In the 

Missouri Court of Appeals

Western District

LASHIYA D. ELLIS,

Respondent,

v.

JF ENTERPRISES, LLC D/B/A 

JEREMY FRANKLIN'S SUZUKI OF 

KANSAS CITY,

Appellant.

























WD78075

OPINION FILED:

May 5, 2015

Appeal from the Circuit Court of Jackson County, Missouri

The Honorable Jack Richard Grate, Judge

Before Division One: James Edward Welsh, P.J., 

Thomas H. Newton, and Gary D. Witt, JJ.

JF Enterprises, LLC, doing business as Jeremy Franklin's Suzuki of Kansas City (Jeremy 

Franklin's Suzuki), appeals from the circuit court's order denying its motion to compel arbitration 

and stay proceedings in an action filed against them by Lashiya Ellis. Jeremy Franklin's Suzuki 

contends that the circuit court erred in denying its motion because (1) the arbitration agreement 

was severable and separately enforceable from the underlying contract in this case and (2)

pursuant to the delegation clause in the arbitration agreement, the arbitrability of Ellis's claims 

was for the arbitrator and not the court. We reverse the circuit court's decision and remand for 

the circuit court to enter an order compelling arbitration between Ellis and Jeremy Franklin's 
2

Suzuki and staying Ellis's suit against Jeremy Franklin's Suzuki pending a determination by the 

arbitrator concerning the arbitrability of Ellis's claims.

The parties agree that, on November 4, 2013, Ellis went to Jeremy Franklin's Suzuki for 

the purposes of purchasing a vehicle. On that date, Ellis signed a Retail Buyers Order and 

executed a Retail Installment Contract. According to those documents, Ellis agreed to purchase a 

2012 Hyundai Sonata for $21,104.95. Further, as part of the transaction, Ellis traded in a 2003 

Chevrolet Tahoe when she purchased the Hyundai Sonata. 

On July 11, 2014, Ellis filed a Petition for Damages with the circuit court alleging that 

Jeremy Franklin's Suzuki violated the Missouri Merchandising Practices Act and made 

fraudulent misrepresentations regarding the delivery of title to the Hyundai Sonata purchased by 

Ellis. Specifically, Ellis claimed that Jeremy Franklin's Suzuki failed to deliver title to the 

vehicle in violation of section 301.210, RSMo 2000, and that she was unable to register the 

vehicle without the title. Further, Ellis filed a claim for conversion against Jeremy Franklin's 

Suzuki alleging that Jeremy Franklin's Suzuki unlawfully and without justification converted to 

its own use Ellis's vehicle that Jeremy Franklin took as a trade. Ellis also filed suit against 

Condor Capital Corporation (Condor Capital),1the entity that Jeremy Franklin's Suzuki arranged 

to provide the financing for Ellis to purchase the vehicle. Ellis claimed that Condor Capital 

violated the Missouri Merchandising Practices Act and made fraudulent misrepresentations in 

requiring her to continue to make payments under a void Retail Installment Contract. In regard 

to her claims, Ellis asked the circuit court to declare the Retail Buyers Order and Retail 

 

1Condor Capital did not file a brief, participate in this appeal, or make any claim that it was a party to the 

arbitration agreement.
3

Installment Contract to be void and to rescind the transaction. She also asked the court to award 

her damages, punitive damages, attorney's fees, and costs. 

Jeremy Franklin's Suzuki filed with the circuit court an answer to Ellis's Petition for 

Damages on August 20, 2014. On that same date, Jeremy Franklin's Suzuki filed a Motion to 

Stay Proceedings and Compel Arbitration. In that motion and the suggestions in support, Jeremy 

Franklin's Suzuki asked the circuit court to enforce the arbitration agreement entered into by 

Ellis and Jeremy Franklin's Suzuki as part of the purchase transaction. The Arbitration 

Agreement2provided:

In this Arbitration Agreement, "you" refers to the buyer(s) signing below. "We,"

"us," and "our" refer to the Dealer signing below and anyone to whom the Dealer 

assigns this Arbitration Agreement.

Any claim or dispute, whether in contract, tort, statute or otherwise (including the 

interpretation and scope of this Arbitration Agreement, and the arbitrability of the 

claim or dispute), between you and us or our employees, agents, successors or 

assigns, which arises out of or relates to your credit application, purchase or 

condition of this vehicle, your purchase or financing contract or any resulting 

transaction or relationship (including any such relationship with third parties who 

do not sign your purchase or financing contract) shall, at your or our election, be 

resolved by neutral, binding arbitration and not by a court action. If federal law 

provides that a claim or dispute is not subject to binding arbitration, this 

Arbitration Agreement shall not apply to such claim or dispute. Any claim or 

dispute is to be arbitrated by a single arbitrator on an individual basis and not as a 

class action. You expressly waive any right you may have to arbitrate a class 

action. You may choose one of the following arbitration organizations and its 

applicable rules: the National Arbitration Forum, Box 50191, Minneapolis, MN 

55405-0191 (www.arb-forum.com), the American Arbitration Association, 335 

Madison Ave., Floor 10, New York, NY 10017-4605 (www.adr.org), or any other 

organization that you may choose subject to our approval. You may get a copy of 

the rules of these organizations by contacting the arbitration organization or 

visiting its website.

 

2Ellis acknowledges that she contemporaneously signed the arbitration agreement, the retail buyer's order, 

and the retail installment contract on November 4, 2013.
4

On October 21, 2014, the circuit court denied Jeremy Franklin's Suzuki's motion to stay 

proceedings and compel arbitration. The circuit court found that:

[N]o title to the 2012 Hyundai Sonata was provided to Plaintiff Lashiya D. Ellis at 

the time of the sale or since, and therefore, pursuant to Section 301.210 RSMo., 

the contract is fraudulent and void, and . . . the arbitration provision which is to be 

construed with the other contract documents is subject to [Lashiya D. Ellis's] 

contract defenses of fraud and lack of consideration and is void, and therefore, not 

enforceable.

Jeremy Franklin's Suzuki appeals from the circuit court's order denying its motion to stay 

proceedings and compel arbitration.3

"The question whether [Jeremy Franklin's Suzuki's] motion to compel arbitration should 

have been granted is one of law, to be decided by this Court de novo." Johnson ex rel. Johnson v. 

JF Enterprises, LLC, 400 S.W.3d 763, 766 (Mo. banc 2013). "'A motion to compel arbitration of 

a particular dispute should not be denied unless it may be said with positive assurance that the 

arbitration clause is not susceptible of an interpretation that covers the asserted dispute.'" Kohner 

Props., Inc. v. SPCP Group VI, LLC, 408 S.W.3d 336, 346 (Mo. App. 2013) (citation omitted).

In its first point on appeal, Jeremy Franklin's Suzuki contends that the circuit court erred 

in denying its motion to stay proceedings and compel arbitration because the arbitration 

agreement was severable and separately enforceable from the underlying contract in this case. 

We agree.

The Arbitration Agreement in this case expressly provides that it be governed by the 

Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1 et seq. and not by any state law concerning 

arbitration. Section 2 of the FAA provides that "[a] written provision in . . . a contract evidencing 

 

3

Section 435.440.1(1), RSMo 2000, provides that "[a]n appeal may be taken from . . . [a]n order denying an 

application to compel arbitration."
5

a transaction involving commerce to settle by arbitration a controversy thereafter arising out of 

such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at 

law or in equity for the revocation of any contract." 9 U.S.C. § 2. "The FAA thereby places 

arbitration agreements on equal footing with other contracts and requires courts to enforce them 

according to their terms." Rent-A-Center West, Inc. v. Jackson, 561 U.S. 63, 67 (2010) (internal 

citations omitted). "Like other contracts, however, they may be invalidated by 'generally 

applicable contract defenses, such as fraud, duress, or unconscionability.'" Id. (citation omitted).

The FAA also establishes procedures for courts to use in implementing § 2's substantive 

rule. Id. "Under § 3, a party may apply to a . . . court for a stay of the trial of an action 'upon any 

issue referable to arbitration under an agreement in writing for such arbitration.'" Id. "Under 

§ 4, a party 'aggrieved' by the failure of another party 'to arbitrate under a written agreement for 

arbitration' may petition a . . . court 'for an order directing that such arbitration proceed in the 

manner provided for in such agreement.'" Id. "The court 'shall' order arbitration 'upon being 

satisfied that the making of the agreement for arbitration or the failure to comply therewith is not

in issue.'"4 Id.

The United States Supreme Court has recognized that "parties can agree to arbitrate 

'gateway' questions of 'arbitrability,' such as whether the parties have agreed to arbitrate or 

whether their agreement covers a particular controversy." Id. at 68-69. Indeed, "arbitration is a 

matter of contract." Id. at 69. "An agreement to arbitrate a gateway issue is simply an 

 

4

In deciding arbitrable disputes, including whether a particular claim is subject to arbitration, "[a]rbitrators 

are expected to follow applicable law unless stated otherwise in the arbitration agreement," Cremin v. Merrill, 

Lynch, Pierce, Fenner & Smith, Inc., 434 F. Supp. 2d 554, 559 (N.D. Ill. 2006), and "judicial scrutiny of arbitration 

awards . . . is sufficient to ensure that arbitrators comply with the requirements of the [law]." Shearson/Am.

Express, Inc. v. McMahon, 482 U.S. 220, 232 (1987).
6

additional, antecedent agreement the party seeking arbitration asks the . . . court to enforce, and 

the FAA operates on this additional arbitration agreement just as it does on any other." Id. at 70. 

Further, the United States Supreme Court has declared that, under § 2 of the FAA, 

arbitration provisions are severable from a contract as a whole. Id. at 70-71; Buckeye Check 

Cashing, Inc. v. Cardegna, 546 U.S. 440, 445 (2006); Kirby v. Grand Crowne Travel Network, 

LLC, 229 S.W.3d 253, 254 (Mo. App. 2007). According to the United States Supreme Court:

Challenges to the validity of arbitration agreements "upon such grounds as 

exist at law or in equity for the revocation of any contract" can be divided into 

two types. One type challenges specifically the validity of the agreement to 

arbitrate. The other challenges the contract as a whole, either on a ground that 

directly affects the entire agreement (e.g., the agreement was fraudulently 

induced), or on the ground that the illegality of one of the contract's provisions 

renders the whole contract invalid.

Buckeye, 546 U.S. at 444 (internal citation omitted). In this case, Ellis's complaint is that the 

contract as a whole (including the arbitration agreement) became invalid because Jeremy 

Franklin's Suzuki failed to deliver title to the vehicle she purchased as required by section 

301.210, RSMo 2000. But, according to the United States Supreme Court, "unless the challenge 

is to the arbitration clause itself, the issue of the contract's validity is considered by the arbitrator 

in the first instance." Id. at 445-46; Kirby, 229 S.W.3d at 254. Because Ellis challenges the 

contract as a whole, and not specifically the arbitration provision, the arbitration provision is 

enforceable apart from the remainder of the contract. Indeed, "a party's challenge . . . to the 

contract as a whole does not prevent a court from enforcing a specific agreement to arbitrate." 

Jackson, 561 U.S. at 70; see also State ex rel. Vincent v. Schneider, 194 S.W.3d 853, 857 n.1 

(Mo. banc 2006) (court cited Buckeye for the principle that "'unless the challenge is to the 

arbitration clause itself, the issue of the contract's validity is considered by the arbitrator in the 

first instance'"). 
7

The circuit court, therefore, erred when it concluded that the arbitration agreement was 

void and unenforceable because Jeremy Franklin's Suzuki failed to provide Ellis a title to the 

2012 Hyundai Sonata. "[R]egardless of whether the challenge is brought in federal or state 

court, a challenge to the validity of the contract as a whole, and not specifically to the arbitration 

clause, must go to the arbitrator." Buckeye, 546 U.S. at 449. 

Ellis essentially requests that we ignore applicable United States Supreme Court 

precedent and allow the court to determine the enforceability of the underlying contract rather 

than the arbitrator. Indeed, Ellis cites section 301.210, RSMo,5and numerous cases that hold an 

attempt to buy or sell a motor vehicle without the delivery of a title voids the purchase contract. 

See Burton v. SS Auto, Inc., 426 S.W.3d 43 (Mo. App. 2014); Peel v. Credit Acceptance Corp., 

408 S.W.3d 191 (Mo. App. 2013); Brockman v. Regency Fin. Corp., 124 S.W.3d 43 (Mo. App. 

2004); Jackson v. Charlie's Chevrolet, Inc., 664 S.W.2d 675 (Mo. App. 1984); Public Finance 

Corp. of Kansas City v. Shemwell, 345 S.W.2d 494 (Mo. App. 1961).6 However, according to the 

United States Supreme Court, the fact that a contract may be void or voidable under state law 

does not give the courts the authority to review the underlying contract and avoid compelling the 

parties to arbitrate. Buckeye, 546 U.S. at 447-48; Kirby, 229 S.W.3d at 254 (a challenge to the 

 

5

Section 301.210.4 provides:

It shall be unlawful for any person to buy or sell in this state any motor vehicle or trailer 

registered under the laws of this state, unless, at the time of the delivery thereof, there shall pass 

between the parties such certificates of ownership with an assignment thereof, as provided in this 

section, and the sale of any motor vehicle or trailer registered under the laws of this state, without 

the assignment of such certificate of ownership, shall be fraudulent and void.

6None of these cases address the severability of an arbitration provision. Ellis also relies on Johnson v. JF 

Enterprises, LLC, 400 S.W.3d 763 (Mo. banc 2013), in support of its contention that the arbitration provision is 

unenforceable because the underlying contract was void due to Jeremy Franklin's Suzuki's failure to deliver the title. 

To the contrary, the Missouri Supreme Court in Johnson overturned the denial of a motion to compel arbitration 

holding that a separately titled arbitration agreement between the parties was considered part of the transaction 

regardless of a merger clause contained in the retail installment contract. Id. at 764.
8

validity of the whole contact, and not specifically the arbitration clause within it, must go to the 

arbitrator, not the court, even if the plaintiff asserts the contract was void ab initio).

In Buckeye, customers who agreed to an arbitration clause as a condition of using 

Buckeye's loan service claimed that a usurious interest provision in the loan agreement 

invalidated the entire contract, including the arbitration clause. Buckeye, 546 U.S. at 443. The 

customers argued that § 2 of the FAA, which renders "an agreement in writing to submit to 

arbitration an existing controversy arising out of" a "contract" to be "valid, irrevocable, and 

enforceable," cannot apply to an agreement void ab initio under state law because it is not a 

contract. Id. at 447. The Buckeye court refused to read "contract" so narrowly and found:

The word ["contract"] appears four times in § 2. Its last appearance is in the final 

clause, which allows a challenge to an arbitration provision "upon such grounds 

as exist at law or in equity for the revocation of any contract." There can be no 

doubt that "contract" as used this last time must include contracts that later prove 

to be void. Otherwise, the grounds for revocation would be limited to those that 

rendered a contract voidable--which would mean (implausibly) that an arbitration 

agreement could be challenged as voidable but not as void. Because the 

sentence's final use of "contract" so obviously include putative contracts, we will 

not read the same word earlier in the same sentence to have a more narrow 

meaning.

Id. at 448 (emphasis in the original). In so ruling, the Buckeye court recognized that the rule of 

severability would permit a court to enforce an arbitration agreement in a contract that an 

arbitrator may later find void. Id. The Buckeye court, however, noted that it was "equally true"

that, if courts were allowed to find an agreement void ab initio under state law, a court would be 

permitted "to deny effect to an arbitration provision in a contract that the court later finds to be 

perfectly enforceable." Id. at 448-49. The court stated that this conundrum has been resolved in 

favor of the separate enforceability of arbitration provisions. Id. at 449. 
9

Hence, pursuant to Supreme Court precedent, the arbitration provision in a contract may 

be enforceable even if an underlying contract may be void or voidable under state law. Ellis's

claim that the contract in this case was void because Jeremy Franklin's Suzuki failed to deliver a 

title to the car to her was not for the circuit court to determine but was a claim for the arbitrator 

to decide.

Moreover, Jeremy Franklin's Suzuki argues that the arbitration agreement itself requires 

that any issue concerning the scope or arbitrability of Ellis's claim be submitted to an arbitrator. 

We agree.

As we previously noted, "parties can agree to arbitrate 'gateway' questions of 

'arbitrability,' such as whether the parties have agreed to arbitrate or whether their agreement 

covers a particular controversy." Jackson, 561 U.S. at 68-69. The arbitration provision in this 

case provides: 

Any claim or dispute, whether in contract, tort, statute or otherwise (including the 

interpretation and scope of this Arbitration Agreement, and the arbitrability of the 

claim or dispute), between you and us or our employees, agents, successors or 

assigns, which arises out of or relates to your credit application, purchase or 

condition of this vehicle, your purchase or financing contract or any resulting 

transaction or relationship (including any such relationship with third parties who 

do not sign your purchase or financing contract) shall, at your or our election, be 

resolved by neutral, binding arbitration and not by a court action. If federal law 

provides that a claim or dispute is not subject to binding arbitration, this 

Arbitration Agreement shall not apply to such claim or dispute. Any claim or 

dispute is to be arbitrated by a single arbitrator on an individual basis and not as a 

class action. 

This provision clearly delegates to the arbitrator the issue of the arbitrability of Ellis's claims in 

this case. 

"[U]nless [the party opposing arbitration has] challenged the delegation provision 

specifically, we must treat it as valid under § 2, and must enforce it under §§ 3 and 4, leaving any 
10

challenge to the validity of the Agreement as a whole for the arbitrator."

7

 Id. at 72. In other 

words, "[e]ven when a litigant has specifically challenged the validity of an agreement to 

arbitrate he must submit that challenge to the arbitrator unless he has lodged an objection to the 

particular line in the agreement that purports to assign such challenges to the arbitrator--the socalled 'delegation clause.'" Id. at 76 (Stevens, J., dissenting) (emphasis in original). 

In Jackson, the arbitration agreement provided that "'the Arbitrator, and not any federal, 

state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the 

interpretation, applicability, enforceability or formation of this Agreement including, but not 

limited to, any claim that all or any part of this Agreement is void or voidable.'" Id. at 66. 

Jackson challenged the arbitration agreement as a whole as unconscionable but failed to 

specifically challenge the delegation provision. Id. at 73. The Supreme Court held that, absent a 

specific challenge to the delegation provision, any determination as to the validity of the 

arbitration agreement as a whole must be left to the arbitrator. Id. at 72.

In the case at bar, the arbitration agreement provides that any contract claim or dispute 

"including the interpretation and scope of this Arbitration Agreement and the arbitrability of the 

claim or dispute," "which arises out of or relates to" the "purchase or financing contract" "shall"

at the election of either party "be resolved by neutral, binding arbitration and not by a court 

 

7On the other hand, where a specific challenge is made to the validity of the delegation provision, that issue 

must be resolved by the court. For example, a specific claim that the delegation provision is unconscionable would 

need to be resolved by the court as a threshold matter. In this case, Ellis did not present a specific challenge to the 

delegation clause. Moreover, several federal cases have recognized that, even where delegation clauses clearly and 

unmistakably grant the power to decide arbitrability to the arbitrator, such provisions may be ignored by a court if 

the assertion of arbitrability is "wholly groundless." "[W]here the parties expressly delegate to the arbitrator the 

authority to decide the arbitrability of the claims related to the parties' arbitration agreement, this delegation applies 

only to claims that are at least arguably covered by the agreement." Turi v. Main St. Adoption Servs., LLP, 633 F.3d 

496, 511 (6th Cir. 2011) (emphasis in original). A "wholly groundless" inquiry allows the court to determine that it 

is "satisfied" under § 3 of the FAA that the issues are referable to arbitration under the agreement, "while also 

preventing a party from asserting any claim at all, no matter how divorced from the parties' agreement, to force an 

arbitration." Qualcomm Inc. v. Nokia Corp., 466 F.3d 1366, 1373 n.5 (Fed. Cir. 2006) (applying 9th Circuit law).
11

action." This provision clearly and explicitly states that the interpretation and scope of the 

arbitration agreement and the arbitrability of any claim or dispute is for an arbitrator to decide. 

Ellis has not challenged the delegation provision in this case. When faced with a valid 

delegation clause, courts "must enforce it under [the FAA's] §§ 3 and 4, leaving any challenge to 

the validity of the Agreement as a whole for the arbitrator." Id. at 72. 

Because the arbitration agreement is severable from the contract as a whole and because 

Ellis did not assert specific challenges to the delegation provision in the arbitration agreement, 

the circuit court erred in denying Jeremy Franklin's Suzuki's motion to compel arbitration. We, 

therefore, reverse the circuit court's ruling and remand to the circuit court for the entry of an 

order compelling arbitration8between Ellis and Jeremy Franklin's Suzuki and staying Ellis's suit 

against Jeremy Franklin's Suzuki pending a determination of the issues by an arbitrator.

/s/ JAMES EDWARD WELSH

James Edward Welsh, Presiding Judge

All concur.

 

8Again, by compelling arbitration, we necessarily mean that the arbitrator will, in the first instance, make

the determination regarding the arbitrability of Ellis's claims.