Kunzie v. Jack–in–the–box Inc., ED 92974.

• Decision Date: 09 March 2010
• Docket Number: No. ED 92974.,ED 92974.
• Citation: 108 Fair Empl.Prac.Cas. (BNA) 1586,330 S.W.3d 476
• Parties: David K. KUNZIE, Appellant,v.JACK–IN–THE–BOX, INC., Respondent.
• Court: Missouri Court of Appeals

330 S.W.3d 476

108 Fair Empl.Prac.Cas. (BNA) 1586

David K. KUNZIE, Appellant,

v.JACK–IN–THE–BOX, INC., Respondent.

No. ED 92974.

Missouri Court of Appeals, Eastern District, Division Four.

March 9, 2010.

Donald K. Murano, The Murano Law Firm LLC, Michael Waxenberg, St. Louis, MO, for Appellant.James N. Foster, Jr., Brian C. Hey, McMahon Berger, P.C., St. Louis, MO, for Respondent.KURT S. ODENWALD, Presiding Judge.

Introduction

David Kunzie (Appellant) appeals from the trial court's denial of his motion to set aside arbitration proceedings on the basis that the trial court erred in finding that a validly formed arbitration agreement existed between Appellant and his former employer, Jack-in-the Box, Inc. (Respondent). We find that Appellant's continued employment alone did not objectively manifest his intent to be bound to Respondent's proposed arbitration policy. Thus, we reverse the judgment and remand for an evidentiary hearing to determine if additional facts exist which, in conjunction with Appellant's continued employment, sufficiently demonstrate that Appellant accepted Respondent's arbitration policy to be a new condition of his employment.¹

Background

Appellant was an at-will employee of Respondent from April 23, 1987, until his termination on November 16, 2005. On January 16, 2007, Appellant filed a petition alleging that Respondent, in violation of the Missouri Human Rights Act,² wrongfully terminated him on the basis of his age and gender.

On March 2, 2007, Respondent filed a motion to dismiss or, in the alternative, to compel arbitration. Respondent argued that “as a condition of his employment, [Appellant] signed an agreement wherein he agreed that he would arbitrate any and all claims or disputes that arose out of or were related to the termination of his employment.” Because Respondent failed to attach the alleged arbitration agreement (Arbitration Agreement) to its initial motion, Respondent filed another motion on March 14 which contained the Arbitration Agreement and requested that it be incorporated as an exhibit to its initial motion to compel arbitration.

The seven-page Arbitration Agreement was titled “Jack In The Box Dispute Resolution Agreement.” The last page of the agreement was titled “Receipt and Acknowledgement.” A clause on this page stated, “I understand that my employment by Jack in the Box and its affiliates is automatically subject to the terms of this Agreement if I continue my employment ... after 1–14–2004.” The signature and printed name on this page reads “Dave Kunze.” Appellant filed a memorandum in opposition, contending that he “signed the arbitration provision under duress and as such the arbitration provision should be deemed null and void.” ³

On June 6, 2007, the trial court granted Respondent's motion, finding that “the parties entered into a valid agreement containing an arbitration provision, that the agreement is supported by consideration, that [Appellant's] claims are within the scope of the agreement, and that the agreement is not unconscionable.”

On October 29, 2007, Appellant filed a motion for rehearing to set aside arbitration proceedings. Upon a “more recent and closer review of the document,” Appellant contended that Respondent had produced a “sham Arbitration Agreement.” Attached to the motion, Appellant provided an affidavit in which Appellant stated that he did not sign the Arbitration Agreement. Appellant stated that his surname, Kunzie, was misspelled in the signature block of the receipt and acknowledgement page of the Arbitration Agreement; his name was spelled “Kunze.” Furthermore, Appellant stated that the receipt and acknowledgement page of the Arbitration Agreement incorrectly listed his social security number; the third and eighth numerals were incorrect.

On November 21, 2007, the trial court entered an order providing for an evidentiary hearing to be held on February 1, 2008 to “determine the nature and application of the arbitration clause.” On January 17, 2008, Respondent filed a motion to set aside the evidentiary hearing based upon the parties' Request for Admissions. In response to Respondent's Request for Admissions, Appellant stated that he attended a January 14, 2004 meeting in which Respondent presented the Arbitration Agreement; that he did not sign the Arbitration Agreement; and that he thereafter continued his employment with Respondent. On January 29, 2008, the trial court granted Respondent's motion to set aside the evidentiary hearing scheduled for February 1 and ordered the parties to proceed with arbitration.

After an arbitration proceeding in which the arbitrator found against Appellant,⁴ Respondent prayed the trial court to enter final judgment dismissing each of Appellant's employment claims on March 23, 2008. On April 15, Appellant filed a second motion for rehearing to set aside arbitration proceedings. Again, Appellant contended that Respondent produced a “sham” agreement that did not correctly reflect Appellant's signature or social security number. Appellant also contended that, prior to the present litigation, Respondent had never disclosed six of the seven pages of the Arbitration Agreement to him. On April 21, the trial court entered a final order and judgment denying Appellant's second motion for rehearing to set aside arbitration proceedings and dismissing Appellant's petition with prejudice. Relying solely on Appellant's admissions and without making any factual determinations pursuant to an evidentiary hearing, the trial court explained that:

[Appellant] has admitted he was aware of the alternative dispute resolution provision and continued his employment with [Respondent] after having been made aware of the provisions. By continuing employment, [Appellant] accepted the terms of the provision. Berkley v. Dillards, Inc., 450 F.3d 775 (8th Cir.2006). [Respondent's] motion for judgment based on the arbitration decision and award is granted.Appellant filed a notice of appeal on April 30, 2008. This appeal follows.

Points on Appeal

Appellant raises three points on appeal. In his first point, Appellant claims that the trial court erred in setting aside the evidentiary hearing it scheduled for February 1, 2008, to determine the Arbitration Agreement's validity because the agreement lacked mutual assent. In his second point, Appellant claims that the trial court erred in granting Respondent's motion to compel arbitration because the Arbitration Agreement was not validly formed. In his third point, Appellant re-iterates his claim that the trial court erred in finding that the Arbitration Agreement was validly formed. While Appellant formally presents three points relied on, our discussion is limited to his first point, as it is dispositive.

Standard of Review

“When faced with a motion to compel arbitration, the motion court must determine whether the valid arbitration agreement exists and, if so, whether the specific dispute falls within the scope of the arbitration agreement.” Arrowhead Contracting, Inc. v. M.H. Washington, LLC, 243 S.W.3d 532, 535 (Mo.App. W.D.2008) (emphasis added). “In determining whether or not a valid arbitration agreement exists, we apply ‘the usual rules of state contract law and canons of contract interpretation.’ ” Id. (quoting Nitro Distrib., Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo. banc 2006)). Whether or not Respondent's motion to compel arbitration should have been granted is a question of law, and our review is de novo. Nitro Distrib., 194 S.W.3d at 345.

However, because the Missouri Uniform Arbitration Act (MUAA) specifically authorizes the trial courts to “proceed summarily” and conduct evidentiary hearings, if needed, to resolve an issue of whether an arbitration agreement existed or not, see infra, 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. See Creech v. MBNA America Bank. N.A., 250 S.W.3d 715, 716 (Mo.App. S.D.2008) (where a trial court conducted an evidentiary hearing pursuant to the MUAA to determine if an agreement to arbitrate existed and summarily found in the negative, the appellate court applied the “court-tried case” standard of review); see Abrams v. Four Seasons Lakesites/Chase Resorts, Inc., 925 S.W.2d 932, 936 (Mo.App. S.D.1996). Therefore, the “judgment of the trial court will be affirmed 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.” Abrams, 925 S.W.2d at 936 (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).

Discussion

I. Agreement to Arbitrate

“Arbitration is a matter of contract, and a party cannot be required to arbitrate a dispute that it has not agreed to arbitrate.” Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 435 (Mo. banc 2003). “It is a firmly established principle that parties can be compelled to arbitrate against their will only pursuant to an agreement whereby they have agreed to arbitrate claims.” Morrow v. Hallmark Cards, Inc., 273 S.W.3d 15, 21 (Mo.App. W.D.2008) (emphasis in original). Nothing precludes the possibility of an employer and its employees from entering into an enforceable agreement to arbitrate claims, id. at 22, so long as the agreement exhibits the essential elements Missouri requires of a valid contract. State ex rel. Vincent v. Schneider, 194 S.W.3d 853, 856 (Mo. banc 2006) (“Missouri contract law applies to determine whether the parties have entered a valid agreement to arbitrate.”).⁵ Such elements include “offer, acceptance, and bargained for consideration.” Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 662 (Mo. banc 1988); Arrowhead, 243 S.W.3d at 535 (“An obligation to arbitrate is based on assent and agreement.”). Thus, in the absence of a valid contract between the parties to arbitrate certain disputes, no action to compel arbitration will lie.

II. ...