Motormax Financial Services Corporation v. Arnold Knight, Defendant/Respondent. , 474 S.W.3d 164 ( 2015 )

In the Missouri Court of Appeals
Eastern District
DIVISION TWO
MOTORMAX FINANCIAL SERVICES )
CORPORATION, ) No. ED102257
)
Plaintiff/Appellant, )
) Appeal from the Circuit Court of the
vs. ) City of St. Louis
)
ARNOLD KNIGHT, ) Honorable Christopher E. McGraugh
)
Defendant/Respondent. ) Filed: August 18, 2015
Introduction
Motormax Financial Services Corporation (Motormax) appeals the denial of its motion to
compel arbitration of a counterclaim asserted against it by Arnold Knight after Motormax
repossessed his vehicle and filed a collection action against him. In two points, Motormax
claims the trial court erred in denying its motion based on its finding that the arbitration
agreement was unenforceable and that Motormax waived its right to arbitration. We affirm.
Factual Background
On June 28, 2012, Arnold Knight entered into a contract with Motormax to finance a title
loan that was secured by his Ford F-150 truck. The annual percentage rate on the loan was
93.5%. During the loan closing, which was videotaped and conducted by a Motormax
representative, Mr. Knight was asked to sign an arbitration agreement (Agreement). The
Agreement provided that any claims or disputes between the parties “shall be settled by binding
arbitration.” The Agreement also gave Motormax the right to repossess Mr. Knight’s vehicle if
he failed to comply with the provisions of the contract and pursue its claims in court without
waiving arbitration. In April 2013, Motormax repossessed Mr. Knight’s vehicle after he
allegedly defaulted on the contract. In September 2013, Motormax filed a collection action in
the trial court against Mr. Knight seeking $1,820.85 (the alleged balance due on the contract),
plus interest, costs, and attorney’s fees. In February 2014, Mr. Knight filed an answer and a
class action counterclaim, alleging that Motormax had violated the notice requirements of
§§ 400.9-611- 400.9-614 RSMo,1 in connection with the repossession of his vehicle. The
counterclaim also alleged that Motormax had violated the Merchandising Practices Act,
§§ 407.010 et seq.
In April 2014, Motormax filed a motion to compel arbitration of the counterclaim, which
the trial court denied on October 10, 2014. Less than a month later, Motormax dismissed its
collection action against Mr. Knight without prejudice. Motormax now appeals the trial court’s
denial of its motion to compel arbitration.
Motion to Dismiss
Before addressing the merits of the appeal, we consider Mr. Knight’s contention that we
lack jurisdiction to consider this appeal because it was not timely filed. In his motion to dismiss
the appeal, taken with the case, Mr. Knight asserts that the appeal is untimely because Motormax
did not file its notice of appeal within ten days after the trial court entered its “Order and
Judgment” denying the motion to compel arbitration. Specifically, he claims the judgment was
final and appealable on October 10, 2014, the day it was entered, pursuant to § 435.440.1.
1
All statutory references are to RSMo (Supp. 2012), unless otherwise indicated.
2
Motormax counters that the ten-day time period for filing its appeal did not begin to run until the
trial court’s judgment became final thirty days later on November 9, 2014. We agree.
An appeal from the denial of a motion to compel arbitration is expressly authorized under
§ 435.440.1 of the Missouri Uniform Arbitration Act. Dunn Indus. Group, Inc. v. City of Sugar
Creek, 112 S.W.3d 421, 427 (Mo. banc 2003). The parties do not dispute that Motormax had the
right to appeal the denial of its motion to compel arbitration under § 435.440.1. Rather, their
dispute focuses solely on the finality of the trial court’s judgment for purposes of determining the
time period within which Motormax had to file its appeal.
Section 435.440.2 provides that “the appeal shall be taken in the manner and to the same
extent as from orders or judgments in a civil action.” “When statutory language is clear, we
must give effect to the language as written.” McCormack v. Capital Elect. Const. Co., Inc., 159
S.W.3d 387, 403 (Mo. App. W.D. 2004). “A court may not add words or requirements by
implication to a statute that is not ambiguous.” Id. Giving effect to the plain language of the
statute, it is clear that § 435.440.2 instructs that the rules of civil procedure apply to appealable
orders under § 435.440.1.
In exercising its supervisory authority over the courts, the Missouri Supreme Court has
adopted rules relating to the procedural aspects of appealability. One of these rules is Rule
74.01(a), which defines what constitutes a “judgment,” and which states:
“Judgment” as used in these rules includes a decree and any order from which an
appeal lies. A judgment is rendered when entered. A judgment is entered when a
writing signed by the judge and denominated ‘judgment’ or ‘decree’ is filed.
The Missouri Supreme Court’s decision in Spiece v. Garland, 197 S.W.3d 594 (Mo. banc
2006) offers guidance regarding the applicability of Rule 74.01(a) to appealable orders. In
3
Spiece, the Court addressed the appealability of orders and judgments listed under § 512.020,2 in
finding that while the statute grants the substantive right to an appeal, it does not address the
procedural requirements for appealing such orders and judgments, and therefore, must be read in
conjunction with Rule 74.01(a). Id. at 595-96. Specifically, the Court clarified that in
accordance with Rule 74.01(a), there can be “no order from which an appeal lies” unless the
decree or order is entered and denominated a “judgment.” Id. at 595 (emphasis added).
Accordingly, by adopting Rule 74.01(a), the Court made clear its intention to require that trial
courts designate every appealable order a “judgment” or decree, “even if the order is not
equivalent to a judgment in the traditional sense of the word.” Id. Here, the denial of the motion
to compel arbitration was signed by the trial court and denominated a “judgment” when entered.
As such, we conclude that the trial court’s decision constitutes a judgment “from which an
appeal lies” under Rule 74.01(a).
We find the Spiece Court’s reasoning instructive. That is, while § 435.440.1 grants the
substantive right to appeal the denial of a motion to compel arbitration, the statute does not
contain any procedural requirements for determining when such orders are final for purposes of
calculating the time period for filing an appeal. As such, we look to the rules of civil procedure.
Rule 81.04(a) requires the filing of an appeal no later than ten days after the judgment becomes
“final.” Rule 81.05(a) governs the finality of a judgment for purposes of appeal and states, in
pertinent part:
1) A judgment becomes final at the expiration of thirty days after its entry if no timely
authorized after-trial motion is filed.[3]
The judgment from which Motormax seeks to appeal was entered by the trial court on
October 10, 2014, and became final thirty days later – on November 9, 2014. Rule 81.05(a). To
2
Section 512.020 generally authorizes appeals from certain orders and judgments.
3
No post-trial motions were filed in this case.
4
be timely, Motormax had to file its notice of appeal within ten days after that date, or by
November 19, 2014. Rule 81.04(a). The record shows that Motormax filed its notice of appeal
on November 17, 2014, which was within the ten-day time period. The appeal was therefore
timely and this Court has jurisdiction.4 Mr. Knight’s motion to dismiss is denied.
Discussion
We now turn to the merits of Motormax’s arguments challenging the denial of its motion
to compel arbitration. We review the denial of a motion to compel arbitration de novo. Dunn
Indus., 112 S.W.3d at 427. We will affirm the trial court’s judgment if it is “cognizable under
any theory, regardless of whether the reasons advanced by the trial court are wrong or not
sufficient.” Gemini Capital Group, LLC, v. Tripp, 445 S.W.3d 583, 587 (Mo. App. S.D. 2013).
Our primary focus is on whether the trial court reached the correct result, rather than the route
taken to reach it. Frye v. Speedway Chevrolet Cadillac, 321 S.W.3d 429, 435 (Mo. App. W.D.
2010).
In its first point, Motormax argues that the trial court erred in denying its motion to
compel arbitration based on its finding that the Agreement was not enforceable for lack of
mutual consideration. Motormax also complains that the trial court misapplied the law by failing
to analyze whether the Agreement was procedurally and substantively unconscionable.5 In
4
We acknowledge that our conclusion conflicts with the Southern District’s conclusion in Hershewe v. Alexander,
264 S.W.3d 717 (Mo. App. S.D. 2008). In Hershewe, the court determined that an appeal from an order denying a
motion to compel arbitration was untimely because it was not filed within ten days after the order was entered. Id. at
718. Citing § 435.440.1, which grants the right to appeal the denial of a motion to compel arbitration, the Hershewe
court held that the trial court’s order was “final and appealable immediately” on the date it was entered. Id. In our
view, § 435.440.1 does not dictate when such an order becomes final for purposes of calculating the date for filing a
notice of appeal. We therefore respectfully disagree with the Southern District’s opinion in Hershewe.
5
This argument ignores the clear command of Brewer v. Missouri Title Loans, 364 S.W.3d 486, 492 n. 3 (Mo. banc
2012), that Missouri courts need not strictly focus their discussion on whether a contract is either procedurally or
substantively unconscionable, but should consider unconscionability in terms of its impact on the formation of the
contract. The Brewer Court also noted that courts are to look at “the agreement as a whole in determining
conscionablilty of [an] arbitration provision.” Id. at 487.
5
response, Mr. Knight asserts that the trial court properly denied Motormax’s motion because the
Agreement was unconscionable and unenforceable.6
“Missouri contract law applies to determine whether the parties have entered a valid
agreement to arbitrate.” Baker v. Bristol Care, Inc., 450 S.W.3d 770, 774 (Mo. banc 2014).
(citation and quotations omitted). The party seeking to compel arbitration bears the burden of
proving the existence of a valid and enforceable arbitration agreement. Clemmons v. Kansas
City Chiefs Football Club, 397 S.W.3d 503, 506 (Mo. App. W.D. 2013). To determine whether
arbitration should be compelled, courts must decide if a valid arbitration agreement exists.
Major Cadillac, Inc. v. General Motors Corp., 280 S.W.3d 717, 721 (Mo. App. W.D. 2009).
In order to be valid and enforceable, a contract must have adequate consideration. See
Baker, 450 S.W.3d at 774. Consideration consists either of a promise to do or refrain from doing
something, or the transfer or giving up of something of value to the other party. Frye, 321
S.W.3d at 438. A contract that contains mutual promises that impose a legal duty or liability on
each party constitutes a bilateral contract supported by sufficient consideration. Id. However, a
contract lacks valid consideration if it purports to contain mutual promises, yet allows one of the
parties to retain the unilateral right to modify or alter the agreement as to permit the party to
unilaterally divest itself of an obligation it otherwise promised to perform. Baker, 450 S.W.3d at
775.
Mutual promises to arbitrate must be binding, not illusory. Id. at 776. A promise to
arbitrate is illusory when the agreement promises mutuality of arbitration, but effectively allows
one party to proceed in court on its claims while the other party is required to resolve its claims
by arbitration and is prohibited from taking any action in court. Id. at 776-77. Missouri courts
6
In Motormax’s Point I, it argues that the arbitration agreement is supported by valid consideration and that the
terms of the agreement are not unconscionable. Mr. Knight’s Point I responds to Motormax’s contention regarding
consideration, and his Point II responds to Motormax’s argument regarding unconscionability.
6
have consistently invalidated arbitration agreements that contain anti-waiver provisions
permitting one party to unilaterally divest itself of its obligation to arbitrate in favor of pursuing
claims in court and by other remedies. See, e.g., Baker, 450 S.W.3d at 775; Jimenez v. Cintas
Corp., ED101015, 2015 WL 160451, at *8 (Mo. App. E.D. January 13, 2015).
Here, the trial court found that the Agreement was unenforceable because it lacked
mutuality and was not supported by adequate consideration. In reaching this conclusion, the
court found that while the Agreement allowed Motormax to pursue its claims in court and
exercise “self-help” repossession, Mr. Knight was required to resolve his claims solely through
arbitration.
This case is similar to Greene v. Alliance Automotive, Inc., 435 S.W.3d 646 (Mo. App.
W.D. 2014). In that case, after the car buyer allegedly defaulted on the contract, the dealership
repossessed her vehicle. Id. at 653. When the car buyer filed suit to contest the repossession of
her vehicle, the dealership moved to compel arbitration. Id. The trial court denied the motion
and the dealership appealed. Id. at 648. The Western District determined that the arbitration
agreement lacked consideration and was, therefore, unenforceable. Id. at 654. In so finding, the
Court noted that the arbitration agreement contained an anti-waiver provision and allowed the
dealership to exercise self-help repossession without waiving arbitration of other disputes. Id.
Because of this, the Court determined that the agreement “allows [the dealership] to unilaterally
divest itself of the promise to arbitrate.” Id. As a result, the promise to arbitrate was not mutual
and, therefore, a bilateral contract based on mutual promises did not exist. Id.
The Missouri Supreme Court recently expounded on the Greene decision in Eaton v.
CMH Homes, Inc., SC94374, 2015 WL 3387910 (Mo. May 26, 2015). The Supreme Court
noted that “the promise to arbitrate . . . was illusory” because “the contract promised mutuality of
7
arbitration then effectively permitted the dealer to proceed in court on all issues including
repossession while prohibiting the buyer from opposing replevin or taking any other action in
court.” Id. at *6. The Eaton Court differentiated Greene from cases where there was a valid
agreement to arbitrate, but the terms were unconscionable. Id. For example, in State ex rel.
Vincent v. Schneider, the purchasers of a home entered into a contract with the homebuilder that
including an arbitration provision. 194 S.W.3d 853, 855-56 (Mo. banc 2006). The purchasers
argued that the agreement was unconscionable because it lacked mutuality in that the agreement
allowed solely for the homebuilder to initiate arbitration. Id. at 856. The Vincent Court found
that a lack of mutuality alone did not make the agreement unconscionable. Id. at 859. The
Eaton Court noted that Vincent is different from Greene because in Greene, both parties agreed
to arbitrate disputes—a mutual promise—but the dealership was allowed to divest itself of this
promise through self-help repossession and the anti-waiver provision. Eaton, 2015 WL
3387910, at *6. Therefore, the dealership’s promise was illusory and the arbitration agreement
was not supported by adequate consideration. Id.
The arbitration agreement in the present case also fails for a lack of consideration.
Motormax and Mr. Knight entered into the Agreement that contained the following relevant
provisions:
1.Consumer and Lender agree that all claims, demands, disputes, or controversies
of every kind or nature that may arise between them concerning any of the
negotiations leading to the sale or financing of the Vehicle, representation made
during or prior to any such transaction, terms and provisions of the sale, lease or
financing agreements, arrangements for financing, disclosures, purchase of
insurance, purchase of service contracts, the performance or condition of the
Vehicle, credit inquiries or disclosure, trade-in, payoff of existing debt on trade-
in, pre-closing delivery, or any other aspects of the Vehicle and its sale or
financing shall be settled by binding arbitration conducted pursuant to the
provision of 9 U.S.C. Section 1, et seq., according to the Commercial Rules of the
American Arbitration Association. Without limiting the generality of the
foregoing, it is the intention of the Consumer and Lender to resolve between them
8
by binding arbitration all disputes of every kind and nature made pursuant to
state, federal or local law concerning the Vehicle, its sale or financing of the
Vehicle, the terms, meaning and enforceability of any of the documents signed or
given in connection with the sale, lease, or financing of the Vehicle, or any terms,
conditions, or representations made in connection with the financing . . .
Consumer hereby waives their right to participate as a representative, claimant or
member of any class action pertaining to any claim that is subject to arbitration, as
any claim which could be asserted in a class-action proceeding shall be arbitrated.
2.Notwithstanding the foregoing, excepted from the Agreement are actions at law
or in equity by Lender, Lender [sic] its assignees to collect any debt owed by the
Consumer, to enforce the provisions of any security agreement securing such
debt, or to exercise any right, including repossession, that may arise as a result of
the failure of Consumer to comply with the provisions of any agreement
evidencing such debt or any security agreement securing same or to recover
possession of the vehicle if delivered to Consumer prior to consummation of the
sale of same. If any action is brought by Lender or its assignees that is excepted
from arbitration pursuant to this paragraph, any counterclaim or offset claim that
is asserted by the Consumer must nonetheless be arbitrated. [Emphasis added.]
As in Greene, the Agreement contains a self-help provision, which allowed Motormax to
repossess Mr. Knight’s vehicle without waiving arbitration and without provisional review by
any court. In addition, Motormax retained the right to pursue its claims against Mr. Knight in
court, while he was required to resolve any claims against Motormax solely through arbitration,
including the assertion of any defenses. This could potentially force Mr. Knight to proceed on
the same issue in two separate forums, risking inconsistent results, particularly because he would
be precluded from asserting any defenses to claims brought against him in court by Motormax.
See Eaton, at *12.
“A contract that purports to exchange mutual promises will be construed to lack legal
consideration if one party retains the unilateral right to modify or alter the contract as to permit
the party to unilaterally divest itself of an obligation to perform the promise initially made.”
Greene, 435 S.W.3d at 653-54 (citation and quotation omitted). Here, there was no binding
mutual promise to arbitrate because Motormax could pursue its claims against Mr. Knight in
9
court in addition to exercising its self-help remedy of repossession without waiving arbitration.
Simply put, the Agreement effectively allowed Motormax to unilaterally divest itself of the
obligation to arbitrate. In this regard, the promise to arbitrate was illusory. See Eaton, at *13
(citing Greene, 435 S.W.3d at 654); Baker, 450 S.W.3d at 776-77. Therefore, the Agreement
lacks consideration and is unenforceable.
Given the foregoing, Motormax has failed to sustain its burden to prove the Agreement
was valid and enforceable. The trial court did not err in denying the motion to compel
arbitration. Because we find the arbitration agreement void, we need not address whether the
Agreement is unconscionable or the issue of waiver. Point denied.
Conclusion
The trial court’s judgment is affirmed.
________________________________
Philip M. Hess, Judge
Sherri B. Sullivan, P.J. and
Mary K. Hoff, J. concur.
10