Mandate Issued: 03/28/2018
FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
HONORABLE ALETIA HAYNES TIMMONS, TRIAL JUDGE
Kathi Rawls, Minal Gahlot, RAWLS GAHLOT, PLLC, Moore,
Oklahoma, for Plaintiffs/Appellees
Craig Cole, John E. Gatliff II, Kendra N. Avila, C. CRAIG
COLE & ASSOCIATES, Oklahoma City, Oklahoma, for
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS AND
APPEAL DISMISSED WITHOUT PREJUDICE IN PART
The defendants, Howard-GM II, Inc. d/b/a Smicklas Chevrolet
(Smicklas) and BBVA Compass Financial Corporation (Compass),
appeal an Order denying their motion to compel arbitration in
an action filed by Jillian Ramick and Clayton Ramick
(collectively, Ramicks). The defendants also appeal an order
sustaining in part only their motion to dismiss.
Ramicks purchased a used automobile from Smicklas. The
transaction was financed through Compass.
Ramicks began to have trouble with the vehicle and assert
that it had previously been damaged. They claim that
Smicklas' sales personnel misrepresented material facts
regarding the automobile. Compass refused their demand to
rescind the transaction. Ramicks sued and, in their amended
petition, alleged claims for fraud, rescission, breach of
contract, defamation, violation of the Oklahoma Consumer
Protection Act and the Uniform Commercial Code, negligence
and intentional infliction of emotional distress.
Smicklas and Compass moved to compel arbitration based upon
an arbitration provision in the Purchase Agreement Contract
(Contract).  They also sought dismissal for failure
to plead definitely allegations of fraud and for failure to
state a claim.
The Contract provides that Ramicks agree to buy and Smicklas
agrees to sell a vehicle for a price paid in accord with the
Contract. A portion of the Contract is outlined in a box
titled in bold print as "Please read carefully! Notice
of Arbitration." The text explains the right to exercise
arbitration and its consequences. The text further provides:
The Federal Arbitration Act (9 U.S.C. § 1, et seq.)
governs this arbitration agreement and not any state law
concerning arbitration, including state law arbitration rules
and procedures. This arbitration agreement survives any
termination, payoff or transfer of the Contract.
In addition to the Contract, Ramicks and Smicklas executed a
separate Retail Installment Sales Contract (RISC).
The RISC is dated the same day as the Contract. Both involve
the same automobile purchase transaction. The RISC recites:
You, the Buyer (and co-Buyer, if any) may buy the vehicle
below for cash or on credit. By signing this contract, you
choose to buy the vehicle on credit under the agreements on
the front and back of this contract. You agree to pay the
Seller-Creditor (sometimes "we" "us" in
this contract) the Amount Financed and Finance Charge in U.S.
funds according to the payment schedule below. We will figure
your finance charge on a daily basis. The Truth-in-Lending
Disclosures below are part of this contract.
The RISC sets out the credit terms and financing details of
interest, consequences of failure to make payments, etc. The
closing provisions provide, in part:
HOW THIS CONTRACT MAY BE CHANGED. This contract contains the
entire agreement between you and us relating to this
contract. Any change to this contract must be in writing and
we must sign it. No oral changes are binding. (Signatures of
Smicklas assigned the RISC to Compass. The RISC makes no
mention of the Contract and it does not contain an
arbitration clause.  There were several additional
documents included in the transaction. 
The trial court denied the motion to compel arbitration.
In doing so, the trial court ruled that the RISC expressed
all of the contract agreements of the parties and did not
contain a merger clause to merge the Contract (and its
arbitration provision) into the RISC. The trial court relied
on Walker v. BuildDirect.com Technologies, Inc.,
2015 OK 30, 349 P.3d 549. 
The trial court also denied the motion to dismiss, except as
to the fraud claim. The plaintiffs were given an opportunity
to amend, but that amendment, if any, is not in the Appellate
This Court notes that Ramicks' trial court response and
their appellate brief argue that the arbitration clause was
fraudulently induced and that it is unconscionable. Last,
Ramicks argue that Compass is not a party to the arbitration
provisions of the original contract and cannot compel
arbitration. However, the motion hearing focused upon the
holding of Walker and did not address these
additional points. Moreover, the trial court's decision
did not rule on these points. The development of applicable
facts and legal analysis are first accomplished in the trial
court. Bivins v. State ex rel. Oklahoma Mem'l
Hosp., 1996 OK 5, ¶ 19, 917 P.2d 456, 464.
Therefore, these issues are not addressed in this Opinion.
Smicklas and Compass have appealed. Their appeal includes the
ruling denying the motion, in part, based on a failure to
state a claim. Ramicks challenge this part of the appeal on
the ground that it is not an appeal of a final order.
Smicklas and Compass essentially concede that point by asking
this Court to deem the appeal as an application to assume
This Court will consider only the appeal of the denial of the
request to compel arbitration. The remainder of the appeal
does not involve an appeal of a final order and that part of
the appeal is dismissed without prejudice. This Court
declines to deem the appeal as an application to assume
The sole appellate issue is whether the parties have a
contract calling for arbitration. Generally state law
principles apply to determine the existence of such a
contract. Walker v. BuildDirect.com Technologies,
Inc., 733 F.3d 1001, 1004 (10th Cir. 2013); Rogers
v. Dell Computer Corp., 2005 OK 51, ¶ 14, 138 P.3d
826, 830. Clearly, the initial Contract with Smicklas does
have an arbitration provision and the RISC does not have an
arbitration provision. Equally apparent is that both
documents, on their face, are contracts and neither
incorporates the other.
The trial court's decision is based upon an
interpretation of the RISC. The interpretation of a contract
is a matter of law. Corbett v. Combined Commc'ns
Corp. of Oklahoma, Inc., 1982 OK 135, ¶ 5, 654 P.2d
616, 617. A trial court's legal decision is reviewed
de novo. Neil Acquisition, L.L.C. v. Wingrod Inv.
Corp., 1996 OK 125, 932 P.2d 1100 n.1.
The resolution of this appeal depends upon whether the RISC
is the entire agreement of the parties or whether there are
multiple contracts. There is no question that multiple
documents were executed as a part of this transaction and
that one of them, the Contract, provides for arbitration.
Thus, Ramicks must have the Contract "go away."
They reach this result by arguing that the RISC is the entire
agreement and the Contract is merged without including an
agreement for arbitration either specifically, or by
incorporation of the Contract's arbitration clause. The
Ramicks' conclusion must be in accord with
Walker, where the Oklahoma Supreme Court instructs
that before the Contract, or at least its arbitration clause,
may be considered as merged into the RISC, the RISC must meet
the following criteria:
Under the Oklahoma law of contracts parties may incorporate
by reference separate writings... where (1) the underlying
contract [here the RISC] makes clear reference to the
extrinsic document [here the Contract], (2) the identity and
location of the extrinsic document may be ascertained beyond
doubt, and (3) the ...