Mooneyham v. BRSI, LLC

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 17, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DAVID MOONEYHAM; KRYSTINA
MOONEYHAM,

Plaintiffs - Appellees,

v. No. 15-6221
(D.C. No. 5:15-CV-00212-M)
BRSI, LLC, d/b/a Big Red Kia; EXETER (W.D. Okla.)
FINANCE CORP,

Defendants - Appellants.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before KELLY, PHILLIPS, and MORITZ, Circuit Judges.
_________________________________

Plaintiff David Mooneyham purchased a used Dodge Ram from defendant Big

Red Kia (Big Red). Defendant Exeter Finance (Exeter) provided the financing. Two

years later, plaintiffs1 brought suit against defendants for claims relating to the Ram.

Citing an arbitration agreement that Mooneyham and Big Red executed, defendants

moved to compel arbitration. Plaintiffs objected, arguing that the arbitration

agreement doesn’t apply to their claims. The district court agreed and denied

*
This order and judgment isn’t binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
1
Plaintiff Krystina Mooneyham appears to be only a nominal plaintiff.
defendants’ motion. Because we conclude the arbitration agreement applies to

plaintiffs’ claims, we reverse.

BACKGROUND

Mooneyham visited Big Red on February 9, 2013, to purchase a new vehicle.

He planned to apply the trade-in value of his old car and a $500 down payment

toward the purchase price and to finance any remaining balance due. But based on

Mooneyham’s credit history, Big Red declined to facilitate financing for a new

vehicle. So Mooneyham decided instead to purchase a used 2006 Dodge Ram from

Big Red, along with an extended service plan and guaranteed asset protection (GAP)

coverage. The total purchase price was $20,739.50, itemized as follows:

- Vehicle Purchase Price: $17,980.00
- Extended Service Plan: $2,500.00
- GAP Coverage: $500.00
- Fees: $259.50
- Down Payment: ($500.00)

Mooneyham received no credit toward the purchase for trading in his old car.

Thus, he required financing for the total purchase price of $20,739.50. Mooneyham

and Big Red memorialized these terms in two documents executed on February 9:

(1) a Retail Purchase Agreement/Bill of Sale (RPA); and (2) a Retail Installment Sale

Contract (RISC). Although the documents contain largely overlapping terms, only the

RISC sets forth the deal’s financing terms.

The RISC states that Big Red is the creditor, but further provides that Big Red

“assigns its interest in this contract to EXETER FINANCE CORP[.] (Assignee)

under the terms of [Big Red’s] agreement(s) with Assignee.” App. 74. But Exeter

2
wasn’t a party to the RISC. And nothing in the RISC suggests that the sale was

contingent upon Exeter’s agreeing to the RISC’s terms.

Unlike the RISC, the RPA does contain a financing contingency:

10. Motor Vehicle Delivery Agreement: If Vehicle is delivered to
Buyer before this sale is complete, subject to obtaining satisfactory
financing arrangements, then a “Motor Vehicle Delivery Agreement”
shall become a part of this Agreement.

Id. at 73. And Big Red and Mooneyham executed just such an agreement—titled a

“Motor Vehicle ‘Spot Delivery’ Agreement”—“as a prelude to an exchange of

ownership of the vehicle(s) described herein; subject to Dealer finding a lending

institution willing to purchase the Retail Installment Contract executed by the

parties.” Id. at 266.

Mooneyham and Big Red also entered into an “Agreement to Arbitrate” that

stated they would “settle by binding arbitration any dispute between them regarding:

(1) the purchase by [Mooneyham] of [the Ram]; (2) any products and services

purchased in conjunction with [the Ram]; (3) any financing obtained in connection

with the transaction; and/or (4) any other dispute related to the purchase/lease

transaction.” Id. at 267.

Finally, Mooneyham and Big Red executed a GAP Addendum, an Extended

Service Agreement, and a Vin Etch Protection Warranty. Defendants assert that the

parties also executed an Odometer Disclosure Statement and an As-Is

Acknowledgment. Plaintiffs don’t dispute this assertion.

As provided for in the February 9 Spot Delivery Agreement, Mooneyham

3
drove away in the Ram the same day these documents were executed. But Exeter

rejected the proposed financing terms and declined to purchase Big Red’s interest in

the RISC. On Monday, February 11, Big Red called Mooneyham to inform him that

the financing arrangement had “fallen through” and that he needed to sign additional

paperwork. Id. at 155.

Mooneyham returned to the dealership, and Big Red presented him with

Exeter’s proposed financing arrangement. Exeter agreed to loan Mooneyham only

$19,740 for the purchase, rather than $20,739.50. And although the financed amount

decreased by $1,000, the monthly payments increased from approximately $500 to

$516. Mooneyham and Big Red signed a second RISC containing these terms.

Because Exeter agreed to finance $999.50 less than originally contemplated,

Mooneyham and Big Red also executed a new extended service plan priced at

$1,500.50 (exactly $999.50 less than the initial plan). The initial plan covered the

Ram for 72 months/85,000 miles; the substitute plan lasted for only 36

months/36,000 miles. The vehicle purchase price, GAP coverage, and fees remained

unchanged. Mooneyham and Big Red executed a new Retail Purchase Agreement

setting forth these terms. In addition to executing a new RPA, RISC, and extended

service plan, Mooneyham and Big Red re-executed several documents they

previously executed on February 9: an Agreement to Furnish Insurance Policy, a

GAP Addendum, and a Spot Delivery Agreement. They didn’t re-execute any of the

other original documents, including, critically, the arbitration agreement.

Two years later, on February 9, 2015, plaintiffs filed suit against defendants.

4
They alleged Big Red and Exeter violated various federal lending and consumer

protection laws during the purchase and that Big Red failed to disclose that the Ram

allegedly had certain defects. Defendants removed the action to federal court and

moved to compel arbitration of all claims, relying on the February 9, 2013 arbitration

agreement. Plaintiffs objected, arguing that (1) the arbitration agreement was

rescinded by the February 11 agreements and wasn’t incorporated into the new

agreements; (2) Mooneyham didn’t assent to the arbitration agreement; and (3) the

arbitration agreement is unconscionable.

The district court agreed with plaintiffs that the arbitration agreement doesn’t

cover their claims. Specifically, the district court concluded that the parties entered

into two separate transactions and that while the arbitration agreement covered only

the first transaction, plaintiffs’ claims arise only from the second transaction.

Accordingly, it denied defendant’s motion to compel arbitration without addressing

plaintiffs’ alternative arguments. Defendants appeal.

DISCUSSION

I. The arbitration agreement applies to plaintiffs’ claims.

We generally review de novo the denial of a motion to compel arbitration.

Nesbitt v. FCNH, Inc., 811 F.3d 371, 376 (10th Cir. 2016). But plaintiffs assert that

we should instead review the district court’s denial of defendants’ motion for clear

error. See Naimie v. Cytozyme Labs., 174 F.3d 1104, 1111 (10th Cir. 1999)

(explaining that we review primarily factual questions for clear error).

5
 Plaintiffs’ argument rests on the premise that a contract (presumably, the

arbitration agreement) can’t be formed without a meeting of the minds—the

existence of which presents a question of fact under Oklahoma law. See O’Neal v.

Harper, 75 P.2d 879, 882 (Okla. 1937); Gentry v. Fife, 155 P. 246, 247 (Okla.

1916).2 But there’s no question that the parties here formed a contract. Indeed,

plaintiffs concede Mooneyham and Big Red entered into the arbitration agreement;

they simply dispute its applicability to their claims. See Aplee. Br. 13 (“The

[arbitration agreement] cited and relied upon by [defendants] only applies to the

transaction that was not rescinded . . . .”). Thus, the district court’s conclusion that

the arbitration agreement doesn’t apply to plaintiffs’ claims turns on the scope of that

agreement, not its existence. And the scope of the agreement presents a legal

question that we review de novo. Nesbitt, 811 F.3d at 376.

We begin with the language of the arbitration agreement. See Okla. Stat. tit.

15, § 155 (“When a contract is reduced to writing, the intention of the parties is to be

ascertained from the writing alone, if possible . . . .”). On February 9, 2013,

Mooneyham and Big Red agreed “to settle by binding arbitration any dispute

between them regarding: (1) the purchase by [Mooneyham] of [the Ram]; (2) any

products and services purchased in conjunction with [the Ram]; (3) any financing

2
Oklahoma law governs this appeal. See First Options of Chi., Inc. v. Kaplan,
514 U.S. 938, 944 (1995) (“When deciding whether the parties agreed to arbitrate a
certain matter (including arbitrability), courts generally . . . should apply ordinary
state-law principles that govern the formation of contracts.”).
6
obtained in connection with the transaction; and/or (4) any other dispute related to

the purchase/lease transaction.” App. 42.

On its face, this comprehensive provision appears to cover each of plaintiffs’

claims; those claims all relate to “the purchase by [Mooneyham] of [the Ram].” Id.

And several claims also relate to the “financing obtained in connection with the

transaction.” Id. But the district court concluded that the agreement doesn’t apply to

plaintiffs’ claims. It reasoned that (1) the parties entered into two separate

transactions—one on February 9, 2013, and another on February 11, 2013;

(2) plaintiffs’ claims relate solely to the second transaction; and (3) the arbitration

agreement doesn’t apply to the second transaction.

The key premise underlying the district court’s conclusion is that the parties

entered into two separate transactions for the purchase of the Ram. We disagree. The

parties’ conduct, and they documents they executed, evince a single transaction

occurring over two days.

To begin, we agree with defendants that the parties didn’t finalize the purchase

on February 9. Instead, the purchase was contingent upon Exeter’s approval of the

financing terms. This strongly suggests the parties began the transaction—but didn’t

conclude it—on February 9.

The February 9 Spot Delivery Agreement and RPA, working in conjunction,

create this contingency. The RPA states, “If Vehicle is delivered to Buyer before this

sale is complete, subject to obtaining satisfactory financing arrangements, then a

‘Motor Vehicle Delivery Agreement’ shall become a part of this Agreement.” Id. at

7
261. The RPA thus expressly contemplates and incorporates the February 9 Spot

Delivery Agreement.

Mooneyham and Big Red executed that agreement “as a prelude to an

exchange of ownership of the [Ram]; subject to Dealer finding a lending institution

willing to purchase the Retail Installment Contract executed by the parties.” Id. at

266. And it required Mooneyham to “return [the] vehicle within 24 hours of any

verbal or written notice that the deal [could not] be completed.” Id. Finally, the

February 9 Spot Delivery Agreement contains Mooneyham’s signed

acknowledgement that the Spot Delivery Agreement was necessary because, as of the

date he signed it, his “loan ha[d] not been approved.” Id. These provisions all

indicate that the purchase wasn’t final on February 9.

Nevertheless, plaintiffs contend that the February 9 agreements weren’t

contingent. They assert that this is evident from the parties’ decision to execute a

second Spot Delivery Agreement on February 11. Because Exeter proposed the

modified financing terms, plaintiffs argue, there was no need to make the February

11 agreement contingent on Exeter’s acceptance of those terms. But regardless of

whether the February 11 Spot Delivery Agreement was strictly necessary,

Mooneyham and Big Red apparently chose not to assume that Exeter would agree to

the financing terms merely because it proposed them. That cautious approach didn’t

retroactively undo the contingent nature of the February 9 agreements.

Plaintiffs also argue that the February 9 agreements weren’t contingent

because the RISC (the financing agreement) doesn’t contain a contingency provision.

8
It’s true that the RISC, standing alone, doesn’t create a contingency. And the RISC

does state, “This contract contains the entire agreement between you and us relating

to this contract.” Id. at 74. But we agree with defendants that this provision (which

plaintiffs call a merger clause) applies only to the RISC itself—that is, the clause

precludes incorporation of other agreements into the RISC. But the clause doesn’t

preclude incorporation of other agreements into the transaction as a whole.3

Moreover, under Oklahoma law, the RISC can’t be read in a vacuum. “Several

contracts relating to the same matters, between the same parties, and made as parts of

substantially one transaction, are to be taken together.” Okla. Stat. tit. 15, § 158. See

also Strickland v. Am. Bakery & Confectionery Workers Union & Indus. Nat’l

Welfare Fund, 527 P.2d 10, 13 (Okla. 1974) (“[W]here two written instruments refer

to the same subject matter and on their face show that each was executed as a means

of carrying out the intent of the other, both should be construed as one contract.”). By

its terms, the February 9 Spot Delivery Agreement plainly operates alongside the

3
For the same reason, we reject plaintiffs’ argument that this merger clause
and a similar clause in the RPA preclude incorporation of the arbitration agreement
into the overall transaction. And to the extent the extra-jurisdictional cases that
plaintiffs cite relied on merger clauses in refusing to enforce arbitration agreements,
we therefore decline to follow them. See Crown Pontiac, Inc. v. McCarrell, 695 So.
2d 615, 618 (Ala. 1997) (giving force to a merger clause in a later-executed version
of same document); Duval Motors Co. v. Rogers, 73 So. 3d 261, 264, 267-68 (Fla.
Dist. Ct. App. 2011) (refusing to apply principle that documents executed
contemporaneously should be read together). Plaintiffs also cite Krueger v.
Heartland Chevrolet, Inc., 289 S.W.3d 637, 639-40 (Mo. Ct. App. 2009), which the
Missouri Supreme Court later overruled using the same reasoning we apply here. See
Johnson ex rel. Johnson v. JF Enters., 400 S.W.3d 763, 769 (Mo. 2013). Finally,
plaintiffs cite Rugumbwa v. Betten Motor Sales, 136 F. Supp. 2d 729, 733 (W.D.
Mich. 2001), which relied on a Michigan law not applicable here.

9
RISC. It states that it is “incorporated by reference into all documents relating to the

purchase of [the Ram], including the Retail Purchase Agreement and the Retail

Installment Contract.” App. 266 (emphasis added).

Although the RISC doesn’t reciprocate this reference, that omission doesn’t

override the intent that Mooneyham and Big Red clearly expressed by executing the

agreements together. See Glover v. Cornish (In re Estate of Carlson), 367 P.3d 486,

491 n.1 (Okla. 2016) (holding that § 158’s rule of construction applies “although the

instruments do not in terms refer to each other” (emphasis omitted) (quoting Pauly v.

Pauly, 176 P.2d 491, 495 (Okla. 1946))). Moreover, the RPA—a key document in the

purchase—does expressly reference and incorporate the February 9 Spot Delivery

Agreement.

Finally, as a practical matter, ignoring the conditional language and effect of

the February 9 Spot Delivery Agreement would render its execution pointless. Its

sole purpose was to let Mooneyham drive away in the Ram, despite the fact that

Exeter hadn’t yet approved the financing terms. If the February 9 purchase wasn’t

contingent on Exeter’s approval, then the parties signed the February 9 Spot Delivery

Agreement for no reason—an interpretive result that we must avoid. McGinnity v.

Kirk, 362 P.3d 186, 199 (Okla. 2015) (“A contract is to be construed as a whole,

giving effect to each of its parts, and not construed so as to make a provision

meaningless, superfluous or of no effect.” (footnote omitted)).

10
 Accordingly, we conclude that the contingent nature of the February 9

purchase suggests the parties continued the same transaction into February 11, rather

than starting a new one on that date.

That conclusion is bolstered by the fact that, as defendants note, the vehicle’s

ownership changed hands only once. Although the February 9 Spot Delivery

Agreement was “executed as a prelude to an exchange of ownership,” App. 266,

Mooneyham purchased insurance for the Ram on February 11 in his capacity as its

owner. And on February 9, Mooneyham and Big Red executed an Odometer

Disclosure Statement, which was required to reflect the Ram’s mileage “at the time

of transfer of [the] vehicle.” Okla. Stat. tit. 47, § 1107.1.

Nothing in the record indicates the parties transferred ownership back to Big

Red on February 11 and then re-transferred it to Mooneyham. They didn’t execute a

new Odometer Disclosure Statement showing the mileage the Ram accrued between

February 9 and 11. Big Red didn’t demand return of the Ram—an option the

February 9 Spot Delivery Agreement contemplates if “the deal cannot be completed.”

App. 266. And Mooneyham didn’t demand return of his trade-in vehicle.4

4
Our conclusion that the vehicle’s ownership changed hands only once—on
February 9—seems supported by Okla. Stat. tit. 47, § 1-141. Under that statute,
ownership is deemed to pass upon possession, despite the conditionality of sale: “[I]n
the event a vehicle is the subject of an agreement for the conditional sale or lease
thereof with a right of purchase upon performance of the conditions stated in the
agreement and with an immediate right of possession vested in the conditional
vendee or lessee, . . . then such conditional vendee or lessee . . . shall be deemed the
owner for the purpose of this Code.” § 1-141. Of course, neither party cites this
statute, and it isn’t essential to our decision.
11
 In concluding that the parties entered into two separate transactions, the

district court focused solely on the fact that they modified several terms after their

initial agreement on February 9. The district court identified these as (1) different

financing terms; (2) “[a] new and different Retail Purchase Agreement/Bill of

Sale[,] . . . which included a different total selling price;”5 and (3) a different

extended service plan. Id. at 156-57.

True, certain terms in the parties’ final agreement differ from those in their

initial agreement. But neither the district court nor plaintiffs bridge the gap between

that premise and their conclusion—that the parties entered into two transactions.

Instead, for the reasons discussed above, we conclude that the parties engaged in only

a single transaction. And that conclusion renders Sanford v. H.A.S., Inc., 136 F. Supp.

2d 1215, 1222 (M.D. Ala. 2001), which the district court relied on in concluding that

the arbitration agreement didn’t apply, inapposite.

In Sanford, plaintiff purchased a car from a dealership and signed an

arbitration agreement. The dealership gave plaintiff the right to return the car “should

he find the car to have problems.” Id. at 1218. The deal was final, but plaintiff could

revoke it at his option. And he did so two days later, when he claimed the car had

“too many problems” and returned it in exchange for return of his down payment. Id.

Two days after that, plaintiff returned to the dealership with another down payment

5
While the two RPAs list a different “balance due on delivery” (because that
amount includes the price of the extended service plan), they list the same “total
selling price” because the cash price of the vehicle and the GAP coverage price
didn’t change. App. 72, 260.
12
when the dealership told him the problems could be repaired. The next day, the

parties negotiated a new deal, and plaintiff re-purchased the car—this time without

signing an arbitration agreement. Id. at 1218-19. The court declined to compel

arbitration, id. at 1224, finding that plaintiff bought the car, returned it, and bought it

again, id. at 1222 (“It is undisputed that two sales actually occurred . . . .”). Those

two purchases amounted to two transactions. Here, by contrast, plaintiffs purchased

the car only once. Thus, the district court’s reliance on Sanford was misplaced.

Plaintiffs also cite an array of mostly extra-jurisdictional cases in which each

court declined to compel arbitration after the parties entered into an initial agreement

containing an arbitration clause but then executed a subsequent agreement lacking

one.6 But these cases are inapt for the same reason as Sanford: unlike the parties in

the cases plaintiffs cite, Big Red and Mooneyham conducted a single transaction

(albeit over multiple days).

Finally, plaintiffs argue that the Oklahoma Supreme Court’s recent decision in

Walker v. BuildDirect.com Technologies, Inc., 349 P.3d 549 (Okla. 2015), is

controlling. There, a consumer contract stated that it was subject to the seller’s

“Terms of Sale.” Walker, 349 P.3d at 551. The contract contained no such terms, but

6
See Dasher v. RBC Bank (USA), 745 F.3d 1111, 1113 (11th Cir. 2014);
Applied Energetics, Inc. v. NewOak Capital Mkts., LLC, 645 F.3d 522, 523, 526 (2d
Cir. 2011); Smith v. Steinkamp, 318 F.3d 775, 777-78 (7th Cir. 2003); Matterhorn,
Inc. v. NCR Corp., 763 F.2d 866, 870, 875 (7th Cir. 1985); Harold H. Huggins
Realty, Inc. v. FNC, Inc., 575 F. Supp. 2d 696, 700, 713 (D. Md. 2008); Harris v.
David Stanley Chevrolet, Inc., 273 P.3d 877, 879 (Okla. 2012); Davis v. KB Home of
S.C., Inc., 713 S.E.2d 799, 805-06 (S.C. Ct. App. 2011), aff’d in pertinent part,
vacated in part, No. 2011-199587, 2014 WL 2535489 (S.C. Jan. 29, 2014).
13
the seller asserted that the phrase referred to a document bearing that title on its

website. Citing an arbitration clause contained in the online document, the seller

sought to compel arbitration. Id. at 552. The Oklahoma Supreme Court held that the

contract didn’t incorporate the arbitration clause in the online document, id. at 554, in

large part because the purchasers didn’t “ha[ve] reasonable notice of and assent[] to

the terms to be incorporated,” id. at 553. But unlike the plaintiffs in Walker,

Mooneyham plainly had notice of the arbitration agreement; after all, he signed it.

Accordingly, Walker is inapplicable here.

Because we disagree with the district court’s conclusion that the parties

conducted two separate transactions, we conclude that the arbitration agreement

applies to the parties’ disputes. But even if we agreed the parties entered into two

transactions, the arbitration agreement’s plain language would still apply to

plaintiffs’ claims. By its terms, the agreement applies to disputes over “any financing

obtained in connection with the transaction” and “any other dispute related to the

purchase/lease transaction.” App. 42 (emphases added). Even if the parties entered

into two final, non-contingent financing or purchase agreements, this language covers

“any” such agreement, id.—not only those the parties signed on February 9.

Accordingly, we conclude that the arbitration agreement applies to plaintiffs’ claims.

II. The arbitration agreement isn’t unconscionable.

Alternatively, plaintiffs argue that we should affirm the district court’s order

because the arbitration agreement is unconscionable. Although the district court

14
didn’t reach this issue, we conclude as a matter of law that the agreement isn’t

unconscionable and therefore decline to affirm on this basis.

Plaintiffs first argue the agreement is unconscionable because it provides,

“[T]he Parties agree they are not waiving their right to exercise any self-help or

provisional remedy available by law or pursuant to an agreement between them.”

App. 42. Relying solely on California law, plaintiffs argue this provision renders the

agreement unconscionable because it’s one-sided: Big Red could repossess the car

while still seeking arbitration, but plaintiffs have no corresponding self-help remedy.

See Trompeter v. Ally Fin., Inc, 914 F. Supp. 2d 1067, 1073-74 (N.D. Cal. 2012)

(characterizing arbitration agreement as unconscionable in part because it allowed

“creditor [to] repossess a vehicle or file suit to collect a debt owed by a defaulting car

buyer,” while providing “no corresponding remedy” to debtor).7 But even if

California law were instructive in Oklahoma, subsequent California Supreme Court

decisions have called Trompeter into question. See Sanchez v. Valencia Holding Co.

353 P.3d 741, 756 (Cal. 2015) (“[W]e see nothing unconscionable about exempting

the self-help remedy of repossession from arbitration.”); Pinnacle Museum Tower

Ass’n v. Pinnacle Mkt. Dev. (US), LLC, 282 P.3d 1217, 1232 (Cal. 2012) (“A contract

term is not substantively unconscionable when it merely gives one side a greater

benefit . . . .”). Plaintiffs cite no Oklahoma law supporting their argument, and they

7
Defendants argue that we should decline to consider this specific
unconscionability argument because plaintiffs failed to advance it below. But we’re
free to affirm on any basis that finds support in the record, even if plaintiffs didn’t
present it to the district court. See Felix v. Lucent Techs., Inc., 387 F.3d 1146, 1165
(10th Cir. 2004).
15
wholly fail to explain why one-sided self-help remedies render an arbitration

agreement inherently unconscionable. Accordingly, we reject this argument.

Plaintiffs next argue that the arbitration agreement is unconscionable because

of its cost structure. They assert arbitration costs can range from $10,000 to $50,000,

which they maintain is beyond their means. But as defendants note, plaintiffs

misunderstand the agreement’s cost structure. Plaintiffs’ costs are limited to $750

because defendants initiated arbitration. Plaintiffs don’t suggest this fixed cost is so

exorbitant as to render the arbitration agreement unconscionable, and we conclude

that it is not.

CONCLUSION

Mooneyham bought one truck, and he bought it only once. In doing so, he

signed an arbitration agreement covering “any dispute” regarding the purchase of the

truck. True, the parties renegotiated several terms before finalizing the purchase. But

that fact doesn’t nullify the agreement. Nor is the agreement unconscionable.

Accordingly, we reverse the district court’s order denying defendants’ motion, and

we remand with directions to stay the proceedings and compel arbitration.

Entered for the Court

Nancy L. Moritz
Circuit Judge

16
15-6221, Mooneyham v. BRSI, LLC d/b/a Big Red Kia; Exeter Finance Corp.

PHILLIPS, Circuit Judge, dissenting.

I respectfully dissent. The majority concludes that the single Agreement to

Arbitrate applies to both the attempted transaction on February 9, 2013 and the completed

transaction on February 11, 2013, despite language suggesting otherwise in the

Agreement to Arbitrate.

In conspicuous writing immediately above Mooneyham’s signature, the

Agreement to Arbitrate proclaims that “THIS AGREEMENT IS INCORPORATED BY

REFERENCE INTO THE RETAIL PURCHASE AGREEMENT.” App. 267 (emphasis

added). A document incorporated by reference ‘“becomes constructively a part of the

writing,’ forming a single instrument.” Walker v. Builddirect.com Technologies Inc., 349

P.3d 549, 553 (Okla. 2015) (quoting 11 Williston on Contracts § 30:25 (4th ed. 1999)).

When Mooneyham signed the Agreement to Arbitrate on February 9, 2013, one Retail

Purchase Agreement existed—the Retail Purchase Agreement dated the same day. But

that Retail Purchase Agreement failed because Exeter rejected the proposed financing

terms. That left no Retail Purchase Agreements to incorporate the Agreement to

Arbitrate.1

On February 11, BRSI notified Mooneyham that financing was disapproved and

had him return to the dealership. Upon his returning, BRSI presented Mooneyham with a

new Retail Purchase Agreement with less favorable terms. In the new agreement,

1
BRSI is a sophisticated business with skilled attorneys who easily could have
worded this to include future retail purchase agreements to ease our interpretative task.
Mooneyham’s monthly payments increased from about $500 to $516, the amount

financed declined by $1,000, and the extended service plan shrunk from 72

months/85,000 miles to 36 months/36,000 miles.

BRSI could have avoided this lawsuit by having Mooneyham sign another

Agreement to Arbitrate (assuming he would still have signed despite the described less-

favorable terms). But BRSI chose not to do so. Instead, BRSI forged ahead with the

February 11, 2013 Retail Purchase Agreement, which did not incorporate the arbitration

agreement.2

I don’t know why BRSI did not ask Mooneyham to sign an Agreement to

Arbitrate when he signed the second purchase agreement. Perhaps it was careless,

perhaps it was overconfident that the earlier Agreement to Arbitrate survived the failed

transaction, or perhaps it was concerned that Mooneyham might not be in a mood to sign

another arbitration agreement. But to cure its failure, BRSI would have us assume that

Mooneyham would have signed a second arbitration agreement and hold him to it. I

decline to do so and would affirm the district court’s decision.

2
At oral argument, BRSI’s counsel agreed that some changes to a purchase
agreement could necessitate a second Agreement to Arbitrate, but he disputed that those
circumstances existed in this case. Oral Arg. 26:41–28:25.
2