Appendix — Ballard v. Advance America

(h \

®) Supreme Court, U.S.

FILED

= 02 876DEC 4 2002

OFFICE OF THE CLERK

INTHE

Supreme Court of the United States

TERESA BALLARD, ET AL.,

Petitioners,

Vv.

PHYLLIS GARRETT AND ADVANCE AM:RICA,

CASH ADVANCE CENTERS OF ARKANSAS, INC.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF ARKANSAS

Appendix to

PETITION FOR WRIT OF CERTIORARI

RICHARD A. FISHER DAVID G. NIXON

Counsel of Record

FISHER LAW OFFICE THE NIXON LAW FIRM

1510 STUART ROAD 2340 GREENACRES ROAD

SUITE 210 SUITE 12

CLEVELAND, TN 37364 FAYETTEVILLE, AR 72703

TEL: (423) 479-7009 TEL: (479) 582-0020

Counsel for Petitioners

A LOT NTT TET TT LORE SERGE SEER GOTT STUER SR

:

APPENDIX A

SUPREME COURT OF ARKANSAS

No. 01-1190

TERESA BALLARD, ET Opinion Delivered JUL 05

AL., 2002

APPELLANTS,

VS. APPEAL FROM THE

CLARK COUNTY .-

ADVANCE AMERICA, CIRCUIT COURT,

CASH ADVANCE NO. CIV 99-152

CENTERS OF ARKANSAS, | HON. JOHN ALEXANDER

INC., AND PHYLLIS THOMAS

GARRETT, JUDGE,

APPELLEES,

DISMISSED.

W.H. “DUB” ARNOLD, Chief Justice

This appeal arises from an order of the Clark County

Circuit Court approving a settlement of all possible claims

against appellee Advance America, Cash Advance Centers

of Arkansas, Inc., and all of its officers, shareholders, and

sureties for cash in the amount of $750,000 and forgiveness

of approximately $550,000 in checks it held that had been

returned unpaid due to insufficient funds.

The case began as a class action usury suit that was filed

by appellee, Phyllis Garrett, agairist appellee, Advance

America Cash Advance Centers of Arkansas, Inc., on

October 12, 1999. On April 9, 2001, a conditional settlement

class was certified, and on May 2, 2001, a proposed

settlement agreement was preliminarily approved, and

notice was given to class members. This notice informed the

members that a fairness hearing would be held on July 18,

2001, and that potential class members were given until June

30, 2001, to opt out of the class.

Appellants, Teresa Ballard, Cheryl King, and Kenisha

Bryant, filed a motion seeking to intervene in the action on

July 6, 2001. On July 16, 2001, a hearing was held on

appellants’ motion. On July 18, 2001, the trial court found

that appellants’ motion to intervene was untimely, that

appellants’ interest was adequately represented, and the trial

court denied the motion to intervene.

On July 18, 2001, the previously scheduled fairness

hearing was held. Following the fairness hearing, the

settlement was approved and appellants’ appealed from the

trial court’s denial of their motion to intervene. This court

affirmed the trial court in Ballard v. Garrett, ___ Ark.

S.W.3d ___ (June 20, 2002).

In that case, this court upheld the trial court’s order that

appellants’ motion to intervene was filed after the litigation

had progressed too far, and held that there was no abuse of

discretion by the trial court. Id. We stated that appellants

sat on their rights and waited until they were not satisfied

with the way the litigation was progressing. Id. We

concluded that the trial court did not abuse its discretion

when it determined that the proceedings had advanced so

far that appellants’ motion to intervene was not timely. Id.

Further, we found that allowing the intervention would

have delayed the entry of the proposed settlement and

would have delayed the class members’ ability to collect

their compensation. Id. Finally, in that case, we concluded

that appellants did not have a valid reason for delaying the

filing of their motion to intervene until fifteen months after

the litigation had begun or two months after a proposed

settlement had been reached. Id. Accordingly, we held that

the trial court did not err in denying appellants’ motion.

Therefore, in Ballard v. Garrett, we held that the trial

court did not abuse its discretion when it found that

appellants’ motion to intervene was untimely. This court

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stated the trial court did not abuse its discretion because

(1) appellants waited until the litigation had progressed too

far before they filed their motion to intervene; (2) the

granting of appellants’ untimely motion would have caused

the other parties to the litigation to suffer prejudice; and (3)

appellants failed to provide a valid reason for their delay in

filing their motion to intervene.

While Ballard v. Garrett was pending before this court,

Teresa Ballard, Cheryl King, and Kenisha Bryant filed

another appeal with this court, also from- Clark County

Circuit Court. In this appeal, appellant raised four points:

(1) the trial court abused its discretion in finding that the

settlement agreement was fair, reasonable, and adequate; (2)

the trial court abused its discretion in naming Garrett as

class representative and naming her attorneys as class

counsel; (3) the trial court erred in admitting and excluding

certain evidence; and (4) the triai court erred in quashing the

appellants’ subpoena on Advance America, denying them

the right to cross-examine witnesses and refusing to allow

them to review and argue from a plaintiff's sealed exhibit.

However, because we found appellants did not timely |

intervene, appellants do not have standing to bring this

appeal. In Devlin v. Scardelletti et al., WL 1270617 (June 10,

2002), the United States Supreme Court determined that

unnamed class members, who have objected in a timely

manner to approval of a class action settlement at the

fairness hearing, have the power to bring an appeal without

first intervening, abrogating the lack of standing issue.

However, Devlin involves facts and issues that are

distinguishable from those presented by this appeal.

Specifically, Devlin addresses a question of law and

procedure arising under the Federal Rules of Civil

Procedure, and not under Arkansas law. Arkansas Rule of

Civil Procedure 23(b) differs from that of Rule 23(b) of the

Federal Rules of Civil Procedure. In addition, the petitioner

in Devlin did not have the ability to opt out of the settlement.

Here, appellants had the ability to opt out and instead

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elected to object to the settlement and risk being bound by it,

if approved by the court over their objections.

Accordingly, the Devlin opinion is distinguishable from

this case on appeal, and this court’s opinion in Haberman v.

Lisle, 318 Ark. 177, 884 S.W.2d 262 (1994), continues to be the

controlling precedent in Arkansas. In Haberman, the court

found that for unnamed class members to have standing to

appeal a class-action settlement in state court, those class

members must have intervened at the trial court level.

Haberman, supra. Non-parties and unnamed members of the

class who have failed to intervene are precluded from

appealing a class settlement. Haberman, supra.

Throughout this litigation, appellants have conceded

that Haberman is the applicable and controlling law. At a

hearing before the circuit court on September 5, 2001,

counsel for appellants stated “[t]he Haberman decision from

the Arkansas Supreme Court makes it very clear that in

order for a party to appeal a settlement agreement, they

must be an intervenor. That is the law.” Appellants have

now changed their position and suggest that Devlin gives

them the ability to appeal the settlement approval in this

case without first intervening. We disagree and continue to

follow Haberman.

Unlike the petitioner in Devlin, appellants here had the

ability to opt out of the settlement and avoid being bound by

it. Indeed, appellants were ideally positioned to opt out of

the settlement because they already had an action pending

against Advance America in federal court for the same relief

as sought by the class representative in this litigation. By

attempting to intervene at the last minute, rather than opting

out of a settlement to which they objected, appellants

willingly undertook the risk that their motion to intervene

might be denied for failure to meet the requirements of Rule

24(a) of the Arkansas Rules of Civil Procedure, and that they

would then be bound by the settlement as approved by the

circuit court. Appellants’ strategic election not to opt out of

the settlement has left them without standing to pursue this

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appeal. Therefore, by following Haberman, appellants have

no standing; thus the appeal is dismissed.

Appeal dismissed.

GLAZE, J., not participating.

5a

APPENDIX B

IN THE CIRCUIT COURT OF CLARK COUNTY,

ARKANSAS

PHYLLIS PLAINTIFF

GARRETT,

individually and CIV-99-152

o/b/o a class of

similarly situated

persons

VS.

DEFENDANT

ADVANCE

AMERICA, CASH

ADVANCE

CENTERS OF

ARKANSAS, INC.

(Filed July 18, 2001)

FINAL JUDGMENT AND ORDER OF DISMISSAL

This matter came on for hearing on July 18, 2001, upon

the application of counsel for the Parties for Final Approval of

the settlement set forth in the Class Settlement Stipulation

dated May 2, 2001 (the “Settlement Stipulation”). Due and

adequate notice having been given to the Conditional

Settlement Class defined below, and the Court having

considered the Settlement Stipulation, all papers filed and

proceedings had herein and all oral and written objections and

comments received regarding the proposed settlement, and

good cause having been shown,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED AS FOLOWS:

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1. For purposes of this final Judgment and Order

of Dismissal (the “Final Judgment”), the court adopts and

incorporates herein by reference all defined terms set forth in

the Settlement Stipulation.

2. Upon joint motion of the Parties and upon

finding that all requirements of Arkansas Rule of Civil

Procedure 23(a) and (b) are satisfied, the Court certified a

Conditional Settlement Class on April 9, 2001, for settlement

purposes only. The Conditional Settlement Class consists of

all customers who have engaged in Check Cashing

Transactions with Advance America, Cash Advance Centers

of Arkansas, Inc. (“Advance America’), pvrsuant to the

Arkansas Check Cashers Act, exclusive of any customers who

have timely requested exclusion from the Conditional

Settlement Class under Arkansas Rule of Civil Procedure 23

and the terms of the Settlement Stipulation. The Settlement

Period is June 1, 1999, through and including May 15, 2001.

3. The Court further finds that Plaintiff, Phyllis

Garrett, and Class Counsel, Todd Turner, are adequate class

representatives under Arkansas Rule of Civil Procedure

23(a)(4).

4. The Court approves the Parties’ designation of

Bowman and Brooke LLP, Post Office Box 584, Richmond,

Virginia 23218-0584, as Claims Administrator.

5. The Court finds that the mailing and posting of

the Notice of Pendency and Settlement of Class Action (the

“Notice”), in accordance with the Notice Order entered on

May 2, 2001, constitute the best notice practicable under the

circumstances to all persons who are members of the

Conditional Settlement Class, and fully satisfies the

requirements of Arkansas Rule of Civil Procedure 23(c), due

process under the Arkansas and United States Constitutions

and any other applicable law.

7. Pursuant to and in accordance with the

requirements of Arkansas Rule of Civil Procedure 23(e), the

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Court approves the settlement of the Litigation as set forth in

the Settlement Stipulation, and each of the releases and other

terms set forth therein, as fair, reasonable and adequate to the

Conditional Settlement Class. The Parties to the Settlement

Stipulation shall complete and finalize the settlement in

accordance with the terms of the Settlement Stipulation.

8. Except for claims by persons who have validly

and timely requested exclusion from the Conditional

Settlement Class, all claims that are asserted, or could have

been asserted, in the Litigation against Advance America or

Related Parties are dismissed with prejudice, with each Party

bearing their own costs.

9. Each member of the Conditional Settlement

Class is hereby deemed to have fully, finally and forever

released and discharged all Released Claims against all

Released Persons, whether or not such class member files a

Proof of Claim with the Claims Administrator. The Released

Claims include, without limitation, all claims, demands, rights,

liabilities and causes of action of every kind and description

whatsoever, whether known or unknown, that are asserted or

could have been asserted in the Litigation against any of the

Released Persons arising out of Check Cashing Transactions

conducted by Advance America or Related Parties during the

Settiement Period, including without limitation, all claims of:

usury, unlawful, unfair or deceptive trade practices under

state or federal law; violation of the federal Fair Debt

Collection Practices Act, other federal law or state law dealing

with unfair or improper collection practices; violation of the.

federal Racketeering Influenced and Corrupt Organizations

Act or similar state law; conspiracy, violation of the federal

Truth in Lending Act, other federal law or state law dealing

with disclosure of credit terms; violation of the federal Equal

Opportunity Credit Act or similar state law; violation of the

federal Fair Credit Reporting Act or similar state law; violation

of the federal Financial Right to Privacy Act or similar state

law; violation of the Arkansas Check Cashers Act or any

regulation promulgated thereunder; breach of contract;

negligence; gross negligence; fraud or misrepresentation;

8a

unconscionability; intentional, willful or wanton conduct;

punitive damages; contribution; indemnification; and all other

alleged violations of federal, state, or local statutes,

constitutional provisions, rules, regulations or common law

arising out of Check Cashing Transactions conducted during

the Settlement Period.

10. _—‘In accordance with the Settlement Stipulation,

all members of the Conditional Settlement Class are hereby

ordered to dismiss with prejudice all actions, lawsuits, or

claims filed or brought in their own names, or as putative class

representatives, in any other court, administrative tribunal or

other forum, asserting any of the Released Claims against any

of the Released Persons.

11. All members of the Conditional Settlement

Class are permanently barred and enjoined from filing or

prosecuting, in any capacity and in any court, administrative

tribunal or other forum, any action or proceeding with

involves or asserts any of the Released Claims against any of

the Released Persons.

12. Advance America is hereby deemed to have

fully, finally and forever released and discharged each

member of the Conditional Settlement Class from any claims,

lawsuits, or causes of action relating to or arising out of NSF

Transactions that were unpaid as of May 2, 2001, the date of

the Settlement Stipulation.

13. —_ In accordance with the Settlement Stipulation,

Advance America is ordered to dismiss with prejudice the

arbitration appeal currently pending in this action before the

Arkansas Supreme Court, and to dismiss with prejudice any

collections actions or appeals of collections actions that are

currently pending in Arkansas courts between Advance

America and any member of the Conditional Settlement Class.

14. —_ All persons who have filed valid and timely

Requests for Exclusion from the Conditional Settlement Class

9a

are identified on Schedule “A” attached hereto and shall not

be bound by this Final Judgment or the Settlement Stipulation.

15. |The Court approves as fair and reasonable

Class Counsel's attorneys fees and costs as set forth in the

Settlement Stipulation, which shall be paid by the Claims

Administrator from the cash contribution made by Advance

America to fund the settlement.

16. The Court retains continuing jurisdiction over

the Litigation, the Plaintiff, the Conditional Settlement Class

and the Defendant for the purposes of supervising the

implementation, enforcement, construction and interpretation

of the settlement Stipulation.

“s/John A. Thomas”

Circuit Court Judge

Date: July 18, 2001

Filed for Record 18%

day of July 2001 at

4:00pm O'Clock by

“s/Pamela King”

PAMELA D. KING,

Deputy Clerk

APPROVED AND AGREED:

“s/Todd Turner”

TODD TURNER, Esquire (#92266)

Morgan & Turner

P.O. Box 579

Arkadelphia, Arkansas 71923

Phone: (870) 246-9868

Class Counsel

“s/Claire Hancock”

CLAIRE SHOWS HANCOCK, Esquire (#95013)

Wright, Lindsey & Jennings LLP

10a

Ce OT a OTN TT ee RT een MRE

200 West Capitol Avenue, Suite 2200

Little Rock, Arkansas 72201

Phone: 501/371-0808

“s/Robert M. Buell:”

ROBERT M. BUELL, Esquire

Bowman and Brooke, LLP

Riverfront Plaza, West Tower

Suite 1500

901 East Byrd Street

Richmond, Virginia 23219

Phone: (804) 649-8200

Attorneys for Advance America,

Cash Advance Centers of Arkansas, Inc.

lla

APPENDIX C

Office of the Clerk

Leslie W. Steen, | Supreme Court of the State of

Clerk Arkansas

Arkansas Court of Appeals

Justice Building

625 Marshall Street

Little Rock, Arkansas 72201

September 5, 2002

David Glen Nixon

Paige E. Young

The Nixon Law Firm

2340 Green Acres Road, Suite 12

Fayetteville, AR 72703

RE: 01 1190 Teresa Ballard et al. v. Advance America

et al.

Dear Attorneys:

The Arkansas Supreme Court made the following

order today in the above styled case:

“Petition for rehearing is denied. Glaze, J., not

participating.”

Sincerely,

“s/Leslie W. Steen”

Leslie W. Steen, Clerk

LWS;jko

cc: Claire S. Hancock

12a

Todd M. Turner

Richard A. Fisher

Jimmy W. Bilbo

Robert M. Buell

Betty L. Clower, clerk

(CIV-99-152)

13a

APPENDIX D

IN THE SUPREME COURT OF ARKANSAS

TERESA BALLARD; KENISHA BRYANT;

CHERYL KING; and CRYSTAL LUEBBERS APPELLANTS

PHYLLIS GARRETT, individually, ando/b/o No. 01-1190

a class of similarly situated persons; and

ADVANCE AMERICA, CASH ADVANCE CENTERS OF

ARKANSAS, INC. APPELLEES

(FILED JUNE 12, 2002)

Motion To Take Judicial Notice

COME NOW, Teresa Ballard, Kenisha Bryant, and

Cheryl King, Appellants herein, by and through their

attorneys of record, THE NIXON LAW FIRM, and in support of

their motion would show the Court as follows:

;. That currently pending before this Court is

Appellants’ appeal of the approval of settlement in Luebbers

v. Advance America Cash Advance Centers of Arkansas, Inc.

(Appeal No. 01-1190).

z That Appellees have argued that this Court should

apply Haberman, infra and Croyden, infra and dismiss this

appeal because Appellants are without standing to appeal

this issue because they are not parties who may take

independent action in the underlying class action,

Appellants having been denied intervention which has not

yet been reversed by this Court.

14a

3. That this Court in its opinion in the case of Haberman

v. Lisle, 318 Ark. 177, 884 S.W.2d 262 (1994) relied on Croyden

Assoc. v. Alleco, Inc., 969 F.2d 675 (8th Cir. 1992) for the

premise that unnamed class members lack standing to

appeal a decision approved by the class representatives.

4. That on June 10, 2002, the United States Supreme

Court issued its opinion in Devlin v. Scardelletti, et al., 536

va. (2002)! and determined that unnamed class

members who have objected in a timely manner to approval

of a class action settlement at the fairness hearing have the

power to bring an appeal without ‘first intervening,

abrogating the “lack of standing” issue advanced by Croyden

and Haberman. The U.S. Supreme Court’s opinion is

submitted contemporaneously with this motion.

2. That Appellants meet the tests set forth in Devlin v.

Scardelletti, et al., id. permitting them to appeal an adverse

determination in the trial court.

6. That Appellants respectfully request leave to

supplement their prior filings in this proceeding to bring to

the attention of this Honorable Court this recent decision by

the United States Supreme Court, which has a direct bearing

upon the issues pending in this matter.

WHEREFORE, premises considered, the Petitioners

Teresa Ballard, Kenisha Bryant, and Chery] King respectfully

request this Court to take judicial notice of the United States

Supreme Court decision of Devlin v. Scardelletti, et al., 536

US. (2002) which has a direct bearing on the issues

before this Court and to grant them such other and further

relief to which they may be entitled.

Respectfully Submitted:

“s/ David G. Nixon

David G. Nixon (ABA #88048)

Paige E. Young (ABA #99123)

1 2002 WL 1270617

15a

THE NIXON LAW FIRM

2340 Green Acres Road, Suite 12

Fayetteville, AR 72703

Phone: (501) 582-0020

Fax: (501) 582-0030

Attorneys for Appellants Teresa

Ballard, Kenisha Bryant, and Cheryl

King

16a

Certificate of Service

I, David G. Nixon, do hereby certify that on the 11th

day of June 2002 I caused a true and correct photocopy of the

within and foregoing document, with exhibits, if any, to be

served on those persons shown below via U.S. First Class

Mail, to wit:

Hon. John A. Thomas

CLARK COUNTY CIRCUIT JUDGE

P O Box 966

Arkadelphia, AR 71923

Todd Turner

MORGAN & TURNER

201 N. 10t Street

P.O. Box 579

Arkadelphia, Arkansas 71923

Claire Hancock

WRIGHT, LINDSEY & JENNINGS LLP

200 West Capitol Ave., Suite 2200

Little Rock, Arkansas 72201-3699

Robert M. Buell

BOWAN and BROOKE LLP

Riverfront Plaza - West Tower

901 East Byrd Street, Suite 1500

Richmond, Virginia 23219

“s/David G. Nixon”

David G. Nixon

17a

IN THE SUPREME COURT OF ARKANSAS

TERESA BALLARD; KENISHA BRYANT;

CHERYL KING; and CRYSTAL LUEBBERS

APPELLANTS

5

No. 01-1190

PHYLLIS GARRETT, individually, and 0/b/o

a class of similarly situated persons; and

ADVANCE AMERICA, CASH ADVANCE CENTERS

OF ARKANSAS, INC. APPELLEES

Brief in Support of Motion To Take Judicial Notice

COME NOW, Teresa Ballard, Kenisha Bryant, and

Cheryl King, Appellants herein, and submit this Brief in

support of their motion filed contemporaneously herewith:

z. Appellants are parties for the purposes of

appealing approval of the settlement.

Currently pending before this Court is Appellants’

appeal of the settlement in Luebbers v. Advance America Cash

Advance Centers of Arkansas, Inc., (Appeal No. 01-1190).

Appellants are unnamed class members who were denied

their motion to intervene and who had filed their notice of

objections to the proposed settlement on July 6, 2001.

Despite the objections entered during the fairness hearing of

July 18, 2001, the trial court approved the settlement as it

had been proposed, from which this appeal follows.

Appellees argue that this appeal should be dismissed

pursuant to Haberman v. Lisle, 318 Ark. 177, 884 S.W.2d 262

(1994) (unnamed class members lack standing to appeal a

decision approved by the class representatives where

Appellants’ motion to intervene had been denied by the trial

18a

court). Haberman was an extension of the precedent set by

the Eighth Circuit Court of Appeals in Croyden Assoc. v.

Alleco, Inc., 969 F.2d 675 (8th Cir. 1992). Appellants submit

that a recent decision by the United States Supreme Court

has abrogated the premise upon which Croyden and

Haberman stand, and submit the Devlin decision to the Court.

In Devlin v. Scardelletti, et al., 2002 WL 1270617, 536 U.S.

____ (2002), the United States Supreme Court directly

addresses the issue of whether a unnamed class member,

whose motion to intervene was denied at the trial court, has

the power to bring an appeal without first intervening. The

Court found that, contrary to the position held by some

circuits and embraced by Croyden and Haberman, the issue

was not one of standing because appellant had not been

successiul in intervening, but rather whether the Appellant

was a )arty for purposes of appealing the settlement

approval. The Devlin Court held that an unnamed class

member who had timely objected to approval of a settlement

at a fairness hearing has the power to bring an appeal

without first intervening, abrogating the precedent of

Creyden and Haberman.

Devlin 's directly on point to the situation faced by

Appellants. Appellants moved to intervene and were

denied by the trial court. They filed timely objections and

raised those ovjections at the fairness hearing. Therefore,

Appellants have the power to bring an appeal without first

intervening. This Court should not dismiss this appeal.

> 4 Conclusion

For all of the above reasons, Appellants request that the

Court take judicial notice of the recent United States

Supreme Court decision which has a direct bearing upon the

issues pending in this matter and grant them such other and

further relief to which they may be entitled.

19a

Certificate of Service

I, David G. Nixon, do hereby certify that on the 11th

day of June 2002 I caused a true and correct photocopy of the

within and foregoing document, with exhibits, if any, to be

served on those persons shown below via U.S. First Class

Mail, to wit:

Hon. John A. Thomas

CLARK COUNTY CIRCUIT JUDGE

P O Box 966

Arkadelphia, AR 71923

Todd Turner

MORGAN & TURNER

201 N. 10% Street

P.O. Box 579

Arkadelphia, Arkansas 71923

Claire Hancock

WRIGHT, LINDSEY & JENNINGS LLP

200 West Capitol Ave., Suite 2200

Little Rock, Arkansas 72201-3699

Robert M. Buell

BOWAN and BROOKE LLP

Riverfront Plaza - West Tower

901 East Byrd Street, Suite 1500

Richmond, Virginia 23219

“s/David G. Nixon”

David G. Nixon

20a

APPENDIX E

U. S. CONSTITUTION, AMENDMENT V.

GRAND JURY INDICTMENT FOR CAPITAL

CRIMES; DOUBLE JEOPARDY; SELF-

INCRIMINATION; DUE PROCESS OF LAW; JUST

COMPENSATION FOR PROPERTY

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall

private property be taken for public use, without just

compensation.

2la

U. S. CONSTITUTION, AMENDMENT XIV.

CITIZENSHIP; PRIVILEGES AND IMMUNITIES; DUE

PROCESS; EQUAL PROTECTION; APPOINTMENT OF

REPRESENTATION; DISQUALIFICATION OF

OFFICERS; PUBLIC DEBT; ENFORCEMENT

Section 1. All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the

several States according to their respective numbers, counting

the whole number of persons in each State, excluding Indians

not taxed. But when the right to vote at any election for the

choice of electors for President and Vice President of the

United States, Representatives in Congress, the Executive and

Judicial officers of a State, or the members of the Legislature

thereof, is dered to any of the male inhabitants of such State,

being twenty-one years of age, and citizens of the United

States, or in ariy way abridged, except for participation in

rebellion, or other crime, the basis of representation therein

shall be reduced in the proportion which the number of such

male citizens shall bear to the whole number of male citizens

twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in

Congress, or elector of President and Vice President, or hold

any office, civil or military, under the United States, or under

any State, who, having previously taken an oath, as a member

of Congress, or as an officer of the United States, or as a

member of any State legislature, or as an executive or judicial

officer of any State, to support the Constitution of the United

States, shall have engaged in insurrection or rebellion against

the same, or given aid or comfort to the enemies thereof. But

Congress may by a vote of two-thirds of each House, remove

such disability.

Section 4. The validity of the public debt of the United States,

authorized by law, including debts incurred for payment of

pensions and bounties for services in suppressing insurrection

or rebellion, shall not be questioned. But neither the United

States nor any State shall assume or pay any debt or obligation

incurred in aid of insurrection or rebellion against the United

States, or any claim for the loss or emancipation of any slave;

but all such debts, obligations, and claims shall be held illegal

and void.

Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

A.C.A. § 16-11-302

ARKANSAS CODE OF 1987 ANNOTATED

TITLE 16. PRACTICE, PROCEDURE, AND COURTS

SUBTITLE 2. COURTS AND COURT OFFICERS

CHAPTER 11. SUPREME COURT

SUBCHAPTER 3. PROCEDURAL RULES

16-11-302. Pleading, practice, and procedure in civil cases.

(a) The Supreme Court of Arkansas shall have the power to

prescribe, from time to time, rules of pleading, practice, and

procedure with respect to any and all proceedings in civil

cases in all courts in this state. However, the court shall not

have the power to prescribe rules in conflict with laws of this

state relating to stays and continuances of proceedings in suits

in which a member of the General Assembly, an officer of the

General Assembly, or a designated employee of the General

Assembly is an attorney or a party in the proceeding.

(b) The rules shall not abridge, enlarge, or modify any

substantive right and shall preserve the right of trial by jury as

at common law and as declared by Arkansas Constitution,

Article 2, § 7, as amended by Arkansas Constitution,

Amendment 16.

(c) The right of appeal shall continue in those cases in which

appeals are authorized by law, but the rules made as

authorized in this section may prescribe the times for, and

manner of, taking appeals.

(d) The Supreme Court may fix the dates when these rules

shall take effect and the extent to which they shall apply to

proceedings then pending.

(e) All laws in effect on July 24, 1973, regarding pleading,

practice, and procedure in civil proceedings in the courts of

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this state and those relating to the time and manner of taking

appeals in civil proceedings shall remain in effect only until

such time as the Supreme Court prescribes rules regarding

them or until the laws are repealed or revised by legislative

action.

(f) Nothing in this section, anything herein to the contrary

notwithstanding, shall in any way limit, supersede, or repeal

any such rules previously prescribed by the Supreme Court.

History. Acts 1973, No. 38, §§ 1-6; 1979, No. 333, § 2; 1981, No.

312, § 3; A.S.A. 1947, §§ 22-245 -- 22-249, 22-249n.

A.C.A. § 16-65-119

ARKANSAS CODE OF 1987 ANNOTATED

TITLE 16. PRACTICE, PROCEDURE, AND COURTS

SUBTITLE 5. CIVIL PROCEDURE GENERALLY

CHAPTER 65. JUDGMENTS GENERALLY

SUBCHAPTER 1. GENERALE PROVISIONS

16-65-119. Reversal, modification, or vacation of judgment.

(a) A judgment rendered, or final order made, in the circuit or

chancery court may be reversed, vacated, or modified, either

by the Supreme Court or by the court in which the judgment

was rendered, or order made.

(b) A judgment or final order may be reversed or modified by

the Supreme Court for errors appearing in the record.

(c) The proceedings to obtain the reversal or modification shall

be by appeal, prosecuted as prescribed by law.

History. Civil Code, §§ 566-568; C. & M. Dig., §§ 6285-6287;

Pope's Dig., §§ 8241-8243; A.S.A. 1947, §§ 29-501 -- 29-503.

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ARKANSAS RULES OF CIVIL PROCEDURE

RULE 23. CLASS ACTIONS.

**e*

(b) Class Actions Maintainable. An action may be

maintained as a class action if the prerequisites of

subdivision (a) are satisfied, and the court finds that

the questions of law or fact common to the members

of the class predominate over any questions affecting

only individual members, and that a class action is

superior to other available methods for thz fair and

efficient adjudication of the controversy. As soon as

practicable after the commencement of an action

brought as a class action, the court shall determine by

order whether it is to be so maintained. An order

under this section may be conditional and it may be

altered or amended before the decision on the merits.

(c) Notice. In any class action in which monetary

relief is sought, including actions for damages and

restitution, the court shall direct to the members of

the class the best notice practicable under the

circumstances, including individual notice to all

members who can be identified through reasonable

effort. The notice shall: (1) describe the action and

the members’ rights in it; (2) advise each member

that the court will exclude the member from the class

if the member so requests by a specified date; (3)

advise each member that the judgment, whether

favorable or not, will include all members who do

not request exclusion; and (4) state that any member

who does not request exclusion may, if the member

desires, participate in the litigation, either in person

or through counsel. The cost of such notice shall be

borne by the representative parties; provided,

however, that the court may shift all or part of such

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cost to the opposing party or parties if the case is

settled or the class representative substantially

prevails on the merits.

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ee

ARKANSAS RULES OF APPELLATE PROCEDURE -

CIVIL

RULE 2. APPEALABLE MATTERS; PRIORITY

(a) An appeal may be taken from a circuit court to the

Arkansas Supreme Court from:

1. A final judgment or decree entered by the circuit

court;

2. An order which in effect determines the action and

prevents a judgment from which an appeal might be

taken, or discontinues the action;

3. An order which grants or refuses a new trial;

4. An order which strikes out an answer, or any part

of an answer, or any pleading in an action;

5. An order which vacates or sustains an attachment

or garnishment;

6. An interlocutory order by which an injunction is

granted, continued, modified, refused, or dissolved,

or by which an application to dissolve or modify an

injunction is refused;

7. An interlocutory order appointing a receiver, or

refusing to wind up a pending receivership or to take

the appropriate steps to accomplish the purposes

thereof, such as directing a sale or other disposal of

property held thereunder;

8. An order which disqualifies an attorney from

further participation in the case;

9. An order granting or denying a motion to certify a

case as a class action in accordance with Rule 23 of

the Arkansas Rules of Civil Procedure;

10. An order denying a motion to dismiss or for

summary judgment based on the defense of

sovereign immunity or the immunity of a

government official;

11. An order or other form of decision which

adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties in a case

involving multiple claims, multiple parties, or both, if

the circuit court has directed entry of a final

judgment as to one or more but fewer than all of the

claims or parties and has made an express

determination, supported by specific factual findings,

that there is no just reason for delay, and has

executed the certificate required by Rule 54(b) of the

Rules of Civil Procedure; and

12. An order appealable pursuant to any statute in

effect on July 1, 1979, including Ark. Code Ann. § 16-

108-219 (an order denying a motion to compel

arbitration or granting a motion to stay arbitration, as

well as certain other orders regarding arbitration)

and § 28-1-116 (all orders in probate cases, except an

order removing a fiduciary for failure to give a new

bond or render an accounting required by the court

or an order appointing a special administrator).

(b) An appeal from any final order also brings up for review

any intermediate order involving the merits and necessarily

affecting the judgment.

(c) Appeals in juvenile cases shall be made in the same time

and manner provided for appeals from circuit court.

1. In delinquency cases, the state may appeal only

under those circumstances that would permit the

state to appeal in criminal proceedings.

2. Pending an appeal from any case involving a

juvenile out-of-home placement, the circuit court

retains jurisdiction to conduct review hearings.

3. In juvenile cases where an out-of-home placement

has been ordered, orders resulting from the hearings

set below are final appealable orders:

(A) adjudication and disposition hearings;

(B) review and permanency planning hearings if the

court directs entry of a final judgment as to one or

more of the issues or parties and upon express

determination supported by factual findings that there

is no just reason for delay of an appeal, in accordance

with Ark. R. Civ. P., Rule 54(b); and

(C) termination of parental rights.

(d) All final orders awarding custody are final appealable

orders.

(e) Appeals in criminal cases have priority over all other

business. With respect to civil cases, appeals under

subdivisions (a)(6), (a)(7), (a)(9), (c)(3), and (d) of this rule take

precedence.

[Effective January 1, 1996; amended effective March 4, 1999;

amended effective January 27, 2000; amended effective

February 1, 2001; amended effective July 1, 2001.]

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APPENDIX F

IN THE SUPREME COURT OF ARKANSAS

[Filed JUL 23, 2002]

TERESA BALLARD, KENISHA APPELLANTS

BRYANT and CHERYL KING,

Vv. NG. CA 01-1190

PHYLLIS GARRETT,

individually and o/b/o

a class of similarly situated

persons; and

ADVANCE AMERICA, CASH APPELLEES

ADVANCE CENTERS OF

ARKANSAS, INC.,

PETITION FOR REHEARING

COME NOW, TERESA BALLARD, KENISHA

BRYANT, and CHERYL KING, Appellants herein, and

petition the Court for rehearing of their decision entered July

5, 2002, dismissing the Appeal in this matter.

1. Having long held that Arkansas Rule of Civil

Procedure 23 will be interpreted in the same manner as its

Federal counterpart, the Court now seeks to distinguish

portions of Rule 23(b) from its federal counterpart, which

will result in inconsistent application of the Rule.

2. At the time Appellants sought to intervene, Haberman

was controlling, but submit that it is not now controlling

because of Devlin v. Scardelletti, et al., 2002 WL 1270617, 122

S. Ct. 2005, 536 U.S. (2002).

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3. The presence of an opt-out provision does not

undermine the power of an unnamed class member, having

timely objected but being unsuccessful in intervening, to

bring an appeal challenging the fairness of a class settlement.

Henderson v. General American Life Insurance Co., 122 S.

Ct.2584 (2002).

WHEREFORE, Appellants respectfully request that

the Court rehear and reconsider their decision of July 5, 2002

and that they grant the relief requested by the Appellants.

BRIEF IN SUPPPORT OF PETITION FOR REHEARING

COME NOW, TERESA BALLARD, KENISHA

BRYANT, and CHERYL KING, Appellants herein, and

submit this Brief in support of their Petition for Rehearing

filed contemporaneously herewith:

The Court issued its Order on July 5, 2002,

dismissing Appellants’ appeal in this matter and cited three

reasons:

(a) That the United States Supreme Court's decision

in Devlin, infra, could be distinguished because Devlin

addressed a question of law and procedure arising under the

Federal Rules of Civil Procedure, and not under Arkansas

law;

(b) That because Appellants had previously argued

that Haberman, infra, was controlling as to the issues of

intervention and standing, Appellants could not now argue

that Haberman was not controlling;

(c) That Devlin could be further distinguished

because the settlement there had not contained any

provision for opting-out; therefore, Devlin, did not apply and

Appellants were without standing to appeal.

Appellants respectfully request that the Court

reconsider its July 5, 2002 order for the following reasons.

This Court has long held that Arkansas Rule of Civil

Procedure 23 will be interpreted in the same manner as its

federal counterpart. Williamson v. Sanofi Winthrop

Pharmaceuticals, Inc., 347 Ark 89, 60 S.W.3d 428, 434 (2001)

(“Rule 23 of the Arkansas Rules of Civil Procedure is

comparable to Rule 23 of the Federal Rules of Civil

Procedure, and this court interprets our Rule 23 in the same

manner as the federal courts interpret the federal

counterpart.”); Fraley v. Williams Ford Tractor and Equipment

Co., 339 Ark. 322, 336, 5 S.W.3d 423, 432 (1999) (“We have

said that we will interpret Ark. R. Civ. P. 23 in the same

manner the federal courts interpret the comparable Fed R.

Civ. P. 23.”); Union National Bank v. Barnhart, 308 Ark. 190,

197, 823 S.W.2d 878, 881 (1992) (” in analyzing cases under

our old rule, we have held that ‘the spirit of the federal rule

is to be found in our Rule 23 even if all the words are not,’

and that ‘both set out the same basic requirements for a class

action.’” quoting First Nat’l Bank v. Mercantile Bank, 304 Ark.

196, 199, 801 S.W.2d at 36, 39 (1990)). See also Baker v. Wyeth-

Ayerst Laboratories Division, 338 Ark. 242, 992 S.W.2d 797

(1999) (comparing the similarities between Ark. R. Civ P.

23(b) and Fed. R. Civ. P. 23(b)).

Now with its decision in Ballard v. Advance America,

Ark. , S.W.3d (July 5, 2002), the

Court appears to establish a distinction between Ark. R. Civ.

P. 23(b) and its federal counterpart. “Arkansas Rule of Civil

Procedure 23(b) differs from that of Rule 23(b) of the Federal

Rules of Civil Procedure”, but the Court provides no

guidance as to which part of Ark. R. Civ. P 23(b) will no

longer be interpreted in the “spirit of the federal rule ... even

if all the words [are] not [foud].”

While it is true that Appellants agreed that at the

time intervention was sought that Haberman controlled

whether an unnamed class member had standing to bring an

appeal having been unsuccessful in their motion to

34a

intervene, Appellants believe that Devlin has called into

question the precedent upon which the Haberman decision

was based, and Counsel for Appellants have a responsibility

to their clients and the Court to bring the issue to the

attention of the Court.

Furthermore, the Court’s July 5, 2002 Order

dismissing this appeal should be reconsidered in light of

Henderson v. General American Life Insurance Co., 122 S. Ct.

2584 (2002). In Henderson, the Supreme Court of the United

States reversed and remanded In re General American Life Ins.

Co. Sales Practices Litigation, 268 F.3d 627 (8th Cir. 2001) and

instructed the Eighth Circuit Court of Appeals to reconsider

their dismissal of Henderson’s appeal in light of Devlin v.

Scardelletti, 122 S.Ct. 2005 (2002). In General American, the

Court of Appeals had relied on the Croyden, infra, precedent

that an unnamed class representative must first intervene

and achieve the status of a “party” in order to have standing

to appeal the fairness of a class settlement. Croyden Assocs. v.

Alleco, Inc., 969 F.2d 675 (8th Cir. 1992).

Henderson, an unnamed class member in General

American, had been denied intervention, had timely objected

to the fairness of the settlement, but had not opted out under

the settlement opt-out provisions. In Henderson, the

Supreme Court of the United States did not deny

Henderson's ability to appeal the fairness of the settlement

based on the availability of opt-out provisions contained in

the settlement. In light of the Supreme Court's most recent

decisions regarding an unnamed class member's

opportunity to appeal the fairness of a settlement, this Court

should reconsider and set aside the Order dismissing

Appellants’ appeal in this matter.

Finally, this petition for rehearing should be granted

to clarify the Court’s statement that “ Appellants’ strategic

election not to opt out of the settlement has left them

without standing to pursue this appeal.” The inference is

that if Appellants had, in fact, opted-out of the settlement

they would have had standing to appeal the fairness of the

35a

settlement. Traditionally, opting-out has removed that

person as a class member, and it would seem to remove any

standing that person might have had to object to or appeal

the fairness of a settlement. The statement implies that a

person opting out of a settlement - a non-class member ~

would have the requisite standing necessary to pursue an

appeal addressing the fairness of the settlement when an

unsuccessfully intervening class member - now subject to

the terms of the settlement and the principles of res judicata -

is denied the same opportunity.

Conclusion

The Court should grent the rehearing, set aside their

decision of July 5, 2002 dismissing the appeal, and grant

Appellants the relief they have requested.

Certificate of Counsel

The undersigned hereby certifies his belief that there

is merit in this Petition for Rehearing and that it is not filed

for the purpose of delay.

Respectfully submitted:

“s/ David G. Nixon”

David G. Nixon (ABA #88048)

Paige E. Young (ABA #99123)

THE NIXON LAW FIRM

2340 Green Acres Road,

Suite 12

Fayetteville, AR 72703

Phone: (501) 582-0020

Fax: (501) 582-0030

Attorneys for Teresa Ballard,

Kenisha Bryant, and Cheryl

King

Certificate of Service

I, David G. Nixon, do hereby certify that on the 22nd

day of July 2002 I caused a true and correct photocopy of the

within and foregoing document, with exhibits, if any, to be

served on those persons shown below via U.S. First Class

Mail, to wit:

Hon. John A. Thomas

CLARK COUNTY CIRCUIT JUDGE

P.O. Box 966

Arkadelphia, AR 71923

Todd Turner

MORGAN & TURNER

210 N. 10% Street

P.O. Box 579

Arkadelphia, Arkansas 71923

Claire Hancock

WRIGHT, LINDSEY & JENNINGS, L.L.P.

200 West Capitol Ave., Suite 2200

Little Rock, Arkansas 72201-3699

Robert M. Buell

BOWAN AND BROOKE, L.L.P.

Riverfront Plaza - West Tower

901 East Byrd Street, Suite 1500

Richmond, Virginia 23219

“s/David G. Nixon”

David G Nixon

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