{
  "id": 6140123,
  "name": "Jim WYATT and Visual Cosmetic Changes v. Tracy GILES",
  "name_abbreviation": "Wyatt v. Giles",
  "decision_date": "2006-05-10",
  "docket_number": "CA 05-1094",
  "first_page": "204",
  "last_page": "206",
  "citations": [
    {
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      "cite": "95 Ark. App. 204"
    },
    {
      "type": "parallel",
      "cite": "235 S.W.3d 552"
    }
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  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
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    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
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    {
      "cite": "316 Ark. 314",
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      "reporter": "Ark.",
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      "year": 1994,
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      "cite": "Ark. Code Ann. \u00a7 16-108-219",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "year": 2006,
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          "page": "(a)"
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    {
      "cite": "342 Ark. 112",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1342364
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      "weight": 2,
      "year": 2000,
      "opinion_index": 0,
      "case_paths": [
        "/ark/342/0112-01"
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  "last_updated": "2023-07-14T15:50:54.342319+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Hart and Roaf, JJ., agree."
    ],
    "parties": [
      "Jim WYATT and Visual Cosmetic Changes v. Tracy GILES"
    ],
    "opinions": [
      {
        "text": "Larry D. Vaught, Judge.\nOn appeal Jim Wyatt argues that the trial court erroneously denied his motion to compel arbitration and dismiss the claim filed against him by Tracy Giles. Specifically, he argues that the trial court misapplied Arkansas\u2019s Uniform Arbitration Act, codified at\u00a7 16-108-201 (Repl. 2006). We affirm.\nOn October 13, 2004, Tracy Giles filed a complaint against Wyatt and Visual Cosmetic Changes. In her complaint she specified that she was alleging \u201can action in tort for negligence.\u201d She claimed that Jim Wyatt breached his duty of care by failing to \u201csufficiently numb [Giles\u2019s] skin, so when Mr. Wyatt started the procedure [Giles] experienced severe pain,\u201d and that \u201cone eyeliner was larger than the other eyeliner.\u201d She also complained that, on the day following the procedure, she \u201cawoke and saw that both of her eyes were severely swollen and black and blue.\u201d\nOn December 6, 2004, Wyatt answered Giles\u2019s complaint with a motion asking the trial court to dismiss Giles\u2019s claim and to compel arbitration. Wyatt based his claim on language contained in a \u201cDisclosure and Consent for Tattoo and Dermal Procedures\u201d agreement signed by Giles on September 29, 2002, which stated:\nI have agreed that should I have a complaint of any kind whatsoever, I shall immediately notifyjames L. Wyatt[,] and I further agree that any controversy or claim arising out of or relating to this consent and/or signed contract between myself and James L. Wyatt or the breach thereof, shall be settled by arbitration in the state of Arkansas in accordance with the Rules of the American Association and judgment of the award rendered by the arbitrator^) may be entered in any court having jurisdiction thereof.\nIn her response to Wyatt\u2019s motion, Giles argued that the arbitration. agreement was not mutual and that without mutuality the arbitration agreement was not enforceable.\nOral arguments were heard on May 31, 2005. At the hearing, the trial court noted that because Giles\u2019s cause of action sounded in tort, not contract, arbitration was not her sole remedy. Wyatt responded that because Giles defended the motion to dismiss using a contract defense \u2014 claiming that the parties\u2019 agreement lacked mutuality \u2014 she had waived her right to argue that her claim sounded in tort and thus was not covered by Arkansas\u2019s Uniform Arbitration Act. The trial court concluded that whether or not an action sounds in tort is not a waivable issue and denied Wyatt\u2019s motion to dismiss and to compel arbitration based on the language contained in \u00a7 16-108-201(b)(2), which states that agreements to arbitrate \u201cshall have no application to personal injury or tort matters.\u201d It is from this decision that Wyatt appeals.\nA trial court\u2019s denial of a motion to compel arbitration is an immediately appealable order. Showmethemoney Check Cashers, Inc. v. Williams, 342 Ark. 112, 27 S.W.3d 361 (2000). Our court\u2019s review is authorized by Ark. Code Ann. \u00a7 16-108-219(a) (Repl. 2006) and is conducted de novo. Am. Ins. Co. v. Cazort, 316 Ark. 314, 871 S.W.2d 575 (1994).\nIn our review of this case we are particularly mindful of our review standard. In an appeal de novo, \u201cthe appellate court uses the trial court\u2019s record but reviews the evidence and law without deference to the trial court\u2019s rulings.\u201d Blacks\u2019s Law Dictionary 94 (7th ed. 1999). Thus, in this case, we are left with the singular task of concluding whether \u2014 as a matter of law \u2014 Giles\u2019s exclusive remedy in her dispute with Wyatt is arbitration. As a threshold matter, we must examine the arbitration agreement entered into by the parties, the complaint filed by Giles, and our state\u2019s arbitration act. Although Giles agreed that any claims she has against Wyatt would be governed by Arkansas\u2019s Uniform Arbitration Act, the act specifically excludes claims sounding in tort from its boundaries. Therefore, if Giles\u2019s claim sounds in tort, her remedy is not exclusively arbitration.\nThere is no doubt that the claims outlined in Giles\u2019s complaint sound in tort. Further, we reject Wyatt\u2019s metamorphosis argument. Simply put, a tort does not cease to be a tort based on a litigant\u2019s response \u2014 or lack thereof\u2014 to a motion to compel arbitration. Therefore, because Giles has alleged a tort and torts are not subject to the provision of the arbitration act, we conclude that the motion to compel arbitration should be denied.\nAffirmed.\nHart and Roaf, JJ., agree.",
        "type": "majority",
        "author": "Larry D. Vaught, Judge."
      }
    ],
    "attorneys": [
      "Montgomery, Adams & Wyatt, PLC, by: James W. Wyatt, for appellant.",
      "Harrill & Sutter, P.L.L.C., by: Luther Oneal Sutter, for appellee."
    ],
    "corrections": "",
    "head_matter": "Jim WYATT and Visual Cosmetic Changes v. Tracy GILES\nCA 05-1094\n235 S.W.3d 552\nCourt of Appeals of Arkansas\nOpinion delivered May 10, 2006\nMontgomery, Adams & Wyatt, PLC, by: James W. Wyatt, for appellant.\nHarrill & Sutter, P.L.L.C., by: Luther Oneal Sutter, for appellee."
  },
  "file_name": "0204-01",
  "first_page_order": 230,
  "last_page_order": 232
}