Conley v. Boll Weevil Pawn Co., Inc.

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-16-3003] HONORABLE TIMOTHY FOX, JUDGE

          Omavi Shukur, for appellants.

          Williams & Anderson PLC, by: Phil E. Kaplan, David M. Powell, Heather G. Zachary, and Alec Gaines, for appellee.

          JOSEPHINE LINKER HART, ASSOCIATE JUSTICE

         Conley appeals the June 9, 2017 order from Pulaski County Circuit Court denying his third amended motion for class certification. Our jurisdiction is proper pursuant to Ark. R. App. P. - Civil 2(a)(9). On appeal, Conley asks us to remand arguing that the trial court abused its discretion by not providing appellants with specific findings of fact and conclusions of law thereon, as Conley requested pursuant to Ark. R. Civ. P. 52, in its order denying class certification. Alternatively, if the circuit court's order is sufficient, Conley asks us to reverse the circuit court's decision because, contrary to the conclusions contained in the order, he has made prima facie showings of commonality and typicality. Boll Weevil counters that the circuit court's order should be affirmed because it found that the proposed class failed to satisfy commonality or typicality, and that Rule 52 thus has no application because it denied the motion for class certification. Additionally, as a separate basis for affirming the circuit court's order, Boll Weevil argues that the proposed classes are not "ascertainable." We conclude that the circuit court was required to enter specific findings of fact and conclusions of law, even in denying class certification, and that it would be advisory to address the parties' remaining arguments at this juncture. We reverse and remand for further proceedings consistent with this opinion.

         I. Background

         On June 2, 2016, Conley filed a class-action complaint against Boll Weevil in Pulaski County Circuit Court. Conley's complaint alleged that Boll Weevil was charging excessive interest in violation of the Arkansas Constitution and the Arkansas Deceptive Trade Practices Act. For its general factual underpinning, Conley's complaint alleged that Boll Weevil engages in "pawn transactions," a typical example of which would involve a consumer delivering physical possession, control, and (when applicable) title to his or her property to Boll Weevil. In exchange, Boll Weevil extends a sum of money equal to a percentage of 10-30% of the property's actual value, with monthly interest accruing on the entire sum at 20.25% for each month the money is not repaid in full. The consumer can re-acquire the property by paying to Boll Weevil the money advanced and interest at the end of the term of the agreement. Furthermore, the term can be extended if the consumer elects to extend and makes all interest payments due before the end of the term. However, if the consumer ever defaults on the agreement, or if the consumer otherwise chooses not to make the payments contemplated by the pawn transaction, the property is automatically forfeited to Boll Weevil.

         On April 18, 2017, Conley filed a third amended motion for class certification asking the trial court to certify two classes consisting of Boll Weevil's pawn transaction customers. The two proposed classes were defined as follows:

Class A: All consumers who have entered into pawn transactions with Boll Weevil since June 2, 2011 continuing up through and until judgment may be rendered in this matter in which: 1) the term of the pawn transaction (listed as the "Maturity Date" on the pawn transaction agreement) is less than one (1) year; and 2) the consumer has made a pawn service fee payment (listed as "Amount Financed" on the pawn transaction agreement) within one (1) year of entering a pawn transaction with Boll Weevil.

Class B: All consumers who have entered into pawn transactions with Boll Weevil since June 2, 2011 continuing up through and until judgment may be rendered in this matter in which: 1) the term of the pawn transaction (listed as the "Maturity Date" on the pawn transaction agreement) is less than one (1) year; and 2) the pawn service fee (listed as the "Finance Charge" on the pawn transaction agreement) amounts to more than 17% of the amount dispersed to the consumer by Boll Weevil (listed as the "Amount Financed" on the pawn transaction agreement).

         Also on April 18, 2017, Conley filed a request pursuant to Ark. R. Civ. P. 23 and Ark. R. Civ. P. 52 for "for specific findings of fact and conclusions of law with respect to Plaintiff's request for class certification, the requirements for class certification in Rule 23(a) and (b), and any order entered by the Court granting or denying class certification."

         On June 9, 2017, the circuit court entered an order denying class certification. The circuit court's order was very limited, providing as follows:

1. The proposed class does meet the requirement that the class be numerous to the extent that joinder of all members is impracticable.

2. The proposed class lacks commonality in that there are no questions of law or fact ...