1

NOT DESIGNATED FOR PUBLICATION

No. 126,277

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STEPHANIE KNISLEY, Individually and on Behalf of Others Similarly Situated,

Appellee,

v.

EQUITY BANK,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Oral argument held May 21, 

2024. Opinion filed August 9, 2024. Affirmed.

Luke R. VanFleteren and Lynn D. Preheim, of Stinson LLP, of Wichita, and Kevin Ranlett, 

Archis A. Parasharami, and Carmen N. Longoria-Green, pro hac vice, of Mayer Brown LLP, of 

Washington, DC, for appellant. 

Richard S. Fisk, of Beam-Ward, Kruse, Wilson & Fletes, LLC, of Overland Park, and Troy D. 

Shelton, pro hac vice, of Dowling PLLC, of Raleigh, North Carolina, for appellee.

Before COBLE, P.J., CLINE and ISHERWOOD, JJ.

PER CURIAM: Equity Bank appeals the denial of its motion to compel arbitration 

in a putative class action filed against it by Stephanie Knisley, an Equity Bank 

accountholder. Equity Bank contends the district court erred by denying its motion 

because it acted within the confines of a change-of-terms provision by unilaterally adding 

an arbitration provision to Knisley's account agreement, which she accepted by 
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continuing to use her account without formally opting out. After reviewing the issues 

presented, we find no error and affirm the district court's ruling.

FACTUAL AND PROCEDURAL BACKGROUND

Knisley had a checking account with Equity Bank that was governed by an 

accountholder agreement (the Agreement), which included the following "Amendments 

and Termination" section:

"We may change any term of this agreement. Rules governing changes in interest 

rates are provided separately in the Truth-in-Savings disclosure or in another document. 

For other changes, we will give you reasonable notice in writing or by any other method 

permitted by law. . . . Reasonable notice depends on the circumstances, and in some cases 

such as when we cannot verify your identity or we suspect fraud, it might be reasonable 

for us to give you notice after the change or account closure becomes effective. For 

instance, if we suspect fraudulent activity with respect to your account, we might 

immediately freeze or close your account and then give you notice. If we have notified 

you of a change in any term of your account and you continue to have your account after 

the effective date of the change, you have agreed to the new term(s)." 

The Agreement also contained a "Notices" section, which stated: "Written notice 

we give you is effective when it is deposited in the United States Mail with proper 

postage and addressed to your mailing address we have on file. Notice to any of you is 

notice to all of you." 

In April 2021, Equity Bank sent an email (the April 2021 Email) with the subject 

line "Notice of Important Change in Terms" to Knisley at the email address she had 

provided to receive electronic account statements and other notices regarding her 

account. The body of the email began by stating in large, bold letters: "Update: Your 

Privacy Choices and Changes to Your Account Terms." The email further directed 

Knisley, again in large bold letters, to "Please review important updates to your terms 
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and conditions with Equity Bank," and provided bullet points of items to review. 

Relevant to this appeal, the first bullet point stated a "Notice of Important Changes in 

Terms (adds an Arbitration requirement and waives your right to participate in a class 

action, grants you the right to OPT Out of the change.)" The underlined text contained a 

hyperlink, which if clicked opened a copy of the updated terms (the Arbitration 

Agreement). 

The Arbitration Agreement began by providing: 

"The following is notice of an important change to the Equity Bank Terms and 

Conditions of Your Account. The change involves the implementation of an Arbitration 

Provision and Class Action Waiver. You can opt out of the Arbitration Provision as 

provided below and you will not lose any of the rights and benefits of your accounts. 

PLEASE READ THIS DOCUMENT CAREFULLY." 

The first paragraph of the Arbitration Agreement explained that for any "Claims" 

which could not be settled informally, 

"you agree that any and all Claims that are threatened, made, filed or initiated after the 

Effective Date (defined below) of this Arbitration and Waiver of Class Action provision 

('Arbitration Agreement'), even if the Claims arise out of, affect or relate to conduct that 

occurred prior to the Effective Date, shall, at the election of either you or us, be resolved 

by binding arbitration administered by the American Arbitration Association ('AAA') in 

accordance with its applicable rules and procedures for consumer disputes ('Rules'), 

whether such Claims are in contract, tort, statute, or otherwise. . . . Either you or we may 

elect to resolve a particular Claim through arbitration, even if one of us has already 

initiated litigation in court related to the Claim, by: (a) making written demand for 

arbitration upon the other party, (b) initiating arbitration against the other party, or (c) 

filing a motion to compel arbitration in court. AS A RESULT, IF EITHER YOU OR WE 

ELECT TO RESOLVE A PARTICULAR CLAIM THROUGH ARBITRATION, YOU 

WILL GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND 

YOUR RIGHTS. This Arbitration Agreement shall be interpreted and enforced in 
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accordance with the Federal Arbitration Act set forth in Title 9 of the U.S. Code to the 

fullest extent possible, notwithstanding any state law to the contrary, regardless of the 

origin or nature of the Claims at issue." 

The Arbitration Agreement added that the "Effective Date" was 

"the 31st day after we provide it to you . . . unless you opt-out in accordance with the 

requirements of the RIGHT TO OPT-OUT provision below. If you receive your 

statements by mail, then the Arbitration Agreement was provided to you when it was 

mailed. If you receive your statements electronically, then it was provided to you when 

you were sent notice electronically." 

Under the Right to Opt-Out provision, the Arbitration Agreement explained:

"You have the right to opt-out of this Arbitration Agreement and it will not affect 

any other terms and conditions of your relationship with us. To opt out, you must notify 

us in writing of your intent to do so prior to the Effective Date (defined above). Your optout must be sent to us at Equity Bank—7701 E. Kellogg, Wichita, KS 67207, ATTN: 

Senior Compliance Officer or ArbitrationOptOut@equitybank.com prior to the Effective 

Date. Your notice of intent to opt out can be a letter that is signed by you or an email sent 

by you that states 'I elect to opt out of the Arbitration Agreement' or any words to that 

effect." 

In January 2022, Knisley filed a putative class-action petition against Equity Bank, 

alleging that Equity Bank's practice of charging overdraft fees on insufficient funds 

breached both the terms of the Agreement and the covenants of good faith and fair 

dealing, served to unjustly enrich Equity Bank, and violated the Kansas Consumer 

Protection Act. 
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Before filing an answer, Equity Bank moved to dismiss, or in the alternative to 

stay Knisley's petition and compel arbitration based on the Arbitration Agreement in its 

email. Along with a supporting memorandum, Equity Bank included:

• A declaration from Tina Call—Equity Bank's executive vice president and 

Chief Risk Officer—attesting that a review of Equity Bank's records showed: 

(1) that Knisley had elected to receive electronic notices for her account, 

(2) that the Equity Bank system showed no indication the April 2021 Email 

was not successfully delivered to Knisley, (3) that Knisley did not provide any 

written notice to opt-out within 31 days of receiving the April 2021 Email or 

Notice, and (4) that Knisley continued using her bank account thereafter;

• Defendant's Exhibit A, a copy of the Agreement that was in effect at the time 

Knisley received the April 2021 Email and Notice;

• Defendant's Exhibit B, a copy of the April 2021 Email; and

• Defendant's Exhibit C, containing a copy of the Arbitration Agreement.

Knisley responded to Equity Bank's motion, contending that Equity Bank could 

not "change" the terms of the Agreement by "adding" the Arbitration Agreement and that 

Equity Bank failed to provide reasonable notice of the changes because the Agreement 

required written notice by U.S. mail. Knisley also asserted she could not recall receiving 

the April 2021 Email nor locate a copy of it, further declaring that she never assented to 

the Arbitration Agreement and class action waiver and would not have assented had she 

been aware of those provisions.

Equity Bank replied to Knisley's contentions, disagreeing with her narrow reading 

of the term "change" and alternatively, arguing that Knisley received proper notice of the 

Arbitration Agreement and subsequently failed to opt out by continuing to use her 

account.
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The district court held a hearing over Zoom in January 2023 to consider the 

parties' arguments on Equity Bank's motion. At the hearing, Equity Bank argued this 

court's decision in Duling v. Mid American Credit Union, 63 Kan. App. 2d 428, 530 P.3d 

737 (2022), illustrated the "ultimate issue" in this case, which was whether Knisley 

"received a valid actual notice and right to opt out of a proposed arbitration agreement" 

and "whether there was an objective manifestation at the outset to the [A]rbitration 

[A]greement." Unlike in Duling, Equity Bank noted the April 2021 Email was a 

reasonable method of notice because Knisley had agreed to receive electronic notices

about her account. And thus, it contended Knisley received "a very clear, conspicuous 

method of opting out" of the Arbitration Agreement, and the notice was reasonable 

because many others who received the email had opted out. Equity Bank also argued 

based on Duling that "the definition of change in Kansas law . . . and the dictionary 

definition of that term is broad enough to include the addition of an arbitration 

agreement, especially when you consider all of the other provisions in the agreement that 

deal with disputes between the parties." Equity Bank distinguished the cases relied on by 

Knisley as mostly dealing with "unilateral changes" that were "materially adverse" to the 

plaintiffs in those cases. 

Knisley responded with three main points: (1) There was no "serious factual 

argument" of "an outward manifestation of any contract including an arbitration 

agreement," (2) Equity Bank failed to provide effective written notice by U.S. mail as 

required, and (3) the parties had "contractually agreed in advance [to limit] the types of 

modifications or revisions that [Equity Bank] could make" but Equity Bank had "treated 

a nonresponse as some form of consent." Knisley agreed Duling was "highly relevant" 

because the language of the change-in-terms clauses in both cases were "identical." 

Knisley also pointed out that the overdraft fees at issue in the petition were assessed 

before Equity Bank sought to add the arbitration provision. Knisley further contested 

Equity Bank's assertions that there were terms in the Agreement dealing with dispute 

resolution which Equity Bank could "change" by adding the Arbitration Agreement. 
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Following the hearing, the district court denied Equity Bank's motion, finding 

Equity Bank had failed to carry its burden to show that the parties entered a contract to 

compel arbitration and in which Knisley waived her right to participate in a class action. 

In particular, the court first found that the Agreement did not define "'change'" and 

"contains no explicit discussion of the methods of dispute resolution," despite including 

"references" to "'asserting a claim', 'legal action' and 'damages.'" Thus, the court 

interpreted the ambiguity in that term against Equity Bank as the drafter of the 

Agreement, concluding that "[Equity Bank] may not add an arbitration clause as a 

'change' to the agreement." Applying Duling, the court construed Equity Bank's "attempt 

to add the arbitration/class action waiver clause as an offer . . . to modify their existing 

agreement." 

The district court then found that Equity Bank's offer was "'clear and specific'" but 

that it did not specifically state that "continued use of the account by Ms. Knisley 

constitutes acceptance of the offer." The court found no issue with the notice by email, 

since it was construing the Arbitration Agreement as a new offer that was not governed 

by the mail notice provisions of the Agreement. 

Moving on, the district court concluded that Knisley's silence could not be 

considered an "'unconditional and positive acceptance'" because "[t]here was clearly no 

meeting of the minds with regard to any newly proposed contract containing an 

arbitration clause and class action waiver. [Equity Bank]'s offer was not accepted." 

Finally, the court explained that it had considered the parties' relationship, but concluded 

that "allowing [the prior] course of dealing to equal assent to the newly proposed contract 

by Equity would nullify the Court's analysis above, and, in effect, allow 'change' to 

include 'add', a benefit to Equity that the Court is unwilling to grant." The court 

concluded by explaining: 
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"[T]he idea that [Equity Bank] can offer any type of new contract provision and simply 

add an opt out clause can be taken too far, as it has been here. Assent requires some sort 

of affirmative statement from [Knisley], and mere silence under these circumstances is 

not sufficient; it is not 'unconditional and positive acceptance'." 

Equity Bank timely appealed. 

REVIEW OF EQUITY BANK'S APPELLATE CHALLENGES

Equity Bank argues the district court erred in denying its motion to compel 

arbitration, first challenging the court's finding that the change-in-terms provision did not 

authorize Equity Bank to unilaterally "add" the Arbitration Agreement where there were 

no preexisting terms in the Agreement governing dispute resolution. Second, Equity 

Bank challenges the court's finding that Knisley did not validly assent to the Arbitration 

Agreement through her silence, a conclusion the court made after treating the Arbitration 

Agreement as an offer to modify the Agreement outside the scope of the change-in-terms 

provision. Finally, Equity Bank contends the district court erred in invalidating the 

Arbitration Agreement, arguing the Federal Arbitration Act preempts using state contract 

law that is overly hostile to arbitration. 

Jurisdiction

To begin, a district court's decision denying a motion to compel arbitration is a 

final and appealable order. K.S.A. 5-450(a)(1); see Anderson v. Dillard's, Inc., 283 Kan. 

432, 435, 153 P.3d 550 (2007); NEA-Topeka v. U.S.D. No. 501, 260 Kan. 838, 841, 925 

P.2d 835 (1996). 
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Standard of review 

The parties agree that most of the issues presented here involve an unlimited 

standard of review, particularly the first and third issues as outlined above. Appellate 

courts exercise unlimited review over the interpretation of the terms and legal effect of

written instruments, including whether a written instrument is ambiguous, and this court 

is not bound by the lower court's interpretations or rulings. Trear v. Chamberlain, 308 

Kan. 932, 936, 425 P.3d 297 (2018); see also Anderson, 283 Kan. at 436 ("An appellate 

court reviews an alleged arbitration agreement like any other contract, applying a de novo 

standard of review."). Likewise, preemption is a question of law over which this court 

exercises de novo review. Board of Miami County Comm'rs v. Kanza Rail-Trails 

Conservancy, Inc., 292 Kan. 285, 294, 255 P.3d 1186 (2011). 

But as Knisley points out, this court in Duling treated the district court's finding 

that a party failed to meet its burden to prove the existence of an enforceable arbitration 

agreement as a negative finding, which involves a highly deferential standard of review. 

Duling, 63 Kan. App. 2d at 435 (citing Mohr v. State Bank of Stanley, 244 Kan. 555, 567, 

770 P.2d 466 [1989] ["'A finding that the plaintiff did not sustain the burden of proof is a 

negative finding.'"]; Short v. Sunflower Plastic Pipe, Inc., 210 Kan. 68, 74-75, 500 P.2d 

39 [1972] [applying negative finding test when reviewing district court's order finding 

that a contract did not exist]). Appellate courts reviewing a negative finding will uphold it 

unless the challenging party proves the district court arbitrarily disregarded undisputed 

evidence or relied on some extrinsic consideration such as bias, passion, or prejudice to 

reach its decision. See State v. Douglas, 309 Kan. 1000, 1002-03, 441 P.3d 1050 (2019). 

Although Equity Bank does not directly dispute the applicability of the negative 

finding standard, the Kansas Supreme Court has held it applies only to negative factual

findings and not merely any ruling adverse to a party bearing the burden of proof. See 

State v. Marx, 289 Kan. 657, 661, 215 P.3d 601 (2009) (negative finding standard should 
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not be "applied to undermine the de novo, independent review of legal questions with 

which appellate courts are properly imbued"); see also State v. Garza, 295 Kan. 326, 331, 

286 P.3d 554 (2012) (declining to apply negative finding standard on appeal from motion 

to suppress because resolving appeal only required statutory interpretation). 

Typically, the existence of a contract presents a question of fact that is reviewed 

on appeal for substantial competent evidence. Price v. Grimes, 234 Kan. 898, 904, 677 

P.2d 969 (1984); O'Neill v. Herrington, 49 Kan. App. 2d 896, 903, 317 P.3d 139 (2014). 

Similarly, whether a particular term of a written contract has been modified or waived by 

a later agreement is a question of fact. Thoroughbred Assocs. v. Kansas City Royalty Co., 

297 Kan. 1193, 1209, 308 P.3d 1238 (2013). But as Equity Bank points out, when the 

legally relevant facts of a contract's formation are undisputed, the existence and terms of 

a contract are questions of law subject to de novo review. U.S.D. No. 446 v. Sandoval, 

295 Kan. 278, 282, 286 P.3d 542 (2012). As below, Equity Bank contends that Knisley's 

silence constituted her assent, but neither the fact of Knisley's silence nor that she 

continued using her account after April 2021 has ever been disputed. Thus, applying such 

a deferential standard to review the district court's legal determination that Knisley's 

silence did not constitute her assent to the Arbitration Agreement would not be 

appropriate because that issue can be reviewed de novo. 

As a final point before moving on to the analysis, we note that Knisley argues 

several issues that would generally be considered when evaluating the formation of a 

contract, such as the sufficiency of notice and that the arbitration provision violates the 

duty of good faith and fair dealing. The district court's ruling briefly addressed notice but 

found that email notice was reasonable under the circumstances because it treated the 

Arbitration Agreement as a new offer that was not controlled by the mail notice provision 

of the Agreement. We decline to review Knisley's claims involving these issues because 

Knisley failed to object to any inadequacy in the district court's factual findings. State v. 

Jones, 306 Kan. 948, 959, 398 P.3d 856 (2017) ("When there is no objection to a trial 
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court's findings, this court presumes that the trial court found all facts necessary to 

support its judgment."). Knisley also did not cross-appeal from any adverse rulings. 

Lumry v. State, 305 Kan. 545, 553-54, 385 P.3d 479 (2016) (noting K.S.A. 2015 Supp. 

60-2103[h]'s requirement that an appellee file a notice of cross-appeal from adverse 

rulings to obtain appellate review of those issues). Thus, the only questions we must 

resolve are those raised by Equity Bank.

Did the district court err in interpreting the change-in-terms provision?

Equity Bank begins by challenging the district court's finding that the change-interms clause did not authorize Equity Bank to add the Arbitration Agreement as a new 

dispute resolution provision through a "change" to the Agreement. Addressing this 

challenge also requires determining whether the district court correctly concluded that the 

Agreement lacked any dispute resolution provisions which Equity Bank could thereby 

change to include the Arbitration Agreement. 

A. Equity Bank could not add a new term under the change-in-terms provision. 

Equity Bank focuses its argument on discussing whether the plain language of the 

Agreement, particularly the term "change" as it is used in the Agreement's change-interms clause, authorized Equity Bank to add the Arbitration Agreement. As stated, the 

Agreement stated that Equity Bank "may change any term of this agreement." The district 

court found the provision was subject to at least two interpretations since "'change' can be 

interpreted as to include 'addition' or not to include 'addition.'" As a result, the court 

interpreted that ambiguity against Equity Bank as the drafter of the Agreement, 

concluding that Equity Bank could not add the Arbitration Agreement as a change to the 

Agreement.
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"'"The primary rule for interpreting written contracts is to ascertain the parties' 

intent. If the terms of the contract are clear, the intent of the parties is to be determined 

from the language of the contract without applying rules of construction."'" Russell v. 

Treanor Investments, 311 Kan. 675, 680, 466 P.3d 481 (2020). A written instrument will 

not be found to be ambiguous unless two or more meanings can reasonably be construed 

from the contract. The court will not strain to find an ambiguity where, in common sense, 

there is none. Greer v. Eby, 309 Kan. 182, 192-93, 432 P.3d 1001 (2019). 

"Where ambiguity or uncertainty is involved in a written instrument, the parties' 

intentions are ascertained by considering the language used, the circumstances existing 

when the instrument was made, the objective of the written instrument, and other 

circumstances tending to clarify the real intention of the party or parties. [Citation 

omitted.]" In re Marriage of Gerleman, 56 Kan. App. 2d 578, 589, 435 P.3d 552 (2018). 

See Amoco Production Co. v. Wilson, Inc., 266 Kan. 1084, 1088, 976 P.2d 941 (1999). 

Ambiguities in a written instrument are construed against the drafter. See Liggatt v. 

Employers Mut. Casualty Co., 273 Kan. 915, 921, 46 P.3d 1120 (2002). 

To begin, focusing solely on the term "change" does not entirely answer the 

question of whether Equity Bank could add the Arbitration Agreement to the Agreement. 

Determining what Equity Bank was authorized to "change" cannot be interpreted 

correctly without also considering what the parties intended by the rest of the clause "any 

term of this agreement." Admittedly, the district court specifically found "change" to be 

ambiguous, but this court's standard of review for interpreting the contract is de novo. 

Moreover, appellate courts can affirm the district court when its conclusion is right for 

the wrong reasons. See Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 100, 106 

P.3d 492 (2005). 

Now, the parties frame their discussion around whether the change-in-terms clause 

specifically allowed Equity Bank to add the Arbitration Agreement. Yet the proper 
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framing of the question we must answer is more generally whether the change-in-terms 

clause authorized Equity Bank to add any new terms to the Agreement. Under that 

framing, we agree with Equity Bank and find that the language used in the change-interms clause was not ambiguous. But we reject Equity Bank's interpretation of the clause 

as allowing it to add a new term to the agreement. The plain meaning of the words 

"change any term of this agreement" clearly only authorized Equity Bank to change terms 

that already existed in the Agreement.

The district court stated in its ruling that it would "follow the precedent of 

Duling," so some discussion of that case is relevant here. As here, the district court in 

Duling denied a motion to compel arbitration because the addition of an arbitration 

provision was essentially a new term not contemplated by the initial agreement. On 

appeal, we agreed but ultimately assumed without deciding that the contract's change-ofterms provision authorized the defendant to add new terms to the agreement. Duling, 63 

Kan. App. 2d at 439. To that end, Duling does not discuss whether the plain meaning of 

the clause authorized Equity Bank to "add" new terms to the Agreement.

Equity Bank cites several cases from other jurisdictions in which a court found—

though without much discussion—that the language used in a change-in-terms clause was 

not ambiguous. See e.g., Beneficial Nat. Bank, U.S.A. v. Payton, 214 F. Supp. 2d 679, 

687 (S.D. Miss. 2001) ("[T]here is no practical distinction between a 'change' and an 

'amendment' to the terms of the agreement."); Bank One, N.A. v. Coates, 125 F. Supp. 2d 

819, 831 (S.D. Miss. 2001) (finding a bank could add an arbitration provision because the 

language authorizing it to "change or amend the terms of this Agreement," was "simpl[e], 

unambiguous[] and without limitation"), aff'd 34 F. Appx. 964 (5th Cir. 2002); Goetsch v. 

Shell Oil Co., 197 F.R.D. 574, 577-78 (W.D.N.C. 2000) (finding the phrase "'the right to 

change the terms of this Agreement at any time'" to be "clear and unambiguous"). But 

none of the cases mentioned in Equity Bank's brief involved identical language to the 

Agreement here, or otherwise discussed the plain meaning of similar language.
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A case Knisley cites in her brief is instructive because it contained a change-interms clause with identical language. Decker v. Star Financial Group, Inc., 204 N.E.3d 

918 (Ind. 2023). Unlike this case, the district court in Decker had granted a motion to 

compel arbitration based on an arbitration provision that was newly added under the 

change-in-terms clause. The Indiana Supreme Court reversed on appeal, explaining: 

"The Bank proceeded here as if the account agreement's change-of-terms clause gave it a 

blank check to amend the agreement any way it saw fit to fend off threatened litigation. 

But [the change-in-terms provision]—which the Bank itself wrote—is not so elastic. This 

section does not say the Bank can change the agreement however it wants. If the Bank 

wanted such flexibility, it might have given itself the power to 'change this agreement' as 

desired. Instead, the section is more limited in scope. It limits the Bank to changing 'any 

term of this agreement.' Words matter. The difference between a far-reaching power to 

amend 'this agreement' and the narrower power to amend 'any term of this agreement' 

makes all the difference on this record. The latter—which governs here—limits the Bank 

to modifying the terms that existed in the original account agreement. Relevant here, the 

original agreement contained neither a general dispute-resolution provision nor a specific 

arbitration or no-class-action provision. Thus, there was not 'any term' of that agreement 

the Bank could 'change' to effectuate the result it sought here through its addendum. 

Because the original account agreement did not mention dispute resolution generally or 

arbitration or class action specifically, [the change-in-terms provision] did not permit the 

Bank to add such provisions by amendment. To conclude otherwise would violate [the 

provision]." 204 N.E.3d at 921.

In so doing, the court noted it was following the reasoning of Badie v. Bank of 

America, 67 Cal. App. 4th 779, 786, 803, 79 Cal. Rptr. 2d 273 (1998), a California Court 

of Appeal decision holding that a change-of-terms clause allowing a bank to "change any 

term, condition, service or feature of your Account at any time" was ambiguous and 

interpreting the language against the bank as the drafter. See Decker, 204 N.E.3d at 921-

22. Yet unlike Badie, the Decker court resolved the case without needing to consider 

whether the change-in-terms clause was ambiguous because it found the plain meaning of 
15

the text demonstrated that the bank could only "change a specific kind of term by 

amendment—namely, only those terms existing in the original account agreement." 204 

N.E.3d at 922. 

Equity Bank references several dictionary definitions of the term "change" and 

asks us to conclude it broadly includes the ability to add new terms to the Agreement,

citing Merriam-Webster Dictionary, at https://www.merriamwebster.com/dictionary/change (defining as "to make different"—even "radically 

different''; to "alter," to "transform," or "to replace with another"). Another definition of 

change includes "to put or take (a thing) in place of something else; substitute for, replace 

with, or transfer to another of a similar kind," or "to cause to become different; alter; 

transform; convert." Webster's New World College Dictionary 249 (5th ed. 2018).

Equity Bank also points out the Kansas Supreme Court has construed change in 

the statutory interpretation context as "including 'to make different in some particular,' 

and 'to replace one with another.'" Griffin v. Suzuki Motor Corp., 280 Kan. 447, 460, 124 

P.3d 57 (2005) (quoting Webster's New Collegiate Dictionary [1980]). In Griffin—which 

involved determining whether evidence related to a successor design of a vehicle was 

admissible in a products liability action—the Kansas Supreme Court ruled that the term 

"'change in design' . . . would encompass a 'wholly different design.'" 280 Kan. at 460. 

As for defining the word "any," the definition includes "one, no matter which, of 

more than two," and "without limit." Webster's New World College Dictionary 64 (5th 

ed. 2018). Relying on the Merriam-Webster's Dictionary online, the Kansas Supreme 

Court has said "[t]he ordinary and plain meaning of the term 'any' thus connotes 

something without limits." State v. Sandoval, 308 Kan. 960, 963-64, 425 P.3d 365 (2018) 

("Merriam-Webster defines 'any' as: [1] 'one or some indiscriminately of whatever kind'; 

[2] 'one, some, or all indiscriminately of whatever quantity'; and (3) 'unmeasured or 

unlimited in amount, number, or extent.' [Online ed. 2017]."). 
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Like in Decker, we need not resort to an ambiguity analysis to construe the 

change-in-terms clause against Equity Bank because the plain language is clear. The 

common definitions of change mentioned above only include additions in the context of 

replacing something that already exists. Moreover, the key distinction between the 

change-in-terms clause here and the clauses in cases cited by Equity Bank lies in using 

the qualifier "any" along with the singular "term," because there is no reasonable way to 

interpret this language as allowing a party to change a term that is not already present in 

the Agreement. Based on these definitions mentioned, "any" can be used both in the 

singular and plural to describe something. But because "any" is specifically describing 

"term of this agreement," it would only make sense grammatically to read it as referring 

to those terms already present. Had the clause stated, "may change the terms of this 

Agreement," Equity Bank would have had the ability to add new terms to the collective 

"terms of this Agreement." But because the clause is singularly directed at "chang[ing] 

any term," Equity Bank could only change terms that already existed. To be clear, Equity 

Bank would still be able to effectively "add" a new provision by replacing an existing 

term on the same subject, just like article 2, section 16 of the Kansas Constitution 

requires legislative amendments to repeal the prior sections being amended. 

As a final note, Equity Bank makes several ancillary points to establish that this 

interpretation is unreasonable. First, Equity Bank claims it would be precluded from 

adding "critically important" new terms or ones that benefit customers, such as new 

security measures, rewards programs, or features incorporating new technologies. Equity 

Bank also emphasizes the benefits of arbitration and how the arbitration provision here 

was "particularly favorable for customers" because of the cost-savings and simple 

procedures that would be used to resolve disputes. But we need not delve into discussing 

hypothetical provisions Equity Bank might consider adding to the Agreement or even 

engage with the parties' debate about the advantages or disadvantages of arbitration. As 

explained, the question before us is whether the plain meaning of the change-in-terms 

clause authorized Equity Bank to add new terms to the Agreement. For this question, the 
17

fact that the "new" term in question is an arbitration provision only matters to determine 

whether there were existing terms that cover that same subject matter. 

B. The Agreement did not contain dispute resolution provisions.

We next examine whether the district court erred in finding the Arbitration 

Agreement did not constitute a modification of any existing dispute resolution terms. On 

this point, the district court found that "while there are references in the agreement to 

'asserting a claim', 'legal action' and 'damages', . . . the agreement contains no explicit 

discussion of the methods of dispute resolution." 

Equity Bank highlights several provisions in the Agreement that purport to show 

the parties understood disputes would be resolved in court and cites Scherk v. Alberto 

Culver Co., 417 U.S. 506, 519, 94 S. Ct. 2449, 41 L. Ed. 2d 270 (1974), in which the 

Supreme Court described "an agreement to arbitrate . . . [as] a specialized kind of forumselection clause." But as Knisley points out, none of the provisions highlighted remotely 

resemble a forum selection clause or otherwise concern procedures for resolving disputes 

between the parties. Moreover, at no point in its brief does Equity Bank explain how the 

Arbitration Agreement replaced or modified any of these existing terms. 

For instance, Equity Bank asserts the Agreement states that disputes are decided 

under "applicable federal laws" and the "laws of the state of Kansas" with account 

holders "'liable for [the bank's] costs as well as for [its] reasonable attorneys' fees, to the 

extent permitted by law, whether incurred as a result of collection or in any other dispute 

involving [the] account.'" But the full context of these provisions shows they were not 

intended to dictate dispute resolution methods; they merely convey what laws apply and 

how Knisley could be held liable under the Agreement for disputes "involving [her] 

account" initiated by external actors. 
18

Equity Bank also points out that the Agreement authorizes it to place account 

funds on hold during a "legal proceeding to determine the merits of the claim." But again, 

the full context of this provision shows that it applies to claims by nonparties to the

Agreement against Knisley's account: 

"Resolving Account Disputes. We may place an administrative hold on the funds in 

your account (refuse payment or withdrawal of the funds) if it becomes subject to a claim 

adverse to (1) your own interest; (2) others claiming an interest as survivors or 

beneficiaries of your account; or (3) a claim arising by operation of law. The hold may be 

placed for such period of time as we believe reasonably necessary to allow a legal 

proceeding to determine the merits of the claim or until we receive evidence satisfactory 

to us that the dispute has been resolved. We will not be liable for any items that are 

dishonored as a consequence of placing a hold on funds in your account for these 

reasons."

Equity Bank next asserts that the Agreement contains provisions describing 

"situations in which the account holder must 'assign to [the bank]' the right to take 'legal 

actions'—again referring to lawsuits in court—against various third parties, as well as the 

account holder's commitment 'to cooperate with [the bank] in any legal actions that [the 

bank] may take against such persons.'" 

Again, these provisions explicitly apply only to legal proceedings against third-party 

payees initiated by Equity Bank, specifically those arising if Equity Bank incurs damages 

or expenses because of a stop payment initiated by Knisley. 

Lastly, Equity Bank points out that the Agreement "discusses how the parties will 

handle any 'subpoena, restraining order, writ of attachment or execution, levy, 

garnishment, search warrant, or similar order relating to [the] account,' including what 

happens to disputed funds while awaiting 'a final court determination.'" Although Equity 

Bank is correct that the Agreement defines these types of orders as "legal action[s]," the 
19

full language of that provision undercuts any suggestion that it governs dispute 

resolution: 

"Legal Actions Affecting Your Account. If we are served with a subpoena, restraining 

order, writ of attachment or execution, levy, garnishment, search warrant, or similar 

order relating to your account (termed 'legal action' in this section), we will comply with 

that legal action. Or, in our discretion, we may freeze the assets in the account and not 

allow any payments out of the account until a final court determination regarding the 

legal action. We may do these things even if the legal action involves less than all of you. 

In these cases, we will not have any liability to you if there are insufficient funds to pay 

your items because we have withdrawn funds from your account or in any way restricted 

access to your funds in accordance with the legal action. Any fees or expenses we incur 

in responding to any legal action (including, without limitation, attorneys' fees and our 

internal expenses) may be charged against your account. The list of fees applicable to 

your account(s) provided elsewhere may specify additional fees that we may charge for 

certain legal actions." (Emphases added.)

The emphasized language demonstrates that this provision of the Agreement was 

intended to apply only to various types of court orders served on Equity Bank that would 

adversely affect Knisley's account. See Woessner v. Labor Max Staffing, 312 Kan. 36, 48, 

471 P.3d 1 (2020) (applying ejusdem generis canon of construction). If this provision 

applied to any legal proceedings initiated by Knisley against Equity Bank, then it would 

appear to allow Equity Bank the unfettered right to freeze her account during any lawsuit 

initiated by Knisley until a final court determination, as well as charge Knisley for the 

entirety of its legal fees. 

For these reasons, we agree with the district court and find that the Agreement 

contained no existing dispute resolution provisions. As a result, Equity Bank could not 

use the change-in-terms clause to add a new dispute resolution provision containing an 

arbitration requirement. 
20

Did the district court err in concluding Knisley's silence did not constitute assent?

As Equity Bank notes, the district court treated its attempt to add the Arbitration 

Agreement as an offer to modify the Agreement by determining whether the basic 

contractual elements had been satisfied. The court ultimately concluded that "[i]t is 

impossible to describe" Knisley's silence under the circumstances as an "'unconditional 

and positive acceptance'" of the Arbitration Agreement because "[a]ssent requires some 

sort of affirmative statement." Equity Bank disagrees with this conclusion, contending the 

court ignored relevant Kansas caselaw stating that silence coupled with accepting the 

benefits of an offer or failing to opt-out can reflect acceptance. 

While Equity Bank also provides examples of decisions from all 50 states in 

which a court has held similarly to its preferred outcome, we believe this case can be 

resolved using authorities based in Kansas law. 

To begin, the parties agree that resolving this appeal turns on whether Knisley's 

silence could be considered her assent to the arbitration provision. Kansas law defines the 

requisite assent to form a contract as a "meeting of the minds on all the essential 

elements," or "[a]n unconditional and positive acceptance." Sandoval, 295 Kan. at 282; 

see also Fast v. Kahan, 206 Kan. 682, 685, 481 P.2d 958 (1971) (meeting of the minds 

required for proposed modification). "To constitute a meeting of the minds there must be 

a fair understanding between the parties which normally accompanies mutual consent and 

the evidence must show with reasonable definiteness that the minds of the parties met 

upon the same matter and agreed upon the terms of the contract." Steele v. Harrison, 220 

Kan. 422, Syl. ¶ 3, 552 P.2d 957 (1976).

In explaining its ruling in this case, the district court began by noting that 

"[s]ilence is generally not considered acceptance," and citing Caterpillar Tractor Co. v. 

Sickler, 149 Kan. 457, 460, 87 P.2d 503 (1939), as its primary support. The district court 
21

then also cited Restatement (Second) of Contracts § 69, comment a (2022), and PCS 

Nitrogen Fertilizer, L.P. v. Christy Refractories, L.L.C., 225 F.3d 974, 981 (8th Cir. 

2000). Yet, despite these citations, it quickly becomes clear when reviewing the district 

court's ultimate conclusion that the district court failed to properly consider whether any 

recognized exceptions applied to the general rule that silence is not considered 

acceptance. 

As Equity Bank points out, the main holding of Caterpillar Tractor Co. was not 

simply recognizing the "general rule," because the Kansas Supreme Court specifically 

later held in the case that a party's "[a]ssent may be indicated by conduct or 

acquiescence." 149 Kan. at 460. The dispute in Caterpillar Tractor Co. arose after the 

plaintiff obtained a judgment and filed a garnishment against the defendants for proceeds 

of the sale of grain, after which the defendants' lessor intervened to claim an interest in 

the funds and grain based on unpaid rent. A jury found that the parties agreed to modify 

the lease by removing the requirement of payment of cash rental after the expiration of 

the original lease term. The Kansas Supreme Court affirmed this ruling, rejecting the 

lessor's argument that his "mere silence" could not constitute an acceptance of the 

defendants' offer to no longer pay cash rent. 149 Kan. at 460. In particular, the court 

explained that 

"[b]y his silence he caused [lessees] to expend time and money in putting in a crop. He 

accepted the benefits of this expenditure. Under such circumstances he brought himself 

within the rule laid down in 6 R.C.L. 600. There it is said: 'Assent may be indicated by 

conduct or acquiescence.'" Caterpillar Tractor Co., 149 Kan. at 460. 

The citation from the Caterpillar Tractor Co. court refers to the Ruling Case Law, 

a treatise that was the precursor to the American Jurisprudence series. Interestingly, the 

portion of the R.C.L. quoted in the opinion is only the first half of the rule. The full quote 

states: "Assent may be indicated by conduct or acquiescence, unless such conduct does 
22

not furnish a basis from which an intention to assent may be inferred." See 6 R.C.L., 

Contracts § 22. But in any event, the takeaway from Caterpillar Tractor Co. is that 

exceptions exist under Kansas law to the general rule that silence does not equate to 

assent. Stated another way, Equity Bank persuasively argues the district court erred to the 

extent it based its ruling finding Knisley's silence did not equal assent on a categorical 

rule requiring an "affirmative statement" of assent from Knisley. 

But while such exceptions may be "rare," the rarity of an exception does not 

dictate whether it applies. See, e.g., Restatement (Second) of Contracts § 19 comment a 

(1981) ("Purely negative conduct is sometimes, though not usually, a sufficient 

manifestation of assent. See § 69."); Restatement (Second) of Contracts § 30 comment e 

(1981) ("Sometimes, though not ordinarily, even silent inaction may be effective as a 

mode of acceptance."); Restatement (Second) of Contracts § 69, comment a (1981) 

("Acceptance by silence is exceptional."). As both parties recognize, the three 

enumerated instances where an offeree's silence can manifest their assent are:

"(a) Where an offeree takes the benefit of offered services with reasonable 

opportunity to reject them and reason to know that they were offered with the expectation 

of compensation.

"(b) Where the offeror has stated or given the offeree reason to understand that 

assent may be manifested by silence or inaction, and the offeree in remaining silent and 

inactive intends to accept the offer.

"(c) Where because of previous dealings or otherwise, it is reasonable that the 

offeree should notify the offeror if he does not intend to accept." Restatement (Second) of 

Contracts § 69(1)(a)-(c) (1981).

See also 17A Am. Jur. 2d, Contracts § 97 (cross-referencing § 69); Foodbrands Supply 

Chain Servs., Inc. v. Terracon, Inc., No. Civ.A. 02-2504-CM, 2004 WL 955989, at *6 

(D. Kan. 2004) (recognizing provisions as "consistent with Kansas law and with 

generally recognized principles of contract law").
23

As best as can be understood, Equity Bank's argument for applying each of the 

three exceptions is built on a faulty assumption that Knisley's acceptance of the 

Arbitration Agreement was explicitly conditioned on continued use of the account. 

Equity Bank insists the plain language of the "effective date" terms in the Arbitration 

Agreement informed Knisley that continued use of her account without opting out meant 

agreeing to arbitration, but that assertion is simply incorrect. The Arbitration Agreement 

specifically stated: "You can opt out of the Arbitration Provision as provided below and 

you will not lose any of the rights and benefits of your accounts," and also gave Knisley 

"the right to opt-out of this Arbitration Agreement [which] will not affect any other terms 

and conditions of your relationship with us." In other words, the Arbitration Agreement 

unambiguously allowed Knisley to continue using her account even if she had taken 

affirmative steps to opt out of the Arbitration Agreement. 

Restatement (Second) of Contracts § 69(1)(a) addresses the circumstances that 

were present in Caterpillar Tractor Co., because in that case the Kansas Supreme Court 

expressly held that the lessor agreed to modify a lease agreement by silently accepting the 

benefits of the lessees' continued work on the farmland in question. 149 Kan. at 460. 

Other than blanket assertions without support, Equity Bank fails to explain what 

"benefits" Knisley accepted to reflect her assent to the Arbitration Agreement. And there 

is also nothing in the record to suggest that Knisley took any purported benefits related to 

accepting the Arbitration Agreement, such as by initiating an arbitration proceeding. See 

Land v. IU Credit Union, 218 N.E.3d 1282, 1290-91 (Ind. 2023). Although the parties 

focus on the arbitration provision, the fact that Knisley chose to file a class action after 

Equity Bank's purported amendment tends to show she did not intend to accept either the 

arbitration provision or the class-action waiver. As a result, we find the exception from 

subsection (1)(a) does not apply.

Restatement (Second) of Contracts § 69(1)(b) would apply when evaluating the 

terms of the opt-out clause, which the district court specified was analyzed in Duling. 63
24

Kan. App. 2d at 440-41. While we are not bound by Duling, since it addresses a nearly 

identical factual situation using principles of Kansas contract law, we believe its holdings 

are highly relevant. See State v. Fleming, 308 Kan. 689, 706, 423 P.3d 506 (2018) (noting 

one panel of this court is not bound by another panel of this court's decision). 

As here, Duling involved determining whether a party's silence in response to an 

offer to add an arbitration agreement could constitute their assent. This court noted that 

under Kansas law, establishing a meeting of the minds requires terms that are "complete 

and definite enough that each party reasonably understands the rights and obligations 

created." 63 Kan. App. 2d at 440 (citing Jack Richards Aircraft Sales, Inc. v. Vaughn, 

203 Kan. 967, 971, 457 P.2d 691 [1969]); see also Wachter Mgmt. Co. v. Dexter, 282 

Kan. 365, 377, 144 P.3d 747 (2006) ("'The offeror, whether the seller or the buyer, is the 

master of the offer.'"). This court then recognized that "[f]ailure to opt-out of an 

arbitration program can, of course, constitute acceptance." Duling, 63 Kan. App. 2d at 

443 (citing Rittenhouse v. GlaxoSmithKline, CV No. 21-1836, 2021 WL 6197361, at *3-4 

[E.D. Pa. 2021]). This court also explained that "acceptance is measured not by the 

parties' subjective intent, but by their outward expressions of assent," and therefore "an 

offer with clearer and more specific terms provides a better basis from which we may 

find an outward expression of assent and thus a binding contract." Duling, 63 Kan. App. 

2d at 443. Because the language explaining the opt-out date was ambiguous, this court 

found the bank could not rely on the plaintiff's failure to opt out and continued use of the 

account to infer assent to the arbitration agreement. 63 Kan. App. 2d at 444-46.

In contrast, the district court here found the Arbitration Agreement was "'clear and 

specific' as described in Duling." The Arbitration Agreement explained that it became 

"effective upon the 31st day after we provide it to you . . . unless you opt-out in 

accordance with the requirements of the RIGHT TO OPT-OUT provision." Although 

Knisley claims she does not recall receiving or viewing the April 2021 Email, the district 

court found no evidence in the record to support this contention. We must defer to that 
25

factual finding and therefore find the Arbitration Agreement would become effective 31 

days later unless Knisley chose to opt out by sending either a letter or email to Equity 

Bank stating: "'I elect to opt out of the Arbitration Agreement' or any words to that 

effect." The district court found Knisley "did not respond in any affirmative manner. She 

was silent." 

Yet, the district court was "not persuaded that such a clause is sufficient to indicate 

assent under these circumstances" because "the idea that [Equity Bank] can offer any type 

of new contract provision and simply add an opt out clause can be taken too far, as it has 

been here." The district court does not explain how the "clear and specific" terms of the 

opt-out clause went "too far," but Duling also does not require this court to find in Equity 

Bank's favor simply because the opt-out procedures here were more specific. As the 

Restatement recognizes, "[t]he mere fact that an offeror states that silence will constitute 

acceptance does not deprive the offeree of his privilege to remain silent without 

accepting." Restatement (Second) of Contracts § 69, comment c. Thus, Equity Bank still 

needed to show Knisley intended to accept the Arbitration Agreement through her 

silence, which it failed to do. Other than Knisley's continued use of her account—which 

was not explicitly stated to be conditioned on accepting the Arbitration Agreement—

Equity Bank provides no additional facts to show Knisley intended to accept the offer. As 

a result, the exception from Restatement (Second) of Contracts § 69(1)(b) also does not 

apply. 

Lastly, Restatement (Second) of Contracts § 69(1)(c) addresses the prior course of 

dealing between the parties to an agreement, which the district court in this case noted 

was present but found it inapplicable. See Morgan v. Morgan, No. 74,828, 1996 WL 

35070475, at *1 (Kan. App. 1996) (unpublished opinion) ("Plaintiffs have shown no 

previous dealings as mentioned by the Restatement, and the letter they rely on simply 

refers to the possibility of questions about their proposal."). In particular, the district 

court explained that
26

"allowing that course of dealing to equal assent to the newly proposed contract by Equity 

[Bank] would nullify the Court's analysis above, and, in effect, allow 'change' to include 

'add', a benefit to Equity [Bank] that the Court is unwilling to grant. See Locklear 

Automotive Group, Inc. v. Hubbard, 252 So.3d 67, 85 (Ala. 2017) (assent to arbitrate 

typically manifested by signing the contract containing an arbitration provision)." 

For this exception, Equity Bank's argument seems to be that a reasonable person 

would understand that Equity Bank would only continue to offer services if she assented 

to the terms of Arbitration Agreement. But again, continued account use was not 

explicitly conditioned on acceptance, as Equity Bank repeatedly insists. Moreover, 

Equity Bank provides nothing to show that the parties' previous course of dealing 

involved other attempts by Equity Bank to add terms to the Agreement. Thus, it cannot 

be said that it would be reasonable to infer Knisley's assent through her failure to notify 

Equity Bank she did not intend to accept its offer to add the Arbitration Agreement.

Does the Federal Arbitration Act preempt the district court's application of Kansas 

contract law?

For its final argument, Equity Bank argues the district court's ruling applying state 

law is preempted by federal law, particularly the Federal Arbitration Act. According to 

Equity Bank, the district court's conclusion that the State needed to prove Knisley made 

an "affirmative statement" accepting the Arbitration Agreement impermissibly disfavors 

arbitration because it places a "heightened" requirement on formation of arbitration 

agreements. 

Equity Bank asserts the district court's ruling violates the so-called "equal-footing 

principle." As it notes, the Supreme Court held in Kindred Nursing Centers. Ltd 

Partnership v. Clark, 581 U.S. 246, 248, 137 S. Ct. 1421, 197 L. Ed. 2d 806 (2017), that 

9 U.S.C. § 2 requires courts to "place arbitration agreements 'on equal footing with all 

other contracts'" (quoting DIRECTV, Inc. v. Imburgia, 577 U.S. 47, 54, 136 S. Ct. 463, 
27

193 L. Ed. 2d 365 [2015]). Stated another way, "[a] rule selectively finding arbitration 

contracts invalid because improperly formed fares no better under the Act than a rule 

selectively refusing to enforce those agreements once properly made." Kindred Nursing 

Centers. Ltd Partnership, 581 U.S. at 254-55. But Kindred Nursing Centers. Ltd 

Partnership merely clarified that the equal-footing principle prohibits state laws about 

contract formation that also discriminate against arbitration. 581 U.S. at 251. Thus, 

contrary to Equity Bank's claims in its reply brief, Kindred Nursing Centers. Ltd 

Partnership does not control the outcome here because the threshold determination of 

whether an agreement to arbitrate existed is still governed by ordinary state-law 

principles of contract formation. 

Equity Bank's strongest argument for federal preemption is that the district court 

tacitly relied on Badie v. Bank of America, 67 Cal. App. 4th 779, 796 (1998), which other 

courts have criticized as being overly hostile toward arbitration. But any reliance by the 

district court on Badie is immaterial since we rely on Kansas law, so that decision did not 

factor heavily into our analysis. Moreover, the best Equity Bank can assert to show the 

district court's hostility is that it stated Equity Bank had "taken" its power to amend the 

contract "too far," and deemed the power to add an arbitration clause as only being a 

"benefit" to Equity Bank. Equity Bank mischaracterizes these isolated statements by the 

district court, and they are in no way overtly hostile to arbitration as a whole. Put simply, 

Equity Bank does not provide a persuasive argument that any part of the district court's 

ruling was based in hostility to arbitration. 

CONCLUSION

In sum, we affirm the district court's ruling denying a motion to compel 

arbitration. The plain meaning of the change-in-terms clause of Knisley's accountholder 

Agreement only authorized Equity Bank to change existing terms. Because the 

Agreement contained no dispute resolution procedures, Equity Bank could not rely on the 
28

change-in-terms clause to add an arbitration requirement. Even treating Equity Bank's 

proposed amendment as a new offer, Equity Bank fails to show that Knisley assented to 

the Arbitration Agreement. Kansas law recognizes exceptions to the general rule that

silence in response to an offer is not assent, but Equity Bank fails to show that any 

recognized exceptions applied. Lastly, Equity Bank fails to show the district court's 

ruling is preempted by federal law. 

Affirmed.