JENNIFER RIVERA-CEREN, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED v. PRESIDENTIAL LIMOUSINE AND AUTO SALES, INC. , 2021 Ark. 219 ( 2021 )

Cite as 2021 Ark. 219SUPREME COURT OF ARKANSAS
No. CV-21-279
Opinion Delivered: December 2, 2021
JENNIFER RIVERA-CEREN, ON
BEHALF OF HERSELF AND ALL
OTHERS SIMILARLY SITUATED APPEAL FROM THE GARLAND
APPELLANT COUNTY CIRCUIT COURT
[NO. 26CV-19-957]
V.
HONORABLE LYNN WILLIAMS,
PRESIDENTIAL LIMOUSINE AND JUDGE
AUTO SALES, INC.
APPELLEE
REVERSED AND REMANDED.
COURTNEY RAE HUDSON, Associate Justice
In this interlocutory appeal, appellant Jennifer Rivera-Ceren, on behalf of herself and
all others similarly situated, appeals from the circuit court’s denial of her motion for class-
action certification in her suit against appellee Presidential Limousine and Auto Sales, Inc.
(“Presidential”). For reversal, Rivera-Ceren argues that the circuit court abused its discretion
by denying her motion. We reverse and remand.
On August 22, 2018, Rivera-Ceren entered into a retail installment contract with
Presidential to finance the sale of a 2003 Jeep Liberty. Presidential repossessed the vehicle
and sent Rivera-Ceren a “Mandatory Notice of Private or Public Sale” (“Notice”) on June 20,
2019. The Notice informed Rivera-Ceren that the vehicle would be sold at a public sale on
or after June 30, 2019, and that she would be liable for any remaining deficiency in the event
the vehicle did not sell for an amount sufficient to satisfy the total outstanding indebtedness.
The Notice further indicated that Rivera-Ceren could redeem the property by “paying the
amount due and unpaid on your obligation, with interest accruing at the rate of 9.5% per
day[.]”
On July 23, 2019, Rivera-Ceren filed a class-action complaint against Presidential
alleging that the Notice failed to comply with the Uniform Commercial Code (“UCC”) and
Arkansas law because it did not disclose that she was entitled to an accounting of the unpaid
indebtedness and the charge, if any, for an accounting as required by Arkansas Code
Annotated sections 4-9-613(1)(D) and 4-9-614(1)(A) (Repl. 2020). She further claimed that
the 9.5 percent per-day interest rate, in addition to the underlying obligation that must be
paid to redeem the collateral, violated Arkansas Code Annotated section 4-9-623, the
Arkansas Deceptive Trade Practices Act (“ADTPA”), and the Arkansas Constitution’s
prohibition against usurious interest rates. Rivera-Ceren sought injunctive relief and
damages on behalf of herself and each member of the class.
In its answer, Presidential admitted that the Notice sent to Rivera-Ceren could have
been construed as requiring interest over and above the installment-contract rate but claimed
that this was not Presidential’s actual intent. Presidential further admitted that the Notice
provided did not comply with Arkansas law but alleged that Rivera-Ceren was not harmed
by the omission because she had already been provided with this information prior to
receiving the Notice. In addition, Presidential asserted that it had not made any attempt to
collect a deficiency from Rivera-Ceren.
2
Following discovery, Rivera-Ceren filed a motion for class certification on September
14, 2020. Her proposed class definition included those Arkansas consumers who, in the five
years preceding the filing of the complaint (a) have or had a retail installment contract held
by Presidential under which personal property was held as collateral; (b) had their personal
property repossessed by Presidential or its agents; and (c) were sent a post-repossession notice
that failed to disclose the consumer’s right to an accounting of the unpaid indebtedness and
the charge, if any, for such an accounting.1 Rivera-Ceren argued that all of the elements
required for class certification pursuant to Arkansas Rule of Civil Procedure 23 had been
met in this case. She noted that, according to Presidential’s responses to interrogatories,
approximately 200 vehicles were repossessed during the five-year time period referenced in
the class definition, and after each repossession, one of the three form notices provided
during discovery would have been sent to the consumer. She argued that the common, as
well as the predominant, issue to be decided on behalf of the class was whether the
repossession notices sent to those borrowers violated the UCC because the notices did not
inform the consumer that he or she was entitled to an accounting of their indebtedness.
Rivera-Ceren also claimed that the UCC provides a uniform formula for calculating damages
for noncompliance and that there were no individualized issues preventing class certification.
She further asserted that her claims were typical of the class members, that she and her
1
Rivera-Ceren explained that, based on Presidential’s discovery responses, she had
narrowed the class definition from that set forth in her complaint and was not currently
seeking class certification on the claims involving an unlawful or usurious interest rate.
3
counsel would fairly and adequately represent the class, and that a class action was superior
to other available methods to resolve the controversy.
In its response opposing the motion for class certification, Presidential admitted that
its notice of sale failed to notify Rivera-Ceren of her right to an accounting. However,
Presidential claimed that it had previously given her an accounting of her payments toward
her indebtedness when she brought the vehicle in for repairs before it was abandoned and
then repossessed. According to Presidential, this made Rivera-Ceren’s situation unique and
caused her to receive a different notice than other debtors. Presidential argued that a majority
of the notices sent after repossession were not identical to Rivera-Ceren’s and that she had
therefore failed to meet the elements of numerosity, commonality, and typicality.
Presidential also contended that the proposed class was not sufficiently numerous because
(1) the class period should have been three years instead of the five-year period applicable to
a breach of contract claim based on the relief requested in the complaint; and (2) the
potential class members cited by Rivera-Ceren failed to account for those instances wherein
strict foreclosure was used, the debtor redeemed the collateral after notice, the debtor
surrendered the collateral due to a bankruptcy filing, or the debtor voluntarily surrendered
the collateral without notice to the defendant.
Rivera-Ceren filed a reply disputing Presidential’s contention that class certification
was not appropriate. She stated that the numerosity requirement was satisfied because
approximately 200 vehicles had been repossessed during the proposed class period and at
least two of the three versions of the repossession notices sent to those consumers did not
4
include any mention of an accounting. Rivera-Ceren argued that Presidential cited no
authority for its assertion that the class period should be limited to three years instead of
five, and she noted that the statute of limitations is four years for claims under the UCC and
five years for ADTPA claims. With regard to Presidential’s argument that her situation was
not typical of the proposed class because she received an accounting of her indebtedness
prior to the repossession, Rivera-Ceren contended that Presidential was confusing an
accounting as required under the UCC with an estimate of the cost to repair her vehicle.
She argued that while every repossession or voluntary surrender occurs under different
circumstances, the common question presented on behalf of the class was whether
Presidential complied with the UCC by not informing them in the notices of their right to
an accounting.
Despite Rivera-Ceren’s request for a hearing on her motion for class certification, no
hearing on the issue was held. In an April 16, 2021 letter order, the circuit court stated that
it was denying the motion for the reasons stated in Presidential’s response and brief and
instructed counsel to prepare an order to that effect. The order denying the motion for class
certification was entered on April 27, 2021, and Rivera-Ceren filed a timely notice of appeal
from this interlocutory order. She now argues on appeal that the circuit court abused its
discretion by not certifying the class. Presidential did not file a brief in response.
Class certification of a lawsuit is governed by Arkansas Rule of Civil Procedure 23.
Vaughn v. Mercy Clinic Fort Smith Communities, 2019 Ark. 329, 587 S.W.3d 216. There are six
requirements for class-action certification under Rule 23: (1) numerosity, (2) commonality,
5
(3) typicality, (4) adequacy, (5) predominance, and (6) superiority. Id. In reviewing a circuit
court’s decision on whether to grant or deny class certification, we give circuit courts broad
discretion and reverse only when the appellant can demonstrate an abuse of discretion. Id.When we review a circuit court’s class-certification order, we review the evidence contained
in the record to determine whether it supports the circuit court’s decision. GGNSC
Arkadelphia, LLC v. Lamb ex rel. Williams, 2015 Ark. 253, 465 S.W.3d 826. It is not
appropriate for either this court or the circuit court to delve into the merits of the underlying
claims at this stage, as it is immaterial whether the petition will succeed on the merits or
whether it even states a cause of action. Id.Presidential challenged only three of the Rule 23 requirements in its response to the
motion for class certification––numerosity, commonality, and typicality—and the circuit
court based its decision on the arguments made by Presidential. Rivera-Ceren therefore
focuses on these three requirements on appeal.2 We discuss each in turn.
2
The dissent’s argument that the appeal must be affirmed because the circuit court’s
order lacks sufficient findings and Rivera-Ceren’s brief addresses only three of Rule 23’s six
requirements displays a misunderstanding of our precedent. Rule 23(b) mandates that “[a]n
order certifying a class action must define the class and the class claims, issues, or defenses.”
(Emphasis added.) This rule does not require such findings by the circuit court when a
motion for class certification is denied, and Arkansas Rule of Civil Procedure 52(a) states
that findings of fact and conclusions of law are unnecessary on decisions of motions in the
absence of a specific request by a party. Furthermore, we have remanded, not summarily
affirmed, when the circuit court’s order granting certification failed to contain sufficient
findings. E.g., Agents Mut. Ins. Co. v. Benham, 2020 Ark. 39, 591 S.W.3d 799; Koppers, Inc. v.
Trotter, 2019 Ark. 134, 572 S.W.3d 372; Industrial Welding Supplies of Hattiesburg, LLC v.
Pinson, 2017 Ark. 315, 530 S.W.3d 854.
In addition, our precedent holding that we must affirm where the appellant fails to
address each of the independent and alternative bases for the circuit court’s decision has no
6
A. Numerosity
Rule 23(a)(1) provides that a class action is maintainable only if “the class is so
numerous that joinder of all members is impracticable.” Ark. R. Civ. P. 23(a)(1) (2020). We
have held that the 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 that the numerosity requirement may
be supported by common sense. Infinity Healthcare Mgmt. of Ark., LLC v. Boyd, 2019 Ark. 346,
588 S.W.3d 22; FirstPlus Home Loan Owner 1997-1 v. Bryant, 372 Ark. 466, 277 S.W.3d 576(2008). We have declined to adopt a bright-line rule to determine how many class members
are required to satisfy the numerosity requirement. Boyd, supra; Bryant, supra. We have
affirmed a circuit court’s finding that numerosity was lacking where the class totaled only
seventeen members, City of North Little Rock v. Vogelgesang, 273 Ark. 390, 619 S.W.2d 652(1981), but we have also affirmed a finding that numerosity was satisfied when the minimum
class size was as few as thirty-six members. Stephens Prod. Co. v. Mainer, 2019 Ark. 118, 571
S.W.3d 905. When the question of numerosity is a close one, we err on the side of
certification, as the circuit court always has the option to decertify the class later if it does
not end up meeting the numerosity requirement. Boyd, supra; Van Buren School Dist. v. Jones,
365 Ark. 610, 232 S.W.3d 444 (2006).
application here. As noted above, Presidential challenged only three of Rule 23’s
requirements in its response, and the circuit court stated in its letter order that it was denying
Rivera-Ceren’s motion for the reasons argued in the response. Rivera-Ceren has addressed
each of these three possible grounds for the circuit court’s decision in her brief, and thus,
we may decide her appeal on the merits.
7
Rivera-Ceren argues that Presidential’s admission that approximately 200 consumers
received one of the three repossession notices in the five years before she filed her class-action
complaint is, by itself, sufficient to satisfy the numerosity requirement. We agree that, on the
record before us, numerosity was established. Presidential claimed in its response to the
motion for class certification that Rivera-Ceren inflated the number of potential class
members because the applicable statute of limitations should be three years instead of five.
However, this argument delves into the potential merits of the claims, which we have held is
impermissible when reviewing a motion for class certification. Boyd, supra; Fraley v. Williams
Ford Tractor & Equip. Co., 339 Ark. 322, 5 S.W.3d 423 (1999). In Fraley, we held that the
circuit court erred when it improperly considered the merits of the appellee’s affirmative
defenses in determining that the numerosity requirement of Rule 23 had not been satisfied.
The expiration of the statute of limitations is an affirmative defense under Arkansas Rule of
Civil Procedure 8(c), and as such, certification challenges based on this defense are
inappropriate. BNL Equity Corp. v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000); Fraley, supra;SEECO, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997). Furthermore, as Rivera-Ceren
asserts, even if the applicable class period is limited to three years, Presidential did not
identify how many post-repossession notices it sent per year and only argued that this shorter
period would “greatly reduce the potential members.” Assuming an equal number of
repossessions each year, approximately 120 debtors would have received the notices, a class
that is still large enough to satisfy the Rule 23 numerosity requirement. See Stephens, supra.
8
Presidential also contended that numerosity failed because not all of the notices sent
to debtors failed to comply with the UCC. However, Presidential asserted in its answers to
discovery that it did not track which of the three versions of notices had been sent to each
debtor, and in any event, Rivera-Ceren argued that none of the notices provided satisfy UCC
requirements. Further analysis of each notice and the extent to which any of them adequately
communicate the required information would involve a merits-based inquiry that is
improper at this stage. Similarly, Presidential’s claim that Rivera-Ceren failed to take into
account the number of potential class members who had redeemed or voluntarily
surrendered their collateral, or who had agreed to a strict foreclosure, is irrelevant to a
determination of numerosity in this case. Rivera-Ceren’s proposed class is defined only as
those debtors who had personal property repossessed by Presidential and who were sent a
post-repossession notice that failed to disclose their right to an accounting of the unpaid
indebtedness and the charge, if any, for such an accounting. Based on the record presented
to the circuit court, Rivera-Ceren has established a potential class that is sufficiently
numerous to satisfy Rule 23. Again, the exact size of the proposed class and the identity of
the class members need not be established for the court to certify a class; we err on the side
of certification, as the class can always be decertified later if needed. Boyd, supra. Accordingly,
the circuit court abused its discretion in denying Rivera-Ceren’s motion based on a lack of
numerosity.
B. Commonality
9
Rivera-Ceren next contends that she satisfied Rule 23’s commonality requirement.
To certify a class, a circuit court must find that there are questions of law or fact common to
the class. Ark. R. Civ. P. 23(a)(2) (2020). “When a class-action defendant ‘has engaged in a
course of conduct that affects a group of persons and gives rise to a cause of action, one or
more elements of that cause of action will be common to all persons affected.’” Boyd, 2019
Ark. 346, at 8, 588 S.W.3d at 28–29 (quoting Rosenow v. Alltel Corp., 2010 Ark. 26, at 6, 358
S.W.3d 879, 885). Rule 23(a)(2) does not require that all questions of law or fact be common;
rather, there need only be a single issue common to all members of the class. Id. at 8–9, 588
S.W.3d at 29. We have held that commonality is satisfied where the defendant’s acts,
independent of any action by the class members, establish a common question relating to
the entire class. Rosenow, supra.In her motion for class certification, Rivera-Ceren claimed that the commonality
requirement had been met in this case because Presidential engaged in standardized conduct
toward members of the proposed class by mailing them form notices that did not comply
with the UCC. She argues that Presidential sent all class members one of the three forms
provided during discovery and that the principal and common legal issue to be decided is
whether these form notices informed class members of their right to an accounting as
required under the UCC, Ark. Code Ann. §§ 4-9-613(1)(D) and 4-9-614(1)(A).
Presidential responded to Rivera-Ceren’s motion by asserting that “a great majority
of the notices sent to debtors after repossession were not identical to that sent to Plaintiff
and in fact met the requirements of the statute.” Presidential further claimed that Rivera-
10
Ceren’s situation was unique because she had been supplied with an accounting of her
obligations, and she had abandoned the collateral, causing her to receive a different
notification than other debtors. However, as Rivera-Ceren argues, the facts surrounding the
receipt of her repossession notice have no bearing on the common question of whether
Presidential’s form notices comply with the UCC. Presidential supplied three sample form
notices during discovery and indicated that one of these sample notices was sent to all
debtors who had collateral repossessed during the relevant time period. As noted earlier,
Presidential’s contention that the majority of these notices were not the same as Rivera-
Ceren’s conflicted with its statement during discovery that it did not track which notices
were sent to whom. Further, Rivera-Ceren claimed that all three versions of the sample
notices were defective. Whether any of these notices meet the requirements of the UCC
involves the merits of the claims and goes well beyond the procedural issue of whether Rivera-
Ceren has demonstrated the existence of common questions of law or fact to be decided. See
Rosenow, supra (holding that an attempt to raise defenses to defeat the requirement of
commonality improperly delves into the merits of the case). Thus, the circuit court abused
its discretion in refusing to certify the class based on the commonality requirement.
C. Typicality
The final Rule 23 requirement that was challenged by Presidential in its response to
Rivera-Ceren’s motion for class certification was typicality. Rule 23(a)(3) requires that “the
claims or defenses of the representative parties are typical of the claims and defenses of the
class[.]” We have held that the typicality requirement is satisfied if the class representative’s
11
claim arises from the same wrong allegedly committed against the class. Boyd, supra. “Thus,
a claim is typical if it arises from the same practice or course of conduct that gives rise to the
claims of other class members and if the representative’s claims are based on the same legal
theory.” Boyd, 2019 Ark. 346, at 10, 588 S.W.3d at 29.
Rivera-Ceren argues, as she did in her motion for class certification, that there is no
difference in the theories of liability upon which she and the class members are proceeding
because they are based on the same three form notices that she alleges fail to inform
consumers of their right to an accounting as required by the UCC. She therefore contends
that her claims are typical of those in her proposed class and that the circuit court abused its
discretion in denying her motion.
We agree that Rivera-Ceren satisfied the typicality requirement. Her claims arise from
the same wrong allegedly committed against the class, which is that the post-repossession
notices sent to debtors failed to contain certain information required under the UCC.
Presidential again asserted in its response that the notice provided to Rivera-Ceren was not
typical of the notices received by other class members and that at least one of the three sample
notices did contain the required language. Rivera-Ceren correctly asserts that these are
merits-based arguments, and as discussed above, we do not delve into the merits of claims or
defenses at the class-certification stage. Boyd, supra; Rosenow, supra. Because the circuit court
abused its discretion in refusing to certify the class based on the record before it, we reverse
the circuit court’s order and remand for further proceedings.
Reversed and remanded.
12
WEBB, J., dissents.
BARBARA W. WEBB, Justice, dissents. I would have affirmed the circuit court’s
ruling on two separate bases. First, the appellant failed to bring up a record sufficient to
demonstrate an abuse of discretion. When reviewing a class-certification order, we focus on
the evidence contained in the record to determine whether it supports the circuit court’s
conclusion regarding certification. Asbury Auto Group., Inc. v. Palasack, 366 Ark. 601, 604,
237 S.W.3d 462, 465 (2006) (citing Ark. R. Civ. P. 23). Our law is well settled that the six
requirements for class-action certification, as stated in Rule 23, are (1) numerosity, (2)
commonality, (3) typicality, (4) adequacy, (5) predominance, and (6) superiority. Infinity
Healthcare Mgmt. of Arkansas, LLC v. Boyd, 2019 Ark. 346, at 6, 588 S.W.3d 22, 27 (citing
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.
Id. (citing Farmers Ins. Co. v. Snowden, 366 Ark. 138, 233 S.W.3d 664 (2006)). The circuit
court’s order addresses none of these factors.
The circuit court is obligated to undertake enough of an analysis of the six elements
to enable us to conduct a meaningful review of the certification issue on appeal. SEECO, Inc.
v. Stewmon, 2016 Ark. 435, at 10, 506 S.W.3d 828, 836 (citing Lenders Title Co. v. Chandler,
353 Ark. 339, 107 S.W.3d 157 (2003)). At a minimum, this requires more than a cursory
mention of the six criteria or bare conclusions that those criteria have been satisfied. Id. The
circuit court cannot simply use a “rubber stamp” to approve or deny class certification. Id.However, when a party fails to request specific findings of fact on Rule 23 elements or file a
13
motion pursuant to Ark. R. Civ. P. 52, it waives the lack of specific factual findings on appeal.
The Money Place, LLC v. Barnes, 349 Ark. 518, 525, 78 S.W.3d 730,733 (2002).
The appellant failed to obtain the necessary findings, and the circuit court’s order is
insufficient to enable our review of the denial of class certification. The burden is on the
appellant to bring up a record sufficient to demonstrate reversible error. Landers v. Stone,
2016 Ark. 272, at 17, 496 S.W.3d 370, 381 (citing Burdine v. Ark. Dep’t of Fin. & Admin.,
2010 Ark. 455, 379 S.W.3d 476); Troutt v. Matchett, 305 Ark. 474, 476, 808 S.W.2d 777,
778 (1991) (citing SD Leasing, Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983)). We
do not presume that prejudice has resulted from a circuit court’s error, and we will not
reverse for error unless prejudice is demonstrated. Caplener v. Bluebonnet Mill Co., 322 Ark.
751, 759, 911 S.W.2d 586, 591 (1995) (citations omitted). The failure to obtain a ruling was
a sufficient basis under our law to affirm. However, another basis exists which also supports
the circuit court’s order.
The appellant’s brief argues that the requirements of numerosity, commonality, and
typicality were met. However, the appellant did not address adequacy, predominance, or
superiority. When a circuit court bases its decision on more than one independent ground,
as it did here when it denied the motion, and the appellant challenges fewer than all those
grounds on appeal, our case law requires that we affirm without addressing any of the
grounds. Jones v. Miller, 2017 Ark. 190, at 4–5, 520 S.W.3d 253, 256 (citing Evangelical
Lutheran Good Samaritan Soc’y v. Kolesar, 2014 Ark. 279, at 6–7; Duke v. Shinpaugh, 375 Ark.
358, 290 S.W.3d 591 (2009); Coleman v. Regions Bank, 364 Ark. 59, 216 S.W.3d 569 (2005);
14
Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002); Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d
(1989)).
The appellant failed to bring up a record sufficient to enable review or show reversible
error and she only made arguments for reversal regarding three of the six elements of class
certification. This court should therefore affirm. Id. While the majority dedicates a good four
inches at the bottom of a page of its majority opinion in the form of a footnote, the majority
overlooks the language of the circuit court’s order. The circuit court’s order does not state
that the motion for class certification is denied based on Presidential’s objections. Instead,
it states that it “reviewed all pleadings, Exhibits and Briefs filed by [sic] the parties and finds”
that the motion for class certification is denied. Iura novit curia means that the circuit court
has never been relegated to only the arguments of the parties. Pursuant to this doctrine,
courts have known and applied the law to cases for centuries. Rather than provide an
argument to this court for error on all prongs of class certification, the appellant chose to
make an issue out of only three of the six—as if Presidential’s failure to object to three prongs
of class-certification requirements limited the circuit court’s ability to know the law and apply
it.
The majority gives no reasoning to support its break with stare decisis as to two
different and well-established principles of law. Macklin v. Ark. Dep’t of Hum. Servs., 2021 Ark.
151, at 13, 624 S.W.3d 869, 876 (Wood, J., dissenting) (“While some members of the
majority have recently declared stare decisis sacrosanct, they have no problem overturning
[precedent] sub silencio.”); Edwards v. Thomas, 2021 Ark. 140, at 23, 625 S.W.3d 226, 238;
15
(Womack, J., concurring in part) (“Stare decisis is an important legal principle that should not
be taken lightly.”); Collins v. State, 2021 Ark. 80, at 5 (Kemp, C.J., dissenting) (“The majority
fails to adhere to the doctrine of stare decisis by refusing to follow this court’s precedent . . .
.”). Our case law supports an affirmance of the circuit court’s order and, because the majority
breaks with precedent, I respectfully dissent.
Corey D. McGaha PLLC, by: Corey D. McGaha; and Turner and Turner, P.A., by: Todd
M. Turner and Dan O. Turner, for appellant.
One brief only.
16