author: David Newbern, Justice.

text:
    Andrew AKINS v. STATE of Arkansas
    CR 96-352
    955 S.W.2d 483
    Supreme Court of Arkansas
    Opinion delivered October 16, 1997

      Tarver & Byrne, by: Russell J. Byrne, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Andrew Akins was convicted of rape, Ark. Code Ann. § 5-14-103 (Repl. 1993), and aggravated robbery, Ark. Code Ann. § 5-12-103 (Repl. 1993), and given sixty- and forty-year consecutive imprisonment sentences respectively. Mr. Akins argues the evidence was insufficient to support the conviction. We disagree with his argument on that point. We decline to review his argument that he was denied his right to a speedy trial because we have no indication that the Trial Court ruled on such a motion. The State concedes that reversal and remand is required because Mr. Akins was denied his constitutional right to represent himself. In addition, we address Mr. Akins’s argument that the Trial Court abused his discretion in admitting evidence that Mr. Akins had committed an earlier crime. As the case is to be remanded, and thus a new record of trial compiled, we need not address the argument that the record in this case was insufficient to permit Mr. Akins to mount a proper appeal.

George and Ralita Franklin, residents of Lake Village, went with Tommy and Ledell Bolton to Dave’s Food Mart where the Franklins cashed a tax-refund check. When Mr. Franklin left home later that evening, he saw Mr. Bolden talking with Andrew Akins, who lived on the same street as the Franklins. Mr. Bolden was aware that Mr. Franklin would be working in Wynne that evening. When Mr. Franklin left to go to work, he took most of the cash from the check with him.

Still later that evening, Ms. Franklin and a child were watching television in the Franklins’ bedroom. When someone knocked on the front door, the child opened the door because she thought that it was her brother. After seeing who was at the door, the child began crying and ran into the bedroom. Thereafter, a man, dressed in black and wearing a mask, entered the bedroom. The only lighting in the bedroom came from the television. The man pointed his shotgun at Ms. Franklin and demanded the money he had seen at Dave’s Food Mart. Ms. Franklin told him that she did not have that money, and she gave him twenty-eight dollars. He insisted that she had more money and lifted the gun up as if he were going to hit her with it.

The man then pointed his gun at Ms. Franklin and told her to go into the front room. He then demanded that she disrobe. The room was dark. When he raised his gun up as if he were going to hit her with it, she complied. While he was standing behind Ms. Franklin, he made her turn around and hug him. Then, he made her bend over a living room chair, and he placed his penis in her vagina. After he ejaculated, he told her to go to the bathroom to urinate. The light was not on in the bathroom. After she urinated, he told her to wipe herself with a tissue. She did so, and she put the tissue in a bucket in the bathroom. The man grabbed her hand and told her that if she went to the police, he would kill her and the child.

He then told her to turn off the kitchen lights so that he could, without being seen, exit the house through the back door. She testified that they were in the kitchen for about twenty-five minutes. While the lights were on in the kitchen, Ms. Franklin focused on his eyes. Once the kitchen lights were turned off, the man left the house. During the course of the incident, the man called Ms. Franklin “bitch” several times.

After the man left, Ms. Franklin ran to the house next door, and she was brought to the police department and to a hospital emergency room where a standard rape-kit examination was performed. She told the police that the man who entered her home could have been Jarvis Akins because the eyes that she saw looked like Jarvis Akins’s eyes. Andrew Akins and Jarvis Akins are brothers. She was informed that Jarvis Akins was in jail. She told Mr. Franklin that she did not know who the perpetrator was but that he had “funny looking eyes.” The next day, she viewed photographs at the request of the police. She covered the faces of the individuals, except for the eyes, in the three pictures, and she identified Andrew Akins.

At the trial, Stephanie Watts testified that Andrew Akins raped her on November 21, 1990. Ms. Watts testified that during the course of the incident, Mr. Akins called her “all sorts of bitches,” made her hug him, and told her that if she told the police about the incident, he would harm her. Ms. Watts further testified that Mr. Akins did not wear a mask during the incident, and that he ripped her clothes off and raped her while she was lying down. Ms. Watts stated that Mr. Akins also hit her, choked her, and poked her in the eyes.

There was testimony that Mr. Akins escaped from custody on two occasions. There was also testimony that Mr. Akins has many relatives in the area, and some have light, hazel eyes as does Mr. Akins.

A small paper bag containing paper towels and the rape kit, which included underwear worn by Ms. Franklin on the night she was raped, was submitted to the Arkansas Crime Laboratory to be tested for the presence of semen and blood. Semen was identified on the various swabs from the rape kit, the underwear, and the paper towels.

John Quill, an FBI supervisory special agent, testified that he analyzed DNA samples from vaginal swabs and the underwear of Ms. Franklin as well as blood samples taken directly from Mr. Akins, and he concluded that the DNA profiles matched Mr. Akins’s DNA. He also analyzed DNA samples from the vaginal swabs of Stephanie Watts and concluded that the DNA profiles matched Mr. Akins’s DNA. Mr. Quill testified that the chance of an unrelated individual having a DNA profile like Mr. Akins is less than one in seven hundred million in the Caucasian, black, and Hispanic population. He also testified that “unrelated” means those individuals other than a father, a brother, or a cousin so that if there is another accused from the family, the probability numbers would be different. He stated that he can distinguish the DNA profiles of brothers if he has a known standard for comparison. No such standard was offered as evidence at the trial.

Í. Sufficiency of the evidence

The first issue on appeal is whether the Trial Court erred in denying Mr. Akins’s motion for directed verdict. “A motion for directed verdict is a challenge to the sufficiency of the evidence.” Carter v. State, 324 Ark. 395, 921 S.W.2d 924, (1996). In considering whether a conviction is supported by sufficient evidence, the Court need only consider the evidence that supports the guilty verdict, and the Court views the evidence in the light most favorable to the State and affirms if there is substantial evidence to support the verdict. Martin v. State, 328 Ark. 420, 944 S.W.2d 512, (1997); Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997). “Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other” and permits the trier of fact to “reach a conclusion without having to resort to speculation or conjecture.” McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997).

The original record, portions of which were lost, does not include a motion for directed verdict by counsel for Mr. Akins at the close of the State’s case. The Trial Court held a reconstruction hearing pursuant to an order from this Court to complete the record, and concluded that defense counsel made the motion for directed verdict as required by Ark. R. Crim. P. 33.1. The ground stated was lack of substantial evidence identifying Mr. Akins as the perpetrator of the offense against Ms. Franklin.

There was substantial evidence to support the jury’s verdict. Ms. Franklin identified Mr. Akins from a photographic line-up, and most important, his DNA profile matched that contained in the rape kit. The jury also could have taken into consideration the opportunity Mr. Akins had to learn of the cash that he thought was in Ms. Franklin’s possession, especially in view of the fact that the perpetrator mentioned, in the course of committing the offenses, having seen the money at Dave’s Food Mart.

2. Speedy trial

The second issue is whether the Trial Court erred in not dismissing this matter based on a violation of Ark. R. Crim. P. 28. The record does not include a motion to dismiss based on the denial of a speedy trial. The record-reconstruction effort leaves some doubt as to whether such a motion was made. It is clear, however, that neither the original record nor the record of the reconstruction hearing shows that any ruling on such a motion occurred. To preserve arguments for appeal, even constitutional ones, the appellant must obtain a ruling. Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997); Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996).

At the reconstruction hearing, the attorneys and the Trial Court spoke of various motions and trial events, including testimony, that were not transcribed.' Defense counsel had the opportunity to review the record and note that no ruling on such a motion was included. However, no reference to a ruling was made in the reconstruction proceeding. We decline to dismiss this case in view of the lack of evidence that the Trial Court ruled on a speedy trial motion.

3. Prior criminal conduct

Stephanie Watts testified that she was raped by Mr. Akins some three months prior to the rape of Ms. Franklin. The Trial Court gave a limiting instruction that “such evidence of another similar event committed under similar circumstances is admitted solely for the purpose of establishing identity of the Defendant.” See Ark. R. Evid. 404(b).

The record does not indicate that there was an objection to Ms. Watts’s testimony, so we do not reverse on the point in this instance. As a retrial is likely, however, we will address the issue to point out that, had a proper objection been made, the evidence should have been excluded.

Ordinarily, the Trial Court has wide discretion in admitting evidence of other crimes or wrongs, and its decision will not be reversed absent an abuse of discretion. Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992). We have, however, zealously guarded the rights of accused persons to have the State’s evidence strictly confined to the issues surrounding the offense charged to insure that no one is convicted because he has committed offenses other than that for which he is on trial or because he is of bad character and addicted to crime. Tarkington v. State, 250 Ark. 972, 469 S.W.2d 93 (1971). Yet the mere fact that evidence shows the defendant guilty of another crime does not prevent its admissibility when otherwise competent on the issue on trial. Id.

The similarities of the two rapes were not sufficient to support a finding that Ms. Watts’s testimony was admissible pursuant to Ark. R. Evid. 404(b) which provides that evidence of other crimes, wrongs, or acts may be admissible to establish proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See Rogers v. State, 257 Ark. 144, 515 S.W.2d 79 (1974) (stating evidence of a defendant’s commission of a similar offense is admissible as tending to show identity of the perpetrator when the similarity of the means or manner employed in committing the crimes logically operates to set the offenses apart from other crimes of the same general variety and tends to suggest that the perpetrator of one was the perpetrator of the other).

The rapes occurred months apart. Ms. Franklin’s assailant wore a mask, Ms. Watts’s assailant did not. Ms. Franklin’s assailant made her take off her own clothes while Ms. Watts’s assailant ripped her clothes off of her. Ms. Franklin’s assailant raped her from behind while she bent over a chair while Ms. Watts’s assailant raped her while she was lying down. Ms. Franklin’s assailant did not strike her while Ms. Watts’s assailant hit her, choked her, and poked her in the eyes.

The only similarities between the two rapes were that both Ms. Franklin and Ms. Watts reported that the assailant called them a “bitch” and made them hug him. Whatever probative value the rape of Ms. Watts had was substantially outweighed by the danger of prejudice. Ark. R. Evid. 403.

The State argues that evidence of Ms. Watts’s rape was necessary in order for expert testimony on the DNA analysis to be presented because the DNA expert had to testify as to how he obtained the DNA samples of Mr. Akins. There was no such necessity. The expert had DNA samples from Mr. Akins and from Ms. Franklin. The ones from Ms. Watts were superfluous.

5. Self-representation

The remaining issue is whether the Trial Court erred in denying Mr. Akins’s right to represent himself. The State concedes reversible error on this point. At the August 18, 1995 pretrial hearing, Mr. Akins requested that he be allowed to represent himself and stated that he would not be ready for trial on the August 22 trial date. Apparently, communications between Mr. Akins and defense counsel had broken down. Defense counsel stated that he was only able to get “limited responses” from Mr. Akins, and Mr. Akins stated that defense counsel would not listen to him. The Trial Court explained that Mr. Akins “need[ed] somebody with experience in the law,” and that he was not convinced that Mr. Akins had demonstrated sufficient intelligence to represent himself. The Trial Court also stated that if Mr. Akins had asked “three years ago” to represent himself, he might have been allowed to do so, but there would be no continuance to allow the defendant to become familiar with the case. Defense counsel argued that Mr. Akins was familiar with the case, and that Mr. Akins had filed a motion to sever, which was similar to the motion defense counsel later filed, as well as a writ of mandamus to effect his release pursuant to Rule 28.3.

At the close of the hearing, the Trial Court stated that, if Mr. Akins reviewed his file during the four days prior to trial, the Trial Court would reconsider. There was some confusion as to whether the Trial Court would allow Mr. Akins to represent himself if he read the file and was prepared for the August 22 trial date.

On the morning of the trial, Mr. Akins stated that he still wanted to represent himself and that he had asked to do so on previous occasions but that he was not prepared to go to trial that day. As to Mr. Akins’s argument that he attempted to speak with the Trial Court about representing himself prior to August 18, the Trial Court could not recall the incident and stated that he would have to agree with Mr. Akins. Mr. Akins also referred to letters that he had written to the Trial Court in which he had requested that he be allowed to represent himself. Mr. Akins’s request to represent himself on August 18, 1995, was the first such request in the record. Mr. Akins stated that he had not read the file because he thought that the Trial Court had already decided that he would not be allowed to represent himself. Defense counsel pointed out the “crux” of the case — Ralita Franklin’s statement and the testimony that the DNA statistics applied solely to non-related people — in an apparent attempt to persuade the Trial Court that Mr. Akins had the ability to represent himself. The Trial Court held that Mr. Akins could not represent himself because he was not prepared to go to trial and because of the complexity of the case due to the DNA evidence.

The Trial Court also held that “[w]ithout granting you [Mr. Akins] a continuance to represent yourself, you are not intelligently and knowingly, in my opinion, making the decision to represent yourself. And for that reason, I’m going to deny your motion.” The Trial Court ultimately agreed with the prosecutor that it did not have a problem with Mr. Akins representing himself, but with him representing himself on August 22 due to his lack of preparation.

“It is. . . well established that an accused has a constitutional right to represent himself and make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel in his defense. But every reasonable presumption must be indulged against the waiver of fundamental constitutional rights.” Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996). “To establish a voluntary and intelligent waiver, the trial judge must explain to the accused that he is entitled as a matter of law to an attorney and question him to see if he can afford to hire counsel. The judge must also explain the desirability of having the assistance of an attorney during the trial and the drawbacks of not having an attorney.” Gibson v. State, 298 Ark. 43, 764 S.W.2d 617 (1989). “The right to counsel is a personal right which the accused may knowingly waive either at the pretrial stage or at trial.” Leak v. Graves, 261 Ark. 619, 550 S.W.2d 179 (1977) (finding that in view of the appellant’s age, education, and recent experience in court, represented by counsel, appellant knowingly and intelligently chose to waive his right to counsel); see Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975) (holding that appellant’s assertion of his right to represent himself was timely because it was made before the trial commenced).

In Fritz v. Spalding, 682 F.2d 782 (9th Cir. 1982), the United States Court of Appeals for the Ninth Circuit, considering the appellant’s assertion of his right to represent himself accompanied by a motion for continuance, stated that, when a defendant’s pretrial motion to proceed pro se is accompanied by a request for a continuance, the motion may be denied only upon “an affirmative showing” that the purpose of the pro se motion was to gain delay. The Court further stated that the court “must examine the events preceding the motion to determine whether they were consistent with a good faith assertion of the right and whether the defendant could reasonably be expected to have made the motion at an earlier time."

The Trial Court refused to allow Mr. Akins to represent himself because he was not prepared to go to trial on August 22, 1995. Based on our holdings in the Leak case and the Barnes case, we hold that the Trial Court erred in denying Mr. Akins’s request to represent himself at trial because the request was made four days before trial and again on the morning of the trial before the trial began. If the Trial Court had granted Mr. Akins’s request to represent himself on August 18 or if the Trial Court had been clearer about its intention to reconsider Mr. Akins’s request after he reviewed his file, then Mr. Akins would have had an opportunity to be prepared for trial, and a motion for continuance might not have been necessary. Additionally, Mr. Akins does not seem to assert his right as a delaying tactic, but rather due to frustration with defense counsel.

As to whether Mr. Akins could have reasonably been expected to raise the motion at an earlier time, we note his undisputed assertion of attempts to assert his right prior to August 18 as well as the confusion regarding the Trial Court’s statement that it would reconsider the request on August 22. In these circumstances we do not gainsay the State’s concession that reversible error occurred.

Reversed and remanded.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Chrisshannon BROWN v. STATE of Arkansas
    CR 97-376
    952 S.W.2d 673
    Supreme Court of Arkansas
    Opinion delivered October 16, 1997

      William R. Simpson, Jr., Public Defender, by: Kent C. Krause, Deputy Public Defender, for petitioner.

      Winston Bryant, Att’y Gen., by: Kelly Terry, Asst. Att’y Gen., for respondent.
   Tom Glaze, Justice.

Chrisshannon Brown petitions this court for a writ of prohibition against the Pulaski County Circuit Court, First Division, asserting that the court mistakenly denied her motion to dismiss for speedy-trial reasons. The circuit court denied Brown’s motion, finding the trial delay was attributable to Brown’s unavailability, which is excludable under Rule 28.3(e) of the Arkansas Rules of Criminal Procedure.

The facts relevant to Brown’s argument begin with her arrest on November 30, 1995, at a home located at 2606 South Arch Street, Little Rock. Brown’s arrest resulted in her being charged with several drug crimes. When taken to the police department, Officer Subhash Wagh asked Brown where she lived, and Brown gave the South Arch Street address. In confirmation, Wagh read aloud the same address when he mirandized her. However, when signing the Miranda form, she listed a different address — 3006 Bermuda, Little Rock. Later, on November 30, Brown was released on $5,000.00 bond, and the bond papers reflected her address to be 2606 South Arch Street.

On May 29, 1996, the State filed its felony information against Brown, and set out Brown’s address as 2606 South Arch Street. On June 29, 1996, the court mailed a notice to Brown at the South Arch Street address, directing her to appear for plea and arraignment in circuit court on July 17, 1996. The letter was not returned to the court. When Brown failed to appear, as notified, on July 17, the court issued a warrant for her arrest. However, sometime after July 17, someone contacted the court’s case coordinator, and as a result, the case coordinator placed Brown’s plea and arraignment hearing back on the docket for July 31, 1996. No other notice was given to Brown, nevertheless she appeared on July 31. At that hearing, the court scheduled a jury trial for September 19, 1996.

When the September 19 trial date arrived, Brown’s counsel informed the court that a conflict of interest had arisen between Brown and her co-defendant. Upon agreeing to sever Brown’s and her co-defendant’s cases, the court set separate dates for each. At that time, the court noted without objection that, for speedy-trial purposes, Brown’s actions had tolled the thirteen-day period from July 17 to July 30. The court then set a new trial date for December 5, 1996.

Prior to the December 5 trial, Brown moved for dismissal on speedy-trial grounds, stating that the speedy-trial rule, Ark. R. Crim. P. 28, required that she be brought to trial within twelve months from the time of her arrest or be absolutely discharged. Because her December 5 trial date was six days past the twelvemonth speedy-trial period, she asked that her case be dismissed. The court, however, excluded the thirteen-day period in July as it had previously ruled, and it denied Brown’s motion. Brown then filed her petition for writ of prohibition in this court, and makes the same argument she made in circuit court, claiming the thirteen-day period should not have been excluded.

Prohibition is an extraordinary writ and is never raised to prohibit a trial court from erroneously exercising its jurisdiction, only where it is proposing to act in excess of its jurisdiction. Rhodes v. Capehart, 313 Ark. 16, 852 S.W.2d 118 (1993). The court has held Rule 28 is jurisdictional inasmuch as it requires a defendant to be brought to trial within twelve months or be absolutely discharged. Id. Even so, the court will not grant a writ of prohibition unless it is clearly warranted, and will only issue such a writ in a case where there are no disputed facts. Ellison v. Lang ston, 290 Ark. 238, 718 S.W.2d 446 (1986). Here, whether a writ should issue in this case rests upon a fact determination. Consequently, we dismiss Brown’s petition with prejudice. We explain our decision more fully below.

Because Brown showed that her trial was scheduled to begin six days after the speedy-trial period had expired, the State conceded that it had the burden of showing any delay must have been the result of Brown’s conduct. See State v. McCann, 313 Ark. 286, 853 S.W.2d 886 (1993). In addition, the State had the duty to show it had made a diligent, good-faith effort to bring the accused, Brown, to trial. Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985).

Undertaking its legal burdens, the State showed at the hearing on Brown’s motion before the circuit court that, on June 29, 1996, the trial court’s case coordinator had sent its notice addressed to Brown at 2606 South Arch Street, notifying her to appear at a plea and arraignment hearing on July 17, 1996. As the testimony developed at the hearing on Brown’s dismissal motion, the circuit judge became quickly convinced that the State had exercised due diligence in its effort to bring Brown to trial. In this respect, the judge concluded that the State and the court’s case coordinator had reasonably used the South Arch Street address to notify Brown of her July 17 hearing, since that address had been submitted by Brown, as it appeared on the felony information, her bond papers, and in the circuit clerk’s office.

While Brown claims she had never received a notice of the initial July 17 hearing, the trial court, after considering her testimony and counsel’s argument, simply did not believe her. For example, the trial court expressed its doubts concerning Brown’s story when the trial judge expounded that he thought it strange that, after the court had issued a bench warrant for Brown’s arrest for missing the July 17 hearing, someone later called on her behalf seeking another hearing. The trial court obviously concluded that Brown was not being completely forthright in contending she was unaware of the scheduled hearing. See Allen v. State, 327 Ark. 350, 939 S.W.2d 270 (1997) (holding that the appellate court does not attempt to weigh the evidence or pass on the credibility of witnesses; that duty is left to the trier of fact).

Also, bearing on the issue of Brown’s unavailability, she conceded to the trial court that she had moved on numerous occasions, and the proof showed that besides the Arch Street address, she had acquired others — 3006 Bermuda, 1005 Adams, 1020 Adams, and 804 Conner Avenue. The trial judge disagreed with Brown’s suggestion that the State or the court must take the initiative to keep up with every move Brown made. And while Brown argues her addresses were known by and available from her probation officer, Sharon Beverly, Beverly’s testimony was less than clear. In fact, nothing to which Beverly testified indicated where Brown lived when the court’s July 17 hearing notice was mailed to her.

In conclusion, whether Brown was available and whether the State exercised due diligence in this speedy-trial matter concerned fact questions to be decided by the trial court. Because disputed facts are integral to deciding this case, we decline to issue any writ of prohibition.

       Provision (e) provides as follows: The period of delay resulting from the absence or unavailability of the defendant. A defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial.

       Beverly did testify that Brown lived at 1020 Adams Street on June 14, 1996.


author: Tom Glaze, Justice. David Newbern, Justice,

text:
    Kathy R. EOFF v. Lisa WARDEN
    97-221
    953 S.W.2d 880
    Supreme Court of Arkansas
    Opinion delivered October 16, 1997
    [Petition for rehearing denied November 13, 1997.]

      Huckabay, Munson, Rowlett & Tilley, P.A., by: John E. Moore and Julia L. Busfield, for appellant.

      Hodges & Hodges, by: David Hodges and Lona McCastlain, for appellee.
   Tom Glaze, Justice.

Lisa Warden brought this lawsuit against Kathy R. Eoff after sustaining injuries from falling in the parking lot on property of an apartment complex owned by Kathy. Prior to her fall, Lisa had been at her friend’s, Cecilia Mitchell’s, apartment in the complex to help Cecilia with her clothes dryer, but when the two of them could not fix it, Lisa’s husband was called and he performed the repairs. Afterwards, Cecilia was confronted with the dilemma of needing to pick up her son from football practice and staying at her apartment to receive a telephone call. In order to help Cecilia, Lisa volunteered that she and her husband would pick up Cecilia’s son so Cecilia could stay and not miss her call. The Wardens opted to drive Cecilia’s car so Cecilia’s son would easily recognize it. It was night when the Wardens walked to Cecilia’s car, and the car was parked in one of two spaces which she had been designated as a tenant. Twelve foot long concrete barriers had been placed to separate parking spaces, and Lisa tripped over one of the barriers on the driver’s side of Cecilia’s car. She sustained a broken arm, and later required surgery.

In Lisa’s complaint against Kathy Eoff, Lisa alleged she was a business invitee at the time she fell on Kathy’s parking lot. She further asserted Kathy’s failures to maintain the premises, to adequately light the parking lot and to place concrete barriers properly were the proximate causes of Lisa’s injuries. At trial, the jury agreed, 10 to 2, rendering a verdict in Lisa’s favor in the sum of $30,000.00.

On appeal, Kathy Eoff argues one point for reversal. She relies on Stalter v. Akers, 303 Ark. 603, 798 S.W.2d 428 (1990), in support of her contention that the trial court erred in failing to direct a verdict in Kathy’s favor because Lisa had failed to establish that Kathy had any legal duty to make repairs or remove defects on leased property. We must agree, and therefore reverse and dismiss.

In Akers, Patsi Stalter leased or rented a house to Jason and Laura Howard. Sandy Akers was the Howards’ neighbor and frequent visitor. On the day in question, the Howards invited Akers to their house, and at the end of their visit, Akers went down the steps from the Howards’ porch and fell when she reached the bottom step. The bottom step had been broken and a concrete block had been placed in its stead as a temporary substitute. Akers sued the Howards and Stalter for injuries resulting from her fall. She obtained a default judgment against the Howards, the tenants, and a jury verdict of $16,000.00 against Stalter, the landlord. The Akers court reversed the jury verdict, and in so holding stated as follows:

We believe the injured third party (Akers) must establish a landlord’s contractual duty to repair a defect in the premises before he (or she) may recover for an injury suffered upon leased property over which the landlord has relinquished possession and control to a tenant.

Stalter, 303 Ark. at 607.

In the present case, the trial judge was persuaded that Akers was distinguishable, because there, the landlord (Stalter) had relinquished control over the leased house, but here, the landlord, Kathy Eoff, had retained possession and control of the parking lot of her apartment complex. In reaching this decision, the trial judge mentioned no evidence that showed such a distinction existed, nor did the judge cite any legal authority in support of his decision.

In fact, the case law bearing on the landlord-liability issue before the trial judge runs counter to his ruling. For example, this court has long adhered to the general rule that a landlord is under no legal obligation to a tenant for injuries sustained in common areas, absent a statute or an agreement. See Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692 (1969); see also Glasgow v. Century Property Fund XIX, 299 Ark. 221, 772 S.W.2d 312 (1989); Joseph v. Riffel, 186 Ark. 418, 53 S.W.2d 987 (1932); Haizlip v. Rosenberg, 63 Ark. 430, 39 S.W. 60 (1897). Moreover, in Propst v. McNeill, 326 Ark. 623, 932 S.W.2d 766 (1996), the court stated that no Arkansas law had been shown where a landlord’s retention-of-control exception had ever been recognized, thus, the Propst court held that only an express agreement or assumption of duty by conduct can remove a landlord from the general rule of nonliability. Here, because Lisa Warden failed to show that Kathy Eoff had in any way agreed or undertook a duty to maintain or repair her premises, the trial judge erred in denying Eoffs motion for directed verdict.

In conclusion, we address Lisa’s argument that Kathy failed to properly renew her motion for directed verdict at the end of all the evidence, but instead waited until after the instructions had been argued. Lisa’s argument is in error. Suffice it to say, Kathy’s counsel moved for directed verdict after Lisa’s case-in-chief, and in doing so, counsel specifically cited the applicable case law bearing on landlord liability and pointed out that Lisa had failed to show Kathy had agreed or undertook any duty to maintain or repair the parking lot. At the end of all the evidence, defense counsel renewed his earlier motions, thus generally renewing the directed-verdict motion Kathy made at the end of Lisa’s case-in-chief. This court has held that a defendant is not required to restate his or her grounds for directed verdict where he had already made a specific motion at the close of the plaintiff s case. See Aronson v. Harriman, 321 Ark. 359, 901 S.W.2d 832 (1995).

For the reasons above, we reverse and dismiss.

Newbern and Corbin, JJ., dissent.

David Newbern, Justice,

dissenting. The issue in this appeal is whether the landlord is immunized against an action by a person, other than the landlord’s tenant, for negligence in creating or maintaining a “common” area which has not been placed in the exclusive control of the tenant. The majority opinion concludes that the landlord may not be liable to the guest of a tenant who alleges that the landlord was negligent in creating barriers in a parking lot and then negligently failing to light the parking lot properly. The majority’s holding is based on a case holding that a landlord may not be held liable to her tenant for an injury occurring to a third party on “leased property over which the landlord has relinquished possession and control to a tenant.” Stalter v. Akers, 303 Ark. 603, 607, 798 S.W.2d 428, 430 (1990). The property in question in the Stalter case was a porch on a house the control of which had clearly been relinquished to the tenant.

As the majority opinion states, we have tenaciously clung to the rule that a landlord’s duty to a tenant is solely contractual, and thus we have held that a landlord is not liable for negligence in failure properly to maintain rental property resulting in injury to the tenant. We have questioned that view, however.

In Propst v. McNeill, 326 Ark. 623, 932 S.W.2d 766 (1996), a case in which a tenant alleged property damage due to his landlord’s failure to maintain an airplane hangar properly, we pointed out our longstanding rule and said, “Because of the policy considerations and possible impact that would ensue in enlarging a landlord’s liability, there is merit in the argument that such matters might be dealt with better in the legislative arena.” Later in the same paragraph, however, we wrote that we would “not foreclose” review of the “caveat lessee” rule in a proper case. See also Bartley v. Sweetser, 319 Ark. 117, 122, 890 S.W.2d 250, 252 (1994), (Newbern, J., concurring.) Here we are provided an opportunity to limit a rule with respect to which we have express doubts. Other courts have so limited the application of the rule.

It is well-established that the landlord’s traditional tort immunity is not available when injuries to tenants or to others result horn dangerous conditions on portions of the property that are within the control of the landlord. In this situation, the position of the landlord is essentially that of a possessor of land who invites or permits others to use the property, and who thereby owes to such users a duty of reasonable contemplated use. The landlord is therefore under an affirmative obligation to exercise reasonable care to inspect portions of the land located there. The obligation extends not only to the tenant, but also to the tenant’s family members, employees, invitees, and guests, and to others who are rightfully on the land.

5 Thompson on Real Property, Thomas Edition 205 (David A. Thomas ed. 1994). See Lakeview Assoc., Ltd. V. Maes (1995 Colo.) (landlord owed duty to tenant with respect to safety of parking lot whether or not tenant used lot to park an automobile; see also Hankard v. Beal, 543 A.2d 1376 (Me. 1988) (trial court improperly granted landlord’s motion for summary judgment as to landlord’s liability when a third party fell and was injured in parking lot). “Implicit in these decisions is the notion that since no individual tenant controls the common area, control remains with the landlord.” Robert S. Schoshinski, American Law of Landlord and Tenant 190 (1980 and Supp. 1997).

If a landlord may not be held responsible for negligence in creating or maintaining an ill-lighted apartment-house parking lot which is alleged to be a trap for the unwary, is the tenant responsible? If not the tenant, then is the alleged negligence simply a wrong without a remedy? There is no need to reach such a result.

In the case now before us, the majority applies the old landlord-tenant rule and the “exclusive possession” aspect of it in a case where it need not apply. Again, we are not dealing with a landlord and a tenant but with a property owner and a person who is not a tenant. Not only does the majority apply a rule that we have questioned; it extends the rule to a situation to which it has not previously been applied.

I respectfully dissent.

Corbin, J., joins in this dissenting opinion.

       Defense also unnecessarily renewed his directed-verdict motion during a discussion in chambers regarding which jury instructions should be proffered.


author: Donald L. Corbin, Justice.

text:
    Gerald BARBER et al. v. Mike WATSON
    97-77
    953 S.W.2d 579
    Supreme Court of Arkansas
    Opinion delivered October 16, 1997

      Mixon & McCauley, P.A., by: Donn Mixon, for appellants.

      Mooney Law Firm, by: Charles M. Mooney, Sr., for appellee.
   Donald L. Corbin, Justice.

Appellants, some seventy residents of two subdivisions in Jonesboro, appeal the judgment of the Craighead County Chancery Court, Western District, denying their request for an injunction to prevent Appellee Mike Watson from constructing multi-family dwellings in one of the subdivisions. Appellants raise three points on appeal, which require us to construe a deed and bills of assurance; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a) (16). We find no error and affirm.

We can discern the following information from the abstract provided. Appellants are owners and residents of thirty-six and one-half lots in Meadow Lark Acres Subdivision (“Meadow Lark”) and twelve lots in Meadow Lark Acres Extended Subdivision (“Meadow Lark Extended”), which are contiguous subdivisions comprised of fifty-two lots and twenty lots, respectively. Appellee is the owner of Lots 1, 2, 3, and 4 of Block H in Meadow Lark Extended. Meadow Lark was established and a bill of assurance was executed on November 15, 1967. Meadow Lark Extended was established and a bill of assurance was executed on November 18, 1968. The original bill of assurance for Meadow Lark Extended prohibited the construction of any building other than single-family dwellings except on certain lots, including the four lots owned by AppeEee. On those excepted lots, the biE of assurance provided that apartments may be constructed with the approval of the developers. An amended biE of assurance for Meadow Lark Extended was executed on August 18, 1995, prohibiting any construction of apartment buEdings in Meadow Lark Extended. The amended biE of assurance was signed by owners of lots in both subdivisions.

AppeEants fEed this suit seeking an injunction from the chancery court prohibiting AppeEee’s planned construction of two additional apartment units on an already existing fourplex situated on one of his lots in Meadow Lark Extended. AppeEants claimed that the area was not equipped to handle the increased traffic, that AppeEee’s plan violated aE the biEs of assurance, and that the use of the land for apartments would materiaEy and substantiaEy lessen the use and enjoyment of AppeEants’ property, thus constituting a nuisance.

AppeEee fEed a motion to dismiss the complaint on the grounds that some of the plaintiffs lacked standing to bring the action because they did not Eve in or own property in Meadow Lark Extended, and that pursuant to ARCP Rule 12(b)(6), the complaint faded to state facts upon which relief could be granted. A hearing was conducted on the matter on July 9, 1996. A letter order was subsequently entered by the chanceEor granting Appellee’s motion to dismiss. On the issue of standing, the chanceEor agreed with AppeEee that those plaintiffs who lived in or owned property in Meadow Lark had no standing to chaEenge any proposed construction in Meadow Lark Extended. The chanceEor did find, however, that the amended biE of assurance had been signed by a majority of the lot owners of Meadow Lark Extended. Notwithstanding that finding, the chanceEor concluded that the amended biE of assurance was not valid because it had not been timely executed in accordance with the procedure set out in the original biE of assurance. AppeEants now assert that the chancellor’s findings and conclusions were erroneous. We disagree.

We try chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). In order to demonstrate that the chancellor’s ruling was erroneous, Appellants must show that the trial court abused its discretion by making a judgment call that was arbitrary or groundless. Id.

For the first point for reversal, Appellants assert that the trial court erred in finding that the amended bill of assurance was not timely executed. In order for us to determine whether the chancellor correctly interpreted the provisions of the original bill of assurance, we must consider the language of the document. The pertinent provisions, as abstracted, read:

We, W.R. Kitterman and Esther Lea Kitterman, his wife, Alton D. Holmes and Maralyn Holmes, his wife, and B. Frank Hyneman and Marzee Ann Hyneman, his wife, are the owners of the property that we plat and designate as Meadow Lark Acres Extended Subdivision to Craighead County, Arkansas. No lots shall be used except for residential purposes and no building shall be erected other than a single-family dwelling except that a duplex dwelling may be permitted under certain restrictions and apartment buildings shall be permitted on Lots 1, 2, 3, and 4 of Block H of the subdivision, and certain other lots, with the approval of the developers herein. The covenants and the restrictions of the Bill of Assurance shall be binding for a period of 25 years from the date of recording, after which time the covenants and restrictions shall be automatically extended for successive periods of ten years unless an instrument signed by a majority of the owners has been recorded agreeing to change or to terminate the covenants and restrictions.

The twenty-five-year period provided in the original bill of assurance would have expired in November 1993. The amended bill of assurance was not executed until August 18, 1995. The chancellor concluded that because Appellants had not executed the amended bill of assurance prior to the time the original bill of assurance had expired, the provisions of the original bill of assurance were automatically extended for an additional ten years. The chancellor determined that the proper way to amend or terminate the original bill of assurance was for a majority of the owners to agree and then file the agreement of record to take effect at the time the original bill of assurance expired. Because the amended bill of assurance was not timely filed, the chancellor reasoned, the original bill of assurance, which allowed apartments on certain lots with the developers’ approval, was still in effect at the time Appellants filed their complaint. We conclude the chancellor’s interpretation was correct.

Courts do not favor restrictions upon the use of land; if such restrictions exist, they must be clearly apparent. Holaday, 323 Ark. 522, 920 S.W.2d 4; McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988). The general rule governing the interpretation, application, and enforcement of restrictive covenants is the intention of the parties as shown by the covenant. Holaday, 323 Ark. 522, 920 S.W.2d 4. Where, however, the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed, so long as the meaning does not defeat the plain and obvious purpose of the restriction. Id. (citing Hays v. Watson, 250 Ark. 589, 466 S.W.2d 272 (1971)). Where no general plan of development exists, restrictive covenants contained in a bill of assurance are not enforceable. McGuire, 297 Ark. 282, 761 S.W.2d 904. Appellants do not challenge that a general plan of development existed in the subdivisions.

In White v. Lewis, 253 Ark. 476, 487 S.W.2d 615 (1972), this court was asked to interpret the amendment procedures set out in a bill of assurance very similar to the one in the present case. There, the bill of assurance provided in part:

These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five years from the date these covenants are recorded, after which said covenants shall be automatically extended for successive periods of 10 years unless an instrument signed by a majority of the owners of the lots has been recorded, agreeing to change said covenants in whole or in part.

Id. at 478, 487 S.W.2d at 616. The appellants had filed an agreement to alter part of the bill of assurance, but the twenty-five-year period had not yet expired. The appellants argued that the language contained in the original bill of assurance pertaining to amendments or alterations of the bill was uncertain. This court disagreed, holding:

When the recited provisions of the bill of assurance are read in toto we think the restriction and the provisions for waiver are unambiguous. In simple terms it is provided that the covenants shall be binding for a period of twenty-five years from date of recordation, after which they are automatically extended for successive periods of ten years, unless an instrument signed by a majority of the property owners is filed agreeing to a change in whole or in part.

Id. at 478, 487 S.W.2d at 616.

Here, we conclude that the language in the original bill of assurance for the Meadow Lark Extended subdivision was likewise clear and unambiguous. We conclude further that giving the language of the document its plain meaning does not defeat the plain and obvious purpose of the restrictions. Accordingly, we agree with the chancellor’s determination that Appellants should have had the agreement, signed by a majority of the owners, filed of record before the expiration of the twenty-five-year period, reflecting that the amendment was to take effect as of the day of the original bill’s expiration. That was not done in this case; hence, the amended bill of assurance was not valid.

For the second point for reversal, Appellants argue that the trial court erred in refusing to find that Appellee’s proposed plan to add two units onto an already existing fourplex located on Lot 2 was prohibited by the original bill of assurance for Meadow Lark Extended. Appellants contend that although the bill of assurance provided that apartments are permitted on Lot 2, they are only permitted with the approval of all of the developers. Appellants contend that Appellee only secured the approval of Esther Lea Kitterman, signing on behalf of herself and her husband W.R. Kitterman, and failed to obtain the approval of the other developers. We do not reach the merits of this argument because it is not clear from the abstract that Appellants made this particular argument below or that the trial court ruled on the issue in its order.

Where the abstract does not reflect that the argument, or any similar argument, was made in the trial court, we will not reach the merits of the argument on appeal. Betts v. Betts, 326 Ark. 544, 932 S.W.2d 336 (1996); Douthitt v. Douthitt, 326 Ark. 372, 930 S.W.2d 371 (1996). Nor will we turn to the record to decide such an issue. Reeves v. Hinkle, 326 Ark. 724, 934 S.W.2d 216 (1996). “It is critical that this court not be placed in a position of considering an issue for the first time on appeal.” Id. at 727-28, 934 S.W.2d at 218. Here, the abstract reflects only that Appellants asserted in their amended complaint that “Mr. Watson’s proposed construction violates all the Bills of Assurance [.]” There is no further indication in the abstract that Appellants made anything other than this vague assertion that Appellee’s proposed plans violated the original bill of assurance. The abstract does not contain any argument by counsel on this point, nor does it demonstrate that the issue was addressed by the chancellor either during the hearing or in the order.

For the final point for reversal, Appellants argue that the chancellor erred in refusing to admit into evidence a plat of the Meadow Lark subdivision. As with the previous point, we do not reach the merits of this argument because Appellants have failed to abstract the specific arguments made by them in support of the exhibit’s admission. The abstract only reveals that Appellants offered the exhibit, that Appellee objected to its relevance, and that the trial court sustained the objection. Without the benefit of knowing Appellants’ reasons for offering the exhibit, it is practically impossible for us to determine whether the trial court abused its discretion in denying its admission. Even though our review of this appeal is de novo, it is nonetheless limited to the record as abstracted. See Clardy v. Williams, 319 Ark. 275, 890 S.W.2d 276 (1995). Where the abstract fails to show the specific arguments made regarding the proffered evidence, we will not consider the argument on appeal. See Newton v. Chambliss, 316 Ark. 334, 871 S.W.2d 587 (1994).

Affirmed.


author: Robert L. Brown, Justice.

text:
    Zeronical RICE v. STATE of Arkansas
    97-295
    954 S.W.2d 216
    Supreme Court of Arkansas
    Opinion delivered October 16, 1997

      William R. Simpson, Jr., Public Defender, by: C. Renae Ford, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appeEee.
   Robert L. Brown, Justice.

AppeEant Zeronical Rice appeals the denial of his motion to transfer the criminal charges of aggravated robbery and theft to juvenfie court. We affirm the trial court’s finding on the aggravated robbery charge but dismiss the theft charge for lack of jurisdiction in the circuit court.

At the juvenile-transfer hearing, the prosecutor presented the testimony of Officer Jeffrey Norman of the Little Rock Police Department. Officer Norman testified that on September 5, 1995, Rice asked his brother, Tyrone Rice, to invite his friend, Steven Morris, to come over to his house. Morris used his 1994 Honda Elite moped as transportation. When Morris arrived, Rice pointed a sawed-off twelve-gauge shotgun at Morris and ordered him to give him the keys to his moped. Morris dropped the keys on the floor. Rice picked up the keys and set his shotgun down briefly to gather some clothes before he left. While his back was turned, Morris grabbed the shotgun and ran toward the front door, dropping the shotgun as' he escaped through the door. Morris contacted the Little Rock Police Department from a neighbor’s house and informed them about what had happened. He then watched Rice leave on his moped. When Rice was arrested on September 11, 1995, he confessed to Officer Norman that he had taken Morris’s moped at gun point. At the time, he was fifteen with a date of birth of September 11, 1979. Morris’s moped was never recovered.

Other testimony presented by the prosecutor at the juvenile-transfer hearing revealed that Rice had been implicated in two other offenses after his arrest for the aggravated robbery involving Morris. Officer Paul Childress of the Benton Police Department testified that he investigated an incident involving Rice, which occurred on December 8, 1995. According to the police officer, Rice and another person went to a residence in Benton and accused Greg James of being an informant for a drug task force. Rice beat James severely with a bottle, a television set, and his fists. James was treated at the hospital for his injuries.

Officer Childress further stated that there was another felony bench warrant for Rice stemming from an incident that occurred on December 23, 1995. According to Officer Childress, Rice and another person approached Jonathan Caple as he was leaving a bar in Benton and questioned him about an incident involving Rice and Caple’s brother. While they were talking, Rice took a semiautomatic handgun, put a round in the chamber, and pointed the gun at Caple’s head. Rice told Caple to drop all of his money. Caple escaped by retreating back into the bar.

The only testimony presented by Rice at the juvenile-transfer hearing was that of a teacher, Sylvia Carter, from whom Rice was receiving instruction in an effort to obtain his GED. Ms. Carter testified that Rice was cooperative and polite. She explained that Rice was doing well in his classes except for math which frustrated him.

Following the hearing, the motion to transfer was denied.

For his points on appeal, Pice contends that the trial court should have granted the motion to transfer to juvenile court because there was a high likelihood of rehabilitation and the State presented no countervailing proof regarding his potential for rehabilitation. Arkansas Code Ann. § 9-27-318 (Supp. 1995), provides the criteria for a motion to transfer to juvenile court:

(e) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
(f) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.

We dispense with Rice’s rehabilitation argument by focusing on his age. At this writing, he is eighteen, and his potential for rehabilitation within the juvenile system is nil. State law and our cases have made it clear that the initial commitment to the State Division of Youth Services cannot commence after the eighteenth birthday of the youth. Ark. Code Ann. § 9-28-208 (d) (Supp. 1995); Jensen v. State, 328 Ark. 349, 944 S.W.2d 820 (1997); Hansen v. State, 323 Ark. 407, 914 S.W.2d 737 (1996). Moreover, we said in Jensen v. State, supra, that although § 9-28-208(d) extends the commitment time beyond eighteen in certain circumstances, it presupposes that the youth has already been committed to the State Division of Youth Services prior to reaching eighteen. See also Hansen v. State, supra.

Rice is beyond the age when he can be rehabilitated in the juvenile justice system. Furthermore, he confessed to a crime, aggravated robbery, that is clearly serious and clearly involves the use of violence. The evidence that Rice should be tried as an adult on this charge was clear and convincing.

Though Rice did not raise the issue, we conclude that the circuit court does not have jurisdiction over the theft charge. State law provides that if a juvenile is fourteen or fifteen at the time the delinquent act occurs, the prosecuting attorney may charge him with certain enumerated crimes, including aggravated robbery. Ark. Code Ann. § 9-27-318(b)(2) (Supp. 1995). Theft is not a listed charge. As we stated in Banks v. State, 306 Ark. 273, 813 S.W.2d 257 (1991), theft and aggravated robbery may both be charged because they are separate crimes, having separate elements, even though they may have been committed at the same time. See also Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996). However, we held in Banks that dismissal of the theft charge was appropriate due to lack of jurisdiction over the defendant who was fourteen at the time the acts were committed. The same holds true in the instant case. The circuit court has no jurisdiction to try Rice for a theft charge, even under § 9-27-318 as subsequently amended after Banks v. State, supra, was decided; when the alleged act was committed while Rice was fifteen. The prosecutor could have filed the theft charge in juvenile court and then moved to transfer it to circuit court as a charge arising out of the same course of conduct as the aggravated robbery. Ark. Code Ann. § 9-27-318(c) (Supp. 1995); Butler v. State, supra. This was not done. We dismiss the theft charge for lack of jurisdiction.

Affirmed as modified.


author: Annabelle Clinton Imber, Justice. Ray Thornton, Justice,

text:
    The MEGA LIFE and HEALTH INSURANCE COMPANY, Charles Hall, and Jim Dawson v. Michael D. JACOLA and Pamela R. Jacola, Individually and as Parents and Natural Guardians of Kristen M. Jacola, a Minor
    96-1343
    954 S.W.2d 898
    Supreme Court of Arkansas
    Opinion delivered October 16, 1997

      Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: R. T. Beard III and Mark N. Halbert, for appellants.

      Lovell & Nalley, by: John Doyle Nalley, for appellees.
   Annabelle Clinton Imber, Justice.

This is an interlocutory appeal from an order certifying a class action. See Ark. Sup. Ct. R. l-2(a)(ll); Ark. R. App. P. — Civ. 2(a)(9). We affirm the trial court’s order.

On September 1, 1994, the appellees, Michael and Pamela Jacola, purchased a group health insurance policy from the appellants, Mega Life & Health Insurance Company (“Mega”), for themselves and their two dependents. The group policy was issued through the Alliance for Affordable Health Care (“Alii— anee”) which served as group master policyholder. Soon thereafter, the Jacolas’ minor daughter received outpatient medical treatment, and Mega refused to pay the medical bills.

On May 17, 1995, the Jacolas filed a tort action against Mega and the two agents who sold them the policy alleging numerous individual theories for recovery including negligence, fraud, misrepresentation, and false advertising. In their complaint, the Jacolas also requested class certification so that they could represent approximately 400 other Arkansans who had purchased identical health insurance policies from Mega.

In their motion for class certification, the Jacolas alleged that Alliance was a sham organization thereby making the Mega health insurance policies individual, instead of group, policies. Additionally, the Jacolas asserted on behalf of the proposed class that the policies they purchased from Mega were void in two respects. First, the Jacolas asserted that the policies were void because Mega failed to comply with Ark. Code Ann. § 23-98-107(a) (Repl. 1992), which requires issuers of minimum basic benefit policies to obtain from their prospective insureds a written statement acknowledging the limited nature of the coverage provided. The Jacolas also claimed that the policies were void because Mega failed to comply with Insurance Commission Rule 18 which requires a stamped notification on the first page of an individual health insurance policy that does not cover outpatient services. On behalf of the class, the Jacolas asked the court to declare the policies void, force Mega to withdraw use of the policy in Arkansas, grant compensatory damages in the amount of the premiums collected from the insured for the past five years, and award punitive damages.

The trial court conducted two hearings on the Jacolas’ certification motion. On August 8, 1996, the trial court granted the Jacolas’ motion for certification pursuant to Ark. R. Civ. P. 23. In its order, the court found that the Jacolas had satisfied the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy. The trial court, however, did not make specific findings regarding the existence of the Rule 23(b) requirements of predominance or superiority.

On appeal, Mega asserts that the trial court’s order of certification is erroneous because the Jacolas failed to satisfy each of the six requirements listed in Rule 23(a) & (b). According to Ark. R. Civ. P. 23, a trial court may certify a class only if the following conditions are met:

(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 parries will fairly and adequately protect the interests of the class.

Ark. R. Civ. P. 23(a). Additionally, the court must find that 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. Ark. R. Civ. P. 23(b). A trial court has broad discretion in determining whether these elements have been satisfied, and we will not reverse absent an abuse of that discretion. Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997); Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders & Members, 323 Ark. 706, 918 S.W.2d 129 (1996); Cheqnet Sys., Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995).

Citing Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders & Members, 323 Ark. 706, 918 S.W.2d 129 (1996), Mega asserts that a trial court is not allowed to look beyond the pleadings to determine whether the requirements of Rule 23 have been satisfied. We, however, rendered no such ruling in Farm Bureau. Rather, we clearly enunciated that neither the trial court nor the appellate court may delve into the merits of the underlying claim when determining whether the requirements of Rule 23 have been satisfied. Id. Although a trial court may not consider whether the plaintiffs have a cause of action or if they will ultimately prevail on the merits, the court may hold a hearing to determine whether the requirements of Rule 23 have been satisfied. In fact, two such hearings were held in this case and both sides were allowed to present testimony and introduce documentary evidence. Thus, we conclude that Mega’s interpretation of Farm Bureau is erroneous.

I. Failure to Make Findings

First, Mega asserts that we must reverse the certification order because the trial court failed to make specific findings regarding the existence of the Rule 23(b) requirements of predominance and superiority. This issue is governed by Ark. R. Civ. P. 52(a) which states that “findings of fact and conclusions of law are unnecessary on decisions of motions under these Rules,” but that the court shall enter such specific findings and conclusions upon the request of a party. It does not appear from the abstract that Mega ever requested that the court make such specific findings in regard to the predominance and superiority requirements of Rule 23(b).

Moreover, Rule 52(b) states that upon a motion of a party made no later than ten days after the entry of judgment, the court may amend its findings of fact or make additional findings. Thus, Mega had ten days after the order of certification was entered to ask the trial court to make additional findings regarding the Rule 23(b) elements. Mega, however, failed to make such a request. Because Mega failed to request specific findings in regard to the Rule 23(b) elements either prior to or after the entry of the order of certification, we hold that it has waived this issue on appeal. See Smith v. Quality Ford, Inc., 324 Ark. 272, 920 S.W.2d 497 (1996); Brown v. Seeco, Inc., 316 Ark. 336, 871 S.W.2d 580 (1994).

Implicit in the trial court’s order granting class certification is the court’s ultimate conclusion that all six elements of class certification have been satisfied. Thus, on appeal we hold that Mega has waived only its right under Ark. R. Civ. P. 52 to have the trial court enter specific findings in its order regarding the satisfaction of each of the six elements of class certification. Mega has not, however, waived its right to contest the trial court’s ultimate conclusion that all six elements have been satisfied as required by Ark. R. Civ. P. 23. We agree with the dissent that there must be evidence in the record to support the trial court’s ultimate conclusion that all six elements of class certification, including the predominance and superiority requirements of Rule 23(b), have been satisfied. We, however, disagree with the dissent’s assertion that we must reverse a certification order that does not make specific findings regarding the Rule 23(b) requirements when the complaining party failed to request specific findings under Rule 52. Accordingly, we find no merit to Mega’s first argument on appeal.

We also must respond to the dissent’s contention that the certification order must be reversed because the trial court failed to conduct a “rigorous analysis” of the Rule 23(b) requirements of predominance and superiority. In support of this argument, the dissent cites Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995). The Arthur opinion, however, is devoid of any language requiring the trial court to conduct a “rigorous analysis.” In fact, we are unable to find any Arkansas case requiring the trial court to conduct a rigorous analysis, or for that matter, any case that describes exactly what such an analysis entails. Instead, we have consistently held that we will reverse a trial court’s certification order only when the court has abused its discretion. Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997); Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders, 323 Ark. 706, 918 S.W.2d 129 (1996). In making this determination, we have consistently reviewed the evidence in the record to determine whether it supports the trial court’s ultimate conclusion regarding certification. See, e.g., Direct Gen., supra; Arthur, supra; We have not, as argued by the dissent, previously required the court to enter into the record a detailed explanation of why it concluded that certification was proper, and we refuse to impose such a requirement upon the trial court at this time.

II. Requirements of Rule 23

Next, Mega claims that the order of certification must be reversed because the Jacolas failed to satisfy each of the six requirements of Rule 23. We disagree with this assertion, and accordingly we affirm the trial court’s order of certification.

A. Numerosity

The first requirement of class certification is “that the class is so numerous that joinder of all members is impractical.” Ark. R. Civ. P. 23(a)(1). In Cheqnet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995), we held that:

the exact size of the proposed class and the identity of the class members need not be established for the court to certify a class, and the numerosity requirement may be supported by common sense.

We have not adopted a bright-line rule to determine how many class members are required to satisfy the numerosity requirement. See, e.g. Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991) (approving a class of several thousand claimants); International Union of Elec., Radio, & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988) (declaring that “at least several hundred” class members were sufficient); Cooper Communities, Inc. v. Sarver, 288 Ark. 6, 701 S.W.2d 364 (1986) (holding that 184 potential class members were enough); City of North Little Rock v. Vogelgesang, 273 Ark. 390, 619 S.W.2d 652 (1981) (rejecting a class of only seventeen potential plaintiffs).

In this case, the trial court found that the numerosity requirement had been satisfied because the Jacolas provided evidence that there were over 400 Arkansans who had purchased identical policies from Mega. Mega attempts to defeat the trial court’s finding by declaring that only fourteen of these policyholders purchased their policies from the same agents as the Jacolas, and that only one of these fourteen policyholders (other than the Jacolas) has been denied benefits. This argument, however, ignores the Jacolas’ underlying claim on behalf of the class that the policies are void irrespective of any representations made by a particular agent. Further, Mega’s argument addresses the merits of the underlying claim. We have continuously held that whether the plaintiffs have stated a cause of action or will ultimately prevail on the merits is immaterial to our determination of whether the trial court erred when it found that the class should be certified under Rule 23. Direct Gen., supra; Farm Bureau, supra; First Nat’l Bank v. Mercantile Bank, 304 Ark. 196, 801 S.W.2d 38 (1990). Thus, we conclude that the trial court did not abuse its discretion when it found that the numerosity requirement had been satisfied.

B. Commonality

The second requirement of Rule 23 is that there are “questions of law or fact common to the class.” Ark. R. Civ. P. 23(a)(2). In this case, the questions common to all members of the class are: 1) whether Alliance is a true group master policyholder; 2) whether the policies issued by Mega are group or individual health insurance polices; 3) whether the policies are void because Mega failed to obtain written acknowledgements from their insureds that the policies were minimum basic benefits policies as required by Ark. Code Ann. § 23-98-107(a) (Repl. 1992); and 4) whether the policies are void because Mega failed to comply with Insurance Commission Rule 18 which requires a stamped notification on the first page of an individual health insurance policy that does not cover outpatient services.

If these issues are resolved in favor of the class, the individual members will have suffered a common injury of paying premiums for a void insurance policy. Thus, the class members may be entitled to rescission of the policies and a refund of the premiums paid, or coverage for outpatient services. Thus, we conclude that the trial court did not abuse its discretion when it found that the commonality requirement had been satisfied.

C. Predominance

The next logical issue is whether the “common claims predominate over any questions affecting only the individual members” as required by Rule 23(b). As previously discussed, there are several issues common to the class members. However, there are also several individual issues such as whether misrepresentations were made by the agents selling the policies, whether the insureds relied upon these misrepresentations, and the extent of each individual’s damages. Thus, the greater issue presented by this case is whether these common issues predominate over the individual issues such that certification is proper.

In International Union of Electrical, Radio & Machine Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988), we held that the predominance element could be satisfied if the preliminary, common issues were resolved before the individual issues. In Hudson, non-union workers sued the union for lost wages and personal and property damages that they suffered when they attempted to cross the picketline. Id. The case presented one common issue of whether the union could be held liable for the actions of its members, and several individual issues regarding the extent of damages. Id. In Hudson, we explained that:

By limiting the issue to be tried in a representative fashion to the one that is common to all, the trial court can achieve real efficiency. The common question here is whether the unions can be held liable for the actions of their members during the strike. If that question is answered in the negative, then the case is over except for the claims against the named individual defendants which could not be certified as a class action. If the question is answered affirmatively, then the trial court will surely have “splintered” cases to try with respect to the damages asserted by each member of each of the subclasses, but efficiency will still be achieved, as none of the plaintiffs would have to prove the unions’ basic liability.

Id. We also found that this bifurcated process was consistent with Rule 23(d) which allows the trial court to enter orders necessary for the appropriate management of the class action. Id.

Since Hudson, we have approved this bifurcated approach to the predominance element by allowing the trial courts to divide the case into two phases: 1) certification for resolution of the preliminary, common issues; and 2) decertification for resolution of the individual issues. For example, in Security Benefit Life Ins. Co. v. Graham, 306 Ark. 39, 810 S.W.2d 943 (1991), we allowed the court to certify a class action contesting the validity of an annuity policy despite the fact that there were individual issues regarding the law in thirty-nine states where the policies were issued because we found that “resolution of the common questions of law or fact would enhance efficiency for all parties, even if individual claims remained to be adjudicated.”

Likewise, in Summons v. Missouri Pacific Railroad, 306 Ark. 116, 813 S.W.2d 240 (1991), we affirmed a class action of plaintiffs who claimed they suffered a variety of damages when the defendant’s train overturned and released volatile and toxic chemicals into the area. The common issues were the existence of strict liability, and whether the railroad was negligent, while the individual issues were proximate causation and the extent of damages suffered by each class member. Id. As in Hudson and Security Benefit, we held that the case should proceed as a class action for resolution of the prehminary, common issues. We also admonished that predominance may not be determined by comparing the mere number of individual versus common claims. Id.

However, in Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995), we found that the bifurcated approach did not adequately resolve the predominance problem. In Arthur, the proposed class was a group of patients who had an experimental product called “Orthoblock” surgically implanted into their spines. Id. The common issue in Arthur was whether Orthoblock was a defective product, and there were numerous individual issues regarding informed consent, proximate causation, and damages. Id. The preliminary issue in Arthur, was what the patient knew prior to receiving the implantation. Id. If the patient was fuEy aware of the risks of the experimental treatment, then aE subsequent issues would be rendered moot. Id. The prehminary issue, therefore, was an individual issue instead of a common issue as in Hudson, Security Benefit, and Summons, thus rendering the bifurcated approach utilized by those cases impractical.

We find that this case is like Hudson, Security Benefit, and Summons, in that the prehminary issues for resolution are issues that are common to aE class members. For instance, the court must first determine whether the Alliance is a true group master pohcyholder, and whether the pohcy Mega issued was a group or individual pohcy. If the court finds that Mega issued a true group policy, then the notice requirements under Ark. Code Ann. § 23-98-107 (a) and Insurance Commission Rule 18 wih be rendered moot. Because we hold that the common issues presented by this case must be resolved prior to addressing the individual issues as in Hudson and its progeny, we conclude that the Jacolas have satisfied the predominance requirement.

D. Superiority

The next element of Rule 23, is that “a class action is superior to other avaEable methods for the fair and efficient adjudication of the controversy.” Ark. R. Civ. P. 23(b). We find that by first addressing the issues common to aE members of the class, the court can achieve real efficiency. See Lemarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991); Hudson, supra. Moreover, certifying this case as a class action is fair to both sides. By bifurcating the proceeding, Mega will be able to pursue its individual defenses, such as the defense that the Jacolas did not read their policy until after they filed this action, during the second phase of the trial. Hudson, supra. We also find that class certification is also fair to the plaintiffs because it is more economical to pursue the action as a class instead of individually. Summons, supra; Lemarco, supra. Thus, we also conclude that the superiority requirement has been satisfied.

E. Typicality

The next requirement is that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Ark. R. Civ. P. 23(a)(3). In Direct General Insurance Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997), we recently explained that the typicality requirement is satisfied if the representative’s claim arises from the same wrong allegedly committed against the members of the class. We have also adopted the following explanation of the typicality requirement taken from New-berg’s treatise on class actions:

Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. In other words, when such a relationship is shown, a plaintiff’s injury arises from or is directly related to a wrong to a class, and that wrong includes the wrong to the plaintiff. Thus, a plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims.

Id., (citing Herbert B. Newberg, Newberg on Class Actions, § 3.13, at pp. 166-67 (2d ed. 1985)) (emphasis added). Thus, when analyzing this factor, we focus upon the defendant’s conduct and not the injuries or damages suffered by the plaintiffs. Direct Gen., supra; Cheqnet, supra; Summons, supra.

In this case, the common issues are whether Alliance is a true group master policyholder, whether Mega issued group or individual policies, and whether Mega complied with the statutory and regulatory notice requirements. Each of these claims arise from Mega’s common course of selling an alleged group policy through Alliance. Because each of these common claims arose from the same wrong allegedly committed by Mega, we find no abuse in the trial court’s determination that the Jacolas’ claim is typical of the claims presented in the class action.

F. Adequacy

The last element is whether the Jacolas “will fairly and adequately protect the interests of the class.” Ark. R. Civ. P. 23(a)(4). We have previously explained that the three elements of this requirement are that:

(1) the representative counsel must be qualified, experienced and generally able to conduct the litigation; (2) that there be no evidence of collusion or conflicting interest between the representative and the class; and (3) the representative must display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation.

Direct Gen., supra; First Nat’l, supra.

In their complaint and request for certification, the Jacolas stated that their attorney, John Doyle Nalley, would fairly and competently represent the class. Absent a showing to the contrary, we may presume that the representative’s attorney will vigorously and competently pursue the litigation. Herbert B. Newberg, Newberg on Class Actions, §§ 3.24, 3.42 (3d. ed. 1992). Additionally, there is no evidence that the Jacolas have a conflict of interest with the class members. Thus, we hold that the first and second elements of the adequacy requirement have been established.

Finally, in order to establish adequacy, the representative must show some minimal interest in the case. We have held that this element of adequacy is satisfied if the representative displays a minimal level of interest in the action, a familiarity with the challenged practices, and the ability to assist in litigation decisions. Direct Gen., supra; Cheqnet, supra; Union Nat’l Bank v. Bamhart, 308 Ark. 190, 823 S.W.2d 878 (1992). During the hearing, Mike Jacola testified that he had read the complaint and understood the allegations against Mega. Jacola further testified that he had stayed in touch with his lawyer since the lawsuit was filed, that he understood his duties as class representative, and that he was willing to comply with those duties. Therefore, we conclude that the trial court did not err when it held that the Jacolas had fulfilled the adequacy requirement.

In response, Mega asserts that the Jacolas are inadequate representatives because their claim will ultimately fail due to the fact that they did not read their policy. This argument, however, ignores the Jacolas’ underlying claim on behalf of the class that the policies are void. Furthermore, Mega’s argument addresses the merits of the underlying case, and thus we will not consider it when determining whether the requirements of Rule 23 have been satisfied. Direct Gen., supra; Farm Bureau, supra; First Nat’l, supra. Thus, we also find no error in the trial court’s determination that the adequacy requirement had been satisfied.

For these reasons, we conclude that the trial court did not abuse its discretion when it held that class certication was proper under Rule 23. Accordingly, we affirm.

Affirmed.

Thornton, J., dissents

Ray Thornton, Justice,

dissenting. In order to obtain certification by the trial court for a class action, the Jacola family as plaintiffs have the burden of showing that the requirements for class certification have been met. The Jacolas have not met that burden in this case. I do not find that either the trial court’s order or the record reflects the type of rigorous analysis that I believe is required under Rule 23 to determine the reasons why the common questions predominate over the individual questions and why a class action is superior to other methods of trying the issues. Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995); see also Valentino v. Carter-Wallace, Inc., 97 F.2d 1227 (9th Cir. 1996).

Rule 23 of the Arkansas Rules of Civil Procedure provides for class certification when:

(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 will fairly and adequately protect the interests of the class.

Ark. R. Civ. P. 23(a). Additionally, the rule provides that a class action may be maintained if 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.

Ark. R. Civ. P. 23(b).

In the case before us, the trial court did not make the determination required by the rule as to predominance, or as to the superiority of a class action for a fair and efficient adjudication of the controversy. It seems to me that it is necessary that this matter be remanded to the trial court for consideration of these two criteria.

Predominance

We have held that it is not necessary that the questions of law and fact be identical, but that it is enough to show that a common question of law or fact predominates over other questions affecting individual members. Arkansas Louisiana Gas Co. v. Morris, 294 Ark. 496, 744 S.W.2d 709 (1988); see also Security Benefit Life Ins. Co. v. Graham, 306 Ark. 39, 810 S.W.2d 943 (1991) and International Union of Elec., Radio & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 709 (1988) (emphasizing the requirement that the questions of law or fact be predominant in order to meet the criteria of this rule). With regard to Rule 23 motions, we have specifically stated that we will follow the federal rules in class actions. Farm Bureau Mut. Ins. v. Farm Bureau Policy Holders, 323 Ark. 706, 918 S.W.2d 129 (1996). The Supreme Court, in interpreting Rule 23, has said that a class action “may only be certified if the trial court is satisfied after a rigorous analysis, that the prerequisites of Rule 23 have been satisfied.” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982) (emphasis supplied); see also Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996). In the recent case of Anchem Products, Inc. v. Windsor, 117 S. Ct. 2231 (1997), the Supreme Court affirmed a reversal by the Third Circuit Court of Appeals of a district court’s class certification, based in part upon a failure to show predominance as required by Rule 23. The Supreme Court stated:

We address first the requirement of Rule 23(b)(3) that “[common] questions of law or fact . . . predominate over any questions affecting only individual members.” The District Court concluded that predominance was satisfied based on two factors: class members’ shared experience of asbestos exposure and their common “interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system.”
The predominance requirement stated in Rule 23(b)(3), we hold, is not met by the factors on which the District Court relied. The benefits asbestos-exposed persons might gain from the establishment of a grand-scale compensation scheme is a matter fit for legislative consideration, see supra, at 2237-2238, but it is not pertinent to the predominance inquiry. That inquiry trains on the legal or factual questions that qualify each class member’s case as a genuine controversy, questions that preexist any settlement.
The Rule 23(b)3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. See 7A Wright, Miller, & Kane 518-159.

Id. at 2249 (footnotes omitted) (emphasis supplied).

At issue in this case is the plaintiffs’ reliance upon representations by Mega. The fact that each individual’s reliance on Mega’s representations, as well as the uniformity of the representations, will be questioned, further underscores the importance of rigorously analyzing whether the common issues predominate. As pointed out by the Fifth Circuit in Simon v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 482 F.2d 880 (5th. Cir. 1973):

If there is any material variation in the representations made or in the degrees of reliance thereupon, a fraud case may be unsuited for treatment in a class action. Thus, courts usually hold that an action based substantially, as here, on oral rather than written misrepresentations cannot be maintained as a class action. Similarly, if the writings contain material variations, emanate from several sources, or do not actually reach [certain class members], they are no more valid a basis for a class action than dissimilar oral representations.

Id. (citations omitted) (emphasis supplied). In Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995), when reversing a class certification of a medical malpractice case that involved a question of informed consent, we found that the issues regarding what was said to each patient, the emotional condition of the patient, and each patient’s understanding would make the individual questions predominant. Quoting Brown v. Regents of University of California, 151 Cal. App. 3d. 982, 198 Cal. Rptr. 916 (3d Dist. 1984), we noted that where close scrutiny is required as to what representations are made to each plaintiff, it cannot be said that the common issues predominate.

Conversely, in Lemarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991), a suit by members of a buyers’ club against the club, the record shows that there was testimony that salesmen were trained by video tape, that they were instructed what to say and how to make the sales presentations, and that the presentations were virtually the same for each customer. Further, the mail solicitation and retail sales were the same for each member of the class. We relied upon these facts in upholding the trial court’s order of class certification. As this is an action involving questions of misrepresentation and rebanee, I do not believe we should affirm without such a showing in this case.

Superiority

Rule 23(b) also requires the court to find “that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” In determining the answer to this inquiry, the court must first consider what other procedures, if any, exist for disposing of the dispute before it. 17A Charles Alan Wright et al, Federal Practice and Procedure § 1779, at 551 (2d ed. 1986). It must then compare possible alternatives to determine “whether Rule 23 is sufficiently effective to justify the expenditure of the judicial time and energy that is necessary to adjudicate a class action and to assume the risk of prejudice to the rights of those who are not directly before the court.” Id. No such determination was made by the trial court here. I would remand with directions to make the required determinations under Rule 23. I respectfully dissent.