ROBERT L. BROWN, Justice.
This is an interlocutory appeal from the circuit judge's order granting class certification for one subclass (Subclass A) and denying class certification for another subclass (Subclass C). Appellants have appealed the order relating to Subclass A, and appellees have cross-appealed the order concerning Subclass C. Some of the cross-appellees have also moved to dismiss the cross-appeal. We affirm the order of the circuit judge and deny the motions to dismiss.
The plaintiffs in this matter are former residents of the Springdale Ridge Apartments ("Springdale Ridge") in Springdale. They filed a complaint against various defendants regarding the alleged presence of dangerous levels of carbon monoxide in the apartment units and subsequently amended that complaint three times. The plaintiffs and putative class representatives (appellees and cross-appellants), as set forth in the Fourth Amended Complaint, are:
According to the Fourth Amended Complaint, in April 2001, tenants began to move into the newly constructed Springdale Ridge Apartments under lease agreements entered into with Simpson. The facility was not completed until 2003. Springdale Ridge includes multiple buildings and has 192 separate units. The complaint alleges that the design for the HVAC and hot-water systems was flawed when the building was constructed, which resulted in dangerous levels of carbon monoxide in the individual apartment units. The complaint further alleges that many residents, including some of the class representatives, were alerted by in-home detectors to high levels of carbon monoxide in their units. These residents allegedly told management, AWG, the Springdale Fire Department, and others about the carbon-monoxide readings.
During 2002, according to the complaint, AWG tested some of these individual units upon notification and discovered varying levels of carbon monoxide. Some levels were elevated, and others were not. After testing, AWG either shut off the gas or returned service. On January 24, 2004, after reports to the Springdale Fire Department of elevated carbon monoxide levels, AWG inspected apartment units and reported problems with the "make-up air supply." AWG, however, reactivated natural-gas service to Springdale Ridge.
On August 8, 2004, Melanie Cash reported that her carbon-monoxide alarm had
On August 10, 2004, Michael Cline called the Springdale Police Department to respond to his carbon-monoxide-detector alarm. The police responders did some initial testing, which resulted in a decision by the police department, AWG, and Springdale Ridge management to conduct more extensive testing. The subsequent tests revealed that there were high levels of carbon monoxide in most of the units examined.
On August 14, 2004, AWG reconnected gas to the Springdale Ridge facilities, but the HVAC units remained disconnected until December 12, 2004, while repairs were being made. Some residents apparently moved out of their apartments during the four months in which the HVAC units were inoperative, and others remained. Springdale Ridge took various steps to mitigate the inconvenience to the residents, which included providing meals while the gas was disconnected, working with a local church to provide showers and transportation, providing washers and dryers, and paying for hotel rooms. Springdale Ridge also did not charge any rent during the week that the gas was turned off.
The procedural history of this case is lengthy and complex. The named plaintiffs/appellees, representing a putative class, originally filed a class action against various defendants on September 2, 2004, alleging various causes of action. Many of the defendants filed cross-claims against each other, and the plaintiffs/appellees filed multiple amended complaints and motions for class certification. On June 30, 2006, the plaintiffs/appellees filed a Fourth Amended Complaint and Second Amended Motion for Class Certification, which are the pleadings that give rise to the instant appeal. In that complaint, Subclass A plaintiffs/appellees brought claims for breach of contract and fraud against Simpson, and Subclass C plaintiffs/appellees brought various tort claims against Simpson and the remaining defendants/ cross-appellees.
The circuit judge held a four-day certification hearing. On June 13, 2007, she issued Findings of Fact and Conclusions of Law, as required by Arkansas Rule of Civil Procedure 23. Some of the defendants filed a motion for reconsideration or, in the alternative, for additional findings of fact and conclusions of law. The circuit judge scheduled another hearing, and on September 5, 2007, she entered an order amending her findings of fact and conclusions of law and a class certification order, conditionally certifying Subclass A and denying certification for Subclass C.
In order to certify a class, the trial judge must find that the plaintiff has met the requirements of Arkansas Rule of Civil Procedure 23, which states:
Thus, in applying Rule 23, this court has held that the following six factors must be met for a class to be certified: (1) numerosity; (2) commonality; (3) predominance; (4) typicality; (5) superiority; and (6) adequacy. BPS, Inc. v. Richardson, 341 Ark. 834, 841, 20 S.W.3d 403, 406 (2000). In the instant appeal, the appellants do not appeal the circuit judge's findings on numerosity or adequacy with respect to either subclass.
In reviewing a trial court's decision to grant or deny class certification, this court gives trial courts broad discretion and will reverse only when the appellant can demonstrate an abuse of discretion. Id. at 840, 20 S.W.3d at 405. When reviewing a circuit judge's class-certification order, this court reviews the evidence contained in the record to determine whether it supports the circuit judge's decision. See, e.g., FirstPlus Home Loan Owner 1997-1 v. Bryant, 372 Ark. 466, 470-71, 277 S.W.3d 576, 580 (2008) (citing
To certify a class, the circuit judge must determine that "there are questions of law or fact common to the class." Ark. R. Civ. P. 23(a)(2) (2009). This court has held that the commonality requirement is always case specific and that
Union Pac. R.R. v. Vickers, 2009 Ark. 259, 308 S.W.3d 573, 578 (quoting Herbert B. Newberg, Newberg on Class Actions § 3.10 (3d ed.1993)). Furthermore, the circuit judge "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, establishes a common question relating to the entire class." Id., 308 S.W.3d. at 579 (quoting Williamson v. Sanofi Winthrop Pharms., Inc., 347 Ark. 89, 96-97, 60 S.W.3d 428, 432-33 (2001)).
For its first point on appeal, Simpson claims that the circuit judge abused her discretion in finding that the commonality requirement was satisfied as to Subclass A. We turn then to the circuit judge's specific finding on this point:
The circuit judge concluded in paragraph 7 of her order: "[T]he commonality requirement has been satisfied with regard to Subclass A. The issue of evacuation of the buildings on August 10, 2004, is common to all members of Subclass A with respect to their claims for breach of contract and fraud."
Simpson alleges error in two ways on this point. First, it argues that each claim brought by Subclass A—breach of contract, failure of consideration, and fraud— would require the plaintiffs/appellees to "initially prove as a predicate that each apartment contained high concentrations of carbon monoxide." It is Simpson's assertion that this would require individual proof because it is not clear in the record that each apartment unit had elevated levels of carbon monoxide. Second, Simpson urges that the judge's finding that "the issue of evacuation of the buildings on August 10, 2004, is common to all members of Subclass A" is patently wrong because some of the putative class members did not reside at Springdale Ridge on August 10, 2004. We disagree with Simpson on both points.
The plaintiffs/appellees' complaint states that each apartment at Springdale Ridge included a defectively designed mechanical closet, which housed the hot-water heater and HVAC unit. The complaint further asserts that Simpson breached the lease agreements by failing to provide apartments free from carbon monoxide and by failing to notify the putative class members when they knew or should have known that there were elevated levels of the dangerous gas in the apartments. The plaintiffs/appellees' fraud claim rests on the same allegation that Simpson knew or should have known of the defective HVAC units and the carbon-monoxide levels but continued to lease apartments to the putative class members without disclosing the defect.
The putative class has clearly claimed that Simpson's actions in installing defective HVAC units, failing to repair the defects, and failing to notify prospective and current residents of the problem gave rise to their cause of action for breach of contract, failure of consideration, and fraud. The circuit judge then found that "[e]ach member of the class alleges his/ her personal, wrongful exposure to carbon monoxide was a result of a faulty design of the mechanical closet where the heating ventilation and air conditioning unit (HVAC) for each apartment was located." The circuit judge's decision that there was commonality in the claims raised was not an abuse of discretion.
In addition to arguing that the record does not support a finding of commonality, Simpson contends that the circuit judge's finding that "the issue of evacuation of the buildings on August 10, 2004 is common to all members of Subclass A with respect to their claims for breach of contract and fraud" was factually erroneous and "inconsequential and irrelevant to the claims as alleged." Again, we disagree.
The judge's finding—"the issue of evacuation of the buildings on August 10, 2004, is common to all members of Subclass A"—can be harmonized with the circuit judge's specific findings in her order as set forth in this opinion. The allegedly faulty design and construction of the mechanical closets for each apartment, beginning in
Simpson also argues that the circuit judge abused her discretion in finding that the typicality requirement was met with respect to Subclass A. This court has long held that the typicality requirement is satisfied if the representative's claim arises from the same common wrong alleged against the members of the class. See, e.g., FirstPlus, 372 Ark. at 476, 277 S.W.3d at 584. We have often quoted with approval the following language from Newberg's Treatise on Class Actions:
Id. (quoting 1 Herbert B. Newberg, Newberg on Class Actions § 3.13, at 166-67 (2d ed.1985)) (emphasis in FirstPlus). In determining whether the typicality requirement is met, this court focuses on the defendant's conduct and not on the injuries or damages suffered by the plaintiffs. Id. (citing Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997)).
The circuit judge made the following findings with respect to typicality:
The circuit judge relied on testimony of the putative class representatives that their claims were typical of the class and found that to be the case, as already stated. This finding supports her conclusion that the typicality requirement has been satisfied with regard to Subclass A. See FirstPlus, 372 Ark. at 476, 277 S.W.3d at 584 (quoting 1 Herbert B. Newberg, Newberg on Class Actions § 3.13, at 166-67 (2d ed.1985)). Moreover, we reject again the argument that the circuit judge tied her finding of common liability and typicality solely to a mass "evacuation" of all residents on August 10, 2004, for the reasons already stated in this opinion. We affirm on this point.
Rule 23(b) provides that common questions of law and fact must predominate over any questions affecting only individual members. See, e.g., Johnson's Sales Co. v. Harris, 370 Ark. 387, 392, 260 S.W.3d 273, 277 (2007). We have already established that a common wrong has been alleged against the defendants. The predominance requirement, however, is more stringent than commonality. See Vickers, 2009 Ark. 259, 308 S.W.3d at 578 (citing BPS, Inc. v. Richardson, 341 Ark. 834, 20 S.W.3d 403 (2000)).
In Vickers, this court recently summarized the standard for testing predominance:
Id. (internal citations omitted).
This court has further said that 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. See, e.g., Farmers Ins. Co. v. Snowden, 366 Ark. 138, 148, 233 S.W.3d 664, 670 (2006). 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.
The circuit judge reiterated many of her commonality findings in her analysis of predominance for Subclass A. She then concluded that "the predominance requirement has been satisfied with regard to Subclass A. The issue of breach of contract is common to all of Subclass A and predominates over any individual claims of the class members."
Simpson next cites this court to various federal court cases for the proposition that common issues cannot predominate over individual issues where "no single proximate cause applies equally to each class member" and where "affirmative defenses depend on facts peculiar to each plaintiffs case." See, e.g., Georgine v. Amchem Prods., Inc., 83 F.3d 610, 627 (3d Cir.1996), aff'd, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Simpson, citing Amerinet v. Xerox Corp., 972 F.2d 1483, 1494, (8th Cir.1992), further asserts that "where the individualized issues determine whether a class member is entitled to any compensation at all, certification is not appropriate." This federal authority, however, is not controlling on this court. Moreover, the federal courts apply a rigorous-analysis test for class actions, which this court has consistently rejected. See, e.g., Teris, LLC v. Chandler, 375 Ark. 70, 83, 289 S.W.3d 63, 73 (2008).
Our case law has held that "the mere fact that individual issues and defenses may be raised by the defendant regarding the recovery of individual class members cannot defeat class certification where there are common questions concerning the defendant's alleged wrongdoing that must be resolved for all class members." See, e.g., Gen. Motors Corp. v. Bryant, 374 Ark. 38, 49, 285 S.W.3d 634, 643 (2008) (citing FirstPlus, 372 Ark. 466, 277 S.W.3d 576) (emphasis added).
In General Motors Corp. v. Bryant, the class representative brought suit against GMC on behalf of a nationwide class, alleging that approximately four million pickup trucks and sport-utility vehicles were sold with defectively designed parking brakes. Bryant further alleged that GMC discovered the defect but failed to disclose it for over two years in order to avoid paying warranty claims. After the circuit court granted class certification, GMC appealed to this court, arguing, among other things, that individual fact issues precluded a finding that common issues of law and fact predominated. GMC specifically argued that whether the class members' brakes were actually defective was an individual issue that prevented predominance over any common questions. GMC also contended that it may be entitled to various defenses against individual class members. Simpson makes similar arguments in the instant appeal.
This court affirmed the circuit judge and held that "the common issue that predominates here over any other potential issue is whether the parking-brake system installed in the class members' vehicles was defective and whether General Motors attempted to conceal any alleged defect." Id. at 49, 285 S.W.3d at 642. The court noted that challenges based on statutes of limitation, fraudulent concealment, releases,
In the case at hand, as in Bryant, the individual issues raised by Simpson will go to the right of any individual class member to recover, but the common questions of whether the installed HVAC units were defective and whether Simpson knew of and should have disclosed the defect pertain to the whole class and can be decided before reaching any individual issues. Those issues clearly predominate, and the circuit judge did not abuse her discretion in finding that predominance was satisfied.
Simpson next contends that the circuit judge abused her discretion in finding that a class action was superior to any other method for adjudicating the claims of Subclass A because it is unfair to the defendants. Simpson specifically asserts that "[t]he class representatives should not be permitted to put on generalized proof and then ask the court to assume or blindly conclude that all other claims are similar." Simpson also maintains that if the case proceeds as a class action, it will be "deprived of the opportunity to raise the individualized defenses that exist with respect to each class member and/or the right to receive a verdict on the individualized facts of each class member's claims."
This court has repeatedly 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. See, e.g., Bryant, 374 Ark. at 50, 285 S.W.3d at 643. When determining whether a class action is the superior method of adjudication, it may be necessary for the circuit judge to evaluate the manageability of the class. Id. The avoidance of multiple suits lies at the heart of any class-action decision. Id. Furthermore, where a cohesive and manageable class exists, we have often held that "real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for a trial on individual issues, if necessary." Snowden, 366 Ark. at 150, 233 S.W.3d at 672. As a final point, we have said that this is especially so
Id. at 151, 233 S.W.3d at 672 (quoting Ark. Blue Cross & Blue Shield v. Hicks, 349 Ark. 269, 289, 78 S.W.3d 58, 70 (2002)) (emphasis in Snowden).
In this case, the circuit judge found as follows:
Simpson argues that failure of consideration is not a viable class claim because each class member will be required to show that there was a complete failure of consideration in order to recover total restitution of the rent paid. The plaintiffs/appellees rightly note that this argument prematurely asks this court to delve into the merits of the underlying claims, which this court has repeatedly refused to do. See, e.g., Vickers, 2009 Ark. 259, 308 S.W.3d at 579 (totally immaterial whether the petition will succeed on the merits or even if it states a cause of action).
Simpson next claims that the circuit judge abused her discretion in failing to address the effect of the Arkansas Tort Reform Act because it went into effect on March 25, 2003, which was during the alleged class period. Thus, Simpson contends that the fact that the act will apply to some class members and not to others defeats certification.
This argument must fail, as Simpson has failed to cite this court to where it made this specific argument to the circuit judge. Simpson, instead, directs this court to a hearing before the circuit judge during which the parties presented arguments about the Arkansas Tort Reform Act. That hearing, however, centered on the plaintiffs/appellees' motion to have the act declared unconstitutional and not on whether the fact that it was enacted during the class period defeats any of the Rule 23 requirements. Furthermore, Simpson failed to obtain a final ruling from the circuit judge on this issue. It is well settled that this court will not address an argument on appeal if it has not been argued before the circuit judge or if a party fails to obtain a ruling from that judge. See, e.g., Johnson v. Cincinnati Ins. Co., 375 Ark. 164, 289 S.W.3d 407 (2008).
Simpson further maintains that the circuit judge abused her discretion because she treated this toxic-tort case as a mass-accident case. Again, Simpson is in error. The critical issue in our review is whether the circuit judge abused her discretion in finding that the requirements of Rule 23 were met in this particular case and not whether the case was wrongly categorized. This case, moreover, is distinguishable from the toxic-tort cases cited by Simpson.
Simpson cites this court first to our opinion in Baker v. Wyeth-Ayerst Laboratories Division, a case in which this court affirmed the circuit court's denial of a motion to certify a class action. 338 Ark. 242, 992 S.W.2d 797 (1999). The plaintiffs in Baker sued multiple defendants for injuries allegedly sustained as a result of taking various diet drugs. The plaintiffs brought suit for negligence, products liability, failure to warn, and breach of express
Simpson cites, in addition, Arthur v. Zearley for the proposition that toxic-tort cases, as opposed to mass-accident cases, are not well suited to class treatment. 320 Ark. 273, 895 S.W.2d 928 (1995). In Arthur, plaintiffs sought to certify a class action against various defendants for multiple tort claims, which centered on the allegedly improper surgical implantation of a product known as "Orthoblock" into the plaintiffs' spines. The circuit court certified the class, and this court reversed. We held that the issue of informed consent with respect to class members was foundational and could not be tried on a class basis. Id. at 283, 895 S.W.2d at 933. We further held that each plaintiff's unique medical history and condition, diagnosis, and treatment plan were individualized questions that predominated over common questions of liability. Id. at 286, 895 S.W.2d at 935.
In the instant case, if the HVAC units and the storage closets where they were housed were defectively designed and constructed, and Simpson knew or should have known of the defect and failed to advise tenants, Simpson may be found liable. That is the same fundamental, overarching issue of liability common to all putative class members. The other individualized issues go to damages, which can be determined in a bifurcated proceeding. That is a categorically different situation from the two medical cases relied on by the defendants.
Simpson contends that the circuit judge abused her discretion in certifying Subclass A for all purposes instead of certifying only on the question of liability. Simpson, however, cites no authority for this argument. This court has long held that it will not address arguments if they are insufficiently developed and lack citation to authority. See, e.g., Gatzke v. Weiss, 375 Ark. 207, 215, 289 S.W.3d 455, 461 (2008). Second, Simpson does not direct this court to any place in the record where it made this argument below. As already noted, this court will not address an argument made for the first time on appeal. See Johnson, 375 Ark. 164, 289 S.W.3d 407. This argument is not preserved for our review.
Simpson urges that the circuit judge abused her discretion in defining the class period. The argument, however, was not raised by Simpson in its original brief before this court. Rather, it was raised for the first time in its reply brief. Therefore, the issue is not properly before this court, and it will not be addressed. See, e.g., Coleman v. Regions Bank, 364 Ark. 59, 64, 216 S.W.3d 569, 573 (2005).
Each of the cross-appellees, other than Simpson, has filed or joined a motion to dismiss the cross-appeal:
The movants ask this court to dismiss the cross-appeal because it should have been filed as a direct appeal rather than as a cross-appeal and, therefore, was untimely according to our rules of appellate procedure. Arkansas Rule of Appellate Procedure-Civil 4(a) requires a notice of appeal to be filed within thirty days of entry of the judgment, decree, or order. The rule also states that a cross-appeal must be filed within ten days of receipt of the notice of appeal. Ark. R.App. P.-Civ. 4(a) (2009). The circuit judge entered an order granting certification to Subclass A (to which the Simpson appellants were the only defendants) and denying certification to Subclass C (to which Simpson and the movants were defendants) on September 5, 2007. Simpson filed a notice of appeal on October 3, 2007, and the plaintiffs/appellees filed a notice of cross-appeal on October 12, 2007. If the plaintiffs/appellees/cross-appellants' challenge to the circuit judge's refusal to certify Subclass C was a proper cross-appeal, it was timely under Rule 4(a). However, if it should have been filed as a direct appeal, the notice of appeal was untimely.
The movants rely on Johnson v. Carpenter for the proposition that where the matter sought to be appealed is separate from that which has been appealed in a timely manner, it should be the subject of an original appeal, and it may not be made timely by its denomination as a cross-appeal. 290 Ark. 255, 260, 718 S.W.2d 434, 437 (1986). The movants contend that the class members, their claims, their theories of recovery, and the defendants involved in Subclass C are all separate and distinct from those involved in Subclass A. The plaintiffs respond that each putative-class claim arises from the same underlying facts.
This case is distinguishable from Johnson because in that case two cases were filed (one in probate court and another in circuit court) against different defendants and were consolidated into one case before the circuit court. While one order disposed of both cases, this court held that a cross-appeal was inappropriate because they were completely separate cases in different jurisdictions. In the instant case, the plaintiffs/appellees/cross-appellants filed one complaint in one jurisdiction in which they alleged, albeit by way of two subclasses, various theories of recovery against multiple defendants. We conclude that this is a critical distinguishing factor from the Johnson case. The motions to dismiss are denied.
The circuit judge found, based on the same findings and conclusions discussed earlier with respect to Subclass A, that all of the Rule 23(a) requirements were satisfied for Subclass C.
With respect to Subclass C, the circuit judge made similar findings regarding predominance that were made for Subclass A. She specifically found that the apartments were red-tagged, the gas was disconnected from August 10 to August 14, air conditioning and heating units were disabled until December 12, and the apartments were constructed from the same basic building plans. The judge added these findings with respect to exposure:
The judge also found that "[t]he tort of outrage is intensely individualized and is not easily determined by a class action suit. While it is possible to bring outrage as a class action, the court finds that in this case, with this many defendants, the elements of outrage are highly individual and predominate over any common claim of Subclass C." With respect to the other tort claims, the judge held that "[t]he common issues to Subclass C such as whether there was exposure do not predominate over the issues of proximate cause, comparative fault, notice, maintenance, and damages of individual class members."
The cross-appellants urge that the circuit judge erred in finding that the predominance
For their contention that the predominance analysis has changed, the cross-appellants rely on the following language in Johnson's Sales: "If a case involves preliminary, common issues of liability and wrongdoing that affect all class members, the predominance requirement is satisfied even if the circuit court must subsequently determine individual damages issues in bifurcated proceedings." 370 Ark. 387, 392, 260 S.W.3d 273, 277. They further cite another case for the well-settled proposition that the initial analysis is whether there is a common preliminary issue with the potential to wipe out the possibility of a claim for every class member. See Snowden, 366 Ark. 138, 233 S.W.3d 664. This language, say the cross-appellants, taken together, means that when a circuit court determines that there are common issues of liability affecting all class members, the predominance requirement is automatically satisfied. We disagree.
We initially observe that the cross-appellants' interpretation of the Johnson's Sales opinion is wrong. This court did not change the standard for determining predominance in Johnson's Sales and certainly did not hold that where the judge finds common questions of liability, which apply to all class members, predominance is automatically satisfied. In point of fact, the paragraph in Johnson's Sales, which includes the language relied on by the cross-appellants, reads in its entirety as follows:
370 Ark. at 392, 260 S.W.3d at 277 (internal citations omitted) (emphasis added).
Hence, it is clear that this court has not changed its predominance requirements and that the standard is the same as that cited by the circuit judge. To repeat, the circuit judge must first decide that there are issues of liability common to the class and then determine whether those common issues predominate over individual questions. In the instant case, the circuit judge specifically found that individual issues predominated over any common questions of liability for Subclass C. The Johnson's Sales case is in agreement with this finding.
Further, as the cross-appellees rightly note, proximate cause cannot be decided at a subsequent proceeding after "liability" has been determined for all Subclass C members because causation is a foundational element for determining liability in negligence claims. See, e.g., Jones v. McGraw, 374 Ark. 483, 486, 288 S.W.3d 623, 625-26 (2008) (the circuit judge erred in permitting the defendant to introduce proximate-cause evidence at a hearing on damages because proximate causation is an element of liability for medical malpractice, not an element of damages); Collier v. Citizens Coach Co., 231 Ark. 489, 330 S.W.2d 74 (1959) (negligence must proximately cause a given result in order to justify a finding of negligence); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 41 (5th ed. 1984) ("An essential element of the plaintiff's cause of action for negligence, or for that matter for any other tort, is that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered. This connection usually is dealt with by the courts in terms of what is called `proximate cause,' or `legal cause.'").
The critical distinction between Subclass A and Subclass C is that proximate causation is a foundational element of the torts of strict liability, negligence, wrongful death, and outrage. Therefore, the plaintiffs cannot establish the defendants' liability without addressing the individualized issues of proximate causation, which involve the extent of exposure to carbon monoxide and how that exposure caused damage to the putative-class members. In Subclass A, the issues of Simpson's liability for breach of contract due to defectively designed apartment units and for fraudulent concealment in not revealing the defect to renters can be resolved at a preliminary stage. Furthermore, the damages prayed for by putative-class members were for the rental payments that had been made. Thus, the Subclass A claims do not involve the individual variances associated with personal exposure to carbon monoxide, including class members' lifestyles and medical histories, and the resulting injuries to putative-class members caused by the alleged negligence of the defendants/appellants/cross-appellees. In this respect, the Subclass C claims are more akin to those made in Baker, where we affirmed the denial of class certification. We affirm on this point.
The circuit judge's order found
The cross-appellants maintain that the circuit judge erred because she erroneously found that proximate cause and degree of exposure would be involved in the class action. As already discussed, this argument must fail because, in the context of the tort claims brought by Subclass C, proximate cause and damages are foundational elements in determining liability. The cross-appellants also urge that the circuit judge erred in finding that there are superior alternative methods to class certification because the alternatives do not require a showing of predominance. Cross-appellants, in connection with this argument, maintain that the circuit judge erred in finding that a decision on liability, apart from causation and damages, is not a predominating issue. However, this court has already concluded that the circuit judge did not abuse her discretion in concluding that individual issues do predominate in the claims of Subclass C.
This court defers to the circuit judge with respect to a decision of whether a class action is the superior method for resolving multiple claims because the judge must take into consideration, among other things, whether she believes she can effectively manage the class. See Bryant, 374 Ark. at 50, 285 S.W.3d at 643. Here, the judge held that certifying Subclass C would result in unmanageable litigation. We find no abuse of discretion on this point, and we affirm.
Affirmed on direct appeal and cross-appeal; motions to dismiss cross-appeal denied.
