Passage, 223 Mont. at 66,
727 P.2d at 1301-02 (quoting Finkle and [**132] Ross
v. A.G. Becker Paribas, Inc. (D.C.N.Y. 1985), 622 F. Supp. 1505, 1511-12).
[*P25] We enforced the arbitration agreements in Passage because there
was no evidence that they were not within the parties' reasonable expectation
nor was there evidence that they were unconscionable.
[*P26] In Chor, we were again called on to decide whether arbitration
provisions in securities agreements were contracts of adhesion and, if
so, whether the arbitration clause is unconscionable. We concluded that
the arbitration agreement was not a contract of adhesion because the consumer
had testified that she had brokerage agreements with other firms which
did not require her to arbitrate future disputes. We also held that the
arbitration provision was clearly within Chor's reasonable expectations
based on her own testimony that she understood her obligation to arbitrate
based on her review of the agreement. Finally, we concluded that the broker
in that case had no obligation to explain the effect of the arbitration
clause because a fiduciary duty had not been established. We held that:
In the absence of discretionary authority by a stockbroker to buy and sell in
a customer's account, no fiduciary relationship is created in a broker-customer
relationship. Caravan Mobile Home Sales v. [***8] Lehman
Bros. Kuhn Loeb (9th Cir. 1985), 769 F.2d 561, 567.
Chor, 261 Mont. at 153, 862 P.2d at 32.
[*P27] We conclude that both Passage and Chor are distinguishable,
based on their facts, from this case. First, based on Judge Johnson's
findings which are neither appealed nor contradicted by Judge Macek's
findings, Kloss' agreements with Jones are clearly contracts of adhesion.
They were standardized forms prepared by Jones and presented to Kloss
who had no opportunity to negotiate the terms of the contracts if she
chose to invest through Jones. Furthermore, the arbitration clause was
found by Judge Johnson to be an industry-wide practice. Kloss would have
been excluded from the securities market unless she accepted the agreement
[*P28] Furthermore, unlike the facts in Passage and Chor, the
District Court's findings clearly establish that the arbitration provision
by which Kloss waived her right of access to this State's courts, her
right to a jury trial, her right to reasonable discovery, her right to
findings of fact based on the evidence, and her right to enforce the law
applicable to her case by way of appeal were clearly not within Kloss'
reasonable expectations. Kloss relied on Husted to explain to her anything
in the contract that was significant. Husted, in fact, admitted [**133]
that his normal practice when opening accounts was to explain significant
features of the account to the investor. However, he did not explain the
arbitration provision (a provision by which Kloss waived at least two
constitutional rights, i.e., a right of access to the courts pursuant
to Article II, Section 16, and her right to a jury trial pursuant to Article
II, Section 26 of the Montana Constitution) to Kloss. Finally, based on
the routine practice between the parties, Kloss did not read the contract
and was not aware of the arbitration provision in the contract.
[*P29] Judge Macek's conclusion that the arbitration provision was within
Kloss' reasonable expectation simply because it was contained in the contract
that she signed would defeat the protections provided by principles of
law pertaining to contracts of adhesion. If the only question was whether
the written terms of a contract included the challenged provision, reasonable
expectations would never become an issue. Contracts of adhesion would
always be enforced based on their plain language without regard to what
the consumer knew or understood. However, that is not the law pertaining
to contracts of adhesion as previously set forth in our prior decisions
which apply to any contract.
[*P30] We have also been asked to conclude on appeal that the arbitration
provisions found in Kloss' agreements with Jones are unconscionable. However,
having concluded that the agreements were not within Jones' reasonable
expectations, we need not reach the issue of conscionability. Furthermore,
as a guide to future litigants who raise the issue of conscionability
in the context of arbitration provisions, we take this opportunity to
state that that issue cannot be decided without a more fully developed
record. We have set forth the factors to be considered in Iwen,
however, a number of factual issues should be addressed before those factors
can be appropriately applied. For example:
1. Are potential arbitrators disproportionately
employed in one or the other party's field of business?
2. Do arbitrators tend to favor "repeat
players" as opposed to workers or consumers who are unlikely to be
involved in arbitration again? In other words, is there a tendency by
arbitrators to avoid decisions which will result in the loss of future
contracts for their services?
3. What are the filing fees for arbitration
compared to the filing fees in Montana's district courts?
4. What are arbitrators' fees? Do they make
small claims [**134] prohibitive? Do they discriminate against consumers
or workers of modest means?
5. Are arbitration proceedings shrouded in
secrecy so as to conceal illegal, oppressive or wrongful business practices?
6. To what extent are arbitrators bound by
7. To what extent are arbitrators bound by
[***9] 8. What opportunity do claimants
have to discover the facts necessary to prove a claim such as a company's
[*P31] These are all issues which we consider relevant to the ultimate issue
of whether an arbitration provision in a contract of adhesion is oppressive
or unconscionable. Therefore, we would advise future claimants not to
come to this Court with claims of oppression or unconscionability unless
the record in regard to these issues has been adequately developed.
[*P32] For these reasons we conclude, based on generally applicable contract
law defenses, that the District Court erred when it concluded that the
arbitration clauses contained in the 1992 and 1998 Full Service agreements
[*P33] Did the District Court err when it failed to consider whether Defendants
owed Kloss a fiduciary duty to explain the arbitration agreement?
[*P34] Kloss contends that the District Court erred when it found that the
parties were dealing at arms length and that the Defendants consequently
had no obligation to explain the arbitration provision. According to Kloss,
Husted had a fiduciary relationship with Kloss because he had the discretion
to trade securities in her account. The Defendants argue that Husted did
not have the discretion to trade in Kloss' account and that Kloss misreads
the provision which she claims gave Husted discretionary authority.
[*P35] Whether Kloss and Husted, as broker and client, enjoyed a fiduciary
relationship is highly fact intensive. "The question is not whether
there is a fiduciary duty, which there is in every broker-customer relationship;
rather, it is the scope or extent of the fiduciary obligation, which depends
on the facts of the case." Duffy v. Cavalier (1989), 215 Cal.
App. 3d 1517, 1535, 264 Cal.Rptr. 740, 752. In Chor, we held
that although § 30-10-301(1), MCA, may create an implied code
of conduct for brokers, a violation of which may constitute a breach of
the duty the broker owes to a client, that duty is not necessarily fiduciary
in nature. "In the absence of discretionary [**135] authority by
a stockbroker to buy and sell in a customer's account, no fiduciary relationship
is created in a broker-customer relationship." Chor, 261 Mont.
at 153, 862 P.2d at 32. Therefore, pursuant to our analysis in Chor,
a fiduciary relationship is created whenever a broker has discretion to
buy and sell in the client's account.
[*P36] Here, Jones and Husted had discretion to buy and sell securities in
Kloss' account pursuant to the 1992 Agreement. Specifically, the "Liquidation
of Collateral or Account" section of the Agreement states:
You may sell any or all property held in any of my accounts and cancel any open
orders for the purchase or sale of any property without notice, in the
event of my death or whenever in your discretion you consider it necessary
for your protection.
Furthermore, Kloss testified that Husted exercised that discretion when he selected
and sold securities from her account to fund the newly created charitable
trust without consulting her regarding which securities to sell.
[*P37] Therefore, based on the plain language of the Agreement and Husted's
selection and sale of securities in Kloss' account, we conclude that Kloss
and Husted had a fiduciary relationship. In the words of Chief Judge Cardozo
of the Court of Appeals of New York, a fiduciary duty is "the duty
of the finest loyalty" and encompasses "not honesty alone, but
the punctilio of an honor the most sensitive." Meinhard v. Salmon
(1928), 249 N.Y. 458, 463-64, 164 N.E. 545, 546. In light of the substantial
fiduciary obligations owed to his client, Husted should have explained
the arbitration clause, a clause which effectively waived the constitutional
rights of a 95 year old widow with no bargaining power and a relative
lack of sophistication in such matters. However, as the District Court
found, Husted did not consider the arbitration provision to be a significant
provision of the contract and therefore did not explain the arbitration
provision to Kloss. The irony of the Defendants' position is not lost
on this Court, as the supposedly insignificant arbitration provision they
now seek to enforce to the detriment [***10] of Kloss' constitutionally
protected rights of access to court and trial by jury is now squarely
at the center of this appeal.
[*P38] We hold that Husted owed Kloss a fiduciary duty which included explaining
the consequences of the arbitration provision Jones now seeks to enforce.
Accordingly, we conclude that the District Court erred when it failed
to consider whether a fiduciary duty existed.
[*P39] Did the District Court err when it denied Kloss' motion for [**136]
attorney's fees and costs?
[*P40] Kloss contends that the District Court erred when it denied the claim
for the opportunity to conduct discovery in an effort to prove that Kloss
was entitled to attorney fees based on Jones' untimely disclosure of the
detachable signature card. That issue was remanded to the District Court,
which according to Kloss, should have made the determination of whether
she was entitled to attorney fees.
[*P41] Jones responds that the District Court did not err when it denied discovery
on the attorney fee issue after reading the entire file, including prior
transcripts and court orders. Jones contends that the District Court had
the discretion to conclude that further evidence of the issue of attorney
fees was unnecessary.
[*P42] Attorney fees and costs may be awarded when:
An attorney or party to any court proceeding who, in the determination of the
court, multiplies the proceedings in any case unreasonably and vexatiously
may be required by the court to satisfy personally the excess costs, expenses,
and attorney fees reasonably incurred because of such conduct.
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