Submitted February 11, 2015.
Appeal from United States District Court for the Western District of Missouri - Springfield.
For LoRoad, LLC, Plaintiff - Appellant: Stephanie E. L. McCleery, K & L GATES LLP, Portland, OR; Bryan O. Wade, HUSCH & BLACKWELL, Springfield, MO.
For Global Expedition Vehicles, LLC, Defendant - Appellee: Andrew K. Bennett, Austin Jay Preston, CARNAHAN & EVANS, Springfield, MO.
Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
LOKEN, Circuit Judge.
LoRoad, L.L.C., based in Oregon, negotiated to have Global Expedition Vehicles, L.L.C. (GXV), based in Missouri, build a custom expedition vehicle. With the project underway, the relationship broke
down. LoRoad filed this diversity action to compel arbitration of the dispute, invoking the arbitration provision in a written Assembly Agreement allegedly entered into by the parties. GXV denied a valid, enforceable agreement to arbitrate. Ruling on cross-motions for summary judgment, the district court held that LoRoad failed to accept the Assembly Agreement signed by GXV; therefore, the court could not enforce the arbitration provision in that Agreement. LoRoad appeals the resulting adverse summary judgment. We affirm.
In September 2012, wilderness photographer Rodney Lough on behalf of LoRoad began negotiations with GXV for construction of a custom expedition vehicle to be used by LoRoad for Lough's off-road photography expeditions. On October 1, GXV sent a proposed Assembly Agreement for Lough's review. The Agreement contained terms sufficiently definite and complete that, had LoRoad accepted, it would have been a binding contract. The terms included a " nonrefundable deposit of $120,000 to be paid at contract signing," and an arbitration clause. GXV also emailed Lough that it would purchase a 2001 BAE 6x6 truck for $110,000 to serve as the base for Lough's custom vehicle. Each subsequent version of the Assembly Agreement included this specific truck in calculating the total cost to build.
Rather than accept the October 1 proposed Agreement, Lough returned a marked-up copy on October 9. GXV sent a revised Agreement on October 22, and after further negotiations, another revised Agreement on October 31. On November 2, LoRoad wired $120,000 to GXV, which René Van Pelt of GXV acknowledged on November 5. On November 16, Lough faxed GXV the October 31 draft Agreement with relatively minor handwritten notations and changes. In the space for LoRoad's signature at the end of the Agreement, Lough wrote " LeeAnna Lough" (his wife and also a LoRoad principal) above the LoRoad signature line, and " By:" below that line.
On November 28, Lough emailed, " We still have unfinished business." Van Pelt responded with answers to " notes and questions that we received by fax on November 16th." On December 6, GXV sent a receipt for the $120,000 with the subject line, " Contract Deposit," and emailed a status report on acquiring the base vehicle. On December 11, after further communications, Van Pelt sent LoRoad a revised Build List, which was " Exhibit A" to the Assembly Agreement and listed specifications for the vehicle. Van Pelt noted, " Once I get a thumbs up on the Build List, I will revise the contract and email to you as a complete document set." On December 15, Lough emailed Van Pelt, " I am still not feeling comfortable with how ...