from the class; and (4) any employee of the Circuit Court of Pulaski
       County, Arkansas, or any officer of any court presiding over this action.

The circuit court found that the common questions as to the class members include but are

not limited to:

       a.     Whether the standard Admission Agreement required the Facility to have
              sufficient staff to meet the care needs of the residents as required by state and
              federal laws and regulations.

       b.     Whether Ark. Code Ann. §§ 20-10-201, et seq. imposes minimum staffing
              requirements requiring the Facility to have sufficient staff to meet the care
              needs of the residents.

       c.     Whether Defendants failed to meet the minimum staffing requirements of Ark.
              Code Ann. §§ 20-10-1201, et. seq., and the Defendants’ admission agreement
              by failing to provide sufficient staff to meet the care needs of the residents.

       d.     Whether failure to meet the minimum staffing requirements required by state
              and federal laws and regulations breaches the Defendants’ admission agreement,
              Ark. Code Ann. § 20-10-1201, et. seq., and the Arkansas Deceptive Trade
              Practices Act.

       e.     Whether chronically understaffing the Facility in violation of state and federal
              laws and regulations is an unconscionable business practice in violation of the
              Arkansas Deceptive Trade Practices Act.

       f.     Whether the Defendants owed a legal duty to the residents to staff the Facility

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               in compliance with state and federal laws and regulations;

       g.      If so, whether the Defendants’ breach of their duty to adequately staff the
               Facility in compliance with state and federal laws regulations;

       h.      Whether failure to staff the Facility in compliance with state and federal laws
               and regulations is a breach of the provider agreement;

       i.      Whether the admission agreement’s failure to disclose the Facility’s history of
               understaffing is an omission or concealment which constitutes a violation of the
               Arkansas Deceptive Trade Practices Act;

       j.      Whether the Defendants were unjustly enriched;

       k.      Whether the Defendants engaged in a civil conspiracy to understaff the Facility
               in violation of state and federal laws and regulations; and[1]

       l.      Whether Michael Morton and the entity Defendants are control persons as
               defined in Ark. Code Ann. [§] 4-88-113(d)(1) and therefore jointly and
               severally liable for the damages suffered by the Plaintiff Class for the
               Defendants’ deceptive trade practices.

Citing to this court’s precedent in Lamb, supra, and Beverly Enterprises-Arkansas, Inc. v. Thomas,

370 Ark. 310, 259 S.W.3d 445 (2007), the circuit court found that the common issues

predominated over the individual issues. The circuit court also found that the requirements

of numerosity, typicality, superiority, and adequacy were satisfied. Finally, the circuit court

found that the class definition was proper and not overbroad.

       Robinson now brings its timely interlocutory appeal from the circuit court’s order

granting class certification pursuant to Rule 2(a)(9) of the Arkansas Rules of Appellate

Procedure–Civil.




       1
        The parties do not address the civil-conspiracy claim on appeal.

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                                       Standard of Review

       An interlocutory appeal may be taken from an order certifying a case as a class action

in accordance with Rule 23 of the Arkansas Rules of Civil Procedure. Circuit courts are

given broad discretion in matters regarding class certification, and we will not reverse a circuit

court’s decision to grant or deny class certification absent an abuse of discretion. ChartOne,

Inc. v. Raglon, 373 Ark. 275, 283 S.W.3d 576 (2008). When reviewing a circuit court’s

class-certification order, this court reviews the evidence contained in the record to determine

whether it supports the circuit court’s decision. Teris, LLC v. Golliher, 371 Ark. 369, 266

S.W.3d 730 (2007). Our focus is “whether the requirements of Rule 23 are met,” and “it is

totally immaterial whether the petition will succeed on the merits or even if it states a cause

of action.” Philip Morris Cos. v. Miner, 2015 Ark. 73, at 3, 462 S.W.3d 313 (quoting Am.

Abstract & Title Co. v. Rice, 358 Ark. 1, 9, 186 S.W.3d 705, 710 (2004)).

                                        Class Certification

       On appeal, Robinson argues that the present case is fundamentally different from the

certification issues presented in Lamb, supra, and Thomas, supra. Further, Robinson argues that

Phillips has failed to meet his burden of proof under Rule 23 of the Arkansas Rules of Civil

Procedure. Specifically, Robinson argues that Phillips has failed to prove (1) commonality,

(2) predominance, (3) typicality, and (4) superiority. Finally, Robinson contends that the class

definition is overbroad.

       Rule 23 of the Arkansas Rules of Civil Procedure governs class actions and class

certification. The rule provides, in pertinent part:


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       (a)     Prerequisites to Class Action. One or more members of a class may sue or be
               sued as representative parties on behalf of all only if (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 the class, and (4) the representative
               parties and their counsel will fairly and adequately protect the interests of the
               class.

       (b)     Class Actions Maintainable. 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.

Therefore, there are six requirements for class-action certification, as stated in Rule 23: (1)

numerosity, (2) commonality, (3) typicality, (4) adequacy, (5) predominance, and (6)

superiority. Gen. Motors Corp. v. Bryant, 374 Ark. 38, 285 S.W.3d 634 (2008). In addition to

the requirements of Rule 23, the court must be able to objectively identify members of the

class. Farmers Ins. Co. v. Snowden, 366 Ark. 138, 233 S.W.3d 664 (2006).

                 I. Breach of Contract, ADTPA, & Unjust-Enrichment Claims2

       On appeal, Robinson argues that the circuit court abused its discretion in finding that

the commonality and predominance requirements of Rule 23 had been met. As to the

breach-of-contract, ADTPA, and unjust-enrichment claims, for the reasons stated in Lamb,

we disagree.

                              A. Commonality & Predominance

       We now turn to the specific requirements of class certification. To certify a class, the


       2
     Phillips’s unjust-enrichment claim is intertwined with his breach-of-contract and
ADTPA claims. Accordingly, these three claims will be addressed together.

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circuit court must determine that “there are questions of law or fact common to the class.”

Ark. R. Civ. P. 23(a)(2). The commonality requirement is always case specific and

       Rule 23(a)(2) does not require that all questions of law or fact raised in the litigation
       be common. The test or standard for meeting the rule 23(a)(2) prerequisite is . . . that
       there need be only a single issue common to all members of the class . . . When the
       party opposing the class has engaged in some course of conduct that affects a group of
       persons and gives rise to a cause of action, one or more of the elements of that cause
       of action will be common to all of the persons affected.

Union Pac. R.R. v. Vickers, 2009 Ark. 259, at 8–9, 308 S.W.3d 573, 578 (quoting Herbert B.

Newberg, Newberg on Class Actions § 3.10 (3d ed. 1993)). The circuit court “must determine

what elements in a cause of action are common questions for the purpose of certifying a

class,” and commonality is satisfied where “the defendant’s acts, independent of any action by

the class members, establish a common question relating to the entire class.” Id. at 9, 308

S.W.3d at 578 (quoting Williamson v. Sanofi Winthrop Pharms., Inc., 347 Ark. 89, 97, 60

S.W.3d 428, 433 (2001)).

       Once commonality is determined when deciding whether to certify a class, the next

question is whether common questions of law and fact predominate over any questions

affecting only individual members. Rosenow v. Alltel Corp., 2010 Ark. 26, 358 S.W.3d 879.

With regard to the predominance requirement of Rule 23(b), we must decide if the issues

common to all plaintiffs predominate over the individual issues. Baker v. Wyeth-Ayerst Labs.

Div., 338 Ark. 242, 992 S.W.2d 797 (1999). The predominance requirement, however, is

more stringent than the commonality requirement. Vickers, 2009 Ark. 259, at 9, 308 S.W.3d

at 578 (citing BPS, Inc. v. Richardson, 341 Ark. 834, 20 S.W.3d 403 (2000)). In Vickers, we

explained the standard for testing predominance:

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       When deciding whether common questions predominate over other questions
       affecting only individual members, this court does not merely compare the number of
       individual versus common claims. Rather, this court decides if the preliminary,
       overarching issues common to all class members “predominate over” the individual
       issues, which can be resolved during the decertified stage of a bifurcated proceeding.
       Thus, the mere fact that individual issues and defenses may be raised regarding the
       recovery of individual members cannot defeat class certification where there are
       common questions concerning the defendant’s alleged wrongdoing that must be
       resolved for all class members.

Id. (internal citations omitted).

       If a case involves preliminary issues common to all class members, predominance is

satisfied even if the court must subsequently decertify a class due to individualized damages.

Snowden, 366 Ark. 138, 148, 233 S.W.3d 664, 670. However, if the preliminary issues are

sufficiently individualized, then predominance is not satisfied, and class certification is

improper. Id., 233 S.W.3d at 671.

       Phillips contends that the arguments presented in the present case were already rejected

in Lamb and Thomas; thus, we should affirm the circuit court’s finding of commonality and

predominance. We agree.

       The commonality requirement is clearly satisfied because, as required in Vickers, supra,

Robinson’s act of understaffing, independent of any action by Phillips, establishes a common

question relating to the entire class. Further, we find that the predominance requirement has

been satisfied. In Lamb, we explained Thomas as follows,

               In Thomas, supra, the plaintiffs pursued a class-action suit against a nursing home
       located in Batesville. The complaint asserted that, pursuant to the facility’s admission
       agreement, as well as the Residents’ Rights Act, the nursing home was obligated to
       take care of the residents’ basic daily needs and that the nursing home had failed to
       meet this obligation by neglecting to properly and adequately staff the facility. The
       circuit court granted class certification, finding that the common issues predominated

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       over individual ones. On appeal, the nursing home argued that the circuit court erred
       by certifying the class because the identified questions of fact could not be resolved
       without a detailed examinations of the individual circumstances of each class member
       and because the predominant issues raised involved only individualized issues of
       liability, causation, and the existence and extent of injury for each class member. This
       court rejected the nursing home’s argument and affirmed the class-certification order,
       holding as follows:

              We conclude that one main and preliminary overarching issue does exist in this
              case, which is whether the Batesville nursing facility was chronically
              understaffed so as to violate the residents’ statutory and contractual rights. In its
              order, the circuit court found thirteen questions of fact and law and five issues
              that must be resolved, which are common to all class members. The five issues
              all involved understaffing. The court then found that the common factual and
              legal issues predominated over the individual issues because all residents relied
              upon the same Resident Admission Agreement and statutory law to assert that
              systemic understaffing resulted in undignified living conditions for the residents,
              which breached that agreement and violated state law. The circuit court
              recognized that once these predominating issues were resolved, the class could
              be decertified, if necessary, to determine individual restitution and damage
              issues for class members for breach-of-contract and statutory violations.

              We hold that the circuit court did not abuse its discretion in determining that
              the overarching issue of understaffing is common to the class and may be
              resolved before individual issues of damages must be addressed. The
              predominance criterion is satisfied in this case. Thomas, 370 Ark. at 318, 259
              S.W.3d at 450.

2015 Ark. 253, at 11–12, 465 S.W.3d at 832–33.

       Thus, in holding that the circuit court did not abuse its discretion in finding that the

element of predominance had been satisfied, the court explained that “the common,

overarching issues concern whether appellants have liability for chronic understaffing under

the admission agreement and the asserted statutes.” 2015 Ark. 253, at 16, 465 S.W.3d at 835.

Accordingly, based on Lamb, as to the breach of contract, ADTPA, and unjust-enrichment

claims, we hold that the circuit court correctly found that the commonality and predominance


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requirements of Rule 23 had been met.

                                        B. Superiority

       Next, Robinson argues that a class action is not the superior method for handling the

litigation in this case. In response, Phillips argues that a class action is the superior method

for resolving the pervasive common question of understaffing.

       In finding that the superiority requirement had been satisfied, the circuit court relied

on Lamb and Thomas. In Thomas, this court explained

       Rule 23(b) requires that a class action be superior to other available methods for the
       fair and efficient adjudication of the controversy. This court has held that the
       superiority requirement is satisfied if class certification is the more “efficient” way of
       handling the case, and it is fair to both sides. Where a cohesive and manageable class
       exists, we have held that real efficiency can be had if common, predominating
       questions of law or fact are first decided, with cases then splintering for the trial of
       individual issues, if necessary. This court has further stated that when a trial court is
       determining whether class-action status is the superior method for adjudication of a
       matter, it may be necessary for the trial court to evaluate the manageability of the class.

Thomas, 370 Ark. at 319, 259 S.W.3d at 451 (citing Asbury Auto. Grp., Inc., 366 Ark. at 611,

237 S.W.3d at 469-70 (quoting Van Buren Sch. Dist. v. Jones, 365 Ark. 610, 621, 232 S.W.3d

444, 453 (2006)).

       Robinson argues that in requiring individual trials as to injury, causation, and damages,

judicial economy is not met. Phillips correctly notes that this specific argument was rejected

in Lamb. In Lamb, the court explained that “determining the central questions whether

understaffing creates contractual or statutory liability and whether chronic understaffing

occurred are more efficiently handled in a single proceeding.” Id. at 19. In Lamb, we

explained that “the determination of understaffing is not unmanageable simply because twelve


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facilities are involved.” Id. Thus, as in Lamb, the class as certified in the present case is a

cohesive and manageable group because the common question of understaffing can be

ascertained on a classwide basis.

                                         C. Typicality

       Next, Robinson argues that the typicality requirement has not been met because

Phillips’s claims are not typical of class members who resided at Robinson prior to or after Ms.

Phillips’s six-month residency from August 2013 to February 2014. Robinson contends that

typicality is not satisfied because staffing during Ms. Phillips’s residency was different from the

staffing before or after. Robinson relies on the written staffing reports and asserts that the

staffing levels at Robinson varied significantly over the course of the class period. Further,

Robinson argues that Phillips’s claims are not typical because his claims narrowly focus on one

potential area of wrongdoing to the exclusion of other events or practices. Phillips has

focused his allegations exclusively on claims of understaffing. Therefore, any class member

who has a claim based on an alternate legal theory would be precluded from bringing such

a claim.

       In response, Phillips relies on the circuit court’s finding that this argument requires

resolution of the “ultimate question of whether the nursing home was chronically

understaffed. The Court cannot delve into the merits of the case when deciding the

procedural issue of the class certification.” As to typicality, we agree with Phillips. We have

said that neither the circuit court nor the appellate court may delve into the merits of the

underlying claim when deciding whether the requirements of Rule 23 have been met. Lamb,


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2015 Ark. 253, at 20–21, 465 S.W.3d at 837.

       The circuit court specifically found that “[Phillips] alleges the same unlawful conduct

affects hundreds of residents at the Facility. That is, [Robinson’s] normal practice of

chronically understaffing the Facility so as to violate the residents’ contractual and statutory

rights. The alleged conduct is the same and the claims are based upon the same legal theories.

[Phillips] has ‘alleged the same unlawful conduct was directed at or affected both the named

Plaintiff and the class sought to be certified.’ Accordingly, typicality is satisfied.”

       The focus of the typicality requirement is on the conduct of the alleged wrongdoer

giving rise to the claim rather than on the injury sustained from the conduct. Kersten v. State

Farm Mut. Auto. Ins. Co., 2013 Ark. 124, 426 S.W.3d 455.

               The typicality requirement is stated in Rule 23(a): “One or more members of
       a class may sue or be sued as representative parties on behalf of all only if . . . (3) the
       claims or defenses of the representative parties are typical of the claims or defenses of
       the class.” Ark. R. Civ. P. 23(a). The typicality requirement is satisfied if the class
       representative’s claim arises from the same wrong allegedly committed against the
       members of the class. Thus, a representative’s “claim is typical if it arises from the same
       event or practice or course of conduct that gives rise to the claims of other class
       members, and if [the representative’s] claims are based on the same legal theory.”
       Moreover, “When it is alleged that the same unlawful conduct was directed at or
       affected both the named plaintiff and the class sought to be represented, the typicality
       requirement is usually met irrespective of varying fact patterns which underlie
       individual claims.” Thus, when analyzing the factor of typicality, this court focuses
       upon the defendant’s conduct and not on the injuries or damages suffered by the
       plaintiffs.

DIRECTV, Inc. v. Murray, 2012 Ark. 366, at 13–14, 423 S.W.3d 555, 564. (internal citations

omitted). Because the class representative’s claim arises from the same alleged wrongful

conduct, understaffing, the circuit court correctly found that the typicality requirement had

been satisfied.

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                                     D. Class Definition

       Robinson argues that the class definition is overbroad. In response, Phillips contends

that the class definition is not overbroad and has been approved by this court in Lamb. We

agree with Phillips because the class definition in the present case is almost identical to the

class definition we approved in Lamb. In finding no abuse of discretion in the circuit court’s

definition of the class, we explained:

               Before a class can be certified under Rule 23, the class description must be
       sufficiently definite so that it is administratively feasible for the court to determine
       whether a particular individual is a member of the proposed class. The class must first
       be susceptible to precise definition to ensure that the class is neither “amorphous,” nor
       “imprecise.” Furthermore, for a class to be sufficiently defined, the identity of the class
       members must be ascertainable by reference to objective criteria.

               Appellants misstate our case law as requiring that a class must be defined to limit
       membership only to those who have sustained actual harm. What we have said, many
       times, is that “[c]learly defining the class ensures that those people who are actually
       harmed by a defendant’s wrongful conduct will participate in the relief ultimately
       awarded.” Ensuring the participation of all those who have been harmed does not
       translate into a requirement that the definition must include an element of actual harm.
       On the contrary, it would be improper to define a class by reference to actual injury
       because this would require a determination of the merits of a putative class member’s
       claim. However, neither the circuit court nor the appellate court may delve into the
       merits of the underlying claim when deciding whether the requirements of Rule 23
       have been met.

Lamb, 2015 Ark. 253, at 20–21, 465 S.W.3d at 837 (internal citations omitted).

       In Lamb, the class definition included residents and estates of residents “who resided

at the Golden Living nursing homes in Arkansas from December 2006, through July 1, 2009.”

Here, the class definition includes residents and estates of residents “who resided at the

Robinson Nursing and Rehabilitation Center from June 11, 2010, to present.” We recognize

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that the class definition here is not a closed group. However, the class definition is sufficiently

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

individual is a member of the proposed class.

       Because the present class definition is nearly identical to the class definition in Lamb,

the circuit court did not abuse its discretion in defining the class.

       Having found the above requirements for a class action to be satisfied, we affirm the

circuit court’s class certification as to Phillips’s claims of breach of contract, ADTPA, and

unjust enrichment.

                                          II. Negligence

       Next, Robinson argues that Phillips’s negligence claim is inappropriate for class

certification. Specifically, Robinson contends that the foundational elements of breach,

causation, and injury are incapable of classwide resolution. In response, Phillips relies on Lamb

and urges us to affirm the circuit court’s order. However, this argument is misplaced because

Lamb did not contain a negligence claim and was not certified in Lamb’s class-certification

order. Therefore, Lamb is not on point for our analysis of the negligence claim.

                              A. Commonality & Predominance

       Turning to our review of commonality and predominance with regard to negligence,

we must review the elements of negligence. Under Arkansas law, in order to prevail on a

claim of negligence, the plaintiff must prove that the defendant owed a duty to the plaintiff,

that the defendant breached the duty, and that the breach was the proximate cause of the

plaintiff’s injuries. Branscumb v. Freeman, 360 Ark. 171, 200 S.W.3d 411 (2004) (citing Wilson


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v. Rebsamen Ins., Inc., 330 Ark. 687, 957 S.W.2d 678 (1997)). The burden in a negligence

case is always on the party asserting the claim; negligence is never assumed. Yanmar Co., Ltd.

v. Slater, 2012 Ark. 36, 386 S.W.3d 439 (citing Morehart v. Dillard Dep’t Stores, 322 Ark. 290,

908 S.W.2d 331 (1995)). Negligence may be established by direct or circumstantial evidence,

but a plaintiff may not rely on inferences based on conjecture or speculation. Id. (citing Ark.

Kraft v. Cottrell, 313 Ark. 465, 855 S.W.2d 333 (1993)). Therefore, negligence requires an

individual analysis of each plaintiff’s specific allegations. Even assuming there are questions

common to each class member, we cannot say that these common issues clearly predominate

over the individual issues. Stated differently, there is “no one set of operative facts” to

establish Robinson’s liability to any given class member. Vickers, 2009 Ark. 259, at 19, 308

S.W.3d at 582–583 (citing Baker, 338 Ark. at 247, 992 S.W.2d at 800). Here, each class

member’s claim would result in an individualized inquiry as to whether understaffing was the

proximate cause of his or her injury. Because the individualized questions concerning

proximate causation clearly predominate over the common questions, class certification as to

Phillips’s negligence claim is inappropriate. Accordingly, under the facts of this case, the

proximate-causation analysis necessarily requires an individual inquiry, which renders Phillips’s

negligence claim inappropriate for class certification.

       Based on the highly individualized nature of the negligence claim, we hold that the

circuit court abused its discretion in certifying the class action as to negligence. Accordingly,

we reverse and remand with instructions to decertify the class as to Phillips’s negligence




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claim.3

          Affirmed in part; reversed and remanded in part.

          KEMP, C.J., and GOODSON, HART, WYNNE, and WOMACK, JJ., concur in part and

dissent in part.

          JOHN DAN KEMP, Chief Justice, concurring in part and dissenting in part.

I concur with the majority that the circuit court did not abuse its discretion in finding that the

proposed class fulfilled the Rule 23 requirements of commonality, predominance, superiority,

and typicality on Phillips’s breach of contract, Arkansas Deceptive Trade Practices Act, and

unjust enrichment claims. See Ark. R. Civ. P. 23 (2016). I also concur with the majority that

the circuit court did not abuse its discretion in defining the class. But I dissent from the

majority’s holding that the circuit court abused its discretion in certifying the class action on

Phillips’s negligence claim. In my view, the circuit court properly granted Phillips’s motion

for class certification, without delving into the merits of each claim, based on the class-

certification criteria set forth in Rule 23. For these reasons, I concur in part and dissent in

part.

          When reviewing a circuit court’s class-certification order, we review the evidence

contained in the record to determine whether it supports the circuit court’s decision. See

Georgia-Pac. Corp. v. Carter, 371 Ark. 295, 265 S.W.3d 107 (2007). We have stated that




          3
         Because we hold that the predominance requirement has not been satisfied as to the
negligence claim, we do not reach the other requirements of Rule 23 of the Arkansas Rules
of Civil Procedure.

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       the issue of whether to certify a class is not determined by whether the plaintiff or
       plaintiffs have stated a cause of action or will prevail on the merits, but rather whether
       the requirements of Rule 23 are met. We have also observed that it is totally
       immaterial whether the petition will succeed on the merits or even if it states a cause
       of action. An order denying or granting class certification is separate from the merits
       of the case. Although we do not delve into the merits of the underlying claims in a
       potential class-action case, we will review the trial court’s order to determine whether
       the requirements of Rule 23 are satisfied.

Am. Abstract & Title Co. v. Rice, 358 Ark. 1, 9, 186 S.W.3d 705, 710 (2004) (internal citations

omitted).

       The overarching question relating to the entire class is whether Robinson chronically

understaffed its facility in violation of the residents’ statutory and contractual rights. Here, the

majority mistakenly delves into the merits of the underlying claims in the class-action case by

certifying the class on all claims except negligence. This court has stated that a circuit court

may not consider “whether the plaintiffs will ultimately prevail, or even whether they have

a cause of action,” because “the propriety of a class action is ‘basically a procedural question.’”

Fraley v. Williams Ford Tractor & Equip. Co., 339 Ark. 322, 335, 5 S.W.3d 423, 431 (1999)

(quoting Farm Bureau Mut. Ins. Co. v. Farm Bureau Policy Holders & Members, 323 Ark. 706,

709, 918 S.W.2d 129, 130 (1996)). Thus, any underlying claims, such as negligence, are for

the jury to decide at trial. Accordingly, I would hold that the circuit court properly granted

Phillips’s motion for class certification and would affirm.

       GOODSON and WYNNE, JJ., join this opinion.

       JOSEPHINE LINKER HART, Justice, concurring in part and dissenting in part.

       I agree with the majority’s holding that the negligence claim in this case is not

amenable to class certification and should be decertified. I respectfully dissent, however, from

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the majority’s conclusion that the circuit court properly certified as a class action appellees’

claims that were based on contract, unjust enrichment, and the Arkansas Deceptive Trade

Practices Act.

       In GGNSC Arkadelphia, LLC v. Lamb, 2015 Ark. 253, 465 S.W.3d 826, this court

emphasized that the common factual and legal issues predominated over the individual issues

because all residents relied on a standard admission agreement and statutory law to assert

chronic understaffing. In Lamb, chronic understaffing was shown through an objective

examination of the mandatory written reports of all shifts that failed to meet minimum staffing

requirements. Ark. Code Ann. § 20-10-1407 (Repl. 2014). Thus, understaffing could be

determined on a classwide basis.

       Here, however, the majority goes a step further. There is no suggestion of chronic

understaffing in violation of the statutory staffing-to-resident ratios provided in Ark. Code

Ann. § 20-10-1403. Rather, appellees are relying on the general language that “the staffing

standard required by this subchapter shall be the minimum number of direct-care staff

required by nursing facilities and shall be adjusted upward to meet the care needs of residents.”

Ark. Code Ann. § 20-10-1402(b)(1). Unlike a determination of staffing that is based on

specific ratios, this staffing standard is subjective and leaves the court without an objective

standard to ascertain, on a classwide basis, whether Robinson was understaffed. A

determination of the care needs of the residents and whether any upward adjustment was

required would require a highly individualized inquiry as to each resident because each

resident clearly had different care needs.


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       Because the court must consider each class member’s care needs, there is no one set

of operative facts to establish appellants’ liability to any given class member. Rather, the issue

of understaffing and whether each class member’s care needs were met is sufficiently

individualized and fails to satisfy the commonality and predominance requirements. Thus,

even though appellees allege understaffing, this case is not similar to Lamb, and it was

inappropriate for the circuit court to certify the case as a class action.

       WOMACK, J., joins.

       Hardin, Jesson & Terry, PLC, by: Kirkman T. Dougherty, Jeffrey W. Hatfield, Stephanie

       I. Randall, and Kynda Almefty, for appellants.

       Campbell Law Firm, P.A., by: H. Gregory Campbell; and Reddick Moss, PLLC, by:

Brian D. Reddick, for appellee.




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