Nicholson v. Surrey Vacation Resorts, Inc.

• Decision Date: 04 February 2015
• Docket Number: Nos. SD 32745 & SD 33075 Consolidated,s. SD 32745 & SD 33075 Consolidated
• Citation: 463 S.W.3d 358
• Parties: Matthew Alexander Nicholson and Jailyn Marchai Nicholson, Plaintiffs–Respondents, v. Surrey Vacation Resorts, Inc., Defendant–Appellant.
• Court: Missouri Court of Appeals

463 S.W.3d 358

Matthew Alexander Nicholson and Jailyn Marchai Nicholson, Plaintiffs–Respondents

v.Surrey Vacation Resorts, Inc., Defendant–Appellant.

Nos. SD 32745 & SD 33075 Consolidated

Missouri Court of Appeals, Southern District, Division Two .

Filed February 4, 2015

Attorney for Appellant: Richard L. Schnake, Daniel K. Wooten, and Bryan D. Fisher, Neale & Newman, L.L.P., Springfield, Missouri

Attorneys for Respondents: Noah K. Wood, and Ari N. Rodopoulos, Wood Law Firm, L.L.C., Kansas City, Missouri

Opinion

GARY W. LYNCH, J.

Surrey Vacation Resorts, Inc. (“Surrey”), in Appeal No. SD32745, appeals the denial of its Renewed Motion to Compel Arbitration (“first appeal”), and in Appeal No. SD33075, Surrey appeals the denial of its Second Renewed Motion to Compel Arbitration (“second appeal”). The appeals have been consolidated for all purposes. Surrey raises six points. Finding merit in Surrey's second point, which revolves around the burden of proof applied by the trial court in deciding Surrey's Renewed Motion to Compel Arbitration, we reverse and remand in the first appeal. Finding all matters concerning Surrey's Second Renewed Motion to Compel Arbitration to be a nullity, we dismiss the second appeal.

Factual and Procedural Background

The interlocutory nature of these appeals has created an interesting situation in which the factual background, relying primarily upon the allegations in the petition, is rather underdeveloped and the procedural background is rather overdeveloped by the trial court's multiple rulings on multiple motions all raising the same issue. The petition alleges that Matthew Alexander Nicholson and Jailyn Marchai Nicholson (“the Nicholsons”) purchased from Surrey an “interval ownership interest” (a timeshare) in Surrey Grand Crown Resort Condominium, that Surrey indicated to the Nicholsons that their share would be bought back at any time if they became dissatisfied, and that Surrey failed to live up to that promise. The Nicholsons further alleged in their petition that they executed a document entitled “Surrey Vacation Resorts, Inc. Interval Ownership Contract and Installment Note” on or about August 15, 2010, for the sum of $8,700 and a processing fee of $489, and that they resided at a specified address in Huntsville, Alabama. As pertinent to these appeals, Surrey filed a motion asking the trial court to compel arbitration. This led to the following procedural background:

February 24, 2012	Surrey filed its Motion to Compel Arbitration.
March 13, 2013	Surrey's Motion to Compel Arbitration is dismissed by docket entry: “Order ” “Case called. No appearances. All pending motions are dismissed. Case set for dismissal docket.”
May 1, 2013	Surrey files its Renewed Motion to Compel Arbitration.
May 20, 2013	Hearing held on Surrey's Renewed Motion to Compel Arbitration.

At the hearing on the Renewed Motion to Compel Arbitration, Surrey's only witness was Melinda Goodwin, the chief financial officer of Surrey Vacation Resorts, Inc. Goodwin testified that the petition filed by the Nicholsons (which was admitted into evidence) referred to a document entitled “Surrey Vacation Resorts, Inc. intevnal [sic] ownership contract and installment note.” Goodwin had reviewed Surrey's files and found what she believed was that document. Surrey marked that document as Exhibit 2 and moved to admit it into evidence. Counsel for the Nicholsons offered “[n]o objection, other than to the extent of trying to identify whose signatures appear.” It was admitted over that objection. Although Goodwin had never met the Nicholsons before and had not personally seen them sign Exhibit 2, Surrey kept a copy of the identification documentation presented by the signatories at the time the document was signed and had the contract notarized. In an acknowledgment, the notary public certified that Matthew Alexander Nicholson and Jailyn Marchai Nicholson, husband and wife, appeared in person and “stated that he/she had executed the foregoing Contract for the consideration and purposes therein mentioned and set forth[.]” Goodwin believed that Exhibit 2 was the contract referred to by plaintiffs in their petition because the titles, names, addresses, and dates all matched the allegations set forth in the petition.¹

Exhibit 2 contains a mandatory arbitration provision. Based on this provision, counsel for Surrey argued that the trial court should compel arbitration. Counsel for the Nicholsons argued that the provision should not be enforced because Surrey had failed to meet their evidentiary burden to produce competent evidence of a valid arbitration provision between the parties because Goodwin testified on “pure assumption” that the plaintiff-Nicholsons were the same Nicholsons that signed the document. The Nicholsons' counsel advised the trial court that two Supreme Court of Missouri cases (Brewer v. Mo. Title Loans, 364 S.W.3d 486 (Mo. banc 2012), and Robinson v. Title Lenders, Inc., 364 S.W.3d 505 (Mo. banc 2012) ) put this burden on Surrey and concluded that the only way to proceed was for Surrey to establish the identity of the signatories of Exhibit 2 by taking plaintiffs' depositions and filing interrogatories.

In making its ruling, the trial court stated that there was nothing to establish that the plaintiffs were “a party to the contract [ ] admitted into evidence, other than that they have matching names.” The trial court denied the motion to compel arbitration on that basis alone. Accordingly, the following occurred:

May 20, 2013	Surrey's Renewed Motion to Compel Arbitration is denied by docket entry: “Order ” “Case called. Motion to Compel Arbitration is taken up. Evidence presented. Motion to Compel Arbitration is denied. So ordered.”
May 23, 2013	Surrey files a Notice of Appeal with Taney County Circuit Clerk giving rise to the first appeal in this court.

This court thereafter issued to Surrey its Order to Show Cause based upon our initial concern that the docket entry of May 20, 2013, was denominated as an “order” and not a “judgment.” Surrey responded to our show-cause order, but also returned to the trial court to seek a perfected order denominated as a judgment. This led to the following procedural dichotomy in which the trial court and our court simultaneously had the exact same issue pending before each:

June 7, 2013	This court issued an Order to Show Cause why the first appeal should not be dismissed for lack of a final judgment.
June 24, 2013	The trial court entered its “Judgment Denying Motion to Compel Arbitration Without Prejudice” [referring to Surrey's Renewed Motion to Compel Arbitration].
August 9, 2013	Surrey filed its Second Renewed Motion to Compel Arbitration in the trial court.
September 18, 2013	An evidentiary hearing was held in the trial court on Surrey's Second Renewed Motion to Compel Arbitration.
November 6, 2013	The trial court signed an Order and Judgment denying Surrey's Second Renewed Motion to Compel Arbitration.
December 2, 2013	The signed Order and Judgment denying the Second Renewed Motion to Compel Arbitration was apparently filed with the Taney County Circuit Clerk.
December 11, 2013	Surrey filed a Notice of Appeal with the Taney County Circuit Clerk giving rise to the second appeal in this court.
January 13, 2014	This court consolidated the first and second appeals for all purposes.

Discussion

Surrey raises six points in these consolidated appeals. Because the Nicholsons challenge our authority to hear this case, we begin by discussing the appellate jurisdiction of this court. Finding that appellate jurisdiction exists as to Surrey's first appeal, but not its second appeal, we turn to the merits of Surrey's second point and conclude that the denial of Surrey's Renewed Motion to Compel Arbitration was erroneous as a matter of law. Because resolution of this point is dispositive, we need not and do not reach Surrey's other points.

I. Appellate Jurisdiction over the First Appeal

The Nicholsons contend we have no appellate jurisdiction over the first appeal for three relevant reasons: (1) because an appeal could only be appropriately taken from the trial court's first dismissal of all pending motions (which included the original Motion to Compel Arbitration); (2) because the Renewed Motion to Compel Arbitration was denied without prejudice; and (3) because the docket entry denying the Renewed Motion to Compel Arbitration is not denominated as a judgment. “Whether this court has [appellate] jurisdiction is a question of law that we review de novo.” Dunkle v. Dunkle, 158 S.W.3d 823, 827 (Mo.App.2005).

A. First Appeal is an Interlocutory Appeal from an Interlocutory Trial Court Order Denying an Application to Compel Arbitration

Section 435.440 provides that an appeal may be taken from an order denying an application to compel arbitration made under section 435.355.² The Nicholsons contend, based on this language, that Surrey's appeal should have been taken following the trial court's dismissal of all pending motions (including Surrey's original Motion to Compel Arbitration) because the dismissal was a denial of an application to compel arbitration and failure to appeal within ten days thereafter prohibits further review of the matter. The Nicholsons also contend that the order denying the Renewed Motion to Compel Arbitration was not final and appealable because the trial court denied the motion without prejudice. Both of these arguments fail because, before either a section 435.440 appeal is taken or, in the absence of such an interlocutory appeal, the entry of a final judgment, all trial court rulings denying an application to compel arbitration are interlocutory—without prejudice, and therefore, section 435.440 necessarily allows an interlocutory appeal from any such order, even if the trial court had previously entered an order denying a previous application.

Generally, any order or judgment entered by a trial court before a judgment becomes final and appealable is interlocutory.³ State ex rel. Schweitzer v. Greene, 438...