SPRINGLEAF FINANCIAL                              )
SERVICES, INC.,                                   )
                                                  )
        Plaintiff-Appellant,                      )       No. SD33980
                                                  )
vs.                                               )
                                                  )       Filed: July 12, 2016
BENNIE A. SHULL,                                  )
                                                  )
        Defendant-Respondent.                     )

           APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                             Honorable Judge Sandra O. West

REVERSED

        Springleaf Financial Services, Inc. ("Springleaf") appeals from the trial

court's order denying Springleaf's motion to compel arbitration in the action

Springleaf filed against Bennie A. Shull ("Mr. Shull").1 Springleaf argues the trial

court erred in finding Springleaf waived its right to compel arbitration. We agree

and reverse the trial court's order.




1 The denial of a motion to compel arbitration is an appealable order even though it is not a final

judgment. Sanford v. CenturyTel of Missouri, LLC, No. SC95465, 2016 WL 3563911, at *1
(Mo. banc June 28, 2016); Nicholson v. Surrey Vacation Resorts, Inc., 463 S.W.3d 358,
366-67 (Mo. App. S.D. 2015).
                           Factual and Procedural Background

           In January 2014, Mr. Shull signed a promissory note in favor of Springleaf.

The loan documents also contained a section titled "Arbitration Agreement and

Waiver of Jury Trial." That section provided in relevant part that "Lender and I

agree that either party may elect to resolve all claims and disputes between us

("Covered Claims") by BINDING ARBITRATION." That section went on to

provide that the parties also agreed to arbitrate the issues of "whether the claim

or dispute must be arbitrated; the validity and enforceability of this Arbitration

Agreement (except as expressly set forth in subsection G, below) and the

Agreement, my understanding of them, or any defenses as to the validity and

enforceability of this Arbitration Agreement and the Agreement[.]"2


2   The section provided in full as follows:

           Except for those claims mentioned below under the heading "MATTERS NOT
           COVERED BY ARBITRATION," Lender and I agree that either party may elect to
           resolve all claims and disputes between us ("Covered Claims") by BINDING
           ARBITRATION. This includes, but is not limited to, all claims and disputes
           arising out of, in connection with, or relating to:

           This agreement with Lender; any previous retail credit agreement ("Retail
           Contract") assigned to Lender and any previous loan from or assigned to Lender,
           whether any of the foregoing may be open-end or closed-end; all documents,
           promotions, advertising, actions, or omissions relating to this or any previous
           loan or Retail Contract made by or assigned to Lender; any insurance product,
           service contract, membership plan or warranty purchased in connection with this
           or any previous loan or Retail Contract made by or assigned to Lender; any
           product or service offered to Lender's customers with any assistance or
           involvement by Lender; whether the claim or dispute must be arbitrated; the
           validity and enforceability of this Arbitration Agreement (except as expressly set
           forth in subsection G, below) and the Agreement, my understanding of them, or
           any defenses as to the validity and enforceability of this Arbitration Agreement
           and the Agreement; any negotiations between Lender and me; the closing,
           servicing, collecting or enforcement of any transaction covered by this Arbitration
           Agreement; any allegation of fraud or misrepresentation; any claim based on or
           arising under any federal, state, or local law, statute, regulation, ordinance, or
           rule; any claim based on state or federal property laws; any claim based on the
           improper disclosure of any information protected under state or federal
           consumer privacy laws; any claim or dispute based on any alleged tort (wrong),
           including intentional torts; any claim for damages or attorneys' fees; and any
           claim for injunctive, declaratory, or equitable relief.

                                                   2
However, the contract contained another provision which permitted either party

to file an "Excluded Damages Lawsuit" seeking no more than the amount

recoverable in a small claims action.3 That provision was in a subsection titled

"MATTERS NOT COVERED BY ARBITRATION," which stated in pertinent part:

        Instead of pursuing arbitration, either Lender or I also have the
        option to bring a lawsuit in court to seek to recover the monetary
        jurisdictional limit of a small claims or equivalent court in my state
        (including costs and attorneys' fees), provided that no relief other
        than such recovery is requested in such lawsuit (an "Excluded
        Damages Lawsuit").

That section also provided "[n]either I nor Lender shall be deemed to have

waived any arbitration rights by the fact of having exercised any self-help or

judicial remedies of garnishment, repossession, replevin or foreclosure or by

having filed in court an Excluded Damages Lawsuit."4




3 In Missouri, the monetary jurisdictional limit of a small claims case is $5,000. § 482.305, RSMo
Cum. Supp. (2013).
4
  That section provided in full as follows:
         I agree that Lender does not have to initiate arbitration before exercising lawful
         self-help remedies or judicial remedies of garnishment, repossession, replevin or
         foreclosure, but instead may proceed in court for those judicial remedies. I may
         assert in court any defenses I may have to Lender's claims in such a lawsuit, but
         any claim or counterclaim for rescission or damages I may have arising out of,
         relating to, or in connection with Lender's exercise of those remedies must be
         arbitrated. Instead of pursuing arbitration, either Lender or I also have the option
         to bring a lawsuit in court to seek to recover the monetary jurisdictional limit of a
         small claims or equivalent court in my state (including costs and attorneys' fees),
         provided that no relief other than such recovery is requested in such lawsuit (an
         "Excluded Damages Lawsuit"). If an Excluded Damages Lawsuit is filed, the
         other party cannot require that the claims in that lawsuit be arbitrated. An
         Excluded Damages Lawsuit can be brought to recover money for myself or
         Lender only, not for any class or group of persons having similar claims. If such
         an Excluded Damages Lawsuit is filed by me or Lender, and any party to that
         lawsuit files an amendment, counterclaim, cross-claim, or third-party claim
         seeking to recover more than my state's small claims or equivalent court's
         monetary jurisdictional limit, then that claim, counterclaim, cross-claim, or
         third-party claim must be arbitrated in accordance with the procedures set forth
         in this Arbitration Agreement. Neither I nor Lender shall be deemed to have
         waived any arbitration rights by the fact of having exercised any self-help or
         judicial remedies of garnishment, repossession, replevin or foreclosure or by
         having filed in court an Excluded Damages Lawsuit.

                                                3
         On February 20, 2015, Springleaf filed a petition in the Greene County

Circuit Court alleging Mr. Shull was in default under the note and seeking the

unpaid balance on the note, $4,188.87, and attorney fees of $628.33. On April

10, 2015, Mr. Shull filed an answer to Springleaf's petition. On April 14, 2015,

Mr. Shull filed a counterclaim. On May 7, 2015, Springleaf sent a letter to Mr.

Shull through his attorney demanding arbitration of the counterclaims. In that

letter Springleaf stated, "[a]lthough Springleaf is not required to arbitrate the

claims it has asserted in this action, Springleaf is willing to submit all claims in

this action (including Springleaf's claims) to arbitration." On May 14, 2015,

Springleaf filed a motion to stay the proceedings and compel arbitration.

         On June 17, 2015, the trial court held a hearing. The trial court denied the

motion to stay the proceedings and compel arbitration based on its finding that

Springleaf had waived its right to demand arbitration by suing in Circuit Court.

Springleaf appeals.

                                Standard of Review

         Both the determination of whether there is an arbitration agreement and

the determination of whether the arbitration right has been waived are reviewed

de novo. Getz Recycling, Inc. v. Watts, 71 S.W.3d 224, 228 (Mo. App. W.D.

2002).

                                     Discussion

         In two points relied on, Springleaf contends the trial court erred in finding

Springleaf waived its right to arbitrate. In its first point, Springleaf asserts the

trial court's ruling was erroneous because Springleaf did not act inconsistently

with its right to compel arbitration. In its second point, Springleaf asserts the

                                           4
trial court's ruling was erroneous because Mr. Shull was not prejudiced by

Springleaf's actions. Because both of these arguments challenge the propriety of

the same legal ruling, i.e., the trial court's conclusion that Springleaf waived its

right to arbitrate, Springleaf's points will be addressed together.

       The Federal Arbitration Act ("FAA") applies to "[v]alid arbitration clauses

that affect interstate commerce . . . unless an exception applies." Lovelace

Farms, Inc. v. Marshall, 442 S.W.3d 202, 206 (Mo. App. E.D 2014). "To

determine whether arbitration should be compelled, a trial court must decide if a

valid arbitration agreement exists and, if so, whether the disputes fit within the

scope of the arbitration clause." Id. However, "a party may waive its contractual

right to arbitrate." Erdman Co. v. Phoenix Land & Acquisition, LLC, 650

F.3d 1115, 1117 (8th Cir. 2011).

       Courts apply a three-part test to determine whether there has been a

waiver of the right to arbitrate. Waiver will be found where the alleged waiving

party: “(1) had knowledge of the existing right to arbitrate; (2) acted

inconsistently with that existing right; and (3) prejudiced the party opposing

arbitration by such inconsistent acts.” Lovelace Farms, 442 S.W.3d at 207

(quoting Berhorst v. J.L. Mason of Mo., Inc., 764 S.W.2d 659, 662 (Mo.

App. E.D. 1988)). Under the facts of this case, Springleaf knew about the

arbitration clause because Springleaf drafted the agreement, see Boulds v. Dick

Dean Economy Cars, Inc., 300 S.W.3d 614, 619 (Mo. App. E.D. 2010), and by

filing its lawsuit Springleaf could arguably be said to have acted inconsistently




                                           5
with its right to arbitrate.5 See Erdman, 650 F.3 at 1118. However, here the

trial court erred because Mr. Shull was not prejudiced by Springleaf's allegedly

inconsistent actions.

        A determination that the other party was prejudiced is essential to a

finding of a waiver of the right to arbitrate. Getz Recycling, 71 S.W.3d at 229.

While "[t]he prejudice threshold . . . is not onerous[,]" Erdman, 650 F.3d at 1119

(quoting Hooper v. Advance Am. Cash Advance Ctrs. Of Mo., Inc., 589

F.3d 917, 923 (8th Cir. 2009)), "[p]rejudice is determined on a case-by-case

basis." Getz Recycling, 71 S.W.3d at 229 (quoting Reis v. Peabody Coal

Co., 935 S.W.2d 625, 631 (Mo. App. E.D. 1996)). "[W]aiver of arbitration is not a

favored finding, and there is a presumption against it." Berhorst, 764 S.W.2d at

659. "[T]he burden of showing prejudice is on the party seeking waiver." Getz

Recycling, 71 S.W.3d at 229. "Prejudice may result from lost evidence,

duplication of efforts, use of discovery methods unavailable in arbitration, or the

litigation of substantial issues going to the merits." Nettleton v. Edward D.

Jones & Co., 904 S.W.2d 409, 411 (Mo. App. E.D. 1995).

        The Eighth Circuit opinion in Stifel, Nicolaus & Co., Inc. v.

Freeman, 924 F.2d 157 (8th Cir. 1991), is instructive. There, after determining

the brokerage firm's actions were inconsistent with the right to arbitrate, the

court reasoned there was no prejudice because "no issues were litigated and the

limited discovery conducted will be usable in arbitration." Id. at 159.


5 There is a split in authority regarding whether the mere act of filing a lawsuit alone is sufficient

action inconsistent with the right to arbitrate to support the conclusion that a party waived the
right to arbitrate. Compare Erdman, 650 F.3d at 1118, with Davis Corp. v. Interior Steel
Equip. Co., 669 F. Supp. 32 (D.D.C. 1987). However, we need not decide that precise issue
under the facts of this case in light of our conclusion regarding the element of prejudice.

                                                   6
       Here, similarly, there was no prejudice. The parties did not engage in any

discovery. The delay between filing the petition and the assertion of the right to

arbitrate was only three months. The parties filed no dispositive motions, and

the trial court made no rulings on the merits of the parties' claims. Furthermore,

Springleaf indicated its willingness to arbitrate all the claims involved, so there

will be no duplication of efforts nor inconsistent judgments. Under these

circumstances, there is no prejudice. Since there is no prejudice, the trial court

should not have found Springleaf waived the right to arbitrate.

       Mr. Shull attempts to save the trial court's ruling by challenging the

validity of the arbitration agreement, arguing the arbitration agreement was

unconscionable. However, as Springleaf correctly replies, the parties also agreed

to arbitrate that issue.

       "The FAA reflects the fundamental principle that arbitration is a matter of

contract." Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010).

Generally, "courts should independently decide whether an arbitration panel has

jurisdiction over the merits of any particular dispute." Kaplan v. First

Options of Chicago, Inc., 19 F.3d 1503, 1509 (3d Cir. 1994); see also First

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 941 (1995). However,

"parties can agree to arbitrate 'gateway' questions of 'arbitrability,' such as

whether the parties have agreed to arbitrate or whether their agreement covers a

particular controversy." Rent-A-Center, 561 U.S. at 68-69. Furthermore,

"[j]ust as the arbitrability of the merits of a dispute depends upon whether the

parties agreed to arbitrate that dispute, so the question 'who has the primary

power to decide arbitrability' turns upon what the parties agreed about that

                                          7
matter." First Options, 514 U.S. at 943. The courts "look to the [a]greement to

see if the parties affirmatively addressed the question of who decides

arbitrability." Dotson v. Dillard's, Inc., 472 S.W.3d 599, 604 (Mo. App. W.D.

2015) (quoting Sadler v. Green Tree Servicing, LLC, 466 F.3d 623, 625 (8th

Cir. 2006)).

       Arbitrability becomes an issue for the arbitrator to decide where the

agreement provides clear and unmistakable evidence that the parties intended to

arbitrate those issues. First Options, 514 U.S. at 945. "[A]n arbitration

agreement need not recite verbatim that the 'parties agree to arbitrate

arbitrability' in order to manifest 'clear and unmistakable' agreement." Dotson,

472 S.W.3d at 604 (quoting Houston Refining L.P. v. United Steel, Paper

and Forestry, Rubber Mfg., 765 F.3d 396, 410 n.28 (5th Cir. 2004)).

"Rather, '[a] delegation provision that gives an arbitrator the authority to resolve

disputes relating to the "enforceability," "validity," or "applicability" of an

arbitration agreement constitutes clear and unmistakable evidence that the

parties intended to arbitrate arbitrability.'" Id. (quoting W.L. Doggett LLC v.

Paychex, Inc., 92 F.Supp.3d 593, 597 (S.D. Tex. 2015)). "[W]hen a party

seeking to compel arbitration relies upon a delegation provision, the court must

enforce that provision if it clearly and unmistakably provides authority for an

arbitrator to determine arbitrability of the issues, unless the opposing party

directly challenges the enforceability of the delegation provision[.]" Id. at 605.

       Here, the arbitration clause included a list of the types of claims the parties

intended to arbitrate in a section titled "CLAIMS AND DISPUTES COVERED."

Among the listed claims were "claims and disputes arising out of, in connection

                                           8
with, or relating to . . . the validity and enforceability of this Arbitration

Agreement[.]" This language is clear and unmistakable evidence the parties

intended to arbitrate arbitrability. See id. Mr. Shull's arguments regarding

unconscionability must be submitted to arbitration.

                                       Decision

       The trial court's order is reversed. The case is remanded for entry of an

order compelling arbitration on all claims raised.


MARY W. SHEFFIELD, C.J. – OPINION AUTHOR

DANIEL E. SCOTT, P.J. – CONCURS IN RESULT IN SEPARATE OPINION

JEFFREY W. BATES, J. – CONCURS




                                            9
SPRINGLEAF FINANCIAL                    )
SERVICES, INC.,                         )
                                        )
      Plaintiff-Appellant,              )
                                        )
vs.                                     )     No. SD33980
                                        )
BENNIE A. SHULL,                        )     FILED: 7.12.16
                                        )
      Defendant-Respondent.             )

       APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                      Honorable Sandra O. West, Judge

OPINION CONCURRING IN RESULT

      I concur in the result for a different reason. By express terms of the loan

agreement quoted in the majority opinion, Springleaf did not waive any

arbitration rights “by having filed in court an Excluded Damages Lawsuit.”


DANIEL E. SCOTT, P.J. – SEPARATE OPINION AUTHOR
