Court of Appeals of Missouri, Eastern District, Second Division
Appeal from the Circuit Court of the City of St. Louis. Honorable Christopher E. McGraugh.
FOR APPELLANT: Gregory T. Cook, McAnany, Van Cleave & Phillips, P.A., St. Louis Missouri.
FOR RESPONDENT: David R. Angle, Matthew C. Wilson -- Co-Counsel, Angle Wilson Law, LLC, Columbia, Missouri; Dale K. Irwin -- Co-Counsel, Gina M. Chiala -- Co-Counsel, Slough, Connealy, Irwin & Madden LLC, Kansas City, Missouri.
Philip M. Hess, Judge. Sherri B. Sullivan, P.J. and Mary K. Hoff, J. concur.
Philip M. Hess, J.
Motormax Financial Services Corporation (Motormax) appeals the denial of its motion to compel arbitration of a counterclaim asserted against it by Arnold Knight after Motormax repossessed his vehicle and filed a collection action against him. In two points, Motormax claims the trial court erred in denying its motion based on its finding that the arbitration agreement was unenforceable and that Motormax waived its right to arbitration. We affirm.
On June 28, 2012, Arnold Knight entered into a contract with Motormax to finance a title loan that was secured by his Ford F-150 truck. The annual percentage rate on the loan was 93.5%. During the loan closing, which was videotaped and conducted by a Motormax representative, Mr. Knight was asked to sign an arbitration agreement (Agreement). The Agreement provided that any claims or disputes between the parties " shall be settled by binding arbitration." The Agreement also gave Motormax the right to repossess Mr. Knight's vehicle if he failed to comply with the provisions of the contract and pursue its claims in court without waiving arbitration. In April 2013, Motormax repossessed Mr. Knight's vehicle after he allegedly defaulted on the contract. In September 2013, Motormax filed a collection action in the trial court against Mr. Knight seeking $1,820.85 (the alleged balance due on the contract), plus interest, costs, and attorney's fees. In February 2014, Mr. Knight filed an answer and a class action counterclaim, alleging that Motormax had violated the notice requirements of § § 400.9-611-400.9-614 RSMo, in connection with the repossession of his vehicle. The counterclaim also alleged that Motormax had violated the Merchandising Practices Act, § § 407.010 et seq.
In April 2014, Motormax filed a motion to compel arbitration of the counterclaim, which the trial court denied on October 10, 2014. Less than a month later, Motormax dismissed its collection action against Mr. Knight without prejudice. Motormax now appeals the trial court's denial of its motion to compel arbitration.
Motion to Dismiss
Before addressing the merits of the appeal, we consider Mr. Knight's contention that we lack jurisdiction to consider this appeal because it was not timely filed. In his motion to dismiss the appeal, taken with the case, Mr. Knight asserts that the appeal is untimely because Motormax did not file its notice of appeal within ten days after the trial court entered its " Order and Judgment" denying the motion to compel arbitration. Specifically, he claims the judgment was final and appealable on October 10, 2014, the day it was entered, pursuant to § 435.440.1. Motormax counters that the ten-day ...