Reversed and Remanded and Majority and Disse nting Opinion s filed

September 27 , 2022

.

In The



## Fourteenth Court of Appeals

NO. 14

- 20

- 00871

- CV

GSC WHOLESALE, LLC D /B/A GROCERS SUPPLY AND THE GROCERS SUPPLY PRODU CE CO., LLC , Appellant s
V.
ZACH YOUNG , Appellee

On Ap peal from the 29 5t h District Court

Harris County, Texas Trial Court Cause No. 2020

- 37352

DISSENTING OPINION

T he majority concludes that the unsi gned A r bitration A greement c ontained in the January 29, 2015 contract is not ambiguous because GSC and Young

a ssent ed to the agreeme nt by conduct , without the signatu re of a n authorized representative of GSC

. See McMahan v . Green wood , 108 S. W.3d 467, 484 (Tex. App.

— Houston [14th Dist.] 2003, pe t. denied) ( “ Absent a mbigui ty , a court must2

construe the meaning of a c ontract as a matter of law. ” ) I res pect ful ly dissent from the majority o pi nion because the A rbitration A greement rel ied o n by GSC is ambiguous as to whether GSC ’ s signature was a condition precedent to the

en forceability of the Arbi t r ation A greement. See i d. ( “ Condition s prece d ent are

acts or event s that occur subsequent to the formation of a contract and that must occur before there is a right to immediate performance and before there can be a breach of a contractual duty. ” ). The majority concludes that G SC established an agree ment to arb itrate as a
matter of law because the re is no language in the Arbitration A greement providing
that assent to the Arbitration A greement may only be made b y signature . In support of their conclusion, the ma jori ty refer ences a “ No te to the Employe e ” in
the Arbitration Agreement that states that the a rbitration dispute resolution
program “ is a mand atory and binding condition of your empl oy ment regardless of
whether or not you sign or return the agreement . This Agre ement i s li ke wise binding on your E mployer

. ” (emphasis added). However , the majority ’ s conclusion ignores the language above the signature l ine providing that the signature indicates
that the employer has “Accepted and Agreed

. ” T he question here is whether G SC

acc epted t he Arbitration Agreement , not whe ther Young accepted the Arbitration Agreement

. Th e language requiring the sig natu re of GSC ’ s authorized representative supports a findin g that the A rbitration A greement required a signat ure for GSC to asse nt to the A rbitr a tion A greement.

T he majority also relie s on the languag e in the Arbitration A greement providing that Young ’ s co ntinued employment with GSC indicate s the parties ’

mutu al agreement to arbitrate. Thi s language in the A rbitration A greement

s u ppo rts a co ntrar y fin ding that GSC ’ s sign ature was not required to sign the agreement to assent to it . These tw o compet ing inferences create a n ambiguity as3

to whether GSC ’ s signature was a conditi on precedent to enforceabili ty

. See
Con ocoPhillips Co. v. Koopman n , 547 S. W

. 3d 858, 874 (Tex. 2018) ( “ A contract is ambiguous when it s meaning is uncert ain and doubtful or is reasonably susceptible to more than one interpretation. ” )

. A party can not a ccept by cond uct a
contract that r equ ires a s ignature as a condition pr ecedent

. S e e Hohenberg Bros. Co. v. George E. Gibbons & Co

. , 537 S.W .2d 1, 3 (Tex. 1976) ; Simmons v.
Simmons Con st. Co. v . R ea , 286 S.W

. 2d 415, 418 (Tex. 1955 ) ; SK Plymouth , 605
S.W .3d at 715

– 18

. Accordingly, we cannot con clude as a matter of law tha t the
Arbitrati o n A greement allowed for assent by the parties by c onduct

. See Smart Call, LLC , 2014 WL 3955083, at *5 ( n o ting that provision in the agreement that i t “may be modified only by a subsequ ent wr itten do cument signed by the Parties” along with “blan k signature b lo c k s” is “some evidence that the parties did not intend to be bound until both parties signed the agre e ment”); In re Bunzl , 1 55 S.W.3d at 211 (sam e). The A rbitration A greement relied on by GSC sup ports the
trial court ’ s finding tha t GSC ’ s signa ture was a con dition precedent for GSC ’ s
assent to the Arbitration A greement . Therefore, I would conclude that the trial
court did not abuse its discretion when it denied GSC ’ s motion to comp el
arb itr ation

. B ecause I would conclude that the trial court di d not abuse its
discretion , I would not find it neces sary to reach GSC ’ s second issue of w hether Young ’ s claims fall within the scope of the Arbitration A greement.

For t hese r easons, I respectf ully di ssent.

/s/ Marg aret “ Meg ” Poissant Justice

Panel con sists of Justices Wise, P o issant , and Wi lson. (Wilson, J. , majority).