author: ADELE HEDGES, Chief Justice.

text:
    In re SLAVONIC MUTUAL FIRE INSURANCE ASSOCIATION, Relator.
    No. 14-09-01057-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 1, 2010.

      Jeffrey Lee Hoffman, David M. Gunn, Houston, for relator.
    John Steven Mostyn, Rene Michelle Sig-man, Philip Martin Kanayan, Jeffrey H. Uzick, James B. Lewis, Houston, Michael R. Ramsey, Gregory F. Cox, Beaumont, for respondent.
    Panel consists of Chief Justice HEDGES and Justices ANDERSON and FROST.
   OPINION

ADELE HEDGES, Chief Justice.

In this original proceeding, relator, Slavonic Mutual Fire Insurance Association, seeks a writ of mandamus ordering the respondent, the Honorable Mike Miller, presiding judge of the 11th District Court in Harris County, to abate the underlying case filed under cause number 2009-26523, and enforce the appraisal clause in the insurance contract between Slavonic and its insureds, the real parties in interest, Miguel Requena and Leanna Landin-Re-quena. See Tex. Gov’t Code Ann. § 22.221 (Vernon 2004); see also Tex.R.App. P. 52. We conditionally grant the writ.

The Insurance Policy

Slavonic issued a fire and extended coverage insurance policy to the Requenas covering their home, which was damaged by Hurricane Ike on September 12-13, 2008. The policy provides coverage for losses caused by windstorm, hurricane, and hail, among other specified risks. The policy limit on the dwelling is $135,000, and claims are subject to a $500 deductible.

The policy provides that when a loss occurs, the insured must give notice to Slavonic by providing a sworn proof of loss and any reasonably necessary supporting documentation. The parties must then ascertain the amount of the loss. If the parties disagree about the amount of the loss, either party may demand an appraisal. The policy’s appraisal clause provides as follows:

Appraisal. In case the insured and this Company shall fail to agree as to the actual cash value or the amount of loss, then, on the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected within twenty days of such demand. The appraisers shall first select a competent and disinterested umpire; and failing for fifteen days to agree upon such umpire, then, on request of the insured or this Company, such umpire shall be selected by a judge of a district court of a judicial district where the loss occurred. The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences only to the umpire. An award in writing, so itemized, of any two when filed with this Company, shall determine the amount of actual cash value and loss. Each appraiser shall be paid by the party selecting him and the expenses of appraisal and umpire shall be paid by the parties equally.

The insurance policy does not specify a deadline by which either side must request appraisal.

The policy further provides that the loss is not payable until sixty days after the parties have ascertained the amount of the loss, either by agreement or through the appraisal process. The policy specifically provides that “[n]o suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with.”

Appraisal Process

Almost all insurance policies contain provisions specifying appraisal as a means of resolving disputes regarding the “amount of loss” for a covered claim. See State Farm Lloyds v. Johnson, 290 S.W.3d 886, 888 (Tex.2009).' As in this case, appraisal provisions generally provide that either the insui’ed or the insurer may demand an appraisal pursuant to the terms of the policy. See In re Allstate Cty. Mut. Ins. Co., 85 S.W.3d 193, 195 (Tex.2002).

In 1888, the Texas Supreme Court first enforced an appraisal clause similar to the one at issue here. See Scottish Union & Nat’l Ins. Co. v. Clancy, 71 Tex. 5, 8 S.W. 630, 631 (1888) (holding that appraisal was condition precedent to suit); see also Scottish Union & Nat’l Ins. Co. v. Clancy, 83 Tex. 113, 18 S.W. 439, 441 (1892) (holding that insurer’s attempt to adjust and settle claim did not waive its right to appraisal). Where an insurance contract mandates appraisal to resolve the parties’ dispute regarding the value of a loss, and the appraisal provision has not been waived, a trial court abuses its discretion and misapplies the law by refusing to enforce the appraisal provision. Scottish Union, 18 S.W. at 440. More recently, the supreme court has expressed a strong policy in favor of enforcing appraisal clauses in insurance contracts. See State Farm Lloyds, 290 S.W.3d at 891-93 (holding that insurer is bound by appraisal clause to have amount of loss determined, even when dispute also involves questions of causation); Allstate, 85 S.W.3d at 195 (granting mandamus relief to enforce appraisal provision).

The Insurance Code

The Texas Insurance Code mandates prompt payment of claims. See Tex. Ins. Code Ann. §§ 542.051-.061 (Vernon 2009). The act is to be liberally construed to promote its purpose of obtaining prompt payment of insurance claims. Id. § 542.054. An insurer is required to acknowledge receipt of a claim, begin an investigation, and request documentation from its insured within fifteen days of notification of the claim. Tex. Ins.Code Ann. § 542.055(a) (Vernon 2009). The insurer is to notify the claimant in writing of the acceptance or rejection of the claim within fifteen days after it receives the required documentation for proof of loss. Id. § 542.056(a). If the insurer notifies the claimant it requires more time, the acceptance or rejection must be made within forty-five days of the notice. Id. § 542.056(d). Section 542.057 provides that a claim must be paid within five business days after notice that the claim, or a part of the claim, will be paid. Tex. Ins. Code Ann. § 542.057(a) (Vernon 2009). An insurer’s failure to comply with the statutorily prescribed timeframes will subject the insurer to damages, including interest on the amount of the claim and attorney’s fees. See Tex. Ins.Code. Ann. §§ 542.058(a), 542.060 (Vernon 2009).

The Claim

The Requenas reported the loss on September 14, 2008, immediately after the hurricane struck the Houston area. Slavonic assigned the claim to an adjuster, Charlie Vaughn with All-Tex Claims Service, and he inspected the house on September 23, 2008. On September 25, 2008, Vaughn mailed the Requenas a “reservation of rights” letter, stating that “no rights of the company are waived either by taking of a Sworn Proof of Loss or further investigation as to the cause of this loss, or ascertaining the amount of loss and damage that occurred.” On October 10, 2008, Vaughn sent his report to the Requenas. Vaughn determined that the total amount of the loss, after subtracting depreciation and the policy’s deductable, was $13,165.35, which included $1,530.70 for roof repairs. Slavonic then sent the Re-quenas a check in that amount.

On October 17, 2008, the Requenas notified Slavonic that they had received the check. The Requenas stated that the roofer wanted to replace the entire roof and the homeowner’s association would not permit only a partial replacement of the roof. Slavonic agreed to arrange for a re-inspection.

On December 17, 2008, another adjuster, Darren Richards, re-inspected the property and found that the entire roof had already been replaced. The Requenas provided Richards receipts and a copy of the contract for the new roof at a cost of $7,560, as well as a receipt for $350 for air conditioning duct work that was not included in Vaughn’s original estimate. Richards sent his report to Slavonic on January 14, 2009. After reviewing the report, Slavonic sent the Requenas a check for $350 for the duct work, and on January 16, 2009, it sent a letter explaining that a “complete roof replacement was not justified due to the limited area of damage.”

The Lawsuit

There was no further communication until the underlying suit was filed in April of 2009 and served on Slavonic on May 8, 2009. Included with the petition was a “Notice Letter” claiming entitlement to economic damages of $449,887.50, plus $50,000 for mental anguish and $116,629.16 for costs and attorney’s fees. This suit was transferred to the 11th District Court as part of a special docket of cases arising from residential property insurance claims resulting from Hurricane Ike.

On May 14, 2009, Slavonic invoked its right to appraisal under the policy. After receiving no response from opposing counsel, on May 29, 2009, Slavonic filed a combined plea in abatement and motion to compel appraisal. In response, the Reque-nas claimed Slavonic waived its right to appraisal. Alter briefing and several hearings, on November 12, 2009, the trial court ultimately denied Slavonic’s motion, finding waiver. Slavonic then filed this mandamus proceeding.

Mandamus Review

Mandamus relief is available if the trial court abuses its discretion, either in resolving factual issues or in determining legal principles, when there is no other adequate remedy by law. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to analyze or apply the law correctly. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005).

The refusal to enforce a contract according to its terms constitutes an abuse of discretion that may be subject to mandamus relief. See, e.g., Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272-73 (Tex.1992) (arbitration clause); In re Prudential, 148 S.W.3d 124, 135 (Tex.2004) (jury waiver clause); In re AIU Ins. Co., 148 S.W.3d 109, 114 (Tex.2004) (forum selection clause). The Texas Supreme Court has held that a trial court’s failure to enforce an appraisal clause is an error of law constituting an abuse of discretion that cannot be remedied by appeal. Allstate, 85 S.W.3d at 195-96.

Trial Court’s Waiver Finding

In its sole issue, Slavonic asserts that mandamus should issue to enforce the appraisal clause because it did not waive its right to appraisal.

In general, parties may waive contractual rights. See Perry Homes v. Cull, 258 S.W.3d 580, 593 (Tex.2008) (finding no waiver of arbitration). Waiver is the intentional relinquishment of a known right, or intentional conduct inconsistent with claiming that right. In re General Elec. Capital Corp., 203 S.W.3d 314, 316 (Tex.2006) (orig. proceeding). Waiver is largely a matter of intent, and for implied waiver to be found through a party’s actions, intent must be clearly demonstrated by the surrounding facts and circumstances. Jernigan v. Langley, 111 S.W.3d 153, 156-57 (Tex.2003) (per curiam); see also Van I.S.D. v. McCarty, 165 S.W.3d 351, 353 (Tex.2005) (“While waiver may sometimes be established by conduct, that conduct must be unequivocally inconsistent with claiming a known right.”).

Waiver is ordinarily a question of fact, but when the facts are admitted or clearly established, it becomes a question of law. Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 643 (Tex.1996); cf. In re Acadia Ins. Co., 279 S.W.3d 777, 780 (Tex.App.-Amarillo 2007, orig. proceeding) (denying mandamus relief where trial court resolved factual dispute concerning whether insurer waived its right to appraisal). The trial court and parties in this case agree that the facts concerning the actions leading to Slavonic’s demand for an appraisal are undisputed. We must determine whether the trial court correctly applied the law to these undisputed facts.

First, the policy in this case contains an “anti-waiver” clause, which provides as follows: “No provision, stipulation, or forfeiture of this policy shall be waived by any requirement, act, or proceedings of this Company relating to investigation, appraisal, or adjustment of any loss.” The Texas Supreme Court has given weight to such an anti-waiver clause in insurance cases. See American Central Ins. Co. v. Bass, 90 Tex. 380, 38 S.W. 1119 (1897) (holding that insurer did not waive right to contest liability by proceeding with appraisal where policy contained an anti-waiver clause); see also Zwick v. Lodewijk Corp., 847 S.W.2d 316, 318 (Tex.App.-Texarkana 1993, writ denied) (recognizing that while an anti-waiver clause may itself be waived, it is some evidence of non-waiver). In addition, shortly after the claim was filed in 2008, Slavonic sent the Requenas written notice that it did not waive its rights in a reservation of rights letter quoted above. This action clearly demonstrated Slavonic’s intent not to waive its right to appraisal.

After the loss was reported, Slavonic inspected the property, and when the Re-quenas were not satisfied with the value Slavonic assigned for the amount of loss, Slavonic ordered a re-inspection and added reimbursement for ductwork to the covered loss. In January of 2009, Slavonic advised the Requenas it would not cover replacement of the entire roof. No further communication was had between the parties until suit was filed. The Requenas’ demand was served on Slavonic with their suit on May 8, 2009. Slavonic invoked its right to an appraisal six days after it received the demand letter.

The Requenas assert that Slavonic waived its right to appraisal because it waited an unreasonable amount of time to demand it. They contend that Slavonic’s May 14, 2009, demand came 118 days after it was clear that the parties disagreed about the amount of the loss (January 2009). They complain that Slavonic waited to demand an appraisal until after suit was filed, four months after its January 2009 letter stating that a complete roof replacement was not warranted by the damage, and seven months after it first learned that the Requenas disagreed with the adjustment of the loss. We acknowledge that silence or inaction for an unreasonable period of time may show an intention to yield a known right. Tenneco, 925 S.W.2d at 643 (finding waiver of operating agreement’s terms by three-year silence after transfer of shares).

We are not persuaded by the Requenas’ citation to a recent federal case in which the court found waiver. See Sanchez v. Prop. & Cas. Ins. Co. of Hartford, 2010 WL 413687 (S.D.Tex. Jan. 27, 2010) (order). The insured disputed the adjustment on November 1, 2008, and no further communication was had until citation for the suit was served on Hartford on May 12, 2009. Id. *2. The federal court found that Hartford’s delay in invoking the appraisal clause in its insurance contract established waiver as a matter of law. Id. *8. The court cited the following facts: two months after the suit was removed to federal court, Hartford sought abatement due to deficient notice; Hartford also sought abatement to pursue mediation; and about one month after the unsuccessful mediation, Hartford sought to invoke the appraisal clause. Id. *2. We find those facts distinguishable from the case before us, in which appraisal was invoked six days after receipt of the demand letter and service of the lawsuit.

We agree, however, that the date of disagreement, or impasse, is the point of reference to determine whether a demand for an appraisal is made within a reasonable time. Though this court’s opinion in Laas v. State Farm is unpublished and has no precedential value, we agree with the reasoning set forth in the opinion. See Laas v. State Farm Mut. Auto. Ins. Co., No. 14-98-00488-CV, 2000 WL 1125287 at *7 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (not designated for publication). In Laas, the date of disagreement was the date of the insureds’ final demand letter after State Farm’s offer. Id. This court concluded that the demand for appraisal was timely and reasonable when made nine days after the date of disagreement. Id. The date of disagreement in this case was not established until the Requenas sent their demand letter to Slavonic stating they did not accept Slavonic’s determination of their claim as set forth in its Januaiy 16, 2009, letter. The timing of Slavonic’s demand for an appraisal six days after receipt of the Requenas’ demand letter was reasonable.

We decline to follow the intermediate court authorities cited by the Requenas on the issue of waiver. These opinions do not rely on Texas Supreme Court authority and are unpersuasive. See Internat'l Serv. Ins. Co. v. Brodie, 337 S.W.2d 414, 417-18 (Tex.Civ.App.-Fort Worth 1960, writ ref'd n.r.e.); Gulf Ins. Co. v. Carroll, 330 S.W.2d 227, 231-32 (Tex.Civ.App.-Waco 1959, no writ); Boston Ins. Co. v. Kirby, 281 S.W. 275, 276 (Tex.Civ.App.-Eastland 1926, no writ).

The test for waiver of the right to appraisal is set forth in Scottish Union, in which the supreme court held:

To constitute waiver, the acts relied on must be such as are reasonably calculated to induce the assured to believe that a compliance by him with the terms and requirements of the policy is not desired, or would be of no effect if performed. The acts relied on must amount to a denial of liability, or a refusal to pay the loss.

71 Tex. at 10, 8 S.W. at 632. Applying this established test, we conclude that there is no evidence in this record constituting waiver of the right to appraisal. As in Scottish Union, there is no evidence that Slavonic denied liability or that it would refuse to pay the amount of loss that would be determined by appraisal. See id. We find no evidence of the requisite intent necessary to establish waiver. See Jerni-gan, 111 S.W.3d at 156. We conclude that the trial court abused its discretion in finding Slavonic waived its right to enforce the appraisal clause. See In re State Farm Lloyds, Inc., 170 S.W.3d 629, 634-35 (Tex.App.-El Paso 2005, orig. proceeding) (conditionally granting mandamus relief where insured provided no evidence of waiver of appraisal); In re Clarendon Ins. Co., No. 2-04-305-CV, 2004 WL 2984916 (Tex.App.-Fort Worth Dec. 23, 2004, orig. proceeding) (mem. op.) (finding no waiver and granting mandamus relief to enforce appraisal clause); Vanguard Underwriters Ins. Co. v. Smith, 999 S.W.2d 448, 451 (Tex.App.-Amarillo 1999, orig. proceeding) (granting mandamus relief and holding that trial court abused its discretion by refusing to enforce appraisal provision).

Although not dispositive of the waiver issue, we briefly address the Requenas’ contention that the delay in invoking the appraisal provision violates the prompt payment provisions of the Insurance Code. The Requenas complain that the policy in this case, which was issued in 2003, is an older form that differs from the new HOB policy incorporating the prompt payment deadlines in the Insurance Code. Both policy forms contain a similar appraisal provision, and they do not specify a deadline for completing the appraisal process.

The Insurance Code also does not expressly provide a deadline for completion of the appraisal process. Texas courts considering the issue have concluded that full and timely payment of an appraisal award under the policy precludes an award of penalties under the Insurance Code’s prompt payment provisions as a matter of law. See Amine v. Liberty Lloyds of Tex. Ins. Co., No. 01-06-00396-CV, 2007 WL 2264477, *4 (Tex.App.-Houston. [1st Dist.] Aug. 9, 2007, no pet.) (mem. op.) (holding that where insurer makes timely payment pursuant to an appraisal award, there is no violation of the code’s prompt payment deadlines); DeLaGarza v. State Farm Mut. Auto. Ins. Co., 175 S.W.3d 29, 32-33 (Tex.App.-Dallas 2005), supp. op. on reh’g, 181 S.W.3d 755, 756 (Tex.App.-Dallas 2005, pet. denied) (holding that insurer did not fail to meet insurance code deadline for making payment because duty to send payment never arose when insured did not notify insurer of his willingness to settle for lesser amount than full claim); Breshears v. State Farm Lloyds, 155 S.W.3d 340, 344-45 (Tex.App.-Corpus Christi 2004, pet. denied) (holding that insurer did not breach contract and insureds were not entitled to payment of penalty, even though final payment was delayed until completion of appraisal process).

Remedy

Before concluding that the writ should issue, we must also determine whether Slavonic has an adequate remedy by appeal. In making this determination, we consider whether the benefits of mandamus review outweigh the detriments. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex.2008) (orig. proceeding). This determination requires a “careful balance of jurisprudential considerations” that involves both “public and private interests.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004). “Mandamus review of interlocutory rulings may be “essential to preserve important substantive and procedural rights ..., allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” Id. at 136.

The denial of an appraisal vitiates or severely compromises the defendant’s ability to defend a breach-of-contract claim. Allstate, 85 S.W.3d at 196. Therefore, an appeal will not be an adequate remedy. Id.; State Farm Lloyds, 170 S.W.3d at 634-35. As was the case in Allstate, the trial court’s action denies Slavonic the development of proof going to the heart of its case, and therefore it cannot be remedied by appeal. See Allstate, 85 S.W.3d at 196. We hold that an appeal is an inadequate remedy for the denial of an appraisal in this case.

While a trial court has no discretion to deny an appraisal, it does have some discretion as to the timing of the appraisal. See Allstate, 85 S.W.3d at 196 (noting appraisal can go forward and declining to order abatement). Therefore, we must consider whether the trial court should abate the case during the appraisal process. The failure to grant a motion to abate is not ordinarily subject to mandamus. See Abor v. Black, 695 S.W.2d 564, 567 (Tex.1985) (declining to issue mandamus to correct an “incidental ruling” denying abatement).

The insurance policy in this case specifically provides that all requirements of the policy must be met before suit may be filed. Therefore, appraisal is a condition precedent to suit. See State Farm Lloyds, 290 S.W.3d at 894. The failure to submit a claim to an appraisal under the terms of an insurance policy before bringing a lawsuit is grounds for sustaining a plea in abatement. See Standard Fire Ins. Co. v. Fraiman, 514 S.W.2d 343, 345 (Tex.Civ.App.-Houston [14th Dist.] 1974, no writ) (holding insured may demand appraisal even when insurer has waived the condition precedent). Parties have a right to rely on the plain language of the policy providing for appraisal upon written demand by either party. Id. at 346.

In State Farm Lloyds, the Texas Supreme Court recognized that “appraisal is intended to take place before suit is filed.” 290 S.W.3d at 894. The court explained that because appraisals do not require attorneys, lawsuits, pleadings, subpoenas, or hearings, appraisals can generally be completed with less time and expense. Id. The court further observed that because the amount of loss must be determined in every property damage claim, appraisals should generally go forward without preemptive intervention by the courts. Id. at 895.

An insurer’s remedy to enforce a condition precedent in its policy is abatement of the case. Lidawi v. Progressive County Mut. Ins. Co., 112 S.W.3d 725, 735 (Tex.App.-Houston [14th Dist.] 2003, no pet.). In granting mandamus relief from the trial court’s denial of a motion to compel appraisal, the Amarillo Court of Appeals directed the trial court to abate the underlying lawsuit until the completion of appraisal. Vanguard, 999 S.W.2d at 451. As in this case, in addition to the appraisal provision, the policy contained a provision that a lawsuit could not be brought before compliance with the policy provisions. See id. at 450. Concluding that this provision of the policy was unambiguous, the court held that the insurer was “clearly entitled to have the appraisal procedure followed and the underlying suit abated until the completion of that procedure.” Id. at 451; see also In re Foremost County Mut. Ins. Co., 172 S.W.3d 128, 135 (Tex.App.-Beaumont 2005, orig. proceeding) (relying on Prudential to grant mandamus relief and order abatement of the case where the insured failed to comply with a condition precedent requiring the insured to submit to an examination under oath).

We conclude that because appraisal is a condition precedent to suit, abatement is appropriate in this case. The trial court abused its discretion in denying Slavonic’s request to abate the case during the appraisal process. We sustain Slavonic’s sole issue.

Conclusion

We therefore conditionally grant the petition for a writ of mandamus and direct the trial court to grant Slavonic’s combined plea in abatement and motion to compel appraisal. The writ will issue only if the trial court fails to act in accordance with this opinion.

      . The Requenas did not file a Proof of Loss form, and there is no evidence that Slavonic furnished them a form. Slavonic processed the claim and made payment as if the Proof of Loss had been filed. Accordingly, we do not address the parties' obligations regarding the requirement to file a Proof of Loss form.

      .While we find no written correspondence from the Requenas, the record contains a memo from Jed Walzel of Slavonic that was faxed to Vaughn, the adjuster, on October 17, 2008. The memo references a phone call from the Requenas and states: "Got their check but roofer only interested in full replacement and homeowner’s assn, excuse. Claims damage & loose shingles over entire roof. I advised we were not responsible for compliance with desires of homeowner's assn, or code compliance upgrade. Wants to talk to Charlie.”

      . The report states: "THIS IS A SUPPLEMENT. Hurricane Ike caused roof damage to front slopes of dwelling which lead to water damage to front rooms of dwelling. Insured is very adamant about being reimbursed for roof replacement. His roofer notes shingles were lifted on all slopes. We are forwarding invoice for your consideration.”

      . The Requenas did not wait sixty days after notice before filing suit as required under the Texas Insurance Code. See Tex. Ins.Code. Ann. § 541.154(a) (Vernon 2009).

      . Because this statute does not address when a party should invoke any contractual right to an appraisal proceeding, it also does not inform the inquiry into what constitutes a reasonable time to invoke this right in the absence of a specified time for doing so in the policy.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2009 Ark. 242
    Kenny TRAVIS, Jr., Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-1320.
    Supreme Court of Arkansas.
    April 30, 2009.
    Craig Lambert, Little Rock, for appellant.
    No response.
   PER CURIAM.

Appellant Kenny Travis, Jr., by and through his counsel Craig Lambert, moves this court for leave to file a belated brief in his Rule 37 appeal. This court affirmed Appellant’s conviction and life sentence for capital murder. Travis v. State, 371 Ark. 621, 269 S.W.3d 341 (2007). Appellant filed a timely petition for postconviction relief, which the Mississippi County Circuit Court denied by order entered February 20, 2008. This court granted Appellant’s motion for belated appeal, finding that Appellant had not received a copy or notice of that order and therefore had demonstrated good cause for filing an untimely notice of appeal. Travis v. State, 375 Ark. 244, 289 S.W.3d 474 (2008) (per curiam).

The record was lodged and briefing commenced on December 11, 2008. Appellant was granted a final extension for filing his brief, which was due in this court on March 6, 2009. On March 3, 2009, Appellant filed a motion to stay briefing schedule and petition for writ of certiorari to complete the record, alleging that a coroner’s report had been filed with the circuit court on February 26, 2008, six days after the circuit court denied Appellant’s petition for postconviction relief. This court denied the motion to stay briefing schedule and petition for writ of certiorari to complete the record on April 2, 2009. Thereafter, on April 8, 2009, Appellant tendered his brief and filed the instant motion requesting to file the belated brief.

We will accept a criminal appellant’s belated brief to prevent an appeal from being aborted. See Brown v. State, 373 Ark. 453, 284 S.W.3d 481 (2008) (per cu-riam). However, good cause must be shown to grant the motion. See Strom v. State, 356 Ark. 224, 147 S.W.3d 689 (2004) (per curiam) (holding that appellate counsel’s admitted failure to timely file the brief constituted good cause to grant motion for belated brief); see also In re Belated Appeals in Criminal Cases, 265 Ark. App’x 964 (1979) (per curiam).

Here, Appellant’s counsel accepts full responsibility for failing to timely file Appellant’s brief while awaiting this court’s ruling on the motion to stay briefing schedule and petition for writ of certiorari to complete the record. Accordingly, we grant the motion to file a belated brief and forward a copy of this order to this court’s Committee on Professional Conduct.

Motion granted.

      . Appellant's motion is captioned as one for leave lo file opening brief out-of-time, which we will treat as a motion for belated brief.


author: ELANA CUNNINGHAM WILLS, Justice.

text:
    2009 Ark. 258
    John William “Bill” SEAMSTER, Jr., Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-1331.
    Supreme Court of Arkansas.
    May 7, 2009.
    Rehearing Denied June 18, 2009.

      Sam Sexton, III, Fort Smith, for appellant.
    Dustin McDaniel, Att’y Gen., by LeaAnn J. Irvin, Ass’t Att’y Gen., for appellee.
   ELANA CUNNINGHAM WILLS, Justice.

_L¡This court granted the State’s petition to review a decision by the court of appeals in Seamster v. State, 103 Ark.App. 305, 288 S.W.3d 723 (2008). At issue is whether the Crawford County Circuit Court erred in revoking appellant Seamster’s suspended imposition of sentence (SIS) for first-degree sexual abuse because he failed to complete the Reduction of Sexual Victimization Program (RSVP) — a course of treatment for sexual offenders incarcerated in the Arkansas Department of Correction (ADC). The court of appeals reversed the circuit court, holding that the requirement for Seamster to complete RSVP was solely a “condition of incarceration,” rather than a condition of his SIS. We affirm the | gdrcuit court’s order revoking Seamster’s SIS.

Seamster entered a plea of nolo conten-dere to two counts of first-degree sexual abuse on February 21, 2001. As part of his plea, Seamster agreed to a recommended sentence of six years of incarceration in the ADC on one count, and ten years’ SIS on the second count. Further, in Seamster’s signed “Plea Statement,” he agreed to complete RSVP. In a separate document entitled “Conditions of Suspension or Probation” that Seamster also signed on February 21, 2001, he agreed to “complete Aftercare Program as may be ordered or recommended by RSVP program.” Under the terms of the negotiated plea, the circuit court entered a judgment and commitment order on February 23, 2001, sentencing Seamster to six years of incarceration in the ADC on one count of sexual abuse, and ten years’ SIS on the other count. On page four of the judgment and commitment order, a document entitled “Additional Terms/Conditions of Disposition” included the following provision: “DEFENDANT IS TO ENROLL IN, AND COMPLETE RSVP PROGRAM PRIOR TO BEING RELEASED FROM ADC. SENTENCES ARE TO RUN CONCURRENT.”

Seamster was released from incarceration on March 6, 2007, after completing his six-year sentence. On March 14, 2007, the Crawford County Prosecuting Attorney filed a petition to revoke Seamster’s SIS because he “failed to complete the RSVP Program, and has failed to comply with the After Care Program.” The circuit court granted the petition and sentenced Seam-ster to an additional six years in prison. On appeal, the court of appeals held in a 4-2 opinion that “[i]t is obvious to us from the record that participation in RSVP was a condition of Seamster’s incarceration, not his SIS. Accordingly, the trial court erred pin finding that Seamster’s failure to complete RSVP justified revoking his SIS.” Seamster, 103 Ark.App. at 307, 288 S.W.3d at 725.

When this court grants a petition for review of a court of appeals decision, we review the case as though it had originally been filed with this court. Brookshire v. Adcock, 2009 Ark. 207, 307 S.W.3d 22. The State bears the burden in a revocation proceeding to prove a violation of a condition of the suspension by a preponderance of the evidence. Ark.Code Ann. § 5-4-309(d) (Repl.2006). Upon review, the trial court’s findings will be upheld unless they are clearly against the preponderance of the evidence. Thompson v. State, 342 Ark. 365, 28 S.W.3d 290 (2000). Evidence that is insufficient to support a criminal conviction can be sufficient to support revocation of a suspended sentence. Id. This court reviews issues of statutory interpretation de novo, because it is for this court to determine the meaning of a statute. McCutchen v. Ark. State Police, 2009 Ark. 204.

Seamster raises three points on appeal. He first argues that the trial court lacked jurisdiction to revoke his SIS, because the conduct asserted by the State as grounds for revocation occurred while he was incarcerated, before his suspended sentence actually began. Seamster cites Ark.Code Ann. § 5-4-307(e) (Repl.2006), which provides that “[i]f a court sentences a defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment, the period of the suspension commences to run on the day the defendant is lawfully set at liberty from the imprisonment.”

Seamster relies principally on the decision in Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003), to support his argument that the period of his suspended sentence did |4not commence until his release from incarceration. Harness, however, is distinguishable from the facts of the present case. In Harness, the appellant received a sentence of imprisonment with an additional period of suspended sentence for a single crime. Seamster, by contrast, received a sentence of imprisonment for one crime, and a suspended sentence for his second crime. Under § 5-4-307(a), “[e]xcept as provided in subsection (c) of this section, a period of suspension or probation commences to run on the day it is imposed,” and § 5-4-307(b)(2) provides that “[t]he period of a suspension or probation also runs concurrently with any federal or state term of imprisonment or parole to which a defendant is or becomes subject to during the period of the suspension or probation.” (Emphasis added.) In this ease, Seamster’s judgment and commitment order imposed a six-year term of imprisonment to be served concurrently with a ten-year SIS. Accordingly, the circuit court did not lack jurisdiction to revoke Seamster’s SIS because he failed to complete RSVP; the conduct did not occur prior to the SIS.

For his second point on appeal, Seamster argues the requirement to complete RSVP was a “condition of the sentence of imprisonment” — not a condition of his SIS. He contends that “the ‘Conditions of Suspension or Probation’ form, which [he] was entitled to rely upon as containing the written terms of the suspended imposition of sentence, did not contain any requirement that [he] complete the RSVP Program, but instead required that he ‘[c]omplete Aftercare Program as may be ordered or recommended by RSVP Program.’” Seamster asserts that the requirement to complete RSVP was a “condition of the sentence of imprisonment that could only be completed by being in prison,” and, therefore, |¡“there was no need to put the condition in the ‘Conditions of Probation and Suspension Form’ because it was not part of the conditions of the suspended imposition of sentence.”

Under Ark.Code Ann. § 5-4-303(g), “[i]f the court suspends imposition of sentence on a defendant ... the defendant shall be given a written statement explicitly setting forth the conditions under which he or she is being released.” Seamster signed the “Conditions of Suspension or Probation” document, which included the following acknowledgment:

I hereby certify that I have read, understand and will comply with the terms and conditions of my suspension or probation. I understand that if I violate any of the conditions set out in this agreement, the court can revoke my suspension or probation, and impose any sentence on me that it might have imposed originally for the offense for which I was declared guilty.

Immediately preceding Seamster’s signed acknowledgment, a section of the document entitled “Special Conditions” stated: “1. DEFENDANT TO HAVE NO CONTACT W/ VICTIMS OR FAMILY”; and “2. COMPLETE AFTERCARE PROGRAM AS MAY BE ORDERED OR RECOMMENDED BY RSVP PROGRAM.”

Review of the record shows that the requirement for Seamster to complete RSVP was a condition of his suspended sentence. Although the requirement for Seamster to complete the Aftercare program after release from incarceration was contingent upon a determination by RSVP — “AS MAY BE ORDERED OR RECOMMENDED BY RSVP PROGRAM” — this special condition of Seam-ster’s SIS clearly required his completion of RSVP. This conclusion is reinforced by the fact that Seamster’s signed plea statement required him to complete RSVP. Further, this court has stated that “judgments are generally construed like | (iother instruments and the determinative factor is the intention of the court, gathered from the judgment itself and the record, including the pleadings and the evidence.” Lewis v. State, 336 Ark. 469, 475, 986 S.W.2d 95, 98 (1999) (citing DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993)). Here, the circuit court’s judgment and commitment order included the “Additional Terms/Conditions of Disposition” that listed the terras of the SIS — including the explicit requirement for Seamster “TO ENROLL IN, AND COMPLETE RSVP PROGRAM PRIOR TO BEING RELEASED FROM ADC.” Accordingly, completion of RSVP was a condition of Seamster’s SIS, not a “condition of imprisonment” as he argues.

Alternatively, Seamster contends that, if the requirement to complete RSVP was a condition of his SIS, then it resulted in an illegal sentence because “including the RSVP Program as a condition of a suspended imposition of sentence necessarily requires imprisonment for much longer than the 120-day limit set forth in ArkCode Ann. § 5-4-ft04(d).”7 Sentencing is entirely a matter of statute, see Ark. Code Ann. § 5-4-104(a) (Repl.2006), and a sentence is void or illegal when the trial court lacks the authority to impose it, Donaldson v. State, 370 Ark. 3, 257 S.W.3d 74 (2007).

Section 5-4-304 allows a trial court to impose a period of confinement of up to 120 days in “the county jail, city jail, or other authorized local detentional, correctional, or rehabilitative facility” as part of a suspended sentence or probation. Ark. Code Ann. § 5-4-304(a). In Harness, 352 Ark. at 340-41, 101 S.W.3d at 239, this court noted that the original commentary to § 5-4-304 “explains that this section recognized the practice of Arkansas judges to use the shock of a short period of incarceration to enhance the effectiveness of a subsequent period of suspension or probation by giving the offender a ‘taste’ of imprisonment.”

The 120-day limitation for confinement as a condition of SIS or probation under § 5-4-304(d) is inapplicable here. Seam-ster was not sentenced to a period of confinement in a county jail, city jail, or other local detention facility under § 5-4-304(d) as a condition of his suspended sentence. Instead, he was sentenced to a six-year term of imprisonment in the ADC on one count, along with a ten-year concurrent, suspended sentence on a separate count. Thus, the requirement to complete RSVP as a condition of the SIS did not result in a period of confinement in excess of the limitation provided by § 5-4-304.

For his final point on appeal, Seamster essentially argues that there was no substantial | ^evidence for the circuit court to find that he “inexcusably” violated the conditions of his SIS. Seamster asserts that he “has not located a ‘written statement of the evidence relied on and the reasons for revoking suspension or probation’ as required by Ark. Code Ann. § 5 — 4—310(b)(2)” and, therefore, it is “assumed that no such document was provided.” Although Seam-ster acknowledges that the circuit court made an oral finding that a preponderance of the evidence showed he violated “the terms of his release,” he contends that the circuit court “never indicated that Seam-ster had ‘inexcusably’ violated the condition, as the Court is required to find to revoke the suspended imposition of sentence.”

To the extent that Seamster argues that the circuit court erred because it failed to provide a written statement of the evidence relied upon and the reason for revoking his SIS, that argument was never presented to the circuit court; therefore, it cannot be raised for the first time on appeal. See Brandon v. State, 300 Ark. 32, 776 S.W.2d 345 (1989) (holding that failure to object to circuit court’s omission under § 5-4-310(b)(5) precluded our consideration). Instead, Seamster argued before the circuit court that his failure to complete RSVP was “not a volitional, intentional violation of the terms and conditions of the suspended sentence.” The circuit court rejected this argument and found that a preponderance of the evidence showed that Seamster violated the terms of his SIS.

|nIn order to revoke probation or a suspension, the trial court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Ark. Code Ann. § 5-4-309(d). The trial court’s findings will be upheld on appeal unless they are clearly against the preponderance of the evidence; because a determination of a preponderance of the evidence turns on questions of credibility and weight to be given to the testimony, the appellate court defers to the trial judge’s superior position to make such determinations. See Jones v. State, 355 Ark. 630, 144 S.W.3d 254 (2004).

Here, it was undisputed that Seamster never completed RSVP, and evidence was presented that showed he refused to comply with the program’s entry requirements, including a letter written by Seamster in which he refused to admit guilt for his crimes in order to participate in RSVP, and stated, “If you ever lift the admission of guilt [requirement] I would consider taking the program.” Thus, the circuit court’s finding that Seamster inexcusably violated a condition of SIS—a condition he agreed to in return for a recommended sentence of six years on one count of first-degree sexual abuse and SIS on the second count—is not clearly against the preponderance of the evidence.

|inIf a court suspends imposition of sentence or places a defendant on probation, it may impose conditions that “are reasonably necessary to assist the defendant in leading a law-abiding life,” Ark.Code Ann. § 5-4-303(a), and the court may require the defendant to satisfy any condition reasonably related to the defendant’s rehabilitation, Ark.Code Ann. § 5-4-303(c)(10). The requirement for Seamster to complete RSVP — a rehabilitative program — was a condition of his SIS, and the circuit court’s finding that Seamster inexcusably violated that condition of his SIS is not clearly against the preponderance of the evidence. Accordingly, we affirm the circuit court’s order revoking Seamster’s SIS and reverse the court of appeals.

Circuit court affirmed; court of appeals reversed. Motion to strike dismissed as moot.

      . The court of appeals also agreed with Seam-ster's contention that no other grounds for revocation of his SIS existed, concluding that, although one condition of Seamster’s SIS required him to "complete Aftercare Program as may be ordered or recommended by RSVP Program,” RSVP never ordered or recommended such action.

      . The judgment and commitment order also reflected the other "Special Condition” listed in the "Conditions of Suspension or Probation” document, prohibiting Seamster from having any contact with his victims or their families.

      . Additionally, it should be noted that a court loses jurisdiction to amend or modify a sentence once it is put into execution. E.g., Green v. State, 2009 Ark. 113, - S.W.3d -; Gavin v. State, 354 Ark. 425, 125 S.W.3d 189 (2003). A sentence is put into execution when a trial court issues a judgment and commitment order. Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003). Thus, it is unclear exactly what Seamster and the court of appeals mean by use of the terms "condition of a sentence of imprisonment” and "condition of incarceration” regarding Seamster’s six-year sentence.

      .It appears from testimony and parties' arguments that RSVP requires approximately eighteen months to complete.

      . Seamster cites Ark.Code Ann. § 5-4-310(b)(2) for the requirement that a written statement of evidence and reasons must be provided to a defendant upon revocation of a suspended sentence or probation. However, he apparently intended to refer to Ark.Code Ann. § 5-4-310(b)(5), where the provision is actually located. Section 5-4-310(b)(2) provides that a revocation hearing is to be conducted by the court that imposed the suspended sentence or probation.

      . Seamster’s obligation to participate in the Aftercare program under the conditions of his SIS was contingent on whether it was “ordered or recommended by the RSVP Program.” Because Seamster never entered or completed RSVP in the first place, and because we hold that RSVP was a condition of his SIS, the Aftercare program is irrelevant to this appeal. Seamster's violation of the requirement to enroll in and complete RSVP alone is sufficient to sustain an order revoking a suspended sentence. See Ark.Code Ann. § 5-4-309 (Repl.2006); see also Phillips v. State, 101 Ark.App. 190, 272 S.W.3d 123 (2008). As a consequence, Seamster’s motion to strike portions of the State's supplemental reply brief on this point is moot.


author: ELANA CUNNINGHAM WILLS, Justice. ANNABELLE CLINTON IMBER, Justice,

text:
    2009 Ark. 259
    UNION PACIFIC RAILROAD; Herbert C. Stuart; Rodney Wayne Woods; and Ronnie Charles Glover, Appellants, v. Victor S. VICKERS; Robert Udell, Administrator of the Estate of Tracey Udell, Deceased; and James Freeman, Individually and on Behalf of All Other Persons Similarly Situated, Appellees.
    No. 08-934.
    Supreme Court of Arkansas.
    May 7, 2009.

      Bryan Cave LLP, by: John Michael Clear, Elizabeth C. Carver, Daniel M. O’Keefe, and James R. Wyrseh; Patton Roberts, PLLC, by: Sean F. Rommel; and Friday, Eldredge & Clark, by: Robert S. Shafer, Kevin A. Crass, and Scott H. Tucker, Little Rock, for appellants.
    Duncan Firm, P.A., by: Phillip J. Duncan, and James H. Bartolomei, Little Rock; Davis Bethune & Jones, by: Thomas C. Jones and Jose M. Bautista, Kansas City, MO; Roberts Law Firm, P.A., by: Richard Quintus and Mike Roberts, Little Rock; Brian G. Brooks; Dodson & Shaw, by: Nelson Shaw; and Law Office of Danny Cook, by: Danny J. Cook, Texarkana, TX, for appellees.
    Welch and Kitchens, LLC, by: Morgan E. Welch, North Little Rock, for amicus curiae Arkansas Trial Lawyers Association.
    Lax, Vaughan, Fortson, McKenzie & Rowe, P.A., by: Roger D. Rowe, Little Rock, for amicus curiae Association of American Railroads.
    National Chamber Litigation Center, Inc., by: Robin S. Conrad; Winston & Strawn LLP, by: Gene C. Schaerr, Steffen N. Johnson, Andrew C. Nichols, and Jacob R. Loshin; Williams & Anderson PLC, by: Jess Askew III, Little Rock, for amici curiae the Chamber of Commerce of the United States of America, the Arkansas State Chamber of Commerce, and the Associated Industries of Arkansas, Inc.
    Quattlebaum, Grooms, Tull & Burrow PLLC, by: Steven W. Quattlebaum, Michael N. Shannon and Jennifer L. We-thington, Little Rock, for amicus curiae the Product Liability Advisory Council, Inc.
   ELANA CUNNINGHAM WILLS, Justice.

| TThis is an interlocutory appeal from a class certification order entered by the Lafayette County Circuit Court on April 16, 2008. Appellee Victor S. Vickers was injured in a collision with a Union Pacific train on December 31, 2001; appellee Robert Udell is the father of Tracey Udell, who died as the result of injuries sustained in a collision 'with a Union Pacific train in 1999; and appellee James Freeman suffered injures in a 1998 collision with a Union Pacific train. Vickers, Udell, and Freeman all entered into settlement agreements with Union Pacific whereby they released Union Pacific from any future claims.

|20n February 14, 2005, Vickers and Udell filed a class-action complaint against Union Pacific Railroad (“Union Pacific”) and several of Union Pacific’s employees. The complaint alleged that, shortly after the accidents described above, Union Pacific sought out the injured individuals in order to settle their claims and release Union Pacific from liability. The complaint further alleged that Union Pacific informed the injured persons that they should not hire an attorney; that getting an attorney would cause delay; that obtaining the advice of an attorney would not benefit them; and that an attorney would cost them more than it would benefit them. In addition, the plaintiffs asserted that, by developing a relationship of confidence and trust with the injured parties, Union Pacific gained a position to exercise influence over them and used that position to settle its claims with the accident victims for amounts lower than the fair and reasonable value of the claims.

In the complaint, the plaintiffs asserted that Union Pacific had made similar representations to all the members of the proposed class, which consisted of those individuals who had settled claims with Union Pacific “as a result of [Union Pacific’s] fraudulent concealment, misrepresentation, and/or concealment of material facts that would have caused class members to not settle for the amount settled for and/or to retain an ^attorney independent of [Union Pacific] to represent his interests.” The complaint asserted that there were questions of law and fact common to all class members, including, among others, the questions of whether Union Pacific engaged in business practices of settlement that violated the Arkansas Deceptive Trade Practices Act (ADTPA) and whether Union Pacific and the individual defendants had illegally practiced law.

Union Pacific first moved to dismiss the complaint on March 18, 2005, arguing that, because the plaintiffs’ claims were barred by their releases, the complaint failed to state facts upon which relief could be granted. Union Pacific also asserted that the complaint did not state a claim under the ADTPA because the plaintiffs were not consumers and that it failed to state facts supporting a claim for the unauthorized practice of law. The circuit court denied Union Pacific’s motion to dismiss on January 16, 2007.

The plaintiffs filed their motion for class certification on June 1, 2007. In this motion, they argued that Union Pacific engaged in the same pattern of conduct with respect to each putative class member, and that this common “unlawful course of conduct and practice” warranted certification as a class action. Noting that a common course of conduct generally defeats individual issues regarding causation and damages, the plaintiffs urged that | ¿their claims were founded on a common fraudulent scheme or plan used by Union Pacific to settle claims with injured individuals for less than the fair value of those claims.

Union Pacific responded on July 2, 2007, asserting that there was no common pattern in conducting settlement negotiations and that each settlement negotiation was “individual and unique,” turning on oral discussions that were different for every putative class member. Union Pacific further argued that, despite extensive discovery, the plaintiffs’ motion for class certification was “bereft of any mention of any facts establishing any common pattern or predominant classwide issue suitable for class treatment.” Further, Union Pacific contended that the proposed class “depended] on individual determinations on a case-by-case basis as to whether someone is in or out of the proposed class.” Thus, the claims were not suitable for class treatment “because each cause of action requires individual fact-finding as to the content of oral discussions between hundreds of different claimants and at least twenty different UP claims representatives.” In the absence of a predominant issue that was common to the entire class, Union Pacific argued, class certification was inappropriate.

The circuit court held a hearing on the plaintiffs’ class-certification motion in October 2007. At that time, the plaintiffs altered the definition of their class and proposed a set of common issues of law and fact. On April 16, 2008, the circuit court entered an order granting class certification. In its order, the court adopted the precedent submitted |fiby the plaintiffs and made numerous factual findings. Among them, the court found that, in approximately 1992, Union Pacific established, as part of a uniform company-wide policy and practice, a claims resolution system to settle claims and potential claims against it. The court found that the company trained its claims representatives in handling claims, and its policy was to contact injured persons within twenty-four to forty-eight hours of the incident to initiate the settling of claims against the company. The court further found that, as part of the settlement process, Union Pacific would prepare a release and obtain the injured person’s signature on it. Additionally, the court determined that the result of this process was Union Pacific’s “obtaining substantial economic benefits by saving money on the amount of claims paid out, avoiding additional litigation expenses ... [and] obtaining full releases from class members for settlement amounts typically and significantly less than the value of a claimant’s claim.”

In certifying the class, the court determined that the plaintiffs had satisfied each of the requirements of Ark. R. Civ. P. 23. The court found that the class would have approximately three hundred members, so the numerosity requirement had been satisfied. The court also determined that the plaintiffs had satisfied the commonality requirement, declaring that there were five questions of fact or law common to all members of the class:

1. Did Defendants prepare or fill in legal documents?
2. Did Defendants select and/or complete legal instruments?
|fi3. Did Defendants advise claimants regarding legal rights?
4. Did Defendants engage in the unauthorized practice of law?
5. Did Defendants engage in deceptive trade practices under the Arkansas Deceptive Trade Practices Act?

The court also found that the representatives’ claims were typical of those of the class, and that the named representatives were adequate to represent the class. Finally, the court found that the common issues predominated over any individual questions and that a class action was the superior method for handling the matter. Accordingly, the court certified the class consisting of “[a]ll unrepresented, non-railroad-employee citizens of Arkansas who settled personal injury or wrongful death claims with Union Pacific from 1992 to February 14, 2005.”

On appeal, Union Pacific challenges the trial court’s ruling regarding only three of the Rule 23 requirements: commonality, predominance, and adequacy. In addition, Union Pacific assigns two other points of error, contending that 1) the circuit court’s order made findings of fact that were unsupported by the record, and 2) the court abused its discretion by including in the class plaintiffs whose settlements had previously been approved by a probate court.

|7We have held that circuit courts are given broad discretion in matters regarding class certification and that we will not reverse a circuit court’s decision to grant or deny class certification absent an abuse of discretion. See Ga.-Pac. Corp. v. Carter, 371 Ark. 295, 265 S.W.3d 107 (2007); Beverly Enters.-Ark., Inc. v. Thomas, 370 Ark. 310, 259 S.W.3d 445 (2007). When reviewing 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. Ga.-Pac., supra. We have stated:

[T]he issue of whether to certify a class is not determined by whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met. We have also observed that it is totally immaterial whether the petition will succeed on the merits or even if it states a cause of action. An order denying or granting class certification is separate from the merits of the case. Although we do not delve into the merits of the underlying claims in a potential class-action case, we will review the trial court’s order to determine whether the requirements of Rule 23 are satisfied.

Am. Abstract & Title Co. v. Rice, 358 Ark. 1, 186 S.W.3d 705 (2004) (internal citations omitted).

Rule 23 of the Arkansas Rules of Civil Procedure governs class actions and class certification. The rule provides, in pertinent part, as follows:

(a) Prerequisites to Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties and their counsel will fairly and adequately protect the interests of the class.
h(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

This court has reviewed the provisions of Rule 23 on numerous occasions and has held that, in order for a class-action suit to be certified, six factors must be met. Specifically, the party seeking certification must establish: (1) numerosity; (2) commonality; (3) predominance; (4) typicality; (5) superiority; and (6) adequacy. Williamson v. Sanofi Winthrop Pharm., Inc., 347 Ark. 89, 60 S.W.3d 428 (2001).

Because Union Pacific first challenges the trial court’s conclusions regarding commonality and predominance, we begin our analysis by setting out the tests for those two Rule 23 requirements. Rule 23(a)(2) of the Arkansas Rules of Civil Procedure requires a determination by the trial court that “there are questions of law or fact common to the class.” See also Williamson, 347 Ark. at 96, 60 S.W.3d at 432. In Williamson, this court noted that, under our case law, this requirement is case-specific. Id. There, the court cited Professor Newberg’s treatise on class actions as follows:

[T]he common question prerequisite is interdependent with the notion of join-der impracticability under Rule 23(a)(1). Consideration of the common question issue requires an answer to the question: Common to whom?
Rule 23(a)(2) does not require that all questions of law or fact raised in the litigation be common. The test or standard for meeting the rule 23(a)(2) prerequisite is ... Rthat there need be only a single issue common to all members of the class... .When the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.

Id. at 96, 60 S.W.3d at 432 (quoting Herbert B. Newberg, Newberg an Class Actions § 3.10 (3d ed. 1993)).

The Williamson court also noted that the circuit court “must determine what elements in a cause of action are common questions for the purpose of certifying a class.” Id.; see also BPS, Inc. v. Richardson, 341 Ark. 834, 20 S.W.3d 403 (2000). In addition, we have said that 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.” Williamson, 347 Ark. at 97, 60 S.W.3d at 433.

Predominance is a more stringent requirement than commonality. BPS, Inc., supra; Baker v. Wyeth-Ayerst Labs. Div., 338 Ark. 242, 992 S.W.2d 797 (1999) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). If there is a common question of law or fact, the court must then determine whether that common question predominates over questions that affect only individual members. Ark. R. Civ. P. 23(b); Lenders Title Co. v. Chandler, 358 Ark. 66, 186 S.W.3d 695 (2004); BPS, Inc., supra. The starting point for examination of this issue is whether a common wrong is alleged and whether a common question of law | iqor fact exists in the case for all class members. Lenders Title, supra. If so, the next issue is whether the common question predominates over individual questions. Id.

When deciding whether common questions predominate over other questions affecting only individual members, this court does not merely compare the number of individual versus common claims. Id. Rather, this court decides if the preliminary, overarching issues common to all class members “predominate over” the individual issues, which can be resolved during the decertified stage of a bifurcated proceeding. Id. Thus, the mere fact that individual issues and defenses may be raised regarding the recovery of individual members cannot defeat class certification where there are common questions concerning the defendant’s alleged wrongdoing that must be resolved for all class members. Id.; USA Check Cashers of Little Rock v. Island, 349 Ark. 71, 76 S.W.3d 243 (2002).

We turn, then, to determining whether there was a common question of law or fact that predominated over individual issues in this case. The first question to be asked is whether there is at least one single issue common to all members of the class. In its first argument on appeal, Union Pacific contends that the issues that will determine the outcome of this case require individualized consideration and are thus unsuited for class treatment. Union Pacific frames the threshold issues in this case as being whether it engaged in unfair and inappropriate claims settlement practices by making oral misrepresentations, forming improper relationships of trust with the claimants, and omitting In information that its claims representatives had a duty to disclose. Union Pacific contends that these issues require individualized examination of each settlement, which renders class treatment inappropriate.

Union Pacific further urges that the crux of the complaint is that the railroad improperly induced injured parties to settle for less than the true value of their claim. Therefore, each class member’s claim depends on that party’s individual, oral dealings with a Union Pacific claims representative. Union Pacific argues that, in each instance, the court must ask whether the claims agent misrepresented ci'itical facts, omitted information, misled the claimant, or gave advice on which the claimant relied to his or her detriment. Union Pacific contends that these issues, which form the elements of the underlying cause of action, will be unique to every class member, and therefore, there is no one single issue that is common to every member.

The appellees respond that the underlying question is simply whether Union Pacific engaged in the unauthorized practice of law. They argue that the actions of the claims representatives in enticing the claimants to settle were undertaken as part of a “common scheme ... that is repeated time and time again.” The ap-pellees point to the deposition testimony of Herb Stuart, a retired Union Pacific claims director, who stated that “the claims department tries to develop relationships with claimants after these claims happen. It is our intention to develop [a] relationship of trust and confidence.... [T]he goal is to |12resolve the claim while the claimant is still unrepresented.” Therefore, the appellees contend that, regardless of any individual questions that might arise, there is a common, predominant scheme or plan by which Union Pacific undertakes to settle potential claims in all such cases.

Further, the appellees argue that Union Pacific is essentially asking this court to examine the merits of each class member’s claim, which is inappropriate at the class-certification stage. In Williamson, a case involving the commonality requirement of Rule 23, this court affirmed the circuit court’s denial of class certification when the alleged “common wrong” was a purported contract between each individual class member and his or her employer, Sanofi-Winthrop. The basis of the complaint was that Sanofi-Winthrop had created an incentive program with its sales people and had promised to pay bonuses on the basis of the employees’ performances. The named plaintiff, Williamson, argued that there were issues in common for each sales person, such as the fact that they all qualified for the bonus program, they were all Sanofi-Winthrop employees, and none of them received payment under the program. Williamson, 347 Ark. at 93, 60 S.W.3d at 431.

However, this court pointed out that the underlying essence of the action was whether a contract had been formed when Sanofi-Winthrop offered the incentive program and whether each salesperson increased sales in response. The court explained that, although it is improper to examine the merits of the underlying lawsuit, “consideration of |13the elements of the underlying claim is important to determine whether any questions are common to the class and whether those questions will resolve the issue.” Id. at 98, 60 S.W.3d at 433. This court concluded that one element of a contract — whether there had been a meeting of the minds such that a valid contract had been formed — required an individualized inquiry into each party’s understanding of the terms of the alleged contract. Id. at 98, 60 S.W.3d at 434. “Therefore, before even reaching any common question about a breach of contract, each potential class member would have to establish the existence of a contract between himself and Sanofi.... This does not lend itself to a class action[.]” Id. at 97, 60 S.W.3d at 433 (emphasis added). Commonality was thus determined to be lacking.

In the present case, as noted above, the appellees argue that certification was proper because each class member’s claims would be rooted in Union Pacific’s common or uniform course of conduct in handling and settling injury and death claims. Union Pacific, however, responds that it had no uniform scheme or policy and that each claimant was treated individually; therefore, each claimant’s case would have to be examined to determine whether a Union Pacific claims representative engaged in fraudulent or deceptive conduct that amounted to the unauthorized practice of law.

Union Pacific asserts that, in order to recover, the appellees must have the settlements and releases set aside; however, in order to do so, the appellees must prove that |14the releases were fraudulently obtained by the railroad’s claims representatives. This, Union Pacific contends, would clearly involve an examination of the representations made to each individual class member, and answering the five questions certified as common by the circuit court would not resolve that question. See Williamson, 347 Ark. at 98, 60 S.W.3d at 433 (consideration of the elements of the underlying claim is important to determine whether any questions are common to the class and whether those questions will resolve the issue); Mittry v. Bancorpsouth Bank, 360 Ark. 249, 255 n. 3, 200 S.W.3d 869, 872 n. 3 (2005) (same).

The appellees, on the other hand, urge that it is unnecessary to set aside the settlements and releases, because they have an independent action based solely on the unauthorized practice of law, the elements of which are set out in Arkansas Bar Ass’n v. Union National Bank of Little Rock, 224 Ark. 48, 273 S.W.2d 408 (1954), and on the Arkansas Deceptive Trade Practices Act. As formulated by the appellees, the question is simply whether Union Pacific and its representatives engaged in actions that only a lawyer can perform; therefore, answering the questions certified as common by the trial court will directly resolve the issue.

There is thus some disagreement between the parties in this case over the elements of the underlying cause of action. It is not necessary to resolve this aspect of the commonality question, however, because even assuming there are questions that are [ir,common to all class members and that would give rise to a cause of action, we conclude that it cannot be said that any such common issues predominate over individual ones. Class certification is inappropriate where there is “no one set of operative facts [that] establishes liability.” Baker v. Wyeth-Ayerst Labs. Div., 338 Ark. at 247, 992 S.W.2d at 800 (quoting Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir.1988)); see also Mittry v. Bancorpsouth Bank, 360 Ark. 249, 200 S.W.3d 869 (2005).

The circuit court concluded that the five certified questions predominated over any individual issues, finding that there was an “overarching course of wrongful conduct by [Union Pacific] involving, inter alia, the selecting, filling-in, preparation, ... interpreting of legal documents, [and] giving legal advice and settling personal injury claims that predominates over individual considerations.” In reaching this conclusion, the lower court relied on three of this court’s opinions in which we held that claims concerning the unauthorized practice of law satisfied the predominance requirement of Rule 23: Asbury Auto. Group, Inc. v. Palasack, 366 Ark. 601, 237 S.W.3d 462 (2006); Lenders Title Co. v. Chandler, 358 Ark. 66, 186 S.W.3d 695 (2004); and Am. Abstract & Title Co. v. Rice, 358 Ark. 1, 186 S.W.3d 705 (2004).

In Asbmy Automotive, the complaint alleged that Asbury Automotive Group charged a document preparation fee that amounted to the unauthorized practice of law. The circuit court certified a class of all individuals who had paid such a fee during a given time frame. 11fiOn appeal, Asbury argued that the issue common to all class members did not predominate over individual issues, and that any determination of whether it had violated the ADTPA would require individualized inquiries because one element of the ADTPA would involve the question of whether each individual class member relied on a car dealer’s allegedly deceptive conduct. Asbury Auto., 366 Ark. at 610-11, 237 S.W.3d at 469. This court rejected the argument, concluding that the predominating questions concerned the charging of the fee and the basis for charging the fee. “These overarching issues can be resolved before the circuit court reaches any individual issues, such as the degree or reliance of each class member on the misrepresentation.” Id. at 611, 237 S.W.3d at 469.

Similarly, in both Lenders Title, supra, and American Abstract, supra, class action lawsuits alleged that the title companies’ practices of charging a fee for preparing legal documents amounted to the unauthorized practice of law. In Lenders Title, among the common, predominant questions of law established in the circuit court’s order granting class certification were whether the filling in of blanks on a preprinted legal form constitute the practice of law, whether the practices of the title company violated the ADTPA, and whether the fee covered the preparation of legal documents or non-legal documents. Although Lenders Title asserted that these questions required individualized consideration for each class member, this court rejected the argument, concluding that the questions framed by the trial court were “clearly preliminary, threshold matters that must be decided 117before any individual issues can be considered.” Id. at 78, 186 S.W.3d at 702. Because these questions were common, the fact that other individual issues existed could not be used to defeat class certification. Id.

In American Abstract, supra, the complaint also alleged that a title company had engaged in the unauthorized practice of law and had violated the ADTPA. There, the circuit court found that a common wrong had been alleged against American Abstract, and that the common issues predominated over any individual issues. American Abstract, 358 Ark. at 9, 186 S.W.3d at 710. On appeal, American Abstract argued that there were individual issues of reliance and damages, as well as questions regarding whether each class member sought legal advice and whether American Abstract had given legal advice. Id.

As in Lenders Title, supra, this court rejected those arguments, explaining that the “starting point in examining the predominance issue is whether a common wrong has been alleged against the defendant.” Id. at 9-10, 186 S.W.3d at 710. The court noted that the “common wrong” was whether American Abstract had violated the ADTPA by the way it handled and charged document preparation fees for every member of the class. Despite American Abstract’s argument that there were individual questions, such as whether and how much interest each class member’s escrow account had earned, this court concluded that there were issues that were common to each member of the class that could be resolved 11sbefore any of the individual issues. Therefore, the court held that the predominance element of Rule 23 had been satisfied. Id., 186 S.W.3d at 710-11.

In each of these three cases, it was undisputed that the defendant had engaged in a uniform practice, such as charging a document preparation fee, with the class members; therefore, the question of whether that uniform practice constituted the unauthorized practice law clearly predominated over any individual issues. In the present ease, the appellees complain that Union Pacific’s practices in reaching settlements with and obtaining releases from injured individuals constituted the unauthorized practice of law. However, those practices varied from class member to class member. For example, probate documents were filed in connection with the settlement and release of claims in some cases but not in others, and the documents varied from case to case. At oral argument, counsel for the appellees conceded that such documents were filed in court for only approximately fifteen percent of the class members. In addition, the alleged common question of whether Union Pacific advised claimants of their legal rights will vary from person to person. Oral representations made to the plaintiffs by Union Pacific’s claims representatives in order to broker a settlement would have been different in each case.

The appellees attempt to refute this point by citing the deposition testimony of Herb Stuart, a retired Union Pacific claims director, who stated that “the claims department tries to develop relationships with claimants after these claims happen. It is our intention to | indevelop [a] relationship of trust and confidence.... [T]he goal is to resolve the claim while the claimant is still unrepresented.” The appellees argue that Stuart’s testimony supports a conclusion that Union Pacific’s practices were the same with respect to every individual claimant.

However, while Stuart may have described Union Pacific’s general plan or goal for handling claims, his testimony does not prove that there was a common pattern of facts in every case. To the contrary, Stuart also testified that, in evaluating cases, claims representatives would have to consider “various factors, including how the claimants will present themselves, potential expenses, the investigation, the relationship with the client, and other issues ... that might be important.” He stated that “[ejach case and the settlement amount will always be different because of the different facts and circumstances.”

Clearly, there is “no one set of operative facts,” see Baker v. Wyeth-Ayerst, 338 Ark. at 247, 992 S.W.2d at 800, that establishes Union Pacific’s liability to any given class member. In Baker, the plaintiffs attempted to certify a class of individuals who had allegedly suffered injury after taking the “Fen-Phen” combination of diet drugs. The circuit court denied class certification, concluding that the plaintiffs all had different medical histories and conditions; different situations involving informed consent, prescription amounts, and duration of taking the drug; and different injuries and damages. This court affirmed the |2ndenial of class certification, holding that “the only thing the plaintiffs have in common is that they all took one or a combination of the diet drugs listed in the complaint.” Baker, 338 Ark. at 249, 992 S.W.2d at 801; see also Mittry v. Bancorpsouth Bank, supra (individualized questions concerning the defendant’s responsibility for diminished sales prices of class members’ bonds predominated over any common questions, rendering class certification inappropriate); Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995) (where the only common issue was the fact that patients had the same kind of surgical implant, but where all other issues such as informed consent, proximate causation, and damages were different for every class member, common issues did not predominate).

Similarly, in the instant case, the only thing that all of the plaintiffs have in common is that they settled a claim against Union Pacific. In short, there is no “one set of operative facts” that may or may not have constituted the unauthorized practice of law or a violation of the ADTPA. Accordingly, we conclude that there is no common question of law or fact that predominates over the questions affecting only individual class members.

This court has noted that a trial court has broad discretion to allow or disallow an action to proceed as a class action. However, we have never held that a trial court’s discretion is “so broad that it cannot be the subject of a proper review.” Arthur v. Zearley, 320 Ark. at 289, 895 S.W.2d at 936-37. In this case, we hold that the circuit court abused |21its discretion in certifying a class action, and we reverse and remand with instructions to decertify the class.

Special Justice JENNIFER WILSON-HARVEY joins.

IMBER, J., dissents.

GUNTER, J., not participating.

ANNABELLE CLINTON IMBER, Justice,

dissenting.

I respectfully dissent. In my view, the majority opinion fails to abide by two of our most strongly held principles of class-certification review: an abuse-of-discretion standard of review that is highly deferential to the circuit court’s order, and a refusal to delve into the merits of the underlying claims. The result is a higher burden of proof than we have previously required in demonstrating predominance of common issues.

The majority acknowledges that, in reviewing a certification decision, it is “totally immaterial whether the petition will succeed on the merits or even if it states a cause of action.” Am. Abstract & Title Co. v. Rice, 358 Ark. 1, 9, 186 S.W.3d 705, 710 (2004). Yet, the majority implies that this case is unsuitable for class treatment because Appellees have failed to prove that Union Pacific acted in conformity with its stated plan for settling claims in every case. In fact, the majority makes a distinction between demonstrating the existence of a plan or scheme and proving that the plan was adhered to in every instance, suggesting Imthat the former has been done while the latter has not. I submit that Appellees are not required to prove, at this stage, that similar representations were made in every settlement negotiation. They have demonstrated, through the deposition testimony of Herbert Stuart, former director of Union Pacific’s claims department, that Union Pacific had developed a “consistent pattern and practice” for settling claims. This is sufficient for class certification.

More particularly, Stuart testified that the railroad had a pattern of meeting with potential claimants, usually within twenty-four to forty-eight hours of an accident, with the goal of resolving claims while the potential claimants were “still unrepresented” by legal counsel. In the negotiations, claims representatives attempted to establish relationships of trust and confidence with potential claimants and prepared settlement documents to be filed in court. Stuart further testified that the railroad had a consistent pattern and practice of not sharing information gathered in investigations unless specifically requested by the claimant. According to Stuart, the goal was to save money “in the area of the additional expenses, and the claim rep time, and the risk avoidance.” Other evidence in the record establishes that claims representatives routinely discouraged potential claimants from employing legal counsel. Specifically, the proposed class representatives testified that they were told that “a lawyer wouldn’t do you any good” and that “if you get a lawyer, you probably wouldn’t ... get a certain amount ... because most of it would go to the lawyer’s fee.” Additionally, questionnaires completed by potential class members for purposes of the [¡^lawsuit showed that a number of potential claimants were told that they could not hire an attorney, that “it wouldn’t do any good” to hire an attorney, and that an attorney would “get all the money.” Some potential claimants believed that the Union Pacific claims representative with whom they negotiated was acting as their attorney. According to Stuart’s deposition testimony, claims representatives clarified that they were not lawyers only when asked.

We have previously affirmed findings of predominance when the underlying allegations concerned an overall scheme and course of conduct. See, e.g., SEECO, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997). In the SEECO case, plaintiffs asserted various claims rooted in an alleged failure to enforce the provisions of a gas-sales contract and sought damages on several theories, including fraud, breach of contract, and civil conspiracy. Id. at 404-06, 954 S.W.2d at 235-36. This court affirmed the trial court’s grant of class certification, noting that the issue of a fraudulent scheme was “central” and “a common starting point for all class members.” Id. at 412, 954 S.W.2d at 240. We held that “[t]he overarching issue which must be the starting point in the resolution of this matter relates to the existence of the alleged scheme.” Id. at 414, 954 S.W.2d at 241 (emphasis added). The same may be said of the instant case. The overarching issue, which predominates over all others, is Ap-pellees’ allegation that Union Pacific’s pattern and practice of settling claims amounted to the unauthorized practice of law and an ADTPA violation. In other words, |¾4⅛ is the existence of the alleged scheme that is the starting point in the resolution of Appellees’ claims against Union Pacific. Thus, the case involves “preliminary, common issues of liability and wrongdoing that affect all class members,” and the circuit court may subsequently resolve individual issues in bifurcated proceedings. Gen. Motors Corp. v. Bryant, 374 Ark. 38, 44, 285 S.W.3d 634, 639 (2008).

The majority also seems to suggest that class treatment is inappropriate because the question of whether Union Pacific engaged in uniform settlement practices is disputed. The opinion points to our decisions in Lenders Title Co. v. Chandler, 358 Ark. 66, 78, 186 S.W.3d 695, 702 (2004), and other similar cases, wherein the defendant’s practice of charging a document preparation fee was characterized as “admitted.” In my mind, this is a distinction without a difference. Like the defendants in Lenders Title, American Abstract & Title Co. v. Rice, supra, and Asbury Automotive Group, Inc. v. Palasack, 366 Ark. 601, 237 S.W.3d 462 (2006), Union Pacific has effectively admitted to a common plan. It only disputes the allegation that its claims representatives consistently adhered to this plan, and the majority seems to prematurely decide the merits of this dispute. To require Appellees at this stage to meet proof with proof and disprove Union Pacific’s assertion that it did not consistently adhere to a plan is to engage in a premature merits determination. We have repeatedly refused to impose such a burden at this early stage.

12sThe majority opinion quotes from our decision in Baker v. Wyeth-Ayerst Laboratories Division, 338 Ark. 242, 247, 992 S.W.2d 797, 800 (1999), in holding that “no one set of operative facts” establishes Union Pacific’s liability. Interestingly, that quote originated from a discussion in a Sixth Circuit opinion addressing the complexity of individual issues presented by toxic-tort and products-liability cases as opposed to mass-accident cases, where injuries are caused by a single catastrophic event occurring at one time and place. See Sterling v. Velsicol Chem. Coup., 855 F.2d 1188 (6th Cir.1988). The Sixth Circuit held in Sterling that, “[i]n complex, mass, toxic tort accidents, where no one set of operative facts establishes liability, no single proximate cause equally applies to each potential class member and each defendant, and individual issues outnumber common issues, the district court should properly question the appropriateness of a class action for resolving the controversy.” Id. at 1197. These types of cases were distinguished from mass-accident cases, where “the cause of the disaster is a single course of conduct which is identical for each of the plaintiffs.” Id. The language was quoted in Baker for the same proposition, and we noted that “we have been more inclined to approve class certification in mass-accident cases than in products-liability or toxic-tort cases.” 338 Ark. at 247, 992 S.W.2d at 800. Outside of that framework, we have been decidedly more flexible than the federal courts, holding that issues of causation will not bar a finding of predominance and that, in determining predominance, l^we do not merely compare the number of individual versus common issues. Gen. Motors Corp. v. Bryant, supra.

Finally, and most importantly, I cannot agree with the majority’s conclusion that the circuit court’s order in this case amounted to an abuse of discretion. It is telling that the cases relied upon in the majority opinion are those in which we have affirmed a circuit court’s denial of class certification. See Mittry v. Bancorpsouth Bank, 360 Ark. 249, 200 S.W.3d 869 (2005); Williamson v. Sanofi Winthrop Pharm., Inc., 347 Ark. 89, 60 S.W.3d 428 (2001); Baker v. Wyeth-Ayerst Labs. Div., supra. Under our abuse-of-discretion standard of review, reversing a grant of class certification is another matter altogether. We took special care in Williamson v. Sanofi Winthrop Pharmaceuticals, Inc., to point out that “this court reviews class-action certifications or denials under an abuse-of-discretion standard, and we will not reverse the trial court’s decision unless the appellant can demonstrate that the court abused its discretion in reaching its decision.” 347 Ark. at 101, 60 S.W.3d at 436. However, because we could not say that the trial court had abused its discretion in denying class certification, we affirmed the denial. Id. I cannot say that the circuit court in the instant case abused its discretion in granting class certification, and I believe that the majority errs in engaging in a merits analysis to reach the conclusion that it did. For these reasons, I must dissent.

      . James Freeman was added as a named plaintiff in an amended complaint filed on April 5, 2007. The named defendants are employees of Union Pacific: Herbert Stuart is director of Union Pacific’s claims department; Rodney Woods is a claims manager for Union Pacific; and Ronnie Glover is a claims adjuster for Union Pacific.

      . The complaint initially listed five causes of action: fraudulent concealment and material misrepresentation; violations of the ADTPA; illegal practice of law; negligence; and conversion. At the hearing on the class-certification motion, the plaintiffs amended their pleadings to reflect only the unauthorized-practice-of-law and ADTPA claims.

      . Union Pacific does not challenge the court’s conclusions regarding numerosity, typicality, or superiority; therefore, the court need not address them. See Advance Am. Servicing of Ark., Inc. v. McGinnis, 2009 Ark. 151, 300 S.W.3d 487.

      . Because we reverse on Union Pacific’s first argument, we do not reach the remainder of the issues it raised on appeal.