Tay-Tay, Inc., Arkansas Payday Check Cashers, Inc., Two Chuck, Inc. d/b/a Payday Advance, and Jim Mead v. Brandon Young, Jimmie Sue Spencer, and Karla Blackford

TAY-TAY, INC., Arkansas Payday Check Cashers, Inc., Two Chuck, Inc., d/b/a Payday Advance, and Jim Mead v. Brandon YOUNG, Jimmie Sue Spencer, and Karla Blackford

01-1355 ___ S.W.3d ___

Supreme Court of Arkansas

Opinion delivered June 20, 2002

Arbitration -- provision unenforceable based upon lack of mutuality. -- The trial court did not err in denying appellant's motion to compel arbitration where the arbitration provision was unenforceable based upon a lack of mutuality.

Appeal from Craighead Circuit Court, Western District; David N. Laser, Judge; affirmed.

Mixon Parker & Hurst, PLC, by: Donald L. Parker, II, and Harry S. Hurst, Jr.; and Wright, Lindsey & Jennings, LLP, by: Claire Shows Hancock, for appellants.

Morgan & Turner, by: Todd Turner; and Orr, Scholtens, Willhite & Averitt, PLC, by: Chris Averitt, for appellees.

Annabelle Clinton Imber, Justice. This is one of a number of similar cases to come before this court involving check-cashing businesses. Brandon Young, Jimmie Sue Spencer, and Karla Blackford are representatives of a class of customers that utilized the deferred-presentment check-cashing services of Tay-Tay, Inc., Arkansas Payday Check Cashers, Inc, Two Cluck, Inc., d/b/a Payday Advance, and Jim Mead (hereinafter referred to jointly as "Tay-Tay"). On August 17, 2001, the trial court denied Tay-Tay's motion to compel arbitration. Tay-Tay raises two points on appeal. First, Tay-Tay contends that the trial court erred in determining that the arbitration provisionwas unenforceable for lack of mutuality. Second, Tay-Tay asserts that the trial court erred in ruling that the arbitration provision was unconscionable. We hold that the arbitration provision is unenforceable for lack of mutuality and affirm.

The facts of this case are not in controversy. The class members utilized Tay-Tay's deferred-presentment check-cashing services and paid fees, which if deemed to be interest would include annual interest rates of 300% to over 700%. Two types of agreements were used with customers -- one had an arbitration clause and the other did not. Only the agreements with an arbitration clause are at issue in the instant appeal.

The points Tay-Tay raises on appeal are identical to those raised and rejected by this court in the companion case of The Money Place, LLC v. Barnes, 349 Ark. ___, ___ S.W.3d ___ (June 20, 2002). The arbitration provision in the Tay-Tay Deferred Presentment Agreement is the same as the arbitration provision in The Money Place Deferred Presentment Agreement. The trial court reviewed both agreements, considered identical motions to compel arbitration, heard similar arguments, and issued virtually identical orders -- only the names of the parties differed. Accordingly, we deem it unnecessary to reiterate in the instant case what has been said in the companion case bearing upon these points, and we adopt and incorporate herein by reference the reasoning set forth in The Money Place, LLC v. Barnes, supra. See Loghry v. Rogers Group, Inc., 348 Ark. 369, 72 S.W.3d 499 (2002). The trial court did not err in denying Tay-Tay's motion to compel arbitration. Because we hold the arbitration provision unenforceable based upon a lack of mutuality, we need not reach the issue of unconscionability.

Affirmed.

Glaze, J., not paticipating.