Paul D. Melnuk v. Thomas J. Hillman

• Court: Missouri Court of Appeals
• Decided: January 28, 2020
• Docket: ED108006
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION TWO

PAUL D. MELNUK, ) No. ED108006 ) Respondent, ) Appeal from the Circuit Court of ) St. Louis County vs. ) ) Honorable Kristine A. Kerr THOMAS J. HILLMAN, ) ) Appellant. ) Filed: January 28, 2020

Introduction

Thomas J. Hillman appeals the trial court’s denial of his motion to compel arbitration of

claims for damages brought by Paul D. Melnuk, his former business partner. He argues the trial

court erred in denying his motion to compel arbitration because two agreements between the

parties contained delegation clauses requiring threshold questions of arbitrability be submitted to

an arbitrator. He further argues Melnuk’s claims for damages were not raised and their

arbitrability was not decided in a prior arbitration. Alternatively, Hillman argues, even if the

delegation clauses were invalid, the trial court erred in not finding Melnuk’s claims should be

arbitrated because they “touch[ ] matters covered by the parties’ contract[s].” We find the trial

court erred in denying Hillman’s motion to compel arbitration. Accordingly, the trial court’s

order overruling Hillman’s motion to compel arbitration is reversed. The trial court shall stay the

case and order the parties to proceed to arbitration. Factual and Procedural Background

Melnuk and Hillman were business partners who each owned a one-half interest in FTL

Capital, LLC (“FTL Capital”).1 Melnuk and Hillman were the sole Members and Managers of

FTL Capital. FTL Capital had an operating agreement (“Operating Agreement”), which

included a “Buy and Sell Option” provision under which one Member could propose to sell his

one-half interest in FTL Capital or buy the other Member’s one-half interest in FTL Capital at a

price in the proposal. The non-proposing Member could opt to be the buyer or the seller. On

February 17, 2015, Melnuk submitted a written proposal to Hillman, offering to either buy

Hillman’s interest or sell his own interest in FTL Capital. On April 8, 2015, Hillman notified

Melnuk he wished to purchase Melnuk’s one-half interest in FTL Capital. On April 30, 2015,

Melnuk and Hillman executed a “Membership Interest Buy/Sell Agreement of FTL Capital,

LLC” (“Buy/Sell Agreement”).

The Buy/Sell Agreement provided Hillman would pay Melnuk $23.3 million (“Purchase

Price”) for his one-half interest in FTL Capital. The Buy/Sell Agreement provided that, at the

closing, Hillman would pay Melnuk an amount equal to 5% of the Purchase Price from funds

held in escrow and execute and deliver a promissory note (“Promissory Note”) for $22,135,000,

subject to certain contingent liability adjustments. One such adjustment was for payments made

to certain employees under the FTL Capital Phantom Option Plan (“Phantom Option Plan”).

FTL Capital adopted the Phantom Option Plan, which became effective on September 1,

2014. The Phantom Option Plan provided incentives to key employees of FTL Capital and

certain FTL Capital affiliates by offering them the right to share in the appreciation of FTL

1 Melnuk and Hillman held their ownership interests in FTL Capital through trusts they controlled. Therefore, the named parties in this case are Paul D. Melnuk, Trustee of the Paul D. Melnuk Revocable Trust Dated March 8, 2012 and Melnuk Family Dynasty Trust Dated December 19, 2012 and Thomas J. Hillman, Individually and as Trustee of the Thomas J. Hillman Living Trust Dated May 18, 1993.

2 Capital through phantom option bonus awards. The Phantom Option Plan provided FTL Capital

would pay phantom option bonus awards to enrolled employees upon a “change of control.” The

Phantom Option Plan defined “change of control” as “any sale, transfer or issuance or series of

sales, transfers and/or issuances of greater than fifty percent (50%) of the voting Membership

Units of the Company or by the owner(s) of such Membership units.” (emphasis added). The

Phantom Option Plan provided amendments and revisions to its terms must be approved by FTL

Capital’s Members “if the amendment would . . . materially increase the benefits accruing to

Participants under the [Phantom Option] Plan.”

In early 2015, before Melnuk and Hillman executed the Buy/Sell Agreement, an

employee enrolled in the Phantom Option Plan requested the definition of “change of control” be

changed under the Phantom Option Plan so phantom option bonus awards would be due upon

any sale, transfer, or issuance of fifty percent or more of the voting Membership units rather than

any sale, transfer, or issuance of greater than fifty percent of the voting Membership units. The

requested change would require FTL Capital to pay phantom option bonus awards to enrolled

employees if either Melnuk or Hillman sold his interest in FTL Capital, as Melnuk and Hillman

were the sole Members. Melnuk did not agree to the amendment.

Melnuk alleged that, without Melnuk’s knowledge or permission, Hillman changed the

definition of “change of control” within the Phantom Option Plan to require payment upon “any

sale, transfer or issuance or series of sales, transfers and/or issuances of fifty percent (50%) or

more of the voting Membership Units of the Company or by the owner(s) of such Membership

units.” (emphasis added). Melnuk alleged Hillman, assisted by FTL Capital’s Chief Financial

Officer Megan Lane, effectuated this change by affixing Melnuk’s signature, without Melnuk’s

knowledge or permission, to an amended version of the Phantom Option Plan. Hillman paid

3 over $586,000 to employees enrolled in the Phantom Option Plan, including over $60,000 to

Lane. Hillman then notified Melnuk he intended to reduce the principal amount under the

Promissory Note by $287,167 as a contingent liability adjustment under the Buy/Sell Agreement,

which represented half the amount FTL Capital paid enrolled employees under the Phantom

Option Plan. Hillman asked Melnuk to execute an amendment to the Promissory Note reducing

the principal amount under the Promissory Note by $287,167. Melnuk refused, arguing the

$287,167 was not an authorized contingent liability adjustment under the Buy/Sell Agreement.

Both the Operating Agreement and the Buy/Sell Agreement contained arbitration clauses.

The arbitration clause in the Operating Agreement provided:

Any claim or dispute regarding the interpretation, application or enforcement of this Agreement shall be resolved exclusively by arbitration in St. Louis before a single arbitrator in accordance with the rules then in effect of the American Arbitration Association for commercial disputes, and any judgment rendered thereon shall be enforced in the state or federal courts located in St. Louis, Missouri.

The arbitration clause in the Buy/Sell Agreement provided:

With the exception of injunctive relief, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Expedited Procedures, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator may not award punitive or consequential damages and the prevailing party shall be awarded its attorney fees.

The Phantom Option Plan contained no arbitration clause. In 2016, Hillman initiated

arbitration (the “2016 Arbitration”), seeking a declaratory judgment that certain contingent

liability adjustments were valid under the Buy/Sell Agreement. Specifically, Hillman sought a

declaratory judgment that the contingent liability adjustment for the phantom option bonus

awards was valid under the Buy/Sell Agreement and that the principal amount under the

Promissory Note should be reduced by $287,167. Melnuk challenged the validity of several

4 contingent liability adjustments under the Buy/Sell Agreement. He denied the contingent

liability adjustment for the phantom option bonus awards was valid and instead claimed the

adjustment was not authorized by the Buy/Sell Agreement. Melnuk asserted two counterclaims.

The first sought a declaratory judgment that the principal amount under the Promissory Note

should be increased by $121,884 based on certain adjustments. The second sought acceleration

of Hillman’s payment of the principal amount under the Promissory Note because of Hillman’s

alleged failure to make certain interest payments on the Promissory Note.

A four-day arbitration hearing was held in June 2016. The arbitrator entered his award

on July 12, 2016 (the “2016 Arbitration Award”). The 2016 Arbitration Award stated the issues

presented in the 2016 Arbitration were “ten potential adjustments” of the principal amount

Hillman owed Melnuk under the Promissory Note. The 2016 Arbitration Award concluded the

phantom option bonus awards “met the contractual definition of a contingent liability

adjustment” and, thus, resulted in a reduction of the principal amount owed under the Promissory

Note. The 2016 Arbitration Award also stated:

In so finding, I express no opinion as to whether [Melnuk] might have a claim against [Hillman] for breach of fiduciary duty or other cause of action relating to [Hillman’s] alleged improper modification of the “change of control” provision of the [Phantom Option] Plan. Any such claim is beyond the scope of this arbitration.

The trial court confirmed the 2016 Arbitration Award on February 13, 2018.2 On January

4, 2019, Melnuk filed his petition (“Petition”) in the St. Louis County Circuit Court, asserting

claims for damages against both Hillman and Lane for breach of fiduciary duty, fraud, and

conspiracy regarding their unauthorized amendment of the “change of control” provision in the

Phantom Option Plan. In addition, Melnuk asserted a claim for damages against Hillman for

2 See Paul D. Melnuk, Trustee of the Paul D. Melnuk Revocable Trust dated March 8, 2012, et al. v. Thomas J. Hillman, Trustee of the Thomas J. Hillman Living Trust dated May 18, 1993, Cause No. 17SL-CC01782.

5 breach of the Phantom Option Plan and against Lane for unjust enrichment. Melnuk’s Petition

prayed for damages totaling $287,167, which represented the reduction of the principal amount

under the Promissory Note attributable to the phantom option bonus awards adjustment.

On April 18, 2019, Hillman and Lane moved to compel arbitration. Hillman and Lane

argued the parties agreed to delegate threshold issues of arbitrability of “any claim or dispute

regarding the interpretation, application, or enforcement of” the Operating Agreement and “any

controversy or claim arising out of or relating to” the Buy/Sell Agreement. Therefore, Hillman

and Lane argued the trial court should compel arbitration of Melnuk’s claims for damages rather

than allow them to proceed in trial court. In response, Melnuk argued the 2016 Arbitration

Award determined his claims for damages relating to Hillman’s and Lane’s alleged unauthorized

amendment of the “change of control” provision were beyond the scope of the arbitration clauses

in the Operating Agreement and Buy/Sell Agreement and must be brought in trial court. On

June 11, 2019, the trial court entered its order granting Lane’s application to compel arbitration

and denying Hillman’s application to compel arbitration.

Hillman’s appeal follows.

Standard of Review

“Whether arbitration should be compelled is a question of law, which we review de

novo.” Esser v. Anheuser-Busch, LLC, 567 S.W.3d 644, 648 (Mo. App. E.D. 2018) (citing

Jackson v. Higher Educ. Loan Auth. of Mo., 497 S.W.3d 283, 287 (Mo. App. E.D. 2016)).

Discussion

In his first point, Hillman argues the trial court erred in denying his application to compel

arbitration because the parties’ agreements to arbitrate in the Operating Agreement and the

Buy/Sell Agreement contained delegation clauses requiring threshold questions of arbitrability

6 be submitted to an arbitrator. Hillman also argues Melnuk’s claims for damages were not raised

in the 2016 Arbitration and their arbitrability was not decided in the 2016 Arbitration Award. He

argues the 2016 Arbitration only resolved the arbitrability of claims related to which contingent

liability adjustments were valid under the Buy/Sell Agreement, not claims related to possible

damages Melnuk suffered because of Hillman’s unauthorized amendment of the “change of

control” provision in the Phantom Option Plan. He argues, because Melnuk never pled claims

for damages arising from Hillman’s alleged unauthorized amendment of the “change of control”

provision in the Phantom Option Plan in the 2016 Arbitration, arbitrability of those claims could

not have been decided by the 2016 Arbitration Award. Thus, he argues he cannot be collaterally

estopped by the 2016 Arbitration Award from compelling arbitration of Melnuk’s claims for

damages. Regardless, he argues an arbitrator, rather than a court, must decide whether he is

collaterally estopped from compelling a second arbitration.

Melnuk does not dispute the Operating Agreement and the Buy/Sell Agreement

contained delegation clauses requiring threshold questions of arbitrability be submitted to an

arbitrator. Rather, Melnuk argues he raised issues relating to Hillman’s alleged unauthorized

amendment of the “change of control” provision “at every step” of the 2016 Arbitration and the

2016 Arbitration Award concluded Melnuk’s claims for damages were beyond the scope of the

arbitration clauses in the Operating Agreement and the Buy/Sell Agreement. Thus, Melnuk

argues Hillman is collaterally estopped by the 2016 Arbitration Award from compelling

arbitration of his claims for damages. He argues the court, rather than an arbitrator, must decide

whether Hillman is collaterally estopped from compelling a second arbitration.

“Arbitration is a matter of contract under the Federal Arbitration Act” (“FAA”). Soars v.

Easter Seals Midwest, 563 S.W.3d 111, 114 (Mo. banc 2018) (internal citations omitted). “An

7 arbitrator’s authority over a particular dispute exists only ‘because the parties have agreed in

advance to submit such grievances to arbitration.’” Id. (quoting AT&T Techs., Inc. v. Commc’ns

Workers of Am., 475 U.S. 643, 648-49 (1986)). “[T]he first task of a court asked to compel

arbitration of a dispute is to determine whether the parties agreed to arbitrate that dispute.”

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985). The

United States Supreme Court has recognized “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,” through a delegation clause. Rent-A-Center, West, Inc. v.

Jackson, 561 U.S. 63, 68-69 (2010). See Am. Arbitration Ass’n, AAA Commercial Arbitration

Rule R-7(a) (2013) (delegating to an arbitrator “the power to rule on his or her own jurisdiction,

including any objections with respect to the existence, scope, or validity of the arbitration

agreement or to the arbitrability of any claim or counterclaim”).

Courts presume the parties intend courts, not arbitrators, to decide threshold disputes

about arbitrability, unless the parties “clearly and unmistakably” provide otherwise. State ex rel.

Pinkerton v. Fahnestock, 531 S.W.3d 36, 45 (Mo. banc 2017) (internal quotations omitted).

Where parties express their intent to arbitrate any dispute under the American Arbitration

Association (“AAA”) commercial arbitration rules, “clear and unmistakable” intent to delegate

threshold issues of arbitrability to an arbitrator is established. Id. at 48. Here, Melnuk and

Hillman do not dispute they delegated threshold issues of whether a claim, dispute, or

controversy related to the Operating Agreement or the Buy/Sell Agreement is arbitrable to an

arbitrator, as their agreements contain arbitration clauses that incorporate the AAA commercial

arbitration rules by reference. See id.

8 Melnuk and Hillman dispute whether the arbitrability of Melnuk’s claims for damages

related to Hillman’s unauthorized amendment of the “change of control” provision in the

Phantom Option Plan was decided in the 2016 Arbitration Award so Hillman is collaterally

estopped from compelling a second arbitration. “Collateral estoppel, [or] issue preclusion,

‘precludes relitigation of an issue previously decided and incorporated into an earlier

judgment.’” Johnson v. Mo. Dep’t of Health & Senior Servs., 174 S.W.3d 568, 580 (Mo. App.

W.D. 2005) (quoting Sexton v. Jenkins & Assocs., Inc., 152 S.W.3d 270, 273 (Mo. banc 2004)).

“For purposes of collateral estoppel, an arbitration award may constitute a final judgment on the

merits.” Graybar Elec. Co., Inc. v. Fed. Ins. Co., 567 F. Supp. 2d 1116, 1123 (E.D. Mo. 2008)

(internal citations omitted).

Melnuk and Hillman dispute who—an arbitrator or the court—determines whether

Hillman’s second arbitration demand is collaterally estopped by the 2016 Arbitration Award.

Hillman argues, because the parties have agreed through the delegation clauses in the Operating

Agreement and the Buy/Sell Agreement to arbitrate threshold questions of arbitrability, an

arbitrator must decide whether he is collaterally estopped from compelling a second arbitration

of Melnuk’s claims for damages. Melnuk argues a court must determine whether Hillman is

collaterally estopped from compelling a second arbitration of his claims for damages.

Missouri courts have not addressed who—an arbitrator or the court—determines the

collateral estoppel effect of a prior arbitration award. Because this is an issue of first impression,

we look to federal decisions for guidance. In AT&T Techs., Inc., 475 U.S. at 649, the Supreme

Court held that, “in deciding whether the parties have agreed to submit a particular grievance to

arbitration, a court is not to rule on the potential merits of the underlying claims.” In Howsam v.

Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85 (2002) (quoting John Wiley & Sons, Inc. v.

9 Livingston, 376 U.S. 543, 557 (1964)), the Supreme Court held “‘procedural’ questions which

grow out of the dispute and bear on its final disposition,’” including disputes regarding whether a

condition precedent to arbitrability has been fulfilled, are presumptively for an arbitrator to

decide. The Court held it is for an arbitrator to rule on allegations of “defense[s] to arbitrability,”

such as “time limits, notice, laches, [and] estoppel.” Id. at 84. (internal citations, quotations, and

alterations omitted) (emphasis added).

The District of Columbia Circuit applied the rules announced in AT&T Techs., Inc. and

Howsam to one party’s allegation that another party was collaterally estopped from demanding a

second arbitration by a prior arbitration award in W&T Travel Services, LLC v. Priority One

Servs., Inc., 69 F. Supp. 3d 158 (D.D.C. 2014). In W&T Travel Services, LLC, the District of

Columbia Circuit ruled that whether a second demand for arbitration is collaterally estopped

because the issues were decided in a prior arbitration award is for an arbitrator to decide. Id. at

171-72. The court reasoned collateral estoppel is an “affirmative defense[ ] directed to the

merits” of the underlying claims presented in the demand for arbitration. Id. at 171. Citing

AT&T Techs., Inc., 475 U.S. at 649 and Howsam, 537 U.S. at 84-85, the District of Columbia

Circuit decided it would be improper for the court to address whether a second arbitration

demand was collaterally estopped by a prior arbitration award, as to do so “would constitute a

rul[ing] on the potential merits of the underlying claims.” Id. at 171-72 (internal quotations

omitted) (alteration in original). Accordingly, the court held the merits of an argument

challenging the scope of the issues resolved in a prior arbitration award “must be presented to

and resolved by [a] . . . second arbitration proceeding.” Id. at 171.

Just as in W&T Travel Services, LLC, any claim by Melnuk that the 2016 Arbitration

Award collaterally estops Hillman from compelling a second arbitration cannot be properly

10 considered by a court. Whether the 2016 Arbitration resolved Melnuk’s claims for possible

damages arising from Hillman’s unauthorized amendment of the “change of control” provision

in the Phantom Option Plan, as Melnuk contends, or just those claims regarding which of the

contingent liability adjustments in the Buy/Sell Agreement were valid, as Hillman contends, is a

merits issue. Therefore, we leave any evaluation of Melnuk’s collateral estoppel defense to

Hillman’s second arbitration demand to an arbitrator so as not to “rul[e] on the potential merits

of the underlying claims.” Id. at 172.

The District of Columbia Circuit’s holding in W&T Travel Services, LLC’s is consistent

with other federal circuit courts that have addressed this issue. See Citigroup, Inc. v. Abu Dhabi

Inv. Auth., 776 F.3d 126, 131 (2d Cir. 2015) (holding the claim and issue preclusive effect of

prior arbitration awards are not questions of arbitrability because they, like other affirmative

defenses, are legal defenses to the opposing party’s claims and are themselves a component of

the dispute on the merits); Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1128 (9th

Cir. 2000) (holding the res judicata effect of a prior arbitration award on a subsequent arbitration

is an issue to be determined by an arbitrator “because res judicata is a legal defense that is

necessarily intertwined with the merits”); John Hancock Mut. Life Ins. Co. v. Olick, 151 F.3d

132, 140 (3d Cir. 1998) (holding that a “res judicata objection based on [a] prior arbitration is an

issue to be arbitrated and is not to be decided by the courts.”); Emp’rs Ins. Co. of Wausau v.

OneBeacon Am. Ins. Co., 744 F.3d 25, 27 (1st Cir. 2014) (internal citations, quotations, and

alterations omitted) (“there is broad agreement among the circuit courts that the effect of an

arbitration award on future awards is properly resolved through arbitration.”); Indep. Lift Truck

Builders Union v. NACCO Materials Handling Grp., Inc., 202 F.3d 965, 968 (7th Cir. 2000)

(internal citations and quotations omitted) (“[T]he preclusive effect of the first arbitrator’s

11 decision is an issue for a later arbitrator to consider.”); Oil, Chem. & Atomic Workers Int’l

Union, Local 4-367 v. Rohm & Haas, Tex. Inc., 677 F.2d 492, 494 (5th Cir. 1982) (internal

citations and quotations omitted) (“Whether [a prior arbitration] award can be given an effect

akin to res judicata or stare decisis with regard to future disputes that may arise between the

parties” is not for the courts to decide. “If the parties do not agree, that issue itself is a proper

subject for arbitration.”).

The cases Melnuk cites are easily distinguishable. Melnuk cites Cooper v. Yellow

Freight Sys., Inc., 589 S.W.2d 643, 645 (Mo. Ap. E.D. 1979) and Pratt v. Purcell Tire & Rubber

Co., Inc., 846 S.W.2d 230, 233 (Mo. App. E.D. 1993) to argue a party is barred from asserting a

claim identically presented and determined in a prior arbitration proceeding. He also cites and

Macomber v. MacQuinn-Tweedie, 834 A.2d 131, 136-37 (Me. 2003) for the proposition that

arbitration “is not intended to afford a litigant the opportunity to use arbitration to revisit a

dispute that has been previously resolved.” Here, by contrast, Hillman claims the 2016

Arbitration Award declined to consider and resolve Melnuk’s claims for damages.3 Melnuk also

cites New York State Ass’n for Retarded Children, Inc. v. Carey, 456 F. Supp. 85, 96 (E.D.N.Y.

1978) to argue the collateral estoppel effect of a prior arbitration award “is a question for the

court, not for the arbitrator before whom the point is sought to be relitigated.” However, to the

extent Melnuk claims Carey broadly stands for the proposition that the court can rule on the

merits of the plaintiff’s affirmative defense in determining arbitrability, that reading is foreclosed

by the Supreme Court’s decision in AT&T Techs. Inc., 475 U.S. at 649 that a court should not

rule on the merits of underlying claims when deciding whether the parties agreed to submit a

3 We note Macomber v. MacQuinn-Tweedie, 834 A.2d 131, 136-37 (Me. 2003) did not even involve the application of issue preclusion principles to a prior arbitration award; rather, it involved the application of issue preclusion principles to a prior judgment entered by a trial court following a trial.

12 dispute to arbitration and Howsam, 537 U.S. at 84-85 that procedural questions bearing on a

dispute’s final disposition must be decided by an arbitrator. Further, none of the cases Melnuk

cites involved interpretation of the FAA or AAA commercial arbitration rules.

An arbitrator must decide whether Hillman is collaterally estopped by the 2016

Arbitration Award from compelling arbitration of Melnuk’s claims for damages not because the

parties agreed to submit threshold questions of arbitrability to an arbitrator but because

evaluating Melnuk’s collateral estoppel defense is a “‘procedural’ question[ ] which grow[s] out

of the dispute and bear[s] on its final disposition.” See Howsam, 537 U.S. at 84-85. Thus, the

merits of Melnuk’s argument regarding the scope of the 2016 Arbitration Award and,

specifically, whether the 2016 Arbitration Award resolved Melnuk’s claims for damages relating

to Hillman’s unauthorized amendment of the “change of control” provision in the Phantom

Option Plan must be presented to an arbitrator and resolved by a second arbitration proceeding.

Having decided an arbitrator must determine the collateral estoppel effect of the 2016 Arbitration

Award, we decline to address the merits of Melnuk’s collateral estoppel defense as to why

Hillman should not prevail in the second arbitration and instead leave that matter to an arbitrator.

Point I granted.

Point II

In his second point, Hillman argues, even if the arbitration agreements contained no valid

delegation clauses, Melnuk’s claims should be arbitrated because the Operating Agreement and

the Buy/Sell Agreement contain broad arbitration clauses and Melnuk’s claims “touch[ ] matters

covered by” those contracts. Because we find an arbitrator must determine the collateral

estoppel effect of the 2016 Arbitration Award, we need not address the issue raised in Hillman’s

second point.

13 Point II is denied.

Conclusion

The trial court’s order overruling Hillman’s motion to compel arbitration is reversed, and

the trial court shall stay the case and order the parties to proceed to arbitration.

_______________________________ Philip M. Hess, Presiding Judge

Kurt S. Odenwald, J. and Lisa P. Page, J. concur.