Ward v. Hilliard , 426 Ill. Dec. 711 ( 2018 )

Rule 23 order filed 2018 IL App (5th) 180214 September 6, 2018;
Motion to publish granted NO. 5-18-0214
October 5, 2018.
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
JUNE M. WARD, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Randolph County.
)
v. ) No. 16-L-27
)
J.J.B. HILLIARD; W.L. LYONS, LLC, d/b/a )
Hilliard Lyons, a Kentucky Corporation; and )
MICHAEL BARNETT, ) Honorable
) Thomas B. Cannady,
Defendants-Appellants. ) Judge, presiding.
______________________________________________________________________________
JUSTICE OVERSTREET delivered the judgment of the court, with opinion.
Justices Welch and Moore concurred in the judgment and opinion.
OPINION
¶1 This case is before us on an interlocutory appeal pursuant to Illinois Supreme Court Rule
307(a)(1) (eff. Nov. 1, 2017), from an order of the circuit court denying the defendants’ motion to
dismiss the plaintiff’s complaint or, alternatively, to stay the lower court proceedings pending
mandatory arbitration. The appeal stems from a complaint filed by the plaintiff, June M. Ward, in
which she alleged that the defendants, J.J.B. Hilliard, W.L. Lyons, LLC d/b/a Hilliard Lyons
(Hilliard Lyons), and Michael Barnett, were negligent in the management of her individual
retirement account (IRA). The appeal centers on the issue of whether the parties’ contract concerning
the management of the IRA included an agreement to arbitrate disputes stemming from the contract.
The defendants filed the motion seeking the dismissal or stay, alleging that their agreement required
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arbitration of the dispute. The circuit court, however, denied the defendants’ request, holding that,
under Kentucky law, the parties’ agreement did not include an enforceable arbitration provision. The
defendants now appeal from this interlocutory order. For the following reasons, we reverse and
remand for further proceedings.
¶2 I. BACKGROUND
¶3 Hilliard Lyons is a Kentucky corporation engaged in the business of providing its customers
investment management services, including the management of IRAs. It has a branch office in
Marion, Illinois. In the spring of 2015, the plaintiff’s husband, Archie Ward, came to Hilliard Lyons’
Marion office and met with Barnett to open separate IRA accounts for himself and the plaintiff.
Barnett provided Ward with two sets of documents, one set for Ward and one set for the plaintiff, in
connection with opening the IRA accounts. The sets of documents included an account application
and an “Account Terms of Service.” Incorporated into the account application were (1) an individual
retirement custodial account agreement and (2) disclosure statements. Therefore, the account
application, individual retirement custodial account agreement, and the disclosure statements were
all part of a single, 14-page document. A line for the account holder’s signature appears on page four
of this document.
¶4 The Account Terms of Service is a separate document and has no space for the account
holder’s signature or initials. In an affidavit attached to the defendants’ motion to dismiss or stay,
Barnett testified that after his meeting with Ward, he subsequently spoke with the plaintiff over the
telephone and confirmed that she had received both of these documents.
¶5 On June 3, 2015, the plaintiff completed and signed the account application. Hilliard Lyons
subsequently opened an IRA account on her behalf, and the defendants began managing the account.
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On December 6, 2016, the plaintiff filed her complaint against the defendants alleging that they were
negligent and breached their fiduciary duties in managing the account.
¶6 The defendants subsequently filed the motion to dismiss or stay, which is the subject matter
of the present appeal. In their motion, the defendants maintained that their agreement with the
plaintiff included a provision that required them to arbitrate disputes. In her response, the plaintiff
denied that she agreed to arbitrate any disputes.
¶7 As explained above, the only document that the plaintiff signed was page 4 of the 14-page
account application. The first four pages of the account application required the plaintiff to answer
various financial-related questions on topics that included income, net worth, investment goals,
beneficiary designations, and other account-related matters. Immediately above the plaintiff’s
signature at the bottom of page four is the following: “The undersigned hereby accepts the Hilliard
Lyons Retirement Account Custodial Agreement.” Following the plaintiff’s signature, pages five
through eight of the document set out the terms of the “INDIVIDUAL RETIREMENT
CUSTODIAL ACCOUNT AGREEMENT.” The terms of the retirement custodial account
agreement do not include any reference to arbitration. Pages 9 through 14 of the account application
include a “DISCLOSURE STATEMENT” and a “FINANCIAL DISCLOSURE.” Again, neither of
these disclosures mentions arbitration.
¶8 The defendants’ argument that the plaintiff agreed to arbitrate is based on an
acknowledgement on the account application, above the plaintiff’s signature, that reads as follows:
“By signing this application, I acknowledge that I understand and have received a copy of the
Account Terms of Service, which, in Sections 13 and 14, require arbitration to resolve disputes.”
¶9 As stated above, the Account Terms of Service is a separate four-page document that Barnett
furnished to the plaintiff along with the account application. The plaintiff’s signature does not appear
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on this document, as the document itself does not have any lines for signatures. At the outset, the
language of the Account Terms of Service states that Hilliard Lyons agreed to open and maintain
“one or more investment accounts” and “[i]n exchange, you [the plaintiff] agree[d] to the following
terms of service.” It then further states, “We wish this could be shorter, but many of these terms are
prescribed by law. You should read and agree to them in addition to the terms of service specific to
the account(s) you are opening.”
¶ 10 As referenced in the acknowledgement above the plaintiff’s signature on the account
application, paragraphs 13 and 14 of the Account Terms of Service require arbitration as follows:
“13. ARBITRATION GENERALLY: When you open an account with us, any
disputes between you and us will be settled by arbitration rather than by going to court. Here
is how arbitration in our industry works:
(a) You and we give up the right to sue each other in court, including the right
to a trial by jury, except as provided by the Code of Arbitration Procedure for
Customer Disputes of the Financial Industry Regulatory Authority (FINRA; below,
the code is referred to as ‘FINRA’s Code’).
(b) We are incorporating FINRA’s Code and any future amendments to it into
these Terms of Service as if they were set out in full. See
www.finra.org/ArbitrationAndMediation for an overview of FINRA’s Code and
arbitration process.
(c) FINRA’s Code requires a party to bring a claim for arbitration within six
years after the event giving rise to the dispute occurred. In some cases, a claim not
eligible for arbitration can be brought in court.
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(d) You can choose an all-public panel or a majority-public panel of
arbitrators. (A ‘majority public’ panel will have one arbitrator who participates in the
financial services industry, one non-industry chairperson, and one non-industry
arbitrator.)
(e) Your and our ability to obtain documents, to get statements from
witnesses, and to conduct other discovery is more limited in arbitration than in court
proceedings.
(f) Arbitrators do not have to explain the reasons for their award unless you
and we submit to them a joint request for an ‘explained’ decision at least 20 calendar
days before the first scheduled hearing date.
(g) Arbitration awards are final and binding. Courts will normally enforce
them. Your and our ability to have a court reverse or modify an arbitration award is
very limited.
14. MANDATORY ARBITRATION: You agree to arbitrate all controversies that
may arise between us and our agents, representatives, affiliates, or employees on the one
hand and you on the other hand concerning any transaction or the construction, performance,
or breach of any agreement between us, whenever that transaction or agreement was or is
entered into. Arbitration will be conducted before FINRA under FINRA’s Code. The
arbitrators’ award will be final, and a party can enter judgment on the award in any federal or
state court that has jurisdiction.”
¶ 11 The circuit court conducted a hearing on the defendants’ motion to dismiss or stay, and on
March 7, 2018, it denied the motion. Applying Kentucky contract law, the court concluded that the
Account Terms of Service was not incorporated into the parties’ agreement by reference. The court
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stated: “The Application language drafted by Defendant Hilliard Lyons fails to show that Plaintiff
assented to be bound by the Account Terms of Service, including the arbitration clause. Furthermore,
it fails to incorporate by reference the Account Terms of Service into the Account Application.” The
court emphasized that the account application did not include language that the plaintiff “actually
assents” to the Account Terms of Service but, instead, “merely acknowledges receipt of the terms.”
The circuit court held that, under Kentucky law, assent to be bound by the terms of an agreement
must be express, and simply acknowledging the receipt of the document does not constitute assent to
be bound.
¶ 12 The circuit court also held that the Account Terms of Service, as a stand-alone document,
violated Kentucky’s statute of frauds because it was not signed by the plaintiff and could not be
performed within one year. The court found that the clear intent of the parties was that “the
agreement or investment and brokerage services would not, and could not, be completed within one
year.” Therefore, the court concluded that it must be signed in order to be enforceable as a stand­
alone agreement.
¶ 13 The defendants now appeal from the circuit court’s interlocutory order.
¶ 14 II. ANALYSIS
¶ 15 A. Appellate Jurisdiction
¶ 16 This appeal is brought pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017),
which allows for the appeal of an interlocutory order that grants, modifies, refuses, dissolves, or
refuses to dissolve an injunction. The supreme court has held that “[a]n order of the circuit court to
compel or stay arbitration is injunctive in nature and subject to interlocutory appeal under paragraph
(a)(1) of [Rule 307].” Salsitz v. Kreiss, 198 Ill. 2d 1, 11 (2001). Therefore, we have jurisdiction over
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this interlocutory appeal pursuant to Rule 307(a)(1). Fahlstrom v. Jones, 2011 IL App (1st) 103318,
¶ 3 (order refusing to compel arbitration is the equivalent of order denying an injunction).
¶ 17 B. Choice of Law
¶ 18 “When deciding whether the parties agreed to arbitrate a certain matter ***, courts generally
*** should apply ordinary state-law principles that govern the formation of contracts.” First Options
of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995). In the present case, the parties agree that their
dispute concerning whether there is an agreement to arbitrate is controlled by Kentucky contract law.
The individual retirement custodial account agreement attached to the account application (pages
five through eight) states: the agreement “is subject to all applicable federal and state laws and
regulations. If it is necessary to apply any state law to interpret and administer this agreement, the
law of our domicile will govern.” Because Hilliard Lyons is a Kentucky corporation, the circuit court
applied Kentucky law in determining whether the parties had an agreement to arbitrate. On appeal,
neither party takes issue with this aspect of the circuit court’s decision. Accordingly, we will also
apply Kentucky law as it relates to the validity of the purported agreement to arbitrate. See B.H.
Smith, Inc. v. Zurich Insurance Co., 285 Ill. App. 3d 536, 538 (1996) (“Choice of law is not an issue
before us on appeal. The parties agree that New York law governs this dispute. Therefore, we apply
New York law to resolve this appeal.”).
¶ 19 C. Standard of Review
¶ 20 Arbitration is a matter of contract; the plaintiff cannot be forced to submit to arbitration of
any dispute that she has not agreed to arbitrate. Ping v. Beverly Enterprises, Inc., 376 S.W.3d 581,
600 (Ky. 2012); JPMorgan Chase Bank, N.A. v. Bluegrass Powerboats, 424 S.W.3d 902, 907 (Ky.
2014) (“Before a court can order a case to arbitration, it must first find that there is a valid, binding
arbitration agreement.”). The existence of an agreement between the parties depends on state law
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rules of contract formation. Ping, 376 S.W.3d at 590. Under Kentucky law, the issue of contract
formation is a question of law that is reviewed de novo. Baumann Paper Co. v. Holland, 2016-SC­
000511-DG, slip op. at 4 (Ky. June 14, 2018). We also note that, in making its ruling, the circuit
court considered only the pleadings and attached documents, deciding the issue as a matter of law.
Under such circumstances, under Illinois law, our review of the court’s decision is de novo. Board of
Managers of Chestnut Hills Condominium Ass’n v. Pasquinelli, Inc., 354 Ill. App. 3d 749, 753-54
(2004).
¶ 21 D. Agreement to Arbitrate
¶ 22 Our task is to analyze the language of the parties’ written agreement under Kentucky’s
contract formation principles and determine whether the plaintiff agreed to the arbitration clauses in
the Account Terms of Service. We believe that the framework for our analysis was set out in detail
by the Kentucky Supreme Court in Dixon v. Daymar Colleges Group, LLC, 483 S.W.3d 332 (Ky.
2015), where the supreme court applied Kentucky contract law, specifically the incorporation by
reference doctrine, to determine whether an arbitration clause was incorporated into the terms of a
contract by reference.
¶ 23 In Dixon, students filed a lawsuit against a for-profit college alleging various claims relating
to the college’s admissions process. Id. at 336. During the college’s admissions process, prospective
students signed a document called a student enrollment agreement. The agreement was a single-page
document with provisions on the front and back; the students signed only the front. Id. The
agreement included information such as the program for which the student was registering, credit
hours, estimation of time to complete the program, and an estimation of cost of tuition, books, and
fees. Id. at 337.
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¶ 24 The arbitration clause at issue in that case was located on the reverse side of the enrollment
agreement, and it stated that any disputes arising from enrollment in the college would be resolved
by arbitration. Id. The college moved to dismiss the students’ lawsuit and compel arbitration based
on this arbitration clause. Id. at 336. The lower court, however, denied the motion and declined to
compel arbitration, holding that the arbitration clause was unenforceable. Id. at 335. On appeal, the
Kentucky Supreme Court addressed the issue of whether the arbitration clause on the reverse side of
the contract was incorporated into the parties’ enrollment agreement by reference on the front side of
the contract above the students’ signatures. Id.
¶ 25 In its analysis, the Dixon court first looked at Kentucky’s statute of frauds, which requires
contracts “ ‘not to be performed within one year from the making thereof’ ” to be signed and in
writing. Id. at 343 (quoting Ky. Rev. Stat. Ann. § 371.010(7) (West 2014)). The college argued that
the statute of frauds did not apply because, under the enrollment agreement, a student could leave at
the end of an academic term, which was less than one year. The Dixon court, however, focused on
the parties’ intent with respect to the contract’s duration. Id. The court noted that “it [was]
impossible for a student enrolling in [the college] to complete the program and obtain a degree
within a year.” Id. The court stated, “It is clear to this Court that when the Students signed the
Agreement, they contemplated an obligation that could not be performed within a year.” Id. at 344.
The court, therefore, concluded that Kentucky’s statute of frauds applied. Id.
¶ 26 Because the statute of frauds applied, the court then turned to the language of Kentucky
Revised Statute (KRS) 446.060, which provides: “When the law requires any writing to be signed by
a party thereto, it shall not be deemed to be signed unless the signature is subscribed at the end or
close of the writing.” Ky. Rev. Stat. Ann. § 446.060(1) (West 2014). This statute promotes the
“principle that when a signature is placed at the end of an agreement, there is a logical inference that
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the document contains all of the terms by which the signer intends to be bound.” In re Brockman,
451 B.R. 421, 426 (B.A.P. 6th Cir. 2011). “When the signature is in the middle of a writing, it gives
no assurance that the contracting parties intend to be bound by matters which do not appear above
their signatures ***.” Bartelt Aviation, Inc. v. Dry Lake Coal Co., 682 S.W.2d 796, 797 (Ky. Ct.
App. 1985).
¶ 27 In Dixon, the purported arbitration agreement between the parties was on the backside of the
enrollment agreement, but the students’ signatures were at the bottom of the front side of the
document. The Dixon court, therefore, held that the arbitration clause did not comply with the
requirements of KRS 446.060 because the clause was located after the students’ signatures. This did
not end the court’s analysis, however, because the court held that KRS 446.060 did not abolish the
common law doctrine of “incorporation by reference.” Dixon, 483 S.W.3d at 344. Therefore, the
court analyzed the parties’ agreement to determine whether the arbitration clause was sufficiently
incorporated into the enrollment agreement, above the students’ signatures, by reference. Id.
¶ 28 The Dixon court explained that, in order for a contract to validly incorporate other terms by
reference, “ ‘it must be clear that the parties to the agreement had knowledge of and assented to the
incorporated terms.’ ” Id. (quoting 11 Williston on Contracts § 30.25 (4th ed. 2014)). “[W]hen a
signature is placed after clear language has expressed the incorporation of other terms and conditions
by reference, it is a logical inference that the signer agrees to be bound by everything incorporated.”
Bartelt Aviation, Inc., 682 S.W.2d at 797.
¶ 29 In analyzing the agreement in that case, the Dixon court first noted that the enrollment
agreement included the following language above the students’ signatures: “ ‘This Agreement and
any applicable amendments, which are incorporated herein by reference, are the full and complete
agreement between me and the College.’ ” (Emphasis in original.) Dixon, 483 S.W.3d at 345. Just
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below that paragraph, each student placed his or her initials next to the following acknowledgment:
“ ‘I have read both pages of this student enrollment agreement before I signed it and I received a
copy of it after I signed it.’ ” Id.
¶ 30 The Dixon court first looked at the paragraph referencing “applicable amendments” and
concluded that the arbitration clause on the reverse side of the document was not an “applicable
amendment.” The court stated, “[N]o evidence has been brought to [the court’s] attention that the
Agreement was ever amended.” Id. Therefore, the court concluded, this language did not incorporate
the arbitration clause into the parties’ agreement by reference. Id.
¶ 31 Next, the court looked at the language of the acknowledgment that each student initialed that
indicated that the students had read “ ‘both pages’ ” of the agreement. Id. at 345-46. The court stated
that this acknowledgment was “plagued by the absence of any language indicating that the Students
actually assent to the terms referenced, not to mention any indication that any terms are actually
being incorporated.” Id. at 346. “Instead,” the Dixon court continued, “the provision only indicates
that the Students have read the terms.” (Emphasis in original.) Id. The court cited Ally Cat, LLC v.
Chauvin, 274 S.W.3d 451, 456 (Ky. 2009), where the court stated, “Assent to be bound by the terms
of the agreement must be expressed, and simply acknowledging the receipt of the document does not
constitute assent to be bound.”
¶ 32 The Dixon court concluded that the students’ initials next to the acknowledgment did not
function as affirmation of assent but was merely an acknowledgment that was “not clear enough to
overcome KRS 446.060 and the requirement that parties show assent to be bound by terms of a
contract.” Dixon, 483 S.W.2d at 346. Accordingly, the court held that the arbitration clause on the
reverse side of the enrollment agreement was not incorporated into the parties’ agreement by
reference and was not enforceable.
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¶ 33 In the present case, in analyzing whether the parties agreed to arbitration under Kentucky
law, we will follow the analysis framework set out by the Dixon court. Therefore, like the court in
Dixon, we first begin our analysis with Kentucky’s statute of frauds. KRS 371.010(7) sets out the
state’s statute of frauds as follows: “No action shall be brought to charge any person *** [u]pon any
agreement that is not to be performed within one year from the making thereof *** unless the
promise, contract, agreement, representation, assurance, or ratification, or some memorandum or
note thereof, be in writing and signed by the party to be charged therewith, or by his authorized
agent.” Ky. Rev. Stat. Ann. § 371.010(7) (West 2017). “[W]hen it was contemplated by the parties
that the contract would not, and could not, be performed within the year, even though it was possible
of performance within that time, it comes within the inhibition of the Statute.” (Emphasis added.)
Williamson v. Stafford, 190 S.W.2d 859, 860 (Ky. 1945).
¶ 34 In the present case, Hilliard Lyons argues that the statute of frauds does not apply because
either party could terminate the agreement at any time. We believe, however, that the Dixon court’s
reasoning directly applies to the agreement at issue in this case. Here, the account application that
the plaintiff signed expressly stated that the agreement’s “time horizon” was 5 to 10 years. The
application stated that the plaintiff’s primary objective in investing with the defendants was “Growth
and Income,” which the defendants themselves defined as balancing the plaintiff’s investments’
“long-term growth and income.” (Emphasis added.) We agree with the plaintiff that the parties
“clearly contemplated a term of account management that extended beyond one year.” Therefore,
Kentucky’s statute of frauds applies to the parties’ agreement in this case; it must be in writing and
signed by the plaintiff in order for its provisions to be enforceable against her.
¶ 35 Having determined that Kentucky’s statute of frauds applies to the parties’ agreement, we
note that the only document signed by the plaintiff is the account application, which does not include
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the arbitration provisions at issue. Like the court in Dixon, however, we will analyze the account
application to determine whether the arbitration clauses are incorporated into the signed document
by reference. The language contained in the account application must clearly show that the plaintiff
had knowledge of and assented to the arbitration clauses. In addition, pursuant to KRS 446.060, the
incorporation by reference language must be above the plaintiff’s signature.
¶ 36 The plaintiff’s signature is on the account application below the following acknowledgment:
“By signing this application, I acknowledge that I understand and have received a copy of the
Account Terms of Service, which, in Sections 13 and 14, require arbitration to resolve disputes.” The
plaintiff argues that this acknowledgment is substantially similar to the acknowledgment in Dixon
and that the acknowledgment does not function as an affirmation of assent to the Account Terms of
Service. We disagree.
¶ 37 The language of the acknowledgement in Dixon was merely that the students had read both
pages of the enrollment agreement. In the present case, the acknowledgement states that the plaintiff
received the Account Terms of Service and that she also understood the document. In Dixon, nothing
in the decision reveals the specific language that was used on the reverse side of the enrollment
agreement except a general reference to the existence of an arbitration clause on the reverse side of
the document. In the present case, however, the record before us includes the specific language of
the Account Terms of Service that the plaintiff “understood” prior to signing. Therefore, it is
necessary to turn to the language of the Account Terms of Service to determine what exactly the
plaintiff acknowledged that she “understood” prior to signing the account application. This is
necessary because, under Kentucky law, a contract must be interpreted as a whole with no one part
read in isolation. Cantrell Supply, Inc. v. Liberty Mutual Insurance Co., 94 S.W.3d 381, 384-85 (Ky.
Ct. App. 2002).
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¶ 38 Turning to the language of the Account Terms of Service, we note that paragraph 14 states,
“You agree to arbitrate all controversies that may arise between us ***.” (Emphasis added.) By
signing the account application, therefore, the plaintiff acknowledged that she understood that she
was agreeing to arbitrate. This language is vastly different from the meager acknowledgement that
the students initialed in Dixon, which merely indicated that they read both sides of the contract.
¶ 39 Looking further at the language of the Account Terms of Service, we note that at the very
beginning of the document, it specifically states that Hilliard Lyons agreed to open and maintain
“one or more investment accounts.” Importantly, it plainly states, “In exchange, you agree to the
following terms of service.” (Emphasis added.) Accordingly, by signing the account application, the
plaintiff acknowledged that she understood that she was agreeing to the Account Terms of Service in
exchange for Hilliard Lyons opening and managing the IRA account on her behalf. She
acknowledged her understanding that this was a benefit of the bargain. The plaintiff, therefore,
acknowledged much more than the students in Dixon when she placed her signature on the account
application. When the documents are read together, the plaintiff acknowledged her assent to the
arbitration clauses contained within the Account Terms of Service; she acknowledged that she
understood this prior to signing the account application.
¶ 40 This conclusion is further bolstered by the language in the acknowledgment above the
plaintiff’s signature that specifically referenced the arbitration clauses by their specific paragraph
numbers with the added statement that they “require arbitration to resolve disputes.” See Dakota
Foundry, Inc. v. Tromley Industrial Holdings, Inc., 891 F. Supp. 2d 1088, 1100 (D.S.D. 2012)
(stating that “a common thread through cases recognizing the ability to incorporate by reference
certain provisions is language that directs the offeree to the source of that provision”). The plaintiff’s
signature was an acknowledgment that she “understood” that she was agreeing specifically to
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paragraphs 13 and 14 of the Account Terms of Service that “require[d] arbitration to resolve
disputes.”
¶ 41 In reaching our conclusion, we are persuaded by the court’s analysis in Janiga v. Questar
Capital Corp., 615 F.3d 735 (7th Cir. 2010), where the court analyzed similar contract language and
concluded that the parties’ agreement included the arbitration clause. Janiga involved a contract that
was signed in Illinois, that provided that its enforcement shall be governed by New York’s laws, and
that separately provided that its arbitration agreement would be subject to Minnesota law. Id. at 742.
In analyzing whether the parties had an agreement to arbitrate, however, the court determined that it
did not have to decide which state’s law applied. Id. The court stated, “We need not dwell on that
problem *** because we see no difference among the laws of those three states that would be
dispositive.” Id. “The goal in all three states is to give effect to the intent of the parties as
demonstrated through objective conduct.” Id.
¶ 42 Likewise, in the present case, we find Janiga to be persuasive in applying Kentucky law to
the agreement at issue because we do not believe there is a difference in Kentucky law from the
three states mentioned in Janiga with respect to the application of the incorporation by reference
doctrine. In fact, in Dixon, in discussing the incorporation by reference doctrine, the Kentucky
Supreme Court cited 11 Williston on Contracts § 30.25 (4th ed. 2014) and parenthetically noted the
treatises’ compilation of “cases from various jurisdictions.” Dixon, 483 S.W.3d at 344 n.38.
¶ 43 In Janiga, the defendant opened an investment account by signing a three-page “New
Account Form.” Janiga, 615 F.3d at 738. Attached to the new account form were two additional
documents associated with opening the new account: (1) a client agreement and (2) a sponsorship
program disclosure. Directly above the plaintiff’s signature on the three-page application was the
following acknowledgment: “ ‘I/We have read and understood the pre-dispute arbitration agreement
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contained on page 4, paragraph 9 of the client agreement and have received a copy thereof.’ ”
(Emphasis added.) Id. The court noted that, “[a]s that language indicate[d], the arbitration clause
appear[ed] in a separate Client Agreement” that followed the page that the plaintiff signed. Id.
¶ 44 In finding that the parties had an agreement to arbitrate, the court specifically noted that the
plaintiff signed a contract and “that the paper he signed refer[red] to arbitration,” which objectively
demonstrated his “assent” to the contract. Id. at 743. Similar to our reasoning above, the Janiga court
analyzed the parties’ agreement as follows:
“[The plaintiff] admits that he agreed to open a brokerage account. All that is left for us is to
determine whether the contract he signed included an arbitration clause. It does. Even if we
limit our review to the one page that [the plaintiff] signed, it is impossible to avoid the
conclusion that he agreed to arbitration. As we noted at the outset of this opinion, directly
above his signature is the following statement, in all capital letters: ‘I/WE HAVE READ
AND UNDERSTOOD THE PRE-DISPUTE ARBITRATION AGREEMENT
CONTAINED ON PAGE 4, PARAGRAPH 9 OF THE CLIENT AGREEMENT AND
HAVE RECEIVED A COPY THEREOF.’ This clause is unambiguous; [the plaintiff]
acknowledged by his signature that he read, understood, and received a copy of the
arbitration agreement, and this clause (distinct from the arbitration clause itself) says that
disputes would be subject to arbitration.” Id.
¶ 45 Janiga is similar to Dixon in that the document signed by the plaintiff did not specifically use
the term “assent” or “agree.” However, Janiga is also different than Dixon, but similar to the present
case, in that the signor acknowledged that he “understood” the terms of the arbitration provisions
contained in the separate document. As is the case here, the signature in Janiga appeared below the
acknowledgment that the person signing had read and understood the specific arbitration clause
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contained in a separate, unsigned document entitled “Client Agreement.” The court found that this
acknowledgment was sufficient to establish an agreement to arbitrate; the plaintiff’s signature
objectively demonstrated his “assent” to arbitrate. Id.
¶ 46 Here, the facts are similar to those in Janiga, not to those in Dixon. The plaintiff does not
dispute that she signed the account application and that above her signature she acknowledged
receiving a copy of and, most importantly, understanding the Account Terms of Service, including
the expressly referenced arbitration provisions contained in that document. Accordingly, reading the
documents as a whole, the plaintiff acknowledged that, prior to signing the account application, she
understood that the defendants were agreeing to open and manage her IRA account in exchange for
her agreement to, among other things, arbitrate disputes stemming from the management of the
account. Although nothing in the record indicates that the Account Terms of Service was physically
attached to the account application, as was the case in Janiga, this fact does not change our analysis
because physical attachment is not required in order for a separate document to be incorporated by
reference. See Dakota Foundry, Inc., 891 F. Supp. 2d at 1099.
¶ 47 Although the account application in the present case did not use the terms “assent” or
“agree,” we are persuaded by Janiga and other jurisdictions that have held that there are no “magic
terms” that are required to incorporate another document by reference. See, e.g., Management
Computer Controls, Inc. v. Charles Perry Construction, Inc., 743 So. 2d 627, 631 (Fla. Dist. Ct.
App. 1999) (no particular “magic words” are required to incorporate a document by reference);
Northrop Grumman Information Technology, Inc. v. United States, 535 F.3d 1339, 1346 (Fed. Cir.
2008) (same). What is important to our analysis is that the plaintiff acknowledged that she
understood the Account Terms of Service, which, in turn, expressly stated that arbitration was part of
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the consideration for the agreement, and she understood that she was agreeing to arbitrate disputes
before she signed the contract.
¶ 48 When the acknowledgement above the plaintiff’s signature is read in conjunction with the
language of the Account Terms of Service, it is clear that the documents as a whole reveal the intent
of the parties to be bound to the arbitration provisions contained in paragraphs 13 and 14 in the
Account Terms of Service. As a result, the circuit court erred in holding that the parties’ agreement
did not incorporate the arbitration clauses by reference. See also Lenz v. FSC Securities Corp., 2018
MT 67, ¶ 20, 414 P.3d 1262 (“[T]he signature page forms conspicuously, clearly, and
unambiguously referenced a separate customer agreement form and conspicuously gave notice that
the customer agreement form contained an arbitration agreement. *** The signature page form also
clearly, conspicuously, and unambiguously stated and notified the signatory that, by signing, the
client acknowledged receipt of a copy of the customer agreement form.”).
¶ 49 E. Statute of Frauds
¶ 50 In the proceedings below, the circuit court held that the Account Terms of Service could not
be enforced as a stand-alone agreement under Kentucky’s statute of frauds because it was not signed
by the plaintiff. However, for the reasons stated above, we hold that the account application, which
was signed by the plaintiff, sufficiently incorporated the Account Terms of Service into the parties’
agreement by reference. Therefore, the circuit court’s conclusion that the Account Terms of Service
must be separately signed by the plaintiff under Kentucky’s statute of frauds is incorrect.
¶ 51 Where the signature of the party to be charged is made or adopted with reference to an
unsigned writing, the signed and unsigned writings together may constitute a memorandum.
Restatement (Second) of Contracts § 132 cmt. c (1981); see also 11 Williston on Contracts § 30.25
(4th ed. 1999) (“When a writing refers to another document, that other document, or the portion to
18
which reference is made, becomes constructively a part of the writing, and in that respect the two
form a single instrument. The incorporated matter is to be interpreted as part of the writing.”).
¶ 52 Accordingly, in the present case, the Account Terms of Service is not a stand-alone
agreement but is part of the entire written agreement signed by the plaintiff. Enforcing the arbitration
provision in the Account Terms of Service does not violate Kentucky’s statute of frauds.
¶ 53 F. Whether the Federal Arbitration Act or
Kentucky’s Uniform Arbitration Act Applies to the Proceedings on Remand
¶ 54 In the proceedings below, the parties disagreed concerning the application of the Federal
Arbitration Act to the controversy. The defendants argued that the contract at issue involved
interstate commerce and is therefore subject to the Federal Arbitration Act (9 U.S.C. § 1 et seq.
(2012)). See Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 252 (1987). The plaintiff,
however, argued that the arbitration provision was governed solely by Kentucky’s Uniform
Arbitration Act (Ky. Rev. Stat. Ann. § 417.045 et seq. (West 2017)), as opposed to the Federal
Arbitration Act.
¶ 55 As we have explained, the circuit court held that, under Kentucky law, the parties did not
have an agreement to arbitrate their dispute. The circuit court, therefore, concluded that it did not
need to decide the issue of whether the Federal Arbitration Act preempted the Kentucky Uniform
Arbitration Act. On appeal, the defendants request that we address this issue and determine whether
the Federal Arbitration Act or the Kentucky Uniform Arbitration Act applies to the proceedings on
remand.
¶ 56 However, we agree with the plaintiff that our review of the circuit court’s decision in this
case should be limited to the issues the circuit court addressed and decided. See, e.g., Garrido v.
Arena, 2013 IL App (1st) 120466, ¶ 33 (“Because the circuit court did not rule on the alternative
grounds raised in defendants’ motions to dismiss, we think it is appropriate to remand this case so
19
that the circuit court can consider and rule on each of those issues in the first instance.”). Our task in
this interlocutory appeal is to determine whether the parties have a valid and enforceable agreement
to arbitrate under Kentucky’s contract formation principles. We have done so and now remand for
further proceedings. We will not usurp the circuit court’s function on remand by addressing matters
on appeal that should be addressed by the circuit court in the first instance.
¶ 57 The plaintiff filed a motion requesting that we strike that portion of the defendants’ brief that
raised this issue. Because we decline to consider the merits of the argument on appeal, we deny the
plaintiff’s motion to strike that portion of the defendants’ brief as being moot.
¶ 58 G. Plaintiff’s Motion to Strike Portions of the Defendants’ Brief That
Raise New Arguments on Appeal
¶ 59 In their brief, in addition to the incorporation by reference doctrine, the defendants also argue
that the plaintiff manifested her assent to the Account Terms of Service by opening the IRA account
after reading the document. Citing Energy Home, Division of Southern Energy Homes, Inc. v. Peay,
406 S.W.3d 828, 837 (Ky. 2013), the defendants argue that, under Kentucky law, arbitration
agreements are not required to be signed to be enforceable, so long as the parties have indicated their
acceptance of the contract through their actions.
¶ 60 The plaintiff moved to strike this portion of the defendants’ brief, arguing that the
defendants’ position in the proceedings below was that the account application incorporated the
Account Terms of Service by reference. The plaintiff argues in her motion to strike that the
defendants’ argument based on Energy Home is a new theory that cannot be raised for the first time
on appeal. The plaintiff also requested leave to respond to the merits of the argument should we deny
her motion to strike.
¶ 61 As noted above, however, we hold that the account application that the plaintiff signed
incorporated the Account Terms of Service by reference such that the documents are to be construed
20
as one contract. We need not address the defendants’ alternative argument that the plaintiff indicated
her acceptance of the Account Terms of Service by her actions. Accordingly, we deny the plaintiff’s
motion to strike that portion of the defendants’ brief as moot.
¶ 62 III. CONCLUSION
¶ 63 For the foregoing reasons, we deny the plaintiff’s motion to strike portions of the defendants’
brief; we reverse the circuit court’s order denying the defendants’ motion to dismiss or stay; and we
remand this case for further proceedings consistent with this decision.
¶ 64 Reversed and remanded; motion denied.
21
2018 IL App (5th) 180214
NO. 5-18-0214
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
JUNE M. WARD, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Randolph County.
)
v. ) No. 16-L-27
)
J.J.B. HILLIARD; W.L. LYONS, LLC, d/b/a )
Hilliard Lyons, a Kentucky Corporation; and )
MICHAEL BARNETT, ) Honorable
) Thomas B. Cannady,
Defendants-Appellants. ) Judge, presiding.
______________________________________________________________________________
Rule 23 Order Filed: September 6, 2018
Motion to Publish Granted: October 5, 2018
Opinion Filed: October 5, 2018
______________________________________________________________________________
Justices: Honorable David K. Overstreet, J.
Honorable Thomas M. Welch, J., and
Honorable James R. Moore, J.,
Concur
______________________________________________________________________________
Attorneys Glenn E. Davis, Hepler Broom, LLC, 211 North Broadway, Suite 2700,
for St. Louis, MO 63102; Janet P. Jakubowicz, Rachel A. Washburn,
Appellants Bingham Greenbaum Doll, LLP, 101 South Fifth Street, Suite 3500,
Louisville, KY 40202
______________________________________________________________________________
Attorney Nathaniel O. Brown, Weilmuenster & Keck, P.C., 3201 West Main Street,
for Belleville, IL 62226
Appellee
______________________________________________________________________________