KENNETH W. TILLEY, INDIVIDUALLY AND AS TRUSTEE OF THE KENNETH TILLEY FAMILY TRUST APPELLANT
MALVERN NATIONAL BANK AND STEPHEN MOORE APPELLEES
FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CV-2011-1194]
HONORABLE JOHN HOMER WRIGHT, JUDGE
Eichenbaum Liles P.A., by: Joshua Allen and Christopher O.
Parker, for appellant.
Wright, Lindsey & Jennings LLP, by: Charles T. Coleman,
Adrienne L. Baker, and Kristen S. Moyers, for appellees.
JOSEPHINE LINKER HART, Justice
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 Tilley's jury trial was scheduled. The circuit
court ruled that Tilley's 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
Tilley's demand for a jury trial. After a bench trial,
the circuit court entered judgment against Tilley. As noted
preciously, 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
Malvern National Bank's (MNB) and Moore's petition
for rehearing was denied, the mandate issued on January 25,
2018. Our mandate stated:
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 Tilley's 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,
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 exist at law or in equity for the
revocation of any contract.
SECTION 2. DO NOT CODIFY. Retroactivity.
(a) This act applies retroactively to a contract to waive a
jury trial entered into before the effective ...