Westlake Services, LLC v. Amber England, on Behalf of Herself and All Others Similarly Situated

Cite as 2024 Ark. App. 271
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-22-756

WESTLAKE SERVICES, LLC Opinion Delivered April 24, 2024

APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. TWELFTH DIVISION
[NO. 60CV-22-2491]
AMBER ENGLAND, ON BEHALF OF
HERSELF AND ALL OTHERS HONORABLE ALICE S. GRAY, JUDGE
SIMILARLY SITUATED
APPELLEE REVERSED AND REMANDED

ROBERT J. GLADWIN, Judge

Westlake Services, LLC, appeals from the Pulaski County Circuit Court’s September

19, 2022 order denying its motion to compel arbitration and to dismiss or stay proceedings

as well as the deemed denial of its motion to amend the order denying the motion, which

was timely filed on October 3.1

Westlake argues that (1) this case must be remanded with instructions because the

order denying its motion to compel arbitration does not explain the rationale for the circuit

court’s decision; (2) if the court reaches the merits of the appeal, the order denying

Westlake’s motion to compel arbitration should be reversed because the arbitration

1
Because the circuit court neither granted nor denied this motion within thirty days
of the date it was filed, it was deemed denied by operation of law as of November 2, 2022,
the thirtieth day from the date the motion was filed. See Ark. R. Civ. P. 52(b)(1) (2023); Ark.
R. App. P.–Civ. 4(b)(1) (2023).
agreement is valid and enforceable under the Automobile Dealer’s Anti-Coercion Act,

codified at Arkansas Code Annotated sections 4-75-401 to -413 (Repl. 2023) (“ADACA”);

(3) the arbitration agreement satisfies mutuality of obligations; and (4) Westlake did not

waive its right to compel arbitration. We reverse and remand to the circuit court with

instructions to enter an order consistent with this opinion.

I. Facts and Procedural History

On April 4, 2018, appellee April England and a co-borrower signed three agreements

related to the purchase of a 2004 F250 Ford Super Duty pickup truck (the “Vehicle”) from

nonparty Great American Auto, LLC, in Little Rock (the “Dealership”): (1) a “Retail

Installment Contract and Security Agreement” (the “Contract”); (2) an “Addendum to Retail

Installment Contract and Security Agreement” (the “Addendum”); and (3) a “Waiver of

Purchaser’s Right to Sue” (the “Arbitration Agreement”). The Contract set the price and

payment terms for the Vehicle and provided the seller’s remedies on default, including self-

help remedies and the right to seek a deficiency judgment.

The Contract was immediately assigned from the Dealership to Westlake. The

Addendum provided that the Contract would be construed and enforced in accordance with

Arkansas law, except that any usury provisions shall be governed by California law.

The Arbitration Agreement, set out in a separate document titled “WAIVER OF

PURCHASER’S RIGHT TO SUE,” was signed by England. The Arbitration Agreement expressly

provides that it is governed by the Federal Arbitration Act. It allows both England and

Westlake “[t]o initiate an arbitration proceeding” by notifying the other party, in writing,

2
that the demanding party “wishes to arbitrate a Dispute.” A “Dispute” within the scope of

the Arbitration Agreement is defined to include

any dispute with Dealership and/or Westlake Financial Services . . . whether based
in whole or in part on contract, tort, statute, or other equitable relief, arising from or
relating to: (1) the Vehicle and any products and services purchased in conjunction
therewith; (2) the negotiation of and terms of the Retail Installment Sales Contract,
and any other documents that are part of the transaction; (3) the application for and
terms of financing for the transaction; and/or (4) any question as to whether a dispute
may be arbitrated (including the interpretation and scope of this Agreement to
Arbitrate).

The Arbitration Agreement contained a clause that incorporated it into the Contract:

THIS WAIVER IS INCORPORATED BY REFERENCE INTO THE RETAIL INSTALLMENT
CONTRACT AND MAY NOT BE MODIFIED OR AMENDED EXCEPT BY A SEPARATE
WRITTEN AGREEMENT SIGNED BY THE BUYER(S) AND AN AUTHORIZED DEALERSHIP
AND/OR WESTLAKE FINANCIAL SERVICES REPRESENTATIVE.

At its conclusion, the Arbitration Agreement contains this statement: “By signing

below, Buyer(s) specifically acknowledges Buyer’s relinquishment of the right to have any

dispute over the sale or operation of the Vehicle decided by a court of law, as detailed

above.” (Emphasis in original.)

England defaulted on the payment obligations under the Contract. Pursuant to the

terms of the Contract, Westlake repossessed the Vehicle and sent England a “Notice of

Intent to Dispose of Motor Vehicle,” which represented that California law applied to the

repossession and disposition of the vehicle, that she had the right to redeem the repossessed

collateral before disposition, and that California law required England to pay a fifteen-dollar

repossession-report fee to the Little Rock Police Department to redeem the vehicle under

California law.

3
Westlake sold the Vehicle and applied the proceeds of the sale to the balance owed

under the Contract. Westlake then sued England for the deficiency in the Pulaski County

District Court, Sherwood Division, requesting a deficiency judgment for $5,123.27, plus

interest at the Contract rate of 21.79 percent. After Westlake served England, she appeared

in the district court action and moved to dismiss Westlake’s complaint because the 21.79

percent interest rate exceeds Arkansas’s prohibition on interest rates exceeding 17 percent.

Westlake filed a response, and other motions were filed by the parties, but England never

sought to compel arbitration in the district court action. Westlake’s district court action

against England remains open.

On April 18, 2022, England filed a class-action complaint against Westlake in the

Pulaski County Circuit Court. England’s complaint sought to have a class certified and

asserted claims against Westlake for violation of the Arkansas Deceptive Trade Practices Act,

violation of the usury provisions of the Arkansas Constitution, violation of certain provisions

of the Arkansas Uniform Commercial Code, unjust enrichment, and declaratory judgment.

Specifically, she challenged the allegedly usurious interest rates in Westlake’s contracts and

addenda as well as Westlake’s practices of requiring consumers to pay repossession-report

fees to law enforcement agencies.

On May 3, Westlake moved to compel arbitration in the circuit court action, seeking

to enforce the terms of the Arbitration Agreement and to dismiss or stay proceedings (“the

Motion”). In response, England raised three arguments in opposition: (1) the Arbitration

Agreement does not comply with the ADACA and, specifically, section 4-75-413; (2) the

4
Arbitration Agreement fails on the element of mutuality of obligation; and (3) Westlake

waived any right to compel arbitration in this matter when it sued England in district court

to collect a deficiency judgment. On June 15, Westlake filed a reply addressing each of

England’s arguments.

On September 7, the circuit court held a hearing on Westlake’s Motion. At the

conclusion of the hearing, Westlake’s counsel orally requested that any order on the Motion

contain specific findings of fact and conclusions of law. The circuit court responded from

the bench, “If the Court is required to, the Court will. If the Court’s not required to, I might

not. So, I don’t—I don’t believe that the Court is required to make specific findings. I do

what the Court’s required to do.” The circuit court otherwise took the Motion under

advisement.

On September 19, the circuit court filed an order denying Westlake’s Motion. The

order contained no specific findings of fact or conclusions of law and, instead, simply stated,

“Upon consideration of all matters before it, the Court hereby denies Defendant’s Motion

to Compel Arbitration and to Dismiss or Stay Proceedings.”

On October 3, Westlake timely filed its original notice of appeal and a Rule 52(b)

motion to amend the order denying its Motion. The motion to amend reiterated Westlake’s

oral request made at the hearing for specific findings of fact and conclusions of law

addressing all of the parties’ arguments both for and against arbitration. As an exhibit to the

motion to amend, Westlake attached a copy of the Arkansas Supreme Court’s decision in

Robinson Nursing & Rehabilitation Center, LLC v. Phillips, 2022 Ark. 109 (“Phillips III”). England

5
did not respond to the motion to amend. Moreover, the circuit court never ruled on it;

accordingly, the motion to amend was deemed denied by operation of law as of November

2, the thirtieth day from the date it was filed. See Ark. R. Civ. P. 52(b)(1) (2023); Ark. R.

App. P.–Civ. 4(b)(1) (2023). Westlake filed an amended notice of appeal, adding the deemed

denial of its motion to amend, on November 4, 2022.

II. Standard of Review

We review a circuit court’s order denying a motion to compel arbitration de novo on

the record, with the entire case open for review. DIRECTV, Inc. v. Murray, 2012 Ark. 366, at

3, 423 S.W.3d 555, 559; GGNSC Holdings, LLC v. Lamb, 2016 Ark. 101, at 5, 487 S.W.3d

348, 352. Even under that standard, we do not reverse absent a showing by an appellant that

the circuit court erred. Diamante, LLC v. Dye, 2013 Ark. App. 630, at 4, 430 S.W.3d 196,

199.

III. Discussion

A. Necessity of Remand for Explanation of the Circuit Court’s Rationale

Westlake initially argues that, in order to ensure that the parties are provided a full

and fair opportunity for appeal, the circuit court should be specifically instructed on remand

to provide specific findings of fact and conclusions of law that address every argument the

parties raised in support of, or in opposition to, arbitration.

Westlake notes that the Arkansas Supreme Court has held that specific findings of

fact and conclusions of law are required on orders denying motions to compel arbitration.

See Robinson Nursing & Rehab. Ctr., LLC v. Phillips, 2022 Ark. 193, at 4 (“Phillips IV”); Phillips

6
III, supra; Bank of the Ozarks, Inc. v. Walker, 2014 Ark. 223, at 5, 434 S.W.3d 357, 360. Phillips

III and Phillips IV are appeals that arose out of the same class-action case brought against a

nursing home where the defendants moved to compel arbitration as to certain class

members/nursing home residents. In Phillips III, the Pulaski County Circuit Court granted

the defendants’ motion to compel arbitration as to 93 residents and denied it with respect

to 104 residents. Phillips III, 2022 Ark. 109, at 2. The circuit court’s order did not state the

basis for that decision. Id. Without reaching the merits, the Arkansas Supreme Court

remanded the order with instructions for the circuit court to make specific findings regarding

its decision to deny the defendants’ motion to compel arbitration. Id. As the supreme court

explained, “It is essential that we are made aware of the circuit court’s rationale for its

decision so that we can conduct a proper appellate review.” Id.

In Phillips IV, the appeal was from an order granting arbitration as to fifteen residents

and denying it with respect to eighteen residents, and the order similarly did not explain the

basis for the decision. Phillips IV, 2022 Ark. 193, at 3–4. The decision in Phillips III was

handed down during the briefing period for Phillips IV. Id. The parties agreed, based on

Phillips III, that the arbitration order at issue in Phillips IV would have to be remanded, and

our supreme court unanimously ordered that result, explaining, “The circuit court again

made no findings, other than granting in part and denying in part as to certain residents,

without stating the basis for its decision. In order to conduct a proper appellate review, we

must know the circuit court’s rationale for its decision.” Id. at 4.

7
Similar to Phillips III and Phillips IV, the order at issue here simply “denies Defendant’s

Motion to Compel Arbitration and to Dismiss or Stay Proceedings” without any specific

findings of fact or conclusions of law to explain the circuit court’s rationale for its decision.

That said, considering our de novo standard of review and the entire record, and pursuant

to Arkansas Rule of Civil Procedure 52 (2023), we hold that the merits of this appeal can be

addressed without having to remand for specific findings of fact and conclusions of law

related to the denial of Westlake’s Motion.

In Colonel Glenn Health & Rehab, LLC v. Aldrich, we held:

Findings of fact and conclusions of law under Rule 52(a)(1) apply only to the
entry of judgments in “contested actions tried upon the facts without a jury.” In the
case at bar, there is no judgment in a contested action tried upon the facts without a
jury. Here, the circuit court ruled as a matter of law on a motion to compel
arbitration. Therefore, the order denying the motion to compel arbitration is not a
judgment as contemplated by Rule 52.

2020 Ark. App. 222, at 5, 599 S.W.3d 344, 348. We reached the same conclusion in Hickory

Heights Health & Rehab, LLC v. Cook, 2018 Ark. App. 409, 557 S.W.3d 286, after an appeal

was taken from an order summarily denying a motion to compel arbitration despite the

appellant’s request for findings of fact and conclusions of law pursuant to Rule 52(a)(1). In

it, we stated:

“Findings of fact and conclusions of law are unnecessary on decisions of motions
under these rules.” Ark. R. Civ. P. 52(a). Although it may be the better practice for
the circuit court to make findings on motions, the court’s failure to do so is not error.

Id. at 4 n.2, 557 S.W.3d at 289 n.2. Rule 52 provides no basis to challenge the lack of findings

of fact or conclusions of law in connection with the denial of the motion because it expressly

8
applies only to “all contested actions tried upon the facts without a jury.” Ark. R. Civ. P.

52(a)(1). It does not apply to a mere declaration of law because it does not finally determine

a claim. See Boyett v. Boyett, 269 Ark. 36, 39, 598 S.W.2d 86, 88 (1980).

Although Phillips III and Phillips IV are more recent cases, and the dissent in Phillips

III suggests that the Arkansas Supreme Court had implicitly overruled cases reaching

holdings similar to them, see Phillips III, 2022 Ark. App. 109, at 4–5 (Hudson, J., dissenting)

(citing Asset Acceptance, LLC v. Newby, 2014 Ark. 280, 437 S.W.3d 119), we note that the

Phillips cases stop short of reversing Aldrich, supra, and Cook, supra. Accordingly, because we

are tasked solely with determining whether the circuit court erred in denying Westlake’s

Motion on the basis of the Arbitration Agreement signed by England, we are able to conduct

a de novo review of the case and the circuit court’s ruling.

B. Merits of Order Denying the Motion

To reiterate, this court “review[s] a circuit court’s order denying a motion to compel

arbitration de novo on the record.” Lamb, 2016 Ark. 101, at 5, 487 S.W.3d at 352. As a

matter of public policy, arbitration is strongly favored in Arkansas because it offers a “less

expensive and more expeditious means of settling litigation and relieving docket congestion.”

Courtyard Gardens Health & Rehab., LLC v. Arnold, 2016 Ark. 62, at 6, 485 S.W.3d 669, 673.

The Federal Arbitration Act, 9 U.S.C. §§ 1–16 (“FAA”), which expressly governs the

arbitration agreement at issue in this case, requires the application of “federal substantive

law regarding arbitration” in state courts. Id. at 5, 485 S.W.3d at 673. Included within that

substantive law is a “liberal federal policy favoring arbitration” that mirrors Arkansas’s own

9
policy. AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011). To serve that policy, the

FAA requires courts to “rigorously enforce agreements to arbitrate” according to their terms.

Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985). When presented with a valid

arbitration agreement, the court should compel claims within the scope of the agreement to

arbitration “as quickly and easily as possible.” See Am. Ins. Co. v. Cazort, 316 Ark. 314, 320,

871 S.W.2d 575, 578 (1994).

In considering the denial of Westlake’s Motion, we are limited to deciding two issues:

(1) whether there is a valid arbitration agreement and (2) whether the dispute falls within

the scope of that agreement. See Newby, 2014 Ark. 280, at 5, 437 S.W.3d at 122. “[S]tate

contract law governs . . . whether an enforceable arbitration agreement exists between

litigants,” and federal law determines “whether the litigants’ dispute falls within the scope of

the arbitration agreement.” Donaldson Co., Inc. v. Burroughs Diesel, Inc., 581 F.3d 726, 731

(8th Cir. 2009). In answering these two questions, any doubts regarding arbitrability must

be resolved in favor of arbitration. See HPD, LLC v. TETRA Techs., Inc., 2012 Ark. 408, at 6,

424 S.W.3d 304, 308 (citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991)).

The record demonstrates that England does not dispute the following: (1) she signed

the Contract, an agreement that provides for binding arbitration; (2) the Arbitration

Agreement is governed by the FAA; and (3) the parties’ dispute is within the scope of the

Arbitration Agreement. Rather, England argues that the circuit court should decline to

enforce the Arbitration Agreement for three reasons: (1) the Arbitration Agreement is

invalid under the ADACA; (2) the Arbitration Agreement lacks mutuality of obligations;

10
and (3) Westlake waived its right to arbitration in this action because it filed a separate

lawsuit against England to collect a deficiency judgment.

1. Validity and enforceability of Arbitration Agreement under the ADACA

Section 413(a) of the ADACA provides that a contract for the sale of a motor vehicle

may not contain a provision “requiring the purchaser to submit a disputed matter” to

binding arbitration “[e]xcept as provided in subsection (b).” Ark. Code Ann. § 4-75-413(a).

Subsection (b) states:

The purchaser of a motor vehicle may knowingly and voluntarily agree to
submit to binding arbitration only by signing a separate document entitled in bold
print “Waiver of Purchaser’s Right to Sue” containing a written waiver specifically
acknowledging the purchaser’s relinquishment of the right to have any dispute over
the sale or operation of the motor vehicle decided by a court of law.

Ark. Code Ann. § 4-75-413(b)(1)(A). Subsection (b) further specifies that any arbitration

agreement “shall not be enforceable unless contained in a separate document.” Ark. Code

Ann. § 4-75-413(b)(2). Accordingly, under the plain language of the ADACA, a purchaser of

a motor vehicle can agree to binding arbitration by signing an arbitration agreement

contained in a separate, appropriately captioned document. See Ark. Code Ann. § 4-75-

413(a), (b); see also 2 David Newbern, John Watkins & D.P. Marshall Jr., Arkansas Civil

Practice & Procedure § 14:14 n.7 (5th ed. 2011).

Our de novo review of the record makes clear that the Arbitration Agreement at issue

is contained in a separate document, and England signed it. The Arbitration Agreement

follows, nearly verbatim, the language required under the ADACA. The Arbitration

Agreement is titled “WAIVER OF PURCHASER’S RIGHT TO SUE,” and in it, England “specifically

11
acknowledge[d] Buyer’s relinquishment of the right to have any dispute over the sale or operation of the

Vehicle decided by a court of law.” (Emphasis in original.)

We disagree with England’s contention that because the Arbitration Agreement is

incorporated into the Contract, it violates the ADACA. The ADACA specifically provides

that a contract for the sale of a motor vehicle can include an arbitration agreement “as

provided in subsection (b).” See Ark. Code Ann. § 4-75-413(a), (b). We have held that

separate documents signed at the same time, by the same parties, for the same purpose, and

in the course of the same transaction are considered together. See Sloop v. Kiker, 2016 Ark.

App. 125, at 6, 484 S.W.3d 696, 700. No provision of the ADACA changes that settled law

or prohibits this common business practice.

The ADACA further contemplates the documents being considered together because

there would be no purpose in allowing a purchaser to sign a separate document providing

for binding arbitration—as required by the ADACA—if that document would be void when

taken together with the motor-vehicle contract. Such an interpretation of the ADACA would

render subsection (b) meaningless. See Great Lakes Chem. Corp. v. Bruner, 368 Ark. 74, 82,

243 S.W.3d 285, 291 (2006) (construing statutes so that no word is left void, superfluous,

or insignificant and giving meaning and effect to every word in the statute, if possible).

Because England specifically complied with the ADACA requirement to sign a separate

arbitration agreement, which then governs disputes arising under the Contract, we hold that

the Arbitration Agreement is valid and enforceable under the ADACA.

2. Satisfaction of the mutuality-of-obligations element of a binding contract

12
Arkansas law is clear that mutuality of obligations does not mean that “every provision

within a contract [must] be bilateral” and “does not require a precisely even exchange of

identical rights and obligations between the contracting parties.” E.g., Jorja Trading, Inc. v.

Willis, 2020 Ark. 133, at 5, 598 S.W.3d 1, 6. Rather, “[i]t is enough that the duty

unconditionally undertaken by each party be regarded by the law as a sufficient consideration

for the other’s promise.” Id. at 6, 598 S.W.3d at 6. In other words, “neither party is bound

unless both are bound.” Id. at 4, 598 S.W.3d at 5. In Willis, our supreme court held that an

installment-sales contract very similar to the one at issue in this appeal satisfied the mutuality-

of-obligations requirement of Arkansas law, notwithstanding the fact that the contract

preserved the seller’s self-help remedies, included a class-action waiver, and allowed the seller

to reject the buyer’s choice of arbitrator. Id. at 6–9, 598 S.W.3d at 6–7. The mere fact that

those reservations benefited the buyer and seller differently did not destroy mutuality. Id.

And we addressed another similar arbitration agreement in EBF Partners, LLC v.

Letha’s Pies, LLC, 2021 Ark. App. 187, 625 S.W.3d 713. We described the agreement in

question as follows:

The agreement provides for two different types of “forums”: judicial and
arbitration. Although EBF has substantial judicial remedies if Letha defaults, the
judicial remedies are available only if Letha’s does not request arbitration. If a
defaulting event occurs, EBF had the right to enforce the agreement in a judicial
forum, unless the appellee requested arbitration. If the latter occurred, then EBF
would be obligated to pursue arbitration.

13
Id. at 7–8, 625 S.W.3d at 718. We held that the substantial judicial remedies otherwise

available to EBF did not destroy mutuality because both sides had agreed to submit to

arbitration at the request of the other. Id. at 8, 625 S.W.3d at 718.

The Arbitration Agreement similarly obligates both parties to submit to arbitration.

It sets out the following procedure for either party to “initiate an arbitration proceeding”:

“the initiating party must notify the other party, in writing, that it wishes to arbitrate a

Dispute.” We note that the Arbitration Agreement does not restrict the right to initiate

arbitration to only one party but rather contemplates that either England or Westlake can

be the “initiating party.” Under the express terms of the Arbitration Agreement, both parties

possess the right to demand arbitration.

And as in Letha’s Pies, supra, the Arbitration Agreement also allows either side to

pursue judicial remedies unless the other gives notice “that it wishes to arbitrate a Dispute.”

Pursuant to its terms, England could have demanded arbitration in the district court case

filed by Westlake, and had she chosen to do so, Westlake would have then been required to

pursue that case through arbitration. The fact that England chose not to demand arbitration

in that separate action does not result in her being able to refuse Westlake’s demand for

arbitration in this one.

Our supreme court specifically recognized the FAA’s requirement that arbitration

agreements be put on equal footing with all other contracts. See Willis, 2020 Ark. 133, at 6–

8, 598 S.W.3d at 6–7. Moreover, specifically regarding self-help provisions, since the filing

of England’s brief, we have held that, as applied to arbitration agreements, the requirement

14
of mutuality means only that “arbitration agreements may not be used to shield one party

from litigation while allowing the other party relief through the court system.” See, e.g., Altice

USA, Inc. v. Johnson, 2023 Ark. App. 120, at 15, 661 S.W.3d 707, 719. Thus, the fact that a

party “may use other measures to resolve disputes before resorting to arbitration . . . has no

relevance to our analysis—which looks only at the terms of the arbitration agreement itself.”

Altice USA, Inc. v. Campbell, 2023 Ark. App. 123, at 10–11, 661 S.W.3d 720, 728 (citing

Willis, 2020 Ark. 133, at 4, 598 S.W.3d at 5).

We disagree with England’s reliance on Alltel Corp. v. Rosenow, 2014 Ark. 375. In

Rosenow, the provision at issue was a general nonwaiver clause, found outside the arbitration

agreement, which provided that if Alltel failed to enforce any right or remedy available to it,

such failure was not a waiver. Id. at 7. There is no such provision at issue before us, and we

recognize that Rosenow expressly looked outside the actual arbitration agreement to find a

provision that destroyed mutuality of obligations as to the arbitration agreement. Id. We

recently stated in Campbell, post–Willis, that the mutuality-of-obligations analysis “looks only

at the terms of the arbitration agreement itself.” E.g., Campbell, 2023 Ark. 123, at 11, 661

S.W.3d at 728. Accordingly, if Rosenow is not distinguishable from this case, it has been

abrogated by Willis, supra.

C. Did Westlake Waive its Right to Compel Arbitration?

Finally, the record before us indicates that England argued before the circuit court

that Westlake waived its right to demand arbitration in this action. England is correct that a

party can waive its right to compel arbitration—as she did in the related district court action

15
by making no demand for arbitration in that case. We are not inclined, however, to find

merit in England’s claim that by filing a separate action for a deficiency judgment in district

court, Westlake waived its right to demand arbitration in this purported class action in which

Westlake is a defendant.

In the case before us, Westlake promptly requested arbitration pursuant to the

procedures set out in the Arbitration Agreement, as it was so entitled. Our review of the

record reveals no indication that Westlake has shown any intent to seek resolution of

England’s new putative-class claims through litigation or has otherwise waived its right to

demand arbitration in this case. There is, however, evidence that England expressly admitted

before the circuit court that “the Arkansas Supreme Court has ruled a secured creditor did

not waive its right to arbitration by suing to collect a deficiency judgment.”

Of note, in Willis, supra, our supreme court expressly held that the defendant did not

waive its right to compel arbitration by filing a lawsuit seeking payment for a deficiency

judgment. 2020 Ark. 133, at 9–10, 598 S.W.3d at 7–8. The facts in Willis are similar in that

when the debtors failed to make their payments, the vehicle in question was repossessed and

sold, and the account was credited, but there remained an outstanding balance. Id. at 4, 598

S.W.3d at 2. The creditor then filed a complaint in district court seeking payment of the

outstanding balance. Id. After appealing a district court judgment in the creditor’s favor to

circuit court, the debtors asserted class counterclaims based on usury and UCC violations

and sought class certification. Id. In response, the creditor filed a motion to compel

arbitration. Id. The circuit court held that the creditor had waived its right to arbitration by

16
filing the action to collect the outstanding balance. Id. The Arkansas Supreme Court

reversed, holding that the creditor did not waive arbitration of the class claims by seeking

monetary relief in the district court. Id. at 10, 598 S.W.3d at 8.

Recognizing that Willis controls here and requires compelling arbitration, England

suggested below that Willis was overruled by the United States Supreme Court’s recent

opinion in Morgan v. Sundance, Inc., 596 U.S. 411 (2022). We disagree. In Morgan, the

Supreme Court overturned the Eighth Circuit’s rule requiring a showing of prejudice to find

that a party waived its right to arbitration, explaining that the prejudice requirement was not

required by federal law and that federal courts could not create arbitration-specific variants

of the federal rules. Id. at 416–17. The Arkansas Supreme Court’s decision in Willis was not

focused on prejudice—in fact the term “prejudice” is not mentioned therein.

England submits that Willis is inconsistent with Morgan, which she claims “mandates

that courts must examine whether Westlake’s conduct in suing England and continuing to

litigate its case against her acts as a waiver of Westlake’s rights to arbitration.” We note that

Willis examined the same conduct at issue in England’s waiver argument, and just as she

claims is required by Morgan, the Willis court focused entirely on the conduct of the secured

creditor seeking a deficiency judgment. See Willis, 2020 Ark. 133, at 9–10, 598 S.W.3d at 7–

8. The Willis court never once examined whether the plaintiff in that case was prejudiced by

the conduct allegedly constituting a waiver, which is the only issue that the United States

Supreme Court prohibited in Morgan. See Morgan, 596 U.S. at 417. We hold that England’s

17
waiver argument is of no merit pursuant to the analysis in Willis and that it has not been

overruled by Morgan.

Pursuant to our de novo review of the record before us, and contrary to England’s

arguments otherwise, we hold that the Arbitration Agreement is valid and enforceable under

the ADACA and that it satisfies the mutuality-of-obligations element of a binding contract.

Moreover, we hold that Westlake did not waive its right to demand arbitration in this

purported class action in which it is a defendant merely by its filing a separate action for a

deficiency judgment in the district court. Accordingly, we reverse and remand the matter to

the circuit court with instructions, consistent with this opinion, to enter an order granting

Westlake’s Motion.

Reversed and remanded.

HARRISON, C.J., agrees.

THYER, J., concurs.

CINDY GRACE THYER, Judge, concurring. I agree with the majority that we can and

should decide this case on the merits. In my opinion, the Phillips1 decisions, when viewed in

the context of prior case law, have muddied the waters as to when circuit courts are required

1
Robinson Nursing & Rehab. Ctr., LLC v. Phillips, 2017 Ark. 162, 519 S.W.3d 291
(Phillips I); Robinson Nursing & Rehab. Ctr., LLC v. Phillips, 2019 Ark. 305, 576 S.W.3d 624
(Phillips II); Robinson Nursing & Rehab. Ctr., LLC v. Phillips, 2022 Ark. 109 (Phillips III); Robinson
Nursing & Rehab. Cntr., LLC v. Phillips, 2022 Ark. 193 (Phillips IV); Robinson Nursing & Rehab.
Ctr., LLC v. Phillips, 2023 Ark. 175, 678 S.W.3d 175 (Phillips V).

18
to issue findings on the denial of a motion to compel arbitration 2 and have left our courts

with little guidance on how to proceed going forward. I write separately in an attempt to

provide some guidance, if not clarity, to this opaque situation.

According to Rule 52 of the Arkansas Rules of Civil Procedure and our prior case

law, circuit courts are not required to render specific findings when ruling on motions,

including motions to compel arbitration. Ark. R. Civ. P. 52(a)(1) (“Findings of fact and

conclusions of law are unnecessary on decisions of motions under these rules.”); see also

Colonel Glenn Health & Rehab, LLC v. Aldrich, 2020 Ark. App. 222, 599 S.W.3d 344; Hickory

Heights Health & Rehab, LLC v. Cook, 2018 Ark. App. 409, 557 S.W.3d 286 (findings of fact

and conclusions of law under Rule 52(a)(1) are not required for decisions on motions to

compel arbitration.) Thus, blanket denials of motions to compel were permitted and did not

automatically require a remand for specific findings. Remand was required only in those

cases in which the court made a specific finding as to an asserted defense without first ruling

on the threshold issue of the validity of the arbitration agreement itself. This framework

appears to have changed upon the supreme court’s decision in Phillips III.

Prior to Phillips III, our cases were split between those cases in which the circuit court

issued a blanket denial (not requiring a remand) and those in which it did not (resulting in

2
I am confident I am not alone in this belief because the dissent in Phillips III
emphasized that the majority’s decision in that case not only overruled sub silentio Asset
Acceptance, LLC v. Newby, 2014 Ark. 280, 437 S.W.3d 119, but also marked yet another
dramatic shift in our appellate review of arbitration agreements, resulting in confusion as
what is required of a circuit court in addressing a motion to compel. Phillips III, 2022 Ark.
109, at 5 (Hudson, J., dissenting).

19
a remand). Stated differently, whether a remand was required in a denial-of-arbitration case

seemed to hinge on whether the circuit court issued a blanket denial of an arbitration motion

or whether it ruled solely on a defense to arbitration.

Turning now to the Phillips cases, in Phillips I, our supreme court ruled only on

Phillips’s attempts at class certification. When the case returned to the court in Phillips II,

the focus shifted to the propriety of Robinson’s efforts to compel arbitration of the claims

of its 544 residents identified in the class. Those 544 members were divided into separate

categories based on the circumstances surrounding the execution of their individual

agreements. In Phillips II, the circuit court, in line with Rule 52(a)(1), issued a summary denial

of arbitration with respect to each of those separate categories. Our supreme court, appearing

to follow our previous line of cases holding that remand for findings was not required,

considered the arbitration issue of each category on the merits—affirming in part and

reversing and remanding in part.

However, in Phillips III, Phillips IV, and Phillips V, the supreme court ordered a remand

for additional findings despite the circuit court’s issuance of a blanket denial. It did so

without explaining its departure from prior precedent—only stating that such findings were

necessary to conduct its review. Admittedly, it is unclear whether our supreme court

intended to depart from our prior case law and now require findings in all cases denying

motions to compel arbitration despite the plain language of Rule 52 or whether it intended

only to create another subset of arbitration cases wherein such findings are required, thereby

leaving prior case law allowing general denials in some circumstances intact. Because I find

20
that the Phillips cases can be harmonized with our prior case law, I concur in the majority’s

decision that a remand for additional findings is not required.

A brief history of our more notable cases in this area is instructive.

In Bank of the Ozarks, Inc v. Walker, 2014 Ark. 223, 434 S.W.3d 257, an order with

partial findings was at issue. In Bank of the Ozarks, the circuit court specifically denied the

Bank’s motion to compel arbitration on the basis of Walker’s defense of unconscionability.

The parties, however, had also disputed the validity of the arbitration agreement, and the

circuit court’s order failed to address the agreement’s validity. Noting that the circuit court’s

specific findings had failed to address the threshold question of whether there was a valid

arbitration agreement, our supreme court reversed and remanded for additional findings as

to the validity of the arbitration agreement.

In Newby, 2014 Ark. 280, 437 S.W.3d 119, however, our supreme court concluded

that remand for additional findings was not necessary. In that case, as in Bank of the Ozarks,

the parties disputed the existence of a valid arbitration agreement. While the circuit court

orally stated that it was denying the motion to compel arbitration on the basis of waiver, its

written order simply delivered a blanket denial. After determining that the written order

containing the blanket ruling controlled over the more specific oral ruling and after

distinguishing its decision in Bank of the Ozarks, the supreme court concluded that a circuit

court’s blanket denial of the motion to compel arbitration constituted a ruling on all the

issues raised by the parties, including the validity of the agreement, and that a remand was

not necessary. The supreme court premised its decision on the notion that when a circuit

21
court denies a motion without expressly stating the basis for its ruling, its ruling is deemed

to have encompassed the issues presented to it by the briefs and arguments of the parties.

In Regional Care of Jacksonville, LLC v. Henry, 2014 Ark. 361, 444 S.W.3d 356, the

supreme court again concluded that a remand for additional findings was unnecessary. In

Henry, the validity of the arbitration agreement was at issue, and the court entered a blanket

denial of the motion to compel. Appellant filed a motion requesting specific findings, but

the court denied the motion. This court reached the issues without remand, noting once

again that when a circuit court denies a motion to compel arbitration without expressly

stating the basis for its ruling, that ruling encompasses the issues presented to the circuit

court by the briefs and arguments of the parties.

This issue was raised again sua sponte by the supreme court in GGNSC Holdings, LLC

v. Chappel, 2014 Ark. 545, 452 S.W.3d 645. In Chappel, the supreme court remanded for

additional findings because the circuit court specifically denied the motion to compel due

to impossibility of performance—a defense—without ruling on the issue of the agreement’s

validity. Because the circuit court’s ruling was not a blanket denial, the court found the facts

of that case were more closely aligned with that in Bank of the Ozarks than in Newby and

remanded.

Diamante, LLC v. Dye, 2015 Ark. 243, 464 S.W.3d 459, involved a motion to compel

arbitration in a class-action lawsuit. In an earlier appeal of that case (Diamante, LLC v Dye,

2013 Ark. App. 630, 430 S.W.3d 196 (Diamante I)), this court held that a valid agreement

to arbitrate existed between Diamante and the Dyes, as individuals, but that Diamante’s

22
delay in moving to compel arbitration resulted in a waiver as to the Dyes individually.

However, because class certification had been held in abeyance while on appeal, the circuit

court’s order did not address whether valid arbitration agreements existed between

Diamante and the other class members or whether Diamante had waived arbitration as to

the other members in the class as well. On remand, the circuit court entered an order finding

that Diamante had waived its right to arbitrate as to the unnamed class members. It did not

discuss, however, the validity of the arbitration agreement as to the unnamed class members.

The supreme court in remanding for additional findings noted that our opinion in

Diamante I, which concluded that there was a valid arbitration agreement between Diamante

and the Dyes, did not apply to the subsequent motion to compel arbitration as to the

unnamed class members. As a result, the supreme court reversed and remanded to the circuit

court for a ruling on whether there was a valid agreement to arbitrate as between Diamante

and the unnamed class members. Once again, in that case, the circuit court had not issued

a blanket denial; rather, it had denied the motion to compel and gave a specific reason for

denial—waiver. Thus, a remand was necessary.

Our court next discussed the lack of findings in Cook, 2018 Ark. App. 409, 557

S.W.3d 286. In Cook, we noted that the circuit court summarily denied the motion to compel

in a one-page order without explaining its reasoning. In a footnote, citing Rule 52(a), we

noted that findings of fact and conclusions of law are unnecessary on decisions of motions

under these rules. We stated that, although it may be the better practice for the circuit court

to make findings on motions, the court’s failure to do so was not erroneous, and unless the

23
contrary could be shown, we presume that the circuit court acted properly and made such

findings of fact as were necessary to support its judgment. 2018 Ark. App. 409, at 4 n.2, 557

S.W.3d at 289 n.2. So, once again, when there was a blanket denial, we did not remand for

findings.

A year later, in Phillips II, the supreme court was faced with the circuit court’s

summary denial of the nursing home’s motion to compel arbitration. In deciding the issues,

the supreme court, citing Newby, concluded that remand was not required because the circuit

court had issued a blanket denial; thus, it was able to address the issues raised in the motions

and responses alone.

The circuit court in Aldrich, 2020 Ark. App. 222, 599 S.W.3d 344, also entered a

blanket denial of a motion to compel arbitration. The nursing home requested findings

under Rule 52, but the circuit court denied the request. We held that findings under Rule

52(a) were not required because that rule applied only to the entry of a judgment in a

contested action tried upon the facts without a jury.

Then, in Phillips III and Phillips IV, the supreme court appears to have changed course.

In those cases, the supreme court noted that the circuit court had granted the motion to

compel arbitration as to some of the class members and had denied it as to others but had

done so without making any findings “whatsoever.” The supreme court stated that, in order

to conduct a proper appellate review, it was essential that it be made aware of the circuit

court’s rationale for its decision. As a result, the supreme court remanded for further

findings.

24
In a dissent in Phillips III, Justice Hudson, joined by Justices Baker and Wynne, noted

that the majority opinion in Phillips III was an abrupt departure from our precedent and was

inconsistent with its review in the prior appeal from this very same case. The dissent

discussed the previous cases, stating that, by its general denial of the motion to compel, the

circuit court had, in fact, ruled on each of the arguments raised by the appellees, including

the threshold issue of whether a valid arbitration agreement existed. In doing so, the dissent

claimed that the majority had overruled Newby sub silentio. Phillips III, 2022 Ark. 109, at 3–

5 (Hudson, J., dissenting).

Next, this court decided five Suddenlink cases: Altice USA, Inc. v. Peterson, 2023 Ark.

App. 116, 661 S.W.3d 699; Altice USA, Inc. v. Francis, 2023 Ark. App. 117, 661 S.W.3d 699;

Altice USA, Inc. v. Johnson, 2023 Ark. App. 120, 661 S.W.3d 707; Altice USA, Inc. v. Campbell,

2023 Ark. App. 123, 661 S.W.3d 720; and Altice USA, Inc. v. Runyan, 2023 Ark. App. 124,

662 S.W.3d 247. All of those cases, except Johnson,3 involved a blanket denial of the motion

to compel arbitration. We addressed the issues in those cases, citing Newby, noting that the

issues had been fully briefed below.

The last case is another iteration of the Phillips line of cases, Phillips V. On remand

from Phillips IV, the circuit court granted the motion to compel as to some of the class

members and denied it as to others. In doing so, the circuit court listed factors that may or

3
In Johnson, the circuit court’s specific findings denying the motion to compel
arbitration were related to the validity of the arbitration agreement itself. Therefore, it
appears that remand for further findings was not necessary because the circuit court ruled
on that threshold issue.

25
may not have been relevant to some of the class members. The supreme court remanded the

case again, finding that the circuit court had failed to provide it with an adequate rationale

for its decision. It stated, once again, that absent specific findings, the supreme court could

not conduct a proper review.

The issue is whether these later Phillips cases can be reconciled with our prior case

law. I think they can. In Phillips II, the circuit court denied the four motions to compel as

to all the class members, and as with the other blanket-denial cases, there was no remand for

findings. However, in the later Phillips cases, the circuit court granted the motions to compel

as to some of the plaintiffs and denied them as to others. In fact, in the last Phillips case, the

circuit court hinted that the denials may have been granted on different bases depending on

the circumstances surrounding the individual class members. Because it was unclear on what

basis the circuit court differentiated between the class members resulting in the differing

outcomes, the matters needed to be sent back for further findings.

In my view, Phillips III and Phillips IV, while not entirely consistent with our prior

holdings, do not actually overrule Newby and our prior case law. Instead, those cases create

a new subset of arbitration cases in which a circuit court’s findings relative to particular

putative class members differ. In other words, when a circuit court determines that some,

but not all, individuals in a putative class are subject to binding arbitration, it is incumbent

on the circuit court to make specific findings of fact and conclusions of law on that decision

so that the appellate courts may provide adequate review of the circuit court’s decision.

26
Colloquially, when the circuit court tears the blanket, it is the circuit court’s responsibility

to explain its reasons for the tear.

The blanket here was not torn by the circuit court; thus, I think it is possible to

distinguish the later Phillips cases from the case before us. With that said, I wholeheartedly

believe that additional guidance and clarity from the supreme court on how circuit courts

should proceed in these oft-recurring types of cases would be quite beneficial.

Wright, Lindsey & Jennings LLP, by: Judy Simmons Henry, Michael A. Thompson, and P.

Collins Hickman Jr., for appellant.

Corey D. McGaha PLLC, by: Corey D. McGaha; and Turner and Turner, P.A., by: Todd

M. Turner, for appellee Amber England.

27