United States Court of Appeals

For the Eighth Circuit

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No. 14-2636

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LoRoad, LLC

lllllllllllllllllllll Plaintiff - Appellant

v.

Global Expedition Vehicles, LLC

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court 

for the Western District of Missouri - Springfield

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 Submitted: February 11, 2015

 Filed: June 1, 2015

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Before LOKEN, SMITH, and COLLOTON, Circuit Judges.

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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-motionsfor summary judgment,
the district court held that LoRoad failed to accept the Assembly Agreement signed 1

by GXV; therefore, the court could not enforce the arbitration provision in that

Agreement. LoRoad appeals the resulting adverse summary judgment. We affirm.

I.

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 contractsigning,” 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. 

The Honorable Sarah W. Hays, United States Magistrate Judge for the

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Western District of Missouri.

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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

things are at the moment . . . We are very seriously looking at pulling out, at which

point will [] want our money returned.” 

On January 30, 2013, Van Pelt emailed Rodney Lough, “Your BAE 6x6 in

transit,” explaining GXV’s delay in getting the truck and predicting it would arrive

at GXV on Friday. On Friday, February 1, Van Pelt emailed Lough a picture of the

truck. On February 11, Lough emailed Van Pelt asking for a status report. Van Pelt

responded that GXV’s engineering team had started work on the truck, would send

it to be painted when they were done, and asked Lough to “respond via email that the

color is staying per Build List: White.” 

The next documentary exchange frames the contract issue on appeal. On

February 11, Lough emailed Van Pelt saying LoRoad “had no record of the parties’

creating and executing a final set of documents.” Lough asked GXV to send “a final

set [of documents] incorporating everything we’ve come to agreement on” “for final

review and then signatures, so we can get this thing moving.” Van Pelt responded

that GXV received a signed contract from LoRoad on November 16. Lough replied 2

he had no record of that, and asked Van Pelt to “send me a copy of what you have,

GXV interpreted the handwritten “LeeAnna Lough” on the marked-up

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Agreement LoRoad sent on November 16 as an authorized LoRoad signature. 

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because we do not have one here nor do we have an executed copy from you either.” 

In response, Van Pelt returned a copy of the Agreement received from LoRoad on

November 16, with Lough’s handwritten changes and with the addition of Michael

Van Pelt’s signature on the GXV signature line, but without the critical Build List.

 

In a February 14 reply, Lough asked for the entire Agreement, stated he did not

know where the document came from, and asserted, “That is NOT LeeAnna’s

signature . . . I would never have authorized LeeAnna to sign a document that was not

ready for signature and this document isn’t there and therefore we would not have

signed it. I have emails from you going through and into December where the two

of us continue finalizing the documents as they have not been completed.” Lough

further stated, “We do want you guys to create this vehicle however we are no where

near having the documents done . . . and while you have our commitment in the form

of a $120k deposit, that in no way means that you have an agreement with us until the

final documents are signed, sealed and delivered properly.”

On February 22, Van Pelt sent a document titled “Assembly Agreement

Addendum” dated February 2013, and a Build List dated December 11, 2012 (neither

document is in the record on appeal). Lough responded: “Sending us an Addendum

for a non-executed Assembly Agreement is not what you said you would do.” Lough

“officially disputed your assertion that the Assembly Agreement is a signed and

executed document.” On February 25, Lough reiterated LoRoad had not executed an

agreement and described the $120,000 as a “good faith deposit,” not a payment under

the Assembly Agreement. GXV then ceased work on the custom vehicle.

In March, LoRoad’s attorney began communicating with GXV. Hisfirst letter

stated, “Lo Road is committed to purchasing the Expedition Vehicle” but “there is no

final, executed contract in place.” The letter stated that, “according to all drafts of the

Assembly Agreement, signed or not, GXV’s commencement of work wasto begin 15

days after receipt of the deposit,” expressed concern about the delays, and asked for

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certain action items to be completed, including a revised Build List. An attachment

detailed eleven reasons why there was “No Executed Contract in Place.” 

On March 15, LoRoad’s attorney sent another letter, invoking the Adequate

Assurances provision of the Uniform Commercial Code. GXV responded on March

16, “Global Expedition Vehicles contends that we do have an executed contract with

the Lo Road, LLC. We have expended a great deal of money and engineering

payroll, based on this contract.” Van Pelt sent an email on March 27 expressing

surprise that Lough wanted to change the Build List because Lough advised on

February 22 he wanted to proceed with the December 11, 2012 Build List. On April

19, LoRoad’s attorney sent a letter stating that GXV had failed to provide adequate

assurances and was in material breach of the contract, and that LoRoad intended to

institute arbitration pursuant to the Assembly Agreement. This petition to compel

arbitration followed.

II.

LoRoad argues that the terms ofthe AssemblyAgreement that GXV signed and

faxed to LoRoad on February 13, 2013, included an agreement to arbitrate that is

enforceable against GXV. If enforceable, the Assembly Agreement is “a contract

evidencing a transaction involving commerce” subject to the Federal Arbitration Act,

9 U.S.C. § 2. However, the parties agree that Missouri contract law governs the issue

on appeal. Under both the Federal Arbitration Act and Missouri law, “[a] party who

has not agreed to arbitrate a dispute cannot be forced to do so. Accordingly, the court

must determine whether there is an agreement between those parties which commits

the subject matter of the dispute to arbitration.” PCS Nitrogen Fertilizer, L.P. v.

Christy Refractories, L.L.C., 225 F.3d 974, 977-78 (8th Cir. 2000) (quotations

omitted); see ArrowheadContracting, Inc. v. M.H. Wash., LLC, 243 S.W.3d 532, 535

(Mo. App. 2008). The party seeking to compel arbitration has the burden to prove a

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valid and enforceable arbitration agreement. Baier v. Darden Restaurants, 420

S.W.3d 733, 737 (Mo. App. 2014). 

As the Assembly Agreement concerned the sale of “goods,” it is governed by

Article 2 of Missouri’s Uniform Commercial Code. See Mo. Rev. Stat. § 400.2-

105(1). General principles of contract law apply unless “displaced by the particular

provisions” of the UCC. Mo. Rev. Stat. § 400.1-103. Under the UCC, “[a] contract

for sale of goods may be made in any manner sufficient to show agreement, including

conduct by both parties which recognizesthe existence ofsuch a contract.” Mo. Rev.

Stat. § 400.2-204(1). Without question, the writing on which LoRoad relies was

sufficiently definite to form a contract enforceable against GXV, including its

arbitration provision. See Mo. Rev. Stat. § 400.2-201(1). But a writing alone is

insufficient if it does not establish that an agreement wasreached between the parties;

the document must “indicate the consummation of a contract, not mere negotiations.” 

Howard Constr. Co. v. Jeff-Cole Quarries, Inc., 669 S.W.2d 221, 227 (Mo. App.

1983). Therefore, LoRoad must show an agreement between the parties. The district

court concluded that the undisputed facts establish that LoRoad never accepted the

Assembly Agreement. We agree.

The UCC “expands the traditional concept of a contract,” but it “continues the

common-law principle that the intent of the parties to make a contract must be

manifested.” Computer Network, Ltd. v. Purcell Tire& Rubber Co., 747 S.W.2d 669,

674 (Mo. App. 1988). Thus, the “core issue” is whether both LoRoad and GXV

intended to form a legally binding contract:

If the parties intended no binding agreement or contract, the rules of

construction and interpretation will not establish one. If no intent is

found, the inquiry is put to an end. If the expressions in the agreement

are clear, the court determines the intent from a reading of the writing. 

If the intent is not clearly expressed, then surrounding circumstances

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may be considered -- the subsequent actions of the parties and the

practical construction of the contract.

Id. (emphasis added). The intent which we are concerned with is the parties’

objective intent and what a reasonably prudent person would have been led to believe

from the actions or words of the parties. See id. at 675.

Here, if an authorized representative had signed the Assembly Agreement that

LoRoad faxed to GXV on November 16, 2012, then the document was an offer, and

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both sides manifested the intent to form a binding contract when GXV signed that

document and returned it to LoRoad on February 13, 2013. This was GXV’s

contemporaneous interpretation of the effect of its action on February 13. But

LoRoad immediately objected and countered with strong, indeed persuasive reasons

why the marked-up document it faxed on November 16 was not a binding offer that

GXV could accept, pointing out it was not LeeAnna Lough’s signature on the

document, and she was not authorized to sign a contract binding LoRoad . Thus, this

document did not clearly manifest LoRoad’s intent to form a binding contract. 

Rather, it appearsto be merely another mark-up of an AssemblyAgreement that GXV

had initially proposed and which the parties had been negotiating for over a month. 

See FutureFuel Chem. Co. v. Lonza, Inc., 756 F.3d 641, 647 (8th Cir. 2014)

(“ongoing negotiations between the parties over these terms demonstrates that there

was no mutual assent”). 

Looking beyond the contract document on which LoRoad relies,the undisputed

facts establish clear, immediate, unequivocal rejection by LoRoad and its attorney

An offer is “the manifestation of willingness to enter into a bargain, so made

3

as to justify another person in understanding that his assent to that bargain is invited

and will conclude it.” See Brown Mach., Div. of John Brown, Inc. v. Hercules, Inc.,

770 S.W.2d 416, 419 (Mo. App. 1989), citing Restatement (Second) ofContracts § 24

(1981). 

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when GXV claimed in February 2013 that a binding contract had been formed. While

such subsequent action would not revoke or nullify a contract already formed, it is

relevant in resolving the ambiguity asto whether LoRoad intended to be bound to the

terms of the marked-up form of contract it sent to GXV on November 16. This is

precisely the analysis that this court and Missouri courts have conducted in resolving

disputes over whether ongoing negotiations that included the exchange of multiple

draft agreements resulted in a binding contract. See Arrowhead, 243 S.W.3d at 535-

36 (no contract to arbitrate formed); Computer Network, 747 S.W.2d at 675 (contract

formed); Howard, 669 S.W.2d at 228-29 (no contract); Shapleigh Inv. Co. v. Miller,

193 S.W.2d 931, 937 (Mo. App. 1946) (contractformed); FutureFuel, 756 F.3d at 647

(no contract); Conolly v. Clark, 457 F.3d 872, 876 (8th Cir. 2006) (e-mail

correspondence following alleged hand-shake agreement showed continuing

negotiations); Moses.comSecurities, Inc. v. Comp. Software Sys., Inc., 263 F.3d 783,

784 (8th Cir. 2001) (no contract). 

LoRoad further argues that the requisite intent to form a binding Assembly

Agreement was proved by “conduct by both parties which recognize[d] the existence

of such a contract.” Mo. Rev. Stat. § 400.2-204(1); see § 400.2-207(3). We agree

GXV’s conduct was consistent with recognition of a binding contract. But the issue

is LoRoad’s intent, and the only “conduct” asserted on the part of LoRoad was its

payment of $120,000 on November 2, before it sent the November 16 marked-up

contract to GXV. The Assembly Agreement called for payment of a nonrefundable

deposit of $120,000 “at contract signing.” On February 25, after GXV asserted that

a final contract was in place, Lough emailed that “the Assembly Agreement is NOT

yet executed,” describing his November 16 version as a “change document,” and the

$120,000 as “a good faith deposit . . . to demonstrate our seriousness about moving

forward on this project.” On this record, we agree with the district court that there

was simply no conduct by LoRoad that recognized the existence of a binding

contract. See FutureFuel, 756 F.3d at 647 (“the parties did not conduct their business

in recognition of a valid contractual arrangement”). 

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Finally, LoRoad argues that an enforceable agreement to arbitrate was formed

because, “[w]hile there are numerous changes between and among the six versions

[of the Assembly Agreement], not a single word of the arbitration provision changed

from the first version sent by GXV to LoRoad on October 1, 2012, to the November

16 version executed by GXV.” This contention is without merit. While the parties

could have executed a free-standing agreement to arbitrate disputes that arose under

whatever AssemblyAgreement was ultimately signed, there is not a shred of evidence

of their intent to do so. Thus, there was an enforceable agreement to arbitrate if, and

only if, LoRoad proved there was a final, enforceable Assembly Agreement. As the

undisputed evidence showed no such contract wasformed, the district court properly

granted summary judgment in favor of GXV. 

The judgment of the district court is affirmed.

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