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ARKANSAS COURT OF APPEALS

DIVISION IV No. CV-13-3

Opinion Delivered September 78, 2073 BANK OF THE OZARKS, INC., and BANK OF THE OZARKS APPEAL FROM THE LONOKE APPELLANTS COUNTY CIRCUIT COURT [NO. CV -2011-777) V. HONORABLE SANDY HUCKABEE, ROBERT WALKER, ANN B. HINES, JUDGE and JUDITH BELK APPELLEES REVERSED AND REMANDED

RHONDA K.\VOOD,Judge

Appellanr, Bank of the Ozarks, appeals from the denial of its motion to compel

arbitration of appellees'class-action complaint.lThe circuit court ruled that rhe arbitration

clause in the deposit agreement between the bank and appellees was unconscionable. The

bank argues that the circuit coult erred and that the arbitration clause is enforceable. We

agree and reverse and remand for entry of an order compelling arbitration.

Appellees each have a checking account with the bank. A deposit agreement

govems these relationships and includes, among other things, an arbitration clause,2 a class-

I An order denying a motion to compel arbitration is immediately appeaiable. Ark. R. App. P.-Civil 2(a)(12) (2012). 2 The arbitration clause reads as follows:

ARBITRATION. You or we may require that any controversy or claim relating to this agreement, or breach of it, be resolved through arbitration administered by rhe American Arbitration Association under its Cite as

action waiver, and a jury-trial waiver. Appellees have filed a class-action complaint,

arguing that the bank had intentionally processed more expensive debit transactions first in

order to capitalize on overdraft charges. In lieu of an answer, the bank moved to compel

arbitration under the agreement. However, the circuit court found that the arbitration

provision was unconscionable and unenforceable and denied the bank's motion to compel. -We review the circuit court's order denying a motion to compel de novo on the

record. Aduance Am. Seruicing oJ Ark., Inc. u. McGinnis,

,289 S.'W.3d 37

(2008). In a de novo review, we review the evidence and the law without deference to

the trial court's rulings. Terminix Int'l Co, u. Tiuitt,

,289 S.'w.3d 485

(2008). Arbitrarion is strongly favored as a matter of public policy as a less expensive and

more expeditious means of settling litigation and relieving docket congestion . CEI Eng'g Assocs. u. Elder Constr. Co.,

,

.

In assessing whether a particular contract or provision is unconscionable, we review

the totaliry of the circumstances surrounding the negotiation and execution of the

contract. State ex rel. Bryant v. R E A Inu. Co.,

, 985 S.'W.2d299 (1999).

Two important considerations are whether there is a gross inequaliry of bargaining power

between the parties to the contract and whether the aggrieved parry was made aware of

and comprehended the provision in question.

Here, the circuit court also considered additional factors that federal district courts

in Arkansas have applied regarding unconscionabiliry. First, it considered whether the

commercial rules. Judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction. Cite as

words were hidden in a rnaze of fine print and whether the agreed upon terms were in a

prolix printed form drafted by the parry seeking to enforce the disputed rerms. See Enderlin

u. XM Satellite Radio Holdings, 12r., No. 4:06-CV-0032 GTE,

(E.D.

Ark. Mar. 25,2008). Second, the court considered whether the arbitration provision's

terms were "harsh, one-sided, or oppressive." Cobeyn u. Trauelers Indem. Co., No.

1:09CV00034 JLH,

(E.D. Ark. Sept. 24, 2009)."Whiie no Arkansas

state case requires it, the circuit court appeared to rule that the arbitration clause was both

substantively and procedurally unconscionable. Without deciding whether both are

required, we hold that appellees failed to prove either one.

First, the record lacks any evidence surrounding the negotiations and execution of

the deposit agreement. No evidence, testimony, or affidavits were presented, and the

court relied only on the pleadings and arguments of counsel. Statements by counsel are

not evidence. See Roberts u. Creen Bay Packaging, lnc.,

.W.3d 125

(2008). Thus, the court couid not know whether appellees read the deposit agreement,

understood its cerms, or any of the circumstances surrounding its execution. Second, there

is nothing unconscionable about the arbitration clause itself. Either parry can request

arbitration, so the provision does not oflend the mutualiry doctrine. See Asbury Auto. Used

Car Ctr. u. Brosh,

,,

(2005) (holding that

"[m]utualiry within the arbitration agreement icself is required" and that "[a] lack of

mutuality to arbitrate in arbitration clauses renders the clauses void as to the bound

parry.").This belies the circuit court's conclusion that the arbitration clause was one-sided

because either parry could choose arbitration over a courtroom. Cite as

In short, appellees presented no persuasive proof on the relevant unconscionabiliry

considerations. Therefore, it was error for the circuit court to deny the bank's motion to

compel on those grounds. Appellees only presented counsel's arguments regarding the

agreement's execution. Those arguments are not evidence. Further, nothing in the

agreement itself is substantively unconscionable-it contains mutual promises, and either

parfy can require arbitration. lJnder our de novo review, we reverse the order denying

the motion and remand the case for entry of an order compelling arbitration. See CEI

Eng'g, supra.

Finally, appellees argue, for the first time on appeal, that no valid agreement to

arbitrate even exists. It is true that "[a] threshold inquiry is whether an agreement to

arbitrate exists; that is, whether there has been mutual agreement, with notice as to the

terms and subsequent assen t." Alltel Corp. u. Sumner,

,203 S.W.3 d 77,

80 (2005). But we do not consider arguments raised for the first time on appeal and will

not address an argument on appeal rf a parry has failed to obtain a ruling below. Boellner u.

Clinical Study Ctrs.,

S.W.3d 745. 'Whether an arbitration agreement

exists was neither raised nor ruled on below, and we do not consider it now. See Gwin v.

Daniels,

,

(2004) (stating that failure to obtain a ruling

precludes appellate review because, under appellate jurisdiction, we can only review a

lower court's rulings or orders).

Reversed and remanded.

GRrmnR and HlxsoN,JJ., agree. cA 13-3 IN THE ARKANSAS COI]RT OF APPEALS

BAI\IK OF IHE OZARKS,INC., ANd BAI\IK OF THE OZARKS

Y. Case No. 13-3

ROBERT WALKER, AIYN B.IIINES And JLIDITH BELK

APPELLAIYTS' ABSIRACT, BRIEF AI\[D ADD I]M

ON APPEAL FROM TTTN CIRCTIIT COTJRT OF COUNTY

TEE HONORABLE SANDY HUCKABEE, CIR JT]DGE

ROSE LAW FIRIVI, a Professional Association 120 East Fourth Street Little Roclr, Arkansas 72201-2893 (s01) 37s-9131

By: Richard T. Donovan (83054) Amanda IC Wofford (2005023) Betsy Turner-Fry (2010128) ILED FEB lE 2013 Attorneys for Appellants W. STEEN EtrRK cAl3-3 IN TIIE ARKAIISAS COI'RT OF APPEAIS

BANK OF THE OZARKS,INC., and BANKOFTIIE OZARKS APPELLAIYTS

Y. NO.l3-3

ROBERT WALKE& ANN B.IIINES, end JI,IDITII BELK APPELLEES

ON APPEAL TROM THE CIRCUIT COT'RT OF LONOKE COUNTY

TEE HONORABLE PARKER SAI\IDERS SUCKABEE, CIRCT]TT JI'DGE

APPELLEES' BRMF

Randall IC Pulliam (#9E105) Ruben Honik(PHY) Brcean lYates (#206077) GOLOMB& EONtr(,P.C. CARTttrY BATES & PIJLLIAM, PLLC 1515 Merkct Str€et, Suite llfi) 11311 Arcade Drive, Suite 2fi) Philadelphia, PA f9f02 Little Rock, Arkansas 72212 Qtq9,,*9177 ,ED* F!f