Court of Appeals of Texas, Ninth District, Beaumont
IN RE Q DIRECTIONAL DRILLING LLC, TWISTER DRILLING TOOLS LLC, AND JIM BEASLEY
Submitted on June 12, 2017
Proceeding 410th District Court of Montgomery County, Texas
Trial Cause No. 15-06-05931
McKeithen, C.J., Kreger and Johnson, JJ.
petition for a writ of mandamus, Q Directional Drilling LLC,
Twister Drilling Tools LLC, and Jim Beasley seek to enforce a
jury waiver in a stock redemption agreement between Twister
Drilling Tools LLC and the real party in interest, James
Grodeski. We temporarily stayed the trial and
requested a response from the real party in interest.
See Tex. R. App. P. 52.10 (b). After reviewing the
parties' briefs and appendices, we conditionally grant
trial court pleadings, Grodeski alleged that in March 2012,
he accepted an offer of employment with Twister that included
50, 000 shares of B-Incentive stock. On the last day of his
employment, February 25, 2014, Grodeski signed a Redemption
Agreement. In his deposition, Grodeski stated that he was
shown only the signature page when he signed the agreement.
He received a check for $5, 416.47 and a copy of the
Redemption Agreement the following day. The Redemption
Agreement contains a waiver of the right to a jury trial in
any action, proceeding, or counterclaim arising out of or
relating to the Redemption Agreement. Grodeski deposited the
check several months later, after he consulted an attorney.
that the defendants failed to disclose to him that the
redemption of his shares was controlled by the companies'
Restricted Unit Agreements, Grodeski claimed his execution of
the Redemption Agreement was procured by fraud. Grodeski sued
for a declaratory judgment declaring and imposing a
constructive trust over Q Directional's equity "so
that Grodeski receives an interest in such equity
commensurate with the value he would have received from his
50, 000 shares had Defendants not fraudulently induced him
into releasing such interest." Grodeski asserted claims
for breach of his employment agreement, fraudulent inducement
of the Redemption Agreement, statutory fraud in a stock
transaction, negligent misrepresentation, and civil
on the contractual jury trial waiver contained in the
Redemption Agreement, Q Directional, Twister, and Beasley
moved to strike Grodeski's jury demand. In opposition,
Grodeski argued that the defendants concealed Grodeski's
ability to redeem his B units without having to waive his
right to a jury. Additionally, Grodeski argued that the jury
waiver was not conspicuous because he was not provided with a
copy of the entire agreement when he signed it. In response,
the defendants argued the trial court must decide the
disputed fact issues because Grodeski claimed that the entire
agreement had been fraudulently induced, and he did not
allege that the jury waiver clause was secured independently
of the Redemption Agreement itself.
conspicuous provision is prima facie evidence of a knowing
and voluntary waiver and shifts the burden to the opposing
party to rebut it." In re Gen. Elec. Capital
Corp., 203 S.W.3d 314, 316 (Tex. 2006). Grodeski argues
that the seemingly conspicuous waiver was concealed from him
at the time he signed the contract; however, Grodeski
ratified the jury waiver when he accepted the benefits of the
contract after he had an opportunity to examine it. See
In re Weeks Marine, Inc., No. 14-09-00580-CV, 2009 WL
3231570, at *3 (Tex. App.-Houston [14th Dist.]
Oct. 8, 2009, orig. proceeding) (mem. op.). Grodeski argues
that the trial court implicitly found that fact issues
preclude summary judgment when it denied a defense motion for
summary judgment, but in his response to the motion for
summary judgment, Grodeski expressly disclaimed that his
fraud claim was "based on the notion that he signed the
Redemption Agreement without receiving a copy or an
opportunity to review it thereafter." In his response to
the motion for summary judgment, Grodeski argued that his
fraud claim was based on concealment of several material
facts, including rights set forth in the separate Restricted
Unit Agreements and a planned liquidity event in which
shareholders would receive substantial monetary benefits. The
jury waiver is enforceable because Grodeski's fraud
allegation is directed to the entire agreement. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 134-35 (Tex.
Any provision relating to the resolution of future disputes,
included as part of a larger agreement, would rarely be
enforced if the provision could be avoided by a general
allegation of fraud directed at the entire agreement. The
purpose of such provisions-to control resolution of future
disputes-would be almost entirely defeated if the assertion
of fraud common to such disputes were enough to bar
enforcement. The United States Supreme Court has explained
that arbitration and forum-selection clauses should be
enforced, even if they are part of an agreement alleged to
have been fraudulently induced, as long as the specific
clauses were not themselves the product of fraud or coercion.
We have applied the same rule in the context of arbitration.
. . .
We agree that the rule should be the same for all similar
dispute resolution agreements.
Id. (citations omitted).
conclude that the trial court abused its discretion by
failing to enforce the contractual jury waiver. See
id. We are confident that the trial court will vacate
its order of May 30, 2017 and set the case for trial on the
non-jury docket. The ...