Valley v. National Zinc Processors, Inc., 05-268.

• Court: Arkansas Supreme Court
• Writing for the Court: Tom Glaze
• Citation: Valley v. National Zinc Processors, Inc., 217 S.W.3d 832, 364 Ark. 184 (Ark. 2005)
• Decision Date: 17 November 2005
• Docket Number: No. 05-268.,05-268.
• Parties: Katrina VALLEY Individually and as Parent and Next Friend of Christian Anderson, Keishon Anderson, Kyrin Anderson and Justin Anderson; and Meranda F. Fonzye Valley, Individually and as Parent and Next Friend of Brittany L. Valley, Kimberla A. Valley and Omarrian R. Wilson, Appellants, v. NATIONAL ZINC PROCESSORS, INC.; Stoller Enterprises, Inc.; Global Materials Services, LLC; Nationwide Express, Inc.; Rickey Snowden; Harold Smith; and John Doe 3, Appellees.

217 S.W.3d 832

Katrina VALLEY Individually and as Parent and Next Friend of Christian Anderson, Keishon Anderson, Kyrin Anderson and Justin Anderson; and Meranda F. Fonzye Valley, Individually and as Parent and Next Friend of Brittany L. Valley, Kimberla A. Valley and Omarrian R. Wilson, Appellants, v. NATIONAL ZINC PROCESSORS, INC.; Stoller Enterprises, Inc.; Global Materials Services, LLC; Nationwide Express, Inc.; Rickey Snowden; Harold Smith; and John Doe 3, Appellees.

No. 05-268.

Supreme Court of Arkansas.

November 17, 2005.

Don R. Etherly and J.F. Valley, P.A., by: J.F. Valley, Helena, for appellants.

Rieves, Rubens & Mayton, by: Elton A. Rieves IV, West Memphis, for appellee National Zinc Processors, Inc.

Raff & Galloway, by: Ray Galloway, Helena, and Preston & Cowan, L.L.P., by: Michele Quattlebaum, Houston, TX, for appellee Stoller Enterprises, Inc.

Huckabay, Munson, Rowlett & Moore, P.A., by: Bruce Munson, Little Rock, for appellees Nationwide Express, Inc.

Murray Law Firm, by: Todd Murray, West Helena, and Henderson, Dantone, PA, by: Frank J. Dantone, Jr., Greenville, MS, for appellees Global Materials Services, LLC, Rickey Snowden, and Harold Smith.

TOM GLAZE, Justice.

Appellants Katrina Valley and Meranda Valley appeal a ruling of the Phillips County Circuit Court denying their motion for class certification. The facts giving rise to this case involve a fire that began around 6:30 in the morning on November 3, 2000, at the Global Materials chemical warehouse in Helena. At approximately 12:30 that afternoon, a truck carrying a load of zinc oxide to the terminal also caught on fire and exploded. In response, Chief Reginald Wilson of the Helena Fire Department ordered an evacuation that covered a 1.5 mile radius from the chemical plant, which included most of Helena and the Isle of Capri Casino in Mississippi.

In August of 2001, a class-action lawsuit was filed in the name of Katrina Valley, individually and as parent and next friend of her children, Christian Anderson, Keishon Anderson, Kyrin Anderson, and Justin Anderson; and Meranda Fonzye Valley, individually and as parent and next friend of Brittany L. Valley, Kimberla A. Valley, and Omarrian Wilson.¹ The complaint alleged that the plaintiffs brought the suit on behalf of themselves and all other persons similarly situated, with the potential class described as "all persons who resided or were present in the residential areas of Helena, Arkansas, [who] were evacuated on or about November 3, 2000, as a result of acts of the defendants. It is believed that the class consists of approximately 6000 persons." The named defendants were National Zinc Processors, Inc.; Stoller Enterprises, Inc.; Global Material Services, LLC; Nationwide Express, Inc." and John Does 1, 2, and 3.²

The plaintiffs filed a motion for certification as a class action on January 30, 2003. The trial court held a hearing on the motion on February 23, 2004, to consider the issue of certification. After that hearing, the trial court issued a letter opinion on May 10, 2004, in which the court initially agreed that class certification was appropriate. However, the letter opinion made no mention of the requirements of Ark. R. Civ. P. 23(b), nor did it address the various defenses raised or specifically define the class. On May 18, 2004, National Zinc Processors filed a motion requesting findings of fact and conclusions of law. Defendants Stoller Enterprises filed a similar motion on May 24, 2004.

After a second hearing on August 14, 2004, the trial court entered an order on November 18, 2004, setting out its findings of fact and conclusions of law, and denying the plaintiffs' motion for class certification. The plaintiffs filed a timely notice of appeal on December 17, 2004, and now raise two arguments for reversal: 1) the trial court did not have jurisdiction to enter its order denying class certification; and 2) the court erred in denying the motion to certify the class.

In her first argument on appeal, plaintiff, and now appellant, Katrina Valley, claims that the trial court erroneously treated the defendants'/appellees' motions for findings of fact and conclusions of law as motions for reconsideration, and that the court lost jurisdiction to reconsider its May 11, 2004 decision, when more than thirty days elapsed after the defendants filed their motions. Valley relies on Rules 52, 58, and 59 of the Arkansas Rules of Civil Procedure, arguing that the court's November 18, 2004, order was not consistent with its "letter order" of May 10, 2004, nor did the court's ruling come within thirty days of the defendants' motions, as required by Rule 59.

Rule 59 has no application in this instance. That rule permits a party to move for a new trial on various grounds within ten days of the entry of a judgment. Ark. R. Civ. P. 59(b) (2005). Here, no trial has been had and no judgment has been entered in the case; rather, the only order entered has been the trial court's order denying the plaintiffs' motion for class certification, which was entered on November 18, 2004.

In addition, Valley ignores the plain language of Ark. R. Civ. P. 23(b), which provides in relevant part as follows:

As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this section may be conditional and it may be altered or amended before the decision on the merits.

(Emphasis added.) See also Lenders Title Company v. Chandler, 353 Ark. 339, 107 S.W.3d 157 (2003) (under Rule 23(b), a class-certification order is not a final order); Fraley v. Williams Ford Tractor & Equip. Co., 339 Ark. 322, 5 S.W.3d 423 (1999) ("[a]lthough the court's initial decision under Rule 23(c)(1) that an action is maintainable on a class basis in fact may be the final resolution of the question, it is not irreversible and may be altered or amended at a later date").

On the issue of subsequent class determinations upon reconsideration, Professor Newberg's treatise on class actions offers the following:

Because class rulings may be altered or amended at any time before a decision on the merits, class rulings are often reconsidered, and subsequently affirmed, altered, modified, or withdrawn. Apart from instances where the initial ruling is affirmed, classes have been upheld on reconsideration after being denied originally, and have been denied on reconsideration after being upheld originally . . . . Such a reconsideration may be raised either by the plaintiff's or by the defendant's motion, or automatically by a schedule previously set by the court. Finally, a court may, on its own motion, reconsider its earlier ruling.

3 A. Conte and H. Newberg, Newberg on Class Actions § 7.47, 154-57 (4th ed.2002). In sum, we find no merit to Valley's contention that the trial court "lost jurisdiction" to reconsider its earlier decision regarding the certification of a class action.

We now turn to the merits of Valley's argument wherein she contends that the trial court erred in denying class certification. The certification of a lawsuit as a class action is governed by Ark. R. Civ. P. 23. The determination that the class-certification criteria have been satisfied is a matter within the broad discretion of the trial court, and this court will not reverse the trial court's decision absent an abuse of that discretion. Lenders Title Company v. Chandler, 358 Ark. 66, 186 S.W.3d 695 (2004); Arkansas Blue Cross & Blue Shield v. Hicks, 349 Ark. 269, 78 S.W.3d 58 (2002). In reviewing a classcertification order, this court focuses on the evidence in the record to determine whether it supports the trial court's conclusion regarding certification. USA Check Cashers of Little Rock, Inc. v. Island, 349 Ark. 71, 76 S.W.3d 243 (2002). However, the determination is purely a procedural question. BNL Equity Corp. v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000). This court will not delve into the merits of the underlying claims when deciding whether the Rule 23 requirements have been met. State Farm Fire & Casualty Co. v. Ledbetter, 355 Ark. 28, 129 S.W.3d 815 (2003).

Rule 23 provides in relevant part as follows:

(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 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.

In short, this court has held that, in order for a class-action suit to be certified the party seeking certification must establish each of the following six factors: (1) numerosity; (2) commonality; (3) predominance (4) typicality; (5) superiority; and (6) adequacy. BPS Inc. v. Richardson, 341 Ark. 834, 20 S.W.3d 403 (2000). When a party cannot demonstrate that he or she has satisfied all six factors, class certification is inappropriate. See Ferguson v. The Kroger Co., 343 Ark. 627, 37 S.W.3d 590 (2001) (where plaintiffs failed to satisfy the numerosity requirement, this court affirmed the trial court's denial of class certification without addressing the other five factors); Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997) (there must be evidence in the record to support a conclusion that all six elements of class certification have...