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Court of Appeals Affirms Order on Motion to Compel Arbitration for Behr, McCarter & Potter Client

On April 28, 2020, the Eastern District of the Missouri Court of Appeals affirmed a circuit court's determination in favor of a Behr, McCarter & Potter client that an arbitration provision in an illegal contract is unenforceable. The Appellant had sought to compel arbitration regarding a dispute over a contract that included, among other things, the preparation of engineering drawings. Missouri law prohibits any person from practicing as an engineer or architect without a valid license. In addition, any contract for engineering services entered into by any person that is not licensed to perform those services in Missouri is unenforceable by the unlicensed engineer.

In this case, the Respondent alleged that the arbitration provision and its delegation provision contained in the contract were unenforceable because the engineer was not licensed to perform engineering services in Missouri. The Respondent presented an affidavit to the circuit court stating that the contract required the performance of engineering services. The Appellant presented no evidence in response, and instead, argued that the arbitrator should decide if the contract is illegal and not the court. The circuit court found in favor of the Respondent and denied the motion to compel arbitration.

In an unpublished memorandum opinion, the court of appeals affirmed the circuit court. The court determined that the entire contract was unenforceable against the Respondent as a result of the unauthorized practice of engineering, including the arbitration provision. According to the court, to hold otherwise would be an approval of the unauthorized practice of engineering.

Dudley McCarter, John Torbitzky, and Lucas Null handled the appeal.

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