Court of Appeals of Missouri, Western District, Third Division
FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE
HONORABLE JOHN M. TORRENCE, JUDGE
Lisa White Hardwick, Presiding Judge, Victor C. Howard,
Judge, and Alok Ahuja, Judge
C. HOWARD, JUDGE
Sanders appeals the trial court's order dismissing his
lawsuit against Calvert's Express Auto Service &
Tire, Express Auto Sales, Service & Tire LLC, Express
Auto & Tire LLC, Gary Calvert Sr., Gary Calvert Jr., Rick
Herd, and Daniel Willson (collectively Respondents). The
judgment is reversed, and the case is remanded with
directions to stay the action.
Sanders filed a multi-count lawsuit against Respondents in
Jackson County Circuit Court for employment discrimination,
retaliation, vehicular battery, breach of contract, and fraud
in connection with his employment as an auto mechanic at
Calvert's. Based on a Severance Agreement executed
between Mr. Sanders and Calvert's, its owners, and
related entities, Respondents filed a motion to dismiss or
alternatively to compel arbitration or stay the case or
enforce the Severance Agreement. In the Severance Agreement,
Mr. Sanders agreed to voluntarily relinquish his employment
with Calvert's and release it from any claims related to
his employment in exchange for a severance payment of $2000
and Calvert's promise not to dispute any unemployment
benefits. The Severance Agreement also included the following
paragraph, which contained an arbitration provision, a forum
selection clause, and a choice of law provision:
Any dispute under or including this Agreement shall be
subject to arbitration under the provisions of the Federal
Arbitration Act. Further, should this arbitration clause be
held unenforceable, the parties agree that any lawsuit filed
under or including this Agreement shall be filed in the State
Court of Johnson County, Kansas. In any event, whether or not
arbitration is upheld, the laws of the State of Kansas will
govern the interpretation, validity, and effect of this
their motion, Respondents asserted that a demand for
arbitration was pending in the District Court of Johnson
County, Kansas, and asked that the court either dismiss or
stay the Missouri action.
Sanders filed an amended petition separating his employment
discrimination and retaliation claims into counts for race
discrimination, race retaliation, age discrimination, and age
retaliation. Two weeks later, the trial court entered a case
management order scheduling a case management conference and
advising the parties that it would rule on Respondents'
the trial court entered an order granting Respondents'
motion to dismiss. It found that there was no evidence that
Respondents breached their promise in the Severance Agreement
not to dispute Mr. Sander's unemployment benefits claim,
therefore the Severance Agreement was valid and any
litigation regarding Mr. Sander's employment should be
heard in Kansas. This appeal by Mr. Sanders followed.
Sanders raises four points on appeal challenging the trial
court's dismissal of his action. He contends that the
trial court erred in (1) finding the Severance Agreement
valid, (2) treating the motion to dismiss as a motion for
summary judgment by considering evidence outside the record,
(3) considering the motion to dismiss after he timely filed
his amended petition, and (4) dismissing the action rather
than staying the proceedings. Points one and four are
dispositive and are the only points addressed.
faced with a motion to compel arbitration, the trial court
determines whether a valid arbitration agreement exists and,
if so, whether the specific dispute falls within the scope of
the agreement. Ellis v. JF Enters., LLC, 482 S.W.3d
417, 419 (Mo. banc 2016). The arbitration provision of the
Severance Agreement provided that disputes under or including
the Agreement are subject to arbitration under the FAA. Under
the FAA, an arbitration provision is severable and must be
considered separate and apart from the rest of the contract.
Id. The validity of an arbitration provision is
subject to initial court determination while the validity of
the contract as a whole (if the arbitration provision is
valid) is for the arbitrator to decide. Id. at
420-423 (citing Nitro-Lift Techs., L.L.C. v. Howard,
568 U.S. 17, 21 (2012); Rent-A-Ctr., W., Inc. v.
Jackson, 561 U.S. 63, 70-71 (2010); Buckeye Check
Cashing, Inc. v. Cardegna, 546 U.S. 440, 445 (2006);
Prima Paint Corp. v. Flood & Conklin Mfg. Co.,
388 U.S. 395, 403-404 (1967)). An arbitration agreement is
enforceable "unless the arbitration agreement itself-in
isolation-is invalid under generally applicable state law
principles." Id. at 420.
Sanders has never, below or now on appeal, disputed that his
claims fall within the arbitration agreement. He has also
never attacked the arbitration provision specifically. He
only challenges the Severance Agreement as a whole. Under
Ellis, such challenge is for the arbitrator to
decide. Id. at 423. The trial court, therefore,
erred in determining that the Severance Agreement was valid.
The judgment must be reversed.
time of Respondents' motion to dismiss or compel
arbitration or stay the proceedings, they had filed a motion
to compel arbitration in Kansas under the Severance
Agreement. Subsequently, Mr. Sanders filed his answer and
counterclaims in the Kansas case including for rescission of
the Severance Agreement. According to the parties, they are
now engaged in arbitration in Kansas. "The FAA requires
a trial court to issue a stay if an issue in the case is
referable to arbitration." Shelter Prods., Inc. v.
OMNI Constr. Co., 479 S.W.3d 189, 194 (Mo. App. W.D.
2016)(internal quotes and citation omitted). The arbitration
agreement provided that any dispute under or including the
Severance Agreement shall be subject to arbitration. Mr.
Sanders's claims are referable to arbitration. The
appropriate relief in this case is to stay the action.
Id.; Dotson v. Dillard's, Inc., 472 S.W.3d 599,
608 n.6 (Mo. App. W.D. 2015)("the remedy under both the
FAA and Missouri's Uniform Arbitration Act is to stay the
proceedings, rather than to dismiss").
judgment is reversed, and the case is remanded with
directions to stay the ...