Court of Appeals of Missouri, Western District, Fourth Division
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.
D. Pfeiffer, Chief Judge.
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. 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.
and Procedural History
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.
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).
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.
Tree timely appealed.
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.
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.
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 ...