         IN THE MISSOURI COURT OF APPEALS
                 WESTERN DISTRICT
GLENN JAMES DUNCAN, JR.,                     )
                                             )
               Respondent,                   )
                                             )
v.                                           )       WD83330
                                             )
TITLEMAX OF MISSOURI, INC.,                  )       Opinion filed: August 25, 2020
                                             )
               Appellant.                    )

       APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY, MISSOURI
                 THE HONORABLE LOUIS ANGLES, JUDGE

                     Division One: Thomas H. Newton, Presiding Judge,
                    Mark D. Pfeiffer, Judge and Edward R. Ardini, Jr., Judge

        Glenn Duncan (“Duncan”) filed suit in the Circuit Court of Clay County against TitleMax

of Missouri, Inc. (“TitleMax”) alleging conversion of his vehicle. TitleMax filed a Motion to

Compel Arbitration and Stay Litigation (“Motion to Compel Arbitration”), which was denied by

the trial court. TitleMax appeals from that denial. We affirm.

                             I.   Factual and Procedural Background

       On December 12, 2018, Travis Eacret (“Eacret”), Duncan’s grandson, obtained a consumer

loan from TitleMax using the title to a 2004 Pontiac Bonneville as security. The vehicle was co-

owned by Eacret and Duncan. Eacret defaulted on the loan, and TitleMax repossessed the vehicle.

       On May 10, 2019, Duncan filed a petition alleging conversion of the vehicle and seeking

punitive damages. TitleMax filed a Motion to Compel Arbitration, alleging that Duncan had
accompanied Eacret to TitleMax on December 12, 2018, and had signed a Co-Owner’s Consent

that included an arbitration provision stating, in relevant part:

       Licensee has a policy of arbitrating all claims, demands, and disputes which cannot
       be resolved in a small claims tribunal, including the scope and validity of this
       Arbitration Agreement and any right Co-Owner may have to participate in an
       alleged class action (hereinafter, “dispute(s)”). Co-Owner agrees that The Federal
       Arbitration Act governs this arbitration provision.

The name Jim Duncan appears on the signature line with the date 12/12/18. In further support of

its Motion to Compel Arbitration, TitleMax submitted an affidavit from the general manager of

the Claycomo TitleMax store (“Manager”), which stated, in relevant part:

       A person who had accompanied Mr. Eacret to the Store on December 12, 2018,
       electronically signed the Co-Owner’s Consent as “Jim Duncan.” In accordance
       with the Store’s general practice, TitleMax employees, including myself, always
       verify the identification of persons who execute Co-Owner Consent and Grant of
       Security Interest forms before those forms are signed. Thus, the Jim Duncan who
       signed the Co-Owner Consent at the Store on December 12, 2018, had his identity
       verified before doing so.

       In his pleadings, Duncan denied having ever been to the TitleMax store and asserted that

he “never signed anything[.]” In opposition to the Motion to Compel Arbitration, Eacret supplied

an affidavit stating that Duncan did not accompany him to TitleMax on December 12, 2018:

       On or about December 12, 2018, I went to the TitleMax office in Claycomo,
       Missouri to obtain a loan on a 2004 Pontiac vehicle which I co-own with my
       grandfather, Glenn Duncan. . . . [Manager] told me that I had to have my
       grandfather come in and sign some papers. I told her that my grandfather would not
       sign. She went ahead and gave me the loan and told me to have my grandfather
       come in within the next few days and sign the paperwork or she would get into
       some real trouble. I went home and told my grandfather that I had gotten the loan
       money and he needed to go up and sign the papers. He told me he wasn’t going to
       sign any papers.

       . . . My grandfather was never at TitleMax on the day I got the loan and I did not
       nor did anybody with me have my grandfather’s identification.

       . . . Several days later [Manager] called me and asked to talk to my grandfather. She
       talked to him and I heard him tell her that he wasn’t going to sign any papers.



                                                  2
           The trial court denied TitleMax’s Motion to Compel Arbitration, memorializing the denial

in a docket entry. TitleMax appeals from that denial.1

                                             II.    Standard of Review

           Issues concerning the arbitrability of a dispute are reviewed de novo “because ‘[w]hether

a dispute is covered by an arbitration provision is relegated to the courts as a question of law.’”

Theroff v. Dollar Tree Stores, Inc., 591 S.W.3d 432, 436 (Mo. banc 2020) (quoting Dunn Indus.

Grp., Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. banc 2003)). We also review de novo

whether there exists an enforceable delegation clause within an arbitration agreement. Id.

           If there is a factual dispute about whether an arbitration agreement exists, the trial court

“shall proceed summarily to the determination of the issue so raised and shall order arbitration if

found for the moving party; otherwise, the application shall be denied. § 435.355.1, RSMo.2

“‘[I]ssues relating to the existence of an arbitration agreement are factual and require our deference

to the trial court’s findings.’” Baier v. Darden Restaurants, 420 S.W.3d 733, 736 (Mo. App. W.D.

2014) (quoting Katz v. Anheuser-Busch, Inc., 347 S.W.3d 533, 539 (Mo. App. E.D. 2011)). “As

such, in an appeal from a circuit court’s order overruling a motion to compel arbitration when there

is a dispute as to whether the arbitration agreement exists, the circuit court’s judgment will be

affirmed 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.” Theroff, 591 S.W.3d at 436. When no

factual findings are made by the trial court, the facts “shall be considered as having been found in

accordance with the result reached.” Rule 73.01(c).3


1
 An order denying a motion to compel arbitration is appealable under section 435.440, RSMo. Baker v. Bristol Care,
Inc., 450 S.W.3d 770, 773 (Mo. banc 2014).
2
    Statutory references are to the Missouri Revised Statutes, updated through the 2018 supplement.
3
    Rule references are to the Missouri Supreme Court Rules (2019).


                                                           3
                                         III.   Discussion

       TitleMax raises three points on appeal, all asserting that the trial court erred in denying its

Motion to Compel Arbitration. In its first point, TitleMax alleges that, because Duncan did not

specifically challenge the delegation provision, “threshold questions of arbitrability should have

been referred to the arbitrator[.]” In its second point, TitleMax claims that the trial court’s order

was not supported by substantial evidence, and in Point III, TitleMax asserts that the trial court’s

order was against the weight of the evidence. We address each point in turn.

                                  Point I – Delegation Provision

       In Point I, TitleMax claims that the trial court “erred by refusing to compel arbitration

because the Arbitration Agreement contained a broad delegation provision, reserving all threshold

disputes about the formation, existence, scope, and validity of the Arbitration Agreement for the

arbitrator to decide, which Duncan never specifically challenged.”

       “Parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ including whether the

parties have agreed to arbitrate a given controversy.” Theroff, 591 S.W.3d at 439 (citing State ex

rel. Newberry v. Jackson, 575 S.W.3d 471, 474 (Mo. banc 2019)). “Contractual arrangements to

arbitrate gateway questions of arbitrability occur when the parties include a ‘delegation provision’

in the arbitration agreement.” Id. (citing Rent-A-Ctr, W., Inc. v. Jackson, 561 U.S. 63, 68-69

(2010)). “‘[A] delegation provision is an additional, severable agreement to arbitrate threshold

issues that is valid and enforceable unless a specific challenge is levied against the delegation

provision.’” Id. (quoting State ex rel. Pinkerton v. Fahnestock, 531 S.W.3d 36, 50 (Mo. banc 2017)

(additional citation omitted)). When determining whether the parties have agreed to delegate

threshold issues of arbitrability, “‘[c]ourts should not assume that the parties agreed to arbitrate

arbitrability unless there is clea[r] and unmistakabl[e] evidence that they did so.’” Id. (quoting



                                                 4
Fahnestock, 531 S.W.3d at 43; Rent-A-Ctr., W., Inc., 561 U.S. at 69 n.1).

         TitleMax argues that Duncan was required to specifically challenge the validity of the

delegation provision and his failure to do so necessitated the trial court, as a matter of law, to

compel arbitration for resolution by the arbitrator of threshold issues of arbitrability. It is true that

Duncan did not specifically challenge the delegation provision. Instead, the gravamen of Duncan’s

argument is that he did not execute the Co-Owner’s Consent or the arbitration agreement contained

therein. In other words, Duncan challenges the existence of the arbitration agreement between him

and TitleMax. Thus, it was not necessary for Duncan to specifically challenge the delegation

provision as a “challenge to the existence of the mutual agreement in its entirety because of a lack

of assent necessarily challenges the existence of any delegation provision it contains.” Theroff,

591 S.W.3d at 439.4 As a result, we reject TitleMax’s premise that Duncan’s failure to specifically

challenge the delegation provision required the trial court to give effect to that provision by

compelling arbitration and permitting threshold disputes to be addressed by the arbitrator.

         Resolution by the trial court of Duncan’s challenge to the existence of an agreement to

arbitrate between himself and TitleMax was a prerequisite to compelling arbitration. See

§ 435.355.1, RSMo; Theroff, 591 S.W.3d at 439 (“To the extent Newberry, Soars, and Pinkerton

can be read to suggest one can be forced into arbitration by a contract to which one is a stranger,

this interpretation is incorrect.”). Thus, it was proper for the trial court to address Duncan’s claim

that no arbitration agreement existed between him and TitleMax as any delegation to the arbitrator


4
 In Theroff, a blind employee claimed that she did not read or sign an arbitration agreement included in her new-hire
paperwork, arguing that, although the document included her electronic signature, she was not able to see the
document on the computer screen when she signed and another employee who was helping her did not mention or
explain that an arbitration agreement existed in the paperwork. 591 S.W.3d at 435. The circuit court agreed, and
overruled the employer’s motion to compel arbitration. Id. at 439. On appeal, our Supreme Court affirmed, abrogating
prior case law such as Newberry and Pinkerton, and clarifying that “[a] court should determine if the contract in
question falls within the coverage of the arbitration act before applying the act’s severability principle, requiring a
challenge to an arbitration agreement, or delegation provision, separate from a challenge to the overall contract.” Id.
at 440 (emphasis in the original).

                                                          5
was necessarily dependent on such an agreement. See Theroff, 591 S.W.3d at 437 (“Unlike the

standard scenario in which there is no dispute about whether a party signed an arbitration

agreement, when a party disputes signing, the court must first decide the existence of an agreement

to arbitrate.”).

        Point I denied.

                    Points II and III – Existence of an agreement to arbitrate

        In Point II, TitleMax challenges whether there was substantial evidence supporting the trial

court’s order denying the Motion to Compel Arbitration. In Point III, TitleMax claims that the trial

court’s denial of the motion was against the weight of the evidence.

        “‘[A]rbitration is a matter of contract, and parties will be compelled to arbitrate their claims

only if the arbitration agreement satisfies the essential elements of a valid contract.’” Jiminez v.

Cintas Corp., 475 S.W.3d 679, 683 (Mo. App. E.D. 2015) (quoting Marzette v. Anheuser-Busch,

Inc., 371 S.W.3d 49, 52 (Mo. App. E.D. 2012)). As stated above, “when a party disputes signing,

the court must first decide the existence of an agreement to arbitrate.” Theroff, 591 S.W.3d at 437.

“Without a valid agreement to arbitrate, the trial court cannot compel a party to arbitrate a dispute.”

Baier, 420 S.W.3d at 737 (citation omitted). The party seeking to compel arbitration has the burden

of proving that there existed an agreement to arbitrate. Gemini Capital Group, LLC v. Tripp, 445

S.W.3d 583, 588 (Mo. App. S.D. 2013) (citation omitted).

          Substantial evidence supported the denial of the Motion to Compel Arbitration

        TitleMax claims in Point II that substantial evidence did not support the trial court’s order

denying its Motion to Compel Arbitration. “[A] substantial evidence challenge argues that ‘there

is no evidence in the record tending to prove a fact that is necessary to sustain the [trial court’s]

judgment as a matter of law.’” Cityview Real Estate Servs., LLC v. K.C. Auto Panel, Inc., 576



                                                   6
S.W.3d 187, 191-92 (Mo. App. W.D. 2019) (quoting Ivie v. Smith, 439 S.W.3d 189, 200 (Mo.

banc 2014)). “Substantial evidence is evidence that, if believed, . . . has any tendency to make a

material fact more or less likely.” Ivie, 439 S.W.3d at 199.

       TitleMax argues that “Duncan failed to offer admissible—or any—evidence demonstrating

that he did not sign the Co-Owner’s Consent” asserting that Eacret’s affidavit “carries no probative

value as to whether or not Duncan actually signed the Co-Owner’s Consent.” Noting the lack of

an affidavit or testimony from Duncan, TitleMax speculates that perhaps Duncan signed the

agreement “outside of Mr. Eacret’s presence or otherwise without Mr. Eacret’s knowledge that he

had done so.”

       In addressing TitleMax’s hypothetical claim that Duncan may have signed the Co-Owner’s

Consent without Eacret’s knowledge, it deserves reminding that the affidavit submitted by

TitleMax stated that “[a] person who had accompanied Mr. Eacret to the Store on December 12,

2018, electronically signed the Co-Owner’s Consent as ‘Jim Duncan.’” Thus, under the factual

scenario urged by TitleMax, Duncan accompanied Eacret to the TitleMax store on December 12,

2018, and it was at that time that he electronically signed the Co-Owner’s Consent. Eacret’s

affidavit unequivocally refuted TitleMax’s claim that Duncan “had accompanied” him to the store

stating that “[m]y grandfather was never at TitleMax on the day I got the loan[.]”

       The Eacret affidavit provided substantial evidence that Duncan was not present at the

TitleMax store on December 12, 2018, and therefore did not electronically sign the Co-Owner’s

Consent, as alleged by TitleMax, on that date, and the trial court’s reliance thereon was not error.

See Theroff, 591 S.W.3d at 437 (citation omitted) (“The outcome of this case turns on the circuit

court’s factfinding role[.] . . . When the parties challenge facts relevant to a particular issue, as

they did here, this Court will defer to the circuit court’s assessment of the evidence.”). Simply



                                                 7
stated, the trial court disbelieved TitleMax’s evidence, which it was entitled to do. See Ivie, 439

S.W.3d at 200 (additional citations and quotations omitted) (“Circuit courts are free to believe any,

all, or none of the evidence presented[,]” and we “accept as true the evidence and inferences . . .

favorable to the trial court’s decree and disregard all contrary evidence.”); see also Theroff, 591

S.W.3d at 439 (“By ruling in [Duncan’s] favor and overruling the motion to compel arbitration,

the circuit court, after reviewing all the evidence, impliedly found there was no agreement.”). The

trial court’s denial of the Motion to Compel Arbitration was supported by substantial evidence.

       Point II denied.

                      The denial of TitleMax’s Motion to Compel Arbitration
                            was not against the weight of the evidence

       In Point III, TitleMax asserts that the trial court’s denial of its Motion to Compel

Arbitration was against the weight of the evidence. “‘[A] claim that the judgment is against the

weight of the evidence presupposes that there is sufficient evidence to support the judgment.’”

Ivie, 439 S.W.3d at 205 (quoting In re J.A.R. v. D.G.R., 426 S.W.3d 624, 630 (Mo. banc 2014)).

“The against-the-weight-of-the-evidence standard serves only as a check on a circuit court’s

potential abuse of power in weighing the evidence, and an appellate court will reverse only in rare

cases, when it has a firm belief that the decree or judgment is wrong.” Id. at 206. “A circuit court’s

judgment is against the weight of the evidence only if the circuit court could not have reasonably

found[ ] from the record . . . the existence of a fact that is necessary to sustain the judgment.” Id.

       Here, there was ample evidence before the trial court that Duncan did not sign the Co-

Owner’s Consent containing the Arbitration Agreement. As explained in our analysis of Point II,

TitleMax’s theory was that Duncan accompanied Eacret to the TitleMax store on December 12,

2018, and electronically signed the Co-Owner’s Consent at that time. Eacret’s affidavit directly

contradicted this evidence by asserting that Duncan was not present at the TitleMax store on that

                                                  8
day. Moreover, the assertion by TitleMax’s Manager stating it was store policy to check the

identification of anyone signing a Co-Owner’s Consent and, therefore, Duncan’s identification

was checked5 was similarly contradicted by Eacret who stated that no one with him at the TitleMax

store on that date was in possession of Duncan’s identification documents.

         TitleMax’s argument essentially asks us to disregard our standard of review and reweigh

the evidence in its favor. Such an approach is not proper in an against the weight of the evidence

challenge. See Ivie, 439 S.W.3d at 206 (“This Court defers on credibility determinations when

reviewing an against-the-weight-of-the-evidence challenge because the circuit court is in a better

position to weigh the contested and conflicting evidence in the context of the whole case.”). As

the trial court could reasonably have found that Duncan was not present at the TitleMax store on

December 12, 2018, and did not sign the Co-Owner’s Consent, this Court rejects TitleMax’s

argument that the trial court’s ruling was against the weight of the evidence.

    Point III denied.

                                                IV.      Conclusion

         The circuit court’s order denying TitleMax’s Motion to Compel Arbitration is affirmed.




                                                       __________________________________________
                                                       EDWARD R. ARDINI, JR., JUDGE

All concur.


5
  On the issue of identification verification, the affidavit of TitleMax’s Manager stated that “[i]n accordance with the
Store’s general practice, TitleMax employees, including myself, always verify the identification of persons who
execute Co-Owner’s Consent and Grant of Security Interest forms before those forms are signed. Thus, the Jim Duncan
who signed the Co-Owner Consent at the Store on December 12, 2018, had his identity verified before doing so.” A
close reading of the affidavit reveals that the Manager never directly asserted that Duncan himself was at the store or
that she or any other employee actually performed an identification verification related to the relevant Co-Owner’s
Consent. Rather, the affidavit simply concludes that the Jim Duncan who signed the Co-Owner’s Consent had his
identify verified because that is the store’s practice.


                                                           9
