Ford Motor Credit Co. v. Nesheim
| Decision Date | 18 March 1985 |
| Docket Number | No. 85-34,85-34 |
| Citation | 285 Ark. 253,686 S.W.2d 777 |
| Parties | FORD MOTOR CREDIT COMPANY, Petitioner, v. Ross H. NESHEIM, et al., Respondent. |
| Court | Arkansas Supreme Court |
This motion to dismiss the appeal arises out of the same case as Ford Motor Credit Co. v. Rogers, 285 Ark. 64, 685 S.W.2d 145, decided February 25, 1985, where we denied a petition for a writ of prohibition. Contemporaneously with its petition for a writ of prohibition, Ford Motor Credit sought an appeal of the order of the trial court certifying the case as a class action under A.R.C.P. Rule 23. We denied prohibition because the court had jurisdiction to decide if the case ought to be maintained as a class action. The question presented in this appeal is whether the action certifying the case was correct. This motion raises the issue of whether the order is one that is final and, therefore, appealable. Ark.R.App.P. 2.
Ford Motor Credit concedes it has no right to appeal from the trial court's order of certification because the decision was not a final or appealable order as defined in Ark.R.App.P. 2 but asks us to change our rule. The respondents rely on that rule in seeking dismissal.
We have never had a case in which a party sought to appeal from an order certifying a class action. We have only had appeals from orders denying requests for certification. Clearly, such an order of denial is a final disposition of the case as to those who would be joined as class members and is appealable under Rule 2. Drew v. First Federal S & L Assn., 271 Ark. 667, 610 S.W.2d 876 (1981); Ross v. Ark. Communities, Inc., 258 Ark. 925, 529 S.W.2d 876 (1975).
We did not adopt the federal rule of civil procedure pertaining to class actions. See Fed.R.Civ.P. 23. However, we believe it would be best to allow appeals from such orders and our reasoning is the same given by the United States Court of Appeals for the Second Circuit in Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2nd Cir.1973):
An order sustaining a class action allegation involves issues 'fundamental to the further conduct of the case'; .... the order is also separable from the merits of the case; and irreparable harm to a defendant in terms of time and money spent in defending a huge class action when an appellate court many years later decides such an action does not conform to the requirements of Rule 23, is evident.
Therefore, we amend Ark.R.App.P. 2 to permit an appeal from an order certifying a case as a class action. Issued contemporaneously is a per curiam order to that effect.
Denied.
NEWBERN, J., not participating.
I cannot understand why the majority has, without notice to the bench and bar or opportunity for adequate consideration, suddenly decided to change horses in the middle of the stream. Ordinarily we do not change our rules in...
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Revised Rules of Appellate Procedure, Matter of
...appeal to the Supreme Court of an order certifying a case as a class action under Rule 23, Ark.R.Civ.P. See Ford Motor Credit Co. v. Nesheim, 285 Ark. 253, 686 S.W.2d 777 (1985). The Supreme Court has previously held that an order denying class certification is appealable under Rule 2. Drew......
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Martin v. Amana Refrigeration, Inc.
...at 905. Other jurisdictions have allowed appeals as a matter of right from the class certification ruling. Ford Motor Credit Co. v. Nesheim, 285 Ark. 253, 686 S.W.2d 777 (1985); Amato v. General Motors Corp., 67 Ohio St.2d 253, 423 N.E.2d 452 (1981); Mitchem v. Melton, 167 W.Va. 21, 277 S.E......
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Doe v. Union Pacific R. Co., 95-682
...appeal. We took this approach in the cases of Herron v. Jones, 276 Ark. 493, 637 S.W.2d 569 (1982) and Ford Motor Credit Co. v. Nesheim, 285 Ark. 253, 686 S.W.2d 777 (1985). In Herron, we declared that an order disqualifying counsel would be made appealable by amendment to Rule 2. In Neshei......
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Union Nat. Bank v. Barnhart, 90-291
...notice is not appealable and that the appellants have no standing to challenge notice. We explained in Ford Motor Credit Co. v. Nesheim, 285 Ark. 253, 254, 686 S.W.2d 777, 777 (1985) (reversed on other grounds) (citing Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2nd Cir.1973), that since ......