# Kunzie v. Jack-In-The-Box, Inc.

> Missouri Court of Appeals · March 9, 2010 · 330 S.W.3d 476

URL: https://www.frixlaw.com/law-library/cases/9749277

## Case

- **Full name:** David K. KUNZIE, Appellant, v. JACK-IN-THE-BOX, INC., Respondent
- **Court:** Missouri Court of Appeals
- **Decided:** March 9, 2010
- **Citations:** 330 S.W.3d 476; 108 Fair Empl. Prac. Cas. (BNA) 1586; 2010 Mo. App. LEXIS 281; 2010 WL 779367
- **Precedential status:** Published
- **Opinion:** Concurrence by Gaertner
- **Judges:** Kurt S. Odenwald
- **Cited by:** 50 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9749277

## How later opinions describe it (automated extraction)

- recognizing “it appears that the Berkley court indeed may have relied upon evidence of ‘something more’ than the employee’s mere continuation of employment following [the employer]’s presentation of the arbitration agreement to its employees”
- reversing order to compel arbitration and remanding case for evidentiary hearing to determine whether employee unequivocally agreed to be bound by arbitration, as employee’s continued work was not enough to manifest his intent to be bound by proposed arbitration agreement as n…
- noting that an acceptance must be “positive and unambiguous” and that the offeree must “objectively manifest the [ ] intent to be presently bound”

## Opinion text

GARY M. GAERTNER, JR., Judge,
concurring.
I concur with the result, but I respectfully disagree that an at-will employee’s refusal to sign an arbitration agreement is a “counter-offer” to be accepted or rejected by the employer. Rather, if Appellant did not consent to arbitration, then the agreement is unenforceable, and we need not address the issue of counter-offers. See Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 435 (Mo. banc 2003) (“[ajrbitration is a matter of contract, and a party cannot be required to arbitrate a dispute that it has not agreed to arbitrate”); see also Guidry v. Charter Communications., Inc., 269 S.W.3d 520, 528 (Mo.App. E.D.2008) (when parties modify existing contract, it is only enforceable if there is mutual assent, i.e., meeting of minds; “meeting of the minds occurs when there is a definite offer and an unequivocal acceptance”).
*487 Second, it is my opinion that the error below occurred not in relying on Berkley v. Dillard’s Inc., 450 F.3d 775 (8th Cir.2006), but in failing to adduce evidence sufficient to determine whether Appellant had accepted Respondent’s offer to be bound by the Arbitration Agreement. I do not hold the view that Berkley stands for the proposition that an employee’s decision to continue working after the employer presents an arbitration agreement — without more— decisively indicates that the employee intends to be bound by the arbitration agreement. Rather, Berkley presented a strong factual record of the employee’s understanding that by continuing to work she was agreeing to abide by the arbitration policy. Id. at 776-77 (employer specifically discussed with employee that refusal to sign arbitration agreement did not constitute rejection of arbitration policy, and arbitration agreement itself stated that continuing employment acted as acceptance). Such a factual record was missing in the case at bar.
I would remand this case to the trial court for an evidentiary hearing. The trial court should determine, first, whether Appellant in fact signed the Receipt and Ac-knowledgement of the Arbitration Agreement. If the court finds that he did not sign the Receipt and Acknowledgement, then the court must determine at that hearing whether the facts establish Appellant’s acceptance. If the evidence adduced upon remand shows that the Arbitration Agreement contractually and automatically applied to all employees who continued their employment, and that Appellant was aware that a refusal to sign did not constitute a rejection of the offer, then I believe that the trial court’s reliance on the rationale in Berkley would not be misplaced.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9749277. Public record. Not legal advice.