           IN THE MISSOURI COURT OF APPEALS
                   WESTERN DISTRICT
HAL MILLER,                                  )
                                             )
               Appellant,                    )
                                             )
v.                                           )       WD82265
                                             )
SECURITAS SECURITY                           )       Opinion filed: August 27, 2019
SERVICES USA INC, ET AL.,                    )
                                             )
               Respondents.                  )

      APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY, MISSOURI
                THE HONORABLE JODIE C. ASEL, JUDGE

                    Before Division Three: Gary D. Witt, Presiding Judge,
                  Edward R. Ardini, Jr., Judge and Thomas N. Chapman, Judge

       Hal Miller appeals a judgment of the Circuit Court of Boone County granting Securitas

Security Services USA, Inc.’s (“Securitas”) motion to dismiss Miller’s claims and compel

arbitration. Miller brought this action against Securitas—his former employer—and Kelli Dorsey

(“Dorsey”)—a Securitas Human Resources Officer—asserting claims of disability discrimination,

religious discrimination, and retaliation under the Missouri Human Rights Act (“MHRA”).

Securitas moved to dismiss or, in the alternative, stay Miller’s claims and compel arbitration. The

trial court granted the motion, dismissed Miller’s petition with prejudice, and taxed costs against

Miller. We affirm in part, reverse in part, and remand for further proceedings consistent with this

opinion.
                              Factual and Procedural Background

        In 2014, Miller was hired by Securitas. On his first day of work, May 13, 2014, Miller was

presented with a Dispute Resolution Agreement (the “Agreement”), which provided, in relevant

part:

        1. Introduction

        The Document below is the Company’s Dispute Resolution Agreement (the
        “Agreement”). It is an arbitration agreement under the Federal Arbitration Act.
        Under the terms set forth below, both you and the Company mutually agree and
        thus are required to resolve claims either may have against the other by Arbitration
        instead of in a court of law.

        Your agreement to resolve claims under the Agreement is a condition of your
        employment. This means that by working at Securitas or continuing to work at
        Securitas you and Securitas agree that the Agreement will apply to all covered legal
        claims between you and the Company as specified below. . . .

        The Agreement does not otherwise affect your substantive rights under the law; it
        does, however, require that the parties resolve legal disputes in arbitration. Please
        read the Agreement carefully, and sign the acknowledgment at the bottom. The
        Agreement applies to your employment whether or not you sign the
        acknowledgment, which is intended simply to confirm that you have received and
        read your copy.

        2. How This Agreement Applies

        This Agreement is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq.,
        and evidences a transaction involving commerce. This Agreement applies to any
        dispute arising out of or related to Employee’s employment with Securitas Security
        Services USA, Inc. or one of its affiliates, subsidiaries or parent companies
        (“Company”) or termination of employment and survives after the employment
        relationship terminates. Nothing contained in this Agreement shall be construed to
        prevent or excuse Employee from utilizing the Company’s existing internal
        procedures for resolution of complaint, and this Agreement is not intended to be a
        substitute for using these procedures.

        Except as it otherwise provides, this Agreement is intended to apply to the
        resolution of disputes that otherwise would be resolved in a court of law or before
        a forum other than arbitration. It requires all such disputes to be resolved only by
        an Arbitrator through final and binding arbitration and not by way of court or jury
        trial. Such disputes include, without limitation, disputes relating to the
        interpretation or application of this Agreement. It does not, however, include

                                                 2
       disputes over the enforceability, revocability, or validity of the Agreement, or any
       portion of the Agreement. Those latter questions will be decided in court.

       Except as provided otherwise herein, the Agreement applies to all disputes
       regarding the employment relationship. This, includes, without limitation, to
       disputes concerning the following: . . . termination, or harassment and claims
       arising under the . . . Civil Rights Act of 1964, Americans with Disabilities Act,
       . . . and state statutes, if any, addressing the same or similar subject matters, and all
       other statutory and common law claims.

                                                 ...

       11. The Arbitration Hearing and Award

       The parties will arbitrate their dispute before the Arbitrator . . . . A court of
       competent jurisdiction shall have the authority to enter a judgment upon the award
       made pursuant to the arbitration. The Arbitrator shall not have the power to commit
       errors of law or legal reasoning, and where allowed by applicable law of the
       jurisdiction in which the arbitration is held the award may be vacated or corrected
       on appeal to a court of competent jurisdiction for any such error.

                                                 ...

       13. Enforcement of the Agreement

       This Agreement is the full and complete agreement relating to the formal resolution
       of employment related disputes. . . .

(emphasis in original).

       Miller was also presented with a separate acknowledgment form. That acknowledgment

provided in part:

            DISPUTE RESOLUTION AGREEMENT ACKNOWLEDGMENT

       I have received a copy of the Securitas Security Services USA, Inc. (the
       “Company”) Dispute Resolution Agreement (the “Agreement”) and I have read and
       I understand all of the terms contained in the Agreement. I understand that
       employment or continued employment at the Company constitutes acceptance of
       this Agreement and its terms. I further acknowledge that the Company and I are
       mutually bound by this Agreement and its terms.

The acknowledgment was signed and dated “5-13-14” by Hal Miller and “Employer

Representative” Amy McNulty.

                                                  3
        Miller was assigned to work for Securitas client Maxion Wheels in Sedalia, Missouri. On

May 17, 2014, he reported to Maxion Wheels. Miller’s last day of employment with Securitas was

May 22, 2017.

        On April 9, 2018, Miller filed this action. In his petition, Miller alleged that he underwent

heart surgery in 2015 and, following that surgery, he requested his job requirements be modified

so that he would not have to walk up stairs. Miller asserted his requested accommodation was

granted and that he was able to complete his job requirements.1 He further alleged that at the time

he was hired by Securitas, he “wore his facial hair as a beard,” and that after his surgery, Dorsey

directed him to shave his beard. Miller alleged that he refused this request for religious reasons,

requested a religious accommodation, and, approximately two weeks later, he was terminated.

Miller brought three claims pursuant to the MHRA, each directed at both Securitas and Dorsey

(collectively, “Defendants”): disability discrimination and harassment, religious discrimination,

and retaliation.

        Securitas filed a Motion to Dismiss or in the Alternative Stay Plaintiff’s Claims and

Compel Arbitration. Attached to the motion were a declaration of Amalia Graham, a Human

Resources Manager for Securitas; the Dispute Resolution Agreement; and the Dispute Resolution

Agreement Acknowledgment. After briefing, the trial court conducted a hearing on the motion.2

Thereafter, the trial court issued its Judgment ordering “that Defendants’ Motion to Compel

Arbitration is sustained.” The trial court found that the parties had “a valid and binding agreement

to arbitrate” and ordered the parties “to proceed to arbitration under the terms of that agreement.”



1
  In its responsive pleading, Securitas denied that Miller requested an accommodation based on a medical condition
and asserted that Miller “became separated from his employment with Securitas because he failed to complete his
security rounds as assigned.”
2
  The hearing was not transcribed and the record before this Court does not indicate what, if any, evidence was
presented to the trial court at the hearing.

                                                        4
The trial court “further ordered that Defendants’ Motion to Dismiss is sustained and Judgment be

entered in favor of Defendants. Cause is dismissed with prejudice as to both defendants. Court

costs taxed to Plaintiff.”

        This appeal followed.

                                       Standard of Review

        “Whether the trial court should have granted a motion to compel arbitration is a question

of law this court reviews de novo.” Greene v. Alliance Auto., Inc., 435 S.W.3d 646, 649 (Mo. App.

W.D. 2014) (internal marks omitted). “However, issues relating to the existence of an arbitration

agreement are factual and require our deference to the trial court’s findings.” Baier v. Darden

Rests., 420 S.W.3d 733, 736 (Mo. App. W.D. 2014). Where the trial court does not make factual

findings, “all fact issues upon which no specific findings are made shall be considered as having

been found in accordance with the result reached.” Id. at 737 (internal marks omitted) (quoting

Rule 73.01(c)); see also Pearson v. Koster, 367 S.W.3d 36, 52 (Mo. banc 2012) (where no written

factual findings were made, the court viewed “the facts in the light most favorable to the trial

court’s judgment”).

        “Our review of the trial court’s determination as to the existence of an agreement itself is

analogous to that in a court-tried case.” Greene, 435 S.W.3d at 649 (internal marks omitted).

Therefore, we uphold the trial court’s judgment “unless there is no substantial evidence to support

it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless

it erroneously applies the law.” Kunzie v. Jack-In-The-Box, Inc., 330 S.W.3d 476, 480 (Mo. App.

E.D. 2010). Additionally, we are required “to affirm the trial court’s order on any theory supported

by the record.” Baier, 420 S.W.3d at 737.




                                                  5
                                             Analysis

       Miller raises three points on appeal: (1) the trial court erred in granting Securitas’s motion

to compel arbitration as there was no valid arbitration agreement between the parties; (2) the trial

court erred in dismissing Miller’s case with prejudice; rather, the trial court should have stayed

Miller’s claims pending arbitration; and (3) the trial court erred in assessing costs against Miller

because under the version of the MHRA in effect when Miller’s claims accrued, a court may tax

costs against a claimant only upon a showing that the case was without foundation, and no such

showing was made here. We address each point in turn.

                       Point I – Existence of Valid Arbitration Agreement

       Miller appeals the trial court’s finding that the parties entered into “a valid and binding

agreement to arbitrate.” “When faced with a motion to compel arbitration, the motion court must

determine whether a valid arbitration agreement exists[.]” Nitro Distrib., Inc. v. Dunn, 194 S.W.3d

339, 345 (Mo. banc 2006). In making this determination, “the court should apply the usual rules

of state contract law and canons of contract interpretation.” Id. “The elements required to form a

valid contract in Missouri are offer, acceptance, and bargained for consideration.” Baier, 420

S.W.3d at 737. “Offer and acceptance requires a mutual agreement.” Id. at 738. “A mutual

agreement is reached when the minds of the contracting parties meet upon and assent to the same

thing in the same sense at the same time.” Id. “A meeting of the minds occurs when there is a

definite offer and unequivocal acceptance.” Id. “[W]hether there was a meeting of the minds is a

question of fact for the trial court to decide.” Jackson v. Higher Educ. Loan Auth. of Mo., 497

S.W.3d 283, 289 (Mo. App. E.D. 2016).

       Miller argues that the Agreement “does not constitute a valid contract to arbitrate” because

it “was not unequivocally accepted by [Miller] as he was not given a legally cognizable way to



                                                 6
accept and there is no meeting of the minds because Respondent Securitas did not unequivocally

accept” the Agreement. Miller further argues that Securitas “presented no offer” to Miller. We

disagree.

        First, we find that Securitas presented Miller with an offer to enter into an arbitration

agreement. “At common law, an offer is made when the offer leads the offeree to reasonably

believe that an offer has been made.” Jackson, 497 S.W.3d at 288 (internal marks omitted).

“Similarly, pursuant to the Restatement (Second) of Contracts, an offer is the manifestation of a

willingness to enter into a bargain, so made as to justify another person in understanding that his

assent to that bargain is invited and will conclude it.” Id. (internal marks omitted).

        Here, Securitas presented Miller with a document titled “Dispute Resolution Agreement,”

which stated in the opening paragraph that it was “an arbitration agreement” and that under the

terms of the Agreement, Miller and Securitas “are required to resolve claims either may have

against the other by Arbitration instead of in a court of law.” The Agreement contained various

terms, including the duration of the Agreement, which claims were subject to arbitration, and the

manner in which the arbitrator would conduct the hearing and award relief. The Agreement also

requested that Miller “read the Agreement carefully, and sign the acknowledgment at the bottom.”3

The acknowledgment form provided that, by signing the form, Miller “acknowledge[d] that

[Securitas] and [he] are mutually bound by this Agreement and its terms.” By presenting the

Agreement to Miller and requesting he sign the acknowledgment form, Securitas manifested its




3
  We recognize that the next sentence in the Agreement states that, “[t]he Agreement applies to your employment
whether or not you sign the acknowledgment, which is intended simply to confirm that you have received and read
your copy.” However, as discussed more fully herein, when we consider the Agreement and acknowledgment form
as a whole, we find that Securitas made an offer to Miller to enter into an arbitration agreement, which he accepted
by signing the acknowledgment form.

                                                         7
willingness to enter into an arbitration agreement with Miller under the terms set forth in the

Agreement. In other words, Securitas presented Miller with a definite offer.

       In arguing that Securitas did not present Miller with an offer, Miller relies on Jackson v.

Higher Education Loan Authority of Missouri, in which the Eastern District of this Court held that

a purported arbitration agreement was not a valid contract because the employer did not make a

“definite offer” to the employee to enter into an arbitration agreement. 497 S.W.3d at 289.

However, we find Jackson distinguishable. The purported agreement in that case consisted of a

two-page document describing the employer’s multi-step resolution process titled “MOHELA

Policy Regarding Mandatory Dispute Resolution/ADR Process” (which only applied to employee

claims and not disputes initiated by the employer) and a one-page acknowledgment form, which

was executed by the employee upon commencement of her at-will employment. Id. at 285-86. The

Eastern District found “conspicuously absent” from these documents the terms “contract” or

“agreement,” and that the employer’s use of the terms “policy” and “acknowledgment” was a

“linguistic smokescreen” that prevented the employee’s “awareness of the objective intent of the

Employer (the offeror) to enter into an agreement and vice versa.” Id. at 289. Thus, the Eastern

District found “no objective manifestation that Employer intended the Arbitration Process and

Acknowledgment of Receipt to represent an ‘offer.’” Id.

       In the present case, the Agreement and acknowledgment form manifested Securitas’s

objective intent to enter into a binding contract with Miller. The Agreement was not labeled as a

“policy” or “process”; rather, the document was titled “Dispute Resolution Agreement” and the

introductory paragraph confirmed in bold lettering that this was an “arbitration agreement.” The

Agreement also stated that “[n]othing contained in this Agreement shall be construed to prevent

or excuse Employee from utilizing the Company’s existing internal procedures for resolution of



                                                8
complaints, and this Agreement is not intended to be a substitute for using these procedures,”

further advising that the Agreement was a contract, not simply an internal policy. Contrary to the

employer in Jackson, Securitas did not hide behind “linguistic smokescreens” but instead clearly

stated its intent to enter into an arbitration agreement with Miller.

       With regard to the other element at issue in this appeal—acceptance—we find that Miller

unequivocally accepted Securitas’s offer to arbitrate certain employment-related claims.

“Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a

manner invited or required by the offer.” Jackson, 497 S.W.3d. at 289. “The critical question when

measuring if a party’s words or conduct constitute acceptance is whether the signals sent by the

offeree to the offeror objectively manifest the [offeree’s] intent to be presently bound.” Kunzie,

330 S.W.3d at 484. “Whether there exists mutual assent sufficient to form a contract is dependent

upon the objective intentions of the parties,” which are determined “by reviewing the parties’

actions and words.” Jackson, 497 S.W.3d at 289 (emphasis in original). “[S]ignatures remain a

common, though not exclusive, method of demonstrating agreement.” Morrow v. Hallmark Cards,

Inc., 273 S.W.3d 15, 22-23 (Mo. App. W.D. 2008).

       We find that there was substantial evidence that Miller unequivocally accepted Securitas’s

offer to arbitrate certain employment-related claims. Miller signed the “Dispute Resolution

Agreement Acknowledgment,” which provided a signature line for Miller to acknowledge not only

his receipt and understanding of the Agreement, but to “further acknowledge that [Securitas] and

[Miller] are mutually bound by this Agreement and its terms.” Miller signed and dated the

acknowledgment form. Based on the foregoing, the trial court was presented with substantial

evidence that Miller reasonably believed an offer to enter into an arbitration agreement had been

made by Securitas and that Miller manifested his assent to the offer and unequivocally accepted it



                                                  9
by signing the acknowledgment form. See McIntosh v. Tenet Health Sys. Hosps., Inc., 48 S.W.3d

85, 87, 89 (Mo. App. E.D. 2001) (where, as a condition of employment, an employee signed an

“Employment Acknowledgment Form” acknowledging receipt of the “Fair Treatment Process

brochure” and agreeing to use the Fair Treatment Process and submit claims to arbitration, the

parties entered into a valid arbitration agreement).

          In arguing that he did not accept Securitas’s offer, Miller asserts that his continued

employment for Securitas did not constitute “acceptance” under Missouri law, citing Kunzie v.

Jack-In-The-Box.4 Again, we find the case cited by Miller distinguishable. The purported

arbitration agreement in Kunzie contained a clause stating, “I understand that my employment . . .

is automatically subject to the terms of this Agreement if I continue my employment[.]” 330

S.W.3d at 478. While a signature appeared under that clause, the employee contested that it was

his signature. Id. at 478-79. The trial court did not resolve that factual dispute, but instead

determined that the employee’s “knowledge and conduct of continuing his employment after being

presented with the Arbitration Agreement constituted Employee’s acceptance of the contract.” Id.

at 482.

          The Eastern District of this Court reversed, holding that “the manifestation of an existing

employee’s unequivocal intention to be bound by an employer’s proposed arbitration agreement

as a new condition of employment necessitates more than the employee’s mere continued work to

satisfy Missouri’s meeting of the minds requirement.” Id. at 486. The Court noted that “[s]ilence

generally cannot be translated into acceptance,” and concluded that the mere continuation of




4
  Miller also argues that signing the acknowledgment form did not demonstrate his acceptance because he did not sign
on the Agreement itself. Miller has not directed us to any requirement that a signature must appear on the contract
itself to constitute acceptance of the contract, nor would such a principle be consistent with the holdings of this Court.
See, e.g., Morrow, 273 S.W.3d at 22-23 (“With regard to contracts, . . . signatures remain a common, though not
exclusive, method of demonstrating agreement.” (emphasis added)).

                                                           10
employment, “[w]ithout more,” failed to manifest the necessary assent to the purported arbitration

agreement. Id. at 484 (emphasis added).

       Present here is the “more” that was lacking in Kunzie. Unlike the employee in Kunzie,

Miller does not dispute that he signed the “Dispute Resolution Agreement Acknowledgment”

form, and, by signing this form, Miller signaled to Securitas his “intent to be presently bound” by

the Agreement. See Kunzie, 330 S.W.3d at 484; cf. Frye v. Speedway Chevrolet Cadillac, 321

S.W.3d 429, 437-38 (Mo. App. W.D. 2010) (suggesting that the employee’s signature on an

acknowledgment form agreeing to be bound by the dispute resolution program could “establish

the second element necessary to form an enforceable contract—acceptance”; dispute resolution

program stated that the employee’s decision to accept or continue employment meant that the

employee had agreed to and was bound by the terms of the Program). In short, Miller’s assent was

manifested by his act of signing the acknowledgement form; not by his continued employment.

       Finally, we disagree with Miller’s assertion that there was no “meeting of the minds” in

that the Agreement provided “no means by which [Securitas was] to accept” and Securitas did not,

in fact, unequivocally accept the Agreement. A Securitas representative signed the

acknowledgment form on Securitas’s behalf, thereby “acknowledg[ing] that the Company and

[Miller] are mutually bound by this Agreement and its terms.” By signing her name on the

“Employer Representative” line of the acknowledgment form, the Securitas representative

manifested Securitas’s acceptance of the Agreement. See Morrow, 273 S.W.3d at 22-23 (“With

regard to contracts, . . . signatures remain a common . . . method of demonstrating agreement.”);

cf. Baier, 420 S.W.3d at 735, 738-40 (where employer did not sign and left blank the “Management

Signature” line on the acknowledgment of receipt form, “the trial court could have concluded that

no valid arbitration agreement was ever formed” between the parties).



                                                11
           Contrary to Miller’s claims, we find no error in the trial court’s determination that the

parties entered into “a valid and binding agreement to arbitrate.” Point I is denied.

                                       Point II – Dismissal with Prejudice

           In Miller’s second point, he asserts that the “trial court erred in dismissing the case with

prejudice because the case should have been stayed pursuant to RSMo 435.355.4[.]” We agree.

           Section 435.355.45 provides that “[a]ny action or proceeding involving an issue subject to

arbitration shall be stayed if an order for arbitration or an application therefor has been made under

this section or, if the issue is severable, the stay may be with respect thereto only.” (emphasis

added). “The use of the word ‘shall’ in Section 435.355 denotes that the trial court is required to

stay proceedings when it finds the claims involved are subject to arbitration.” Hewitt v. St. Louis

Rams P’ship, 409 S.W.3d 572, 574 (Mo. App. E.D. 2013). Thus, “when arbitration is compelled,

the trial court should stay the proceedings in its own forum, not dismiss them” and “the proper

course of action for the trial court, upon finding an agreement to arbitrate, is to stay the action

pending arbitration.” Id.; see also Dotson v. Dillard’s, Inc., 472 S.W.3d 599, 608 n.6 (Mo. App.

W.D. 2015) (“dismissal is not the appropriate disposition upon granting a motion to compel

arbitration” as “the remedy under both the [Federal Arbitration Act] and Missouri’s Uniform

Arbitration Act is to stay the proceedings, rather than to dismiss”); Boogher v. Stifel, Nicolaus &

Co., Inc., 825 S.W.2d 27, 30 (Mo. App. E.D. 1992) (finding that “the trial court erred by entering

a final judgment dismissing the underlying suit” because, “[u]pon finding an agreement to

arbitrate, a court, state or federal, shall stay the pending action”).

           After finding Miller’s claims were subject to arbitration, the trial court here dismissed

Miller’s petition with prejudice. As described above, dismissal was not the proper remedy and the



5
    All statutory references are to RSMo 2016 unless otherwise noted.

                                                          12
trial court was required to stay the proceedings pending arbitration. Accordingly, we set aside and

vacate the judgment dismissing Miller’s claims with prejudice and remand to the trial court to

enter an order staying the proceedings pending the completion of the arbitration process. Point II

is granted.

                                       Point III – Costs Taxed to Miller

         In his third point, Miller alleges that the trial court erred in assessing costs against him.

Miller argues that the version of the MHRA in effect when his claims accrued only allowed costs

to be taxed against a claimant upon a showing that the claimant’s case was without foundation,

and no such showing was made here. In response, Defendants assert that the 2017 amendments to

the MHRA, which changed the standard for assessing costs against a claimant, were procedural

and thus apply retroactively. Therefore, Defendants assert, the trial court did not err in retroactively

applying the amended version of the MHRA and taxing costs against Miller.6

         Based on our decision as to Point II, however, we find resolution of this dispute is

premature. Regardless of which version of the MHRA applies—the current or prior version—a

trial court may only award court costs to “the prevailing party.” See § 213.111.2, RSMo Supp.

2017; § 213.111.2, RSMo 2000. Because we are vacating the trial court’s order of dismissal and

remanding with instructions for the trial court to enter an order staying the action pending

arbitration, Defendants are not prevailing parties entitled to court costs at this stage in the litigation.

Cf. Lindahl v. State, 359 S.W.3d 489, 497 n.10 (Mo. App. W.D. 2011) (holding that, because we

were remanding the matter for a new trial, the plaintiff’s motion for attorney’s fees and costs under




6
 Compare § 213.111.2, RSMo Supp. 2017 (“The court . . . may award court costs and reasonable attorney fees to the
prevailing party . . . ; except that, a prevailing respondent may be awarded reasonable attorney fees only upon a
showing that the case was without foundation.”), with § 213.111.2, RSMo 2000 (“The court . . . may award court costs
and reasonable attorney fees to the prevailing party . . . ; except that, a prevailing respondent may be awarded court
costs and reasonable attorney fees only upon a showing that the case is without foundation.” (emphasis added)).

                                                         13
section 213.111 was “denied without prejudice to Plaintiff’s right to seek attorney’s fees, including

fees and costs on this appeal, in the event of recovery on the merits.” (emphasis added)).

Accordingly, we cannot let stand the trial court’s award of court costs to Defendants. For this

reason, we set aside the judgment taxing court costs to Miller. Point III is granted.

                                            Conclusion

        We affirm the trial court’s judgment sustaining Defendants’ motion to compel arbitration.

However, we set aside and vacate the trial court’s judgment sustaining Defendants’ motion to

dismiss, ordering the cause dismissed with prejudice, and taxing court costs against Miller. We

remand with instructions that the trial court enter an order staying the proceedings pending

arbitration.



                                              __________________________________________
                                              EDWARD R. ARDINI, JR., JUDGE

All concur.




                                                 14
