Barry Rowland v. Sandy Morris Financial ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1187
BARRY ROWLAND; DONNA ROWLAND,
Plaintiffs – Appellees,
v.
SANDY MORRIS FINANCIAL & ESTATE PLANNING SERVICES, LLC;
SANDEVA O’BRYAN MORRIS,
Defendants – Appellants,
and
GLOBAL FINANCIAL PRIVATE CAPITAL, LLC; GF INVESTMENT
SERVICES, LLC; MINNESOTA LIFE INSURANCE COMPANY,
Defendants.
Appeal from the United States District Court for the Western District of North Carolina, at
Statesville. Kenneth D. Bell, District Judge. (5:19-cv-00069-KDB-DCK)
Submitted: March 12, 2021 Decided: April 7, 2021
Before WILKINSON, NIEMEYER, and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge
Niemeyer and Judge Quattlebaum joined.
Donald R. Pocock, NELSON MULLINS RILEY & SCARBOROUGH LLP, Winston-
Salem, North Carolina, for Appellant. Brooke A. Howard, HOWARD LAW, PLLC,
Raleigh, North Carolina; James A. Roberts, III, Matthew D. Quinn, LEWIS & ROBERTS,
PLLC, Raleigh, North Carolina, for Appellees.
WILKINSON, Circuit Judge:
In this appeal, defendants Sandeva “Sandy" Morris and Sandy Morris Financial
LLC (SMF) challenge the district court’s denial of their motion to compel arbitration of
plaintiffs Barry and Donna Rowland’s North Carolina contract and tort claims. Because
we agree with the district court that the parties did not form an agreement to arbitrate, we
affirm the order below.
I.
In 2014, the Rowlands first met with Morris in Tampa, Florida, for financial
planning advice. Later that year, they moved to North Carolina but continued to use Morris
and her firm for their financial affairs. From 2015 to 2018, Morris served as the Rowlands’
financial advisor. In 2015, Morris sold them two annuity contracts and the next year
recommended a particular universal life insurance policy, which the Rowlands purchased.
The Rowlands expanded the scope of their professional relationship with Morris
and her firm in 2017 by hiring her to manage their investment accounts. To do this,
plaintiffs filled out SMF’s Asset Management Agreement (AMA) and new account forms
from TD Ameritrade. The AMA and TD Ameritrade forms were bundled together in a
single pdf. The brokerage forms rolled money from Mr. Rowland’s Charles Schwab IRA
over to a TD Ameritrade IRA managed by Morris and her firm. The AMA included an
addendum and a Risk Profile Questionnaire (RPQ) that documented what accounts SMF
was to manage and how the firm was to manage them.
The AMA also included an arbitration section. It required the parties to use
arbitration to settle “any controversy or dispute which may arise between Client and Sandy
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Morris Financial concerning any transaction or the construction, performance or breach of
this Agreement.” J.A. 121. The AMA dictated that the rules of the American Arbitration
Association would govern any arbitration. J.A. 121. Right above the signature block, the
contract included this disclaimer, bolded and in all capital letters: “This Agreement
contains a pre-dispute arbitration clause.” J.A. 122.
On October 2, 2017, Mr. Rowland received a fifty-four-page pdf from SMF, which
included the AMA and the TD Ameritrade documents. He signed and returned the
document via Docusign, a well-recognized online platform for signing and transmitting
documents. When SMF received the signed agreement, Steve Zanolli, the Chief
Compliance Officer, signed it on behalf of SMF.
Unfortunately the Rowlands’ investments did not work out as they had hoped. After
the Rowlands commenced this suit in the Western District of North Carolina for state law
contract and fraud claims, the parties submitted different versions of the AMA to the
district court for its decision on Morris and SMF’s motion to compel arbitration. The
Rowlands’ version (Rowland AMA) included on page fourteen of the AMA one account
(ending in 8519) for management by SMF and Mr. Rowland’s Docusign signature. And
on page fifteen, the RPQ did not have a box marked for Risk Tolerance or Investment
Objective, nor did it denote how many years of experience Mr. Rowland had with stocks—
the only investment vehicle for which he indicated having any background. This page also
had Mr. Rowland’s Docusign signature.
The version submitted by SMF (SMF AMA) with Zanolli’s signature was not the
same. The SMF AMA included a second account (ending in 8521) and Sandy Morris’s
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signature. And the RPQ on page fifteen of the AMA had several boxes left blank by Mr.
Rowland checked in a different color ink. It had his risk tolerance marked as “Moderate,”
his investment objectives marked as both “Balanced” and “Growth & Income,” and his
investment experience expanded to “Mutual Funds” with thirty years of experience denoted
for both mutual funds and stocks. J.A. 125. Finally, the document had marked that the
Rowlands would need “$6” of their assets in less than three years. J.A. 125.
Defendants filed motions to compel arbitration, to dismiss for lack of personal
jurisdiction, to transfer venue, and to dismiss for failure to state a claim. The district court
denied all of them. On the arbitration motion, the court found that the parties had not
formed an agreement to arbitrate. On February 18, 2020, Morris and SMF timely filed a
notice of appeal. Though noting that the defendants’ “appeal could be considered
frivolous,” the district court nonetheless granted them a stay during the pendency of this
appeal. J.A. 396. We have jurisdiction pursuant to 9 U.S.C. § 16(a)(1).
II.
We review “the decision to deny [a] motion for stay and to compel arbitration” de
novo. Noohi v. Toll Bros., Inc., 708 F.3d 599, 602 (4th Cir. 2013) (quoting Patten Grading
& Paving, Inc. v. Skanska USA Bldg., Inc., 380 F.3d 200, 204 (4th Cir. 2004)). Whether
an agreement to arbitrate was formed is a question of “ordinary state-law principles that
govern the formation of contracts.” Hill v. Peoplesoft USA, Inc., 412 F.3d 540, 543 (4th
Cir. 2005) (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).
We review these questions of state contract law de novo as well. Muriithi v. Shuttle Exp.,
Inc., 712 F.3d 173, 178 (4th Cir. 2013).
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Furthermore, in reviewing the district court’s denial of a motion to compel
arbitration, “we accept as true the allegations of the . . . Complaint that relate to the
‘underlying dispute between the parties.’” Berkeley Cty. Sch. Dist. v. Hub Int’l Ltd., 944
F.3d 225, 233 (4th Cir. 2019) (quoting Schnabel v. Trilegiant Corp., 697 F.3d 110, 113 (2d
Cir. 2012)).
A.
In the modern American legal system, arbitration is an important means of dispute
resolution. When state and federal courts require time-consuming, complex, and expensive
procedures, arbitration offers a means of dispute resolution that is faster, easier, and
cheaper for parties to utilize. And it has been given the imprimatur of the Supreme Court
over the last decade. See, e.g., Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct.
524 (2019); Am. Express Co. v. Italian Colors Rest., 570 U.S. 228 (2013); AT&T Mobility
LLC v. Concepcion, 563 U.S. 333 (2011).
It was not always so. When Congress passed the Federal Arbitration Act (FAA),
Pub. L. No. 68-401, 43 Stat. 883 (1925), it did so in response to extreme judicial hostility
to arbitration. The FAA “sought to ‘overcome the rule of equity, that equity will not
specifically enforce any arbitration agreement’” because first the English—and then the
American—courts jealously guarded their own jurisdiction. Southland Corp. v. Keating,
465 U.S. 1, 13 (1984) (quoting Hearing on S. 4214 Before a Subcomm. of the S. Comm. on
the Judiciary, 67th Cong. 6 (1923) (remarks of Sen. Walsh)).
Since the FAA established “a national policy favoring arbitration,” id. at 10, the
Supreme Court has been quick to halt the lower courts’ creation of exceptions to the FAA
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that have no basis in the statute’s text. In Italian Colors, the Court rejected the “judge-
made exception to the FAA” that declared arbitration “agreements that prevent the
‘effective vindication’ of a federal statutory right” to be unenforceable. 570 U.S. at 235.
More recently, the Supreme Court unanimously rejected the “wholly groundless”
exception adopted by four circuits. Henry Schein, 139 S. Ct. at 528. Under this exception,
district judges had denied motions to compel arbitration when they found the movant’s
“argument that the arbitration agreement applie[d] to the particular dispute [to be] ‘wholly
groundless.’” Id. at 527–28.
This is not to say that district courts are to grant blindly all motions to compel
arbitration. The FAA balances the goals of facilitating arbitration with the aims of contract
law by recognizing a limited role for federal courts to play. The statute mandates that “[i]f
the making of the arbitration agreement . . . be in issue, the court shall proceed summarily
to the trial thereof.” 9 U.S.C. § 4. The Supreme Court has also held that when the parties
disagree as to whether an agreement to arbitrate has been formed, “the dispute is generally
for courts to decide.” Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 296
(2010).
There is a difference between disputes over arbitrability and disputes over contract
formation. See Hub Int’l, 944 F.3d at 234 n.9. While “‘parties may agree to have an
arbitrator decide . . . gateway questions of arbitrability,’” such an agreement does not
“preclude a court from deciding that a party never made an agreement to arbitrate any
issue.” Id. (quoting Henry Schein, 139 S. Ct. at 529). That is, it does not erase the court’s
obligation to determine whether a contract was formed under 9 U.S.C. § 4. Thus the
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incorporation of the rules of the American Arbitration Association, which allow the
arbitrator to rule on questions of arbitrability, see Am. Arbitration Ass’n, Consumer
Arbitration Rules, R-14 (amended Sept. 1, 2014), does not obviate the need for courts to
decide the threshold issue of contract formation.
This pre-arbitration process accomplishes an important function. It must be
remembered that mandatory arbitration is not the default form of dispute resolution but
rather is permitted only when the parties agree to it. “Arbitration is,” after all, “a matter of
contract.” Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 67 (2010). A party cannot
be forced into arbitration. Rather, parties must actually contract to arbitrate disputes
between them. Section 4 of the FAA has made clear that it is up to courts to determine
whether a contract has been formed, and the district court properly heeded that call. This
respects party autonomy and the general principles of contract law.
B.
Having found that the district court was the proper one to resolve the parties’ dispute
over whether they agreed to arbitrate, we now turn to how that disagreement ought to be
resolved.
Section 4 of the FAA requires the court to conduct a trial of the issue if there are
“‘sufficient facts’ support[ing] a party’s denial of an agreement to arbitrate.” Hub Int’l,
944 F.3d at 234. However, the right to a jury trial “is not automatic.” Chorley Enters.,
Inc. v. Dickey’s Barbecue Rests., Inc., 807 F.3d 553, 564 (4th Cir. 2015). Just as in
traditional litigation, the district court must employ the summary judgment standard as a
gatekeeper, so a trial occurs only if there are “genuine issues of material fact.” Id.; see also
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Hub Int’l, 944 F.3d at 234. In applying that standard, the burden is on the defendant to
“establish[] the existence of a binding contract to arbitrate the dispute.” Minnieland
Private Day Sch., Inc. v. Applied Underwriters Captive Risk Assurance Co., Inc., 867 F.3d
449, 456 (4th Cir. 2017). Here the district court in effect granted summary judgment to
the plaintiffs by finding that, as a matter of law, the parties did not form an agreement. We
have long held that appropriate. See, e.g., Stedor Enters., Ltd. v. Armtex, Inc., 947 F.2d
727, 732–33 (4th Cir. 1991).
Whether an agreement to arbitrate was formed is, as we have noted, a question of
ordinary state contract law principles. See Chorley Enters., 807 F.3d at 563. Here, as both
parties agree, the dispute is governed by North Carolina law. For a valid contract to be
formed, the two parties must “assent to the same thing in the same sense, and their minds
meet as to all terms.” Normile v. Miller, 326 S.E.2d 11, 15 (N.C. 1985) (quoting Goeckel
v. Stokely, 73 S.E.2d 618, 620 (N.C. 1952)). There must be “an offer and acceptance in
the exact terms.” Id. If the original terms are changed or new ones added, “there is no
meeting of the minds.” Id. (quoting 8A G. Thompson, Commentaries on the Modern Law
of Real Property § 4452 (1963)). “When there has been no meeting of the minds on the
essentials of an agreement, no contract results.” Creech v. Melnik, 495 S.E.2d 907, 912
(N.C. 1998). This is nothing more than the standard black-letter law taught in every first
year Contracts course.
Based on the undisputed evidence submitted by both parties, there was no such
meeting of the minds—and thus no contract—because both parties did not agree to the
same terms. The parties make a fuss about Docusign, the other files in the pdf with the
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AMA, whether there was a counteroffer, and how the differences in the AMAs submitted
by each party came about. But at its core, this is a very simple contract dispute.
To wit, Mr. Rowland signed the AMA, which he submitted into evidence. Morris
and SMF did not dispute that the Rowland AMA was in fact the version that Mr. Rowland
signed. Morris and SMF also submitted into evidence the AMA that their agent signed.
Mr. Rowland never received a copy of the SMF AMA and did not dispute that the version
SMF submitted was the version that they signed. Those two AMAs differed as to a number
of terms. In particular, an unknown employee at SMF added an extra account to be
managed and filled in Mr. Rowland’s investment objectives and risk preferences, which
according to the contract, were to govern how SMF managed his money. There was no
evidence in the record that Mr. Rowland ordered them to do so or was even informed that
they made such changes. There was no evidence that he reviewed or initialed those
changes.
These discrepancies are not minor—they are material differences in the agreement
between the parties. An investment advisor cannot unilaterally add another account for it
to manage. The investment objectives and risk tolerance of the client are not insignificant
preferences; rather, they set the ground rules for how SMF was to manage the plaintiffs’
money. The designation of which accounts were to be managed and how they were to be
managed would be of paramount importance for any couple turning over its hard-earned
savings to a financial firm for management. SMF did not bother to solicit from Mr.
Rowland this information after he submitted the signed form, when it easily could have
done so. Either one of the above omissions was sufficient to make for a material difference
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defeating the formation of the contract. Together they undoubtedly did so. Because the
difference in material terms in the AMA prevented a meeting of the minds on the essential
elements of the contract, we find that no contract between the parties was formed.
Although not dispositive, it is important to note the difference in sophistication of
the parties. The Rowlands are individuals without extensive personal experience in finance
or investing. Morris is a certified financial professional and her firm is in the business of
managing money. The documents were so technical and voluminous as to daunt, and
perhaps overwhelm, persons with the plaintiffs’ level of experience. We are not saying
that volume or difference in sophistication is sufficient to defeat the formation of a contract,
but the firm changing terms of an agreement after the customer signs it certainly does not
add to the impression of fairness that one hopes to get from a financial institution managing
an individual investor’s portfolio.
C.
There is no question that the digital age has changed the nature of contract
formation. See, e.g., Robin Bradley Kar & Margaret Jane Radin, Pseudo-Contract and
Shared Meaning Analysis, 132 Harv. L. Rev. 1135, 1141–42 (2019) (discussing how the
Internet allowed a rise in boilerplate language that changed contracting and stretched
traditional legal concepts); Ian Ayres & Alan Schwartz, The No-Reading Problem in
Consumer Contract Law, 66 Stan. L. Rev. 545 (2014) (discussing the difficulty of
translating the duty to read to the Internet era). Long gone are the days when two parties
might sit down across a wooden table and sign with their own pens the same sheet of paper.
With the advent of email, what is the significance of the Mailbox Rule? See generally
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Restatement (Second) of Contracts § 63 (Am. Law Inst. 1981). One can now send drafts,
modifications, edits, and revisions with such speed and alacrity that it becomes easy to get
sloppy. A casual Internet browser might enter a contract with a company merely by using
its website. See, e.g., Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171, 1175–76 (9th Cir.
2014) (discussing “clickwrap” and “browsewrap” agreements online). In some cases, an
“electronic ‘click’ can suffice to signify the acceptance of a contract.” Sgouros v.
TransUnion Corp., 817 F.3d 1029, 1033 (7th Cir. 2016). For the unwary, this can be
treacherous.
Although “new commerce on the Internet has exposed courts to many new
situations”—and opened up useful new tools through which contracting parties can
communicate—“it has not fundamentally changed the principles of contract.”
Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir. 2004). Courts are not licensed
to ignore the old chestnuts—cases that remind us that (1) certain formalities are required
for a contract to be formed, see Bailey v. West, 249 A.2d 414 (R.I. 1969), and (2) when the
formalities are met, a contract it does make, see Lucy v. Zehmer, 84 S.E.2d 516 (Va. 1954)
(finding an impromptu land contract on a napkin agreed to over drinks to be an enforceable
contract).
“About suffering, they were never wrong, / The old Masters.” W.H. Auden, Musee
des Beaux Arts (1938). Perhaps the same can be said about formalities. Justice Holmes
once declared “that all contracts are formal, that the making of a contract depends not on
the agreement of two minds in one intention, but on the agreement of two sets of external
signs—not on the parties’ having meant the same thing but on their having said the same
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thing.” Oliver Wendell Holmes, The Path of the Law, 110 Harv. L. Rev. 991, 996 (1997)
(reprint of address given at Boston University School of Law on January 8, 1897). The
electronic age has not made the formalities of contract less crucial, but more so—it is
imperative that parties turn square corners and ensure that the documents on which
signatures are affixed are as identical as possible and certainly identical as to all material
terms. In the past, parties meeting face-to-face might have interacted with other people
who could testify as to disputed facts over contract formation. When personal contact (and
perhaps extrinsic evidence) is reduced, and documents are swapped back and forth via
email or Docusign, there may be fewer such people. All we are left to rest on are the
formalities.
III.
What happened here was at best sloppy on the part of Morris and SMF and at worst
duplicitous—changes effected by sleight of hand. We need not decide which because,
either way, no contract was formed. Unilateral unratified material changes on the part of
Morris and her firm prevented the formation of a contract. Thus we readily affirm the order
of the district court declining to compel arbitration.
AFFIRMED
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