Jennifer McKinley vs. Diane K. Hook and Grace & Wisdom, LLC

JENNIFER McKINLEY, ) ) Respondent, ) v. ) WD87683 ) ) OPINION FILED: DIANE K. HOOK and GRACE & ) January 20, 2026 WISDOM, LLC, ) ) Appellants. ) Appeal from the Circuit Court of Buchanan County, Missouri The Honorable Daren L. Adkins, Judge Before Division Two: Edward R. Ardini, Jr., Presiding Judge, Karen King Mitchell, Judge, and Cynthia L. Martin, Judge Diane Hook and Grace & Wisdom, LLC (G&W), appeal from a judgment in favor of Hook's former law partner Jennifer McKinley arising from operation of G&W, a Missouri limited liability company formed to purchase the property where the former law firm Hook & McKinley, LLC (the Firm), was located. Hook and G&W raise three points on appeal. They assert the trial court erred because (1) McKinley was not a member of G&W and, thus, lacked standing to bring claims based on her membership in G&W; (2) G&W's September 29, 2014 written Operating Agreement was valid despite the absence of McKinley's signature on the document; and (3) the Operating Agreement

2 contained an arbitration clause, so the court erred in denying Hook's and G&W's motion to compel arbitration. We affirm. Background Hook and McKinley began looking for office space for the Firm in March 2014. After considering several buildings, they agreed to make an offer on property located at 3901 Oakland Avenue, St. Joseph, Missouri, 64506 (the Property), with the idea that the newly formed G&W would own the property. Hook and McKinley agreed on a 50/50 split of ownership interest in G&W. They also agreed that McKinley would be responsible for managing the Firm, including billing, payroll, and employee training, while Hook would manage the affairs of G&W, including bill payment and recordkeeping. On September 26, 2014, Hook filed Articles of Organization for G&W with the Missouri Secretary of State's Office. According to the Articles, management of G&W was vested in its members. 1 The Articles did not identify the members of G&W, but Hook was listed as the registered agent and organizer of G&W. The State issued a Certificate of Organization for G&W on November 1, 2014. Hook drafted the Operating Agreement, which identified her as the "Managing Member" and Hook and McKinley as "Members" of G&W, each having a 50%

1 Section 347.079.1 states, with exceptions not relevant here, "The articles of organization shall provide how management of the limited liability company will be vested and who shall have the right and authority to manage the affairs of the limited liability company and make all decisions with respect thereto." All statutory references are to the Revised Statutes of Missouri, Supp. 2021.

3 membership interest in G&W. The Operating Agreement was silent as to each member's "Initial Capital Contribution and Value." 2

The Operating Agreement stated that it "is entered into and shall be effective as of the Effective Date, by and among the Company and the entities executing this Agreement as Members." The only signature appearing on the Operating Agreement was that of Hook; Hook did not present the Operating Agreement to McKinley for her signature, nor was there even a signature line for McKinley. To facilitate purchase of the Property, Hook and McKinley discussed having G&W apply for loans from Commerce Bank and the Small Business Administration (SBA). McKinley also had discussions with the lenders. Hook prepared the loan applications and gathered the supporting documents, including the Operating Agreement. Also as part of that process, both Hook and McKinley signed personal guaranties and obtained life insurance policies. They also signed several documents as members of G&W, including the real estate contract for the Property, leases for the Property, and deeds of trust related to the loans. McKinley participated in the closing on the Property. From 2014 to 2022, the Firm leased a portion of the building on the Property from G&W. St. Joseph Title & Abstract Company leased the remaining office space from G&W. Hook and McKinley agreed on the rent amount for both tenants and discussed their mutual desire to have the Firm pay additional rent in order for G&W to pay off its

2 The record indicates that Hook made several capital contributions to G&W over the years; McKinley made none. Hook never instructed G&W's accountants to adjust its capital accounts to reflect her contributions, nor did Hook issue a capital call on McKinley.

4 loans more quickly. The Firm's monthly rent payments were automatically withdrawn from its bank account and paid to G&W. In 2019, a disagreement arose between Hook and McKinley regarding responsibility for building and lawn maintenance at the Property. In September 2019, Hook asked McKinley to transfer her interest in G&W to Hook and, in exchange, Hook would assume responsibility for all maintenance and be solely responsible for payment of debts associated with the Property. McKinley declined Hook's offer. Nevertheless, Hook executed a resolution purporting to confirm McKinley's transfer of her ownership interest in G&W to Hook. McKinley never signed any document transferring or otherwise devising her membership interest in G&W. On July 6, 2022, McKinley filed a petition against Hook and G&W, alleging breach of fiduciary duty and requesting a declaratory judgment as to McKinley's membership interest in G&W, the appointment of a receiver, an accounting, and imposition of a constructive trust. Hook and G&W moved to dismiss the petition based on the Operating Agreement's arbitration clause, which states, 19.11 ARBITRATION. The parties desire to avoid and settle without litigation future disputes which may arise between them relative to this Agreement. Accordingly, the parties agree to engage in good-faith negotiations to resolve any such dispute. In the event they are unable to resolve any such dispute by negotiation, then such dispute concerning any matter whose arbitration is not prohibited by law at the time such dispute arises shall be submitted to arbitration in accordance with the Arbitration Rules of the American Arbitration Association (hereinafter, "Rules") then in effect, and the award rendered by the arbitrators shall be binding as between the parties and judgment on such award may be entered in any court having jurisdiction thereof.

5 Following an evidentiary hearing on October 27, 2022, the court denied the motion to compel arbitration because McKinley did not sign the Operating Agreement containing the arbitration clause and, therefore, was not bound by it. In a subsequently filed amended answer to McKinley's petition, Hook and G&W raised several affirmative defenses, including the following: Although [McKinley] claims that she never agreed to sign any type of Operating Agreement, which [Hook and G&W] dispute as an Operating Agreement exists and was required by loan vendors, the Operating Agreement of [G&W] contains an arbitration clause requiring the parties to resolve disputes in arbitration. Accordingly, if [McKinley] claims that she never signed an Operating Agreement, and the Statutes of Fraud [sic] require agreements that cannot be performed in one year to be in writing, then there is no agreement between [McKinley] and [Hook]. As such, then [McKinley] has no ownership interest in [G&W] whatsoever. If it is found that [McKinley] did agree to and[,] therefore, is beholden to the Operating Agreement, then this matter should be referred to arbitration rather than the court system[]. Hook and G&W also brought a counterclaim against McKinley for damages. A bench trial was held September 24 and 26-27, 2024. Commerce Bank records were admitted at trial, including loan documents between Commerce Bank as lender, G&W as borrower, and Hook, McKinley, and the Firm as guarantors. Hook signed those documents as "Managing Member" of G&W, and McKinley signed them as "Member" of G&W. Regarding her signature on the loan documents and her personal guaranty of G&W's loan repayment, McKinley testified that she believed she was personally liable for G&W's debt. The trial court concluded, because no written operating agreement signed by both admitted Members of [G&W] was presented to and received by the court as evidence, then the

6 Articles of Organization dated September 26, 2014, mandate that the management of [G&W] is vested in the members. . . . The [c]ourt finds that Plaintiff McKinley and Defendant Hook entered into an oral operating agreement in which each owned a 50% member interest in [G&W]. [3]

The court also concluded that Hook was not the Managing Member of G&W because no managers were established by unanimous agreement of the members, either in writing or orally. But the court found that, because Hook held herself out as the Managing Member of G&W, she assumed a fiduciary duty to all members. The court also held that, without an assignment, sale, or other form of voluntary transfer of McKinley's interest in G&W, Hook wrongfully excluded McKinley from G&W and its management. Specifically, the court found that, after September 2019, Hook barred McKinley's physical and electronic access to all of G&W's records and, after April 2022, Hook restricted McKinley's physical access to the Property. Based on its conclusion that Hook breached her fiduciary duty to McKinley, the court entered judgment in favor of McKinley on all five counts of her petition and appointed a receiver. The court also entered judgment for McKinley on Hook's and G&W's counterclaim. Hook and G&W appeal.

3 Hook testified that, shortly after G&W was formed, her ownership interest in G&W was increased to 57% and McKinley's interest was reduced to 43% to compensate for funds advanced by Hook to improve the portion of the Property occupied by the Firm. McKinley testified that the ownership split remained equal throughout the relevant time period, but the tax liability for G&W was split 57% to 43% to compensate Hook for her advances. The court concluded, "This unequal division of profit and loss allocation on [G&W's] tax returns did not alter the membership interest of either member." None of the issues raised on appeal require us to determine the precise percentage of McKinley's membership interest in G&W.

7 Analysis Hook and G&W raise three points on appeal. They assert the trial court erred because (1) McKinley was not a member of G&W and, thus, lacked standing to bring claims based on her membership in G&W; (2) if McKinley was a member of G&W, it was pursuant to the Operating Agreement which was valid despite the absence of McKinley's signature on that document; and (3) the Operating Agreement contained an arbitration clause, and the court erred in denying Hook's and G&W's motion to compel arbitration. Essentially, Hook and G&W contend that, if McKinley is not a member of G&W, then the court erred by failing to dismiss her claims for lack of standing (Point I). Alternatively, if McKinley is a member of G&W, the Operating Agreement is valid, McKinley is bound by it, and trial court erred in failing to compel arbitration (Points II and III). We begin our analysis with Point II. A. The trial court did not err in finding that the Operating Agreement was invalid because it did not bear McKinley's signature (Point II). The crux of the dispute between the parties is whether the Operating Agreement is valid and, therefore, dictates how the parties agreed to operate G&W. Hook and G&W claim the Operating Agreement is valid because McKinley signed Hook's name to the document (with Hook's authorization) and the Operating Agreement was attached to loan applications both Hook and McKinley signed as members of G&W, evidencing that McKinley accepted the terms of the Operating Agreement and benefitted from them.

8 Hook and G&W also argue that, under § 347.015, 4 McKinley was not required to sign the Operating Agreement for it to be effective and McKinley acted as though the Operating Agreement was in effect. McKinley argues that the Operating Agreement is invalid because she never signed it in her name, a fact that is undisputed. "We will affirm the judgment in a bench-tried case 'unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.'" Brown v. Trent, 699 S.W.3d 251, 253 (Mo. App. W.D. 2024) (quoting Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). Hook and G&W assert that the trial court misapplied the law as to the validity of the Operating Agreement. "Where a misapplication of the law is asserted, our review is de novo." Jackson v. Mills, 142 S.W.3d 237, 240 (Mo. App. W.D. 2004). However, "[w]e defer to the trial court's superior ability to view the witnesses and determine credibility; the court is free to believe or disbelieve all, part or none of the testimony given by any of the witnesses." Torres v. Torres, 606 S.W.3d 168, 174 (Mo. App. W.D. 2020) (quoting Klockow v. Klockow, 979 S.W.2d 482, 487 (Mo. App. W.D. 1998)). We reject the argument that the Operating Agreement was valid because McKinley signed Hook's name to the document (with Hook's authorization). McKinley denied signing Hook's name, and the trial court found McKinley's testimony credible.

4 Section 347.015 defines "operating agreement" as "any valid agreement or agreements, written or oral, among all members, . . . concerning the conduct of the business and affairs of the limited liability company and the relative rights, duties and obligations of the members and manager, if any."

9 Under our standard of review, we defer to the trial court's determination of credibility. Id. And, as previously noted, it is undisputed that McKinley did not sign the Operating Agreement in her own name. The Operating Agreement, which Hook drafted, states that it "is entered into and shall be effective as of the Effective Date, by and among the Company and the entities executing this Agreement as Members." Thus, according to the plain language of the Operating Agreement, McKinley did not enter into the Operating Agreement because it does not bear her signature. Likewise, we reject the argument that McKinley is bound by the Operating Agreement simply because it was part of the documentation presented to lenders. McKinley testified that she did not receive a copy of the Operating Agreement from Hook, and Hook and G&W offered no evidence that McKinley was involved in preparing the loan applications or supporting documentation. In the absence of such evidence, we decline to adopt the argument that the Operating Agreement is valid as to McKinley simply because she signed the loan applications themselves and other related documents. As for the argument that the Operating Agreement was effective without McKinley's signature because § 347.015(13) recognizes oral operating agreements, we agree that, as a general rule, an operating agreement need not be in writing or be signed to be effective. However, here the Operating Agreement, as drafted by Hook, stated that it would be effective as to those members who signed it. McKinley did not sign the Operating Agreement. Finally, Hook and G&W argue that the trial court should have validated the Operating Agreement because McKinley's conduct was consistent with the Operating

10 Agreement being in effect. We do not find this argument persuasive for two reasons. First, it is contrary to the plain language of the Operating Agreement which required that it be signed by the members. Second, McKinley argued, and the trial court found, that Hook and McKinley entered into an oral agreement to operate G&W. If, in fact, Hook and McKinley had an oral agreement to operate G&W—an issue we discuss in connection with Point I below—McKinley's conduct could be equally consistent with the existence of that oral agreement. Thus, the trial court did not err in finding that the Operating Agreement was invalid. Point II is denied. Next, we address Hook's and G&W's first point alleging that McKinley lacked standing to bring her claims because she was not a member of G&W. 5

B. The trial court did not err in finding that McKinley has standing because she and Hook entered into an oral operating agreement that granted McKinley an ownership interest in G&W (Point I). In their first point, Hook and G&W assert the trial court erred because McKinley had no membership interest in G&W and, thus, lacked standing to bring claims based on her status as a member of G&W. McKinley counters that she has standing because the

5 The decision to raise standing in the first point relied on is understandable because courts generally address standing issues first for the reason that, if standing is absent, there is nothing more for the court to consider. But, here, resolution of the standing issue is dependent, in part, on resolution of Point II. As it turns out, we deny Point II, so the challenge to standing depends on whether, as the trial court concluded, there was an oral agreement to operate G&W.

11 parties entered into an oral agreement to operate G&W and she is a member of G&W under the oral agreement. "Standing requires that a party have a personal stake arising from a threatened or actual injury." Schweich v. Nixon, 408 S.W.3d 769, 774 (Mo. banc 2013) (quoting State ex rel. Williams v. Mauer, 722 S.W.2d 296, 298 (Mo. banc 1986)). "Because standing is a question of law, review of the issue on appeal is de novo." Id. at 773 (quoting CACH, LLC v. Askew, 358 S.W.3d 58, 61 (Mo. banc 2012)). "In Missouri, the essential elements of an enforceable contract are: (1) competency of the parties to contract; (2) subject matter; (3) legal consideration; (4) mutuality of agreement; and (5) mutuality of obligation." White v. Pruiett, 39 S.W.3d 857, 862 (Mo. App. W.D. 2001). "Whether a contract is made and, if so, what the terms of that contract are, depend upon what is actually said and done and not upon the understanding or supposition of one of the parties." Id. (quoting Gateway Exteriors, Inc. v. Suntide Homes, Inc., 882 S.W.2d 275, 279 (Mo. App. E.D. 1994)). On appeal, Hook and G&W first argue that McKinley failed to prove mutuality of agreement. "[T]he term 'mutuality of agreement' implies a mutuality of assent by the parties to the terms of the contract." Id. (quoting L.B. v. State Comm. of Psychs., 912 S.W.2d 611, 617 (Mo. App. W.D. 1995)). Although Missouri law allows a limited liability company to have an oral operating agreement, there must be consensus regarding the material terms of the agreement. Birkenmeier v. Keller Biomedical, LLC, 312 S.W.3d 380, 391 (Mo. App. E.D. 2010) (overruled on other grounds, Konopasek v. Konopasek, 683 S.W.3d 250, 260 n.9 (Mo. banc 2023)). Generally, the material terms of an oral

12 agreement include the parties, the subject matter, the consideration, and the mutual promises. Kyle v. Fowler, 718 S.W.3d 79, 89 (Mo. App. S.D. 2025). Material terms of an oral agreement to operate a limited liability company also include the business to be conducted by the company, and the rights, duties, and obligations of the members. § 347.015(13). Here, the evidence showed that Hook and Mc Kinley agreed (1) to form G&W for the purpose of purchasing and operating the Property; (2) to be the only two members of G&W; (3) to share profits and losses (at least initially agreeing to a 50/50 split); and (4) to a division of labor that involved McKinley assuming additional responsibilities for the Firm so Hook could run G&W. That evidence, coupled with the conduct of Hook and McKinley, which clearly manifested a mutual intent to form and operate G&W, is sufficient to establish the existence of mutuality of agreement. There was no testimony to the effect that Hook and McKinley "reserved the essential terms for future determination." Kyle, 718 S.W.3d at 91-92 (finding no oral contract where the evidence indicated that the parties had not agreed on the essential terms). This court previously addressed mutuality of agreement in the context of an oral operating agreement in Watterson v. Wilson, 628 S.W.3d 822 (Mo. App. W.D. 2021). There, Watterson testified to specific facts indicating that he and Wilson agreed to become 50/50 partners in a newly-formed limited liability company, agreed to share profits and losses, and agreed to a division of labor. Id. at 828. We concluded that, "[s]uch facts, if true, amounted to an oral agreement concerning the operation of [the company] and outlining the relative rights and duties of the members, which would

13 render it a valid operating agreement." Id. Our conclusion was further supported by the fact that, in Wilson's presence, Watterson was publicly held out as an owner of the company, and Wilson did nothing to refute that view. Id. at 830. The evidence on which the Watterson court relied to find an oral operating agreement is similar to the evidence in this case. 6 And, like Watterson, McKinley was publicly held out as a member of G&W when she signed legal documents and was repeatedly identified as a member on G&W's tax returns. 7

Hook and G&W also challenge the existence of an oral agreement on the basis of lack of consideration. "Consideration 'consists either of a promise (to do or refrain from doing something) or the transfer or giving up of something of value to the other party.'" Sniezek v. Kansas City Chiefs Football Club, 402 S.W.3d 580, 583 (Mo. App. W.D. 2013) (quoting Morrow v. Hallmark Cards, Inc., 273 S.W.3d 15, 25 (Mo. App. W.D. 2008)); see also Valle v. Shack Rest. Grp., LLC, 681 S.W.3d 265, 271 (Mo. App. E.D.

6 As Hook and G&W note, Watterson testified regarding a specific conversation with Wilson during which they agreed to form a limited liability company. Watterson v. Wilson, 628 S.W.3d 822, 828 (Mo. App. W.D. 2021). During her testimony, McKinley was unable to recall the specific dates and locations of her discussions with Hook about the formation of G&W. In view of the other evidence in this case, however, we do not find McKinley's inability to recall such details determinative. 7 On the issue of mutuality of agreement, Hook and G&W rely on Birkenmeier v. Keller Biomedical, LLC, 312 S.W.3d 380 (Mo. App. E.D. 2010) (overruled on other grounds, Konopasek v. Konopasek, 683 S.W.3d 250, 260 n.9 (Mo. banc 2023)). Birkenmeier alleged that he and the organizing member of a limited liability company had reached an oral agreement in which Birkenmeier would own 5% of the company. Id. at 385. But, based on Birkenmeier's own deposition testimony that essential terms of the alleged contract were not yet agreed upon, the court affirmed the grant of summary judgment against him on his breach of contract claim. Id. at 390-91. In contrast, there is no evidence that Hook and McKinley left the essential terms of their agreement undecided.

14 2023) ("[A] contract consisting of mutual promises to understand some legal duty or liability between parties is a bilateral contract and constitutes sufficient consideration."). While the record indicates that McKinley did not contribute cash or other property directly to G&W, she personally guaranteed G&W's repayment of the loans issued by Commerce Bank and the SBA. And she acquired life insurance in connection with the loans. There also was evidence that McKinley assumed additional management responsibilities with respect to the Firm, allowing Hook be more involved in the management of G&W. The acts of committing to loans that include a personal guaranty, acquiring life insurance, and taking on additional management responsibilities are legal duties and liabilities undertaken by McKinley in consideration of her membership interest in G&W. On this record, we find sufficient evidence of consideration to support the existence of an oral agreement between Hook and McKinley to operate G&W. 8

Finally, Hook and G&W challenge the existence of an oral operating agreement as a violation of the statute of frauds. 9 "The statute of frauds is waived by failing to both plead the defense and object to testimony of an oral contract at trial." Arkansas-Missouri Forest Prods., LLC v. Lerner, 486 S.W.3d 438, 453 (Mo. App. E.D. 2016) (emphasis

8 Hook and G&W also argue that McKinley relinquished her interest in G&W. There is no evidence in the record that McKinley ever did so. 9 In relevant part, Missouri's statute of frauds, § 432.010, states, No action shall be brought to charge any . . . person . . . upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized . . . .

15 added) (citing Norden v. Friedman, 756 S.W.2d 158, 162 (Mo. banc 1988)). "[E]ven if the statute of frauds is pled, failure to object to offered evidence of the oral agreement constitute[s] a waiver of the protection of the statute." Id. (quoting Crawford v. Detring, 965 S.W.2d 188, 192 (Mo. App. E.D. 1998)). While Hook and G&W raised the statute of frauds as an affirmative defense in their amended answer, they did not object to testimony regarding the existence of an oral operating agreement. Thus, they waived the statute of frauds defense. Because Hook and McKinley entered into an oral agreement to operate G&W and, under that agreement, McKinley has a membership interest in G&W, she had standing to bring claims based on that interest. Point I is denied. C. The trial court did not err in denying the motion to compel arbitration (Point III). For their final point, Hook and G&W assert the trial court erred in denying the motion to compel arbitration because the Operating Agreement contained a valid arbitration clause. McKinley does not dispute that the Operating Agreement contained an arbitration clause. Instead, she contends that there was no arbitration agreement because she is not bound by the Operating Agreement for the reasons discussed above. "The standard governing a motion to compel arbitration depends on whether there is a factual dispute regarding the existence of an arbitration agreement purporting to bind the nonmoving party with respect to the claims being asserted." Karlin v. UATP Springfield, LLC, 706 S.W.3d 810, 814 (Mo. banc 2025). "If [as here] there is such a

16 dispute, the circuit court must conduct an evidentiary hearing to determine whether such an agreement exists." Id. (citing § 435.355.1 10 ). And "[t]he party seeking to compel arbitration has the burden of proving that existence by competent evidence." Id. Accordingly, on October 27, 2022, the court held an evidentiary hearing on Hook's and G&W's motion to compel arbitration. Hook testified that McKinley is bound by the Operating Agreement, including its arbitration provision; the court did not find Hook's testimony credible. Thus, the court concluded that Hook and G&W did not meet their burden of proving the existence of an agreement to arbitrate, and the court denied the motion. With respect to the factual determination concerning the existence of an arbitration agreement purporting to bind the nonmovant with respect to the claims brought, the circuit court's decision overruling a motion to compel arbitration will be affirmed unless there is no substantial evidence to support it or it is against the weight of the evidence. Karlin, 706 S.W.3d at 814. 11 Because we affirm the trial court's finding that McKinley is not bound by the Operating Agreement and no other evidence of an agreement to

10 Section 435.355.1 states, On application of a party showing an agreement described in section 435.350, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party; otherwise the application shall be denied. 11 "When the circuit court finds the existence of an arbitration agreement purporting to bind the nonmoving party with respect to the claims asserted, or that fact is uncontested, the question of whether to compel arbitration is a question of law." Karlin v. UATP Springfield, LLC, 706 S.W.3d 810, 814 (Mo. banc 2025). "If there are disputes as to the scope or validity of the arbitration agreement, the circuit court must resolve

17 arbitrate was offered at trial, the trial court's denial of the motion to compel is supported by substantial evidence and is not against the weight of the evidence. Thus, the court did not err in denying Hook's and G&W's motion to compel arbitration. Point III is denied. Conclusion For the foregoing reasons, the judgment of the trial court is affirmed.

Karen King Mitchell, Judge Edward R. Ardini, Jr., Presiding Judge, and Cynthia L. Martin, Judge, concur.

those disputes before ruling on the motion unless the arbitration agreement purports to commit such disputes to the arbitrator by way of a delegation clause." Id. Hook and G&W claim that the Agreement's arbitration clause contains a delegation clause requiring the court to grant the motion to compel and send both the scope and validity claims and the principal claims to arbitration. We need not address the delegation argument because we agree with McKinley that no arbitration agreement (and thus no delegation clause) existed between the parties. See Theroff v. Dollar Tree Stores, Inc., 591 S.W.3d 432, 440 (Mo. banc 2020) (affirming denial of motion to compel where nonmovant successfully contested factual existence of arbitration agreement and court "cannot delegate the matter to an arbitrator whose very existence depends upon an agreement"). ___________________________________