PC Scale Inv. v. Roll Off Servs
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Cite as 2010 Ark. App. 480
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA09-1150
P C SCALE, INC.; TRANSCOMP
SYSTEMS, INC.
APPELLANTS
Opinion Delivered
JUNE 2, 2010
V.
APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
[NO. CIV-08-1841-2]
ROLL OFF SERVICES, INC.
HONORABLE DAVID S. CLINGER,
JUDGE
APPELLEE
REBRIEFING AND SUPPLEMENTAL
RECORD ORDERED
KAREN R. BAKER, Judge
This appeal is brought from an order denying appellants’ motion to compel arbitration.
However, we cannot reach the merits of appellants’ arguments because one of the contracts
that is the subject of the appeal is missing a page. We therefore order the record supplemented
with the missing page and order appellants to file a substituted brief with an addendum that
contains the full text of the contract.
In September 2004, appellant Transcomp Systems, Inc., contracted to provide appellee
Roll Off Services, Inc., with a software program and support services. Appellee signed four
separate documents in connection with the transaction. Two of the documents, a Software
License Agreement and a Professional Services Agreement, provided that they were governed
Cite as 2010 Ark. App. 480
by California law and that any disputes arising thereunder would be subject to arbitration. The
other two documents, a Proposal and a Support Agreement, contained no arbitration or
forum-selection clauses. When a dispute arose over alleged defects in the software, appellee
sued Transcomp and its successor in interest, appellant PC Scale, Inc., in circuit court for
fraud, breach of contract, breach of the implied covenant of good faith and fair dealing,
negligence, and breach of warranty. Appellants moved for a stay and asked the court to
compel arbitration in accordance with the arbitration clauses in the Software License
Agreement and the Professional Services Agreement. Appellee responded, inter alia, that the
dispute centered on the other two documents, which had no arbitration clauses. Appellants
then asserted that all four documents should be viewed as a single transaction, making a
dispute under any of them arbitrable. The circuit court, by its own admission, struggled with
the technical nature of the documents and the question of the parties’ intentions. Ultimately,
the court held two hearings and a bench trial before determining that it would not “merge”
the documents and would deny the motion to compel arbitration.
On appeal, appellants argue that the parties intended the four documents to
“memorialize a single transaction” and that a “plain reading” of the documents demonstrates
that they are “inextricably intertwined.” Appellants further state that, in order to fully
understand the issues on appeal, it is important “to first understand the four underlying
documents.” However, the lengthiest and most complex of the documents, the Software
License Agreement, is missing its third page. We have no way of knowing what is contained
on that page and how it may affect the issues on appeal. We therefore conclude, out of an
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Cite as 2010 Ark. App. 480
abundance of caution, that we must reserve our decision on the merits until we have the
contracts before us in their entirety.
Appellants are directed to file with our clerk’s office, within thirty days from the date
of this order, a certified, supplemental record containing the complete Software License
Agreement. See Ark. R. App. P. –Civ. 6(e); Chiodini v. Lock, 2009 Ark. 343, ___ S.W.3d
___. Upon filing the supplemental record, appellants shall have fifteen days in which to file
a substituted brief with an addendum that includes the complete agreement. See Ark. Sup. Ct.
R. 4-2(b)(3) (2009). If the missing page necessitates a revision in appellants’ argument, the
revision shall be contained in the substituted brief. After service of appellants’ substituted brief,
appellee shall have the opportunity to revise or supplement its brief. If appellants fail to file
the supplemental record or a conforming brief within the prescribed time, we may affirm for
noncompliance with our rules.
Rebriefing and supplemental record ordered.
KINARD and BROWN, JJ., agree.
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