HERMAN CONLEY, KENNETH EDWARDS, AND JAMES TATE, SR., INDIVIDUALLY AND O/B/O A CLASS OF SIMILARLY SITUATED PERSONS APPELLANTS
v.
BOLL WEEVIL PAWN COMPANY, INC. APPELLEE
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 ...