LoRoad, LLC v. Global Expedition Vehicles, LLC

• Decision Date: 01 June 2015
• Docket Number: No. 14–2636.,14–2636.
• Parties: LoROAD, LLC, Plaintiff–Appellant v. GLOBAL EXPEDITION VEHICLES, LLC, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

787 F.3d 923

LoROAD, LLC, Plaintiff–Appellant
v.
GLOBAL EXPEDITION VEHICLES, LLC, Defendant–Appellee.

No. 14–2636.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 11, 2015.
Filed: June 1, 2015.

787 F.3d 924

Stephanie E. L. McCleery, K&L Gates LLP, Portland, OR, argued (Bryan O. Wade, Husch Blackwell LLP, Springfield, MO, on the brief), for appellant.

Andrew K. Bennett, Carnahan, Evans, Cantwell & Brown, P.C., Springfield, MO, argued (Austin Jay Preston, on the brief), for appellee.

Before LOKEN, SMITH, and COLLOTON, Circuit Judges.

Opinion

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

787 F.3d 925

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.

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,

787 F.3d 926

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, 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...