Robinson Nursing & Rehab. Ctr., LLC v. Phillips

• Decision Date: 04 May 2017
• Docket Number: No. CV–16–584,CV–16–584
• Citation: 519 S.W.3d 291
• Parties: 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, Appellants v. 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
• Court: Arkansas Supreme Court

519 S.W.3d 291

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, Appellants

v.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

No. CV–16–584

Supreme Court of Arkansas.

Opinion Delivered May 4, 2017

Hardin, Jesson & Terry, PLC, by: Kirkman T. Dougherty, Fort Smith, Jeffrey W. Hatfield, Stephanie I. Randall, Fort Smith and Kynda Almefty, Little Rock, for appellants.

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

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 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. 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 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.

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:

(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...