Demetria Trunnel v. Missouri Higher Education Loan Authority

In the
Missouri Court of Appeals
Western District
DEMETRIA TRUNNEL, )
)
Respondent, ) WD84114
)
v. ) OPINION FILED: September 21,
) 2021
MISSOURI HIGHER EDUCATION )
LOAN AUTHORITY, )
)
Appellant. )

Appeal from the Circuit Court of Boone County, Missouri
The Honorable Jeff Harris, Judge

Before Division Four: Cynthia L. Martin, Chief Judge, Presiding, Gary D. Witt, Judge
and W. Ann Hansbrough, Special Judge

Missouri Higher Education Loan Authority ("MOHELA") appeals from the trial

court's order denying MOHELA's motion to compel arbitration. MOHELA challenges

the trial court's determination that no valid arbitration agreement existed with Demetria

Trunnel ("Trunnel"). Finding no error, we affirm.
 Facts and Procedural Background1

On September 2, 2014, MOHELA hired Trunnel. On that same date, Trunnel

completed employment paperwork. The employment paperwork included two

documents associated with the purported arbitration agreement in this case: (1) a two-

page document titled "MOHELA Policy Regarding Mandatory Alternative Dispute

Resolution/ADR Process" ("ADR Process"); and (2) a one-page document titled

"IMPORTANT ACKNOWLEDGMENT OF RECEIPT OF MOHELA MANDATORY

POLICY ON ALTERNATIVE DISPUTE RESOLUTION/ADR PROCESS"

("Acknowledgment of Receipt").

The ADR Process document described a four-step alternative dispute resolution

process, and provided, in relevant part:

This policy is available and applies to all employees . . . who wish to raise
an appropriate issue regarding an employee's legally-protected,
employment-related rights. . . .

In all cases, an employee must exhaust the preceding level of review before
proceeding to the next level of review. If an employee proceeds to resolve
an issue covered by this policy and the ADR process in a forum other than
those mandated by this policy and ADR process, the employee shall be
responsible for all costs and expenses, including, but not limited to,
reasonable attorneys' fees incurred by MOHELA in defending any such
claims and issues. . . .

The ADR Process document included no signature lines.

1
"We defer to the trial court's express factual determinations, and we view all other facts in the light most
favorable to the court's ruling." Sharp v. Kansas City Power & Light Co., 457 S.W.3d 823, 824 n.1 (Mo. App. W.D.
2015 (citing Baier v. Darden Rests., 420 S.W.3d 733, 736–37 (Mo. App. W.D. 2014)).

2
The Acknowledgment of Receipt document provided:

IMPORTANT

ACKNOWLEDGMENT OF RECEIPT OF MOHELA MANDATORY
POLICY ON ALTERNATIVE DISPUTE RESOLUITON/ADR PROCESS

The Alternative Dispute Resolution policy ("Policy") and its related process
offers a quick and fair way to resolve disagreements involving legally-
protected, employment-related rights. This Policy contains the rules and
procedures MOHELA and its employees covered under this Policy must
follow to resolve any covered claims through arbitration. This Policy does
not waive any covered employee's substantive legal rights, nor does this
Policy create or destroy any rights. It merely changes the forum where the
dispute is resolved and the procedures to be followed. The Policy does not
prevent an employee from filing a charge with an administrative agency
like the Equal Employment Opportunity Commission, or the Missouri
Commission on Human Rights. However, this policy must also be followed
by employees.

Effective June 1, 2005, all employees of MOHELA, its affiliates and
subsidiaries shall be subject to the Mandatory Alternative Dispute
Resolution/ADR Process Policy, a copy of which I acknowledge receiving.
Employees are deemed to have agreed to the provisions of the Policy by
virtue of accepting employment with the MOHELA and/or continuing
employment with the MOHELA.

Employees are bound by this Policy even if they do not sign this
Acknowledgment form.

EFFECTIVE on the next day following May 31, 2005 that I perform work
for MOHELA, both MOHELA and I shall be entitled to the benefits of and
mutually agree to become subject to the Policy attached to and incorporated
in this Acknowledgement.

THIS PAGE TO BE SIGNED BY EMPLOYEE

I ACKNOWLEDGE RECEIPT OF THE
MANDATORY ALTERNATIVE DISPUTE RESOLUTION/
ADR PROCESS POLICY.

3
 Employee:

(Signature)

(Date)

The Authority Witness:

(Signature)

(Name)

(Date)

(Emphasis in original). Trunnel signed the Acknowledgment of Receipt document on the

"Employee" signature line and dated her signature "9/2/14." The lines allotted for the

"Authority Witness" were left blank.

Trunnel alleges that she was "constructively discharged" from MOHELA on

January 11, 2019. On October 16, 2019, Trunnel filed suit against MOHELA in the

Circuit Court of Boone County, Missouri alleging that MOHELA discriminated against

her on the basis of race, sex, and disability, and that MOHELA retaliated against her once

she complained of the discrimination.

On August 7, 2020, MOHELA moved to dismiss the proceedings and compel

arbitration, or, in the alternative, to stay the proceedings and compel arbitration.

MOHELA argued that all of Trunnel's claims "are subject to mandatory arbitration"

because by signing the Acknowledgment of Receipt document, Trunnel "agreed to

arbitrate any 'claims for discrimination, harassment, violation of any federal, state, or

4
other governmental law, statute or regulation, termination of employment or tort claims'

that she might have against MOHELA."

Relying on Jackson v. Higher Education Loan Authority of Missouri, 497 S.W.3d

283 (Mo. App. E.D. 2016), Trunnel argued that the trial court should deny MOHELA's

motion to compel arbitration. In Jackson, the Eastern District examined the same ADR

Process and Acknowledgment of Receipt documents at issue here, and determined the

documents did not create an agreement to arbitrate because MOHELA never extended an

offer to be bound by an arbitration process that could be accepted by the employee. Id. at

289-90.

After a hearing on MOHELA's motion, the trial court issued an order denying the

motion to compel arbitration. The trial court found that no arbitration agreement existed

because MOHELA never extended an offer to be bound by an arbitration process that

Trunnel could accept. The trial court found that Jackson was dispositive, as "the Eastern

District Court of Appeals analyzed the very same Policy and the very same

Acknowledgment that are in issue in this case and concluded that there was no 'offer' for

the plaintiff's acceptance," in that "there was no 'objective manifestation' that [MOHELA]

'intended' the Policy and Acknowledgment to constitute an 'offer.'" The trial court also

found that "[t]here was no consequence for an employee's failure to sign and employment

was not contingent upon acceptance," and concluded that "'[m]ere acknowledgement' and

publication of the Policy and an understanding of the Policy are not synonymous with

acceptance of an offer." The trial court explained that it was persuaded by Jackson's

reasoning that "[r]epeatedly using the term 'policy' but never using the term 'contract,' and

5
deeming an employee to have agreed to a policy without the employee's assent do not

constitute an offer for the employee's acceptance."

MOHELA appeals.2

Standard of Review

We review the trial court's denial of a motion to compel arbitration de novo.

Miller v. Securitas Sec. Servs. USA Inc., 581 S.W.3d 723, 728 (Mo. App. W.D. 2019)

(citing Greene v. Alliance Auto., Inc., 435 S.W.3d 646, 649 (Mo. App. W.D. 2014)).

"However, issues relating to the existence of an arbitration agreement are factual and

require our deference to the trial court's findings." Id. (quoting Baier v. Darden Rests.,

420 S.W.3d 733, 736 (Mo. App. W.D. 2014)). "Where the trial court does not make

factual findings, 'all fact issues upon which no specific findings are made shall be

considered as having been found in accordance with the result reached.'" Id. (quoting

Baier, 420 S.W.3d at 737). Thus, 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." Theroff v.

Dollar Tree Stores, Inc., 591 S.W.3d 432, 436 (Mo. banc 2020) (quoting Kunzie v. Jack-

In-The-Box, Inc., 330 S.W.3d 476, 480 (Mo. App. E.D. 2010)). We will affirm the trial

court's order "unless there is no substantial evidence to support it, it is against the weight

of the evidence, or it erroneously declares or applies the law." Duncan v. TitleMax of

Mo., Inc., 607 S.W.3d 243, 247 (Mo. App. W.D. 2020) (quoting Theroff, 591 S.W.3d at

2
An order denying a motion to compel arbitration is final and appealable immediately after the order has
been issued, notwithstanding that the order is not denominated a final judgment; and the notice of appeal must be
filed within ten days of the order. Sanford v. CenturyTel. of Mo., LLC, 490 S.W.3d 717, 721 (Mo. banc 2016); Rule
81.04(a); Section 435.440.1.

6
436). MOHELA, as the party asserting the existence of a valid and enforceable contract

to arbitrate, bears the burden of proving that proposition. Id. at 249 (citation omitted).

Analysis

MOHELA raises a single point on appeal, arguing that it was legal error for the

trial court to conclude that there was no valid arbitration agreement because the

Acknowledgment of Receipt document Trunnel signed "contain[s] clear language that a

binding agreement [was] being offered," and because both acceptance and consideration

were also present and not contested by Trunnel. MOHELA concedes that the ADR

Process and Acknowledgment of Receipt documents that the Eastern District examined in

Jackson are identical to the documents involved in this case. MOHELA argues, however,

that it was error for the trial court to rely on Jackson to deny MOHELA's motion to

compel arbitration because Jackson was wrongly decided, and because the present factual

record is materially distinguishable from the factual record in Jackson.

Whether an arbitration agreement has been formed is a matter of state contract law

"The Federal Arbitration Act (FAA) governs the applicability and enforceability

of arbitration agreements in all contracts involving interstate commerce" and it applies

even when "an arbitration agreement is executed in a single state by residents of that state

if one of the parties to the agreement engages in business in multiple states." State ex rel.

Hewitt v. Kerr, 461 S.W.3d 798, 805 (Mo. banc 2015) (citing 9 U.S.C. section 1 et seq.;

Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56 (2003)). Trunnel does not contest that

the FAA is applicable to this case because MOHELA is engaged in business in multiple

states.

7
 Under the FAA, an arbitration agreement must be in writing. 9 U.S.C. section 3.

Whether a writing is sufficient to form an arbitration agreement "is a matter of contract,

and parties will be compelled to arbitrate their claims only if the arbitration agreement

satisfies the essential elements of a valid contract." Duncan, 607 S.W.3d at 249 (quoting

Jimenez v. Cintas Corp., 475 S.W.3d 679, 683 (Mo. App. E.D. 2015)). Therefore, when

presented with a motion to compel arbitration, a trial court "must determine whether a

valid arbitration agreement exists" by applying "the usual rules of state contract law and

canons of contract interpretation." Miller, 581 S.W.3d at 728-29 (quoting Nitro Distrib.,

Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo. banc 2006)).

"The essential elements of any contract, including one for arbitration are offer,

acceptance, and bargained for consideration." Holm v. Menard, Inc., 618 S.W.3d 669,

674 (Mo. App. W.D. 2021) (quoting TD Auto Fin., LLC v. Bedrosian, 609 S.W.3d 763,

768 (Mo. App. E.D. 2020)). "Offer and acceptance requires a mutual agreement." Miller,

581 S.W.3d at 729 (quoting Baier, 420 S.W.3d at 738). "A mutual agreement is reached

when the minds of the contracting parties meet upon and assent to the same thing in the

same sense at the same time." Id. (quoting Baier, 420 S.W.3d at 738). "A meeting of the

minds occurs when there is a definite offer and unequivocal acceptance." Id. (quoting

Baier, 420 S.W.3d at 738). Further, "[w]hether there was a meeting of the minds is a

question of fact for the trial court to decide." Id. (quoting Jackson, 497 S.W.3d at 289).

"[T]he trier of fact has the right to disbelieve evidence, even when it is not contradicted."

Baier, 420 S.W.3d at 737 (quoting Sneil, LLC v. Tybe Learning Ctr., Inc., 370 S.W.3d

562, 567 (Mo. banc 2012)).

8
Jackson was not wrongly decided

MOHELA first argues that the trial court committed legal error by relying on

Jackson to find that no arbitration agreement existed because Jackson was wrongly

decided. MOHELA correctly points out that this Court is not bound by the holding in

Jackson, and urges us to conclude that Jackson was wrongly decided.3 However, we find

Jackson to be persuasive.

In Jackson, "[a]fter reviewing the plain and unambiguous language of both the

Arbitration Process and Acknowledgment of Receipt [the Eastern District] conclude[d],

as a matter of law, [that MOHELA] did not make an offer for Employee's acceptance."

497 S.W.3d at 289. The Eastern District observed that there was "no objective

manifestation that [MOHELA] intended the [ADR] Process and Acknowledgment of

Receipt to represent an 'offer.'" Id. The Eastern District explained:

Conspicuously absent from both the Arbitration Process and
Acknowledgement of Receipt4 are the terms "contract" or "agreement."
Certainly, this court does not attempt to insinuate said terms are
indispensable so as to form a contract; however, [MOHELA's] use of
the terms "policy" (which was used an astounding 21 times in the
Acknowledgement of Receipt) and "acknowledgement" reflect a
calculated attempt by [MOHELA] to camouflage an alleged offer that
requires Employee's acceptance. [MOHELA's] linguistic smokescreen
prevents Employee's (the offeree) awareness of the objective intent of

3
Though MOHELA's point on appeal claims trial court error in relying on Jackson, the trial court had no
authority but to follow appellate court precedent. The issue in this case is not, therefore, whether the trial court
committed error in relying on Jackson, but is instead whether Jackson should be followed by this Court. Pursuant to
Supreme Court Operating Rule 22.01 and Western District Special Rule 31, we may "choose[] not to follow a
previous decision of" the Eastern District, provided the case is reheard en banc or "reviewed and approved by order
of the court en banc." See also Fidelity Real Estate Co. v. Norman, 586 S.W.3d 873, 881-82 (Mo. App. W.D.
2019).
4
The Jackson opinion (and the contents of the Acknowledgment of Receipt document) interchangeably
refer to the document as both an "Acknowledgement" and "Acknowledgment" of Receipt. Because the document at
issue is titled "Acknowledgment of Receipt [of the ADR Process]," we likewise refer to the document as
"Acknowledgment of Receipt" and refrain from modifying Jackson's denotation of the document.

9
 [MOHELA] (the offeror) to enter into an agreement and vice versa. The
Arbitration Process and Acknowledgement of Receipt do not signify "the
manifestation of willingness to enter into a bargain, so made as to justify
another in understanding that his assent to that bargain is invited and will
conclude it."

Id. (emphasis added) (citation omitted).

Jackson thus concluded that rather than presenting an offer to be bound by the

terms of the ADR Process, MOHELA "merely published the ADR Policy to Employee

and caused Employee to indicate her receipt of said ADR Policy." Id. at 290. With

respect to the Acknowledgment of Receipt document, the Eastern District explained:

The Acknowledgement of Receipt specifically indicates that "Employees
are deemed to have agreed to the provisions of this Policy by virtue of
accepting employment" and "both [MOHELA] and [Employee] shall be
entitled to the benefits of and mutually agree to become subject to this
[ADR] Policy." Nevertheless, the Acknowledgement of Receipt prescribes
that the ADR Policy applies to an employee "even if they do not sign this
Acknowledgement Form."

Id. at 289-90. Noting that there appeared to be no consequence for the "employee's

failure or refusal to sign the Acknowledgement of Receipt" and that her employment was

not contingent upon signing the document, the court concluded that the language of the

ADR Policy "reveal[ed] that nothing was presented to Employee for her acceptance." Id.

The trial court relied on Jackson to arrive at its conclusion that there was no valid

arbitration agreement between MOHELA and Trunnel. In its order, the trial court stated:

[T]he Court finds that there is no valid arbitration agreement because there
was no offer for [Trunnel] to accept. As the Jackson court held, and the
Court agrees, there was no "objective manifestation" that [MOHELA]
"intended" the Policy and Acknowledgment to constitute an "offer." . . .
The words "contract" and "agreement" are not prerequisites for a contract to
be valid, but their absence in tandem with the repeated use of the word
"policy" essentially "camouflage[s]" any offer, to quote Jackson.

10
(Citations omitted.) In addition, the trial court made a factual finding that "[t]here was no

consequence for an employee's failure to sign and employment was not contingent upon

acceptance." The trial court then concluded that Trunnel merely acknowledged receipt of

the published ADR Process document, which was "not synonymous with acceptance of

an offer;" rather, "as the Jackson court held, these facts demonstrate that no offer was

presented for [Trunnel] to accept."

MOHELA argues that Jackson misstates Missouri law by holding that a document

called a "policy" cannot be considered a contractual offer. To support this contention,

MOHELA relies on a federal district court case that is readily distinguishable.5 Stillwell

v. SLH Vista Inc., No. 4:15CV1465 HEA, 2016 WL 5661626, at *2 (E.D. Mo. Sept. 30,

2016). Regardless, "[t]his Court is not bound by the decisions of federal district courts."

Fogelsong v. Joe Machens Auto. Grp. Inc., 600 S.W.3d 288, 295 n.3 (Mo. App. W.D.

2020) (citation omitted). Even more fundamentally, however, MOHELA's contention

relies on an inaccurate premise. Jackson did not hold that use of the word "policy" in lieu

of terms like "agreement" or "contract" is controlling, as a matter of law, on the issue of

whether an offer to be bound by arbitration provisions was extended. Rather, Jackson

5
In Stillwell, an employee received a document entitled "Fair Treatment Process" and signed an
acknowledgment form which the court found "specifically detail[ed] the terms and agreements regarding
arbitration." 2016 WL 5661626, at *2. The court also found that by signing the acknowledgment form, the
employee not only acknowledged receipt of a copy of the "Fair Treatment Process," but also "further acknowledged
that under the [Fair Treatment Process], both [she] and [the company] agreed to forego any right to a jury trial on
any issues covered by the [Fair Treatment Process]." Id. at *1-2. Thus, the court concluded that "[t]hrough the
acknowledgement and [her] employment with [the company], she clearly accepted the offer." Id. at *2. As we
discuss, infra, Trunnel's signature on the Acknowledgment of Receipt document in the present matter merely
acknowledged that she received a copy of the ADR Process. Unlike Trunnel's acknowledgment, the federal district
court in Stillwell specifically found that the employee acknowledged not only her understanding that she was bound
by the terms of the Fair Treatment Process, but she also "acknowledged that under the [Fair Treatment Process],
both [she] and [the company] agreed to forego any right to a jury trial on any issues covered by the [Fair Treatment
Process]." Id. at *1-2.

11
held to the contrary. 497 S.W.3d at 289 (holding that "this court does not attempt to

insinuate said terms ["contract" and "agreement"] are indispensable so as to form a

contract"). Jackson looked at the entirety of the ADR Process and Acknowledgment of

Receipt documents to determine whether a valid arbitration agreement had been formed.

Prominent use of the word "policy" in lieu of "agreement" or "contract" was but one

factor relied on by the Eastern District to reach the conclusion that no offer to be bound

by an arbitration process had been extended that the employee could accept. Id. Our

focus in this case, therefore, is appropriately and squarely directed on whether MOHELA

extended an offer to Trunnel to be bound by the ADR Process that Trunnel could (and

did) accept in a manner sufficient to form a written contract to arbitrate.

"At common law, an offer is made when the offer leads the offeree to reasonably

believe that an offer has been made." Miller, 581 S.W.3d at 729 (quoting Jackson, 497

S.W.3d at 288). "Similarly, pursuant to the Restatement (Second) of Contracts, an offer is

the manifestation of a willingness to enter into a bargain, so made as to justify another

person in understanding that his assent to that bargain is invited and will conclude it." Id.

(quoting Jackson, 497 S.W.3d at 288). "Acceptance of an offer is a manifestation of

assent to the terms thereof made by the offeree in a manner invited or required by the

offer." Id. at 730 (quoting Jackson, 497 S.W.3d at 289). "'Whether there exists mutual

assent sufficient to form a contract is dependent upon the objective intentions of the

parties,' which are determined 'by reviewing the parties' actions and words.'" Id. (quoting

Jackson, 497 S.W.3d at 289).

12
 MOHELA argues that Jackson (and thus the trial court) incorrectly concluded that

the ADR Process and Acknowledgment of Receipt documents did not contain an offer

which Trunnel could accept. We examine the documents separately.

Standing alone, the ADR Process document represents nothing more than a

published statement of MOHELA's alternative dispute resolution policies and processes.

Though the ADR Process document unilaterally states that it applies to all employees, the

document includes no language or other feature (such as a signature line) that would

permit a court to conclude that the ADR Process document is an offer as to which an

employee could manifest assent. MOHELA effectively acknowledges as much, as it

makes no attempt to argue that the ADR Process document is itself a contract, or an offer

to enter into a contract.

Instead, MOHELA relies exclusively on language in the Acknowledgment of

Receipt document to urge this Court to reject the holding in Jackson. MOHELA relies on

provisions in the Acknowledgment of Receipt document to the effect that: (1)

"Employees are deemed to have agreed to the provisions of the policy"; (2) "both

MOHELA and I shall be entitled to the benefits of and mutually agree to become subject

to the Policy attached to and incorporated in this Acknowledgement"; and (3) "the [ADR

Process document] . . . contains the rules and procedures MOHELA and its employees

covered under this Policy must follow . . . ." MOHELA argues that these provisions

constitute an offer.

MOHELA's logic is flawed. As noted, "an offer is the manifestation of a

willingness to enter into a bargain, so made as to justify another person in

13
understanding that his assent to that bargain is invited and will conclude it." Miller,

581 S.W.3d at 729 (emphasis added). The referenced provisions in the Acknowledgment

of Receipt document are not self-proving of the existence of an offer. They summarily

state that an agreement to submit to an arbitration process exists, but, in the absence of

evidence of an invitation to assent, the provisions are not an "offer" to submit to an

arbitration process. Stated another way, the provisions relied on by MOHELA cannot be

an offer unless some other aspect of the Acknowledgment of Receipt document combines

with the provisions to "justify . . . [an] understanding that . . . assent to [the provisions] is

invited and will conclude it." Id.

Plainly, the provisions themselves are lacking in this regard. They do not state

that an employee's signature on the Acknowledgment of Receipt document will manifest

an employee's understanding of, and acceptance to be bound by, the ADR Process. That

omission is particularly glaring in light of the fact that immediately preceding the

signature block on the Acknowledgment of Receipt, the documents provides, in capital

letters, "I ACKNOWLEDGE RECEIPT OF THE [ADR PROCESS]." This plain

language does not invite assent to the ADR Process and affords an employee no

indication that by signing, the employee is manifesting an understanding of, and

acceptance to be bound by, the ADR Process. If anything, the qualifying language above

the signature line expressly prohibits a conclusion that an employee's signature on the

Acknowledgment of Receipt document constitutes acceptance of, and an agreement to be

bound by, the ADR Process. Instead, by the document's plain terms, an employee's

14
signature on the Acknowledgment of Receipt document confirms only that the employee

received a copy of the ADR Process.

We therefore reject MOHELA's contention that the provisions it references in the

Acknowledgment of Receipt document constitute an offer. This conclusion is consistent

with the holding in Jackson, and is also supported by persuasive precedent instructing

that an employee's signature on a form which merely acknowledges receipt of a policy

does not express assent to any terms contained in the policy. Shockley v. PrimeLending,

929 F.3d 1012, 1019 (8th Cir. 2019) ("Applying Missouri contract law, we conclude [the

employee's] mere review of the subject materials did not constitute an acceptance on her

part" because "[a]n acknowledgment of a review of offered terms alone does not evince

an intent to accept those terms." (citing Jackson, 497 S.W.3d at 290)); Harmon v. Philip

Morris Inc., 697 N.E.2d 270, 272 (Ohio Ct. App. 1997) (Employee's signed

acknowledgment form was not an acceptance of an offer because "[h]e merely

acknowledged his receipt and understanding of the items presented to him. He never

expressed assent to those terms.").

Our conclusion is also bolstered by the fact that MOHELA has ignored provisions

in the Acknowledgment of Receipt document that directly dispel its contention that the

document constitutes an "offer" to be bound by the ADR Process. Specifically, the

Acknowledgment of Receipt document provides:

Employees are deemed to have agreed to the provisions of the Policy by
virtue of accepting employment with the MOHELA and/or continuing
employment with the MOHELA.

15
 Employees are bound by this Policy even if they do not sign this
Acknowledgment form.

The Acknowledgment of Receipt document thus purports to impose an obligation to

arbitrate on employees whether or not the employee signs the Acknowledgment of

Receipt document. It is disingenuous for MOHELA to suggest that other provisions in

the same document constitute an offer that would justify an employee in understanding

that assent is invited as to result in a mutual agreement, particularly given the express

qualifier preceding the signature line.

Undeterred, MOHELA argues that we should reject Jackson because the facts of

this case are more similar to Miller v. Securitas Security Services USA Inc., 581 S.W.3d

723 (Mo. App. W.D. 2019), where our Court found that an employer and employee

formed a valid arbitration agreement. MOHELA also asserts that Miller "flatly rejects

Jackson's argument that no offer was made" and as such we should follow Miller's

reasoning rather than Jackson to conclude that an offer was extended to Trunnel. We

disagree with both contentions.

Miller did not reject Jackson. Rather, our Court distinguished the Miller

arbitration agreement from the ADR Process and Acknowledgment of Receipt documents

at issue in this case. 581 S.W.3d at 729-30. The Miller opinion emphasized that its

agreement was titled "'Dispute Resolution Agreement, and the introductory paragraph

confirmed in bold lettering that this was an 'arbitration agreement.'" Id. at 730 (emphasis

added). The agreement was not described as a "policy or "process," and, unlike the ADR

Process, which did not mention the Acknowledgment of Receipt document, the

16
agreement in Miller directly requested that the employee "read the Agreement carefully,

and sign the acknowledgment at the bottom." Id. at 729. Miller thus held that the

"Dispute Resolution Agreement Acknowledgment" at issue in that case was an offer to be

bound by the agreement that was then accepted because it stated: (1) "I have received a

copy of [the Dispute Resolution Agreement]"; (2) I have read and I understand all of the

terms"; (3) "I understand that employment or continued employment at the Company

constitutes acceptance of this Agreement and its terms"; and (4) "I further acknowledge

that the Company and I are mutually bound by this Agreement and its terms." Id. at

727 (emphasis added). Miller then distinguished Jackson by noting that "[c]ontrary to

the employer in Jackson, [the employer] did not hide behind 'linguistic smokescreens' but

instead clearly stated its intent to enter into an arbitration agreement with [the

employee]." Id. at 730.

For the reasons explained, we conclude that Jackson was not wrongly decided.

The trial court correctly relied on Jackson to hold that the ADR Process and

Acknowledgment of Receipt documents do not constitute a contract to arbitrate because

no offer was extended for Trunnel to unequivocally accept.

An outcome other than that reached in Jackson is not warranted based on different
facts

MOHELA next argues that even if Jackson was properly decided, it is not

controlling because the factual record in this case materially differs from the factual

record in Jackson. We disagree.

17
 In Jackson, the Eastern District found that "[t]here appears to be no consequence

for an employee's failure or refusal to sign the Acknowledgement of Receipt; the ADR

Policy will apply to an employee regardless of his or her execution of the

Acknowledgement of Receipt." 497 S.W.3d at 290. In an attempt to distinguish this

finding in Jackson, MOHELA relies on an affidavit signed by MOHELA's Assistant

Director of Human Resources which was attached to its motion to compel arbitration.

The affidavit summarily stated:

New hires are provided a copy of the ADR Agreement . . . and are asked to
sign a form acknowledging receipt thereof and agreeing to be bound
thereby. . . . Agreeing to be bound by the ADR Agreement was a
condition of Ms. Trunnel's employment with MOHELA. If anyone
without a specific employment agreement or letter of appointment with
MOHELA refused to be bound by the ADR Agreement, he or she was not
eligible for employment with MOHELA.

(Emphasis added.)

MOHELA contends that the trial court "completely failed to address this critical

factual distinction." That is not accurate. The affidavit was attached to MOHELA's

motion to compel arbitration and was referenced throughout the hearing on the motion to

compel arbitration. In its order denying the motion to compel arbitration, the trial court

found that "[t]here was no consequence for an employee's failure to sign [the

Acknowledgment of Receipt] and employment was not contingent upon acceptance,"

clearly signaling that the trial court did not find MOHELA's self-serving affidavit to be

credible.

"The trial court was free to disregard [MOHELA's] self-serving claim" that

Trunnel would not have been eligible for employment had she not signed the

18
Acknowledgment of Receipt, a factual finding to which we must defer. Baier, 420

S.W.3d at 738, 739 (citing Sneil, LLC, 370 S.W.3d at 567). That is particularly so since

an express provision in the Acknowledgment of Receipt document is facially inconsistent

with the affidavit. As noted, the Acknowledgment of Receipt document states that

"[e]mployees are bound by [the ADR Process] even if they do not sign this

Acknowledgment form." (Emphasis added.) If signature on the Acknowledgment of

Receipt document was a condition of employment as expressed in MOHELA's self-

serving affidavit, then there would be no need to advise employees that they would be

deemed bound by the ADR Process by accepting employment even if they did not sign

the Acknowledgment of Receipt document.

For the reasons discussed herein, we conclude that MOHELA never extended a

written offer to be bound by the ADR Process that Trunnel could unequivocally accept.

As such, no written contract to arbitrate was ever formed.6 The trial court did not err

when it denied MOHELA's motion to compel arbitration.

Point One is denied.

6
Although not discussed by either party, we question (but need not decide) whether mutual assent to the
purported arbitration agreement was lacking. Although the Acknowledgment of Receipt provided for an "Authority
Witness" signature line, the signature line was not signed by a MOHELA representative. See Baier, 420 S.W.3d at
739-40 ("[C]ontrary evidence of [employer's] intent [to enter into an arbitration agreement with employee] existed in
the record" where the acknowledgment form contained a "'Management Signature' line that [employer] did not sign.
. . . The trial court could reasonably have believed that inclusion of a line for 'Management Signature' on the First
Acknowledgement reflected [employer's] intent that its signature be affixed as a condition of mutual assent.").

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 Conclusion

The trial court's order denying MOHELA's motion to compel arbitration is

affirmed.

__________________________________
Cynthia L. Martin, Judge
All concur

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