                                             Cite as 2013 Ark. App. 517




Susan Williams               ARKANSAS COURT OF APPEALS
2019.01.02
                                                     DIVISION IV
12:39:49 -06'00'                                     No. CV-13-3

                                                                    Opinion Delivered September 78, 2073
          BANK OF THE OZARKS, INC., and
          BANK OF THE OZARKS                                        APPEAL FROM THE LONOKE
                                         APPELLANTS                 COUNTY CIRCUIT COURT
                                                                    [NO. CV -2011-777)
          V.
                                                                HONORABLE SANDY HUCKABEE,
          ROBERT WALKER, ANN B. HINES,                          JUDGE
          and JUDITH BELK
                                            APPELLEES               REVERSED AND REMANDED


                                          RHONDA K.\VOOD,Judge

                 Appellanr, Bank of the Ozarks, appeals from the denial of its motion to compel

        arbitration of appellees'class-action complaint.lThe circuit court ruled that rhe arbitration

        clause   in the deposit agreement between the bank and appellees was unconscionable. The

        bank argues that the circuit coult erred and that the arbitration clause is enforceable. We

        agree and reverse and remand for entry of an order compelling arbitration.

                 Appellees each have      a checking account with the bank. A deposit             agreement

        govems these relationships and includes, among other things, an arbitration clause,2 a class-



              I An order denying a motion to compel arbitration is immediately appeaiable. Ark.
        R. App. P.-Civil 2(a)(12) (2012).
                 2
                     The arbitration clause reads   as   follows:

                                ARBITRATION. You or we may require that any controversy or
                          claim relating to this agreement, or breach of it, be resolved through
                          arbitration administered by rhe American Arbitration Association under its
                                      Cite as 2013 Ark. App. 517



action waiver, and a jury-trial waiver. Appellees have filed a class-action complaint,

arguing that the bank had intentionally processed more expensive debit transactions first in

order to capitalize on overdraft charges. In lieu of an answer, the bank moved to compel

arbitration under the agreement. However, the circuit court found that the arbitration

provision was unconscionable and unenforceable and denied the bank's motion to compel.
        -We
              review the circuit court's order denying a motion to compel de novo on the

record. Aduance Am. Seruicing oJ Ark., Inc. u. McGinnis,375 Ark. 24,289 S.'W.3d 37

(2008).   In a de novo review, we review the evidence and the law without           deference to

the trial court's rulings. Terminix Int'l Co, u. Tiuitt, 104 Ark. App. 1,22,289 S.'w.3d 485

(2008). Arbitrarion is strongly favored as a matter of public policy as a less expensive and

more expeditious means of settling litigation and relieving docket congestion        . CEI Eng'g
Assocs. u. Elder Constr.     Co., 2009 Ark. App. 259, 306 S.W.3d 447.

        In   assessing   whether a particular contract or provision is unconscionable, we review

the totaliry of the circumstances surrounding the negotiation and execution of               the

contract. State ex rel. Bryant v.     R E A Inu. Co.,336 Ark. 289, 985 S.'W.2d299        (1999).

Two important considerations are whether there is a gross inequaliry of bargaining power

between the parties to the contract and whether the aggrieved parry was made aware of

and comprehended the provision in question. Id.

        Here, the circuit court also considered additional factors that federal district courts

in   Arkansas have applied regarding unconscionabiliry. First,       it   considered whether the



                 commercial rules. Judgment on any award rendered by the arbitrator may be
                 entered in any court having jurisdiction.
                                     Cite as 2013 Ark. App. 517



words were hidden      in a rnaze of fine print    and whether the agreed upon terms were           in   a


prolix printed form drafted by the parry seeking to enforce the disputed rerms.        See    Enderlin

u. XM Satellite Radio Holdings, 12r., No. 4:06-CV-0032 GTE,2008 WL 830262 (E.D.

Ark. Mar. 25,2008). Second, the court considered whether the arbitration provision's

terms were "harsh, one-sided,          or     oppressive." Cobeyn   u.   Trauelers Indem.   Co., No.

1:09CV00034 JLH, 2009          WL   3148755 (E.D. Ark. Sept. 24, 2009)."Whiie no Arkansas

state case requires   it, the circuit court   appeared to rule that the arbitration clause was both

substantively and procedurally unconscionable.            Without deciding whether both              are


required, we hold that appellees failed to prove either one.

       First, the record lacks any evidence surrounding the negotiations and execution of

the deposit agreement. No evidence, testimony, or affidavits were presented, and the

court relied only on the pleadings and arguments of counsel. Statements by counsel                   are


not evidence.   See Roberts   u. Creen Bay Packaging, lnc.,101 Ark. App. 160, 2725.W.3d 125

(2008). Thus, the court couid not know whether appellees read the deposit agreement,

understood its cerms, or any of the circumstances surrounding its execution. Second, there

is nothing unconscionable about the arbitration clause itself. Either parry can                request

arbitration, so the provision does not oflend the mutualiry doctrine.         See Asbury    Auto.   Used


Car Ctr. u. Brosh,364 Ark. 386,391,,220 S.W.3d 637,640-41 (2005) (holding that

"[m]utualiry within the arbitration agreement icself is required" and that "[a] lack of

mutuality to arbitrate in arbitration clauses renders the clauses void as to the bound

parry.").This belies the circuit court's conclusion that the arbitration       clause was one-sided


because either parry could choose arbitration over a courtroom.
                                      Cite as 2013 Ark. App. 517



           In short, appellees presented no persuasive proof on the relevant unconscionabiliry

considerations. Therefore,       it was error for the circuit court to deny the bank's motion to

compel on those grounds. Appellees only presented counsel's arguments regarding the

agreement's execution. Those arguments are               not evidence. Further, nothing in          the

agreement itself is substantively unconscionable-it contains mutual promises, and either

parfy can require arbitration. lJnder our de novo review, we reverse the order denying

the motion and remand the case for entry of an order compelling arbitration.                  See   CEI

Eng'g, supra.

        Finally, appellees argue, for the first time on appeal, that no valid agreement to

arbitrate even exists.   It is true that "[a] threshold inquiry       is whether an agreement to

arbitrate exists; that is, whether there has been mutual agreement, with notice as to the

terms and subsequent     assen   t." Alltel   Corp. u. Sumner,360   Ark. 573, 576,203   S.W.3 d 77,

80 (2005). But we do not consider arguments raised for the first time on appeal and will

not   address an argument   on appeal rf a parry has failed to obtain a ruling below. Boellner u.

Clinical Study Ctrs.,2011    Ark. 83,378 S.W.3d 745. 'Whether an arbitration             agreement

exists was neither raised nor ruled on below, and we do not consider          it now.   See   Gwin v.

Daniels,   357 Ark. 623, 184 S.W.3d 28 (2004) (stating that failure to obtain a ruling

precludes appellate review because, under appellate jurisdiction, we can only review                  a


lower court's rulings or orders).

        Reversed and remanded.

        GRrmnR and HlxsoN,JJ., agree.
