State ex rel. Bryant v. R&A Investment Co.

by the Arkansas Supreme Court

Supreme Court of Arkansas

336 Ark. 289

STATE of Arkansas ex rel. Winston Bryant, Attorney General,  v.  R&A INVESTMENT CO., Inc., d/b/a Mid South Title Loans, et al.

Appeal from Pulaski Chancery Court

No. 98-198.---Opinion delivered: February 4, 1999. 

Syllabus

1. JUDGMENT – SUMMARY JUDGMENT – WHEN APPROPRIATE. – Summary judgment is appropriate when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law; in making this determination, the court views the evidence in the light most favorable to the parties resisting the motion and resolves all doubts and inferences in their favor.
2. USURY – CONSTITUTIONAL PROVISIONS – GENERAL ASSEMBLY'S AUTHORITY. – Article 19, section 13, of the Arkansas Constitution expressly authorizes the General Assembly to enact legislation to punish parties who knowingly violate the constitutional usury provisions; the plain language of subsection (b) mandates that the General Assembly prohibit usurious contracts.
3. USURY – ATTORNEY GENERAL'S STANDING – STATE DID NOT BRING PERSONAL USURY CLAIM. – The supreme court distinguished a case upon which appellees relied for their assertion that the attorney general lacked standing to enforce the constitution's usury provisions, noting that in this case the State was not bringing a personal claim for usury; the supreme court declined to condone appellees' open, flagrant, and continuous violation of the Arkansas Constitution.
4. STATUTES – CONSTRUCTION – BASIC RULE. – The basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature; when a statute is clear, it is given its plain meaning, and the supreme court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used; the court is very hesitant to interpret a legislative act in a manner contrary to its express language unless it is clear that a drafting error or omission has circumvented legislative intent; in interpreting a statute and attempting to construe legislative intent, the supreme court looks to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate means that throw light on the subject; changes made by subsequent amendments may be helpful in determining legislative intent.
5. BUSINESS & COMMERCIAL LAW – DECEPTIVE TRADE PRACTICES ACT – STATUTORY LANGUAGE NOT TOO VAGUE FOR ENFORCEMENT. – The preamble to Act 92 of 1971 reveals that the legislature's remedial purpose was "to protect the interests of both the consumer public and the legitimate business community"; the words "and unconscionable" were added to Ark. Code Ann. § 4-88-107(a) and (b) by Act 587 of 1993; section 4-88-107(b) illustrates that lib.eral construction of the Deceptive Trade Practices Act (DTPA) is appropriate, as it provides that "[t]he deceptive and unconscionable trade practices listed in this section are in addition to and do not limit the types of unfair trade practices actionable at common law or under other statutes of this state"; thus, the supreme court rejected appellees' contention that section 4-88-107(a)(10), which prohibits "any other unconscionable, false, deceptive act or practice," was too vague for enforcement, noting that the catch-all provision was undoubtedly included because the General Assembly could not be expected to envision every conceivable violation under the DTPA.
6. CONTRACTS – UNCONSCIONABILITY – TEST FOR DETERMINING. – In assessing whether a particular contract or provision is unconscionable, the courts should review the totality of the circumstances surrounding the negotiation and execution of the contract; two important considerations are whether there is a gross inequality of bargaining power between the parties to the contract and whether the aggrieved party was made aware of and comprehended the provision in question.
7. USURY – STATE POLICY – PURPOSE REFLECTED IN CONSTITUTION & DECEPTIVE TRADE PRACTICES ACT. – The purpose of Arkansas's strong anti-usury policy, as reflected by the prohibition of usury in its constitution, is to protect borrowers from excessive interest rates; the General Assembly's intent to protect consumers by passing the Deceptive Trade Practices Act promoted the purposes of art. 19, § 13, by making its provisions effective for consumers who were not likely to have financial means to obtain legal assistance to bring individual actions, who were unlikely to be aware of their legal rights, and who had no choice but to continue paying illegal rates, while appellees knowingly violated the law.
8. USURY – ATTORNEY GENERAL HAD STANDING TO ENFORCE PROVISIONS OF DECEPTIVE TRADE PRACTICES ACT – REVERSED & REMANDED. – The supreme court held that the Deceptive Trade Practices Act (DTPA) was broad enough to encompass appellees' scheme, which was contrary to Arkansas's policy against usury and was designed not merely to evade the law, but to intentionally and deliberately violate the constitutional prohibition against usury; the court further held that the Attorney General had standing to enforce the provisions of the DTPA in appellees' scheme involving such unconscionable practices; the supreme court reversed and remanded for judgment consistent with its opinion.

Appeal from Pulaski Chancery Court, Second Division; Collins Kilgore, Chancellor; reversed and remanded.

Winston Bryant, Att'y Gen., by: Teresa Finkelstein, Ass't Att'y Gen., for appellant.

Rose Law Firm, P.A., by: Allen W. Bird II and Garland J. Garrett, for appellees.

[Opinion of the court by Justice DONALD L. CORBIN.]