Professional Documents
Culture Documents
, 2004)
SUSAN LARSEN, Justice. [A]ny dispute arising out of, pursuant to,
or relating to this Agreement, or to the
In this mandamus proceeding, Bunzl
employment or the termination of Employee
USA, Inc. argues that the trial court abused by Company, shall be resolved by binding
its discretion by refusing to compel
arbitration in St. Louis County, Missouri
arbitration. We deny the requested writ.
before one (1) arbitrator pursuant to the rules
of the American Arbitration Association for
PROCEDURAL BACKGROUND
commercial arbitration. This Agreement shall
be interpreted in accordance with and
Manuel Avila filed suit against Bunzl
governed by the law of Missouri. The sole
USA, Inc., Bunzl Distribution, Inc., Bunzl
function of the arbitrator is to interpret and
Distribution USA, Inc., Bunzl Dallas, Inc.,
enforce the Agreement under Missouri law,
Paul Lorenzini, and Elizabeth Isam. He
and ... the arbitrator shall have no authority
alleged that he was employed by the
to alter, amend, modify or change the
defendants as a sales representative between
Agreement.....
June 26, 1993 and November 29, 2001 and
that he was terminated because of his race or
The next paragraph provides, "No
ethnicity. He asserted causes of action for
modification or amendment of any provision
violations of the Texas Commission on
of this Agreement is effective unless it is in
Human Rights Act and for intentional
writing and signed by the parties to this
infliction of emotional distress. Lorenzini, the
Agreement."
president of Bunzl USA, Inc., filed a special
appearance, which the court granted.
[155 S.W.3d 206]
"EMPLOYEE" in typewriting beneath it. On the Agreement before Avila was terminated to
the line is an illegible signature dated "12-6- ensure that Bunzl acted in accordance with its
93." No affidavit accompanied the copy of the obligations under the Agreement.
Agreement that was attached to the
memorandum. The court conducted a hearing on the
motion. Again, with the exception of the
At the hearing on the defendants' motion documents attached to the motion, neither
to compel arbitration, Avila's counsel party presented any evidence or requested an
maintained that the Agreement was not valid evidentiary hearing. The court denied the
because, among other things, it was not motion to reconsider.
properly signed by Bunzl. Counsel argued that
the lack of a signature called into question THE PARTIES' ARGUMENTS
whether the parties ever reached an
agreement. The court also expressed concern Bunzl asserts that the trial court abused
over the missing signature, stating that the its discretion in refusing to compel
existence of an agreement to arbitrate was the arbitration. It argues that it presented
defendants'"weakest point." The defendants' overwhelming evidence that its employment
counsel responded to this argument by relationship with Avila affected interstate
asserting that an arbitration agreement does commerce and that Avila's claims fall within
not have to be signed to be valid. Neither side the scope of the arbitration provision. Bunzl
presented any evidence at this hearing or also argues, although it is the only relator in
requested an evidentiary hearing. The court this proceeding, that all the defendants are
denied the motion to compel arbitration. entitled to invoke the arbitration provision
under the doctrine of equitable estoppel.
The defendants filed a motion to Finally, Bunzl argues that Missouri is the
reconsider. They also filed a memorandum in proper venue for the arbitration proceeding.
support of this motion. The defendants Curiously, despite the trial court's statement
argued in the memorandum that the missing that the absence of Bunzl's signature on the
signature does not render the Agreement Agreement is the weakest part of its case,
unenforceable. They attached several Bunzl's petition does not address this issue.
documents to the memorandum, including a
copy of the Salesperson Employment [155 S.W.3d 207]
Agreement and the affidavit of Elizabeth
Isam.1 Isam averred that she is the regional In his response, Avila argues that Bunzl
human resources manager for Bunzl failed to establish that the parties assented to
Distribution Southwest, L.P., which Avila the Agreement because Bunzl did not sign it,
wrongly named in this suit as Bunzl Dallas, there was no evidence that the employee
Inc. She further stated that she is the signature on the Agreement was his, and
custodian of records for Bunzl Southwest, there was no other evidence to show that the
that she maintains the personnel jackets of parties assented to the Agreement's terms.
Bunzl employees within her region of Avila also argues that his claims do not fall
authority, that the attached copy of the within the scope of the arbitration provision.
Salesperson Employment Agreement is "a
In its reply brief, Bunzl again fails to offer
true and accurate copy of Mr. Avila's
any argument regarding the absence of its
Employment Agreement," that the Agreement
signature. The only reference to this issue is
was kept in his employment jacket so it could
an assertion that Avila did not "claim or argue
be reviewed if questions arose regarding the
to the Trial Court that the agreement
parties' rights and obligations under the
presented was not the Parties' Agreement."
Agreement, and that she personally reviewed
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In re Bunzl Usa, Inc., 155 S.W.3d 202 (Tex. App., 2004)
necessary element of its opponent's "case in Jebbia, 26 S.W.3d at 757. Instead, we apply
chief" or present some evidence supporting standard contract principles to determine
every element of a defensive claim that there whether a valid arbitration agreement exists.
is no enforceable agreement to arbitrate. Lang, 321 F.3d at 538; Godinez, 998 S.W.2d
at 702.
If the movant has proven there is an
arbitration agreement, as a matter of law, the Under standard contract principles, the
court must compel arbitration, and a presence or absence of signatures on a written
presumption arises that all disputed issues contract is relevant to determining whether
between the parties must be arbitrated. If the contract is binding on the parties.
issues of material fact remain about whether According to Corbin, if the parties have
there is an enforceable agreement to unconditionally assented to terms stated in an
arbitrate, the trial court must promptly allow unsigned document, the document
the party claiming the right to arbitrate an constitutes a binding written contract,
evidentiary hearing on the matter. regardless of whether it is signed. 1 ARTHUR
LINTON CORBIN, CORBIN ON
Jebbia, 26 S.W.3d at 757 (citations CONTRACTS 2.10, at 168 (Joseph M. Perillo
omitted). We agree that this is the correct rev., 1993). But a party's signature on a
procedure for the trial court and the parties to written contract is "strong evidence" that the
follow. party unconditionally assented to its terms.
Id. In the absence of a signature, other
ESTABLISHING THE EXISTENCE OF evidence must be relied upon to prove the
AN ARBITRATION AGREEMENT party's unconditional assent. Id.
Furthermore, the parties may provide that the
Public policy favors the submission of signature of each party is a prerequisite to a
disputes to arbitration. In re Conseco Fin. binding written contract. Id. at 165.
Servicing Corp., 19 S.W.3d 562, 566
(Tex.App.-Waco 2000, orig. proceeding). But The Texas Supreme Court has relied on
arbitration is also a creature of contract. these principles from Corbin to decide
whether parties were bound by an instrument
[155 S.W.3d 209] that only one party signed. See Simmons &
Simmons Constr. Co. v. Rea, 155 Tex. 353,
Am. Heritage Life Ins. Co. v. Lang, 321 F.3d
286 S.W.2d 415 (Tex.1955). In Rea, a general
533, 537 (5th Cir.2003); Ysleta Indep. Sch. contractor and a subcontractor orally agreed
Dist. v. Godinez, 998 S.W.2d 700, 702
upon the terms of a contract, which the
(Tex.App.-El Paso 1999, no pet.). Therefore, a general contractor immediately reduced to a
party cannot be compelled to arbitrate a
written instrument that included a signature
dispute unless he has agreed to do so. Lang,
block and provided for the furnishing of a
321 F.3d at 537. A party seeking to compel
bond after the instrument was signed. The
arbitration must first establish that an
general contractor then delivered the
arbitration agreement exists. Id. at 537; In re
instrument to the subcontractor with
Oakwood Mobile Homes, Inc., 987 S.W.2d
directions to obtain a bond, sign the
571, 573 (Tex.1999); In re Anaheim Angels
instrument, and return the instrument, along
Baseball Club, Inc., 993 S.W.2d 875, 877
with the bond, so that the general contractor
(Tex.App.-El Paso 1999, orig. proceeding).
could sign the instrument. The general
When we are called upon to decide whether
contractor also told the subcontractor to be
the parties have agreed to arbitrate, we do not
available to begin work when the materials
resolve doubts or indulge a presumption in
became available. Id. at 357, 286 S.W.2d at
favor of arbitration. Lang, 321 F.3d at 537-38;
417. After the subcontractor followed these
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In re Bunzl Usa, Inc., 155 S.W.3d 202 (Tex. App., 2004)
the only way a party can manifest assent to a The defendants provided the trial court
contract." Id. at 1283. The judge found that with Isam's affidavit, which states that the
the defendants demonstrated their assent to Agreement is "a true and accurate copy of Mr.
the contract by following through on their Avila's Employment Agreement," that the
contractual obligation to build the home. Id. Agreement was kept in his employment jacket
so it could be reviewed if questions arose
APPLICATION OF THE LAW TO THE regarding the parties' rights and obligations
FACTS OF THIS CASE under the Agreement, and that she personally
reviewed the Agreement before Avila was
From the foregoing discussion of the law, terminated to ensure that Bunzl acted in
it is clear that Bunzl had the burden in the accordance with its obligations under the
trial court of establishing the existence of an Agreement. This is some evidence that Bunzl
agreement to arbitrate. Oakwood Mobile considered itself bound by the Agreement.4
Homes, 987 S.W.2d at 573; Jebbia, 26 S.W.3d
at 757. Because Bunzl did not sign the The trial court also had the Agreement
Agreement, Bunzl's burden included itself to review. Although the Agreement has a
establishing that the parties intended to be signature block intended for Bunzl's
bound regardless of whether the contract was representative, it was never signed. The trial
signed by both parties. See Jebbia, 26 S.W.3d court also noted that the Agreement states,
at 757; see also Rea, 155 Tex. at 357-59, 286 "No modification or amendment of any
S.W.2d at 417-19 (suggesting that signatures provision of this Agreement is effective unless
may be a condition precedent to the it is in writing and signed by the parties to
effectiveness of a this Agreement." (Emphasis added). This
provision and the blank signature block are
[155 S.W.3d 211] evidence that the parties did not intend to be
bound until both parties signed the
contract); Jennings, 936 S.W.2d at 18-19 Agreement. See Scaife, 100 F.3d at 410-11
(holding that the party seeking to compel (holding that signatures were required where,
arbitration has the burden of establishing that among other things, contract contained
conditions precedent to arbitration have been signature block, along with a provision that
satisfied). The question of the parties' intent amendments had to be in signed writings);
was a fact question for the trial court to Rea, 155 Tex. at 358-59, 286 S.W.2d at 418-19
resolve. See Scaife, 100 F.3d at 410. We (holding that signatures were required where,
cannot overturn the trial court's resolution of among other things, contract had signature
this fact question unless Bunzl establishes block).
that the trial court could reasonably have
reached only the opposite decision. See [155 S.W.3d 212]
Walker, 827 S.W.2d at 840. Moreover, if
Bunzl found itself unable to establish, as a From this conflicting evidence, the trial
matter of law, that the parties intended to be court could have reasonably concluded that
bound regardless of whether the contract was Bunzl did not establish the existence of an
signed, it should have requested an agreement to arbitrate. Therefore, the court
evidentiary hearing. See Jebbia, 26 S.W.3d at did not abuse its discretion by refusing to
758. But Bunzl did not request an evidentiary compel arbitration.
hearing below and does not complain in this
Court of the trial court's failure to conduct CONCLUSION
such a hearing.
For the reasons stated herein, the
petition for writ of mandamus is denied.
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In re Bunzl Usa, Inc., 155 S.W.3d 202 (Tex. App., 2004)
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