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CARGILL, INC., Plaintiff-Appellant, v. CHARLES POEPPELMEYER a/k/a BILL POEPPELMEYER a/k/a CHUCK POEPPELMEYER d/b/a B&B FARMS, Defendant-Respondent.

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No. SD30267 Filed: December 21, 2010

APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY Honorable Stephen R. Sharp, Circuit Judge REVERSED AND REMANDED WITH DIRECTIONS Cargill, Inc. ("Appellant") appeals the trial court's denial of its motion to confirm an arbitration award against Charles Poeppelmeyer ("Respondent") pursuant to the terms of a futures contract. We reverse the trial court's decision because it was not based on substantial evidence in that no evidence was taken. Before the trial court were simply allegations and admissions from the pleadings and argument of counsel. Likewise, we only have the same allegations and pleadings to

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review. As such, we set forth the allegations as well as we can.1 In February, 2006, Appellant entered into a contract to purchase from Respondent 15,000 bushels of U.S. soft red winter wheat for a price of $4.18 per bushel, to be delivered in June or July of 2007. The contract contained a binding arbitration clause requiring any disputes arising out of the contract to be arbitrated by the National Grain and Feed Association ("NGFA"). The arbitration clause, in full, reads: Unless otherwise provided herein, this Contract, and all other grain contracts by and between Buyer and Seller, shall be subject to the Trade Rules of the National Grain and Feed Association (NGFA), which Trade Rules are incorporated herein by reference. The parties agree that the sole forum for resolution of all disagreements or disputes between the parties arising under any grain contract between Buyer and Seller or relating to the formation of any grain contract between Buyer and Seller shall be arbitration proceedings before NGFA pursuant to NGFA Arbitration Rules. The decision and award determined by such arbitration shall be final and binding upon both parties and judgment upon the award may be entered in any court having jurisdiction thereof. Copies of the NGFA Trade and Arbitration Rules are available from Buyer upon request and are available at www.ngfa.org. In addition to any damages otherwise provided by law, Buyer shall be entitled to recovery of its attorney's fees and costs. Appellant claimed that Respondent failed to deliver the wheat, leading Appellant to seek redress through arbitration proceedings before the NGFA on October 16, 2007. Consistent with its rules, the NGFA submitted an arbitration services contract to the parties. Section 5(e) of the NGFA's arbitration rules provides the following: "Where a party fails to pay the arbitration service fee and/or fails to execute the contract for arbitration, the National Secretary may without further submissions by the parties enter a default judgment or such other relief as the National Secretary deems appropriate."

Respondent did not submit a brief on appeal. While there is no penalty for Respondent failing to file a brief, this Court is then forced to adjudicate Appellant's claim of error without the benefit of whatever argument Respondent might have raised. McClain v. Kelley, 247 S.W.3d 19, 23 (Mo. App. S.D. 2008).

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Respondent never executed the arbitration contract the NGFA sent him following his failure to deliver the 15,000 bushels of wheat. The NGFA subsequently entered a default judgment award against Respondent for $38,662.50, presumably the difference between the contract price and the market price of the wheat when delivery was due. Appellant then filed a motion to confirm the arbitration award in the trial court. In his answer to the motion, Respondent claimed the NGFA's arbitration award was invalid in that: (1) the arbitrators exceeded their powers by violating an automatic Chapter 12 bankruptcy stay; (2) the arbitrators refused to postpone the hearing upon a sufficient cause being shown

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