Kenneth W. TILLEY, Individually and as Trustee of the Kenneth Tilley Family Trust, Appellant
MALVERN NATIONAL BANK and Stephen Moore, Appellees
[Copyrighted Material Omitted]
FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CV-2011-1194],
HONORABLE JOHN HOMER WRIGHT, JUDGE
Liles P.A., by: Joshua Allen, Little Rock, and Christopher O.
Parker, for appellant.
Lindsey & Jennings LLP, Little Rock, by: Charles T. Coleman,
Adrienne L. Baker, and Kristen S. Moyers, for appellees.
LINKER HART, Justice
Kenneth W. Tilley, Individually and as Trustee of the Kenneth
Tilley Family Trust appeals the reinstatement of his
bench-trial judgment that we had set aside in Tilley v.
Malvern National Bank, 2017 Ark. 343, 532 S.W.3d 570
(Tilley I ). In Tilley I, we held that
"pre-dispute contractual jury waivers are unenforceable
under the Arkansas Constitution." Id. at 15,
532 S.W.3d at 578. Accordingly, we reversed and remanded the
case to the Garland County Circuit Court for a jury trial.
Instead, the circuit court applied Act 13 of 2018 (Act 13),
legislation that was passed by the General Assembly after our
mandate issued, but before Tilleys jury trial was scheduled.
The circuit court ruled that Tilleys right to a jury trial
had been obviated by the new legislation.
appeal, Tilley raises two points: (1) the circuit court erred
in ruling that Act 13 applies to this case; and (2) the
circuit court erred in holding that the jury-waiver provision
in that legislation is valid and enforceable. We reverse and
remand this case for a jury trial.
circuit court proceeding in Tilley I, Tilley timely
asserted his right to a jury trial. However, because there
was a jury-trial waiver clause in the loan agreement that was
the subject of the litigation, the circuit court struck
Tilleys demand for a jury trial. After a bench trial, the
circuit court entered judgment against Tilley. As noted
previously, we held that a pre-dispute jury-waiver clause did
comport with the Arkansas Constitution. Article 2, section 7
The right of trial by jury shall remain inviolate, and shall
extend to all cases at law, without regard to the amount in
controversy; but a jury trial may be waived by the parties in
all cases in the manner prescribed by law; and in all jury
trials in civil cases, where as many as nine of the jurors
agree upon a verdict, the verdict so agreed upon shall be
returned as the verdict of such jury, provided, however, that
where a verdict is returned by less than twelve jurors all
the jurors consenting to such verdict shall sign the same.
opinion in Tilley I, we construed the phrase
"but a jury trial may be waived by the parties in all
cases in the manner prescribed by law" to mean in
accordance with the Arkansas Rules of Civil Procedure,
specifically Rules 38 and 39 and by Arkansas Statute
Annotated section 27-1743.2, which was superseded by Rule 38.
The passage of amendment 80, charged the Arkansas Supreme
Court with the duty to "prescribe the rules of pleading,
practice and procedure for all courts." Ark. Const.
amend. 80, § 3. The constitutional
vesting of the authority to prescribe rules of practice and
procedure in the Arkansas Supreme Court stands in marked
contrast to the federal system where Congress has the
authority to prescribe the rules of practice and procedure.
Even so, section 3 of amendment 80 limits our rule-making
authority, allowing us to prescribe rules "provided
these rules shall not abridge, enlarge or modify any
substantive rights and shall preserve the right of trial by
jury as declared in this Constitution."
Malvern National Banks (MNB) and Moores petition for
rehearing was denied, the mandate issued on January 25, 2018.
Our mandate stated:
THIS APPEAL WAS SUBMITTED TO THE ARKANSAS SUPREME COURT ON
THE RECORD OF THE GARLAND COUNTY CIRCUIT COURT AND BRIEFS OF
THE RESPECTIVE PARTIES. AFTER DUE CONSIDERATION, IT IS THE
DECISION OF THE COURT THAT THE JUDGMENT OF THE CIRCUIT COURT
IS AFFIRMED IN PART; REVERSED AND REMANDED IN PART; COURT OF
APPEALS OPINION VACATED FOR THE REASONS SET OUT IN THE
in accordance with our mandate, this case was remanded to the
circuit court for a jury trial on Tilleys counterclaims and
third-party claims for (1) breach of contract/breach of the
duty of good faith and fair dealing; (2) promissory estoppel;
(3) violation of the Arkansas Deceptive Trade Practices Act;
(4) tortious interference with a business relationship or
expectancy; (5) negligence; and (6) deceit/fraud in the
inducement. Tilley I, supra .
the mandate was issued, the General Assembly passed Act 13 on
March 19, 2018. Act 13 states:
SECTION 1. As authorized by Article 2, § 7, of the Arkansas
Constitution, Arkansas Code Title 16, Chapter 30, is amended
to add an additional section to read as follows:
16-30-104. Contractual waiver of jury trial.
A written provision in a contract to borrow money or to lend
money in which the parties agree to waive their respective
rights to a trial by jury under Arkansas Constitution,
Article 2, § 7, is valid and enforceable except upon those
grounds that ...