Ward v. Hilliard , 2018 IL App (5th) 180214 ( 2019 )

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Appellate Court Date: 2019.02.13
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Ward v. J.J.B. Hilliard, W.L. Lyons, LLC, 2018 IL App (5th) 180214
Appellate Court JUNE M. WARD, Plaintiff-Appellee, v. J.J.B. HILLIARD, W.L.
Caption LYONS, LLC, d/b/a Hilliard Lyons, a Kentucky Corporation; and
MICHAEL BARNETT, Defendants-Appellants.
District & No. Fifth District
Docket No. 5-18-0214
Rule 23 order filed September 6, 2018
Motion to publish
granted October 5, 2018
Opinion filed October 5, 2018
Decision Under Appeal from the Circuit Court of Randolph County, No. 16-L-27; the
Review Hon. Thomas B. Cannady, Judge, presiding.
Judgment Reversed and remanded; motion denied.
Counsel on Glenn E. Davis, of Hepler Broom, LLC, of St. Louis, Missouri, and
Appeal Janet P. Jakubowicz (pro hac vice) and Rachel A. Washburn (pro hac
vice), of Bingham Greenbaum Doll, LLP, of Louisville, Kentucky, for
appellants.
Nathaniel O. Brown, of Weilmuenster & Keck, P.C., of Belleville, for
appellee.
Panel 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 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 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’s 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. 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.
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¶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 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.
(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.)
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(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 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 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
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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 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, 554 S.W.3d 845, 848 (Ky. 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
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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.
¶ 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. 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 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 back side 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 Samuel Williston, Richard A. Lord, A Treatise on the
Law of Contracts § 30.25 (4th ed. 2014) (hereinafter Williston on Contracts)). “[W]hen a
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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 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,
indicating 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 an 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.
¶ 33 In analyzing whether the parties agreed to arbitration under Kentucky law in the present
case, 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. Ct. App. 1945).
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¶ 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 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).
¶ 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
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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 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 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 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
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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 contained in a separate, unsigned document, titled “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
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plaintiff acknowledged that she understood the Account Terms of Service, which, in turn,
expressly stated that arbitration was part of 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, 391 Mont. 84, 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 Williston on Contracts
§ 30.25 (4th ed. 1999) (“Where a writing refers to another document, that other document, or
the portion to 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 (9 U.S.C. § 1 et seq. (2012)) to the controversy. The defendants argued that the
contract at issue involved interstate commerce and is therefore subject to the Federal
Arbitration Act. 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.
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¶ 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 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 addition to the incorporation by reference doctrine, the defendants argue in their brief
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 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.
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¶ 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.
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