Cheqnet Systems, Inc. v. Montgomery, 95-779

• Decision Date: 18 December 1995
• Docket Number: No. 95-779,95-779
• Citation: 322 Ark. 742,911 S.W.2d 956
• Parties: CHEQNET SYSTEMS, INC., Appellant, v. Susan MONTGOMERY, Appellee.
• Court: Arkansas Supreme Court

Page 956

911 S.W.2d 956

322 Ark. 742

CHEQNET SYSTEMS, INC., Appellant, v. Susan MONTGOMERY, Appellee.

No. 95-779.

Supreme Court of Arkansas.

Dec. 18, 1995.

Junius Bracy Cross, Jr., Little Rock, for appellant.

Kelly Law Firm, Little Rock, for appellee.

DUDLEY, Justice.

This is an interlocutory appeal from the certification of a class. See Ark.R.App.P. 2(a)(9). We affirm the certification. The facts are that Susan Montgomery filed a class-action complaint in which she alleged that Cheqnet Systems, Inc., committed multiple violations of the Fair Debt Collection Practices Act. See 15 U.S.C. § 1692 (1994). Cheqnet filed a motion to dismiss in which it contended that Montgomery failed to meet the requirements for class certification pursuant to Ark.R.Civ.P. 23. Montgomery filed an amended class-action complaint, again alleging that Cheqnet committed multiple violations of the Fair Debt Collection Practices Act. Montgomery's allegation that is pertinent to this interlocutory appeal is that Cheqnet violated 15 U.S.C. §§ 1692e(2)(A) and 1692f(1) by collecting $10 more than it was entitled to collect under Arkansas law for returned checks. Section 4-60-103 (Repl.1991) of the Arkansas Code Annotated provides a maximum collection fee of $15.00 per returned check, and Montgomery's complaint alleges that Cheqnet collected or attempted to collect a fee of $25.00 on each returned check. In her amended complaint, Montgomery alleges that she represents the class of debtors who had been, continued to be, and would be adversely affected by the actions and omissions of Cheqnet. Cheqnet filed an answer to the amended complaint and objected to the motion to certify the class. Cheqnet contended that Montgomery did not pay the alleged overcharge for her returned check; therefore, her claim was not typical of the proposed class.

At the hearing on certification, Montgomery limited the class-certification request to the issue involving overcharge for returned checks as a violation of the federal Fair Debt Collection Practices Act. She called an assistant attorney general as her first witness. Cheqnet objected to testimony by the assistant attorney general on the ground that the attorney general's office had obtained Cheqnet's records through a civil investigation demand, and the attorney general is prohibited from publicly disclosing those records. See Ark.Code Ann. § 4-88-111 (Repl.1991). After an extended colloquy between counsel for both parties, the witness, and the trial judge, the court sustained Cheqnet's objection. This first colloquy covers five pages in the transcript. After the trial court's ruling, counsel, the witness, and the trial court again engaged in a lengthy colloquy, four pages of transcript this time, and the following exchange occurred:

THE WITNESS: Your Honor, as a result of those written complaints that were received, Ms. Mikeless issued a civil investigative demand, which is basically a pre-litigation discovery tool.

THE COURT: And found they were doing this across the board.

THE WITNESS: Yes, sir.

THE COURT: Okay. Sure.

THE WITNESS: And that there were roughly over 3,000--

THE COURT: Yeah, I knew--

THE WITNESS: --consumers that had been overcharged.

Counsel did not specifically object to the statement and did not move to strike it from the record.

Montgomery testified generally as to the underlying facts of the case, her involvement in the case, and her qualifications as class representative. Cheqnet called its general manager who testified that Cheqnet was in the process of repaying the individuals who had been overcharged. The witness testified that the repayment was pursuant to an agreement between Cheqnet, the Attorney General, and the State Board of Collections. During closing arguments, Cheqnet's attorney stated that appellant had already started to send notices and repay the individuals it had overcharged. The following then occurred:

THE COURT: You're talking between, say, thirty and $50,000.00.

MR. CROSS: Probably at a minimum.

THE COURT: Just roughly guessing, like I say, if there's three to 5,000 people and maybe more, you know, out there. I'm just concerned that your client has the resources to do that. I don't know that he does. He may. I don't know.

Well, in any event,--

At the close of the hearing the court took the matter under advisement.

On March 6, 1995, the trial court held another hearing and ruled that the class would be certified. A third hearing was held on April 4, 1995, to determine the particulars of the order certifying the class and to discuss notice provisions and discovery of potential class members. The trial court entered the order certifying the class on April 5, 1995. The order defined the class as "all of those persons from whom Cheqnet Systems, Inc., attempted to collect, or actually collected, a $25.00 service fee per returned check."

Cheqnet first argues that the trial court erred in allowing the assistant attorney general to testify to the number of people Cheqnet had overcharged since the information came to the attorney general's office as a result of a civil investigation demand. The argument contains a fallacious assumption because the trial court did not make a ruling when the evidence came in. The only ruling made by the trial court was to sustain Cheqnet's objection to the admission of documents taken in the attorney general's civil investigation. The testimony about the number of people involved came four transcript pages later, and it came in when the assistant attorney general volunteered the information without objection, and without a motion to strike. Rule 103 of the Arkansas Rules of Evidence provides that when evidence is admitted, as this evidence was, the record must reflect a "timely objection or motion to strike ... stating the specific ground of objection" or else any question about its admission is waived. Ark.R.Evid. 103(a)(1); Mills v. State, 321 Ark. 621, 906 S.W.2d 674 (1995). The evidence came in without objection and without a motion to strike. Thus, the trial court committed no error, and except in circumstances not material to this case, we do not reverse a trial court absent some error. Stevens v. State, 319 Ark. 640, 893 S.W.2d 773 (1995). In addition, Cheqnet's attorney admitted the same information to the trial court. A party cannot admit a fact to the trial court, and then on appeal contend that the case must be reversed because that fact was not proven. Vinson Elec. Supply, Inc. v. Poteete, 321 Ark. 516, 905 S.W.2d 831 (1995). Cheqnet next argues that the trial court erred in certifying the class in this action. This court reviews class certification under an abuse of discretion standard. Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995); see also Union Nat'l Bank v. Barnhart, 308 Ark. 190, 197, 823 S.W.2d 878, 881 (1992) (noting the "longstanding rule that the trial judge has broad discretion in matters of class certification").

Rule 23 of the Arkansas Rules of Civil Procedure provides:

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 will fairly and adequately protect the interests of the class.

Ark.R.Civ.P. 23(a). Rule 23 was amended to its present version by per curiam order in 1990. In re Changes to the Arkansas Rules of Civil Procedure, 304 Ark. 733 (1990). However, many of the principles found in cases prior to the amendment still apply. Union Nat'l Bank v. Barnhart, 308 Ark. 190, 197, 823 S.W.2d 878, 881 (1992).

The numerosity requirement is met. We have held that 184 class members were enough to satisfy the numerosity requirement. See Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991). In the present case, the proposed class possibly consists of 3,000 persons. While the exact number of the proposed class may not have been proved, "[t]he exact size of the proposed class and the identity of the class members need not be established for the court to certify a class, and the numerosity requirement may be supported by common sense." Brewer v. Friedman, 152 F.R.D. 142, 143 (N.D.Ill.1993).

Rule 23(a) requires common...