Faigin v. Diamante
2012 Ark. 8
Ark.2012Background
- Faigins own a Diamante lot subject to covenants requiring full golf-club membership and monthly dues with a lien for unpaid amounts.
- Diamante filed a foreclosure complaint in Saline County alleging the Faigins owed $3,341.91 for dues.
- Faigins answered, denying the debt and claiming material breach by Diamante for deferral of memberships and nonpayment of dues, seeking to invalidate the lien and declaration of unenforceability.
- Faigins moved for class certification and appointment of class counsel to represent all Diamante/Diamante Villas lot owners; Bodge sought subclass certification via intervention.
- Diamante argued class certification was inappropriate because only seven foreclosure cases involved; circuit court denied certification and intervention requests.
- On appeal, the issue is whether Rule 23 requirements, particularly commonality, were satisfied; the court limits review to procedural questions and affirms denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is commonality satisfied? | Faigins contend common defenses arise from Diamante's breach affecting all owners. | Diamante argues most owners are not in breach; defenses are not common to the class. | Commonality lacking; affirmed denial. |
| Did the circuit court improperly consider merits or 12(b)(6) effects in commonality analysis? | Commonality is based on contractual conduct, not merits of foreclosure defense. | Court’s analysis improperly relied on ripeness and potential failures under Rule 12(b)(6). | The court abused by basing part on 12(b)(6) concerns, but result affirmed on lack of commonality. |
Key Cases Cited
- Cheqnet Systems, Inc. v. Montgomery, 322 Ark. 742 (1995) (commonality shown when main claim applies to all members)
- Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261 (1997) (common questions concern applicability of insurance to class members)
- Farm Bureau Mut. Ins. Co. of Ark., Inc. v. Farm Bureau Policy Holders & Members, 323 Ark. 706 (1996) (commonality via class-wide statutory violation and dues issue)
- Carquest of Hot Springs, Inc. v. Gen. Parts, Inc., 367 Ark. 218 (2006) (court may not consider whether plaintiffs will prevail when deciding Rule 23)
- Baptist Health v. Hutson, 2011 Ark. 210 (2011) (class-certification framework and standards)
- Brown v. Kelton, 2011 Ark. 93 (2011) (affirmation of appellate review standard for class actions)