GGNSC Arkadelphia, LLC v. Lamb

2015 Ark. 253

465 S.W.3d 826

GGNSC Arkadelphia, LLC d/b/a Golden Living Center–Arkadelphia; GGNSC Camden, LLC d/b/a Golden Living Center–Camden ; GGNSC Crossett, LLC d/b/a Golden Living Center–Crossett; GGNSC El Dorado III, LLC d/b/a Golden Living Center–El Dorado; GGNSC Harrison II, LLC d/b/a/ Golden Living Center–Harrison; GGNSC Heber Springs, LLC d/b/a/ Golden Living Center–Heber Springs ; GGNSC Hilltop, LLC d/b/a/ Golden Living Center–Hilltop; GGNSC Hot Springs, LLC d/b/a Golden Living Center–Park Avenue; GGNSC McGehee, LLC d/b/a Golden Living Center–McGehee; GGNSC Monticello, LLC d/b/a Golden Living Center–Monticello; GGNSC North Little Rock, LLC d/b/a Golden Living Center–North Little Rock; GGNSC Rogers, LLC d/b/a/ Golden Living Center–Rogers; Golden Gate National Senior Care, LLC ; GGNSC Holdings, LLC; GGNSC Administrative Services, LLC ; GGNSC Clinical Services, LLC; Golden Gate Ancillary, LLC; GGNSC Equity Holdings, LLC; Leslie Campbell; Cindy Susienka; James Avery; Andrea Clark; David Mills; Julianne Williams ; David Stordy; Larry McFadden ; Angela Marlar; Billie Palculict; Sybil Adams; Troy Morris; Avie Singleton; Tracey Burlison; Mincie Thomas; Tommy Johnston; John McPherson; Laurie Herron ; Margaret Green ; Norean Bailey; Marsha Parker ; and Lisa Hensley, Appellants

v.Nellie R. Lamb, by and through Richard Williams, as Guardian of the Estate and Person of Nellie R. Lamb; Betty Huebner, as Special Administrator of the Estate of Wilma Richey, Deceased; Greg Brown, as Special Administrator of the Estate of Louise Brown, Deceased; Dianne Roche, as Attorney-in-fact of Jamie Roche ; Leon Robinson, Jr.; Claude Henderson and Ruby Henderson, as Co-special Administrators of the Estate of Lucille Henderson, Deceased; Larry Nelson, as Special Administrator of the Estate of Gracie Caesar; Patricia Fite, as Special Administrator of the Estate of Lois Davis; John Tatum, as Special Administrator of the Estate of Lue Ella Tatum; Rosie Williams, as Special Administrator of the Estate of Jack Williams; Albert Neal, as Special Administrator of the Estate of Gladys Neal; Ladonia Wright, as Special Administrator of the Estate of Alma Rogers; Elsie Jenkins, as Special Administrator of the Estate of Elmer Tatum; Darlene Carter, as Special Administrator of the Estate of Warren Porchia; Lisa Armstrong, as Special Administrator of the Estate of Lois Richardson ; Nadine Brown, as Special Administrator of the Estate of Ruby Barnett; Betty Andrews, as Special Administrator of the Estate of Jimmy Andrews; Levert Briggs, Jr., as Special Administrator of the Estate of Helen Bailey ; Herman Levingston, as Special Administrator of the Estate of Velma Davis; Bessie Talley, as Special Administrator of the Estate of Willie Talley; Geneva Odems, as Special Administrator of the Estate of Bernell Morton; Linda Jacintho, as Special Administrator of the Estate of Edna Fink; Peggy S. Dickey, as Special Administrator of the Estate of Louis E. Lay; Elaine Fisher, as Special Administrator of the Estate Of Walter Lee Beasley; Yuri Shearer, as Special Administrator of the Estate of Alma M. Shearer; Dorothy Tackett, as Special Administrator of the Estate of Edna Raby; Karen Shelton, as Special Administrator of the Estate of Faye Clayton; Deborah Jones, as Special Administrator of the Estate of James H. Wasson; Jack Nolen, as Special Administrator of the Estate of Vera C. Nolen; Mary Livingston, as Special Administrator of the Estate of Roy Livingston; Clarissa Carmack, as Special Administrator of the Estate of Troy Thrash; Merry Simpson, as Special Administrator of the Estate of Lummie Fryar; Debbie Nimmer, as Special Administrator of the Estate of Aretha Steward; Randy Mitchell, as Attorney-in-fact of Mildred Mitchell ; John Slaughter, as Special Administrator of the Estate of Frank Province, Jr.; Robert Gragg, as Special Administrator of the Estate of Robert Mackon; Betty Sisk, as Attorney-in-fact of Azzle Williams; Ray Smalling, as Special Administrator of the Estate of Thelma Smalling; Roger Harnish and Rhonda Harnish, as Co-special Administrators of the Estate of Verna Harnish; Tommie Keener, as Special Administrator of the Estate of Doris Keener; Vivian Stuart, as Special Administrator of the Estate of Willie Sheppard; Polly Redmond, as Attorney-in-fact of Novie D. Gasaway; Sara Bond, as Special Administrator of the Estate of Irma Wharton; Barbara Weaver, as Special Administrator of the Estate of Sylvia Wilson; and on behalf of themselves and all others similarly situated, Appellees

No. CV–14–1033

Supreme Court of Arkansas.

Opinion Delivered June 4, 2015

Rehearing Denied July 23, 2015

Hardin, Jesson & Terry, PLC, by: Kirkman T. Dougherty, Fort Smith, Jeffrey W. Hatfield, and Kynda Almefty, Little Rock; Dechert, LLP, by: H. Joseph Escher III ; and Eugene Bramblett, Camden, for appellant.

Campbell Law Firm, P.A., by: H. Gregory Campbell ; Ludwig Law Firm, PLC, by: Gene A. Ludwig ; and Reddick Moss, PLLC, by: Brian D. Reddick, for appellees.

Opinion

COURTNEY HUDSON GOODSON, Associate Justice

Appellants GGNSC Arkadelphia, LLC d/b/a/ Golden Living Center–Arkadelphia, and others, bring this interlocutory appeal from the order entered by the Ouachita County Circuit Court certifying a class action filed by appellees Nellie R. Lamb, by and through Richard Williams, as guardian of the estate and person of Nellie R. Lamb, and others. For reversal, appellants contend that appellees did not meet their burden of proving the predominance of common issues for the certification of the class. They also argue that class adjudication is neither efficient nor fair and that the class definition is flawed. We affirm the circuit court's decision.

I. Factual Background

The appellants in this case are twelve nursing-home facilities doing business as Golden

Living Centers in cities throughout the State of Arkansas.¹ Appellants also include alleged related entities and various officers, directors, administrators, and persons allegedly serving in leadership positions. Appellees, who are former residents of the nursing homes or special administrators, guardians, or attorneys-in-fact of former residents, brought this class-action suit against appellants in the Circuit Court of Ouachita County. In a second amended complaint, appellees individually, and on behalf of all residents of the Golden Living Centers from December 2006 to July 1, 2009, alleged that appellants breached their statutory and contractual obligations by failing to properly staff the facilities and by failing to meet minimum staffing requirements. Specifically, appellees asserted that the alleged practice of chronically understaffing the nursing homes breached the facilities' standard admission agreement and violated the Arkansas Long–Term Care Residents' Rights Act (Residents' Rights Act). Based on the alleged violation of the Residents' Rights Act, they also presented a claim under the Arkansas Deceptive Trade Practices Act (ADTPA). Appellees sought punitive damages and compensation for an array of injuries arising from the loss of dignity, the deprivation of residents' rights, poor hygiene, filthy living conditions, foul odors, the delivery of cold food, as well as damages for other injuries including pressure sores, malnutrition, dehydration, infection, bone fractures, falls, concussions, lacerations, and medical errors.

Following the initial complaint and also after filing the second amended complaint,

appellees moved for class certification of the three claims. Appellants opposed the motions, and the parties briefed the contested issues. After conducting two hearings, the circuit court entered an order granting class certification on July 11, 2014. The court defined the class as,

All residents and estates of residents who resided at the Golden Living nursing homes in Arkansas from December 2006, through July 1, 2009. Excluded from the Class are (1) residents that have sued in the past or presently have lawsuits pending against any of the Defendants except the plaintiffs named herein; (2) all present and former employees, officers, directors, of Defendants; (3) any Class Member who timely elects to be excluded from the class; and (4) any employee of the Circuit Court of Ouachita County, Arkansas, or any officer of any court presiding over this action.

In its order, the court noted that the class exceeded 3,400 residents. Further, the circuit court found that commonality was established because the central issue affecting both the named plaintiffs and the putative class is whether appellants' alleged business practice of chronically understaffing the nursing homes breached the standard admission agreement and violated the Residents' Rights Act, as well as the ADTPA. In particular, the circuit court found that the issues common to all class members included,

A. Whether Defendants' standard admission agreement imposes minimum staffing requirements;

B. Whether Ark.Code Ann. § 20–10–1201, et seq. imposes minimum staffing requirements;

C. Whether Defendants failed to meet the minimum staffing requirements of Ark.Code Ann. § 20–10–1201, et seq., and the Defendants' standard admission agreement;

D. Whether failure to meet the minimum staffing requirements breaches the standard admission agreement;

E. Whether failure to meet minimum staffing requirements violates Ark.Code Ann. § 20–10–1201 et seq. ;

F. Whether failure to meet minimum staffing requirements of Ark.Code Ann. § 20–10–1201 et seq., is a violation of the Arkansas Deceptive Trade Practices Act; and

G. Whether Leslie Campbell, Cindy Susienka, James Avery, Andrea Clark, David Mills, Julianne Williams, David Stordy, Larry McFadden, Angela Marlar, Billie Palculict, Sybil Adams, Troy Morris, Avie Singleton, Tracey Burlison, Mincie Thomas, Tommy Johnston, John McPherson, Laurie Herron, Margaret Green, Noreen Bailey, Marsha Parker, and Lisa Hensley are control persons as defined in Ark.Code Ann. § 4–88–113(d)(1) and therefore jointly and severally liable for the damages

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