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Theroff v. Dollar Tree Stores, Inc.

Court of Appeals of Missouri, Western District, Fourth Division

April 24, 2018

NINA THEROFF, Respondent,
v.
DOLLAR TREE STORES, INC. and JANIE HARPER, Appellants.

          Appeal from the Circuit Court of Cole County, Missouri The Honorable Patricia S. Joyce, Judge.

          Before: Mark D. Pfeiffer, Presiding Judge, and Cynthia L. Martin, Judge, and James Edward Welsh, Senior Judge. [1]

          OPINION

          Mark D. Pfeiffer, Chief Judge.

         Dollar Tree Stores, Inc. and Ms. Janie Harper (collectively, "Dollar Tree") appeal from the ruling of the Circuit Court of Cole County, Missouri ("circuit court"), denying their motion to compel arbitration of the claim of their former employee, Ms. Nina Theroff ("Theroff"), for disability discrimination under the Missouri Human Rights Act.[2] Because there is a difference between contract "formation" and contract "conclusion, " this case presents a "conclusion" issue and not a "formation" issue, and there is substantial evidence supporting the trial court's ruling that the arbitration agreement had not been "concluded" between the parties, we affirm.

         Factual and Procedural History

         Dollar Tree operated a retail store located at 3535 Missouri Boulevard in Jefferson City, Missouri. Janie Harper was employed as the Missouri Boulevard store manager. On October 21, 2015, Theroff applied for employment at the Missouri Boulevard store. During her interview with store assistant manager Kayla Swift, Theroff informed Ms. Swift that she was legally blind and used various assistive devices to read and move around. Ms. Swift told Theroff that she was hired and would need to return and complete paperwork at a later date. On October 23, 2015, Theroff returned to Dollar Tree to complete the hiring paperwork electronically. One of the documents reflecting that it was digitally signed by Theroff was a Mutual Agreement to Arbitrate Claims ("Mutual Agreement"). However, there was conflicting evidence about whether Theroff did, in fact, electronically sign the Mutual Agreement or otherwise authorized Swift to electronically sign her name on her behalf.

         Theroff was employed at the Missouri Boulevard store from October 21, 2015, until November 13, 2015. Thereafter, Theroff filed charges with the Missouri Commission on Human Rights against Dollar Tree for discrimination based on disability, and she subsequently received a Notice of Right to Sue. On October 3, 2016, Theroff filed a petition asserting a single claim of disability discrimination under the Missouri Human Rights Act against Dollar Tree. Theroff alleged that she was constructively discharged because Dollar Tree deliberately created an intolerable working environment by denying her request for a reasonable accommodation (service animal).

         On December 9, 2016, Dollar Tree filed a motion to compel arbitration. Following an evidentiary hearing on the motion to compel arbitration, the trial court denied the motion to compel arbitration, without making factual findings.

         Dollar Tree timely appealed.

         Standard of Review

         "This court will affirm the judgment of the motion court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law." Wood ex rel. Estate of Lisher v. Lisher, 187 S.W.3d 913, 915 (Mo. App. W.D. 2006) (citing Murphy v. Carron, 536 S.W.3d 30, 32 (Mo. banc 1976)). If the trial court does not make factual findings, as is the case here, then all facts "shall be considered as having been found in accordance with the result reached." Rule 73.01(c); Baier v. Darden Rests., 420 S.W.3d 733, 737 (Mo. App. W.D. 2014). Further, issues relating to whether or not an arbitration agreement exists are factual and require deference to the trial court. Baier, 420 S.W.3d at 736; Bowers v. Asbury St. Louis Lex, LLC, 478 S.W.3d 423, 426 (Mo. App. E.D. 2015); Hobbs v. Tamko Bldg. Prods., Inc., 479 S.W.3d 147, 149 (Mo. App. S.D. 2015). The party seeking to compel arbitration bears the burden of proving the existence of a valid and enforceable arbitration agreement. Greene v. Alliance Auto., Inc., 435 S.W.3d 646, 650 (Mo. App. W.D. 2014).

         "The issue of whether arbitration should be compelled is a question of law subject to de novo review." Dotson v. Dillard's, Inc., 472 S.W.3d 599, 602 (Mo. App. W.D. 2015) (internal quotation omitted). Ultimately, though, we are only concerned with whether the trial court's ruling is correct, regardless of the "route taken to reach it." Frye v. Speedway Chevrolet Cadillac, 321 S.W.3d 429, 435 (Mo. App. W.D. 2010). We will affirm the trial court's [ruling denying a motion to compel arbitration] on any theory supported by the record. Baier, 420 S.W.3d at 737.

         Analysis

         Dollar Tree raises two points on appeal, both of which presume that an agreement to arbitrate had been "concluded" in the first instance. Because the issue of whether the agreement was or was not "concluded" is dispositive of this appeal, we first address that issue-for if no arbitration ...


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