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Nicholson v. Surrey Vacation Resorts, Inc.

Court of Appeals of Missouri, Southern District, Second Division

February 4, 2015

MATTHEW ALEXANDER NICHOLSON and JAILYN MARCHAI NICHOLSON, Plaintiffs-Respondents,
v.
SURREY VACATION RESORTS, INC., Defendant-Appellant

Page 359

[Copyrighted Material Omitted]

Page 360

APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY. Honorable Michael J. Ligons, Associate Circuit Judge.

APPEAL NO. SD32745 REVERSED AND REMANDED; APPEAL NO. SD33075 DISMISSED.

For Appellant: Richard L. Schnake, Daniel K. Wooten, and Bryan D. Fisher, NEALE & NEWMAN, L.L.P., Springfield, Missouri.

For Respondents: Noah K. Wood, and Ari N. Rodopoulos, WOOD LAW FIRM, L.L.C., Kansas City, Missouri.

GARY W. LYNCH, J. -- Opinion author. MARY W. SHEFFIELD, P.J. -- concurs. NANCY STEFFEN RAHMEYER, J. -- concurs.

OPINION

GARY W. LYNCH, J.

Page 361

Surrey Vacation Resorts, Inc. (" Surrey" ), in Appeal No. SD32745, appeals the denial of its Renewed Motion to Compel Arbitration (" first appeal" ), and in Appeal No. SD33075, Surrey appeals the denial of its Second Renewed Motion to Compel Arbitration (" second appeal" ). The appeals have been consolidated for all purposes. Surrey raises six points. Finding merit in Surrey's second point, which revolves around the burden of proof applied by the trial court in deciding Surrey's Renewed Motion to Compel Arbitration, we reverse and remand in the first appeal. Finding all matters concerning Surrey's Second Renewed Motion to Compel Arbitration to be a nullity, we dismiss the second appeal.

Page 362

Factual and Procedural Background

The interlocutory nature of these appeals has created an interesting situation in which the factual background, relying primarily upon the allegations in the petition, is rather underdeveloped and the procedural background is rather overdeveloped by the trial court's multiple rulings on multiple motions all raising the same issue. The petition alleges that Matthew Alexander Nicholson and Jailyn Marchai Nicholson (" the Nicholsons" ) purchased from Surrey an " interval ownership interest" (a timeshare) in Surrey Grand Crown Resort Condominium, that Surrey indicated to the Nicholsons that their share would be bought back at any time if they became dissatisfied, and that Surrey failed to live up to that promise. The Nicholsons further alleged in their petition that they executed a document entitled " Surrey Vacation Resorts, Inc. Interval Ownership Contract and Installment Note" on or about August 15, 2010, for the sum of $8,700 and a processing fee of $489, and that they resided at a specified address in Huntsville, Alabama. As pertinent to these appeals, Surrey filed a motion asking the trial court to compel arbitration. This led to the following procedural background:

February 24, 2012

Surrey filed its Motion to Compel Arbitration.

Surrey's Motion to Compel Arbitration is dismissed

March 13, 2013

by docket entry: " Order" " Case called. No

appearances. All pending motions are dismissed.

Case set for dismissal docket."

May 1, 2013

Surrey files its Renewed Motion to Compel

May 20, 2013

Arbitration. Hearing held on Surrey's Renewed

Motion to Compel Arbitration.

At the hearing on the Renewed Motion to Compel Arbitration, Surrey's only witness was Melinda Goodwin, the chief financial officer of Surrey Vacation Resorts, Inc. Goodwin testified that the petition filed by the Nicholsons (which was admitted into evidence) referred to a document entitled " Surrey Vacation Resorts, Inc. intevnal [sic] ownership contract and installment note." Goodwin had reviewed Surrey's files and found what she believed was that document. Surrey marked that document as Exhibit 2 and moved to admit it into evidence. Counsel for the Nicholsons offered " [n]o objection, other than to the extent of trying to identify whose signatures appear." It was admitted over that objection. Although Goodwin had never met the Nicholsons before and had not personally seen them sign Exhibit 2, Surrey kept a copy of the identification documentation presented by the signatories at the time the document was signed and had the contract notarized. In an acknowledgment, the notary public certified that Matthew Alexander Nicholson and Jailyn Marchai Nicholson, husband and wife, appeared in person and " stated that he/she had executed the foregoing Contract for the consideration and purposes therein mentioned and set forth[.]" Goodwin believed that Exhibit 2 was the contract referred to by plaintiffs in their petition because the titles, names, addresses, and dates all matched the allegations set forth in the petition.[1]

Page 363

Exhibit 2 contains a mandatory arbitration provision. Based on this provision, counsel for Surrey argued that the trial court should compel arbitration. Counsel for the Nicholsons argued that the provision should not be enforced because Surrey had failed to meet their evidentiary burden to produce competent evidence of a valid arbitration provision between the parties because Goodwin testified on " pure assumption" that the plaintiff-Nicholsons were the same Nicholsons that signed the document. The Nicholsons' counsel advised the trial court that two Supreme Court of Missouri cases (Brewer v. Mo.Title Loans, 364 S.W.3d 486 (Mo. banc 2012), and Robinson v. Title Lenders, Inc., 364 S.W.3d 505 (Mo. banc 2012)) put this burden on Surrey and concluded that the only way to proceed was for Surrey to establish the identity of the signatories of Exhibit 2 by taking plaintiffs' depositions and filing interrogatories.

In making its ruling, the trial court stated that there was nothing to establish that the plaintiffs were " a party to the contract [] admitted into evidence, other than that they have matching names." The trial court denied the motion to compel arbitration on that basis alone. Accordingly, the following occurred:

Surrey's Renewed Motion to Compel Arbitration is

denied by docket entry: " Order" " Case called.

May 20, 2013

Motion to Compel Arbitration is taken up. Evidence

presented. Motion to Compel Arbitration is denied.

So ordered."

Surrey files a Notice of Appeal with Taney County

May 23, 2013

Circuit Clerk giving rise to the first appeal in

this court.


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