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Kloss v Edward D. Jones -- MT Supreme Court

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[*P13]  On June 12, 2000, the Honorable Marge Johnson entered an Order granting Jones' Motion to Compel Arbitration and Stay Proceedings, in spite of her finding that Kloss had not been provided with a copy of the 1992 Agreement. The 1998 Agreement was not discussed in Judge Johnson's decision.

 [***5]   [*P14]  On July 6, 2000, Kloss appealed to the Montana Supreme Court and filed her initial brief. During the course of the appeal, however, Jones located the detached signature card that acknowledged Kloss' receipt of the 1998 Agreement. Jones requested that the appeal be stayed so that the District Court could make supplemental findings of fact and conclusions of law based on the 1998 Agreement rather than the 1992 Agreement which was the subject of Judge Johnson's Order.

 [*P15]  On January 9, 2001, we remanded this case to the District Court for supplemental findings of fact and conclusions of law based on the 1998 Agreement. We additionally remanded Kloss' Motion for Attorney's Fees and Costs.

 [*P16]  The District Court, the Honorable Julie Macek presiding, held an evidentiary hearing on March 20, 2001. On March 26, 2001, the District Court issued an order which granted the Defendant's Motion to Stay Proceedings and Compel Arbitration. On May 7, 2001, the District Court issued an order denying Kloss' Motion for Attorney's Fees and Costs. Kloss now appeals from these orders. We affirm in part and reverse in part the orders of the District Court.

 [**128]  DISCUSSION

ISSUE 1

 [*P17]  Did the District Court err when it concluded that the arbitration clauses contained in the 1992 and 1998 Full Service Agreements were enforceable?

 [*P18]  Both district judges concluded, based on slightly different reasoning, that the identical arbitration clauses found in the 1992 and 1998 contracts were binding and should be enforced. Before we can review the correctness of those conclusions, it is necessary to set forth the findings made by each district judge. Those findings are not challenged on appeal and are, therefore, assumed to be the determinative facts on which our opinion is based. Judge Johnson made the following relevant findings:

7. The Full Service Agreement was drafted by Edward Jones, and printed on an Edward Jones form. The document at issue is a form dated 12/91.

8. Clients do not have any input on the contents of the agreement. It is presented to them as is for their signature and they must sign the agreement as is if they wish to open an account with the Defendants.

9. While there are certainly other investment brokers in Great Falls, no evidence was presented which would lead me to believe Mrs. Kloss had any meaningful choice in accepting or rejecting an arbitration provision of such a contract or that other stockbrokers offered contracts at that time for similar accounts which did not contain an arbitration provision. I have no reason to believe that was not a fairly standard practice at that time, and that she had no meaningful choice regarding acceptance of the agreement if she wished to open an investment account, which is what I do believe and find as a fact.

10. The arbitration provision is a unilateral provision of the brokerage houses contained in a contract presented to clients as is with no meaningful opportunity to negotiate its presence in the contract . . . . It is reasonable to assume that such contracts commonly contain such a provision today, regardless of the brokerage house with which a client is dealing.

. . . .

12. Mrs. Kloss liked and trusted Mr. Husted and expected that he would explain to her anything she needed to know that was significant.

13. She did have an opportunity to read the agreement before she  [**129]  signed it, and was capable of doing so, but did not do so, relying instead upon Mr. Husted to advise her of the significant features of the agreement.

14. Mr. Husted, in opening accounts, such as that which Mrs. Kloss opened with him in 1992, explains what he believes to be the significant features from an investment perspective, . . . .

15. Mr. Husted did not consider the arbitration provision to be a significant provision of the contract.

. . . .  [***6]

17. He [Husted] does not routinely explain and did not explain to Mrs. Kloss the arbitration provision of the contract.

18. She did not read and was not aware of the arbitration provision of the contract.

 [*P19]  Judge Macek made the following findings which are relevant to our decision:

22. The Full Service Agreement [1998 Agreement] was drafted by and printed on an Edward D. Jones form.

23. Clients do not have input on the contents of said form. If clients wish to open a full service account with Defendant they must sign the agreement.

24. Kloss had the opportunity to read the terms of the agreement before she signed it. Kloss did not do so.

25. Husted's normal procedure in opening accounts, which he followed with Kloss, is to explain what he believes to be the significant features of the account from an investment perspective, . . . .

26. Husted did not consider the arbitration provision to be a significant provision of the contract.

. . . .

28. Husted does not routinely explain the arbitration provision to clients and did not explain it to Kloss.

. . . .

36. Edward D. Jones & Co. is engaged in interstate commerce.

 [*P20]  In spite of what she found to be the facts, Judge Johnson concluded, based on our decision in Chor v. Piper, Jaffray & Hopwood, Inc. (1993), 261 Mont. 143, 862 P.2d 26, that Jones had no obligation to explain to Kloss the terms of its contract with her and that even if the contract in question was a contract of adhesion, it was not unenforceable because it was not unconscionable based on the criteria set forth in Iwen v. U.S. West Direct, 1999 MT 63, 293 Mont. 512, 977 P.2d 989. Judge Johnson did not draw any conclusion or make any  [**130]  finding as to whether the arbitration provision was within Kloss' reasonable expectations.

 [*P21]  Following her findings, Judge Macek concluded that Jones had no duty to explain the terms of the contract based on our decision in Chor and that Kloss is presumed to have read and understood the terms of the contract. Judge Macek also concluded that the agreements in question were not contracts of adhesion because Kloss could have done business with other brokerage houses (Macek made no finding to contradict Johnson's finding that the agreements at other brokerage houses would also have included an arbitration provision) and, finally, Judge Macek concluded that even if the agreements in question were contracts of adhesion, they were not unenforceable because they were within Kloss' reasonable expectations and were not unconscionable pursuant to our decision in Iwen . Judge Macek concluded that the arbitration provisions were within Kloss' reasonable expectations because they were included within the agreements.

 [*P22]  On appeal, Kloss argues that the arbitration clause was part of a contract of adhesion and that waiver of her constitutional right to jury trial should not be presumed from signing a contract of adhesion. Jones contends that form contracts between securities brokers and their clients are not contracts of adhesion, nor are the arbitration clauses contained in such contracts unconscionable.

 [*P23]  In Iwen, we were presented with the issue of whether an arbitration provision in an advertiser's yellow page directory agreement was enforceable and barred the advertiser's direct action in district court. We concluded first of all that a district court's order compelling arbitration is subject to de novo review. Iwen, 17 (citing   Zolezzi v. Dean Witter Reynolds, Inc. (9th Cir. 1986), 789 F.2d 1447). We acknowledged that pursuant to the Federal Arbitration Act, found at 9 U.S.C. § §  1-16 (1998), arbitration provisions found in contracts affecting interstate commerce are valid " save upon such grounds as exist at law or in equity for the revocation of any contract." See 9 U.S.C. §  2 (1998) and Iwen, 23. We also noted that while generally applicable contract law defenses may be used to set aside arbitration agreements, states may not craft special rules which only apply to arbitration provisions for the purpose of defeating arbitration. Iwen, 26. Finally, we stated that a generally  [***7]  applicable contract law defense arises in contracts of adhesion which will not be enforced against the weaker party when it is: (1) not within the reasonable expectations of said party, or (2) within the reasonable expectations of the party, but, when considered in its context, is unduly oppressive,  [**131]  unconscionable or against public policy. Iwen, 27. We ultimately concluded that the arbitration provision at issue in Iwen was unconscionable b ecause it lacked mutuality. In other words, U.S. West retained the right to proceed in district court while Iwen was precluded from doing so.

 [*P24]  A contract of adhesion is a contract whose terms are dictated by one contracting party to another who has no voice in its formulation. Corbin on Contracts, §  1.4 at 13 (1993). The law pertaining to contracts of adhesion is not merely an academic exercise in which we engage to resolve contract disputes. It is a recognition of the reality that contracts do not always reflect terms that were bargained for at arms length. Instead, terms are sometimes dictated by one party to another who has no bargaining power and no realistic options. The law pertaining to contracts of adhesion recognizes that in certain circumstances, traditional assumptions associated with contract law are unfounded. However, determining that a contract is a contract of adhesion is not the end of the inquiry in Montana. In Passage v. Prudential-Bache Securities, Inc . (1986), 223 Mont. 60, 727 P.2d 1298, we described contracts of adhesion in the securities context and the circumstances under which they are unenforceable.

Contracts of adhesion arise when a standardized form of agreement, usually drafted by the party having superior bargaining power, is presented to a party, whose choice is either to accept or reject the contract without the opportunity to negotiate its terms. Here, the investor is faced with an industry wide practice of including Arbitration Clauses in standardized brokerage contracts. As the investor faces the possibility of being excluded from the securities market unless he accepts a contract with such an agreement to arbitrate, such clauses come within the adhesion doctrine. However, mere inequality in bargaining power does not render a contract unenforceable, nor are all standardized contracts unenforceable. As a consequence of current commercial realities, form forum clauses will control, absent a strong showing it should be set aside. For such a contract or clause to be void, it must fall within judicially imposed limits of enforcement. It will not be enforced against the weaker party when it is: (1) not within the reasonable expectations of said party or (2) within the reasonable expectations of the party, but, when considered in its context, is unduly oppressive, unconscionable, or against public policy. [Citations omitted.]

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