Bellemere v. Cable-Dahmer Chevrolet Inc.

Citation423 S.W.3d 267
Decision Date25 March 2014
Docket NumberNo. WD 76328.,WD 76328.
PartiesAmanda L. BELLEMERE, Respondent, v. CABLE–DAHMER CHEVROLET INC., et al., Appellants.
CourtCourt of Appeal of Missouri (US)

OPINION TEXT STARTS HERE

Joseph M. Backer, Independence, MO, for respondent.

Kevin D. Case and Patric S. Linden, Kansas City, MO, for appellants.

Before Division Three: LISA WHITE HARDWICK, Presiding Judge, CYNTHIA L. MARTIN, Judge and GARY D. WITT, Judge.

GARY D. WITT, Judge.

Respondent Amanda Bellemere (Bellemere) brought suit against Appellants Cable–Dahmer Chevrolet, Inc. (Cable–Dahmer), William Wilkerson (“Wilkerson”), Clayton Ward (“Ward”), and Eric Fisenic (“Fisenic”) related to the purchase of a vehicle (collectively, Appellants). Appellants sought to compel arbitration based on an arbitration clause in the sales contract, but the Circuit Court of Jackson County overruled that motion. This appeal followed. We affirm.

FACTUAL AND PROCEDURAL HISTORY

On or about September 30, 2011, Bellemere went to Cable–Dahmer, an automobile dealership, to consider purchasing a car. She was helped by Wilkerson (a salesperson), Ward (the finance and insurance manager), and Fisenic (a used-car sales manager).

Wilkerson directed Bellemere to a 2006 Chevrolet Monte Carlo. Per the petition, Wilkerson, Ward, and Cable–Dahmer represented that this automobile was a “good, reliable car.” They told Bellemere that it had been owned by an older couple who had been customers of Cable–Dahmer for fifteen years and who had traded the Monte Carlo for a Corvette.

The Monte Carlo had a Buyer's Guide in the window at the time Bellemere considered the car. Bellemere alleged that the guide indicated that the manufacturer's warranty “still applies,” yet the warranty was not in effect at the time of the sale. Bellemere purchased the vehicle for approximately $17,000. She further alleged that paperwork relating to the sale “was incorrect on several occasions” and that it took three weeks after she took possession of the car for Cable–Dahmer to correctly write up the automobile purchase agreement.

On or about December 12, 2011, Bellemere took the vehicle to Carmax, another car dealer, to inquire about trading it for another vehicle. Carmax inspected the vehicle and determined: “major frame damage; apron repaired; core support damaged; frame poor or inadequate prior repair, and air bags had been deployed.”

Bellemere alleged additional defects in the automobile:

—the key will not come out of the ignition when the car is parked;

—the transmission is slipping; the alternator has been damaged and covered up;

—a popping sound comes from the steering column;

—the Monte Carlo can shift from “park” to any gear without the necessity of pressing on the brake pedal;

—a sway arm is defective;

—the Monte Carlo is out of alignment front to back, as admitted by Cable–Dahmer's mechanics and service personnel;

—the electrical system or alternator are not working properly such that Bellemere has replaced the battery three times in the last year;

—the car often fails to start and has left Bellemere stranded on many occasions.

Bellemere alleges that Cable–Dahmer, Ward, and Wilkerson rushed her through the paperwork and did not give her a chance to read it fully by using “high [-]pressure sales tactics and misrepresentation.”

Bellemere filed her lawsuit on January 11, 2013, alleging these and additional facts which are more fully set forth below as necessary to the discussion. Her petition contained four counts: fraud, negligence, negligent misrepresentation, and violations of the Merchandising Practice Act (“MPA”) under section 407.020.1

Appellants each filed an answer to Bellemere's petition on February 28, 2013. Additionally, Appellants filed a Joint Motion of All Defendants to Compel Arbitration accompanied by a “Statement of Uncontroverted Material Facts in Support of Joint Motion of All Defendants to Compel Arbitration.” Bellemere responded by arguing that the arbitration clause was unconscionable.

In their Statement of Uncontroverted Material facts, Appellants included the following:

[a]s part of the transaction in which [Bellemere] purchased the Vehicle, [Bellemere] signed two purchase agreements, a preliminary agreement (which does not reflect the final trade value and loan payoff amounts for [Bellemere's] trade-in vehicle, which had not yet been finalized) and an amended agreement signed on a subsequent date that incorporated the terms negotiated for the value of [Bellemere's] trade-in vehicle and the amount reported by the lender to pay off the loan on that trade-in vehicle.

Each of the two purchase agreements contains an identical arbitration provision. An affidavit from Cable–Dahmer's office manager describes the two documents as such: “Exhibit B[ ] is a true and correct copy of the first purchase agreement signed by Amanda Bellemere for the purchase of the 2006 Chevrolet Monte Carlo.” And: “Exhibit C[ ] is a true and correct copy of the second (amended) purchase agreement signed by Amanda Bellemere for the purchase of the 2006 Chevrolet Monte Carlo, which reflects the finalized loan payoff amount and negotiated trade-in value for the vehicle Bellemere's [sic] traded to the dealership as part of the payment for her purchase of the 2006 Monte Carlo.”

Both purchase agreements are dated September 30, 2011. Exhibit B, the first purchase agreement, is signed by Bellemere and a representative of Cable–Dahmer. The form for the purchase agreement states by the signature line for the dealer: “MANAGER'S APPROVAL (Must be Accepted by An Authorized Representative of the Dealer). Additionally, both purchase agreements state “If Buyer is buying the Vehicle for cash (this includes Buyer arranging Buyer's own financing from a party other than dealer), this Agreement is not binding upon either Dealer or Buyer until signed by an authorized Dealer representative.”

Even though both parties signed the first purchase agreement, that agreement did not include the valuation of and loan payoff amount for Bellemere's trade-in vehicle. Exhibit C, the second purchase agreement, contained the amount of the loan on Bellemere's trade-in vehicle. However, although Bellemere signed that purchase agreement, the dealer's signature line on the second purchase agreement is blank—despite the form's requirement that it “Must be Accepted by An Authorized Representative of the Dealer.”

On April 5, 2013, the trial court denied Appellants' Joint Motion to Compel Arbitration,” concluding that “Exhibit C does not represent a fully executed and binding agreement between the parties, at least as to the issue of arbitration which is currently before the Court (emphasis added). The trial court found that the second, more recent purchase agreement was not signed by anyone from Cable–Dahmer and included in its order that Appellants “admit that Exhibit B did not contain the final negotiated value for the trade-in, and, therefore, the final balance due to defendant Cable–Dahmer Chevrolet, Inc., Exhibit B cannot represent the final agreement of the parties.” The trial court further concluded that the second agreement was “one-sided” in that Bellemere would be unable to enforce arbitration against any Appellant.

This timely appeal follows.2

STANDARD OF REVIEW

In examining a motion to compel arbitration, we consider three factors. Frye v. Speedway Chevrolet Cadillac, 321 S.W.3d 429, 434–435 (Mo.App.W.D.2010). We first determine “whether a valid arbitration agreement exists.” Id. (quoting Nitro Distrib., Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo. banc 2006)). If a valid arbitration agreement exists, we next determine “whether the specific dispute falls within the scope of the arbitration agreement.” Id. (citation omitted). If the first two elements are met, we determine “whether the arbitration agreement is subject to revocation under applicable contract principles.” Id. (citation omitted).

Whether the motion to compel arbitration should have been granted is a legal question subject to our de novo review. Katz v. Anheuser–Busch, Inc., 347 S.W.3d 533, 539 (Mo.App.E.D.2011) (citations omitted). “However, issues relating to the existence of an arbitration agreement are factual and require our deference to the trial court's findings.” Id. See also Whitworth v. McBride & Son Homes, Inc., 344 S.W.3d 730, 736 (Mo.App.W.D.2011) ([i]f the trial court's ruling on a motion to compel arbitration include factual findings which bear on these three factors, then the factual findings will be affirmed if they are supported by substantial evidence, and are not against the weight of the evidence”).

ANALYSIS

Appellants assert four points relating to the trial court's denial of their motion to compel arbitration. First, they argue that the trial court erred in denying their motion on the basis of a “lack of mutuality of obligation” because that issue was reserved for the arbitrator. Second, they argue that the trial court erred in denying their motion because the absence of Cable–Dahmer's signature on the second purchase agreement did not render that agreement unenforceable because any problems were “cured” by Cable–Dahmer seeking specific enforcement of the second purchase agreement. Third, they argue that the trial court erred in denying their motion because even if the second purchase agreement was “inchoate” and unenforceable, Bellemere would still be obligated to arbitrate her claims under the first purchase agreement. Fourth, they argue that the trial court erred in denying their motion because that denial cannot be sustained on Bellemere's contention that the arbitration provision was unconscionable.

Point One

Appellants argue in their first point on appeal that the trial court erred in denying their motion to compel on the ground that there was a lack of mutuality of obligation because that issue was reserved for the arbitrator in...

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