Diamante, LLC v. Dye

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SUPREME COURT OF ARKANSAS

No. CV-13-467

DIAMANTE, LLC Opinion Delivered December 5, 2013

APPELLANT APPEAL FROM THE SALINE

COUNTY CIRCUIT COURT

V. [NO. 63CV-12-90]

GARY DYE and LINDA DYE HONORABLE GARY M. ARNOLD,

JUDGE

APPELLEES

AFFIRMED.

JOSEPHINE LINKER HART, Associate Justice

Diamante, LLC (Diamante), appeals the orders of the Saline County Circuit Court

granting the motion of appellees, Gary Dye and Linda Dye, for class-action certification.

This order is immediately appealable pursuant to Ark. R. App. P.–Civ. 2(a)(9) (2012). On

appeal, Diamante argues that the circuit court abused its discretion by (1) ruling that the class

counsel is qualified and is not a likely, necessary witness; (2) ruling that the class

representatives met the adequacy requirement and that they do not have a conflict of interest

in representing members of the class whose dues were deferred; (3) ruling that all class

members have a common claim when the restrictive covenant filed in connection with the

lot owned by the class representatives is different than the restrictive covenant of other class

members; (4) including members of the class whose dues are currently being deferred; (5)

including members of the class who signed documents agreeing to arbitrate controversies

with Diamante; and (6) certifying a class including as members of the class those whose dues

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were deferred.

When we review a circuit court’s decision to grant or deny class certification, we

will reverse only when the appellant can demonstrate an abuse of discretion. DIRECTV, Inc.

v. Murray, 2012 Ark. 366, ___ S.W.3d ____. In this interlocutory appeal, we do not

consider the merits of the underlying claims as the issue of whether to certify a class is not

determined by whether the plaintiff has stated a cause of action for the proposed class that

will prevail. Id. This court thus views the propriety of a class action as a procedural

question. Id. The six requirements for class-action certification as stated in Rule 23 of the

Arkansas Rules of Civil Procedure are (1) numerosity, (2) commonality, (3) typicality, (4)

adequacy, (5) predominance, and (6) superiority. Id.

Diamante operates a private-membership golf club located in Hot Springs Village.

There are approximately 450 privately owned lots around the golf course and clubhouse.

The lots are in two subdivisions, the Diamante Subdivision and the Diamante Villas

Subdivision. Supplemental declarations of covenants and restrictions (supplemental

declarations) are on file in the Saline County land records. The supplemental declarations

run with the land and create certain obligations and restrictions referred to as “tie-in rights.”

Among those tie-in rights are requirements that lot owners become “Full Golf Members”

of the Diamante Country Club (the Club); pay monthly dues to the Club; and grant

Diamante a lien and foreclosure right with respect to the lot that arises in the event of failure

to pay the monthly Club dues.

Appellees filed a declaratory-judgment action, asking the circuit court to declare the

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tie-in rights unenforceable. They alleged that Diamante owed them a duty to collect

monthly dues from all Full Golf Members, but had failed to collect those dues from “up to

100 Diamante and Diamante Villa lot owners.” The appellees asserted that the failure to

collect dues made the tie-in rights unenforceable because (a) Diamante committed a material

breach of its duty owed to members; (b) there was a failure of consideration; (c) the

“material breaches” by Diamante equated to a failure to operate in accordance with the plan

of development set out in the supplemental declarations; (d) Diamante violated the implied

law to act in good faith and fair dealing in the performance of its duties under the

supplemental declarations; (e) the doctrine of “unclean hands” would bar enforcement of the

tie-in rights at equity; (f) inequitable conduct in selectively collecting dues would bar

enforcement of the tie-in rights in equity; (g) Diamante’s seeking to enforce the tie-in rights

while it is materially breaching them is “unconscionable”; (h) selective enforcement by

Diamante is not permitted by the plan of development and supplemental declarations; (I) the

rule against perpetuities makes the tie-in rights unenforceable and void; (j) the tie-in rights

constitute an unreasonable restraint on alienation on the appellees’ home and lot; (k)

Diamante’s failure to satisfy “virtually the only provision” in the supplemental declarations

that placed a duty on the Club caused the tie-in rights to be unenforceable due to lack of

mutuality of obligation; and (l) Diamante has “abandoned” the plan of development by not

collecting the full monthly dues. The appellees subsequently amended their petition to add

that Diamante had also abandoned the plan of development by not keeping the golf course

exclusively reserved for dues-paying members.

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Appellees then filed a motion for class certification. They proposed to define the class

as

Current owners of Diamante Lots, improved or unimproved, located in the

Diamante and Diamante Villas subdivisions [excluding from the Class:

RESPONDENT, entities affiliated with Defendant Cooper Land Development, Inc.,

purchasers of about 100 ‘Deferred Lots,’ and owners of the six lots for which

foreclosure cases brought by RESPONDENT are on file and pending.]

Appellees asserted that class certification was proper because

1) the class is so large that joinder of all members is impracticable, 2) the legal and

factual defensive issues to be determined are common to all members of the proposed

class, 3) the defenses of the PETITIONERS as representative parties are typical of the

defenses of the class, and 4) the PETITIONERS as representative parties will fairly

and adequately protect the interests of the class.

Appellees argued in a memorandum to the circuit court that was filed in support of

its motion for class certification that all the requirements of Arkansas Rule of Civil Procedure

23 were met by the proposed class. These requirements are (1) numerosity, (2) commonality,

(3) typicality, (4) adequacy, (5) superiority, and (6) predominance. The memorandum then

set forth how each of the six requirements were met. First, they asserted that the likely class

of approximately 330 members should be found to be more than enough class members to

satisfy the numerosity requirement. Second, they asserted that the commonality requirement

should be found to have been met because the question of “enforceability” of the tie-in rights

and whether Diamante’s conduct affected its right to enforce them is common to all members

of the proposed class. Third, appellees asserted that the typicality requirement should be

found to have been met because there are no varying fact patterns for the court to deal with,

as the claims involved identical provisions in the Plan of Development, and all the material

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facts relating to Diamante’s conduct provide all class members with the same defenses to

enforceablity. Fourth, they asserted that the adequacy requirement should be found to have

been met because class counsel and the class representatives will fairly and adequately

represent the interests of the class because there are no known conflicts between the

representatives and other class members, the appellees have more than a minimal interest in

the action, the appellees are familiar with the practices being challenged, and they have the

ability to assist in decision-making as to the conduct of the litigation. Also, they asserted that

the class counsel is presumed to be adequate. Fifth, appellees asserted that the superiority

requirement should be found to have been met because it is more “judicially efficient” to

take up the common question and defenses than to file 330 separate actions. Sixth, they

asserted that the predominance requirement should be found to have been met because

“issues related to the identical provisions of the Supplemental Declarations and identical

conduct of [Diamante] are at the heart of the common defenses by all members of the

proposed class.”

After a hearing in which Diamante contested each of the six requirements for class

certification and moved for the disqualification as a necessary witness proposed class counsel,

Jim Armogida, and after entertaining a motion to reconsider, the circuit court certified the

class. The circuit court defined the class as:

Current owners of the 450 lots, improved or unimproved, located in the Diamante

or Diamante Villas subdivisions, excluding the following owners: Respondent,

Cooper Land Development, Inc. and its affiliates.

In its order granting class certification, the circuit court made extensive findings of fact. It

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found that none of the reasons alleged by the appellees as justification for declaring the tie-in

rights unenforceable are based on the acts of the appellees or other property owners in the

Diamante and Diamante Villas subdivisions. Further, the circuit court found that all of the

reasons alleged for unenforceability pertain not only to the appellees but also to all the

members of the proposed class. The circuit court also found that the proposed class exceeded

330 property owners and that the proposed class was clearly defined and unambiguous.

The circuit court found that the agreement to arbitrate claims against the Club that

was found in several of the proposed class members’ Club membership agreements was no

impediment to class certification. It stated that the declaratory-judgment action before it was

“no forum” for [Diamante] to attempt to require any of the three groups (defined by three

different versions of the Club membership applications), except the Dyes, to submit to

arbitration. Furthermore, the circuit court found that various forms of membership

applications did not disqualify any of the three groups from class membership. Additionally,

the circuit court noted that it had previously considered and denied Diamante’s motion to

compel arbitration, that the bylaws had no bearing on the ability of a Club member to be a

member of the class, and that the three different versions of the membership form have “no

relevance” to numerosity, commonality, or predominance because the supplemental

declarations which all property owners in the proposed class are subject to was the focus of

the action.

The circuit court also made the following conclusions of law with regard to the

requirements of Arkansas Rule of Civil Procedure 23. First, the circuit court stated that the

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numerosity requirement was met because the proposed class was more than 330 lot owners,

which made joinder impracticable. Second, the circuit court stated that the commonality

requirement was met because the acts by Diamante established a common question of

enforceability “totally independent of any actions by [appellees] and members of the proposed

class, but affects them all.” Third, the circuit court stated that the typicality requirement was

met because the “focus” of the lawsuit was the conduct of Diamante and the same legal

theory advanced by the appellees related to that conduct.

Fourth, the circuit court stated that the adequacy requirement was met. The three

requirements of Rule 23(a)(4), (1) class counsel be qualified, experienced, and generally able

to conduct the litigation and that the class is generally “pleased” with his representation; (2)

that there be no evidence of collusion or conflicting interest between the class representative

and the class; and (3) that the class representative must display some minimal interest in the

action, familiarity with the practices challenged, and ability to assist in decision making

regarding the conduct of the litigation, were established. The circuit court noted that in

Arkansas law there is a presumption that class counsel meets the adequacy requirement and

that no special training is required. It also noted that Diamante did not raise any questions

about the “capability or competence” of class counsel.

While acknowledging Diamante’s “necessary witness” argument, the circuit court

stated that the appellees did not share Diamante’s concerns and found that there had been

“nothing presented to this court which even remotely brings into question any need for

[proposed class counsel] to be a necessary witness or that he has any conflict of interest with

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his clients.” Further, the circuit court noted that the appellees testified that they are “very

happy” with class counsel and “it has been apparent in court proceedings to date that [class

counsel’s] background and his familiarity with the facts and circumstances in this case due to

his ownership of a lot are of great benefit to his clients and not detrimental.” Additionally,

the circuit court found the Dyes met the requirements to serve as class representatives because

in several court appearances, they displayed “interest, familiarity, and the ability to assist in

decision making.”

Fifth, the circuit court found the superiority requirement—that a class action be the

most efficient way of handling the case and fair to both sides—had been met because there

is judicial efficiency in having the ultimate determination on the merits potentially cover up

to 330 class members and the determination will relate to a common document filed in the

land records of all the lot owners in the proposed class. It found no unfairness to Diamante,

or alternatively, if it existed, it was “greatly outweighed by the obvious fairness to the class

members.” The circuit court found “no real problem” with manageability of the class.

Finally, the circuit court found that the predominance requirement had been met because

“issues related to identical provisions of the supplemental declarations and identical conduct

of [Diamante] common to all the proposed class are at the heart of this declaratory judgment

action.” It noted further that there are “really no apparent issues in the action on the merits

before this court which are not common to the proposed class, and in this type of situation

the ‘predominance’ requirement appears to be a non-factor, as a matter of law.” Diamante

timely filed a notice of appeal.

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On appeal, Diamante first argues that the circuit court abused its discretion by ruling

that class counsel, an owner of a lot in one of the Diamante subdivisions, is qualified and is

not a likely, necessary witness. Citing Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928

(1995), Diamante asserts that class counsel, as a class member, will be a necessary witness to

testify about a “membership document” in his file; whether it was his handwriting on the

document that would indicate his awareness of the provisions in the bylaws regarding

arbitration; whether he had signed a contract deferring his own dues for a year; and his

knowledge of alleged breaches of its duty by Diamante.

To the extent that Diamante is arguing that the circuit court erred in refusing to

disqualify the class counsel because he was likely to be a witness, we note that Rule 2(a)(8)

of the Arkansas Rules of Appellate Procedure–Civil provides that orders disqualifying an

attorney are immediately appealable, not orders denying disqualification.1 Even so, adequacy

1

In Zearley, an appeal from a class certification, this court held that the trial court

abused its discretion in allowing class counsel to testify at the certification hearing;

however, the case before us is clearly distinguishable. Class counsel in Zearley was not a

class member and actually testified in an effort to try to establish how a synthetic bone

material resulted in a medical injury that would be best addressed in a class-action lawsuit.

Here, class counsel, who is a class member, did not testify and was not called by Diamante

to testify. Also, in the circuit court’s order, there is a specific finding that Diamante did

not clearly articulate the need for class counsel’s testimony at the time it made its ruling. It

likewise did not foreclose the possibility of disqualifying counsel at a later stage of the

proceedings if it became necessary.

Furthermore, disqualification of an attorney-witness is not automatic. In Weigel v.

Farmers Ins. Co., Inc., 356 Ark. 617, 158 S.W.3d 147 (2004), this court noted that while

disqualification of an attorney is an absolutely necessary measure to protect and preserve

the integrity of the attorney-client relationship, it is a drastic measure that should be

imposed only where clearly required by the circumstances. Further, the Weigel court

stated that the Arkansas Rules of Professional Conduct apply to disqualification decisions

and that Rule 3.7 specifically addresses the situation. It provides:

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of legal representation is a requirement of class certification and to that extent, this court has

addressed the merits of counsel’s qualification. Whether class counsel is qualified and will

fairly and adequately protect the interests of the class is addressed by Arkansas Rule of Civil

Procedure 23(a)(4). It specifically requires that the representative parties and their counsel

be able to adequately protect the interests of the class. This court has previously interpreted

Rule 23(a)(4) to require three elements: (1) the representative counsel must be qualified,

experienced, and generally able to conduct the litigation; (2) there be no evidence of

collusion or conflicting interest between the representative and the class; and (3) the

representative must display some minimal level of interest in the action, familiarity with the

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a

necessary witness except where:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the

case;

or

(3) disqualification of the lawyer would work substantial hardship on the client.

In actuating the considerations in Rule 3.7, the Weigel court adopted a three-part test that

requires the party seeking disqualification of an attorney-witness to prove:

(1) that the attorney’s testimony is material to the determination of the issues being

litigated; (2) that the evidence is unobtainable elsewhere; and (3) that the testimony

is or may be prejudicial to the testifying attorney’s client.

Weigel, 356 Ark. at 625, 158 S.W.3d at 153. Here, the testimony that Diamante expects

to elicit from class counsel, as noted previously, relates primarily to uncontested issues.

Moreover, at this point in time, Diamante has not proven that the evidence was

unobtainable elsewhere or that the testimony may be prejudicial to the class.

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practices challenged, and ability to assist in decision making as to the conduct of the

litigation. Advance Am. Servicing of Ark., Inc. v. McGinnis, 2009 Ark. 151, 300 S.W.3d 487.

Diamante has not directly challenged class counsel’s qualifications, here or before the

circuit court. We have held that absent a showing to the contrary, we may presume that the

representative’s attorney will vigorously and competently pursue the litigation. Id.

Diamante’s argument here only asserts that the circuit court erred in accepting as evidence

class counsel’s qualifications via an affidavit. However, as noted previously, the circuit court’s

conclusion of law regarding class counsel rested upon the presumption in Arkansas law that

class counsel meets the adequacy requirement and that no special training is required. It

noted that Diamante did not raise any questions about the “capability or competence” of class

counsel. Accordingly, we cannot say that the circuit court abused its discretion in finding

class counsel adequate.

Finally, Diamante asserts that the circuit court erred by not allowing into evidence a

document signed by class counsel, which showed that he was deferring his dues for one year.

The document is not relevant to the overarching question of whether it would be equitable

to enforce the tie-in rights given Diamante’s conduct.

Diamante next argues that the circuit court erred in ruling that the class representatives

met the adequacy requirement and that they do not have a conflict of interest in representing

members of the class whose dues were deferred. It claims that the Dyes are dues-paying

members and “the main reason appellees are suing [Diamante] is because it is deferring dues

for some lot owners.” Accordingly, Diamante contends that because of this conflict of

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interest, the appellees cannot fairly and adequately represent the class members whose dues

are being deferred. Diamante argues further that the class representatives testified that they

believed they had been harmed by the dues being deferred, which is an “inherent conflict of

interest.” Finally, Diamante contends that the class representatives indicated that class counsel

was the person primarily making the decisions, which makes them inadequate as class

representatives.

Diamante mischaracterizes the litigation. It does not seek to enjoin the practice of

deferring dues, or to force Diamante to perform its collection “duty.” It asks for the circuit

court to declare whether Diamante’s past practices, including not collecting dues, made it

inequitable to enforce the tie-in rights against all lot owners. As the circuit court found,

because every lot in the Diamante subdivisions is burdened by the supplemental declarations,

there is no conflict between the class representatives and those proposed class members who

are currently enjoying deferred-dues payments. Further, there is no requirement that class

representatives understand and direct every aspect of the litigation. McGinnis, supra. Rule

23.4 requires only “a minimal level of interest in the litigation and a familiarity with the

practices challenged.” McGinnis, 2009 Ark. 151 at 13, 300 S.W.3d at 495. As noted

previously, the circuit court found that the Dyes met the requirements to serve as class

representatives because, in several court appearances, they displayed “interest, familiarity, and

the ability to assist in decision making.” Given these express findings, we hold that the

circuit court did not abuse its discretion in concluding that the adequacy requirement had

been satisfied.

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Diamante next argues that the circuit court abused its discretion by ruling that all class

members have a common claim when the restrictive covenant filed in connection with the

lots owned by the class representatives is different than the restrictive covenant of other class

members. It contends that many of the supplemental declarations are “slightly different.”

Without specifying how, it contends that the “slightly different” language “may make the

obligation of the appellees different from other lot owners.”

Satisfying the commonality requirement of Arkansas Rule of Civil Procedure 23(a)(2)

requires a determination by the circuit court that there are questions of law or fact common

to the class. Williamson v. Sanofi Winthrop Pharms., Inc., 347 Ark. 89, 60 S.W.3d 428 (2001).

Rule 23(a)(2) does not require that all questions of law or fact raised in the litigation be

common; the commonality requirement is met if there is only a single issue common to all

members of the class. Id.

Diamante’s argument conflicts with the circuit court’s finding that commonality rested

not on any conduct on the part of the appellees but on the conduct of Diamante, whose

alleged material breaches of the supplemental declarations, which are common to all members

of the proposed class, have given rise to the question of whether the tie-in rights are

enforceable. Accordingly, because the main claim involved conduct by Diamante that

affected the enforceability of tie-in rights that affect all class members, we cannot say that the

circuit court abused its discretion by concluding that the commonality requirement was met.

Cheqnet Sys., Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995).

Diamante further argues that the circuit court abused its discretion by including

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members of the class whose dues are currently being deferred. It asserts that they do not have

standing to seek declaratory judgment in this case because they do not have a justiciable

controversy. Citing Faigin v. Diamante, 2012 Ark. 8, 386 S.W.3d 372, it asserts that lot

owners who are enjoying deferred-dues payments have no issues in common with lot owners

who are currently being forced to pay Club dues. We disagree.

In Faigin, we upheld a circuit court’s determination that commonality was not

satisfied. Id. There, the cause of action began when Diamante filed a complaint in

foreclosure to enforce its lien on the Faigins’ property. Id. In opposing the foreclosure, the

Faigins attempted to certify a class consisting of all the Diamante lot owners for the purpose

of challenging the same foreclosure rights that are at issue in the case before us. Id.

However, the record in Faigin reflected that, in the proposed class, there were only seven lot

owners whose lots were in foreclosure. Id. This court noted that because the Faigins’ lot was

in foreclosure, their defenses to the complaint in foreclosure were not common to the

overwhelming majority of the proposed class, who were not in foreclosure. Id. We stated:

The fact that other lot owners in the subdivisions might share one or more concerns

with the Faigins is not the same as sharing an element in the underlying cause of

action. The procedural posture of this case requires that the members of the proposed

class share a common defense to the complaint in foreclosure but, as the circuit court

found, they do not.

Id. at 7, 386 S.W.3d at 377. Here, as the appellees note and the circuit court found, all 450

lots of the Diamante subdivisions are subjected to the tie-in rights and all the proposed class

members are burdened by the supplemental declarations that run with their land. Further,

the circuit court stated that the focus of the lawsuit was Diamante’s conduct. Accordingly,

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the entire class shares the factual predicate that allows them to raise the equitable defenses to

enforcement that have been recited above. Therefore, our decision in Faigin does not control

the case before us.

Diamante next argues that the circuit court abused its discretion by including members

of the class who signed documents agreeing to arbitrate controversies pursuant to the

Diamante bylaws. By so agreeing, Diamante contends that the claims or defenses cannot be

“typical” of the claims and defenses of the appellees. It asserts that it will have to determine

which class members’ claims are subject to arbitration, which it believes will leave the

superiority and predominance requirements unsatisfied.

Typicality requires that a sufficient relationship exists between the injury to the named

plaintiff and the conduct affecting the class so that the plaintiff’s claim arises from the same

event or practice or course of conduct that gives rise to the claims of other class members and

may be redressed by pursuing the same legal theory. Campbell v. Asbury Auto., Inc.,

2011 Ark. 157, 381 S.W.3d 21. The essence of the typicality requirement is the conduct of

the defendants and not the varying fact patterns and degree of injury or damage to individual

class members. Id.

Here, the differences in the bylaws and Club membership agreements with regard to

arbitration were found by the circuit court to be of no effect on the pending litigation.

Furthermore, at the time that the circuit court granted class certification, it had already heard

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and rejected Diamante’s motion to compel arbitration.2 Moreover, as the circuit court noted,

the case before us involves a judicial determination of whether Diamante’s conduct has made

it inequitable to enforce the tie-in rights. Accordingly, we hold that the circuit court did not

abuse its discretion in certifying this class.

Diamante next argues that the circuit court abused its discretion by certifying a class

that includes members whose dues were deferred. It contends that a property owner whose

dues have been deferred does not have a claim against it and is not harmed by other lot

owners entering into similar agreements. Citing State Farm Fire & Casualty Co. v. Ledbetter,

355 Ark. 28, 129 S.W.3d 815 (2003), it contends that a class should be defined to include

only those individuals who are actually harmed by the defendant’s conduct.

This argument fails because it depends on the faulty factual predicate that the cause

of action exists to compel Diamante to collect Club dues. Compelling that activity, or

seeking damages for its failure to do so has never been an objective in this lawsuit. As noted

previously, the circuit court found that the objective in this case is for the circuit court to

declare the tie-in rights, which every lot is subjected to, unenforceable. The class is defined

by the owners of lots in the Diamante subdivisions that are burdened by the supplemental

declarations. Accordingly, Diamante’s reliance on Ledbetter is misplaced. Unlike Ledbetter,

the class definition in this case would not require the circuit court to inquire into the facts

of each lot owner’s agreement with the Club in order to determine whether that person is

2

On November 6, 2013, which was prior to submission of this case, that ruling

was affirmed by our court of appeals. Diamante v. Dye, 2013 Ark. App. 630, ___ S.W.3d

____.

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a suitable class member.

Class definition requires only a class description that is definite and administratively

feasible to determine whether a particular person is a member. Baptist Health v. Hutson, 2011

Ark. 210, 382 S.W.3d 662. As noted previously, the circuit court defined the class as current

owners of lots in the Diamante and Diamante Villas subdivisions not including Diamante

itself and entities affiliated with Cooper Land Development, Inc., and the six lots currently

in foreclosure. We cannot say that the circuit abused its discretion in certifying a class with

this definition.

We also reject Diamante’s contention that the circuit court erred in certifying the class

because it failed to satisfy the predominance requirement. Predominance is that requirement

of Rule 23(b) that “the questions of law or fact common to the members of the class

predominate over any questions affecting only individual members.” The starting point in

examining the predominance issue is whether a common wrong has been alleged against the

defendant. Hutson, supra. As we noted previously, the circuit court found that the “issues

related to identical provisions of the supplemental declarations and identical conduct of

[Diamante] common to all the proposed class are at the heart of this declaratory judgment

action.” Diamante’s identification of some extraneous facts relating to differences in

membership agreements do not change the circuit court’s finding of the factual basis for the

lawsuit, and we cannot say that the circuit court abused its discretion in making a conclusion

of law that the predominance requirement had been met.

Likewise, Diamante does not effectively challenge the circuit court’s conclusion that

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the superiority requirement had been met because there is judicial efficiency in having the

ultimate determination on the merits potentially cover up to 330 class members. Superiority

under Rule 23(b) requires “that a class action is superior to other available methods for the

fair and efficient adjudication of the controversy.” The superiority requirement is satisfied

if a class action is the more “efficient” way of handling the case, and it is fair to both sides.

Hutson, supra. Case law has also recognized a requirement that the class be “manageable.”

Id. As we noted in Rosenow v. Alltel Corp., 2010 Ark. 26, 358 S.W.3d 879, the avoidance

of multiple suits lies at the heart of any class-action decision. Here, Diamante relies on the

existence of provisions in the Club membership agreements requiring arbitration of disputes

to assert that the circuit court would be required to determine which class members’ claims

are subject to arbitration as a basis for asserting that there was no judicial economy in

allowing a class-action lawsuit. However, in making this argument, it ignores the factual

findings by the circuit court that the arbitration provisions did not apply to the declaratory-

judgment action before it. Accordingly, we cannot say that the circuit court abused its

discretion in concluding that the superiority requirement had been met.

Lastly, Diamante argues that the last change to the class definition was improper

because it was not made by motion. We cannot find in the record where this issue was raised

and ruled on by the trial court, and we decline to consider it. This court will not address an

argument on appeal if it has not been argued before the circuit court or if a party has failed

to obtain a ruling from that court. Simpson Housing Solutions, LLC v. Hernandez, 2009 Ark.

480, 347 S.W.3d 1.

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We conclude that the circuit court did not abuse its discretion in granting class

certification. Accordingly, we affirm.

Affirmed.

McMillan, McCorkle, Curry & Bennington, LLP, by: Philip McCorkle, for appellant.

Terry P. Diggs, Lawyer, P.A., by: Terrry P. Diggs, for appellees.

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