concurring in part and dissenting in part.
Plaintiff Lee entered into a written enrollment agreement with defendant College of Legal Arts, Inc., “for instruction in the skills necessary for the profession of’ court reporting. The enrollment agreement included a provision on the front side of the two-sided contract that provided, under the caption “NOTICE TO STUDENT”:
“By signing this enrollment agreement you acknowledge that you have read it completely and understand its content and that you have received a completed copy of this contract and its attachments, including the school catalog, with insertions. The terms and conditions of the back of this form and the policies in the catalog are part of this enrollment agreement. Do not sign this enrollment agreement if blank spaces have not been filled in.”
*28At the bottom of the second of two columns on the back of the agreement is a paragraph entitled “ARBITRATION AGREEMENT.” It provides:
“Any dispute arising from enrollment at College of Legal Arts, no matter how described, pleaded or styled, shall be resolved by binding arbitration and by a single arbitrator, under the Federal Arbitration Act conducted by the American Arbitration Association (‘AAA’) at Portland, OR, under its Commercial Rules. All determinations as to the scope, enforceability of this Arbitration Agreement shall be determined by the Arbitrator, and not by a court. The award rendered by the arbitrator may be entered in any court having jurisdiction.”
Just below that paragraph are the words “Student’s initial” with a line for the student to initial. In Lee’s enrollment agreement, the line is blank.
Along with others, Lee sued defendant and a company that had purchased defendant, Cascade Education, LLC, (collectively, defendant) under various theories of liability. Defendant moved to compel arbitration with the plaintiffs who had entered enrollment agreements that included the quoted arbitration provision and to stay the case pending resolution of that arbitration for the balance of the plaintiffs who had entered enrollment agreements that did not include the arbitration provision. The trial court granted the motion to compel arbitration as to five of the plaintiffs, but not as to Lee. The court reasoned that the absence of Lee’s initials on the line below the arbitration provision created a factual question about whether Lee had agreed to the provision, and it resolved that question by finding, based on the missing initials, that Lee had not agreed to it.
The majority treats the question whether Lee had agreed to the arbitration provision as a factual question, subject to review on appeal for any evidence, and affirms the trial court on the ground that the absence of Lee’s initials is evidence that she did not agree to it. 243 Or App at 23. That treatment of the question is fundamentally flawed. The question whether the arbitration provision is part of the written agreement between the parties presents a legal, not a factual, question. And, as I will explain, the answer to that *29question is that the arbitration provision is part of Lee’s enrollment agreement.
Because the parties entered a written agreement, the meaning of that agreement presents a legal question. See, e.g., Valenti v. Hopkins, 324 Or 324, 331-32, 926 P2d 813 (1996). That means that a court must consider the entire agreement to resolve the meaning of any provision in it. As noted, the agreement includes among the terms on its front side: “The terms and conditions of the back of this form and the policies in the catalog are part of this enrollment agreement.” The arbitration provision is on the back of the form, so, based on the quoted language, the arbitration provision is part of the parties’ agreement, unless some other provision of the agreement affects the meaning of the quoted language. I do not believe that the absence of Lee’s initials on the line labeled “Student’s initial” below the arbitration provision can be understood to negate the quoted language. In light of the quoted language, Lee’s initials are not required to make the arbitration provision a part of the agreement. Hence, the presence or absence of her initials does not bear on whether the arbitration provision is part of the agreement.
Furthermore, it is evident that the line for the student’s initials was placed in the form as part of a belt-and-suspenders effort to forestall a challenge to the enforceability of the arbitration provision. As quoted above, the front of the form includes an acknowledgement that the student has “read [the enrollment agreement] completely and understand^] its content.” In light of the likely challenge by students to the arbitration provision — reflected by the challenge to it by the plaintiffs in this case on unconscionability grounds, raising both procedural and substantive objections — the inclusion of a space for student initials below the provision is intended to make a procedural unconscionability objection much more difficult. Of course, as with Lee’s execution of the enrollment agreement, defendant’s employees can fail to ensure that students initial the form, thereby making the unconscionability challenge for those students stronger, but that does not alter the import of the line for, and the placement of, student initials on the form.
*30That understanding is bolstered by the fact that there is a line for only the student to initial. If initialing the form below the arbitration provision were necessary to make the provision a part of the agreement — which, again, would fly in the face of the provision that states that “[t]he terms and conditions of the back of [the] form * * * are part of [the] enrollment agreement” — then it presumably would be necessary for both parties to initial the agreement below the arbitration provision.
In light of the foregoing, I believe that the agreement is susceptible to only one understanding about the arbitration provision, and that is that the presence or absence of Lee’s initials has no bearing on whether the arbitration provision is part of the agreement. Hence, the trial court erred in concluding that it was not.
The majority does not attempt to defend on its merits the trial court’s decision to deny enforcement of the arbitration provision against Lee. Rather, it reasons that defendant failed to frame the issue on appeal as a legal, rather than a factual, issue and, hence, that it would be improper for us to do that. As I will demonstrate, defendant did, in fact, frame the issue on appeal as a legal, not a factual, issue, so the majority’s premise is simply wrong. Furthermore, even if the majoritys premise were correct, its decision still would be wrong because, contrary to its and the trial court’s conclusion, the absence of Lee’s initials is not evidence that could support a finding that Lee did not agree to make the arbitration provision part of the enrollment agreement.
Defendant’s opening brief stated the assignment of error on the enforceability of the arbitration provision to be:
“The trial court erroneously denied Defendant’s Motion to Compel Arbitration as to Plaintiff Lee based on its incorrect conclusion that the arbitration agreement is not enforceable because Plaintiff Lee did not initial the arbitration provision.”
Defendant summarized its argument on that assignment as follows:
“The trial court erred by failing to enforce the arbitration agreement between Plaintiff Lee and Defendant. *31Plaintiff Lee signed an enrollment agreement [that] contained an admittedly valid agreement to arbitrate. The trial court declined to compel arbitration by concluding that the mere absence of Plaintiff Lee’s initials from the arbitration provision renders it unenforceable. * * * Neither federal nor state law requires an arbitration agreement to be initialed to be enforceable. The arbitration agreement is contained within the Enrollment Agreement signed by Plaintiff Lee. That is all that can be required. It was enforced against each of the plaintiffs [who] separately initialed the arbitration provision, and should have been enforced against Plaintiff Lee as well.”
Defendant’s argument on that point in the body of its brief is consistent with the summary of it:
“The trial court erroneously concluded that the arbitration agreement is not enforceable solely because Plaintiff Lee did not initial the arbitration provision. There is no requirement under the FAA * * * that an arbitration provision be initialed to be enforceable.
“The only requirement under the FAA * * * is that [the] arbitration agreement be in writing. The arbitration agreement in the Enrollment Agreement is in writing. The arbitration agreement is denoted with the heading ARBITRATION AGREEMENT’ which is capitalized, bolded, and underlined. Additionally, the Enrollment Agreement contains a ‘NOTICE TO STUDENT’ which is set out in all capitals and bolded [that] provides, in pertinent part: ‘by signing this enrollment agreement you acknowledge that you have read it completely and understand its content... [.]’ Plaintiff Lee signed the Enrollment Agreement. * * * There is no evidence that Plaintiff [Lee] did not intend [to] be bound by the arbitration provision. The mere fact that Plaintiff Lee failed to initial the arbitration provision is of no significance because there is no requirement under federal or state law that the arbitration agreement be initialed to be enforceable.”
(Boldface, capitalization, and underscoring in original; citations omitted.) Although defendant’s argument could have been better framed and made more compelling, defendant did not suggest in its brief that the enforceability question presents a factual rather than a legal question.
*32Defendant’s reply brief is to the same effect. It summarizes defendant’s reply argument as follows:
“Plaintiff Lee’s assertion that she did not assent to the arbitration agreement because she did not initial the provision is contrary to the facts and the law. The law favors enforcement of arbitration agreements and does not require a party to separately sign or initial an arbitration provision within an overall, signed contract for it to be enforceable. Plaintiff Lee manifested her assent to the arbitration agreement by signing a valid and enforceable Enrollment Agreement, which contained the arbitration provision, and by accepting the benefits conferred by the Enrollment Agreement.”
Here, again, defendant’s argument does not suggest that the enforceability of the arbitration provision presents a factual rather than a legal question.11 will not quote the body of the reply argument, but nothing in it alters the import of the quoted summary or the opening brief on that point.
In summary, the majority’s treatment of the question on appeal as a factual question simply perpetuates the trial court’s error in doing the same thing. It is not the product of defendant’s argument on appeal.2
*33Furthermore, even if defendant had treated the question on appeal as a factual question — that is, whether Lee had agreed to the arbitration provision — the majority’s resolution of that question would still be wrong. The parties submitted no extrinsic evidence on the execution of the enrollment agreement, on the purpose of the line for student initials in the agreement, or on the significance or meaning of the absence of Lee’s initials on it. Because there is no extrinsic evidence that bears on whether the arbitration provision is part of Lee’s written agreement, there is no evidence in the record on which the trial court could make a finding on that issue. That is because the written agreement cannot, on its own, constitute the evidence on which to make a finding on the content or meaning of the written agreement. 3 It follows that we cannot affirm a finding that the trial court made when there is no evidence in the record on which the trial court could have made the finding.4
For all of the foregoing reasons, I respectfully dissent from the majority’s decision to affirm the trial court’s denial of defendant’s motion to compel Lee to arbitrate her claims against defendant.
Duncan, J., joins in this dissent.To avoid any misunderstanding, the summary begins with the statement: “The trial court erred by: (1) finding that the mere absence of Plaintiff * * * Lee’s initials from the arbitration agreement paragraph within a signed contract renders it unenforceable!.]” The reference to the trial court’s “finding” simply identifies what the trial court actually did: it found that the absence of Lee’s initials meant that Lee had not assented to the arbitration provision. It does not signify that the question on appeal is a factual question that depends on whether there is evidence to support the trial court’s finding. (And, even if it did, the fact that there is no evidence in the record other than the written agreement means, as a consequence, that the question that the court must answer is a legal rather than a factual question.) Similarly, defendant’s opening brief contains boilerplate statements about de novo review of a denial of a motion to compel arbitration, citing federal cases and, apparently, equating de novo review with independent review of legal questions, as federal courts treat that issue, by following a citation to a federal case with a citation to an Oregon case: “See Hekker v. Sabre Construction Co., 265 Or 552, 555[, 510 P2d 347] (1973) (‘As a general rule the construction of a contract is [a] question of law for the court.’).”
In a related vein, the majority asserts that “[defendant did not challenge, either before this court or before the trial court, the legal basis for analyzing assent to the arbitration clause separately from assent to the enrollment agreement as a whole.” 243 Or App at 23 n 5. Defendant did not have to frame the issue that way in order to require us to address it, because its assignment of error necessarily encompasses the issue by assigning error to the trial court’s denial of its motion to *33compel Lee to arbitrate her claims against it. The majority certainly does not address the issue, but that is not because of any deficiency in defendant’s assignment of error or argument.
That is why an ambiguous written agreement is construed against its drafter when there is no evidence, other than the agreement, that bears on its intended meaning. See, e.g., Andrews v. Sandpiper Villagers, Inc., 215 Or App 656, 664, 170 P3d 1098 (2007); Berry v. Lucas, 210 Or App 334, 339, 150 P3d 424 (2006). In other words, the content or meaning of the written agreement is resolved on a legal, rather than a factual, basis in that circumstance.
Implicit in the majority’s conclusion is the proposition that a factfinder could infer from the missing initials that Lee had not agreed to the arbitration provision. That is not a permissible basis on which to resolve that issue because the decision on whether Lee had agreed to the arbitration provision cannot properly turn on the inference that a factfinder draws from the fact that Lee did not initial the line below the arbitration provision. If it did, it would lead to arbitrary decision-making because one court might infer that the missing initials meant that Lee had not agreed to the provision while another court might not draw that inference. On the record in this case, the import of the missing initials necessarily presents a legal question for which there can be only one legally correct answer. It cannot be treated as a factual question for which either of two contradictory answers would be legally correct answers. Cf., e.g., Andrews, 215 Or App at 664 (construction maxim applied in resolving ambiguous written contract where extrinsic evidence does not resolve ambiguity).