author: Ray Thornton, Justice. Tom Glaze, Justice,

text:
    STATE of Arkansas v. Eugene HULUM
    CR 01-1271
    78 S.W.3d 111
    Supreme Court of Arkansas
    Opinion delivered June 20, 2002

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., and Vada Berger, Ass’t Att’y Gen., for appellant.

      James Law Firm, by: William O. James and Clay T. Buchanan, for appellee.
   Ray Thornton, Justice.

This is a State's appeal from the conviction of appellee, Eugene Hulum, of manslaughter for the death of his nineteen-month-old son, Marquis Hulum. Appellee does not appeal from that conviction. The State acknowledges that the jury’s manslaughter verdict operates as an acquittal for double-jeopardy purposes on the charges of capital murder and first-degree murder on which the jury was also instructed, making retrial of appellee on those charges impermissible. See e.g., Price v. Georgia, 398 U.S. 323, 329 (1970). Based on these double-jeopardy principles, the State does not request that we reverse or remand this case, but merely requests that we declare error on two points.

Before reaching the merits of the State’s appeal, we must consider whether this matter is properly before this court. Rule 3 of the Appellate Rules of Procedure&emdash;Criminal allows the State to • pursue a criminal appeal in certain cases. The rule provides:

If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal.

Ark. R. App. P. — Crim. 3(c).

In State v. Ashley, 347 Ark. 523, 66 S.W.3d 563 (2002), we outlined the requirements for a State’s appeal. We explained:

In criminal cases, we accept appeals by the State in limited circumstances. State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000). This court has held our review of a State appeal is not limited to cases that would establish precedent. State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997). Moreover, there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. The former is a matter of right, whereas the latter is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to Rule 3. State v. Guthrie, 341 Ark. 624, 19 S.W. 3d 10 (2000); State v. McCormack; supra. We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Rule 3(c). As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of law. State v. Banks, 322 Ark. 344, 909 S.W.2d 634 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994).
Appeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997); State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916). Thus, where the resolution of the issue on appeal turns on the facts unique to the case, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State. State v. Guthrie, supra; State v. Howard, 341 Ark. 640, 19 S.W.3d 4 (2000); State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997); State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992) (“Here, the State questions the trial court’s application of our rule to the facts at hand and not its interpretation, so the appeal must be dismissed.”). This court will not even accept mixed questions of law and fact on appeal by the State. State v. Gray, supra; State v. Edwards, supra; State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997) (“Because the issue presented in this appeal involves a mixed question of law and fact, an interpretation of our rules with widespread ramifications is simply not at issue here.”). Likewise, where an appeal raises the issue of application, not interpretation, of a statutory provision, it does not involve the correct and uniform administration of the criminal law and is not appealable by the State. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995); State v. Mazur, 312 Ark. 121, 847 S.W.2d 715 (1993).

Ashley, supra.

With these legal principles in mind, we must determine whether the issues raised by the State involve matters that are important to the correct and uniform administration of criminal law. The State has raised two issues for our review. First, the State requests that we declare that the trial court erred when it gave- the jury the extreme-emotional-disturbance manslaughter instruction. We conclude that the first assignment of error raises a mixed question of fact and law concerning an alleged misapplication of a statute to the facts surrounding a particular case, as more fully developed below.

Second, the State requests that we declare that the trial court erred when it applied the provisions of Act 248 of 2001 to appellee’s trial before that Act became effective. This assignment of error relates to an alleged error made by the trial court in treating a newly passed statute as becoming effective before it becomes effective. Because the statute has now become effective, and because the subject of the statute relates to the effect of an acquittal on the grounds of a mental disease or defect, on which grounds appellee was not acquitted, we conclude that the second assignment of error is now moot, and any decision on that matter would be advisory. Because the question raised by the State does not present an issue with widespread ramifications, and is arguably raised simply to demonstrate the fact that the trial court erred, we decline to address the matter. See Ashley, supra.

With respect to the allegation that the trial court erred in giving a manslaughter instruction relating to the death of Marquis Hulum, we first consider under what circumstances the State may appeal from the giving of a particular jury instruction. In this case, the State argues that the extreme-emotional-disturbance manslaughter instruction should not have been given. The State does not argue that this manslaughter instruction does not relate to a lesser-included offense, but rather asserts that the trial court erred in his interpretation of the applicable statute.

We considered the issue of whether the State may challenge the giving or not giving of a particular jury instruction in State v. McCormick, 343 Ark. 285, 34 S.W.3d 735 (2000). In that case, the State sought review of the trial court’s refusal to give a certain jury instruction. Id. We dismissed the State’s appeal and explained that a proper State’s appeal would include an issue of statutory interpretation and would not include a review of a trial court’s application of a statutory provision. Id. In other words, we will review a trial court’s refusal to give a jury instruction if it has misinterpreted a statute. However, we will not review a trial court’s refusal to give a jury instruction based on an alleged misapplication of the statute to the facts surrounding a particular case. See McCormick, supra.

Applying this principle to the case sub judice, we must determine whether the trial court interpreted the language of Ark. Code Ann. § 5-10-104(a)(l)(Repl. 1997) to include mental disease or defect as the bases for giving the manslaughter instruction, or whether the trial court was merely applying the statute to the facts surrounding appellee’s case. - At the close of the evidence in appellee’s case, the following colloquy, regarding whether the extreme-emotional-disturbance manslaughter instruction should be given, occurred:

Mr.. Wright [appellee s attorney]: We believe that there has been testimony that the defendant acted under extreme — the influence of extreme emotional disturbance for which there is reasonable excuse; and, if the jury does not beheve that Mr. Hulum suffered from a mental disease or defect to the extent that he could not conform his conduct or appreciate the criminality of his conduct, they could find that that was a reasonable excuse for his emotional disturbance. And that would qualify for the manslaughter instruction.
The Court: Now what testimony is that?
Mr. Wright: The testimony regarding the circumstances, your honor, from the lay witnesses that saw him there, the testimony from Dr. Kuo that he believed that he was acting in a psychotic manner. The tapes, I beheve, definitely showed some emotional disturbance. Now, whether or not there was a reasonable explanation for it would be based on Dr. Kuo’s testimony.
Mr. McCormick [The State’s attorney]: Your, honor, I do not find — or the State’s argument is that there is not a rational basis for that instruction to be given on what is the evidence in this case and we object to it.
The Court: Actually, I think there’s probably more basis in Dr. Mallory’s report — and I think he alluded to it — to the issue of whether or not the child was kicked and might have died as a result of that, might be more of a basis for manslaughter.
Mr. McCormick: Your honor, if I can, I know what the court has said about Dr. Mallory’s testimony. But, I think in terms of murder that — what the (a)(1) subsection of manslaughter refers to, Judge, is murder when it is a purposeful act. The defendant is not charged with committing the purposeful provision. In other words, the allegation’s not that with the purpose to cause the death of Marquis Hulum he did cause the death. He’s charged with knowingly causing the death of someone under the age of fourteen under circumstances manifesting extreme indifference to the value of human life by someone who is over the age of eighteen. And I submit that that’s what the purpose of that is for, the manslaughter provision. In other words, if there is an emotional — extreme emotional disturbance that affects someone’s purposeful act, that may be taken into consideration. And the example that they tend to give is — you know, a husband catches his wife in the heat of passion with a lover is an example in the commentary that they refer to, Judge. . . .
The Court: Well, what about if the child were hit, kicked, or whatever as a result of crying—
The Court: [W]ould that not be reckless?
* * *
The Court: Well, what about a definition of manslaughter just dealing with the reckless issue?
The Court: To me, that would be more appropriate than the one under the influence of extreme emotional disturbance for which there was a reasonable excuse.
Mr. Wright: And, I mean, your honor, again I just think that there has been some extreme emotional distress and it’s been testified here.
The Court: You’re talking about his toe coupled with the medication?
Mr. Wright: I’m talking about Dr. Kuo saying he believed that Eugene Hulum was — had a mental disease or defect on March 31, 2000. And Dr. Kuo stated that. And, if he had a mental disease or defect, that’s an emotional disturbance for which there is a reasonable explanation.
The Court: Emotional disease or defect, is that not guilty by reason of mental disease or defect?
Mr. McCormick: It is a complete defense, Judge.
Mr. Wright: Except, your honor, that the jury must not just find that he has a mental disease or defect; they must find that he has a mental disease or defect and he couldn’t conform his conduct and he couldn’t appreciate the criminality. There are peopie that have a mental disease or defect that are convicted by these courts every day.
Mr. McCormick: Judge, it’s at the time that he committed the offense, and it is a complete defense being that, because of my mental disease or defect, I could not conform my conduct. Therefore, it is a complete — therefore, whatever I did, I’m not guilty of that because of this, not the fact that I have it and it didn’t manifest itself. That’s not a defense.
Mr. Wright: In addition, Your honor, if the jury finds Mr. Hulum guilty of one of the more serious offenses, the State is not prejudiced and there is no reversible error by giving the manslaughter instruction.
The Court: On that basis the court will give it.

After reviewing the colloquy, it is clear that the trial court did not engage in a statutory interpretation of Ark. Code Ann. § 5-10-104(a)(l). The trial court was merely considering the evidence presented at trial and making a determination as to whether there was a rational basis for giving the manslaughter instruction. We have held that when there is a rational basis for a verdict acquitting a defendant of the offense charged and convicting him of an offense included in the offense charged, an instruction on the lesser-included offense should be given, and it is reversible^ error to fail to give such an instruction when warranted. Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992). We have also held that when there is the slightest evidence to warrant an instruction on a lesser included offense, it is error to refuse to give it. Id. The colloquy demonstrates that the trial court was reviewing the evidence presented at trial and attempting to determine whether the evidence warranted the giving of the manslaughter instruction.

Because the trial court was only applying the evidence presented at appellee’s trial to Ark. Code Ann. § 5-10-104, we conclude that the issue raised by the State for our review presents a mixed question of fact and law. We do not review such issues. Because this appeal raises an issue of the application of section 5-10-104(a)(1) to the facts of this case, rather than an interpretation of the statute, the appeal does not involve the correct and uniform administration of the criminal law and will not addressed by this court. Accordingly, we hold that this matter is not proper for a State’s appeal.

Appeal dismissed.

Glaze and Imber, JJ., dissent.

Tom Glaze, Justice,

dissenting. It is difficult for me to understand why this court is so reluctant to accept the State’s appeal to decide if the trial judge erroneously ruled in a criminal defendant’s favor.

When the terms of Criminal Rule 3(c) are met, the State’s prosecutors, the Attorney General, and the people of this state have a right to be apprised if a trial judge’s decision erroneously favors a criminal defendant and adversely affects Arkansas’s uniform administration of the criminal law. In most situations, this court’s review of a trial judge’s legal decision will not affect a defendant’s double jeopardy rights if or when this court declares the judge erred. In fact, the Attorney General concedes that would be the situation in the instant case. The present state appeal request cries out for review not only because the trial judge erred, but also because his decision now sets a precedent in the 6th Judicial District, if not in other judicial districts in this state.

This is a horrendous case involving appellant Eugene Hulum’s killing his nineteen-month-old son. Although Hulum was charged with capital murder, he was found guilty of the lesser crime of manslaughter and given only ten years as a result of the trial court’s having given the jury an erroneous instruction on manslaughter.

At trial, Hulum first contended that he suffered from mental disease or defect when he killed his infant son, but the jury rejected that contention. Nonetheless, Hulum further argued the legal proposition that, “if the jury did not believe Hulum suffered from a mental disease or defect to the extent that he could not conform his conduct or appreciate the criminality of his conduct, [it] could find that [his mental disease or defect] was a reasonable excuse for his [extreme] emotional disturbance,” which Hulum claimed supported his request for a manslaughter instruction. The trial court agreed with defense counsel, but Hulum cites no legal authority that entitled him to argue mental disease or defect, as part of the manslaughter instruction, when asserting his claim that he killed the infant while under the influence of extreme disturbance.

Our court has repeatedly held that, a jury cannot be instructed on manslaughter, as defined in Ark. Code Ann. § 5-10-104(a)(1), unless there was proof that the defendant incurred some kind of provocation, such as physical fighting, a threat, or a brandished weapon. See Kail v. State, 341 Ark. 89, 94-95, 13 S.W.3d 878, 880-81 (2000); Spann v. State, 328 Ark. 509, 514-515, 944 S.W.2d 537, 539-49 (1997); Franks v. State, 342 Ark. 167, 171, 27 S.W.3d 377, 379 (2000). Accordingly, that statute requires some showing of provocation before the instruction can be given. In sum, until the trial court’s decision in this case, Arkansas had no case law or statutory authority that suggests “mental disease or defect” supplants the element of “extreme emotional disturbance” found in Arkansas’s manslaughter statute; nor was there authority requiring that mental disease or defect should be added as an element to that offense. This court is wrong in not granting the State’s appeal, since the Attorney General’s request for review fits squarely within the dictates of Rule 3(c).

Imber, J., joins this dissent.

       Act 248 of 2001 provides in relevant part:
      (2) When the affirmative defense of mental disease or defect is presented to a jury, the jury, prior to deliberations, shall be instructed regarding the disposition of a defendant acquitted on the grounds of mental disease or defect pursuant to § 5-2-314.
      Act 248 of 2001 codified at Ark. Code Ann. § 5-2-312 (Supp. 2001).

        See Ark. R. App. P.-Crim.3(c), which provides in relevant part as follows:
      If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal.


source: Caselaw Access Project

author: Jim Hannah, Justice.

license: Public Domain

text:
    THE MONEY PLACE, LLC v. Dorothy BARNES, Individually and o/b/o a Class of Similarly Situated Persons
    01-1361
    78 S.W.3d 714
    Supreme Court of Arkansas
    Opinion delivered June 20, 2002

      Mixon, Parker & Hurst, PLC, by: Donald L. Parker, II, and Harry S. Hurst, Jr., for appellant.

      Morgan & Turner, by: Todd Turner, and Orr, Scholtens, Willhite & Averitt, PLC, for appellee.
   Jim Hannah, Justice.

Appellant The Money Place, LLC, appeals a Craighead County Circuit Court order denying The Money Place’s Motion to Compel Arbitration and Stay Litigation. Dorothy Barnes filed a class-action lawsuit against The Money Place alleging usury in its payday-loan/deferred-check presentment business. The Money Place argues that its Deferred Presentment Agreement signed by Barnes requires that all claims by Barnes be arbitrated pursuant to the Federal Arbitration Act. Validity of the arbitration provision must be determined first. The arbitration provision lacks mutuality and is not valid. Because we hold that the arbitration provision is not enforceable, the issue of unconscionability need not be addressed. The circuit court is affirmed.

Facts

In the fall of 2000, Barnes alleges that she began obtaining loans from The Money Place by presenting them a check in the amount of $344.44, for which she received $300 in cash in return. The interest or fee of $44.44 allowed her to keep the $300 for two weeks, at which time she had to pay $344.44. She then commenced anew, again presenting a check for $344.44, which they again agreed to hold for two weeks. Barnes continued to present new checks until January 2001. She alleges that the interest rate on the loans provided by The Money Place vary between 300 percent to 730 percent per annum.

On' January 26, 2001, Barnes filed a class-action lawsuit against The Money Place alleging the loans by The Money Place violated the usury laws as provided in Article 19, Section 13 of the Arkansas Constitution and Ark. Code Ann. §§ 4-57-101 — 4-57-108 (Repl. 2001). On March 20, 2001, The Money Place filed a Motion to Compel Arbitration and Stay Proceedings based upon alleged valid and binding arbitration clauses in the Deferred Presentment Agreement. Barnes countered arguing that the agreement was void and that the arbitration clause was unenforceable and unconscionable. The trial court agreed with Barnes, and The Money Place appeals.

An order denying a motion to compel arbitration is an immediately appealable order. Ark. R. App. P.—Civ. 2(a)(12); E-Z Cash Advance, Inc. v. Harris, 347 Ark. 132, 60 S.W.3d 436 (2001); Showmethemoney Check Cashers, Inc. v. Williams, 342 Ark. 112, 27 S.W.3d 361 (2000). We review a trial court’s order denying a motion to compel arbitration de novo on the record. Id.

Federal Arbitration Act and Mutuality

The Money Place argues that the Federal Arbitration Act (FAA) preempts state law and prohibits state courts from applying state statutes that invalidate arbitration agreements. The Money Place cites Allied-Bruce Terminax Cos. v. Dobson, 513 U.S. 265 (1995), wherein, The Money Place argues, the United States Supreme Court reversed a decision of the Alabama Supreme Court applying an Alabama “anti-arbitration statute.”

The same argument was made in E-Z Cash. The arbitration provision in the contract at issue in the instant case is virtually identical to the provision we found invalid in E-Z Cash. We reach the same conclusion today as we did last December:

In Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468 (1989), the United States Supreme Court held that application of the FAA may be avoided where the parties agree to arbitrate in accordance with state law. Accordingly, Arkansas law, including the Arkansas Uniform Arbitration Act, governs the issue at hand.

Id. at 136, 60 S.W.3d at 439. As stated in The Money Place’s reply brief at page 4, “The application of the FAA and Arkansas arbitral law are not at odds here — The FAA mandates that the general principles of Arkansas law be applied. . . .” We hold that Arkansas law applies.

However, before we may consider how the arbitration clause might be enforced under the FAA or otherwise, we must determine whether there is an arbitration clause that may be enforced. The threshold issue then is whether there is a valid arbitration clause to enforce. Showmethemoney, supra; E-Z Cash in Advance, supra. See also, Cash in a Flash Advance of Arkansas, LLC. v. Spencer, 348 Ark. 459, 74 S.W.3d 600 (2002). That analysis is made under state law. Showmethemoney, supra.; E-Z Cash Advance, supra.

As in Showmethemoney, supra, the preliminary issue is whether the language of the subject arbitration provision constitutes a valid contract to arbitrate. The essential elements of a contract are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligations. Cash in a Flash, supra; Showmethemoney, supra; Foundation Telecommunications v. Moe Studio, 341 Ark. 231, 16 S.W.3d 531 (2000). As The Money Place recognizes, and as the previous cases on similar arbitration provisions such as the one before us have stated, of particular importance to this case is the element of mutuality of obligations. Showmethemoney, supra; E-Z Cash Advance, supra. Mutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound. A contract, therefore, that leaves it entirely optional with one of the parties as to whether or not he will perform his promise would not be binding on the other. Showmethemoney, supra; Townsend v. Standard Indus., Inc., 235 Ark. 951, 363 S.W.2d 535 (1963).

The Money Place argues that mutuality is required, but only as to the agreement as a whole. The Money Place argues that in this case the arbitration clause is not a separate agreement, but rather simply part of the whole agreement, and that mutuality must be analyzed as to the whole agreement, not just as to the terms of the arbitration provision. Contrary to The Money Place’s argument, mutuality within the arbitration agreement itself is required, and that analysis depends on Arkansas contract law. Showmethemoney, supra. The Money Place argues that mutuality is not required specifically for the arbitration provision if the entire agreement is supported by sufficient consideration. The Money Place’s consideration for the contract in taking the check is to provide the customer immediately with cash in an amount that is less than stated on the check and to postpone presenting the check for payment until a later date. The customer’s consideration is to pay the fees specified in the contract. (The fees are included in the amount of the check.) If the fees are, in reality, interest, and are usurious, then the contract lacks consideration. To analyze the contract as the Money Place argues would require this court to go to the merits of the underlying case rather than consider only whether arbitration can be compelled under the contract. As The Money Place correctly points out in its reply brief, when the issue is whether or not to compel arbitration, the federal courts do not consider the merits of the underlying contract as a whole, rather the inquiry is limited to the arbitration provision. See Prima Paint, Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967). We follow the lead of the United States Supreme Court and decline to address the issue of whether there is sufficient consideration for the contract as a whole. We limit our inquiry to whether the arbitration provision of the contract specifying the method and forum for resolution of disputes is valid. As stated in this court’s opinion in Showmethemoney, Arkansas precedent on mutuality requires that the terms of the agreement must fix a real liability upon the parties. Showmethemoney, supra; E-Z Cash Advance, supra; Townsend, supra.

The following provisions of the Deferred Presentment Agreement are relevant to the issue before us:

RETURNED CHECK CHARGE AND COLLECTION COSTS. If the check is returned to us from your financial institution due to insufficient funds, closed account, or a stop payment order, we have the right to all civil remedies allowed by law to collect the Check and shall be entitled to a returned check fee of $20.00, court costs and reasonable attorney fees pursuant to Act 1216 of 1999 § 6(g).
WAIVER OF JURY TRIAL AND ARBITRATION AGREEMENT. Arbitration is a process in which persons with a dispute: (a) waive their rights to a lawsuit and proceed in court and to have a jury trial to resolve their disputes; and (b) agree, instead, to submit their disputes to a neutral third person (an “arbitrator”) for a decision. Because the parties to the dispute select the arbitrator, they are responsible for paying the arbitrator. Each party to the dispute has an opportunity to present some evidence to the arbitrator. Pre-arbitration discovery may be permitted. Arbitration proceedings are private and less formal than court trials. The arbitrator will issue a decision resolving the dispute. The arbitrator’s decision is final and binding upon the parties, and may be enforced as a court judgment. A court rarely overturns an arbitrator’s decision. THEREFORE, YOU ACKNOWLEDGE AND AGREE AS FOLLOWS:
1. For purposes of this Agreement, the words “dispute” and “disputes” are given the broadest possible meaning and include, without limitation, (a) all federal or state law claims, disputes or controversies, arising from or relating directly or indirectly to the Applicant/Personal Information Form (the Application), this Agreement (including this arbitration provision and the fees charges), or any prior agreement or agreements between you and us; (b) all counterclaims, cross-claims and third-party claims; (c) all common law claims, based upon contract, tort, fraud and other intentional torts; (d) all claims based upon a violation of any state or federal constitution, statute or regulation; (e) all claims asserted by us against you, including claims for money damages to collect any sum we claim you owe us; (f) all claims asserted by you individually, as a private attorney general, as a representative and/or member of a class of persons, or in any other representative capacity, against us and/or any of our employees, agents, officers, shareholders, or affiliated entities (hereinafter collectively referred to as “related third parties”), including claims for money damages and/or equitable or injunctive relief.
2. Except as provided in Paragraph 4 below, all disputes, including the validity of this arbitration provision shall be resolved by binding arbitration. Any party to a dispute, including related third parties, may send the other party written notice by certified mail return receipt requested of their intent to arbitrate and setting forth the subject of any of the following arbitration organizations to administer the arbitration: the American Arbitration Association (1-800-778-7879), J.A.M.S./Endispute (1-800-352-5267), or National Arbitration Forum (1-800-474-2371). However, the parties may agree to select a local arbitrator who is an attorney, retired judge, or arbitrator registered and in good standing with an arbitration association and arbitrate pursuant to such arbitrator’s rules. The party receiving notice of arbitration will respond in writing by certified mail return receipt requested within twenty (20) days. If you demand arbitration, you must inform us in your demand of the arbitration organization you have selected or whether you desire to select a local arbitrator. If we or a related third party demand arbitration, you must notify us within twenty (20) days in writing by certified mail return receipt requested of your decision to select an arbitration organization or your desire to select a localarbitrator. If you fail to notify us, then we have the right to select an arbitration organization. The parties to such dispute will be governed by the rules and procedures of such arbitration applicable to consumer disputes, to the extent those rules and procedures do not contradict the express terms of this agreement, including the limitations on the arbitrator below. You may obtain a copy of the rules and procedures by contacting the arbitration organization at the toll free number listed above.
4. ALL PARTEES, INCLUDING RELATED THIRD PARTIES, SHALL RETAIN THE RIGHT TO SEEK ADJUDICATION IN A SMALL CLAIMS TRIBUNAL FOR DISPUTES WITHIN THE SCOPE OF SUCH TRIBUNAL’S JURISDICTION. Any dispute which cannot be adjudicated within the jurisdiction of a small claims tribunal shall be resolved by the binding arbitration set out in this Agreement. Any appeal of a judgement from a small claims tribunal shall be resolved by binding arbitration.

The language in this arbitration provision is very similar to the provision in E-Z Cash Advance, supra. In this case, however, The Money Place argues that this court misread the above terms in the E-Z Cash Advance case because this court failed to recognize that under the terms of the arbitration agreement, The Money Place was required to arbitrate and/or take its collection claims to small claims court. This argument is based upon the principle that the court should not give effect to one contract provision to the exclusion of others, citing RAD-Razorback, Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). This same argument was rejected in E-Z Cash Advance, supra. This court stated that the argument was disingenuous in light of the preceding provision governing collection of debts. Under that provision, The Money Place has the right to pursue all civil remedies when a check is returned. As in E-Z Cash Advance, supra, The Money Place may sue to collect and recover amounts, including fees, attorney fees, and court costs. As we said in E-Z Cash Advance, 347 Ark. at 140:

Taking into account their line of business, it is difficult to imagine what other causes of action against a borrower remain that E-Z Cash would be required to submit to arbitration. Harris and other borrowers, however, do not have the same ability to seek relief in the court system. Thus, the agreement to arbitrate is not supported by sufficient consideration, because Harris is the only party that has promised to forego her rights to seek redress in the court system. As previously stated, Harris’s promise to submit to arbitration is not enforceable, because E-Z Cash has the option of pursuing arbitration or bringing suit in court. Because this arbitration agreement lacks the element of mutuality, it is not a valid and enforceable agreement. Accordingly, the trial court did not err in denying E-Z Cash’s motion to compel arbitration.

We reach the same conclusion in this case. Because there is no mutuality, the arbitration provision is not valid and is not subject to enforcement under any arbitration act.

We note that The Money Place argues that Barnes is not precluded from vindicating her rights in a judicial forum because under the terms of the agreement, she may bring suit in small claims court. However, even if it is possible for Barnes to resort to small claims court, that right is still controlled by arbitration because according to the agreement, any dispute about the outcome in small claims court must be arbitrated. There is no appeal to the circuit court or to the appellate courts. Thus, this argument is illusory. This does not alter our holding that the arbitration provision is' not enforceable due to a lack of mutuality. Because we hold the arbitration provision unenforceable based upon a lack of mutuality, there is no need to discuss the issue of whether the arbitration agreement is unconscionable or void because the underlying contract might be illegal and void.

Affirmed.

Glaze, J., not participating.


author: Per Curiam.

text:
    Jerry L. EDMOND v. STATE of Arkansas
    CR 01-1050
    78 S.W.3d 95
    Supreme Court of Arkansas
    Opinion delivered June 20, 2002

      David Mark Gunter, for appellant.
    No response.
   Per Curiam.

Appellant Jerry Edmond, by and through his attorney, David Mark Gunter, has filed a motion for an extension of time to file Appellant’s brief. The brief in this case was originally due November 7, 2001. On October 22, 2001, Attorney Gunter filed a motion to be relieved as counsel and for an extension of time in which to file the Appellant’s brief. The motion to be relieved as counsel was denied, however, an extension of time to file Appellant’s brief was granted. Attorney Gunter has moved for and received several additional extensions of time to file Appellant’s brief. However, this court granted a final extension on May 1, 2002, ordering the Appellants brief be filed by June 2, 2002. On June 3, 2002, Attorney Gunter filed another motion for an extension of time to file Appellant’s brief, requesting that he be given until June 17, 2002. To date, no brief has been filed.

Based on the circumstances described above, we order Attorney Gunter to file the Appellant’s brief immediately, and further order that he appear before this court on Thursday, June 27, 2002, at 9:00 a.m., to show cause why he should not be held in contempt for failing to file his client’s brief as previously ordered.


author: Wh. "Dub" Arnold, Chief Justice.

text:
    F&G FINANCIAL SERVICES, INC.; Cash Advance Now; Cash Advance of Jonesboro, LLC v. Dorothy BARNES and Jimmie Sue Spencer
    01-1376
    82 S.W.3d 162
    Supreme Court of Arkansas
    Opinion delivered June 27, 2002

      Mixon Parker & Hurst, PLC, by: Donald L. Parker, II, and Harry S. Hurst, Jr.; and Wright, Lindsey & Jennings, LLP, by: Claire Shows Hancock, for appellants.

      Orr, Scholtens, Willhite & Averitt, PLC, by: Chris A. Averitt, Jay Scholtens, and Kevin J. Orr; and Morgan & Turner, by: Todd Turner, for appellees.
   Wh. "Dub" Arnold, Chief Justice.

This is an interlocutory appeal from a Craighead Circuit Court’s order granting certification in a class action. The issue involved in this action is whether the trial court correctly granted appellees’ motion of class certification. Appellees filed this action in February 2001 and alleged that the check cashing transactions in which they engaged with appellants were actually loans and that the fees charged by appellants in connection with these check cashing transactions were usurious interest, charged in violation of Article 19, Section 13, of the Arkansas Constitution. Appellees brought the action as representatives of a class of similarly situated individuals.

Appellees executed Arkansas Deferred Presentment Agreements with appellant which contained arbitration provisions. Appellants moved to the trial court to compel arbitration and to stay the trial court proceedings, but the trial court denied the motion. That denial is the subject of a separate appeal before this court.

Appellees filed a motion to certify the class, which was granted. The trial court certified a class consisting of “any and all persons who have engaged in deferred presentment transactions with the defendant check casher(s) anywhere in the state of Arkansas.” The trial court found that:

(A) the class of persons appellees seek to represent is so numerous that joinder of all members is impracticable; (B) the claims of plaintiffs and asserted defenses are typical of the claims of the class; (C) questions of law or fact to the members of the class predominate over any questions effecting only individual members and that a class action is superior to other available m'ethods for the fair and efficient adjudication of this matter; (D) appellees are adequate persons to serve as class representatives and should be appointed as representatives of the class; and (E) appellees’ counsel have demonstrated their competency to serve as class counsel and possess the resources and expertise necessary to adequately represent the class and should be approved as class counsel.

Appellant argues that the trial court erred in granting appellees’ motion for class certification. The question of whether the class-action elements in Ark. R. Civ. P. 23(a) and (b) have been satisfied is a matter within the broad discretion of the trial court, and we will not reverse the trial court’s decision absent an abuse of that discretion. Advance America v. Garrett, 344 Ark. 75, 40 S.W.3d 239 (2001); Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898(1997); 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). Flowever, the determination is purely a procedural question. BNL Equity Corp. v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000). Although we do not delve into the merits of the underlying claims in a potential class-action case, we will review the trial court’s order to determine whether the requirements of Rule 23 are satisfied.

Rule 23(a) and (b) of the Arkansas Rules of Civil Procedure state:

(a) Prerequisites to Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class', and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained' as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this section may be conditional and it may be altered or amended before the decision on the merits.

Ark. R. Civ. P. 23(a) and (b) (2001).

Flere, appellant asserts that all of the requirements of Rule 23 were not met, and the class certification should have, therefore, been denied. We disagree, and affirm the trial court’s order granting the class certification.

I. Rule 23

Arkansas Rule of Civil Procedure 23(a) establishes four prerequisites to class certification. Under Rule 23(a), one or more members of a class may sue as representative parties on behalf of all the members of the class if the following prerequisites are satisfied: (1) the class is so numerous that joinder of all members is impracticable, (numerosity), (2) there are questions of law or fact common to the class, (commonality), (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, (typicality), and (4) the representative parties will fairly and adequately protect the interests of the class (adequate representation). Ark. R. Civ. P. 23(a) (2001).

In addition to satisfying each of the requirements of Rule 23(a), the party seeking class certification must also satisfy the requirements of Rule 23(b), which requires that questions of law of fact common to the members of the proposed class must predominate over 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. Rule 23(b).

Appellant challenges on appeal the elements of typicality and adequacy of the class representative under Rule 23(a) and the elements of predominance and superiority under Rule 23(b).

A. Rule 23(a)

Rule 23(a)(3) provides that a trial court may certify a class only if 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). Appellees must establish that there are other members of the proposed class who have the same or similar grievances as the appellees. This court has dealt with the typicality prerequisite in Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991), and in Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997).

Appellants argue that some appellees agreed that their dispute with appellants would be decided by binding arbitration, rather than by class litigation, and that their claims are not typical of those other potential class members who have no such agreement in their contract.

In Summons, the named plaintiffs brought an action seeking to certify a class of several thousand persons who were evacuated from their homes or businesses as the result of a railroad accident in which a chemical tank car overturned. A chemical leaked from the overturned tank, and the class members allegedly suffered damages based upon a claim of strict liability. The trial court in that case denied class certification, but this court reversed that finding, This court held that a representative’s claim is typical of the class members’ claims under Rule 23(a)(3) if the representative’s claim arises from the same wrong allegedly committed against the class. Summons, supra. The typicality requirement is discussed in H. Newberg, Class Actions, 3.13, supra, as follows:

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 plaintiffs injury arises from or is direcdy related to a wrong to a class, and that wrong includes the wrong to the plaintiff. Thus, a plaintiffs 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. [Footnotes omitted.]

Thus, the typicality requirement is satisfied where the event or practice or course of conduct that gives rise to the claim of other class members is the same event or practice or course of conduct that gives rise to the plaintiffs injury, and where the claim is based upon the same legal theory. In the present case, the class representatives allege both a common practice and a common course of conduct in dealing with members of the class. Because the representative’s claims need only be typical and not identical, the court can attribute a collective nature to the challenged conduct of appellants. Therefore, the class representatives’ claims and those of the class are typical. The representatives’ claims and those of the class arise from the exact same wrongful practice, i.e., usurious loans.

In its second challenge under Rule 23(a), appellant asserts that appellees are not adequate representatives of the class. Rule 23(a)(4) provides that representative parties may bring an action on behalf of all class members, if the representative parties fairly and adequately protect the interests of the class. 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. Mega Life & Health Ins. Co. V. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997).

Appellant asserts that to satisfy the adequacy of representation requirement, appellees must establish that there are no conflicting interests between them and other potential class members. Appellant sets out four points as to why Rule 23(a)(4) is not met. First, appellant states appellees are unable to fairly and adequately represent the interests of the proposed class. Appellant states that the deferred presentment transaction option agreements signed by appellees includes an arbitration provision which explicitly precludes them from serving as a class representative in a dispute with appellants. Under the agreements, appellees agreed to resolve any disputes with appellants through binding arbitration. Appellant argues that this contractual commitment creates a clear conflict between appellees and any potential class members who have not agreed to arbitrate with appellants.

Also, Geron Vail, who owns fifty percent of appellants and is the president and general manager, testified that not all of Jimmie Sue Spencer’s agreements contain arbitration clauses and that appellants began inserting arbitration clauses in their contracts sometime after 2000. Thus, the record indicates that a group of class members signed arbitration clauses and that a group of class members did not.

However, the trial court ruled that appellants’ arbitration agreements are invalid. Therefore, the arbitration agreements are irrelevant to appellee’s adequacy, and thus there is no evidence of collusion or conflicting interest between the representatives and the class.

Second, appellant contends that appellee Jimmie Sue Spencer is unable to fairly and adequately represent the interests of the proposed class. Appellant contends that appellee Spencer is the class representative in at least six cases against check cashers, and she has - done business with at least four other check cashers who she may yet sue. Appellant asserts that her “professional” plaintiff status, rather than supporting any argument of her adequacy to represent the class, undercuts her position; there is no question that she will have limited time to devote to this action and her loyalties are clearly divided. Appellant states that Spencer has demonstrated a lack of knowledge about the terms of the settlement and she was not aware of various facts about the case.

Flowever, appellee argues that Spencer did know more about the case than appellant contends. Spencer testified that she speaks to her attorney once or twice a week and is able to take off work for trial if the need should arise. She testified that she knows what to expect by being a class representative and she is aware of that she may have to go to court. The trial court in its order certifying the class found that Spencer was an “adequate” person to serve as class representative, and we agree. Despite Spencer’s lack of understanding of some legal terms involved in the case, Spencer clearly showed a minimal level of interest in this action in that she contacted her attorneys concerning the action. Therefore, she meets the minimal interest set by the third requirement derived from Rule 23(a)(4).

Next, appellant argues that appellee Dorothy Barnes is unable to fairly and adequately represent the interests of the class. Appellant argues that Barnes cannot establish that there are no conflicting interest between her and other potential class members. Barnes is a named plaintiff and a proposed class representative in two other cases against check cashers. Appellant contends that Barnes has demonstrated that she lacks the capacity to fairly and adequately represent the proposed class where she doesn’t know who the defendant is in her own case, nor does she know who she intends to sue next.

However, Barnes testified in a deposition that she contacted the class counsel specifically about representing her against appellant and another payday loan provider. Barnes testified that she understands that she is suing appellants and that her goal is to represent all the people who have done business with appellants, and to stop the usury on these loans. Again, Barnes meets the minimal bar set by the third requirement of Rule 23(a)(4).

Finally, appellant argues that appellees are unable to fairly and adequately represent the interests of the proposed class against Cash Advance Now of Jonesboro. Appellant asserts that Cash Advance Now of Jonesboro (hereinafter “CANJ”) is a separate limited liability company which has never conducted any business. It is a dormant company and appellees have offered no proof whatsoever that either of them ever conducted any business with CANJ. Appellant contends that there is no class of individuals that have ever done business with CANJ and, therefore, appellees cannot represent the interests of any such class.

Appellee contends that this argument by appellant should not defeat class status. If the argument is correct, Cash Advance Now of Jonesboro may be entitled to a dismissal from this action on a class-wide basis. However, class counsel has not been allowed to conduct merit discovery. Any dismissal should take place after class counsel is able to ensure that Cash Advance Now of Jonesboro had no involvement in these claims and also that assets have not been transferred to Cash Advance Now of Jonesboro to avoid a potential judgment.

B. Rule 23(b)

In its final point, appellant argues that appellees failed to satisfy the requirements of Rule 23(b) 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) (2001).

This court has already addressed the issues of superiority and predominance in a check-cashing case in USA Check Cashers of Little Rock, Inc. v. Island, and our holding in that case applies here. 349 Ark. 71, 76 S.W.3d 243 (2002). This court stated:

This court has held with respect to superiority that the requirement is satisfied if class certification is the more “efficient” way of handling the case and if it is fair to both sides. See BPS, Inc. v. Richardson, supra. Real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for the trial of individual issues, if necessary. See SEECO, Inc. v. Hales, supra; Lemarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991).
Here, the circuit court ruled that because the potential recovery to each member of the class was expected to be relatively small and would not justify contingency fee cases nor cases in which attorneys charge on an hourly basis, a class action was the superior method for adjudicating these claims. The overarching issue in this case concerns USA Check Cashers’ uniform practice of requiring a fee in exchange for an agreement to defer presentment of the customer’s check for payment and whether that fee is usurious interest. Because of the pervasiveness of this issue in the transactions of all potential class members, it would be economically and judicially inefficient to require all putative class member, of which there could be as many as 2,680, to file individual suits in a small claims court.
To be sure, USA Check Cashers may have defenses available to it as to various individual members or even subclasses, but this is no reason to deny certification. To the contrary, this court has held that the class-action procedure is judicially efficient in resolving not only common claims but also common defenses. See, e.g., SEECO, Inc. v. Hales, supra; Mega Life & Health Ins. Co. v. Jacola, supra. The Proposed Trial Management Plan submitted to the court by Island and Carter certainly contemplates resolving common defenses in Phase I, as evidenced by the language of the proposal: “The Court may also determine in Phase I of the trial any common defenses asserted by the defendant, e.g., whether class members who entered into a transaction after the filing of this lawsuit are estopped from asserting a claim.” Finally, as to manageability, this court has made it abundantly clear that a circuit court can always decertify a class should the action become too unwieldy. See BNL Equity Corp. v. Pearson, supra; Fraley v. Williams Ford Tractor & Equip. Co., supra.
We conclude that a class action is the superior method for adjudicating the class members’ claims.

USA Check Cashers, 349 Ark. 82-83. The court went on to address the issue of predominance, stating:

For its final point, USA Check Cashers argues that the claims of individual claimants depend on each claimant’s particular interaction with the company. Additionally, the company asserts that because individual defenses would become the focus of the litigation, class certification is inappropriate.
We have already addressed this point in large part. USA Check Cashers appears to be challenging the predominance requirement, and the starting point for our analysis is whether a common wrong has been alleged against USA Check Cashers respecting all class members. See BPS, Inc. v. Richardson, supra. Again, as already underscored in this opinion, there are overarching common questions present in this case as the circuit court outlined in its order. Those questions include: whether USA Check Cashers’ transactions were loans with interest accruing and whether those transactions violated the Arkansas Constitution. We conclude that these common questions predominate over individual questions. The mere fact that individual issues and defenses may be raised by the company regarding the recovery of individual members cannot defeat class certification where there are common questions concerning the defendant’s alleged wrongdoing which must be resolved for all class members. New-berg on Class Actions speaks directly to this point:
Challenges based on the statutes of limitations, fraudulent concealment, releases, causation, or rebanee have usually been rejected and will not bar predominance satisfaction because these issues go to the right of a class member to recover, in contrast to underlying common issues of the defendant’s liability.
SEECO, Inc. v. Hales, 330 Ark. at 413, 954 S.W.2d at 240 (quoting 1 Herbert B. Newberg, Newberg on Class Actions §§ 4.26, at 4-104 (3d ed.1992)).
Again, common issues, as far as alleged wrongdoing and defenses, predominate in this case, and we affirm the trial court on this point.

USA Check Cashers, 349 Ark. at 83-84. This court has already addressed the general issues of superiority and predominance in check-cashing cases, and this case raises no new issues.

Here, the trial court certified a class consisting of every person who had engaged in deferred presentment transactions with the appellant anywhere in the state of Arkansas. Appellant contends that the trial court will be faced with literally hundreds of individual questions of fact if we affirm and grant the class certification. Appellant states that the court must determine which of the class members conducted business with which defendant, and determine the specific facts of each check-cashing transaction between class member and each defendant. Appellant argues that because individual questions of fact predominate over one common legal question, appellees have failed to satisfy Rule 23(b) and the grant of class certification should be overturned.

However, the trial court heard arguments and reviewed the briefs of the parties. The trial court concluded that the class representatives’ experience with appellant and the transactions involved are typical of all appellant’s customers, that questions of law or fact common to the members of the class predominate over individual issues and that a class action is superior to other available methods of adjudication. Therefore, it cannot be shown where the trial court abused its discretion in making such a finding, and the trial court should be affirmed.

Affirmed.

Glaze, J., not participating.


author: Tom Glaze, Justice. J IM HANNAH, Justice,

text:
    Becky Coburn SEAGRAVE v. Jeffrey PRICE, Jerry and Darlene Price, Intervenors; State of Arkansas, Intervenor

    01-1370
    79 S.W.3d 339
    Supreme Court of Arkansas
    Opinion delivered June 27, 2002
    [Petition for rehearing denied September 5, 2002.]

      Robert A. Newcomb, for appellant.

      Keith Blackman, for appellee and intervenors Jerry and Darlene Price.

      Mark Pryor, Att’y Gen., by: Melanie Winslow, Ass’t Att’y Gen., for intervenor State of Arkansas.
   Tom Glaze, Justice.

This case again requires this court to examine the constitutionality of the Grandparental Visitation Rights Act, Ark. Code Ann. § 9-13-103 (Repl. 2002). We recently held that the statute was unconstitutional as applied in Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002), basing our decision primarily on the United State Supreme Court’s plurality decision in Troxel v. Granville, 530 U.S. 57 (2000). •

Becky Coburn Price and Jeff Price have a daughter, Ashley, who was born on May 6, 1996; the couple divorced on March 11, 1997, and Jeff was awarded visitation. Jeff continued to have visitation with Ashley until April of 2000. At that time, Becky began to suspect that Jeff was abusing the child during his visits with her, when Ashley told her mother that she played what she called the “squishy game” with her father. This “game” apparently involved Ashley’s sitting on Jeffs lap in the bathtub and shaking her bottom back and forth. Becky filed a complaint with the Family Protection. Unit of the Arkansas State Police, and in May of 2000, the FPU concluded that Jeff was guilty of sexual abuse and was registered with the Central Registry established pursuant to the Arkansas Child Maltreatment Act, see Ark. Code Ann. §§ 12-12-501 and -505 (Supp. 2001). Jeff did not appeal that decision.

On June 1, 2000, Becky filed a petition in Craighead County Chancery Court to terminate Jeffs visitation rights. Jeff filed a response on June 16, 2000, denying the allegations in Becky’s petition; he also filed a counterclaim in which he argued that the chancery court should change custody of Ashley from Becky to him, because Becky had failed and refused to allow him visitation as ordered by the court. In addition to Jeffs response and counter-claim, Jeff s parents, Jerry and Darlene Price, filed a petition for grandparents’ rights pursuant to Ark. Code Ann. § 9-13-103 (Supp. 2001), in which they alleged that they desired to visit their granddaughter for substantial periods of time, and had been unable to do so due to Becky’s actions. In response to the Prices’ petition, Becky filed a response in which she denied their allegations and additionally argued that § 9-13-103 was unconstitutional, in that the statute violated her equal protection and due process rights.

In an order dated November 13, 2000, the chancery court found that § 9-13-103 was constitutional, stating that the statute did not violate the Due Process Clause as impinging upon a fundamental constitutional right of a custodial parent, nor did the statute violate the equal protection clause. In a separate order filed on June 26, 2001, the trial court denied Becky’s petition to cease and restrict visitation, and granted the Prices’ petition for grandparent visitation. The court also ordered that Jeff would have visitation with Ashley only in the presence of either Jerry Price or Darlene Price, finding specifically that either Jerry or Darlene Price had to be physically present whenever Jeff had visitation with Ashley. The order further recited that if the court ever found that Jerry or Darlene Price had left Ashley alone with Jeff, all visitation between the three Prices and Ashley would cease.

From this order, Becky brings the present appeal, in which she argues that § 9-13-103 is facially unconstitutional under the Due Process and Equal Protection Clauses, and that the Act was unconstitutional as applied to her; alternatively, she asserts that the trial court failed to comply with the Act in awarding the Prices visitation.

The Arkansas Grandparental Visitation Rights Act, Ark. Code Ann. § 9-13-103 (Repl. 2002), provides in its entirety as follows:

(a) (1) Upon petition by a person properly before it, a chancery court of this state may grant grandparents and great-grandparents reasonable visitation rights with respect to their grandchild or grandchildren or great-grandchild or great-grandchildren at any time if:
(A) The marital relationship between the parents of the child has been severed by death, divorce, or legal separation; or
(B) The child is in the custody or under the guardianship of a person other than one (1) or both of his natural or adoptive parents; or
(C) The child is illegitimate, and the person is a maternal grandparent of the illegitimate child; or
(D) The child is illegitimate, and the person is a paternal grandparent of the illegitimate child, and paternity has been established by a court of competent jurisdiction.
(2) The visitation rights may only be granted when the court determines that such an order would be in the best interest and welfare of the minor.
(3) (A) An order denying visitation rights to grandparents and great-grandparents shall be in writing and shall state the reasons for denial.
(B) An order denying visitation rights is a final order for purposes of appeal.
(b) If the court denies the petition requesting grandparent visitation rights and determines that the petition for grandparent visitation rights is not well-founded, was filed with malicious intent or purpose, or is not in the best interest and welfare of the child, the court may, upon motion of the respondent, order the petitioner to pay reasonable attorney’s fees and court costs to the attorney of the respondent, after taking into consideration the financial ability of the petitioner and the circumstances involved.
(c) The provisions of subsections (a) and (b) of this section shall only be applicable in situations:
(1) In which there is a severed marital relationship between the parents of the natural or adoptive children by either death, divorce, or legal separation; or
(2) In which the child is in the custody or under the guardianship of a person other than one (1) or both of his natural or adoptive parents; or
(3) If the child is illegitimate.

(Emphasis added.)

In Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002), this court disagreed that the Act is unconstitutional on its face. While agreeing that there is a fundamental right to parent, Linder, 348 Ark. at 342, the court noted that the Supreme Court, in Troxel v. Granville, supra, held that the State of Washington’s Grandparental Visitation Rights Act, Wash. Rev. Code Ann. § 26.10.160(3), was unconstitutional as applied, due in part to its “breathtakingly broad” scope that allowed “any person” to petition for visitation “at any time.” Id. at 344. The Washington Act also failed to accord a fit parent’s wishes any weight whatsoever and failed to recognize a fit parent’s interest in deciding what is in a child’s best interest. Justice O’Connor wrote that, so long as a parent “adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Troxel, 530 U.S. at 68-69 (quoted in Linder, 348 Ark. at 345).

In sum, the Troxel Court held that the Washington statute was unconstitutional as applied because the Due Process Clause “does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” Troxel, 530 U.S. at 72-73. The Court did not, however, determine whether or not the Washington statute was facially invalid.

Our court pointed out in Linder that a statute is facially unconstitutional “if it can be shown that under no circumstances can the statute be constitutionally applied.” Linder, 348 Ark. at 349 (emphasis in original). However, this court held that the Arkansas GPVA was not facially unconstitutional because the statute “could be constitutionally applied in a narrow category of cases.” In particular, the court noted that no fundamental liberty interest would be at stake in a case involving a child “in the custody or under the guardianship of a person other than one or both of his or her natural or adoptive parents.” § 9-13-103(c)(2). Therefore, in the situation of, for example, a child in the custody of the State Division of Youth Services, “there would be no fundamental parental right at stake, and a trial court would be perfectly within its legal bounds to decide what is in the best interest of the child and apply the statute accordingly.” Linder at 349. Therefore, we found that facial invalidation of the statute would be inappropriate. Because Becky offers no new arguments that would require a different outcome in this case, we decline to expand Linders holding with respect to the Act’s facial invalidity.

However, Becky raises an additional argument that the Act facially violates the Equal Protection Clause because it treats divorced parents differently than it does married parents. Because the statute only allows grandparents to petition for visitation when there has been a dissolution of the marital relationship by divorce, separation, or death, she asserts, the legislature has made an improper decision to treat parents differently on the basis of whether or not they are married. In sum, Becky maintains that, under a strict-scrutiny analysis, there is no compelling state interest in treating the class of nonmarried parents differently from married parents.

However, in this equal protection challenge, the court must first look to see whether or not a suspect classification is involved; if there is not, then the court may apply a “rational basis” analysis to determine whether or not this classification violates the equal protection clause. The Equal Protection Clause permits classifications that have a rational basis and are reasonably related to a legitimate government purpose. See Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729 (1994). In Reed, this court held that the GPVA’s distinction between grandparents of legitimate children and grandparents of illegitimate children did not violate the Equal Protection Clause, because it could not conclude that Ark. Code Ann. § 9-13-103(a) was “completely devoid of a legitimate purpose. . . . [W]e can understand well how the General Assembly might have wished to leave such domestic matters out of the arena of litigation unless the child of the grandparent died or the need for it had arisen in a related but separate context such as divorce or paternity proceedings.” Id. at 22.

Similarly, in McFarland v. McFarland, 318 Ark. 446, 885 S.W.2d 897 (1994), the court held that there was a rational basis for a statute that treated divorced parents differently than married parents in the context of a noncustodial parent’s obligation to pay child support beyond a child’s majority, when that child remained in school. The statute was designed to meet a specific and limited problem, one which the legislature could reasonably find exists .only when a home is split by divorce. McFarland, 318 Ark. at 451 (quoting from In re Marriage of Vbran, 293 N.W.2d198 (Iowa 1980)). Because the differences in the circumstances between married and divorced parents established the necessity to discriminate between the classes, the statute at issue would not be found unconstitutional. For these reasons, we do not find that the GPVA unconstitutionally discriminates between married and divorced parents.

For her second point on appeal, Becky argues that the statute was unconstitutionally applied to her, because the trial court did not give any favorable presumption to her decision to deny visitation to the Prices. This is the basis on which the GPVA was found to be unconstitutional as applied in Linder. The Linder court addressed the question of “whether th[e] State has a compelling interest in judicially interfering with [the parent’s] fundamental parenting rights,” and “immediately discern[ed] a major deficiency in” the Arkansas GPVA in light of Troxel. Linder, 348 Ark. at 350. This court in Linder stated as follows:

Rather than giving the parent’s decision presumptive or special weight in deciding whether grandparental visitation is in the best interest of the child, as Troxel requires, the GPVA makes no provision for that but leaves the decision solely to the discretion of the trial court. Ark. Code Ann. § 9-13-103(a)(2) (Repl. 2002). Furthermore, when denying grandparental visitation, the GPVA requires that the trial court state the reasons for the denial in writing. Ark. Code Ann. § 9-13-103(a)(3)(A) (Repl. 2002). No concomitant requirement that the reasons be stated in writing is required when a trial court grants grandparental visitation. The net result is that the trial court may grant grandparental visitation without the burden of stating its reasons, but denial by the trial court requires justification and implicitly places the burden of proof on the parent. By this requirement, the General Assembly has incorporated a procedural preference for granting such rights as opposed to denying them. This preference is directly at odds with the presumptive effect given to the parent’s wishes under Troxel and, in effect, shifts the burden of proof to the parent.

Id. at 350.

In Linder, the court noted that the trial judge had found Lea Arm Linder to be a fit parent in every respect, except for her decision to prevent her child’s grandparents from having visitation rights. Id. at 351. The court declined to hold that unfitness to decide visitation matters objectively equates to unfitness to parent sufficient to warrant state intrusion on the parent’s fundamental right. “Were we to decide otherwise, any custodial parent refusing visitation would be subject to a trial court’s nonparental visitation order on grounds that the parent was unfit to decide the matter.” Id. at 352. Such a conclusion, we determined, would be at odds with the Supreme Court’s decision in Troxel, where Justice O’Connor wrote that a decision about whether grandparental visitation would benefit a child “is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.” Troxel, 530 U.S. at 70 (emphasis added).

* Here, the situation is perhaps even more egregious than the one in Linder. In that case, although the mother fled the jurisdiction with her child, not returning to Arkansas until she was located in Ohio and arrested on a contempt citation, the trial court nevertheless found her “to be a fit parent for all purposes save one: making the decision about [her child’s] relationship with his paternal grandparents.” Linder, 348 Ark. at 351. Here, in our de novo review of the record, no evidence is found to prove Becky was anything but a fit parent, but the same cannot be said regarding Jeff. Jeff was shown to have sexually abused Ashley, to be depressed, and to have entertained thoughts of suicide. Even so, the trial court’s findings from the bench and its order fail to reflect that it gave any weight to Becky’s concerns other than the court’s restriction of Ashley’s visitation with Jeff to those times when Jerry and Darlene Price were present. In addition, the court, in its order and remarks from the bench, did not mention Becky’s concern that the Prices smoked around Ashley despite the girl’s asthma. In short, the trial court made no reference in its findings as to Becky’s fitness as a parent, nor did it give her the presumption to which she was entitled in her opinions with respect to rearing her child. Instead, the court simply ordered that the Prices would be granted visitation concurrent with the visitation given to Jeff, concluding that “there’s no reason to deny the father visitation subject to certain restrictions, . . . [and] the court sees no reason that ¡Jerry and Darlene Price] should not have the right to exercise visitation with their son.” In other words, the trial court effectively shifted the grandparents’ burden in their visitation request to Becky, who is a fit parent. Because the court failed to apply any presumption in favor of the custodial parent’s decision regarding visitation, we hold that the GPVA was unconstitutionally applied in this case as it was in Linder.

Becky raises two additional arguments concerning the validity of the trial court’s order granting visitation; she contends that the trial court erred in failing to make a written finding that visitation with the Prices would be in Ashley’s best interest, and also that the court erred in not requiring visitation to be under the supervision of the Arkansas Department of Human Services. However, because we reverse and remand this case on the basis of the unconstitutionality of the statute, there is no need to reach the additional issues. Again, as we did in Linder, we urge the General Assembly to address this matter when it convenes in 2003. On remand, any visitation awarded to Jeff must be ordered to take place under the supervision of the Arkansas Department of Human Services, as was directed in the November 28, 2000, order entered by the trial court before the paternal grandparents were given the authority to supervise visitations.

Hannah, J., concurs.

J IM HANNAH, Justice,

concurring. I concur in the holding that the Grandparent Visitation Act is unconstitutional as applied in this case because the trial court failed to consider Becky’s right to raise her child as set out in prior decisions of this court, and because the trial court failed to consider the presumption that a parent is acting in the best interest of his or her child in making decisions concerning the child as discussed in Troxell v. Granville, 530 U.S. 57 (2000). However, for the same reasons set out in my dissent to Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002), I would argue that where a trial court takes these matters into consideration in deciding visitation, the statute may be constitutional as applied. The majority states, “Because Becky offers no new arguments that would require a different outcome in this case, we decline to expand Linder’s holding with respect to the Act’s facial invalidity.” However, then in a footnote, the majority provides that the holding in this case leaves but one clause of the statute constitutional, Ark. Code Ann. § 9-13-103 (c)(2) (Repl. 2002), whereby grandparent visitation is granted when a child is not in the custody of either parent. It is apparent that the entire statute, excepting paragraph (c)(2), is now declared facially unconstitutional, or at least is being treated as being unconstitutional. The apparent main purposes behind the Grandparent Visitation Act are now frustrated, and it is up the Legislature to draft a new act.

I again reiterate my concern, as I stated in Linder, supra, that this case not be read too broadly. This case only involves grandparent visitation granted under the GPVA. In this case, Jerry and Darlene Price were also included in the order regarding visitation with Jeff Price, which is unaffected by this decision. Under that order, Jerry and Darlene are to supervise Jeff s visitation. If this were not so, then Jeff would be left with visitation without supervision. Jeffs visitation was not appealed and remains valid, subject to the conditions set out by the trial court, which include supervision by Jerry and Darlene. Finally, I must question why this case is being remanded. The Act is unconstitutional as applied, and the majority in a footnote states that the holding in this case leaves but one clause of the statute constitutional. Because Ashley is in the custody of a parent, the grandparents cannot be awarded visitation under the statute. Jeffs visitation has not been appealed, and he retains his visitation subject to supervision by his parents. There is nothing for the court to do upon remand.

       We note that our holding finds nearly all of the Act unconstitutional, save one clause wherein grandparents may petition for visitation when no parent has custody. See § 9-13-103(c)(2). Of course, we are well aware of the rule of construction that, while an act may be unconstitutional in part and still be valid as to the remainder, this court has, on previous occasions, struck down the entire statute as unconstitutional when the remaining portion could not stand on its own. We stated this principle in Levy v. Albright, 204 Ark. 657, 163 S.W.2d 529 (1942), as follows:
      Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in the subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other. ... If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty'is in determining whether the good and bad parts of the statute are capable of being separated, within the meaning of this rule. If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as

        conditions, considerations, or compensations for each other, as to warrant the belief that the Legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.

      Levy, 204 Ark. at 659-60 (emphasis added). We realize that it might be argued that the entire GPVA is facially invalid, since the one constitutional subsection, § 9-13-103(c)(2), is “so connected together in meaning” with the remainder of the Act, and we could conclude that it must be struck down as well, because the purpose of the Act “is to accomplish a single object only.” Id. at 660. However, this argument was not mentioned in Linder or in this appeal, so we do not address it now. Nonetheless, the General Assembly should be aware of this argument if it decides to offer remedial legislation to provide a GPVA that meets constitutional muster.