         IN THE MISSOURI COURT OF APPEALS
                 WESTERN DISTRICT
TIFFANY STUBBLEFIELD, ET AL.,                  )
                                               )
               Respondents,                    )
                                               )
vs.                                            )       WD79464
                                               )
BEST CARS KC, INC.,                            )       Opinion filed: November 22, 2016
                                               )
               Appellant.                      )

       APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY, MISSOURI
                 THE HONORABLE JANET SUTTON, JUDGE

                       Before Division Three: Alok Ahuja, Presiding Judge,
                       Victor C. Howard, Judge and James E. Welsh, Judge

       Best Cars KC, Inc. appeals from the trial court’s order denying its motion to compel

arbitration and stay proceedings. It contends that the trial court erred in denying its motion because

the parties entered into a valid and enforceable written arbitration agreement encompassing the

claims. The order is affirmed.

                              Factual and Procedural Background

       On April 27, 2015, Tiffany and Kenneth Stubblefield filed a petition against Best Cars

asserting claims for violations of the Missouri Merchandising Practices Act, fraud, negligent

misrepresentation, and declaratory judgment arising out of an automobile sales transaction

between the parties. The Stubblefields alleged that Best Cars sold them an automobile but never

provided them with the title for it and later repossessed it.
       On June 5, 2015, Best Cars filed a motion to compel arbitration and stay proceedings. It

asserted that the Stubblefields were bound to arbitrate the matter under the arbitration clause

contained in the sales contract attached to their motion. The parties executed a one page, two-

sided printed form contract. The front of the agreement contained boxes with the buyers’ names,

addresses, and phone numbers and information identifying the vehicle—VIN number, year, make,

model, color. The purchase price of the car, fees, down payment, and total amount due were also

filled in. The front page also contained a box with the provision, “THE ADDITIONAL TERMS

AND CONDITIONS ON THE REVERSE SIDE OF THIS ORDER ARE INCORPORATED BY

REFERENCE AND ARE A PART OF THIS ORDER.” Signatures appeared at the bottom of the

front side of the form beneath a sentence indicating, “BUYER HAS READ ALL PAGES OF THIS

AGREEMENT AND AGREES TO ALL TERMS AND CONDITIONS IN THIS

AGREEMENT.” Directly above that sentence was a checkbox with the sentence, “BUYER

ACKNOWLEDGES THAT IF THIS BOX IS CHECKED, THIS AGREEMENT CONTAINS AN

ARBITRATION CLAUSE.” The box was not checked.

       The back side of the agreement was labeled, “ADDITIONAL TERMS AND

CONDITIONS.” Seventeen terms and conditions were then specified. Number 17 was set off in

a box at the bottom of the page. It provided, in pertinent part:

       17 ARBITRATION CLAUSE. PLEASE REVIEW—IMPORTANT—AFFECTS
       YOUR LEGAL RIGHTS
       1. EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN
       US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY
       TRIAL.
       ….
       3. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE
       GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER
       RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE
       AVAILABLE IN ARBITRATION.




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        Any claim or dispute, whether in contract, tort, statute, or otherwise (including the
        interpretation and scope of this clause, and the arbitrability of the claim or dispute),
        between you and us or our employees, agents, successors, or assigns, which arises
        out of or relate to your credit application, purchase or condition of this vehicle, this
        contract or any resulting transaction or relationship (including any such relationship
        with third parties who do not sign this contract) shall, at your or our election, be
        resolved by a neutral, binding arbitration and not by a court action. Any claim or
        dispute is to be arbitrated by a single arbitrator on an individual basis and not as a
        class action. You expressly waive any right you have to arbitrate a class action.
        ….
        Any arbitration under this Arbitration Clause shall be governed by the Federal
        Arbitration Act (9 U.S.C. §1, et seq.) and not by any state law concerning
        arbitration.

        You and we retain any rights of self-help remedies, such as repossession. You and
        we retain the right to seek remedies in small claims court for disputes or claims
        within that court’s jurisdiction, unless such action is transferred, removed or
        appealed to a different court. Neither you nor we waive the right to arbitrate by
        using self-help remedies or filing suit. Any court having jurisdiction may enter
        judgment on the arbitrator’s award. This clause shall survive any termination,
        payoff or transfer of this contract….

        The Stubblefields opposed Best Cars’ motion to compel arguing that the face of the sales

contract showed that they did not agree to the arbitration clause in the contract. Specifically, they

alleged that the checkbox with the sentence “Buyer acknowledges that if this box is checked, this

agreement contains an arbitration clause” was not checked. The trial court denied Best Cars

motion to compel arbitration. This appeal by Best Cars followed.

                                        Standard of Review

        Best Cars raises three points on appeal challenging the trial court’s denial of its motion to

compel arbitration. The judgment of the trial court is affirmed on appeal unless there is no

substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares

or applies the law. Robinson v. Title Lenders, Inc., 364 S.W.3d 505, 510 (Mo. banc 2012).

Appellate review of the denial of a motion to compel arbitration is de novo. Id.




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                I. Validity of arbitration agreement is determined by the courts

        In the first point addressed, Best Cars contends that the arbitrator should have decided

whether the parties agreed to arbitrate. It contends that the arbitration agreement properly

delegated the interpretation and scope of the arbitration agreement and the arbitrability of the

claims to the arbitrator.

        In the absence of a challenge to the enforceability of a delegation provision, when a party

seeking to compel arbitration relies upon such a provision, the provision must be enforced if it

clearly and unmistakably provides authority for an arbitrator to determine arbitrability of the

issues. Dotson v. Dillard’s, Inc., 472 S.W.3d 599, 605 (Mo. App. W.D. 2015). The arbitration

clause in paragraph 17 provided:

        Any claim or dispute, whether in contract, tort, statute or otherwise (including
        interpretation and scope of this clause, and the arbitrability of the claim or dispute),
        between you and us or our employees, agents, successors, or assigns, which arise
        out of or relate to your credit application, purchase or condition of this vehicle, this
        contract or any resulting transaction or relationship…shall, at your or our election,
        be resolved by a neutral, binding arbitration and not by a court action.

        Best Cars relies on Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010), and Dotson

v. Dillard’s, Inc., 472 S.W.3d 599 (Mo. App. W.D. 2015), to support its argument that the action

below should have been referred to arbitration to determine the threshold arbitrability question. In

Rent-A-Center, the plaintiff argued that the arbitration agreement was not enforceable because it

was unconscionable under Nevada law. 561 U.S. at 65. The delegation provision of the arbitration

agreement provided, “The Arbitrator…shall have exclusive authority to resolve any dispute

relating to the interpretation, applicability, enforceability or formation of this Agreement.” Id. at

66. The United States Supreme Court held that that delegation provision vested the arbitrator, not

the courts, with the authority to determine whether the agreement was unconscionable. Id. at 70-

72. In Dotson, the employee argued that the arbitration agreement was invalid and unenforceable

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in part because it lacked consideration. 472 S.W.3d at 602. The delegation provision in Dotson

provided, “Any dispute over a Legal Claim concerning this Agreement—the way it was formed,

its applicability, meaning, enforcement, or any claim that all or part of this Agreement is void or

voidable—is subject to arbitration under this Agreement.” Id. at 605. This court determined that

the delegation provision expressly provided authority for the arbitrator to decide claims regarding

contract formation and that the employee’s argument that there was no consideration to create a

valid agreement raised a contract formation issue. Id. at 607.

        The Stubblefields’ claim that they never agreed to arbitration raised a contract formation

issue. Unlike in the arbitration agreements in Rent-A-Center and Dotson, the arbitration clause in

this case did not clearly and unmistakably delegate to the arbitrator disputes regarding contract

formation. See Baker v. Bristol Care, Inc., 450 S.W.3d 770, 774 (Mo. banc 2014)(where

delegation provision of arbitration provision provided that the arbitrator would resolve disputes

“relating to the applicability or enforceability” of the agreement, it did not delegate to the arbitrator

disputes regarding contract formation; therefore plaintiff’s claim that there was no consideration

to create a valid agreement was subject to resolution by the courts). Thus, the contract formation

issue raised by the Stubblefields was subject to resolution by the courts. The point is denied.

                               II. Validity of arbitration agreement

        In its next two points, Best Cars contends that the parties entered into a valid and

enforceable written arbitration agreement encompassing the Stubblefields’ claims. They assert

alternatively that to the extent that the contract was ambiguous on the subject of arbitration, the

trial court erred by not resolving the ambiguity in favor of arbitration.

        “Missouri contract law applies to determine whether the parties have entered a valid

agreement to arbitrate.” Robinson, 364 S.W.3d at 510 (internal quotes and citation omitted);



                                                   5
Baker, 450 S.W.3d at 774 (internal quotes and citation omitted). “The essential elements of any

contract, including one for arbitration, are offer, acceptance, and bargained for consideration.”

Baker, 450 S.W.3d at 774 (internal quotes and citation omitted). It is firmly established that parties

can be compelled to arbitrate only pursuant to an agreement where they have agreed to arbitrate

claims. Frye v. Speedway Chevrolet Cadillac, 321 S.W.3d 429, 436 (Mo. App. W.D. 2010). It

follows, therefore, that arbitration may not be unilaterally imposed on a party when there is not a

valid and enforceable agreement to arbitrate. Id.

       The Stubblefields did not agree to arbitrate. The sales contract in this case contained a

checkbox with the sentence, “BUYER ACKNOWLEDGES THAT IF THIS BOX IS CHECKED,

THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE.” The plain meaning of the

sentence is that if the box is checked, the arbitration clause in paragraph 17 on the back of the

contract is included as a term in the sales contract. The box was not checked or marked in any

way. Consequently, the arbitration clause was not incorporated into the sale contract.

       Best Cars asserts that even though the box was not checked, the Stubblefields agreed to be

bound by all of the terms and conditions on both sides of the contract, including the arbitration

clause. It cite Kates v. Chad Franklin Nat. Auto Sales North, LLC, 2008 WL 5145942 (W.D. Mo.

2008), to support its argument. Kates is, however, distinguishable from the instant case. In Kates,

the purchaser of an automobile signed a sales contract that included an identical checkbox and

sentence concerning an arbitration clause found on the reverse side of the contract. Id. at *3. The

buyer also executed a separate arbitration agreement contemporaneously with the sales contract.

Id. at *4. The purchaser argued that the sales contract cancelled the arbitration agreement because

the sales contract contained a merger clause providing that the sales agreement “cancels and

supersedes any prior agreement” and because the checkbox was not checked on the sales contract.



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Id. The court found that the separate arbitration agreement was not merged out of the contract

between the parties and that the buyer’s actions demonstrated an intent to be bound by the separate

arbitration agreement. Id. It reasoned that the merger clause involved prior agreements and the

separate arbitration agreement was executed contemporaneously with the sales contract and the

checkbox in the sales contract referred to the arbitration clause on the back of that contract, not the

separate arbitration agreement signed by the buyer. Id.

         In this case, unlike in Kates, a separate arbitration agreement was not signed. The only

arbitration agreement at issue here was the arbitration clause found on the back of the sales

contract. The checkbox and sentence on the front of the contract referred to that arbitration clause

on the back. The unambiguous language of the sentence indicated that the arbitration clause was

incorporated into the sales contract only if the box was marked. It was not marked.1 Where the

language of a contract is unambiguous, a court must construe the contract as written giving terms

their plain and ordinary meaning. Gavan v. Bituminous Cas Corp., 242 S.W.3d 718, 720 (Mo.

banc 2008). Because the parties did not enter into an arbitration agreement, the trial court did not

err in denying Best Cars motion to compel arbitration. The points are denied.

         The order of the trial court is affirmed.




                                                       __________________________________________
                                                       VICTOR C. HOWARD, JUDGE

All concur.

1
   While the sales contract contained the general provision “BUYER HAS READ ALL PAGES OF THIS
AGREEMENT AND AGREES TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT,” the checkbox
provision specifically regarding incorporation of the arbitration provision into the contract controlled. See Jimenez v.
Cintas Corp., 475 S.W.3d 679, 687 (Mo. App. E.D. 2015)(“[W]hen construing the language of a contract, specific
terms and provisions are given preference over general terms.”); Five Star Quality Care-MO, L.L.C. v. Lawson, 283
S.W.3d 811, 815 (Mo. App. W.D. 2009)(“When a provision of a contract deals with a specific situation, it will prevail
over a more general provision if there is ambiguity or inconsistency between them.”).

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