*1 Date § Effective upon rules are effective emergency
These
filing.
ASSET NEWBY,
Amy Murphy Appellee.
No. CV-13-319.
Supreme Court of Arkansas. 19, 2014.
June
cross-appeal the circuit court’s decision denying against sanctions Asset pursuant to Arkansas Rule of Civil Procedure As is an interlocutory appeal this case from a denied motion to arbitra- tion, proper our is pursuant to Appellate Arkansas Rule of Procedure- 2(a)(12) (2013). Civil We affirm on direct ^appeal. appeal and dismiss the cross-1 acquires Asset debts and collects de- debts, including faulted credit-card debts. 28, 2012, February On Asset a filed com- plaint against Newby, alleging that she had received credit card from Asset and that her account past was due and re- unpaid. complaint sought mained $6,204.35, judgment in the amount of inter- $4,907.73, in est the amount of and costs PLLC, Rock, Dover Dixon Home Little attorney’s April fees. On Smith, by: Michael G. appellant. for Newby filed an answer and asserted a against counterclaim Asset. Poynter LLP, Emerson her an- by: Scott E. swer, Poynter, Newby denied that she ever Corey Little Rock and D. McGa- had ha; Firm, by been issued a credit The Cruz Law Hot card Asset and Springs, by: Cruz; Arnold, Batson, owing any denied Asset for Kathy A. overdue bal- Turner & Turner, Turner; ance. She by: Todd M. asserted class-action counter- Arkadelp- hia, Jonesboro, alleging claim violations of the Hargis, and Joel for Fair Debt appel- lee. Collection Practices Act and the Arkansas Act,
Deceptive Trade Practices and claims GOODSON, enrichment, COURTNEY HUDSON unjust malicious prosecu- tion, Justice. process. and abuse of Essentially, history contended that Asset had a | Appellant (As- Acceptance, Asset LLC making false or allegations reckless re- set) appeals an order of the Pulaski Coun- garding outstanding the existence of debts. ty Circuit Court its motion to 11, 2012, On October Asset filed a mo- compel arbitration of a by suit filed Asset tion to asserting that against appellee Amy Murphy the original credit card was issued to New- by a counterclaim Newby individually filed (Chase) by by Chase Bank Visa Credit and behalf of a of similarly class situat- subject was to a Cardholder reversal, persons (Newby). ed For Asset an provision. contained arbitration contends that the circuit court in erred Asset, According to Agree- concluding that right Asset had waived its provides, part: ment in relevant to arbitration by filing complaint its in circuit court. Asset also Any dispute may asserts that it binding be resolved presented enough specific evidence to arbitration. replaces Arbitration show that its claim against Newby, right as well go court. You will not be counterclaim, as her subject were an bring able to a class action or other agreement. Newby has filed a representative action court. made step” by filing This Arbitration “affirmative its lawsuit in- involving to a transaction circuit court pursuant “implemented commerce, gov- terstate and shall be litigation machinery” of the circuit by issuing subpoenas erned and enforceable under discovery, for *3 (The “FAA”), Federal Arbitration Act 9 in to requesting damages, addition attor- fees, § may Moreover, 1-16 as it be amended. ney’s U.S.C. and interest. New- This Arbitration set forth that contended Asset’s motion to ^compel procedures circumstances and under “lacks a factual basis to determine (as below) may which claims defined be alleged assent to the agree- [arbitration] being resolved arbitration instead of ment.” litigated in court. 13, 2013, February On the circuit court
| and copy attached a an undated sAsset hearing held a compel Asset’s motion to unsigned Agreement, which it Cardholder arbitration, sanctions, Newby’s motion for account, governed Newby’s contended pending several other motions. Dur- purporting bill of sale to show that Asset ing hearing, the circuit court made the Chase, several accounts from purchased following statement from the bench: spreadsheet excerpt purported card, Assuming that it’s in fact a Chase Newby outstanding to show that had an or provided that it’s the information balance on her account. has the plaintiff [Asset] 24, 2012, Newby On October filed a mo- jurisdiction has invoked the of this opposition compel tion in to the motion to The plaintiff Court. did not file arbitra- motion, Newby arbitration. In that as- proceedings. tion The plaintiff invoked right serted that Asset had waived its of this Court with re- compel by filing arbitration an action to the spect named defendant. The court, that Asset was not entitled to arbi- plaintiffs motion to compel arbitration is tration because Chase was not named as a denied. The defendant’s motion for action, in any codefendant and that Asset sanctions denied. produce Newby’s had failed to evidence of 1, 2013, Subsequently, on March the cir- Subsequently, assent to arbitrate. Asset dispos- cuit court entered a written order documentary supplement
filed a to its mo- ing compel of Asset’s motion to 12, compel February tion to arbitration on Newby’s motion for sanctions as fol- supplement 2013. Attached to that were lows, part: in relevant purporting additional documents to show 4. Acceptance’s Motion to Com- Newby had a credit with Chase card pel Stay Arbitration and Plaintiffs Com- timely and that she had failed to make plaint is denied. payments on her account. Included with Newby’s 5. Ms. Motion for Sanctions is these documents were additional account denied. statements that Asset contended were Newby previous place mailed to at her of The circuit court’s order contains no find- residence. ings regarding or conclusions law these timely two filed a notice of motions. Asset Newby’s motion for sanctions filed was order, appeal from this filed a motion, on November In her timely cross-appeal. Newby contended that Asset’s motion well-grounded appeal, Newby arbitration was not On maintains that Asset agreement in fact and not warranted under exist- has failed to show that an was ing law. asserted that Asset took arbitrate existed because it has failed to
122
Archer,
Ark.
147 S.W.3d
evidence that
present any specific
(2004).
was communicated
that the circuit court
argues
to her. Asset
Recently,
rejected
this court
the notion
to arbi-
implicitly found that
implicitly
a circuit
can
rule on
As-
the court denied
trate existed because
whether an arbitration
exists
arbitration on the
set’s
motion
by simply denying
a motion to
waiver is the
Because
basis of waiver.
grounds.
arbitration on other
Bank
see,
right,
e.g.,
a known
relinquishment of
Walker,
at
State,
S.W.Bd
T.C. v.
(“The
357, 361
Bank takes the
must
that the circuit court
Asset contends
position
implicitly,
that the circuit court
if
*4
|
found that the arbitration
implicitly
found,
shave
that
expressly
not
there was Ra
to reach the
agreement existed
order
valid
such
agreement.
arbitration
Without
hearing.
during
waiver issue
the
however,
can
finding,
only speculate
a
we
about whether the circuit court considered
compel
to
a court
asked
When
issue.”).
Ozarks,
the
In Bank
the
of
deciding
it is limited to
two
court reversed and remanded for the cir
1) Is there a valid
questions:
threshold
of
disputed
cuit court to resolve the
issue
par
the
agreement
between
arbitrate
agree
mutual assent
to the arbitration
2)
exists,
If
ties? and
such
ment,
a circuit
holding that
court must
scope?
within its
Le
dispute
does the
fall
rule on the
of
threshold issue
contract
McIllwain,
Ark.
galZoom.com,
v.
2013
Inc.
determining
formation before
whether the
Arkansas,
370,
as
429
a
S.W.3d
scope
claims fall within the
of the arbitra
policy, arbitration is
public
matter of
tion agreement
considering any
and before
strongly
upon
favored and is looked
with
might
defenses that
otherwise invalidate
by
expensive
a less
approval
courts as
the agreement. While at first blush it
settling litiga
more
means of
expeditious
might
in Bank
appear
holding
our
of
congestion.
relieving
tion and
docket
the
us to
require
Ozarks would
reverse and
Ark,
Cash in a Flash Check Advance of
remand this case for the circuit court to
459,
v.
348 Ark.
Spencer,
L.L.C.
question
rule on the
of whether a valid
(2002).
question
The
600
of whether
exists, we
arbitration
find that
dispute
be submitted to
should
arbitration
present
distinguishable
the order in
case is
is a matter
construction.
of contract
from Bank
the Ozarks and is not con
Cashers,
v.
Showmethemoney Check
precedent.
trolled
Williams,
112,
Ark.
27
361
342
S.W.3d
(2000).
rules of
In Bank
the circuit
same
construction
interpretation apply
to arbitration
court’s written order denied the motion to
agreements
agreements gener
solely
eq
arbitration based
on the
apply
as
Co.,
v.
uitable
that the
ally. May
agree
Constr.
Inc. Benton Sch.
defense
arbitration
Dist. No.
320 Ark.
assent, waiver, oth mutuality, among (holding that the trial court did not err in Therefore, ers, circuit court. we to the finding no mutual assent to the arbitration conclude that the circuit court’s blanket provision in a contract where the customer compel denial of the motion to within days cancelled the contract ten ruling constitutes a on all of the issues contract). receipt of the by parties. raised the Because the cir Sumner, Corp. appeal- In Alltel v. Alltel cuit has on the threshold is ruled arbitration, compel motion ed a denied assent, of mutual this case is distin sue contending company’s that the service guishable from Bank the its and conditions agreement and terms reviewing from precluded we are not provision. contained an arbitration While appeal.1 merits of this agreed they that subscribed appellees service, telephone they Alltel’s wireless
Turning to the merits of Asset’s knowledge about we must first determine whether submitted no evidence appeal, is, agreement and its terms and an to arbitrate exists. That the service In of the motion to agreement, support there has mutual conditions. whether been arbitration, Alltel relied on an affi- subsequent with notice as to the terms and Rather, holding necessary for our review. implicate 1. does not our in issue was This case Lottery Alpha Market- Arkansas Commission issues are because the threshold arbitration ing, nature, 386 S.W.3d where we jurisdictional in this case is more not held that the circuit court's failure to make an Hardin, supra. holding Our similar to our sovereign express on the issue of im- premised on order munity precluded im- the Commission from arbitration, which we clear- motion to case, mediately appealing the order. In that ly R.App. P.-Civ. have in this case. sovereign immunity juris- was the basis of our 2(a)(12). diction, such, specific finding and as on that 2009). However, compa- by that because the the cases cited Asset suggesting davit provide distinguishable is to are because in those cases ny’s practice procedure prior of the terms and conditions to the courts determined that the credit-card copies service, appellees re- holder had in fact used the card or made the initiation of provision. payments the arbitration on the card balance. In the ceived notice of case, Alltel instant the circuit court never made Corp., any finding Newby opened The circuit court denied Alltel’s motion to the credit- issue, finding that Alltel of- card account at much less made a proof purchase using payment that the arbitration the card or a fered insufficient fact, Newby to the appellees. clause was communicated account. contends that order, affirmed the circuit court’s hold- she has never had or used the credit-card We ing specific seeking paym there must be evidence account for which Asset is implemented prac- that the those ent.2 company procedures tices and such that notice to also attempts appli- to avoid the 11ftAsset in- party reasonably
the affected
can be
of this
precedent by
cation
court’s Alltel
ferred from the circumstances.
asserting that the arbitration clause is sub-
case,
(FAA)
present
guided
ject
we are
not
to the Federal
Act
Arbitration
lain
review,
only by
governed by
our de novo standard of
and is
the laws of Delaware.
Here,
argument
but also
our decision Alltel.
Asset bases this
on the fact that
copy
Asset attached a
of a Cardholder
states
alleged
it
was entered into
governed
arbitration clause is
the FAA
However,
governing
between
and that the
law for the agree-
Chase.
law,
unsigned.
is undated and
ment is “federal
and to the extent
*6
face,
nothing
On its
there is
to connect the
state law applies, the law of Delaware.”
Newby
to
or her
Agreement
Again,
argument presupposes
Cardholder
this
Moreover,
account.
no evi Newby
subject
Asset offers
was
to the terms of the
Furthermore,
dence of when this Cardholder
Agreement.
Cardholder
Newby by
party
was communicated to
Chase.
this court will determine whether a
Instead,
agreed
Asset
that because New-
to
applying
contends
arbitrate before
card,
agreed
used Chase credit
she
to FAA. Ruth R. Remmel Revocable
Trust
392,
Regions
terms of the attached
Fin.
Corp.,
Cardholder
369
255
(2007).
Agreement.
In support, Asset cites this S.W.3d 453
Because arbitration is
Bank,
court to Grasso v. First
713 a matter of contract
the parties,
USA
between
it
304,
A.2d
(Del.Super.Ct.1998)
way
disputes
309
and In
is a
to resolve those
—but
Brown,
(Bankr.E.D.Ark.
re
403 B.R.
4
only
disputes
parties
those
have
—that
provided by
2. The
complaint
account statements
Asset
answer to the
and the amended
opened
show that an account was
in the name
complaint, Newby denied that
ever re-
she
Amy Murphy
Countrywide
for a
Visa. The
ceived a credit card from either Asset or
logo
account statements also have a
for Fir-
Thus,
has,
best,
Chase.
at
made an
upper right-hand
stUSA in the
corner. An
allegation
Newby
was
issued
used
Corporate Secretary
affidavit from Chase’s
subsequently
credit
FirstUSA
card that was
subsidiary
JPMorgan
states that Chase is a
acquired by
pre-
Chase. Were this court to
acquired
According
FirstUSA Bank.
card,
Newby
sume that
credit
used Chase
affidavit,
gone by
FirstUSA Bank has also
nothing
there is
in the record to confirm that
Chicago,
Corpora-
the names First
Bank One
the Cardholder
attached to the
tion, and Bank One. There is no mention of
motion to
was in effect at the time
Countrywide being one of the business aliases
Newby allegedly used a Chase credit card.
FirstUSA, Chase,
JPMorgan.
or
In her
Op-
Finally,
to arbitration. First
we
agreed
Newby’s
to submit
dismiss
cross-
Chicago,
Kaplan,
514 U.S.
tions
appeal of her denied motion for Rule 11
115 S.Ct.
131 L.Ed.2d
Appellate
sanctions. Arkansas Rule of
(1995).
merely provides
The FAA
a forum
2(a) provides
Procedure —Civil
for this
private disputes
par-
to resolve
when the
court’s
over interlocutory ap
agreed
ties have
to use such a forum. peals only in specific circumstances. The
Bank, N.A.,
Danner v. MBNA Am.
369 denial of a motion for sanctions under Rule
(2007)
(citing
S.W.3d
11 is not one of those circumstances. This
Indus.,
v. Exalon
Corp.
MCI Telecomms.
appeal
permitted
on an interlocutory
Cir.1998)).
(1st
Inc.,
to that clause use of the credit card. dissenting. Accordingly, we affirm the circuit court’s *7 I majority’s opinion dissent from the in
order
Asset’s motion to
appeal.
simply
the direct
I
agree
cannot
arbitration. Because the additional issues
distinguished
that the instant case can be
argued by
Newby presume
Asset and
the
Walker,
Ozarks,
from Bank
v.
the
requiring
existence of
contract
arbitra-
of
tion,
we need not address those issues.
2014 Ark.
434 S.W.3d
handed
parties clearly
3. We note that
outcome
De
this
is consistent
cial determination unless the
otherwise)).
Supreme
unmistakably provide
laware law as well. The Delaware
While
recognized
proceeding
recognize
any
Court has
that in a
to
Delaware
courts
doubts as
arbitration,
stay
question
arbitrability
or to
the
of
to
are to be resolved
favor of
arbitration,
agreed
parties
gen
compel party
whether the
to arbitrate is
a court will not
to
arbitrate,
erally
expression
one for the courts and not for the
absent a clear
of such
Interactive,
Corporate
(citing
arbitrators. SBC
intent. Id.
Pettinaro Constr. Co. v. Har
Partners,
(Del. 1998)
Sons, Inc.,
ry
Partridge,
Media
714 A.2d
&
C.
Jr.
The did ju- CORBIN, J„ ceedings. plaintiff HANNAH, C.J., The invoked join. respect with risdiction this Court named defendant. skipped
Because the circuit court over the on the step making a determination
first issue of whether there was an
threshold the circuit
agreement, just as court did we must reverse and Bank of App. anything. remand if stare decisis means Toby LaPOINTE, Appellant disregard the cir- majority wants to cuit court’s oral because the written
ruling simply reflects that Asset’s motion TECHNOLOGY, INC., Appellee. NEW sup- arbitration was denied. No. CV-13-899. this, in which port of cites to case 113it court held that a circuit court is free Appeals of Arkansas. Court alter its decision on further consider- *8 June ation of the matter and the written order Ctrs., controls. Nat’l Home See
Coleman,
(2007) (citing McGhee v. Arkansas Bd. of Agencies,
Collection (2006)). per- that makes
S.W.3d While sense in cases where there is some
fect
sort of conflict between oral called for in a ruling,
the written it is not ruling simply ex-
ease which oral the written
plains reasoning behind