Theroff v. Dollar Tree Stores, Inc., No. SC 97235

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Mary R. Russell, Judge
• Citation: 591 S.W.3d 432
• Decision Date: 14 January 2020
• Docket Number: No. SC 97235
• Parties: Nina THEROFF, Respondent, v. DOLLAR TREE STORES, INC. and Janie Harper, Appellants.

591 S.W.3d 432

Nina THEROFF, Respondent,
v.
DOLLAR TREE STORES, INC. and Janie Harper, Appellants.

No. SC 97235

Supreme Court of Missouri, en banc.

Opinion issued January 14, 2020
Rehearing Denied January 30, 2020

Dollar Tree and Harper were represented by James M. Paul of Ogletree, Deakins, Nash, Smoak & Stewart PC in St. Louis, (314) 802-3935.

Theroff was represented by Timothy W. Van Ronzelen and Shelly A. Kintzel of Cook, Vetter, Doerhoff & Landwehr PC in Jefferson City, (573) 635-7977.

Mary R. Russell, Judge

Dollar Tree Stores, Inc., and Janie Harper (collectively, "Dollar Tree") appeal from the circuit court’s order overruling their motion to compel arbitration on their former employee’s claim of disability discrimination. The former employee, Nina Theroff, and Dollar Tree disputed whether there was assent to the arbitration agreement. Before the circuit court could rule on Dollar Tree’s motion to compel arbitration, it was required to find whether there was an agreement to arbitrate. The circuit court heard testimony from both Theroff and Dollar Tree representatives. The circuit court’s order stated, in full, "Motion to compel arbitration and stay proceedings is hereby denied." Although the circuit court did not make any findings of fact, its determination of the witnesses’ credibility must be given deference. Considering this, nothing suggests the order was not supported by substantial evidence, was against the weight of the evidence, or erroneously

591 S.W.3d 435

applied the law. The circuit court’s order overruling Dollar Tree’s motion to compel arbitration and stay proceedings is affirmed.

Background

Theroff alleged Dollar Tree constructively discharged her by refusing her request for a reasonable accommodation – allowing her service dog to accompany her. She filed charges with the Missouri Commission on Human Rights against Dollar Tree for discrimination based on disability and received a notice of right to sue letter. Theroff filed a petition in the circuit court asserting a single claim of disability discrimination under the Missouri Human Rights Act against Dollar Tree. Dollar Tree filed a motion to compel arbitration and stay proceedings. The circuit court held an evidentiary hearing on the motion to compel at which the following evidence was adduced:

Theroff applied for employment at a Dollar Tree store. During Theroff’s interview with the store’s assistant manager, Kayla Swift, Theroff informed Swift she was legally blind and used various assistive devices. Swift hired Theroff and directed her to return to complete paperwork. Theroff returned to Dollar Tree two days later to complete the hiring paperwork electronically. One of the documents bearing Theroff’s digital signature was a mutual agreement to arbitrate claims. The arbitration procedures outlined in the mutual agreement specified that JAMS employment arbitration rules and procedures controlled. JAMS Rule 11(b) provides that the arbitrator has authority to determine jurisdictional and arbitrability disputes.

There was conflicting evidence about Theroff’s knowledge of the existence of the mutual agreement and her electronic signature on it. According to Theroff, when she returned to complete the hiring paperwork, she did not know the hiring process would occur on a computer, and she only brought a small magnifier. After informing Swift that using the magnifier on the computer screen would take some time, Swift offered to assist Theroff. Without being able to see content on the computer screen, Theroff asserted that Swift prompted her for certain information: "I need your address here. I need your phone number here, your name here. This is a standard document. Just hit enter. It’s just normal employment things." Theroff claimed that the two sat on either side of the keyboard and that Swift kept control until Swift thought it would be quicker for Theroff to enter information such as an account or phone numbers. The entire process took about 30 minutes. Theroff indicated Swift never mentioned arbitration, waiver of a jury trial, or JAMS rules.

Swift disputed that she helped Theroff navigate the electronic documents. She also disputed that Theroff was legally blind or that Theroff told her she had any vision issues requiring assistive devices. Swift stated that she did not electronically sign the mutual agreement for Theroff and that she did not field any questions from Theroff concerning the mutual agreement.¹ Inconsistencies in Swift’s awareness of facts surrounding Theroff’s hiring were brought out during questioning. Following the evidentiary hearing, the circuit court overruled the motion without making any findings. Dollar Tree appeals.²

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Standard of Review

When there are factual disputes regarding the existence of an arbitration agreement, the circuit court shall conduct an evidentiary hearing to determine whether an arbitration agreement exists. See section 435.355.1;³ Nitro Distrib., Inc. v. Dunn , 194 S.W.3d 339, 352 (Mo. banc 2006). An appellate court’s "review of the [circuit] court’s determination as to the existence of an agreement itself is analogous to that in a court-tried case." Kunzie v. Jack-In-The-Box, Inc. , 330 S.W.3d 476, 480 (Mo. App. 2010). As such, in an appeal from a circuit court’s order overruling a motion to compel arbitration when there is a dispute as to whether the arbitration agreement exists,⁴ the circuit court’s judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. See Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976).

If there is no factual dispute about the existence of an arbitration agreement, the overruling of a motion to compel arbitration is reviewed de novo. Soars v. Easter Seals Midwest , 563 S.W.3d 111, 113 (Mo. banc 2018). "An appellate court’s review of the arbitrability of a dispute is de novo" because "[w]hether a dispute is covered by an arbitration provision is relegated to the courts as a question of law." Dunn Indus. Grp., Inc. v. City of Sugar Creek , 112 S.W.3d 421, 428 (Mo. banc. 2003). Likewise, this "Court reviews de novo the legal issue of whether a valid, enforceable delegation clause exists within an arbitration agreement." State ex rel. Newberry v. Jackson , 575 S.W.3d 471, 474 (Mo. banc 2019) (emphasis added). Because contract interpretation is a question of law, State ex rel. Pinkerton v. Fahnestock , 531 S.W.3d 36, 44 (Mo. banc 2017), a de novo standard of review is appropriate for appellate review of a denial of a motion to compel arbitration when a court must analyze the terms of an arbitration agreement.

Analysis

I. Existence of the agreement to arbitrate is a prerequisite to compelling arbitration

Dollar Tree asks this Court to analyze the record to determine whether the circuit court found by a preponderance of evidence⁵ that Theroff signed the mutual agreement. Dollar Tree maintains that, if so, the circuit court had no choice but to delegate all challenges to the arbitrator. Theroff argues she did not "sign" the

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agreement because (1) she did not authorize Swift to make the operative click, and (2) even if it was Theroff who clicked, Swift did not inform her of the existence of the arbitration agreement, which Theroff could not view or read. Dollar Tree maintains Theroff had knowledge of the mutual agreement and signed it.

The outcome of this case turns on the circuit court’s factfinding role, including its assessment of witnesses. When the parties challenge facts relevant to a particular issue, as they did here, this Court will defer to the circuit court’s assessment of the evidence. White v. Dir. of Revenue , 321 S.W.3d 298, 308 (Mo. banc 2010). With no written findings of fact, this Court views the facts "as having been found in accordance with the result reached." Rule 73.01(c). In addition, this Court must "give due regard to the opportunity of the [circuit] court to have judged the credibility of witnesses[.]" Rule 84.13(d)(2).

Although Dollar Tree and Theroff do not dispute that the mutual agreement contains an electronic signature, the issue here is whether the mutual agreement to arbitrate existed per section 435.355.1, as Theroff asserts she did not assent to it. "[A]rbitration is a matter of contract." Rent-A-Ctr., W., Inc. v. Jackson , 561 U.S. 63, 67, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). At the most fundamental level, assent is required for a contract or an agreement to exist. Green v. Cole , 103 Mo. 70, 15 S.W. 317, 318 (Mo. 1891) ("It is a well[-]settled principle of law that to constitute a contract[,] the minds of the parties must assent to the same thing in the same sense.").

This case presents facts raising an issue of first impression for this Court – the question of whether there was, in the first instance, assent to the arbitration agreement. Unlike the standard scenario in which there is no dispute about whether a party signed an arbitration agreement, when a party disputes signing, the court must first decide the existence of an agreement to arbitrate. See Chastain v. Robinson-Humphrey Co. , ...