Cite as 2013 Ark. App. 517 ARKANSAS COURT DIVISION IV No. CV-13-3 BANK OF THE OZARKS, INC., and BANK OF THE OZARKS APPELLANTS V. ROBERT WALKER, ANN B. HINES, and JUDITH BELK APPELLEES RHONDA K.\VOOD,Judge Appellanr, Bank of the Ozarks, appeals from arbitration of appellees'class-action complaint.lThe clause in the deposit agreement between the bank argues that the circuit coult erred and agree and reverse and remand for entry of an order Appellees each have a checking account with govems these relationships and includes, among I An order denying a motion to compel R. App. P.-Civil 2(a)(12) (2012). 2 The arbitration clause reads as follows: ARBITRATION. You claim relating to this agreement, or breach of arbitration administered by rhe American Arbitration OF APPEALS Opinion Delivered September 78, 2073 APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT [NO. CV -2011-777) HONORABLE SANDY HUCKABEE, JUDGE REVERSED AND REMANDED the denial of its motion to compel circuit court ruled that rhe arbitration bank and appellees was unconscionable. The that the arbitration clause is enforceable. We compelling arbitration. the bank. A deposit agreement other things, an arbitration clause,2 a class-arbitration is immediately appeaiable. Ark. or we may require that any controversy or it, be resolved through Association under its
Cite as 2013 Ark. App. 517 action waiver, and a jury-trial waiver. Appellees have arguing that the bank had intentionally processed order to capitalize on overdraft charges. In lieu arbitration under the agreement. However, provision was unconscionable and unenforceable -We review the circuit court's order denying a motion record. Aduance Am. Seruicing oJ Ark., Inc. u. McGinnis,375 (2008). In a de novo review, we review the the trial court's rulings. Terminix Int'l Co, u. Tiuitt, 104 (2008). Arbitrarion is strongly favored as a matter of more expeditious means of settling litigation Assocs. u. Elder Constr. Co., 2009 Ark. App. 259, In assessing whether a particular contract the totaliry of the circumstances surrounding contract. State ex rel. Bryant v. R E A Inu. Two important considerations are whether there is between the parties to the contract and whether and comprehended the provision in question. Here, the circuit court also considered in Arkansas have applied regarding unconscionabiliry. First, it considered whether the commercial rules. Judgment on any award entered in any court having jurisdiction.filed a class-action complaint, more expensive debit transactions first in of an answer, the bank moved to compel the circuit court found that the arbitration and denied the bank's motion to compel. to compel de novo on the Ark. 24,289 S.'W.3d 37 evidence and the law without deference to Ark. App. 1,22,289 S.'w.3d 485 public policy as a less expensive and and relieving docket congestion . CEI Eng'g 306 S.W.3d 447. or provision is unconscionable, we review the negotiation and execution of the Co.,336 Ark. 289, 985 S.'W.2d299 (1999). a gross inequaliry of bargaining power the aggrieved parry was made aware of Id. additional factors that federal district courts rendered by the arbitrator may be
Cite as 2013 Ark. App. 517 words were hidden in a rnaze of fine print and whether prolix printed form drafted by the parry seeking u. XM Satellite Radio Holdings, 12r., No. 4:06-CV-0032 GTE,2008 WL Ark. Mar. 25,2008). Second, the court considered terms were "harsh, one-sided, or oppressive." Cobeyn u. 1:09CV00034 JLH, 2009 WL 3148755 (E.D. state case requires it, the circuit court appeared to substantively and procedurally unconscionable. Without required, we hold that appellees failed to prove either First, the record lacks any evidence surrounding the deposit agreement. No evidence, testimony, court relied only on the pleadings and arguments not evidence. See Roberts u. Creen Bay Packaging, (2008). Thus, the court couid not know whether understood its cerms, or any of the circumstances surrounding is nothing unconscionable about the arbitration arbitration, so the provision does not oflend the Car Ctr. u. Brosh,364 Ark. 386,391,,220 S.W.3d "[m]utualiry within the arbitration agreement mutuality to arbitrate in arbitration clauses parry.").This belies the circuit court's conclusion because either parry could choose arbitration the agreed upon terms were in a to enforce the disputed rerms. See Enderlin 830262 (E.D. whether the arbitration provision's Trauelers Indem. Co., No. Ark. Sept. 24, 2009)."Whiie no Arkansas rule that the arbitration clause was both deciding whether both are one. the negotiations and execution of or affidavits were presented, and the of counsel. Statements by counsel are lnc.,101 Ark. App. 160, 2725.W.3d 125 appellees read the deposit agreement, its execution. Second, there clause itself. Either parry can request mutualiry doctrine. See Asbury Auto. Used 637,640-41 (2005) (holding that icself is required" and that "[a] lack of renders the clauses void as to the bound that the arbitration clause was one-sided over a courtroom.
Cite as 2013 Ark. App. 517 In short, appellees presented no persuasive proof on considerations. Therefore, it was error for the circuit court to deny compel on those grounds. Appellees only presented counsel's agreement's execution. Those arguments agreement itself is substantively unconscionable-it parfy can require arbitration. lJnder our de the motion and remand the case for entry of Eng'g, supra. Finally, appellees argue, for the first time on appeal, arbitrate even exists. It is true that "[a] threshold inquiry arbitrate exists; that is, whether there has been mutual terms and subsequent assen t." Alltel Corp. u. Sumner,360 80 (2005). But we do not consider arguments not address an argument on appeal rf a parry Clinical Study Ctrs.,2011 Ark. 83,378 S.W.3d 745. exists was neither raised nor ruled on below, and we do not consider it now. See Gwin Daniels, 357 Ark. 623, 184 S.W.3d 28 (2004) (stating precludes appellate review because, under appellate lower court's rulings or orders). Reversed and remanded. GRrmnR and HlxsoN,JJ., agree.the relevant unconscionabiliry the bank's motion to arguments regarding the are not evidence. Further, nothing in the contains mutual promises, and either novo review, we reverse the order denying an order compelling arbitration. See CEI that no valid agreement to is whether an agreement to agreement, with notice as to the Ark. 573, 576,203 S.W.3 d 77, raised for the first time on appeal and will has failed to obtain a ruling below. Boellner u. 'Whether an arbitration agreement v. that failure to obtain a ruling jurisdiction, we can only review a
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