LoRoad, LLC v. Global Expedition Vehicles LLC , 787 F.3d 923 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-2636
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LoRoad, LLC
lllllllllllllllllllll Plaintiff - Appellant
v.
Global Expedition Vehicles, LLC
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: February 11, 2015
Filed: June 1, 2015
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Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
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LOKEN, Circuit Judge.
LoRoad, L.L.C., based in Oregon, negotiated to have Global Expedition
Vehicles, L.L.C. (GXV), based in Missouri, build a custom expedition vehicle. With
the project underway, the relationship broke down. LoRoad filed this diversity action
to compel arbitration of the dispute, invoking the arbitration provision in a written
Assembly Agreement allegedly entered into by the parties. GXV denied a valid,
enforceable agreement to arbitrate. Ruling on cross-motions for summary judgment,
the district court1 held that LoRoad failed to accept the Assembly Agreement signed
by GXV; therefore, the court could not enforce the arbitration provision in that
Agreement. LoRoad appeals the resulting adverse summary judgment. We affirm.
I.
In September 2012, wilderness photographer Rodney Lough on behalf of
LoRoad began negotiations with GXV for construction of a custom expedition
vehicle to be used by LoRoad for Lough’s off-road photography expeditions. On
October 1, GXV sent a proposed Assembly Agreement for Lough’s review. The
Agreement contained terms sufficiently definite and complete that, had LoRoad
accepted, it would have been a binding contract. The terms included a
“nonrefundable deposit of $120,000 to be paid at contract signing,” and an arbitration
clause. GXV also emailed Lough that it would purchase a 2001 BAE 6x6 truck for
$110,000 to serve as the base for Lough’s custom vehicle. Each subsequent version
of the Assembly Agreement included this specific truck in calculating the total cost
to build.
Rather than accept the October 1 proposed Agreement, Lough returned a
marked-up copy on October 9. GXV sent a revised Agreement on October 22, and
after further negotiations, another revised Agreement on October 31. On November
2, LoRoad wired $120,000 to GXV, which René Van Pelt of GXV acknowledged on
November 5. On November 16, Lough faxed GXV the October 31 draft Agreement
with relatively minor handwritten notations and changes. In the space for LoRoad’s
signature at the end of the Agreement, Lough wrote “LeeAnna Lough” (his wife and
also a LoRoad principal) above the LoRoad signature line, and “By:” below that line.
1
The Honorable Sarah W. Hays, United States Magistrate Judge for the
Western District of Missouri.
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On November 28, Lough emailed, “We still have unfinished business.” Van
Pelt responded with answers to “notes and questions that we received by fax on
November 16th.” On December 6, GXV sent a receipt for the $120,000 with the
subject line, “Contract Deposit,” and emailed a status report on acquiring the base
vehicle. On December 11, after further communications, Van Pelt sent LoRoad a
revised Build List, which was “Exhibit A” to the Assembly Agreement and listed
specifications for the vehicle. Van Pelt noted, “Once I get a thumbs up on the Build
List, I will revise the contract and email to you as a complete document set.” On
December 15, Lough emailed Van Pelt, “I am still not feeling comfortable with how
things are at the moment . . . We are very seriously looking at pulling out, at which
point will [] want our money returned.”
On January 30, 2013, Van Pelt emailed Rodney Lough, “Your BAE 6x6 in
transit,” explaining GXV’s delay in getting the truck and predicting it would arrive
at GXV on Friday. On Friday, February 1, Van Pelt emailed Lough a picture of the
truck. On February 11, Lough emailed Van Pelt asking for a status report. Van Pelt
responded that GXV’s engineering team had started work on the truck, would send
it to be painted when they were done, and asked Lough to “respond via email that the
color is staying per Build List: White.”
The next documentary exchange frames the contract issue on appeal. On
February 11, Lough emailed Van Pelt saying LoRoad “had no record of the parties’
creating and executing a final set of documents.” Lough asked GXV to send “a final
set [of documents] incorporating everything we’ve come to agreement on” “for final
review and then signatures, so we can get this thing moving.” Van Pelt responded
that GXV received a signed contract from LoRoad on November 16.2 Lough replied
he had no record of that, and asked Van Pelt to “send me a copy of what you have,
2
GXV interpreted the handwritten “LeeAnna Lough” on the marked-up
Agreement LoRoad sent on November 16 as an authorized LoRoad signature.
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because we do not have one here nor do we have an executed copy from you either.”
In response, Van Pelt returned a copy of the Agreement received from LoRoad on
November 16, with Lough’s handwritten changes and with the addition of Michael
Van Pelt’s signature on the GXV signature line, but without the critical Build List.
In a February 14 reply, Lough asked for the entire Agreement, stated he did not
know where the document came from, and asserted, “That is NOT LeeAnna’s
signature . . . I would never have authorized LeeAnna to sign a document that was not
ready for signature and this document isn’t there and therefore we would not have
signed it. I have emails from you going through and into December where the two
of us continue finalizing the documents as they have not been completed.” Lough
further stated, “We do want you guys to create this vehicle however we are no where
near having the documents done . . . and while you have our commitment in the form
of a $120k deposit, that in no way means that you have an agreement with us until the
final documents are signed, sealed and delivered properly.”
On February 22, Van Pelt sent a document titled “Assembly Agreement
Addendum” dated February 2013, and a Build List dated December 11, 2012 (neither
document is in the record on appeal). Lough responded: “Sending us an Addendum
for a non-executed Assembly Agreement is not what you said you would do.” Lough
“officially disputed your assertion that the Assembly Agreement is a signed and
executed document.” On February 25, Lough reiterated LoRoad had not executed an
agreement and described the $120,000 as a “good faith deposit,” not a payment under
the Assembly Agreement. GXV then ceased work on the custom vehicle.
In March, LoRoad’s attorney began communicating with GXV. His first letter
stated, “Lo Road is committed to purchasing the Expedition Vehicle” but “there is no
final, executed contract in place.” The letter stated that, “according to all drafts of the
Assembly Agreement, signed or not, GXV’s commencement of work was to begin 15
days after receipt of the deposit,” expressed concern about the delays, and asked for
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certain action items to be completed, including a revised Build List. An attachment
detailed eleven reasons why there was “No Executed Contract in Place.”
On March 15, LoRoad’s attorney sent another letter, invoking the Adequate
Assurances provision of the Uniform Commercial Code. GXV responded on March
16, “Global Expedition Vehicles contends that we do have an executed contract with
the Lo Road, LLC. We have expended a great deal of money and engineering
payroll, based on this contract.” Van Pelt sent an email on March 27 expressing
surprise that Lough wanted to change the Build List because Lough advised on
February 22 he wanted to proceed with the December 11, 2012 Build List. On April
19, LoRoad’s attorney sent a letter stating that GXV had failed to provide adequate
assurances and was in material breach of the contract, and that LoRoad intended to
institute arbitration pursuant to the Assembly Agreement. This petition to compel
arbitration followed.
II.
LoRoad argues that the terms of the Assembly Agreement that GXV signed and
faxed to LoRoad on February 13, 2013, included an agreement to arbitrate that is
enforceable against GXV. If enforceable, the Assembly Agreement is “a contract
evidencing a transaction involving commerce” subject to the Federal Arbitration Act,
9 U.S.C. § 2. However, the parties agree that Missouri contract law governs the issue
on appeal. Under both the Federal Arbitration Act and Missouri law, “[a] party who
has not agreed to arbitrate a dispute cannot be forced to do so. Accordingly, the court
must determine whether there is an agreement between those parties which commits
the subject matter of the dispute to arbitration.” PCS Nitrogen Fertilizer, L.P. v.
Christy Refractories, L.L.C., 225 F.3d 974, 977-78 (8th Cir. 2000) (quotations
omitted); see Arrowhead Contracting, Inc. v. M.H. Wash., LLC, 243 S.W.3d 532, 535
(Mo. App. 2008). The party seeking to compel arbitration has the burden to prove a
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valid and enforceable arbitration agreement. Baier v. Darden Restaurants, 420
S.W.3d 733, 737 (Mo. App. 2014).
As the Assembly Agreement concerned the sale of “goods,” it is governed by
Article 2 of Missouri’s Uniform Commercial Code. See Mo. Rev. Stat. § 400.2-
105(1). General principles of contract law apply unless “displaced by the particular
provisions” of the UCC. Mo. Rev. Stat. § 400.1-103. Under the UCC, “[a] contract
for sale of goods may be made in any manner sufficient to show agreement, including
conduct by both parties which recognizes the existence of such a contract.” Mo. Rev.
Stat. § 400.2-204(1). Without question, the writing on which LoRoad relies was
sufficiently definite to form a contract enforceable against GXV, including its
arbitration provision. See Mo. Rev. Stat. § 400.2-201(1). But a writing alone is
insufficient if it does not establish that an agreement was reached between the parties;
the document must “indicate the consummation of a contract, not mere negotiations.”
Howard Constr. Co. v. Jeff-Cole Quarries, Inc., 669 S.W.2d 221, 227 (Mo. App.
1983). Therefore, LoRoad must show an agreement between the parties. The district
court concluded that the undisputed facts establish that LoRoad never accepted the
Assembly Agreement. We agree.
The UCC “expands the traditional concept of a contract,” but it “continues the
common-law principle that the intent of the parties to make a contract must be
manifested.” Computer Network, Ltd. v. Purcell Tire & Rubber Co., 747 S.W.2d 669,
674 (Mo. App. 1988). Thus, the “core issue” is whether both LoRoad and GXV
intended to form a legally binding contract:
If the parties intended no binding agreement or contract, the rules of
construction and interpretation will not establish one. If no intent is
found, the inquiry is put to an end. If the expressions in the agreement
are clear, the court determines the intent from a reading of the writing.
If the intent is not clearly expressed, then surrounding circumstances
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may be considered -- the subsequent actions of the parties and the
practical construction of the contract.
Id. (emphasis added). The intent which we are concerned with is the parties’
objective intent and what a reasonably prudent person would have been led to believe
from the actions or words of the parties. See id. at 675.
Here, if an authorized representative had signed the Assembly Agreement that
LoRoad faxed to GXV on November 16, 2012, then the document was an offer,3 and
both sides manifested the intent to form a binding contract when GXV signed that
document and returned it to LoRoad on February 13, 2013. This was GXV’s
contemporaneous interpretation of the effect of its action on February 13. But
LoRoad immediately objected and countered with strong, indeed persuasive reasons
why the marked-up document it faxed on November 16 was not a binding offer that
GXV could accept, pointing out it was not LeeAnna Lough’s signature on the
document, and she was not authorized to sign a contract binding LoRoad . Thus, this
document did not clearly manifest LoRoad’s intent to form a binding contract.
Rather, it appears to be merely another mark-up of an Assembly Agreement that GXV
had initially proposed and which the parties had been negotiating for over a month.
See FutureFuel Chem. Co. v. Lonza, Inc., 756 F.3d 641, 647 (8th Cir. 2014)
(“ongoing negotiations between the parties over these terms demonstrates that there
was no mutual assent”).
Looking beyond the contract document on which LoRoad relies, the undisputed
facts establish clear, immediate, unequivocal rejection by LoRoad and its attorney
3
An offer is “the manifestation of willingness to enter into a bargain, so made
as to justify another person in understanding that his assent to that bargain is invited
and will conclude it.” See Brown Mach., Div. of John Brown, Inc. v. Hercules, Inc.,
770 S.W.2d 416, 419 (Mo. App. 1989), citing Restatement (Second) of Contracts § 24
(1981).
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when GXV claimed in February 2013 that a binding contract had been formed. While
such subsequent action would not revoke or nullify a contract already formed, it is
relevant in resolving the ambiguity as to whether LoRoad intended to be bound to the
terms of the marked-up form of contract it sent to GXV on November 16. This is
precisely the analysis that this court and Missouri courts have conducted in resolving
disputes over whether ongoing negotiations that included the exchange of multiple
draft agreements resulted in a binding contract. See Arrowhead, 243 S.W.3d at 535-
36 (no contract to arbitrate formed); Computer Network, 747 S.W.2d at 675 (contract
formed); Howard, 669 S.W.2d at 228-29 (no contract); Shapleigh Inv. Co. v. Miller,
193 S.W.2d 931, 937 (Mo. App. 1946) (contract formed); FutureFuel, 756 F.3d at 647
(no contract); Conolly v. Clark, 457 F.3d 872, 876 (8th Cir. 2006) (e-mail
correspondence following alleged hand-shake agreement showed continuing
negotiations); Moses.com Securities, Inc. v. Comp. Software Sys., Inc., 263 F.3d 783,
784 (8th Cir. 2001) (no contract).
LoRoad further argues that the requisite intent to form a binding Assembly
Agreement was proved by “conduct by both parties which recognize[d] the existence
of such a contract.” Mo. Rev. Stat. § 400.2-204(1); see § 400.2-207(3). We agree
GXV’s conduct was consistent with recognition of a binding contract. But the issue
is LoRoad’s intent, and the only “conduct” asserted on the part of LoRoad was its
payment of $120,000 on November 2, before it sent the November 16 marked-up
contract to GXV. The Assembly Agreement called for payment of a nonrefundable
deposit of $120,000 “at contract signing.” On February 25, after GXV asserted that
a final contract was in place, Lough emailed that “the Assembly Agreement is NOT
yet executed,” describing his November 16 version as a “change document,” and the
$120,000 as “a good faith deposit . . . to demonstrate our seriousness about moving
forward on this project.” On this record, we agree with the district court that there
was simply no conduct by LoRoad that recognized the existence of a binding
contract. See FutureFuel, 756 F.3d at 647 (“the parties did not conduct their business
in recognition of a valid contractual arrangement”).
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Finally, LoRoad argues that an enforceable agreement to arbitrate was formed
because, “[w]hile there are numerous changes between and among the six versions
[of the Assembly Agreement], not a single word of the arbitration provision changed
from the first version sent by GXV to LoRoad on October 1, 2012, to the November
16 version executed by GXV.” This contention is without merit. While the parties
could have executed a free-standing agreement to arbitrate disputes that arose under
whatever Assembly Agreement was ultimately signed, there is not a shred of evidence
of their intent to do so. Thus, there was an enforceable agreement to arbitrate if, and
only if, LoRoad proved there was a final, enforceable Assembly Agreement. As the
undisputed evidence showed no such contract was formed, the district court properly
granted summary judgment in favor of GXV.
The judgment of the district court is affirmed.
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