SUPREME COURT OF MISSOURI en banc
BRIDGECREST ACCEPTANCE ) Opinion issued July 12, 2022, and modified CORPORATION, ) on the Court's own motion August 30, 2022 ) Appellant, ) ) No. SC99269 v. ) ) KELLY DONALDSON AND ) ROBERT HAULCY, ) ) Respondents. )
and
BRIDGECREST ACCEPTANCE ) CORPORATION, ) ) Appellant, ) ) No. SC99270 v. ) ) CHRISTOPHER JONES, ) ) Respondent. )
APPEALS FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY The Honorable Mondonna L. Ghasedi, Judge
In two separate cases, Bridgecrest Acceptance Corporation sought a deficiency
judgment in circuit court against consumers who had defaulted on car payments. In both cases, the consumers brought counterclaims against Bridgecrest, alleging unlawful and
deceptive business practices. Bridgecrest moved to dismiss or stay the consumers’
counterclaims and compel the matters to arbitration pursuant to an arbitration agreement
the consumers signed. The circuit court overruled Bridgecrest’s motions. On appeal, this
Court reverses the circuit court’s rulings and finds the arbitration agreement legally valid,
conscionable, and not precluded by collateral estoppel. These cases are remanded for
further proceedings consistent with this opinion.
Factual and Procedural Background
The facts of both cases are virtually identical. In 2017, Kelly Donaldson and Robert
Haulcy together and Christopher Jones individually (collectively, “Consumers”) entered
into an installment contract with DriveTime Car Sales Company, LLC, to finance and buy
a vehicle. Each also signed an accompanying arbitration agreement with DriveTime. 1
The installment contract referenced the arbitration agreement, stating the arbitration
agreement was “incorporated by reference into and is a part of this Contract.” The
arbitration agreement also referenced the installment contract, stating the arbitration
agreement was “part of, and is hereby incorporated into” the installment contract.
Thereafter, DriveTime assigned its interests as to both installment contracts—including the
attached arbitration agreements—and vehicles to Bridgecrest Acceptance Corporation. 2
1 Because both installment contracts and arbitration agreements in these cases contained the same language and were the same in all relevant respects, this opinion hereinafter refers to both simultaneously and interchangeably. 2 Hereinafter Bridgecrest and DriveTime are referred to as “Bridgecrest” for convenience. 2 The arbitration agreement identified various claims subject to arbitration, including
any dispute or controversy related to:
(a) The Contract. (b) The vehicle or the sale of the vehicle. (c) The provision or sale of any goods and services like warranties, insurance and extended service contracts covered by the Contract or related to the vehicle. (d) The relationships resulting from the Contract. (e) Advertisements, promotions or oral or written statements related to the Contract. (f) The financing terms. (g) Your credit application. (h) The origination and servicing of the Contract. (i) The collection of amounts you owe us. (j) Any repossession, or replevin, of the vehicle. (k) Your personal information[.] (l) The rescission or termination of the Contract.
In explaining its scope, the arbitration agreement provided:
“Claim” has the broadest reasonable meaning. It includes claims of every kind and nature. This includes initial claims, counterclaims, cross-claims, third-party claims, statutory claims, contract claims, negligence and tort claims (including claims of fraud and other intentional torts). However, notwithstanding any language in this Agreement to the contrary, a “Claim” does not include a dispute about the validity, enforceability, coverage or scope of this Agreement.[ 3] .... However, notwithstanding any language in this Agreement to the contrary, the term “Claim” does not include (i) any self-help remedy, such as repossession or sale of any collateral given by you to us as security for repayment of amounts owed by you under the Contract; or (ii) any individual action in court by one party that is limited to preventing the other party from
3 The arbitration agreement excludes from the definition of “Claim” those disputes concerning the validity, enforceability, coverage, or scope of the arbitration agreement and is otherwise silent as to the arbitrability of contract formation issues. Consumers “cannot be required to submit to arbitration any dispute which [they have] not agreed so to submit.’” State ex rel. Pinkerton v. Fahnestock, 531 S.W.3d 36, 49 (Mo. banc 2017) (internal quotation omitted). This Court, rather than an arbitrator, accordingly reviews a challenge to contract formation. Neither party disputes this issue on appeal. 3 using such self-help remedy and that does not involve a request for damages or monetary relief of any kind.
Finally, the arbitration agreement contained an anti-waiver provision stating:
Even if you and we elect to litigate a Claim in court, you or we may elect to arbitrate any other Claim, including a new Claim in that lawsuit or any other lawsuit. Nothing in that litigation waives any rights in this Agreement.
After Consumers failed to make the required payments for the vehicles, Bridgecrest
repossessed and sold the vehicles. Following the sale of both vehicles, Bridgecrest sought
to recover the debt remaining on both installment contracts.
Bridgecrest filed suits in circuit court seeking to collect the outstanding sums.
Consumers asserted counterclaims, raising putative class claims against Bridgecrest for
unlawful and deceptive business practices in violation of the Uniform Commercial Code.
Bridgecrest moved to dismiss or stay Consumers’ counterclaims and compel arbitration
pursuant to the arbitration agreements. The circuit court overruled Bridgecrest’s motions
in both cases. Bridgecrest appealed the circuit court’s rulings; the court of appeals
affirmed. This Court transferred these cases pursuant to article V, section 10 of the
Missouri Constitution and disposes of both in this opinion.
Analysis
On appeal, Bridgecrest challenges the overrulings of its motions to compel
arbitration, arguing the arbitration agreement is a legally valid and enforceable contract.
In addition to responding to Bridgecrest’s legal arguments, Consumers contend Bridgecrest
failed to prove the existence of an arbitration agreement between Bridgecrest and
Consumers. Although Bridgecrest attached the signed arbitration agreements to its
4 motions to compel arbitration, Bridgecrest did not authenticate or introduce the agreements
at an evidentiary hearing; therefore, Consumers allege Bridgecrest did not factually prove
the existence of the arbitration agreement.
Consumers’ argument is unavailing because Consumers never contested the
existence of the arbitration agreement in circuit court. Section 435.355 governs the
procedure applicable when a party files a motion to compel arbitration. 4 That provision
instructs that, if the party opposing the motion to compel arbitration “denies the existence
of the agreement to arbitrate, the 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. In such a case, the circuit court must conduct
an evidentiary hearing to determine whether an arbitration agreement exists.
§ 435.355.1-3; see also Nitro Distrib., Inc. v. Dunn, 194 S.W.3d 339, 351-52 (Mo. banc
2006). Consumers, however, conceded the existence of an arbitration agreement in circuit
court and opposed the motions to compel for “purely legal” reasons, rather than factual
ones. In fact, in both cases, Consumers represented to the circuit court, “The only relevant
facts are the contents within the purported Arbitration Agreement.” Consumers never
denied the existence of the arbitration agreements and argued they were invalid,
unconscionable, and Bridgecrest was legally estopped from enforcing them. Accordingly,
this Court reviews those purely legal issues raised in connection with Bridgecrest’s motions
to compel. Ingram v. Brook Chateau, 586 S.W.3d 772, 774 (Mo. banc 2019).
4 All Missouri statutory citations are to RSMo 2016. 5 When the parties have not contested the factual existence of an arbitration
agreement, the overruling of a motion to compel arbitration is reviewed de novo. Soars v.
Easter Seals Midwest, 563 S.W.3d 111, 113 (Mo. banc 2018). “‘An appellate court’s
review of the arbitrability of a dispute is 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) (alteration in original)
(quoting Dunn Indus. Grp., Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. banc.
2003)).
Turning to the purely legal challenges Consumers raised in circuit court, Bridgecrest
posits the circuit court erred in overruling its motions to compel arbitration because (1) the
arbitration agreement contained adequate consideration and (2) was conscionable, and
(3) Bridgecrest was not collaterally estopped from enforcing the arbitration agreement.
This Court addresses each argument in turn.
Missouri contract law governs whether an arbitration agreement is valid and
enforceable. Eaton v. CMH Homes, Inc., 461 S.W.3d 426, 431 (Mo. banc 2015); Baker v.
Bristol Care, Inc., 450 S.W.3d 770, 774 (Mo. banc 2014); State ex rel. Vincent v.
Schneider, 194 S.W.3d 853, 856 (Mo. banc 2006). Generally applicable contract defenses,
such as unconscionability and lack of consideration, apply to arbitration agreements.
Baker, 450 S.W.3d at 774; Robinson v. Title Lenders, Inc., 364 S.W.3d 505, 513 (Mo. banc
2012). In response to Bridgecrest’s motions to compel arbitration, Consumers claimed
either no valid agreement to arbitrate exists due to a lack of consideration, or, if an
agreement exists, it is unconscionable.
6 I. The Arbitration Agreement Contained Adequate Consideration
Bridgecrest claims the circuit court erred in overruling its motions to compel
arbitration to the extent it relied on Consumers’ arguments that the agreement lacked
adequate consideration. Bridgecrest maintains the consideration supporting the installment
contract provided the consideration for the arbitration agreement. In the alternative,
Bridgecrest argues the arbitration agreement, standing alone, contained sufficient
consideration. Bridgecrest’s first argument is dispositive.
As a preliminary matter, this Court observes the retail installment contract and the
arbitration agreement were part of a singular contract. “In Missouri, matters incorporated
into a contract by reference are as much a part of the contract as if they had been set out in
the contract in haec verba.” City of Sugar Creek, 112 S.W.3d at 435 n.5. This is true as
long as the intent to incorporate is clear and the incorporating contract makes a plain,
explicit reference to and adequately identifies the incorporated document. See State ex rel.
Hewitt v. Kerr, 461 S.W.3d 798, 810-11 (Mo. banc 2015).
The incorporation provisions in the installment contract and arbitration agreement
demonstrate the arbitration agreement and the installment contract together formed a
single, integrated contract. The installment contract referenced the arbitration agreement
and stated it was “incorporated by reference into and is a part of” the contract. The
arbitration agreement also referenced the installment contract and stated it was “part of,
and is hereby incorporated into” the contract. These plain and explicit references evince
7 the parties’ intent to incorporate the two agreements into one contract. Id. 5
The three essential elements of a valid contract are offer, acceptance, and bargained
for consideration. Baker, 450 S.W.3d at 774. “Consideration consists either of a promise
(to do or refrain from doing something) or the transfer or giving up of something of value
to the other party.” Soars, 563 S.W.3d at 118 (Draper, J., dissenting) (internal quotation
omitted). It is well-established law that courts evaluate the contract “as a whole to
determine whether consideration is adequate rather than looking solely at the consideration
given for the agreement to arbitrate.” Eaton, 461 S.W.3d at 429; see also State ex rel. Reg’l
Convention v. Burton, 533 S.W.3d 223, 226 n.2 (Mo. banc 2017) (noting: “Additional
consideration for an arbitration clause is unnecessary as long as the contract as a whole
meets the consideration requirement.” (internal quotation omitted)); see also State ex rel.
Vincent v. Schneider, 194 S.W.3d 853, 858 (Mo. banc 2006) (“[M]utuality is satisfied if
5 Even in the absence of explicit incorporation, “contemporaneously signed documents relating to one subject matter or transaction are construed together” except when “the realities of the situation indicate that the parties did not so intend.” Johnson ex rel. Johnson v. JF Enters, LLC, 400 S.W.3d 763, 767-68 (Mo. banc 2013) (internal quotation omitted).; see also Four-Three-O-Six Duncan Corp. v. Sec. Tr. Co., 372 S.W.2d 16, 23 (Mo. 1963) (holding contemporaneously executed documents relating to the same subject matter constitute a single contract when, at minimum, a reasonable basis exists for inferring this was the parties’ intent). Consumers do not refute Bridgecrest’s claim that they executed the arbitration agreement and installment contract contemporaneously, conceding both were signed “around the same time” on the same day in each case. The arbitration agreement and installment contract relate to the same subject matter in that both concern a single transaction—Consumers’ purchase of a vehicle—and the rights and duties flowing from that transaction. These details, along with the express language of incorporation in both documents, evince a clear intent that the two documents be considered “incorporated into” and “a part of” the same contract. See City of Sugar Creek, 112 S.W.3d at 435 n.5; see also JF Enters., 400 S.W.3d at 767-68.
8 there is consideration as to the whole agreement, regardless of whether the included
arbitration clause itself was one-sided.”). Consequently, if the consideration given in
exchange for the installment contract was adequate, it likewise supported the arbitration
agreement. 6
Consumers do not contest the adequacy of the consideration supporting the
installment contract, nor could they. Bridgecrest supplied Consumers with a vehicle and
provided them with financing in exchange for Consumers’ promises to pay, as well as
several other promises, including the promise to arbitrate several claims. The installment
contract—including the arbitration agreement—also met the requirement of mutuality, or
the requirement that each party to a contract be bound by taking on some obligation in
consideration of an act or promise. Eaton, 461 S.W.3d at 433. Because “mutuality is
satisfied if there is consideration as to the whole agreement, regardless of whether the
included arbitration clause itself was one-sided[,]” adequate consideration existed to
support the arbitration agreement. Vincent, 194 S.W.3d at 858.
Relying on the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq. (2006), and
Ellis v. JF Enterprises, LLC, 482 S.W.3d 417 (Mo. banc 2016), Consumers contend the
6 At least one case appears to contradict this rule. In Caldwell v. UniFirst Corp., 620 S.W.3d 236, 238 (Mo. App. 2020), two parties signed an employment agreement containing an embedded arbitration clause. Relying on the “contract principle of severability,” the court of appeals seemingly condoned an arbitrator’s finding that the embedded arbitration clause was a separate contract from the overall agreement that required its own consideration. Id. at 242. Absent a finding that the overall contract is defective, valid arbitration agreements incorporated or embedded into a larger contract do not require separate consideration. To the extent Caldwell suggests otherwise, such reasoning should no longer be followed. 9 arbitration agreement alone must be supported by adequate consideration. The FAA
governs arbitration agreements in all contracts involving interstate commerce, see 9 U.S.C.
§§ 1- 2, and the arbitration agreement in these cases specifically provides the FAA controls.
Consumers argue the FAA dictates arbitration agreements are “severable” and need their
own distinct consideration because, according to Ellis, arbitration agreements and clauses
“are to be considered separate and apart from any underlying or contemporaneous related
agreements.” 482 S.W.3d at 419.
Consumers misconstrue Ellis and the several United States Supreme Court cases
interpreting the FAA. Severability means “a party’s challenge to another provision of the
contract, or to the contract as a whole, does not prevent a court from enforcing a specific
agreement to arbitrate.” Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 70 (2010). When
another aspect of the larger contract is faulty, an embedded or incorporated agreement to
arbitrate may be considered “separate and apart” from the rest of the contract and may still
be enforceable under the FAA even when another aspect of the larger contract is not. Ellis,
482 S.W.3d at 419-20. 7 But this rule is irrelevant when a party challenges the embedded
arbitration agreement itself, rather than the viability of the larger contract. Were this Court
7 If the entire underlying contract is deemed invalid but the arbitration agreement is preserved and severed from the contract pursuant to the FAA, the underlying contract can no longer supply the arbitration agreement with consideration. See Ellis, 482 S.W.3d at 420 (noting “the FAA does not say that all purported arbitration agreements necessarily are enforceable” but does provide “that such agreements are enforceable unless the arbitration agreement itself—in isolation—is invalid under generally applicable state law principles”). Absent severance, however, Consumers offer no explanation for why an arbitration agreement would need consideration separate and apart from the consideration supporting the entire contract. 10 to accept Consumers’ argument and find an arbitration clause or agreement forming a part
of a larger contract needed separate consideration, it would contravene the often-repeated
mandate that agreements to arbitrate must be governed by the same rules as apply generally
in contract law. See 9 U.S.C § 2; see also Buckeye Check Cashing, Inc. v. Cardegna, 546
U.S. 440, 443 (2006); Kerr, 461 S.W.3d at 807-08. Specifically, such a holding would
violate the black letter law that a court cannot go line by line ensuring each promise is
counterbalanced. See Baker, 450 S.W.3d at 783 (“[T]here does not have to be separate
consideration for each promise when a collection of promises is given in exchange for a
collection of promises.”). 8 For these reasons, the arbitration agreement was supported by
adequate consideration.
II. The Arbitration Agreement Is Conscionable under Missouri Law
For similar reasons, Bridgecrest’s second argument is also meritorious. The
arbitration agreement is conscionable under Missouri law, and the circuit court erred in
overruling the motions to compel arbitration to the extent it found the agreement
unconscionable. “Unconscionability is one of the common law contract defenses” that
8 Consumers also contend that, while this Court has found the consideration supporting the entire contract may likewise support an arbitration agreement, those cases concern and are limited to challenges based on conscionability, rather than challenges based on the mutuality of obligations or promises. But this Court has already applied such law outside the context of conscionability. See Burton, 533 S.W.3d at 226 n.2. Burton primarily assessed the scope of an arbitration agreement, but also at issue was whether a lease contract could supply consideration for an arbitration agreement attached to the contract and referenced by an arbitration clause embedded in the lease contract. Id. This Court dismissed the argument that the arbitration agreement lacked consideration, holding the overall contract provided sufficient consideration for the agreement for the express reason that “[a]dditional consideration for an arbitration clause is unnecessary as long as the contract as a whole meets the consideration requirement.” Id. (internal quotation omitted). 11 Missouri courts may apply “in determining whether an arbitration clause is valid.” Eaton,
461 S.W.3d at 432. Unconscionability is a defense to contract formation and protects
contracting parties from “one-sided contracts, oppression and unfair surprise.” Brewer v.
Mo. Title Loans, 364 S.W.3d 486, 493 (Mo. banc 2012).
The conscionability arguments here center on the terms of the arbitration agreement
itself. Consumers contend the arbitration agreement is unconscionable because it is
one-sided or lacks mutuality and makes illusory promises that enable Bridgecrest to
unilaterally divest itself of an obligation to perform under the agreement. Consumers claim
the arbitration agreement lacks mutuality or is one-sided and unduly harsh to Consumers
because it does not equally obligate Bridgecrest. Consumers claim this divestment of
obligation creates the illusion of a promise. Specifically, Consumers contend the
anti-waiver provision in the agreement allows Bridgecrest to initiate litigation in circuit
court and engage in self-help repossession without waiving Bridgecrest’s right to compel
arbitration on other claims.
Despite Consumers’ arguments to the contrary, the self-help and anti-waiver
provisions of the arbitration agreement neither render the agreement one-sided nor
“unilaterally divest” Bridgecrest of the agreement to arbitrate. One-sidedness or lack of
mutuality can make a contract unenforceable when its terms are “unduly harsh.” Brewer,
364 S.W.3d at 489 n.1. This “fact-specific inquiry” focuses on whether the terms “are so
one-sided as to oppress or unfairly surprise an innocent party or which reflect an overall
imbalance in the rights and obligations imposed by the contract at issue.” Id. A contract
otherwise supported by mutual promises that contains a one-sided agreement to arbitrate
12 may not be so one-sided as to poison the larger contract with unconscionability. Eaton,
461 S.W.3d at 434. An arbitration agreement that does not create equal obligations for
both parties, however, is one of the factors relevant to the conscionability inquiry. Id. at
429. A contract can become unconscionable and unenforceable when it ostensibly contains
mutual promises but one party retains the unilateral right to modify or alter the contract
and thereby divest itself of its obligation to uphold its side of the bargain. Id. at 433-36.
Such promises are illusory and inhibit contract formation. Id.
In Eaton, this Court found an arbitration agreement to be one-sided. Id. at 434. This
Court ultimately upheld the agreement but did so only after severing an anti-waiver
provision that would have divested one party of an agreed upon promise and rendered the
contract unconscionable. Id. at 437. The agreement in Eaton was one-sided because it
gave the home manufacturer the unilateral right to compel the homebuyer to arbitrate all
claims but permitted the manufacturer to avoid arbitration for any dispute arising from the
manufacturer’s three primary claims: “to foreclose upon any collateral, to obtain a
monetary judgment or to enforce the security agreement.” Id. at 434. The buyer alleged
the consequence of exempting the manufacturer’s three primary claims from arbitration
was that the manufacturer, in effect, could circumvent arbitration altogether because such
claims “are the only types of claims [the manufacturer] would ever sue on.” Id. at 433.
This Court found the arbitration agreement unconscionable because an anti-waiver
provision in the arbitration clause permitted the manufacturer to sue the buyer for any of
those three primary claims without waiving the manufacturer’s right to compel arbitration
“regarding any other dispute or remedy subject to arbitration in this contract, including the
13 filing of a counterclaim in a suit brought by [the manufacturer[.]” Id. at 430 (emphasis
added). The contract, therefore, “could create the anomalous situation where [the buyer’s]
affirmative defenses and counterclaims to claims made by [the manufacturer] in court must
proceed in arbitration at the same time as [the manufacturer] proceeds on those same claims
in court.” Id. at 434. The one-sidedness of the arbitration agreement and the anti-waiver
provision together enabled the manufacturer to effectively divest itself of its promise to
arbitrate. Id. at 436. This Court cured the contract of unconscionability by severing the
anti-waiver provision. Id. at 436-37.
While Consumers similarly claim the embedded arbitration agreement is one-sided
and the anti-waiver provision authorizes Bridgecrest to “unilaterally divest” itself of its
agreement to arbitrate, Eaton is distinguishable. Even assuming repossession is
Bridgecrest’s primary remedy, excluding self-help from arbitration does not render the
agreement one-sided. In Eaton, the homebuyer was altogether unable to contest the home
manufacturer’s three primary claims in litigation. Id. at 436. In contrast, Consumers
retained the right to contest Bridgecrest’s exercise of self-help in court with injunctive
relief and were not wholly constrained to contesting self-help via arbitration. 9 The
9 For the same reasons, Consumers find no support in Motormax Financial Services Corp. v. Knight, 474 S.W.3d 164, 170-71 (Mo. App. 2015), abrogated on other grounds by Sanford v. CenturyTel of Missouri, LLC, 490 S.W.3d 717 (Mo. banc 2016). There too the arbitration agreement contained a provision excepting self-help and any “actions…to collect any debt owed by the Consumer [and] to enforce the provisions of the security agreement securing such debt.” Id. at 170. As in Eaton, what ultimately rendered the agreement unconscionable in Motormax was the fact that “Motormax retained the right to pursue its claims against Mr. Knight in court, while he was required to resolve any claims against Motormax solely through arbitration, including the assertion of any defenses. This could potentially 14 arbitration agreement, therefore, does not exempt Bridgecrest’s claims from arbitration
while compelling Consumers to arbitrate its relevant accompanying defenses, affirmative
defenses, and counterclaims. Bridgecrest cannot litigate any claim while forcing
Consumers to respond to such claims in arbitration. 10 Both Bridgecrest and Consumers
may compel arbitration on any claim the agreement encompasses. The agreement does
not, therefore, create the “anomalous situation” that signified unconscionability in Eaton
and prompted this Court to sever the anti-waiver provision. Accordingly, the arbitration
agreement does not allow Bridgecrest to unilaterally divest itself of its obligation to
arbitrate and does not infect the agreement with unconscionability.
Consumers further attempt to liken these facts to Greene v. Alliance Automotive,
Inc., 435 S.W.3d 646 (Mo. App. 2014), but that comparison fails for similar reasons. In
Greene, an arbitration agreement between a car buyer and a seller (1) covered “any dispute”
arising out of the contract related to the purchase and sale or financing of the vehicle, or
any resulting transaction, (2) contained a self-help provision, and (3) stated that “[n]o party
waives the right to elect arbitration ... by exercising self-help remedies.” Id. at 652; see
also Eaton, 461 S.W.3d at 435-36 (discussing Greene in depth). The self-help provision
provided repossession would be used only “pending final determination of the Dispute by
the arbitrator[.]” Greene, 435 S.W.3d at 652. When the buyer defaulted, without
submitting the issue to arbitration, the seller exercised self-help repossession. Id. at 653.
force Mr. Knight to proceed on the same issue in two separate forums, risking inconsistent results[.]” Id. at 171. 10 As Bridgecrest notes, Consumers could have compelled arbitration on the deficiency claims Bridgecrest brought against Consumers. 15 The buyer then sued in court to contest repossession, prompting the seller to move to
compel arbitration. Id. at 652-53. In Greene, the arbitration agreement contained an
illusory promise divesting the dealer of an obligation to arbitrate in that, even if the dealer
reneged on its promise to submit self-help to arbitration before exercising this remedy, the
anti-waiver provision provided the exercise of self-help would not waive the dealer’s right
to compel the arbitration of other claims. Id. at 652-54; see also Eaton, 461 S.W.3d at 435
(noting “the dealer [in Greene] could foreclose the buyer’s right to review of the
provisional repossession simply by failing to file for arbitration”).
The Greene court noted:
[The seller] apparently interprets the agreement in this manner as it solved its own dispute with [the purchaser] by repossessing her vehicle, but now relies on the express language of the arbitration agreement to compel [the purchaser] to arbitrate her claims.
Id. at 654. In the present case, there was no comparable divestment of any obligation that
destroyed mutuality. The mere fact that the arbitration agreement excludes self-help—or
any “primary claim”—from arbitration altogether does not result in automatic divestment
and unconscionability. In Eaton, this Court observed:
To hold that the agreement is unconscionable solely due to lack of mutuality because [the home manufacturer], but not [the homebuyer], is given the option of litigating the issues most important to it in court is inconsistent with the principles set out in Vincent. “The consideration of a contract can consist either in a benefit conferred upon the promisor or in a legal detriment to the promisee, which means that the promisee changes his legal position ....” State ex rel. Kansas City v. State Highway Comm’n, 349 Mo. 865, 163 S.W.2d 948, 953 (1942). Both parties exchanged consideration for the entire contract: [the home buyer] paid the purchase price and [the manufacturer] provided [the buyer] with the home. [The homebuyer’s] mutuality argument, which is based on the fact that [the manufacturer] can choose to bring some matters in court whereas [the buyer] cannot do so, does not persuade this
16 Court to overrule Vincent. The lack of mutuality as to the arbitration agreement does not itself invalidate that arbitration agreement.
Eaton, 461 S.W.3d at 434. Here, there is no outright divestment of the agreement to
arbitrate owning to an illusory promise—as in Greene—nor was there one-sidedness
tantamount to divesting a party of the obligation to arbitrate—as in Eaton. Consequently,
the anti-waiver and self-help provisions do not render the arbitration agreement
unconscionable.
Because Bridgecrest’s obligations and promises are not illusory and constituted real
consideration, the agreement is conscionable and enforceable. Consumers’ remaining
arguments contest the adequacy, rather than the existence of, consideration. “Courts have
no authority to attempt to value the bargained-for consideration in an effort to determine
whether the promisor is—or is not—receiving adequate return for the promise given.”
Baker, 450 S.W.3d at 781 (internal quotation omitted). For these reasons, the arbitration
agreement is conscionable and enforceable, and the circuit court erred by overruling
Bridgecrest’s motions to compel arbitration.
III. Bridgecrest’s Claims Are Not Barred by Collateral Estoppel
In circuit court, Consumers contended collateral estoppel barred Bridgecrest’s
requests to compel arbitration. Consumers maintain Bridgecrest is estopped from
enforcing the arbitration agreement in both cases because Bridgecrest unsuccessfully
sought to invoke the same arbitration agreement in Haight v. DriveTime Car Sales
Company, LLC, No. WD81164 (Mo. App. May 29, 2018) (unpublished), in which the
circuit court and court of appeals determined the arbitration agreement was invalid. This
17 argument lacks merit, however, because Consumers never established one of the elements
of collateral estoppel: namely, that “the issue decided in the prior adjudication was
identical to the issue presented in the present action[.]” King Gen. Contractors, Inc. v.
Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 500 (Mo. banc
1991) (emphasis in original). 11 In Haight, an arbiter had previously deemed the underlying
installment contract fraudulent and void. Therefore, the circuit court evaluated the
arbitration agreement in isolation. Consequently, the focus of the parties’ argument was
whether there was consideration for the formation of the arbitration agreement.
Here, the installment contract was never deemed invalid by the circuit court or an
arbitrator and was capable of providing consideration to support the arbitration agreement.
This fact demonstrates the issue presented in Haight was remarkably different than those
presented here and renders collateral estoppel inapplicable to Bridgecrest’s motions to
compel arbitration.
11 Collateral estoppel may be applied only when the party seeking to assert the doctrine demonstrates: (1) “the issue decided in the prior adjudication was identical to the issue…in the present action”; (2) “the prior adjudication resulted in a judgment on the merits”; (3) “the party against whom estoppel is asserted was a party or was in privity with a party to the prior adjudication”; and (4) “the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit.” James v. Paul, 49 S.W.3d 678, 682 (Mo. banc 2001). 18 Conclusion
This Court finds the circuit court erred in refusing to compel arbitration for the
reasons discussed above. The circuit court’s orders overruling Bridgecrest’s motions to
compel arbitration are reversed, and these cases are remanded for further proceedings
consistent with this opinion. 12
___________________ W. Brent Powell, Judge
All concur.
12 After the parties briefed and argued these cases, the Supreme Court of the United States issued Morgan v. Sundance, Inc., 142 S. Ct. 1708 (2022). Morgan held that, despite the FAA’s strong preference for arbitration, courts may not create special rules treating arbitration more favorably than other ordinary contract matters. Id. at 1713. Morgan concerned appellate court holdings that enabled parties to behave as if they did not intend to exercise their right to compel arbitration—by engaging in extensive litigation—without risking a waiver of that right, as long as the opposing party was not prejudiced. Id. The Supreme Court invalidated these prior court rulings, holding the FAA is intended to “place such agreements upon the same footing as other contracts.” Id. (internal quotation marks omitted). Consumers argue the circuit court properly overruled Bridgecrest’s motions to compel arbitration because, under Morgan, Bridgecrest waived its right to compel arbitration by filing a deficiency claim in circuit court. What Consumers ignore, however, is the anti-waiver provision in their agreements with Bridgecrest. Consumers specifically agreed, in exchange for mutual consideration, that even if the parties litigate any claim in court, neither party waives the right to arbitrate any other new claim. Consumers do not argue Morgan prohibits anti-waiver provisions but argue it merely reiterates this Court’s long-standing holdings that an arbitration agreement must be interpreted like any other contract. See, e.g., Kerr, 461 S.W.3d at 807. The arbitration agreement in these cases contained a valid and enforceable anti-waiver provision clearly providing that a party litigating one claim in court does not waive its right to compel arbitration of any other claims. For these reasons, Consumers fail to persuade this Court that the Supreme Court’s decision in Morgan affects the outcome of these cases. 19