Michael Waller vs. Commerce Bank, et al.

MICHAEL WALLER, ) ) Respondent, ) ) WD87936 v. ) ) OPINION FILED: ) March 10, 2026 COMMERCE BANK, et al., ) ) Appellants. ) Appeal from the Circuit Court of Jackson County, Missouri The Honorable Bryan E. Round, Judge Before Division Two: Gary D. Witt, Presiding Judge, Mark D. Pfeiffer, Judge, and Edward R. Ardini, Jr., Judge Commerce Bank and its employees, Ms. Mary "Jo" Burdette ("Burdette") and Ms. Ann Bronson ("Bronson") (collectively "Commerce Bank"), appeal the interlocutory order of the Circuit Court of Jackson County, Missouri ("circuit court"), denying Commerce Bank's motion to compel arbitration of Mr. Michael Waller's ("Waller") claims under the Missouri Human Rights Act ("MHRA"). Because there is an unambiguous exclusion clause within the arbitration provision that is applicable to the

2 undisputed facts of the underlying lawsuit relevant to this appeal, we affirm the circuit court's denial of Commerce Bank's motion to arbitrate. Facts and Procedural History The facts of this case relevant to this interlocutory appeal are not disputed, and the circuit court's March 19, 2025 ruling on the motion to compel arbitration succinctly and clearly described the relevant facts, legal dispute at hand, and reasoning for denying the motion, to-wit, in pertinent part: [Waller] brought this action for Race Discrimination in Public Accommodation and Retaliation in Public Accommodation under the Missouri Human Rights Act after his request to open two business accounts was denied after several visits to two separate locations of Defendant Commerce Bank. [Waller] claims he was denied the opportunity to open the business accounts because he is Black. [Commerce Bank] filed the present Motion, alleging that "[Waller] agreed to the terms of a Deposit Agreement when opening his personal account [1] with Commerce [Bank], and the Deposit Agreement requires Waller to arbitrate all claims related to or concerning his relationship with Commerce [Bank]." However the Dispute Resolution – Arbitration section of said Deposit Agreement contains a provision which states "[t]his agreement to arbitrate shall not apply to any Claims or other disputes relating to business accounts or other non-personal accounts as such accounts are defined in Section II.I of this Agreement. Other claims, disputes, controversies or issues not subject to arbitration are set forth in the section titled "Rights Preserved." (emphasis added)[.] The present claim is related exclusively to [Waller's] attempts to open business accounts. . . . . THEREFORE, [Commerce Bank's] Motion to Compel Arbitration and Stay Proceedings is DENIED.

1 Waller had successfully opened a personal banking account with Commerce Bank at a time separate and apart from his attempts to open a business account with Commerce Bank.

3 Pursuant to the authority of section 435.440.1, 2 Commerce Bank filed this interlocutory appeal challenging the circuit court's ruling denying the motion to compel arbitration. Commerce Bank also attempts to bootstrap an appeal from an earlier ruling in the lawsuit that denied a motion to dismiss into this interlocutory appeal of the circuit court's arbitration ruling. Further facts and procedural history as relevant to the appeal are itemized in our analysis of this appeal. Analysis I. Preliminarily, we must consider the scope of our review on this appeal. "The right to appeal is purely statutory[,] and where a statute does not give a right to appeal, no right exists." State ex rel. Koster v. ConocoPhillips Co., 493 S.W.3d 397, 399 (Mo. banc 2016) (citation modified) (quoting Farinella v. Croft, 922 S.W.3d 755, 756 (Mo. banc 1996)); accord M & I Marshall & Ilsley Bank v. Sader & Garvin, L.L.C., 318 S.W.3d 772, 775 (Mo. App. W.D. 2010) ("In Missouri, the right to appeal is purely statutory, and where a statute does not confer the right to appeal, no appeal can exist." (quoting State v. Moad, 294 S.W.3d 83, 86 (Mo. App. W.D. 2009))). "Generally, a final judgment is a prerequisite to appellate review." Fleming & Hall Adm'rs, Inc. v. Response Ins. Co., 195 S.W.3d 458, 460 (Mo. App. W.D. 2006). "An interlocutory order may only be immediately appealed when specific statutory authority grants the party the right to such

2 All statutory references are to THE REVISED STATUTES OF MISSOURI (2016), as supplemented through June 27, 2023, unless otherwise indicated.

4 an appeal." In re J.A.F., 680 S.W.3d 155, 159 (Mo. App. W.D. 2023) (emphasis added) (quoting Lopez v. Heartland Midwest, LLC, 602 S.W.3d 841, 845 n.4 (Mo. App. W.D. 2020)). In this interlocutory appeal, Commerce Bank invokes appellate jurisdiction pursuant to section 435.440.1, which provides: "An appeal may be taken from: (1) An order denying an application to compel arbitration . . . [.]" No part of section 435.440 authorizes this court to review an interlocutory order denying a motion to dismiss a petition for lack of standing, which is the basis for Commerce Bank's motion to dismiss that was denied by the circuit court early in the proceedings below. To the contrary, "The denial of a motion to dismiss is not a final judgment and is thus not appealable. However, a party may challenge the denial of a motion to dismiss on an appeal from a final judgment." City of Kansas City v. Troyer, 670 S.W.3d 77, 82 (Mo. App. W.D. 2023) (emphasis added) (citation omitted) (citing Williams v. City of Kinloch, 657 S.W.3d 236, 241 (Mo. App. E.D. 2022)). 3

Additionally, Missouri appellate courts have historically considered challenges to a litigant's standing through writs of prohibition. See State ex rel. Cunningham v.

3 In other words, the circuit court's ruling denying the motion to dismiss is interlocutory and subject to change during the pendency of the proceedings below or may be more appropriately presented to the circuit court via a motion for summary judgment if the material facts impacting the issue of standing are not in dispute and the law dictates a result based upon those undisputed facts. While the facts relating to the motion to compel arbitration are not in dispute, the appellate briefing does suggest that the facts impacting legal standing are in dispute. Irrespective, appeal of the circuit court's ruling denying Commerce Bank's motion to dismiss is not properly before this Court in this interlocutory appeal of the arbitration ruling by the circuit court.

5 Wiggins, 156 S.W.3d 473, 475 (Mo. App. S.D. 2005) (collecting cases to support the proposition that "[s]ince standing is jurisdictional, [4] prohibition is a proper remedy when an action is brought by a party who lacks standing"); Lee v. Jamison, 338 S.W.3d 844, 845 (Mo. App. E.D. 2011) ("While it is unusual to issue a writ directing a court to grant a motion to dismiss, such a writ is appropriate where the motion should have been granted because the other party lacks standing or capacity to sue." (quoting State ex rel. Griffin v. Belt, 941 S.W.2d 570, 572 (Mo. App. W.D. 1997))); cf. State ex rel. Waller v. Tobben, 529 S.W.3d 21, 25-26 (Mo. App. E.D. 2017) (noting that a writ of prohibition is an appropriate remedy when a circuit court exceeds its authority and citing with approval Lee's issuance of a writ of prohibition ordering the circuit court to dismiss a petition for lack of standing); State ex rel. Wratchford v. Fincham, 521 S.W.3d 710, 712-13 & n.1 (Mo. App. W.D. 2017) (granting writ relief of a matter once considered "jurisdictional" prior to the Missouri Supreme Court's decision in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), on the basis that the circuit court acted in excess of its authority, even though the circuit court did not act in excess of its subject matter jurisdiction). Commerce Bank may not appeal the circuit court's interlocutory denial of its motion to dismiss in the present appeal, where as relevant here, section 435.440.1 only

4 The Missouri Supreme Court clarified in 2013 that standing is prudential, not jurisdictional. Schweich v. Nixon, 408 S.W.3d 769, 773-74 (Mo. banc 2013) (explaining that "[j]usticiability is a 'prudential' rather than a jurisdictional doctrine" in Missouri courts and that standing is a component of justiciability).

6 authorizes the interlocutory appeal of the circuit court's ruling denying the motion to compel arbitration. Accordingly, we refuse to consider Point I, which is an attempt to appeal from the interlocutory ruling by the circuit court of a denial of a motion to dismiss without any statutory authority to do so at this juncture of the proceedings. II. In Point II, Commerce Bank contends the circuit court erred in denying its motion to compel arbitration. "Motions to compel arbitration generally present two central issues: (1) whether the parties to the lawsuit entered into an enforceable arbitration agreement; and (2) whether the scope of that agreement encompasses the disputes raised in the lawsuit." Maune v. Raichle, 721 S.W.3d 865, 869 (Mo. banc 2025). "The parties, however, may agree to arbitrate either or both of these threshold issues by including in the arbitration agreement a delegation provision broad enough to encompass them." Id. (citing Brown v. GoJet Airlines, LLC, 677 S.W.3d 514, 521 (Mo. banc 2023)). Here, neither party argues that either of these threshold issues have been delegated to arbitration and the arbitration agreement makes clear that those issues are not delegated to arbitration. 5

5 In fact, the subject arbitration agreement expressly provides that both threshold issues shall be determined by a court, not an arbitrator: Notwithstanding any other language herein, the term "Claim" shall not include any dispute or controversy regarding the validity, enforceability, coverage or scope of this agreement to arbitrate . . . ; all such disputes are for a court and not the arbitrator to decide.

7 "The circuit court's ruling on a motion to compel arbitration is an issue of law, which we review de novo. 'Our review of the trial court's interpretation of an arbitration provision is also de novo, as arbitration is contractual, and contract interpretation is a question of law.'" Mackey v. Schooler's Constr., L.L.C., 640 S.W.3d 792, 797 (Mo. App. W.D. 2022) (citation omitted) (quoting Holm v. Menard, Inc., 618 S.W.3d 668, 673 (Mo. App. W.D. 2021)). "Determining the scope of an arbitration agreement requires application of 'the usual rules of state contract law and canons of contract interpretation' in order to 'ascertain the intent of the parties through the plain and ordinary meaning of the contract terms and give effect to that intent.'" Nelson Trucking, LLC v. K&M Translogic, LLC, 696 S.W.3d 407, 417 (Mo. App. W.D. 2024) (emphasis added) (quoting Mackey, 640 S.W.3d at 798); see also Triarch Indus., Inc. v. Crabtree, 158 S.W.3d 772, 776 & n.5 (Mo. banc 2005) (collecting cases supporting the proposition that, "in determining whether the parties have entered into a valid agreement to arbitrate, the usual rules of state contract law and canons of contract interpretation apply"). Here, the relevant provisions of the arbitration agreement that the parties entered into when Waller opened a personal banking account with Commerce Bank are plain, ordinary, and unambiguous terms: You and [Commerce Bank] agree that either of us may elect to resolve any Claims (as defined below) through binding arbitration unless you opt out of the agreement to arbitrate as set forth below. If you or [Commerce Bank] elect to resolve a Claim through arbitration, neither you nor [Commerce

(Emphasis added.)

8 Bank] will have the right to pursue such claim in court or have a jury decide the claim, nor will you or [Commerce Bank] have the right to bring or participate in any class or other representative action in court or in arbitration. What Claims are Subject to Arbitration? As used in this section, the term "Claim" has the broadest possible meaning and includes, but is not limited to, any unresolved disagreement, controversy, dispute, or cause of action between you and [Commerce Bank], whether preexisting, present or future, arising out of, related to or concerning this Agreement, your account(s), the services provided pursuant to this Agreement, any relationship between you and [Commerce Bank], or any advertisement or solicitation, whether such Claim is asserted or brought in a direct, derivative, assignee, survivor, successor, beneficiary or personal capacity. Without limiting the foregoing, the term "Claim" also includes any unresolved disagreement, controversy, dispute, or cause of action between you and [Commerce Bank] arising out of, related to or concerning any fees or charges relating to any deposit account(s), and any services relating to any deposit account(s) . . . . What Disputes are Not Subject to Arbitration? Notwithstanding any other language herein, the term "Claim" shall not include any dispute or controversy regarding the validity, enforceability, coverage or scope of this agreement to arbitrate or any part thereof, including, without limitation, the "Waiver of Jury Trial and Class or Representative Action" provision set forth below, subsections A and B of the "Survival and Severance" provision set forth below and this sentence; all such disputes are for a court and not the arbitrator to decide. . . . This agreement to arbitrate shall not apply to any Claims or other disputes relating to business accounts or other non-personal accounts as such accounts are defined in Section II.I of this Agreement. (Emphasis added.) Consequently, while we agree with Commerce Bank that the arbitration agreement defines "Claim" to have "the broadest possible meaning," we also note that the same arbitration provision very plainly excludes from the definition of "Claim" any dispute "relating to business accounts." And, in this litigation, the entire dispute revolves around discrimination claims that "relate" to Waller's attempt to open a "business account" with

9 Commerce Bank and Commerce Bank's refusal to open such business account, allegedly for a discriminatory reason. The plain and ordinary meaning of the arbitration exception provision language is susceptible to only one reasonable interpretation relevant to the underlying litigation. The plain and ordinary meaning of "disputes relating to business accounts" encompasses disputes arising out of the process for opening and administering a business account— regardless of whether the process of opening a business account ultimately results in establishing a business account. 6

Because Waller's claims relate solely to his attempts to open business accounts with Commerce Bank, the claims brought in Waller's petition fall within the scope of the exception to arbitration clause. Thus, the circuit court did not err in denying Commerce Bank's motion to compel arbitration.

6 Commerce Bank makes the circular argument that since Commerce Bank refused to open a business account for Waller, Waller never established the business account relationship contemplated by the exception clause, so he possesses no "business account" to "relate" his complaints of racial discrimination to. Stated simply, we are not persuaded by this circular and narrow argument as to the otherwise plain and broad meaning contemplated by the word "relate." "When terms are undefined we give terms their ordinary meaning, which is the meaning that the average layperson would reasonably understand. To determine the ordinary meaning of a term, we can consult standard English language dictionaries." Franklin v. Lexington Ins. Co., 652 S.W.3d 286, 295 (Mo. App. W.D. 2022) (citation modified) (quoting Ferguson v. St. Paul Fire & Marine Ins. Co., 597 S.W.3d 249, 256 (Mo. App. W.D. 2019)). The ordinary definition of "relate," as defined by the Merriam-Webster Dictionary, means "to have relationship or connection." Relate, M ERRIAM-WEBSTER DICTIONARY, https://www.merriamwebster.com/dictionary/relate (last visited Jan. 29, 2026); see also Mayfield v. Dir. of Revenue, 335 S.W.3d 572, 574 (Mo. App. E.D. 2011) ("According to Webster's Dictionary (1990), 'relate' means 'to have a relationship or connection: REFER.'"). Under the ordinary meaning of "relate," Waller's claims are not subject to arbitration if, as is the case here, they have any connection to a business account.

10 Point II is denied. Conclusion The circuit court's order denying Commerce Bank's motion to compel arbitration is affirmed.

Mark D. Pfeiffer, Judge Gary D. Witt, Presiding Judge, and Edward R. Ardini, Jr., Judge, concur.

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