SK Plymouth, LLC and SK E&P Operations America, LLC and Joey Jun v. Jean Elizabeth Simmons ( 2020 )

Opinion issued April 16, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00433-CV
———————————
SK PLYMOUTH, LLC, SK E&P OPERATIONS AMERICA, LLC, AND
JOEY JUN, Appellants
V.
JEAN ELIZABETH SIMMONS, Appellee
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 2019-03233
OPINION
Jean Elizabeth Simmons sued Appellants—SK Plymouth, LLC; SK E&P
Operations America, LLC (“SKEPOA”); and Joey Jun—for wrongful termination
of employment. Based on an arbitration agreement signed by Simmons when she
began employment with SKEPOA, Appellants filed a motion to compel arbitration
under the Federal Arbitration Act.1 Simmons responded, asserting that the arbitration
agreement was not enforceable because SKEPOA had not signed the agreement.
The trial court denied Appellants’ motion to compel arbitration. The trial court
also denied Appellants’ motion to reconsider the motion to compel. In this
interlocutory appeal, Appellants raise two issues. They challenge (1) the trial court’s
denial of their motion to compel arbitration and (2) the denial of their motion to
reconsider.
Because the evidence from the motion to compel proceedings demonstrated
that SKEPOA intended to be bound by the arbitration agreement, while no evidence
showed that the parties intended for SKEPOA’s signature to be a condition precedent
to its enforcement, we hold that the trial court abused its discretion in denying the
motion to compel arbitration. But we agree with Simmons that, in this interlocutory
appeal, we have no jurisdiction to address the trial court’s denial of the motion to
reconsider.
We reverse the trial court’s order denying Appellants’ motion to compel
arbitration and remand to the trial court. We dismiss the portion of the appeal
challenging the order denying the motion to reconsider.
1
See 9 U.S.C. §§ 1–16.
2
Background
On May 2, 2018, Simmons received, and accepted, a written offer of
employment for the position of senior production technician with “SK E&P
Company.” The offer informed Simmons that, “[a]s a condition for you to
commence your employment with the Company, you are required to sign the
Company’s separate Confidentiality and Arbitration Agreement a copy of which is
being provided to you along with this offer letter.”2
Other documents in the record indicate that the senior production technician
position accepted by Simmons was with SK Plymouth, not with SK E&P Company.
On June 20, 2018, a letter from SKEPOA’s president to Simmons indicated that
SKEPOA intended to transfer some of SK Plymouth’s operations to SKEPOA. The
letter (hereafter “Transfer Letter”) informed Simmons that her employment with SK
Plymouth would be transferred to SKEPOA beginning July 1, 2018. The Transfer
Letter also stated, “Except as set out in this letter, there will be no change to your
existing terms and conditions of employment.” The Transfer Letter requested
Simmons to indicate whether she accepted the new position with SKEPOA by
signing the letter. A copy of the Transfer Letter signed by Simmons is not part of the
2
Appellants assert that Simmons signed an arbitration agreement at the time of her
initial hire but could not find a signed copy of the agreement. The initial arbitration
agreement is not the subject of Appellants’ motion to compel arbitration at issue
here. As discussed, infra, the subject arbitration agreement was signed by Simmons
later in her employment in July 2018.
3
motion-to-compel record, however, other documents in the record indicate that
Simmons’s employment transferred to SKEPOA on July 1, 2018.
On July 12, 2018, Simmons signed an arbitration agreement, entitled Mutual
Agreement to Arbitrate Claims (“the Arbitration Agreement”). The agreement
provided, in relevant part, as follows:
In consideration of the at-will employment relationship and its
continuation between SK E&P Operations Americas (the “Company”)
and Jean Simmons (“Employee”) and the mutual desire of the parties
to enter in this Agreement, the Company and Employee hereby agree
that any and all disputes, claims or controversies arising out of or
relating to this Agreement, the employment relationship between the
parties, or the termination of the employment relationship, that are not
resolved by their mutual agreement shall be resolved by final and
binding arbitration by a neutral arbitrator. This Agreement includes any
claims that the Company may have against Employee, or that Employee
may have against the Company or against any of its officers, directors,
employees, agents, or parent, subsidiary, or affiliated entities.
....
The claims covered by this Agreement include, but are not limited to,
claims for wrongful termination; . . . discrimination, harassment or
retaliation, including but not limited to such conduct based on race, sex,
pregnancy, religion, national origin, ancestry, age, . . . or any other
protected category; [or] violation of . . . the Texas Labor Code.
....
The Company reserves its right to amend or modify this Agreement at
any time at its sole and absolute discretion provided that it gives
Employee thirty (30) days’ written notice. Notwithstanding any
provision in this Agreement to the contrary, if the Company provides
such notice, the Employee may reject such a change by sending written
notice of the rejection to the Employee’s immediate supervisor within
30 days of the issuance of the notice. By rejecting any such change, the
4
Employee will agree that the [a]rbitration agreement in effect with the
Employee immediately before the proposed change, if any, will apply
to that Employee.
The parties agree that there is good and valuable consideration for the
execution of the Agreement, including but not limited to, Employee’s
continued employment with the Company, the requirement that the
agreement to arbitrate all claims is mutual between the parties, and
other good and valuable consideration.
....
UNDER THIS ARBITRATION AGREEMENT THE PARTIES
WAIVE THEIR RIGHT TO HAVE ANY DISPUTE, CLAIM OR
CONTROVERSY DECIDED BY A JUDGE OR JURY IN A COURT.
Simmons’s signature, on the last page of the Arbitration Agreement, appears
as follows:
As reflected, a representative of SKEPOA did not sign the Arbitration Agreement.
Simmons’s employment was terminated in October 2018. Three months later,
Simmons filed suit against SK Plymouth, SKEPOA, and her supervisor, Joey Jun,
for employment discrimination. In her petition, Simmons alleged that, prior to her
termination, Jun had engaged in harassing and abusive conduct toward her.
5
Simmons averred that she had reported Jun’s improper conduct to “Sandra
Trover.” Later-filed documents in the record show that the person’s name is “Sandra
Tovar,” a human resource’s representative. Simmons told Tovar that she believed
Jun was mistreating her based on her gender, race, age, and national origin.
Simmons alleged that, in retaliation for reporting Jun’s conduct to the human
resources department, she was subjected to a hostile-work environment and
ultimately terminated. Simmons claimed that Appellants’ discriminatory and
retaliatory employment practices violated Chapter 21 of the Texas Labor Code.
Appellants answered the suit, generally denying Simmons’s claims but also
asserting that the dispute was subject to arbitration. Appellants’ counsel sent a letter
to Simmons’s counsel, requesting that Simmons dismiss her suit and submit her
claims to arbitration pursuant to the Arbitration Agreement.
After Simmons did not comply with the request, Appellants filed a motion to
compel arbitration and to stay the trial court proceedings. Appellants based the
motion on the Arbitration Agreement signed by Simmons on July 12, 2018.
Appellants asserted that the Arbitration Agreement was a valid, enforceable contract
and that Simmons’s claims were within the scope of the agreement.
In support of their motion to compel arbitration, Appellants submitted the
Arbitration Agreement and other documents relating to Simmons’s employment.
The documents included the initial May 2, 2018 offer of employment signed and
6
accepted by Simmons. Appellants also submitted the June 20, 2018 Transfer Letter,
notifying Simmons that her employment was being transferred from SK Plymouth
to SKEPOA. Although the Transfer Letter requested Simmons to indicate her
agreement to the employment transfer by signing the letter, the copy of the letter
attached to the motion to compel arbitration was not signed by Simmons. However,
Appellants offered other evidence indicating that Simmons’s employment was
transferred to SKEPOA in July 2018.
Among Appellants’ evidence is Sandra Tovar’s declaration. Tovar attested
that she was a senior human resources specialist who had “worked for SK E&P
Company or an affiliate since May 19, 2017.” In that role, she oversaw “the hiring
process of new employees,” and she was “the custodian of the personnel documents
that are sent, submitted to, and received by employees.” Tovar attested that all the
documents attached to the motion to compel were “true and correct” copies,
including the Arbitration Agreement.
Tovar also stated that, [e]ffective July 1, 2018, [Simmons’s] employment with
SK Plymouth was transferred to SKE&P Operations America, LLC [SKEPOA].”
Tovar attested that, when Simmons transferred to SKEPOA, she signed the
Arbitration Agreement.
Responding to the motion to compel, Simmons asserted that the Arbitration
Agreement was not a binding contract because it was not signed by SKEPOA. She
7
pointed out that the Arbitration Agreement contained a signature block for the
company to sign. Simmons claimed that, because she was required to sign the
Arbitration Agreement, SKEPOA was also required to sign it.
Appellants replied that SKEPOA’s signature was not necessary to bind the
company to the Arbitration Agreement. They pointed out that no language in the
Arbitration Agreement required the parties to sign it. Appellants distinguished the
cases relied on by Simmons, which involved arbitration agreements expressly
requiring the parties to sign the instrument to make it binding. Appellants asserted
that the Arbitration Agreement’s signature block specified that its purpose was
“Acknowledgment of Receipt,” indicating that it functioned to provide confirmation
that an employee, such as Simmons, had been notified of the agreement’s terms.
Simmons replied, pointing out that the Transfer Letter—notifying Simmons
that her employment was being transferred to SKEPOA—had requested her to sign
the letter to indicate her agreement to the job transfer. Simmons questioned whether
she had become SKEPOA’s employee because Appellants did not submit a signed
copy of the Transfer Letter. Simmons also offered her own declaration in which she
indicated that she had become “generally confused” about which company had
employed her because, at her “TWC [Texas Workforce Commission] hearing,”
“individuals that represented SK” could not identify who had employed Simmons.
8
Appellants offered payroll records indicating that SKEPOA was the company
who paid Simmons. One record showed that SKEPOA paid Simmons in July 2018,
the date she transferred to SKEPOA. Another record showed that SKEPOA paid
Simmons in October 2018, the last month of her employment. In addition, Tovar
attested in her declaration that, “[e]ffective July 1, 2018, [Simmons’s] employment
with SK Plymouth was transferred to SKE&P Operations America, LLC.”
On May 16, 2019, the trial court signed an order denying the motion to compel
arbitration without specifying the reason for the denial. Appellants timely appealed
the order, filing their notice of appeal on June 10, 2019.3
On June 18, 2019, Appellants filed a motion to reconsider the motion to
compel arbitration. Appellants asserted that a copy of the Transfer Letter signed by
Simmons—indicating that she had agreed to the employment transfer from SK
Plymouth to SKEPOA—had only recently been discovered in company personnel
records. Appellants attached a copy of the signed letter to the motion to reconsider.
On July 22, 2019, the trial court signed an order denying the motion to
reconsider. Appellants appealed the order, filing a separate notice of appeal on July
30, 2019. The appeal of the order denying the motion to compel arbitration and the
3
Appellants were granted an extension of time to file their notice of appeal. See TEX.
R. APP. P. 26.1(b), 26.3
9
appeal of the order denying the motion to reconsider are included in the instant
appeal.
Appellants raise two issues on appeal. In their first issue, Appellants contend
that the trial court erred when it denied their motion to compel arbitration. In their
second issue, Appellants challenge the trial court’s denial of their motion to
reconsider.
Simmons has filed a motion to dismiss the portion of the appeal challenging
the trial court’s denial of the motion to reconsider. She argues that this Court lacks
jurisdiction to consider the appeal of that order because it is not a statutorily
designated order subject to interlocutory appeal. Because it is a threshold issue, we
first address Simmons’s motion to dismiss.
Motion to Dismiss
Interlocutory orders may be appealed only if permitted by statute and only to
the extent jurisdiction is conferred by statute. Jack B. Anglin Co., Inc. v. Tipps, 842
S.W.2d 266, 272 (Tex. 1992) (orig. proceeding). We strictly construe statutes
authorizing interlocutory appeals because they are a narrow exception to the general
rule that interlocutory orders are not immediately appealable. CMH Homes v. Perez,
340 S.W.3d 444, 447 (Tex. 2011).
In Texas, parties may expressly agree to arbitrate under the FAA. See In re
Rubiola, 334 S.W.3d 220, 223 (Tex. 2011). Here, the Arbitration Agreement
10
provides that it is “enforceable under and subject to the Federal Arbitration Act
[FAA].” Appellants’ arbitration motion indicates that they seek to compel arbitration
under the FAA. Although she opposes arbitration, Simmons does not contest the
application of the FAA.
Section 51.016 of the Civil Practice and Remedies Code, which authorizes
appeals in matters subject to the FAA, provides that a party may appeal an
interlocutory order “under the same circumstances that an appeal from a federal
district court’s order or decision would be permitted” by the FAA. TEX. CIV. PRAC.
& REM. CODE § 51.016. Under the FAA, a party may immediately appeal an order
denying a motion to compel arbitration. See 9 U.S.C. § 16(a)(1)(B). Therefore, an
interlocutory appeal may be taken from an order denying a motion to compel
arbitration under the FAA. However, there is no statutory authority permitting the
interlocutory appeal of an order denying a motion to reconsider the denial of a
motion to compel arbitration. See Brand FX, LLC v. Rhine, 458 S.W.3d 195, 201
(Tex. App.—Fort Worth 2015, no pet.).
Appellants indicated that they filed the motion to reconsider for the purpose
of offering additional evidence—specifically, the copy of the Transfer Letter signed
by Simmons—in order to rebut a point raised by Simmons in her response to the
motion to compel. In doing so, Appellants raised no new grounds to compel
arbitration. See id. (concluding no interlocutory appeal authorized from motion to
11
reconsider because arguments included in motion to reconsider were already raised
at previous hearing on motion to compel arbitration); Nazareth Hall Nursing Ctr. v.
Castro, 374 S.W.3d 590, 594 (Tex. App.—El Paso 2012, no pet.) (concluding
interlocutory appeal from denial of motion to reconsider not authorized under FAA
because motion to reconsider was based on same arbitration agreement that was
subject of motion to compel); cf. Branch Law Firm L.L.P. v. Osborn, 532 S.W.3d 1,
12 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (holding court had
jurisdiction over interlocutory appeal of denial of third motion to compel arbitration
when new issue was argued by parties in motion and at hearing on motion, making
third motion distinct motion to compel arbitration and not motion for reconsideration
of second motion to compel arbitration); Lucchese, Inc. v. Solano, 388 S.W.3d 343,
349 (Tex. App.—El Paso 2012, no pet.) (holding interlocutory appeal from amended
motion to compel was authorized under FAA because amended motion to compel
was based on separate and different arbitration agreement than agreement relied on
in original motion to compel; thus, amended motion was not a disguised motion to
reconsider).
Because Appellants’ motion to reconsider requested the same relief based on
the same Arbitration Agreement as in the motion to compel, and it raised no new
distinct arguments for compelling arbitration, we conclude that we have no
jurisdiction to consider Appellants’ challenge to the order denying Appellants’
12
motion to reconsider raised in their second issue. See Brand FX, LLC, 458 S.W.3d
at 201; Nazareth Hall Nursing Ctr., 374 S.W.3d at 594. Accordingly, we grant
Simmons’s motion to dismiss the portion of the appeal challenging the order denying
the motion to reconsider.4
Motion to Compel Arbitration
In their first issue, Appellants contend that the trial court erred when it denied
their motion to compel arbitration and to stay the trial court proceedings pending
arbitration.
A. Standard of Review and Applicable Legal Principles
“We review a trial court’s order denying a motion to compel arbitration for
abuse of discretion.” Henry v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018). A
trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or
acts without reference to any guiding rules or principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). “We defer to the trial court’s
factual determinations if they are supported by evidence but review its legal
determinations de novo.” Henry, 551 S.W.3d at 115.
4
We agree with Simmons that we cannot consider the evidence attached to
Appellants’ motion to reconsider or Simmons’s evidence submitted in response to
the motion. See Brand FX, LLC v. Rhine, 458 S.W.3d 195, 201 (Tex. App.—Fort
Worth 2015, no pet.).
13
A party seeking to compel arbitration under the FAA must establish that
(1) there is a valid arbitration agreement and (2) the claims in dispute fall within that
agreement’s scope. In re Rubiola, 334 S.W.3d at 223. Here, the dispute is not
whether Simmons’s claims fall within the scope of the agreement;5 rather, the
dispute is whether Appellants met their burden to show that the Arbitration
Agreement is a valid, enforceable agreement.
The trial court’s determination as to the validity of an arbitration agreement is
a legal determination that we review de novo. See Jody James Farms, JV v. Altman
Group, Inc., 547 S.W.3d 624, 633 (Tex. 2018); J.M. Davidson, Inc. v. Webster, 128
S.W.3d 223, 227 (Tex. 2003). While there is a strong policy favoring arbitration, this
policy does not apply to the initial determination whether there is a valid arbitration
agreement. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005).
The presumption favoring arbitration arises only after the party seeking to compel
arbitration establishes a valid agreement to arbitrate because “the purpose of the
5
The Arbitration Agreement provides that it applies to “any claims that the Company
may have against Employee, or that Employee may have against the Company or
against any of its officers, directors, employees, agents, or parent, subsidiary, or
affiliated entities.” This includes “claims for wrongful
termination; . . . discrimination, harassment or retaliation, including but not limited
to such conduct based on race, sex, pregnancy, religion, national origin, ancestry,
age, . . . or any other protected category; [or] violation of . . . the Texas Labor Code.”
Thus, Simmons’s wrongful termination suit against Appellants, arising from
allegations that they retaliated and discriminated against her based on her gender,
race, age, and national origin in violation for of Chapter 21 of the Texas Labor Code,
fall within the scope of the Arbitration Agreement.
14
FAA is to make arbitration agreements as enforceable as other contracts, not more
so.” Id. at 738 (quoting Bridas S.A.P.I.C. v. Gov’t of Turkm., 345 F.3d 347, 354 n.4
(5th Cir. 2003)).
B. Validity of Arbitration Agreement
To determine whether the Arbitration Agreement constitutes a valid
agreement to arbitrate, we apply ordinary principles of state contract law. See id. The
elements of a valid contract are (1) an offer, (2) an acceptance, (3) a meeting of the
minds, (4) each party’s consent to the terms, and (5) execution and delivery of the
contract with the intent that it be mutual and binding. Prime Prods., Inc. v. S.S.I.
Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet.
denied).
Here, the dispute centers on the fifth element. As framed by the parties, the
validity of the Arbitration Agreement hinges on whether SKEPOA assented to be
bound by the agreement’s terms even though it did not sign the agreement. As shown
above, the last page of Arbitration Agreement contained signature blocks for both
the employee and the company to sign under the heading “Acknowledgment of
Receipt.” Simmons signed on the line designated for the employee, but SKEPOA
did not sign on the line designated for the company. Because SKEPOA did not sign
the agreement, Simmons asserts that the Arbitration Agreement is not binding.
15
“Contracts require mutual assent to be enforceable.” Baylor Univ. v.
Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007). “Typically, a party manifests its
assent by signing an agreement.” Rachal v. Reitz, 403 S.W.3d 840, 845 (Tex. 2013).
However, “while signature and delivery are often evidence of the mutual assent
required for a contract, they are not essential.” Phillips v. Carlton Energy Grp., LLC,
475 S.W.3d 265, 277 (Tex. 2015).
The Supreme Court of Texas has held that the FAA does not require parties
to sign an arbitration agreement for it to be valid “so long as [the agreement is]
written and agreed to by the parties.” In re Polymerica, LLC, 296 S.W.3d 74, 76
(Tex. 2009); see In re AdvancePCS Health, L.P., 172 S.W.3d 603, 606 (Tex. 2005).
In Polymerica, the court made clear that it has “never held that [an] employer must
sign the arbitration agreement before it may insist on arbitrating a dispute with its
employee.” 296 S.W.3d at 76; see Brock Servs., LLC v. Montelongo, No. 01-18-
00923-CV, 2019 WL 3720624, at *4 (Tex. App.—Houston [1st Dist.] Aug. 8, 2019,
no pet.) (mem. op.) (recognizing that “[t]he FAA does not require parties to sign an
arbitration agreement” and holding that arbitration agreement could be enforced
against employee even when employer did not sign it).
Although an employer is not required to sign an arbitration agreement to make
it enforceable, “parties to an arbitration agreement may express their intent to require
a signature as a condition precedent to the agreement’s enforceability.” Wright v.
16
Hernandez, 469 S.W.3d 744, 758 (Tex. App.—El Paso 2015, no pet.). Under
principles of Texas contract law, a party’s failure to sign an agreement will render it
unenforceable when the terms of the contract make it clear that the party’s signature
is required to make it binding. See Mid-Continent Cas. Co. v. Glob. Enercom Mgmt.,
Inc., 323 S.W.3d 151, 157 (Tex. 2010) (“Texas law recognizes that a contract need
not be signed to be ‘executed’ unless the parties explicitly require signatures as a
condition of mutual assent.”); see also Simmons & Simmons Constr. Co. v. Rea, 286
S.W.2d 415, 418–19 (Tex. 1955) (determining that evidence did not support jury’s
verdict enforcing contract because (1) one party had not signed agreement;
(2) contract contained a signature block; (3) contract itself stated that parties’
signatures had to be notarized, and (4) contract was given to one of the parties with
directions to sign it and return to other party for signing); New York Party Shuttle,
LLC v. Bilello, 414 S.W.3d 206, 215 (Tex. App.—Houston [1st Dist.] 2013, pet.
denied) (holding that modification to contract was not effective when modified
contract not signed by one party because, inter alia, contract required modifications
to be signed by both parties).
In the context of employer-employee arbitration agreements, courts have held
that, when the express language of the agreement required the parties’ signatures
either to make the arbitration agreement binding or to modify the agreement, an
employer must sign an arbitration agreement for it to be a valid, enforceable contract.
17
See Hi Tech Luxury Imports, LLC v. Morgan, No. 03-19-00021-CV, 2019 WL
1908171, at *2 (Tex. App.—Austin Apr. 30, 2019, no pet.) (mem. op.) (upholding
trial court’s denial of motion to compel arbitration when agreement’s language
“provide[d] unambiguous evidence of the parties’ intent to require both signatures
as a condition precedent to enforcement of the agreement,” including language
above signature lines that parties attested that they had read, understood, and agreed
“to be legally bound to all of the above terms”); Huckaba v. Ref-Chem, L.P., 892
F.3d 686, 690–91 (5th Cir. 2018) (concluding no valid agreement to arbitrate
because employer did not sign arbitration agreement, and “[t]he agreement . . .
contain[ed] language that the parties needed to sign the agreement to give it effect
or to modify it”; specifically, contract stated that, “[b]y signing this agreement the
parties are giving up any right they may have to sue each other” and contained clause
prohibiting modifications unless they were “in writing and signed by all parties”);
In re Bunzl USA, Inc., 155 S.W.3d 202, 211 (Tex. App.—El Paso 2004, orig.
proceeding) (denying mandamus relief to employer after trial court denied its motion
to compel arbitration because there was “conflicting evidence” regarding whether
parties intended employer to sign agreement before it became effective, including
evidence showing that parties’ agreement contained signature block intended for
employer’s signature, and agreement stated, “No modification or amendment of any
18
provision of this Agreement is effective unless it is in writing and signed by the
parties to this Agreement”).
Other than the blank signature block, no language in the Arbitration
Agreement indicates that SKEPOA’s signature was contemplated as a condition
precedent to the agreement’s enforceability. We agree with other courts that a blank
signature block alone does not establish that a signature is a condition precedent to
the agreement’s enforceability. See Wright, 469 S.W.3d at 760 (citing Tricon Energy
Ltd. v. Vinmar Int’l, Ltd., 718 F.3d 448, 454–55 (5th Cir. 2013) (recognizing that
blank signature line alone is not necessarily proof that parties required formal
signatures for contract to be binding). We also note that, in contrast to the language
accompanying the signature line in Hi Tech Luxury Imports—stating that the parties
were attesting that they had read, understood, and agreed “to be legally bound to all
of the above terms” in the agreement—the language preceding the signature lines in
the Arbitration Agreement here states that parties’ signatures constituted an
“Acknowledgement of Receipt.” See 2019 WL 1908171, at *2.
Simmons relies on the decisions in Huckaba and Bunzl to support her position
that SKEPOA was required to sign the Arbitration Agreement. However, unlike the
arbitration agreements in Huckaba and Bunzl, here, the Arbitration Agreement does
not contain any provision expressly requiring the agreement to be signed by the
parties in order to make it binding or to modify it. The agreement provides that the
19
process to modify its provisions must be in writing, but in contrast to the agreements
in Bunzl and Huckaba, the modifications are not required to be signed by the parties.
To show that the parties had agreed SKEPOA’s signature was required,
Simmons points to the initial May 2, 2018 employment offer, which she signed and
accepted. The May 2 offer contained language stating that, “[a]s a condition for [her]
to commence [her] employment with the Company,” Simmons was “required to sign
the Company’s separate Confidentiality and Arbitration Agreement.” The June 20,
2018 Transfer Letter, notifying Simmons that her employment was being transferred
from SK Plymouth to SKEPOA, stated, “Except as set out in this letter, there will be
no change to your existing terms and conditions of employment.” Simmons asserts
that these letters show that, even when her employment was transferred to SKEPOA,
the condition that she sign an arbitration agreement remained. However, a
requirement that Simmons sign the Arbitration Agreement in order to demonstrate
her “Acknowledgement of Receipt” of the agreement as a condition of her
employment does not indicate an intent by the parties to require SKEPOA to sign
the agreement to show its assent. Rather, it evinces SKEPOA’s desire to ensure that
it could demonstrate that Simmons had received notice of the agreement. See In re
Dallas Peterbilt, Ltd., 196 S.W.3d 161, 162–63 (Tex. 2006) (stating that “[a]n
employer may enforce an arbitration agreement entered into during an at-will
employment relationship if the employee received notice of the employer’s
20
arbitration policy and accepted it,” and holding that employee’s signed
acknowledgement of receipt of arbitration plan gave employee notice of arbitration
agreement).
Simmons also cites a separate “invention agreement” that she signed on the
same day she that signed the Arbitration Agreement. She points to a clause in the
invention agreement, providing that “[a]ny and all disputes arising out of or under
this Agreement are subject to arbitration pursuant to the separately executed Mutual
Arbitration Agreement between the Company and me.” However, as discussed, a
contract need not be signed to be “executed” unless the parties explicitly require
signatures as condition of mutual assent. See Mid–Continent Cas. Co., 323 S.W.3d
at 157.
Based on the record, there is insufficient evidence to conclude that SKEPOA’s
signature was a condition precedent to the enforceability of the Arbitration
Agreement. See Wright, 469 S.W.3d at 760. Nonetheless, Appellants were still
required to show that SKEPOA assented to the terms of the Arbitration Agreement.
See id. at 758. Even when there is no evidence to show that the parties intended the
signing of the agreement to be a condition precedent, the evidence must still
demonstrate that the non-signatory party intended to be bound by the agreement. See
id.
21
Here, SKEPOA offered evidence, including the Arbitration Agreement, to
show that it assented to the agreement’s terms. The Arbitration Agreement indicates
that the parties have a “mutual desire” to enter into the agreement, and the agreement
makes clear that it applies to claims asserted by either party.
Mutuality of the parties’ assent is highlighted by the language in the
agreement’s provision governing modification:
The Company reserves its right to amend or modify this Agreement at
any time at its sole and absolute discretion provided that it gives
Employee thirty (30) days’ written notice. Notwithstanding any
provision in this Agreement to the contrary, if the Company provides
such notice, the Employee may reject such a change by sending written
notice of the rejection to the Employee’s immediate supervisor within
30 days of the issuance of the notice. By rejecting any such change, the
Employee will agree that the [a]rbitration agreement in effect with the
Employee immediately before the proposed change, if any, will apply
to that Employee.
The modification provision shows the parties’ intent for each to be bound by
the agreement without the necessity of signatures. The language indicates that, when
the company provided her with “written notice” of a modification, Simmons could
reject the modification by providing the company with her own written notice, no
signatures required. Once Simmons sent a rejection notice, the parties would
continue to be mutually bound to the original contract terms. The provision
illustrates the intended parity of the parties’ ability to bind one another to the
arbitration agreement as originally drafted, or as modified, without a signed writing.
22
In the absence of a signature on a contract, a court may look to other evidence
to establish the parties’ assent to the terms of an agreement. Bunzl, 155 S.W.3d at
209. A party’s “intent to be bound by a contract may be evidenced by its conduct at
the time a contract is drafted and by its subsequent conduct reflecting that it was
acting in accordance with the terms of the contract.” Wright, 469 S.W.3d at 760; see
Thomas J. Sibley, P.C. v. Brentwood Inv. Dev. Co., L.P., 356 S.W.3d 659, 663 (Tex.
App.—El Paso 2011, pet. denied) (“A party may accept a contract and indicate its
intent to be bound to the terms by acts and conduct in accordance with the terms.”).
When “determining whether an employer intended to be bound by an
arbitration agreement in the absence of the employer’s signature on the agreement,
courts have considered various actions taken by the employer.” Wright, 469 S.W.3d
at 761. These actions have included “the employer’s act of drafting the arbitration
agreement, its actions in maintaining the agreement as a business record, and its
actions in moving to enforce the agreement when the employee filed suit against it.”
Id. (citing Dish Network L.L.C. v. Brenner, No. 13–12–00564–CV, 2013 WL
3326640, at *5 (Tex. App.—Corpus Christi 2013, no pet.) (mem. op.) (reversing trial
court’s order denying motion to compel arbitration when undisputed evidence
established that employer intended to be bound by unsigned agreement based, in
part, on fact that employer drafted agreement and required all of its employees to
sign agreement prior to working at the company); In re Brown & Root, Inc., No. 05–
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98–00689–CV, 1998 WL 325692, at *2 (Tex. App.—Dallas June 18, 1998, orig.
proceeding) (not designated for publication) (holding employer who failed to sign
arbitration agreement evidenced its intent to be bound by agreement by, among other
things, drafting the arbitration agreement and seeking arbitration).
In Bunzl, the court determined that the affidavit of the employer’s human
resource manager, in which she attested that (1) the arbitration agreement was a true
and correct copy of the agreement signed by the employee, (2) the agreement was
kept by the employer as a business record, and (3) she had reviewed the agreement
to ensure that the employee was terminated in accordance with the agreement,
constituted “some evidence” that the employer had intended to be bound by the
agreement even though it had not signed it. Bunzl, 155 S.W.3d at 211. However, the
Bunzl court also found that there was “conflicting evidence” indicating that the
parties did not intend to be bound by the agreement until both parties signed it. Id.
Specifically, as “conflicting evidence,” the court cited that provision in the
agreement requiring all contract modifications to be signed by both parties and the
blank signature block for the employer. Id. Because of the “conflicting evidence,”
the Bunzl court determined that the arbitration agreement was not enforceable in the
absence of the employer’s signature. See id. at 212.
In contrast to Bunzl, the trial court here was not presented with an arbitration
agreement expressly requiring signatures to modify it or to make it binding. Instead,
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as discussed, language in the Arbitration Agreement indicates that the parties
intended to be mutually bound by the agreement without signing it.
Appellants also presented other evidence that further established SKEPOA
intended to be bound by the Arbitration Agreement. The declaration of human
resources specialist, Sandra Tovar, indicates that the Arbitration Agreement was a
business record maintained by the company in its employees’ personnel files. Tovar
attested that she was the custodian of “the personnel documents that are sent,
submitted to, and received by employees.” Attached to Tovar’s declaration were
documents related to Simmons’s employment. This included the Arbitration
Agreement, which Tovar attested was “a true and correct copy” of the agreement.
Tovar’s declaration and the attached employment documents, showing that
the Arbitration Agreement was given to Simmons for her signature, provide an
indication that SKEPOA prepared the Arbitration Agreement. The language selected
for the agreement required “the parties” to waive their right to have disputes decided
by a court and made clear that the agreement applied to claims brought either by
Simmons or by SKEPOA.
The record also shows that SKEPOA relied on the Arbitration Agreement and
took steps to enforce it. Through its counsel, SKEPOA sent a letter to Simmons’s
attorney, notifying her that her claims were subject to the Arbitration Agreement.
The letter requested Simmons to dismiss her suit so the parties could pursue
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arbitration as required by the agreement. SKEPOA also asserted arbitration as a
defense in its answer, and, along with SK Plymouth and Jun, sought to enforce the
Arbitration Agreement by filing the motion to compel arbitration.
Simmons responded to Appellants’ evidence by asserting that she “dispute[d]
that she was ever an employee of the Company and, thus, the arbitration agreement
between [her] and . . . E&P Operations America, LLC (the ‘Company’) is of no
value.” Simmons pointed out that the copy of the Transfer Letter offered by
Appellants was not signed by her and thus did not show that she had agreed to have
her employment transferred to SKEPOA. She also offered her own declaration in
which she indicated that she had become “generally confused” about which
company had employed her because, at her post-termination “TWC hearing,”
“individuals that represented SK” could not identify who had employed Simmons.
However, in addition to the Transfer Letter, Appellants offered other evidence
to show that Simmons was employed by SKEPOA on July 12, 2018, when she
signed the Arbitration Agreement. Tovar attested in her declaration that Simmons’s
employment was transferred to SKEPOA on July 1, 2018. And Appellants offered
records showing that Simmons was on SKEPOA’s payroll in July 2018 and in
October 2018 when her employment was terminated. Neither the unsigned Transfer
Letter nor Simmons’s declaration that she became “generally confused” about the
identity of her employer at her TWC hearing negate the evidence establishing that
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she was employed by SKEPOA or raise a fact issue regarding whether SKEPOA
assented to the Arbitration Agreement.6
We conclude that Appellants’ evidence, offered in support of their motion to
compel arbitration, established that SKEPOA assented to the Arbitration Agreement
and intended to be bound by it, but no evidence showed that SKEPOA’s signature
was a condition precedent to its enforceability. See Wright, 469 S.W.3d at 761; Dish
Network, 2013 WL 3326640, at *5. Appellants met their burden to establish the
6
For the first time on appeal, Simmons questions the validity of the Arbitration
Agreement by pointing out a discrepancy in the spelling of SK E&P Operations
America, LLC’s name in the agreement. The evidence, including Tovar’s
declaration and the payroll records, indicate that Simmons was employed by SK
E&P Operations America, LLC at the time she signed the Arbitration Agreement,
but the opening paragraph of the agreement states the name of the company as “SK
E&P Operations Americas.” Simmons points out that there is an added “s” at the
end of “America” and the “LLC” is missing. Simmons asserts that other documents
in the record suggest that the corporate name stated in the agreement belongs to
another corporate entity apart from SK E&P Operations America, LLC. However,
there appeared to be no confusion during the trial court proceedings that the
Arbitration Agreement was between Simmons and SK E&P Operations America,
LLC. In any event, because it was not raised in trial court, we do not address this
ground for affirming the trial court’s order denying the motion to compel arbitration.
See Ridge Nat. Resources, L.L.C. v. Double Eagle Royalty, L.P., 564 S.W.3d 105,
118 (Tex. App.—El Paso 2018, no pet.) (“The scope of this Court’s review of the
trial court’s decision is constrained by the arguments raised by the parties both in
the trial court and on appeal. . . . Because the trial court would err if it denied a
motion to compel arbitration on a ground not raised by the resisting party, we may
affirm the trial court’s refusal to compel arbitration only if one of the grounds
presented by the resisting party is valid.”); Amateur Athletic Union of the U.S., Inc.
v. Bray, 499 S.W.3d 96, 102 (Tex. App.—San Antonio 2016, no pet.) (stating that
reviewing court will uphold ruling if there is sufficient basis under any legal theory
asserted in trial court).
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existence of a valid arbitration agreement as a matter of law. We hold that the trial
court abused its discretion by denying Appellants’ motion to compel arbitration.
We sustain Appellants’ first issue.
Conclusion
We reverse the trial court’s order denying Appellants’ motion to compel
arbitration. We remand for the trial court to sign an order (1) compelling the parties
to arbitrate Simmons’s claims and (2) staying the proceedings pending completion
of the arbitration. We dismiss the portion of the appeal challenging the order denying
Appellants’ motion to reconsider.
Richard Hightower
Justice
Panel consists of Justices Keyes, Lloyd, and Hightower.
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