VOL. 63 COURT OF APPEALS OF KANSAS 435
Duling v. Mid American Credit Union
and indefinite. City of Lenexa v. C.L. Fairley Const. Co., Inc., 245
Kan. 316, 319, 777 P.2d 851 (1989); Hemphill v. Ford Motor Co.,
41 Kan. App. 2d 726, 735, 206 P.3d 1 (2009). But a party cannot
be required to arbitrate a particular dispute without an agreement
to arbitrate. K.S.A. 5-429(c); AT & T Technologies, Inc. v. Com-
munications Workers, 475 U.S. 643, 648, 106 S. Ct. 1415, 89 L.
Ed. 2d 648 (1986); see Oxford Health Plans LLC v. Sutter, 569
U.S. 564, 569 n.2, 133 S. Ct. 2064, 186 L. Ed. 2d 113 (2013) (ex-
plaining whether an arbitration agreement exists is a "gateway
matter[]"); but see Franklin v. Sunflower Imports, Inc., No.
95,299, 2006 WL 3257461, at *3 (Kan. App. 2006) (noting con-
trary authority suggesting federal policy favoring arbitration
might apply to the determination of whether there is a valid agree-
ment to arbitrate).
Whether the parties agreed to arbitrate is determined by con-
tract law. See First Options of Chicago, Inc. v. Kaplan, 514 U.S.
938, 943-45, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995); Heartland
Premier, LTD v. Group B & B, L.L.C., 29 Kan. App. 2d 777, Syl.
¶ 3, 31 P.3d 978 (2001). And under Kansas law, whether a binding
contract has been formed depends on the intention of the parties
and is a question of fact. Reimer v. Waldinger Corp., 265 Kan.
212, 214, 959 P.2d 914 (1998). An appellate court generally re-
views a district court's finding that a contract exists for substantial
competent evidence. Price v. Grimes, 234 Kan. 898, 904, 677 P.2d
969 (1984); Source Direct, Inc. v. Mantell, 19 Kan. App. 2d 399,
407, 870 P.2d 686 (1994). Similarly, whether a particular term of
a written contract has been modified or waived by a later agree-
ment is a question of fact for the trial court. Thoroughbred Assocs.
v. Kansas City Royalty Co., 297 Kan. 1193, 1209, 308 P.3d 1238
(2013).
Still, as the party moving to compel arbitration, MACU had
the "initial summary-judgment-like burden" of presenting enough
evidence to show an enforceable agreement to arbitrate. See Uni-
fied School Dist. #503, Parsons, Kansas v. R.E. Smith Const. Co.,
No. 07-2423-GLR, 2008 WL 2152198, at *2 (D. Kan. 2008). The
district court found that MACU failed to meet this burden, which
is a negative finding. See Mohr v. State Bank of Stanley, 244 Kan.
555, 567, 770 P.2d 466 (1989) ("A finding that the plaintiff did
not sustain the burden of proof is a negative finding."); see also