Bank of America, N.A. v. District of Columbia , 2013 D.C. App. LEXIS 788 ( 2013 )


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    DISTRICT OF COLUMBIA COURT OF APPEALS
    No. 10-CV-78
    BANK OF AMERICA, N.A., et al., APPELLANTS,
    v.
    DISTRICT OF COLUMBIA, APPELLEE.
    Appeal from the Superior Court of the
    District of Columbia
    (CAB-7763-08)
    (Hon. Joan Zeldon, Motions Judge)*
    (Hon. Frank Burgess, Motions Judge)**
    (Argued October 19, 2011                               Decided November 27, 2013)
    Ava E. Lias-Booker, with whom Samantha Thompson, Brian A. Kahn,
    Adrienne J. Lawrence, and Michelle N. Lipkowitz, were on the brief, for appellants.
    Stacy L. Anderson, Assistant Attorney General, with whom Irvin B. Nathan,
    Acting Attorney General for the District of Columbia at the time the brief was filed,
    Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General,
    were on the brief, for appellee.
    Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and WAGNER,
    Senior Judge.
    *
    Judge Zeldon decided the Motion to Compel Arbitration.
    **
    Judge Burgess decided the Motion to Stay.
    2
    WAGNER, Senior Judge: Appellants, Bank of America, N.A. and Bank of
    America Corporation (hereinafter collectively referred to as Bank of America or the
    Bank), appeal from an order of the trial court denying the Bank’s motion to compel
    arbitration under the Federal Arbitration Act (FAA) of the District of Columbia’s
    claims for damages for losses incurred as the result of a protracted fraudulent scheme
    perpetrated by the District’s employees and allegedly facilitated by Bank of America.
    Bank of America argues that the trial court erred in its ruling because all of the
    District’s claims are within the scope of a contractual agreement that requires
    arbitration in the state of North Carolina. The District’s position is that there was no
    valid arbitration agreement, or alternatively, its claims do not fall within the scope of
    any agreement between the parties. We affirm the decision of the trial court holding
    that the parties had no valid agreement to arbitrate their dispute in North Carolina or
    elsewhere and retaining jurisdiction of the District’s claim under the Fraud Claims
    Act. We remand the case to the trial court for further proceedings consistent with this
    opinion as it relates to the remaining counts of the District’s amended complaint.
    I. Procedural Background
    This action arises out of a fraudulent scheme by a former manager in the
    3
    District’s Real Property Tax Administration Adjustment Unit in its Office of Tax and
    Revenue. The District filed a complaint against Bank of America, Walter R. Jones,
    Jr., Harriette Walters, Jayrece Elaine Turnbull, and unknown Jane and John Does
    alleging that they participated in a conspiracy that utilized a Controlled Disbursement
    Account (CDA or CD Account) that the District maintained with Bank of America
    to process fraudulent tax refund checks. Specifically, the District alleged that
    Walters, a former District employee, used her knowledge of the District’s property
    tax refund process to prepare and ensure approval of the fraudulent checks which
    were given to co-conspirators to deposit or cash through the Bank. According to the
    complaint, Jones, an assistant branch manager for the Bank, and other unknown bank
    personnel facilitated the negotiation of the fraudulent checks. As theories of liability,
    the District asserted: (1) violation of the Uniform Commercial Code (UCC) (
    D.C. Code § 28:3-404
     (2001)); (2) violation of UCC § 28:3-405; (3) negligence; (4) fraud;
    (5) breach of fiduciary duty; (6) conversion; (7) violation of the D.C. False Claims
    Act (FCA) (
    D.C. Code § 2-308.14
     (2006 Repl.));1 and (8) negligence in training,
    hiring and supervising bank personnel. As relief, the District sought repayment of all
    funds lost totaling $39,212,815.24. Under the False Claims Act, it sought treble
    damages of $117,212,815.24, penalties of $10,000 plus costs and attorney’s fees.
    1
    This provision has been recodified at 
    D.C. Code § 2-381.02
    .
    4
    The Bank filed a “Motion to Dismiss, or in the Alternative, Stay Based on
    Forum Selection and Arbitration Clauses,” which the trial court treated as a Motion
    to Compel Arbitration under the Federal Arbitration Act, 
    9 U.S.C. § 1
     et seq. In its
    motion, the Bank asserted that the District’s claims are subject to arbitration pursuant
    to a clause in its Treasury Service Booklet (TSB) requiring arbitration of disputes
    related to the account or bank services and a forum selection clause in its Deposit
    Agreement (DA) requiring any proceeding regarding the CD Account to be brought
    in North Carolina. Concluding that the parties’ voluminous filings did not make clear
    what documents controlled the dispute, the trial court held an evidentiary hearing in
    order to ascertain whether they had an agreement to arbitrate in North Carolina.
    Following completion of the hearing proceedings, the trial court denied the Bank’s
    motion by written order in which it found that the parties’ 2005 contract provisions
    superseded any dispute resolution or forum selection clauses previously agreed upon
    and that the signatories to any documents executed subsequently lacked authority to
    bind the District to arbitration in North Carolina. The court retained jurisdiction of
    the False Claims Act count explaining that the FCA is a part of the Procurement
    Practices Act of 1985 (PPA), which the parties incorporated into their 2005
    agreement, and that actions thereunder are within the Superior Court’s exclusive
    5
    jurisdiction under 
    D.C. Code § 2-301
     et seq.2 The court dismissed the District’s
    remaining claims, holding that they are within the exclusive jurisdiction of the
    District’s own contracting officer and the Contract Appeals Board (CAB).
    The Bank filed a motion to alter or amend the trial court’s order and to certify
    certain rulings to this court for review. The Bank noted this appeal before the trial
    court (J. Zeldon) denied the motion to alter or amend. The trial court (J. Burgess)
    granted the Bank’s motion to stay the proceedings on the FCA claim and stayed the
    dismissal of the District’s remaining counts. However, the order permitted the
    District to pursue its contract claims before the District’s Contracting Officer.
    The Bank filed in this court a Motion to Stay Proceedings, or in the Alternative
    Enjoin the District Pending Appeal, in which it requested a stay or injunction to
    prevent the District from initiating proceedings before a contracting officer during the
    pendency of this appeal. This court denied that motion and ordered the Bank to show
    cause why the appeal should not be dismissed for lack of jurisdiction as having been
    taken from a non-final order, citing In re Calomiris, 
    894 A.2d 408
    , 408 (D.C. 2006),
    2
    The Procurement Practices Reform Act of 2010 which came into effect April
    8, 2011, repealed these provisions. See D.C. Law 18-371, § 1201 (a), 
    58 D.C. Reg. 1185
     (Apr. 8, 2011).
    6
    Hercules & Co. v. Beltway Carpet Serv., Inc., 
    592 A.2d 1069
    , 1071 n.6 (D.C. 1991),
    and 
    D.C. Code § 11-721
     (d) (2001). Without resolving the jurisdictional question,
    this court issued an order vacating the Show Cause order, stating that “[t]he Supreme
    Court’s decision in Andersen LLP v. Carlisle, 
    129 S. Ct. 1896
     (2009) may [a]ffect the
    applicability of Calomiris, 
    894 A.2d at 410
    .” In that order, this court set a briefing
    schedule and requested the parties to discuss the opinion in Carlisle in their briefs.
    For the reasons set forth in part III A., infra, we conclude that this court has
    jurisdiction of the appeal.
    II. Factual Background and Trial Court’s Decision
    A. Factual Summary
    Before addressing the issues, we outline in some detail the factual background
    essential to an understanding of the parties’ arguments and our disposition. At least
    since the 1990s, the District has maintained a Controlled Disbursement Account with
    Bank of America or its predecessors.3 In July 1999, after Bank of America merged
    3
    “A CDA is a specialized business service for deposit accounts through which
    the District of Columbia is notified, at a specific time each business day, of the
    (continued...)
    7
    with its most recent predecessor, Nations Bank, the account was maintained in North
    Carolina. On January 6, 2000, Valerie Holt, then Chief Financial Officer (CFO) for
    the District, executed a “Certified Copy of Corporate Resolutions — Opening and
    Maintaining Deposit Accounts and Services,” which designated the CFO, the Deputy
    CFO/Treasurer, and the Associate Treasurer as persons authorized “to execute and
    sign any application, deposit agreement, signature card and any other documentation
    required by the Bank to open said accounts.”4 That same day, CFO Holt signed a
    signature card for the CDA and verified the signatures of three others to act under the
    3
    (...continued)
    number and amount of all District-issued checks that will be presented for payment
    that day. . . . The service allows the District to transfer to its CDA the exact amount
    of money necessary to cover the checks presented and to allow idle funds to be
    invested elsewhere.”
    4
    The Corporate Resolution also authorized the named individuals to do the
    following:
    to enter any agreements with the Bank for the provision by
    the Bank of various Treasury Management services to [the
    District of Columbia] as such officer or employee may
    determine, in his or her sole discretion, and to sign any and
    all documents and take all actions required by the Bank
    relative to such Treasury Management services . . . and that
    any such Treasury Management agreement(s) shall remain
    in full force and effect until written notice to terminate
    given in accordance with the terms of any such agreement
    shall have been received by the bank. . . .
    8
    Corporate Resolution.5 The signature card states that by signing, the signatory agrees
    that the account is to be governed by the terms and conditions set forth in the Bank’s
    Deposit and Disclosures Agreement (Deposit Agreement), including any
    amendments. The trial court found that all relevant Deposit Agreements specify
    North Carolina as the location for resolution of disputes and give the Bank the right
    unilaterally to amend its own Deposit Agreement. According to evidence at the
    hearing, completion of a signature card was required to add signatories to the account.
    Between 2000 and November 13, 2005, a number of District officials signed
    signature cards to add or remove names from the account. These included CFO Dr.
    Natwar Gandhi, successor to CFO Holt, Associate Treasurer Lasana Mack, and
    Interim Associate Treasurer Alcindor Rosier. One of the signature cards signed by
    Dr. Gandhi stated that by signing, he “agree[d] . . . [t]o be governed by the terms and
    conditions” set forth in the Deposit Agreement. Dr. Gandhi, Mr. Mack, and Mr.
    Rosier testified that they signed signature cards only to open an account or to add or
    remove signatories.
    On September 25, 2000, Acting Deputy CFO/Treasurer, John Robinson, and
    5
    In addition the CFO Holt, Dr. William Hall, Deputy CFO and Treasurer, and
    two Associate Treasurers were identified as persons authorized to act under the
    Corporate Resolution.
    9
    Interim Associate Treasurer and Bank Manager, Alcindor Rosier, executed an
    “Authorization and Agreement for Treasury Services” (Authorization) agreeing to be
    bound by the Treasury Booklet. The trial court found that the 2000 Corporate
    Resolution authorized Rosier and Robinson to enter an agreement for treasury
    services. On September 25, 2000, Associate Treasurer Lasana Mack signed a
    certification attesting to the authenticity of the signatures of Rosier and Robinson and
    to his own authority to execute the certification. The certification form states that
    “[i]f the client is a governmental entity, the entity’s counsel must sign this
    Certification.” Mr. Mack was not the District’s counsel or a lawyer. A clause in the
    referenced Treasury Booklet provides for services described therein to be arbitrated
    “in accordance with the United States Arbitration Act . . . under the Commercial
    Arbitration Rules of the American Arbitration Association” (AAA Rules). The trial
    court found that although the Authorization states “in small print” that the Client
    received a copy of the Authorization and Agreement for Treasury Services, there was
    no evidence that the Booklet was provided to Robinson and Rosier when they signed
    signature cards.
    In 2002, the Office of Contracting and Procurement for the Office of the Chief
    Financial Officer issued a request for proposals (RFP) for Controlled Disbursement
    10
    Account Services. The RFP required bidders to include in their proposals Paragraph
    8, “Dispute Resolution,” which provides:
    [i]f a dispute arises under or relates to the contract, a claim
    by the Contractor shall be made in writing and submitted
    to the Contracting Officer for a written decision. A claim
    by the District against the Contractor shall be subject to
    written decision by the Contracting Officer.[6]
    The RFP stated that the Contracting Officer was “the only official authorized to
    contractually bind the District” and that the Contract Administrator had “the
    responsibility of ensuring that the work conforms to the requirements of the contract.”
    The RFP also required that the Procurement Practices Act of 1985 (PPA) (
    D.C. Code § 2-301.01
     et seq. (2001)) (PPA) be incorporated by reference into the contract.
    6
    The RFP defines “claim” as
    a written demand or written assertion by one of the
    contracting parties seeking, as a matter of right, the
    payment of money in a sum certain, the adjustment or
    interpretation of contract terms, or other relief arising
    under or related to the contract. A claim arising under a
    contract, unlike a claim relating to that contract, is a claim
    that can be resolved under a contract clause that provides
    for the relief sought by the Claimant.
    11
    After a pre-bid conference attended by representatives from several banks,
    Bank of America submitted a Technical Proposal and Cost Proposal for the CDA
    contract. The Bank’s Cost Proposal included the required clauses described in the
    RFP. The Bank’s Technical Proposal included a Table of Contents that referenced
    an Agreements/Documentation section listing the following documents: (1) Terms
    and Conditions for Treasury Services; (2) Signature Card & Resolution; (3) Wire
    Transfer Form; (4) Automated Investment Service Agreement; (5) Bank of America
    Direct Profile; and (6) Electronic Pay Profile. It did not include a copy of the
    Treasury Services Terms and Conditions booklet.          Following a page entitled
    “Agreements/Documentation,” there were several blank forms, including
    Authorization and Agreement for Treasury Services, Authorization and Agreement
    Certification, Treasury Services Delegation of Authority, Business Signature Card,
    and a resolution for unincorporated associations, which, the Bank acknowledges, was
    included in error. A representative for the Bank testified that he intended that these
    documents become a part of the contract. The parties did not sign a contract at that
    time.
    On March 31, 2005, the Office of Contract Procurement issued an amendment
    to the original 2002 RFP and requested that the banks that had responded previously
    12
    provide their Best and Final Offers for the CDA. A Bank of America representative,
    Mr. Bianchi, testified that he was told to update only the Bank’s portion of the
    response; therefore, he updated the price proposal and included the same
    Agreements/Documentation section the Bank submitted previously. He also testified
    that he provided a copy of the Treasury Service Booklet in a separate packet with the
    intention that it would constitute additional terms of the contract. Mr. Bianchi signed
    the contract on behalf of the Bank, and on November 13, 2005, Ms. Angela Long
    Jiggets-Bazzi, a Contract Specialist, who worked in the Office of the Chief Financial
    Office, signed the contract. The 2005 contract includes the following language:
    “[t]he intent of this contract is for a contractor to manage the disbursement account
    in accordance with the published Request for Proposal.” This contract also contains
    a merger clause which reads: “[t]his contract, including specifically incorporated
    documents, constitutes the total and entire agreement of the parties. All previous
    discussions, writings and agreements are merged herein.”
    After execution of the 2005 contract, District employees signed a number of
    signature cards and authorizations to remove and add new signatories to the CDA.
    On March 6, 2006, after becoming the District’s OFT Treasurer, Mr. Mack signed an
    Authorization and Agreement for Treasury Services that states, in part, that the signer
    13
    has received the Treasury Services Booklet and agrees to adhere to its terms. Mr.
    Mack testified, however, that he thought he was simply opening two bank accounts
    and that he did not intend to modify the 2005 contract between the Bank and the
    District. That same day, the Chief of Staff for the Office of Finance and Treasury,
    Ulysses Glen, Jr., signed a form certifying that Mr. Mack’s signature was the “true
    signature of a person authorized to execute the form on behalf of the Client.” This
    certification form also states that for a governmental entity, its “counsel, or any other
    individual as permitted by the entity’s organizational documents” should sign. The
    trial court found that Mr. Glen was not a lawyer and that no evidence was introduced
    to demonstrate his authority to sign the document on behalf of the District.
    On April 17, 2006, Mr. Mack signed a signature card naming himself and two
    others as authorized signatories for various accounts with the Bank, including the
    CDA. This signature card stated that the signer was accepting the “Authorization”
    in the first part of the document that stated “[t]he deposit agreement we give you is
    part of your agreement with us regarding use of your account and tells you the current
    terms of our deposit accounts.” Mr. Mack also testified that he did not intend to
    modify the parties’ contract by signing the signature cards. The District exercised its
    option to extend the 2005 contract for one-year periods in October 2006, November
    14
    2007, and November 2008.
    B. The Trial Court’s Ruling
    The trial court found that the parties’ 2005 written contract governing dispute
    resolution and authority to modify the contract superseded “(1) any dispute resolution
    or forum selection clauses the Bank claims was previously agreed upon and (2) and
    any provision . . . which would allow other District officials to agree to arbitration in
    North Carolina (or elsewhere).”7 Thus, the court could not find, as the Bank urged,
    that the 2006 Authorization and Agreement for Treasury Service signed by the
    Deputy CFO/Treasurer was validly executed or that any signature cards signed after
    the 2005 contract bound the District to the forum selection provision in the 2008
    Deposit Agreement. The trial court declined to dismiss the claim asserted under the
    False Claims Act, reasoning that the PPA, which is incorporated into the 2005
    contract, makes the Superior Court the appropriate forum for claims under that Act.
    As an additional legal basis for concluding that the parties had no agreement to
    arbitrate in North Carolina, the trial court held that the PPA withheld from District
    7
    The trial court also found that the claims involved in the litigation fall within
    the scope of the arbitration and forum selection provisions set out in the Treasury
    Services Booklet and Deposit Agreement upon which the Bank relied.
    15
    officials the authority to agree to the arbitration and forum selection clauses in the
    documents relied upon by the Bank.
    III. Preliminary Issues
    A. Jurisdiction
    The question of this court’s jurisdiction was raised initially in an order to show
    cause why the appeal should not be dismissed as having been taken from a non-final
    order, which cited Calomiris, 
    supra,
     
    894 A.2d at 408
    , and Hercules & Co., 
    supra,
     
    592 A.2d at 1069
    . Subsequently, the court vacated the order to show cause, stating that
    “the Supreme court’s decision in Andersen LLP, 
    supra,
     
    129 S. Ct. at
    1896 may
    [a]ffect the applicability of Calomiris, 
    894 A.2d at 410
    ,” setting a briefing schedule,
    and directing the parties to discuss Andersen in their briefs. Appellant argues that
    Calomiris is not applicable to the present case and that Andersen and our case law
    support immediate appellate jurisdiction over appeals from denials of motions to
    compel arbitration. The District does not contend otherwise. Nevertheless, this court
    must be satisfied that it has jurisdiction. Therefore, we consider the jurisdictional
    questions raised by the motions panel.
    16
    The Bank argues that this court has jurisdiction because the appeal is from an
    order denying its motion to compel arbitration based on a written agreement that it
    contends governs the parties’ contractual relationship. Citing Andersen, 
    supra,
     
    129 S. Ct. at 1896
    , the Bank contends that such orders have been held to be final and
    immediately appealable under 
    9 U.S.C. § 16
     (a)(1)(A) of the Federal Arbitration Act
    and 
    D.C. Code § 11-721
     (a). In Andersen, the Supreme Court considered “whether
    appellate courts have jurisdiction under § 16 (a) [of the FAA] to review denials of
    stays by litigants who were not parties to the relevant arbitration agreement, and
    whether § 3 can ever mandate a stay in such circumstances.”8 Andersen, 
    129 S. Ct. at 1899
    . The District Court had denied petitioners’ demand for arbitration and
    request for a stay, and the Sixth Circuit dismissed their interlocutory appeal for lack
    8
    Section 16 (a)(1)(A) of the FAA provides that “[a]n appeal may be taken
    from . . . an order . . . refusing a stay of any action under Section 3 of this title.” 
    9 U.S.C. § 16
     (a)(1)(A) (2006). Section 3 provides, in pertinent part:
    If any suit or proceeding be brought in any of the courts of
    the United States upon any issue referable to arbitration
    under an agreement in writing for such arbitration, the
    court in which such suit is pending, upon being satisfied
    that the issue involved in such suit or proceeding is
    referable to arbitration under such an agreement, shall on
    application of one of the parties stay the trial of the action
    until such arbitration has been had in accordance with the
    terms of the agreement.
    
    9 U.S.C. § 3
     (2006).
    17
    of jurisdiction. 
    Id. at 1900
    . The Supreme Court reversed, holding that the Sixth
    Circuit had jurisdiction to review the denial of the § 3 stay and that a non-party to the
    arbitration agreement may invoke § 3 if the relevant state contract law permits him
    to enforce it. Id. at 1903. Pertinent to our jurisdictional question, the Supreme Court
    stated in Andersen:
    Ordinarily, courts of appeals have jurisdiction only over
    “final decisions” of district courts. 
    28 U.S.C. § 1291
    . The
    FAA, however, makes an exception to that finality
    requirement, providing that “an appeal may be taken from
    . . . an order . . . refusing a stay of any action under section
    3 of this title.” 
    9 U.S.C. § 16
     (a)(1)(A). By that
    provision’s clear and unambiguous terms, any litigant who
    asks for a stay under § 3 is entitled to an immediate appeal
    from denial of that motion — regardless of whether the
    litigant is in fact eligible for a stay. . . .
    . . . Jurisdiction over the appeal, . . . “must be determined
    by focusing upon the category of order appealed from,
    rather than upon the strength of the grounds for reversing
    the order.” Behrens v. Pelletier, 
    516 U.S. 299
    , 311, 
    116 S. Ct. 834
    , 
    133 L.Ed. 2d 773
     (1996). The jurisdictional
    statute here unambiguously makes the underlying merits
    irrelevant for even utter frivolousness of the underlying
    request for a § 3 stay cannot turn a denial into something
    other than “an order . . . refusing a stay of any action under
    section 3. 
    9 U.S.C. § 16
     (a).”
    
    Id. at 1900-01
    .
    18
    In the present case, the Bank demanded arbitration of the District’s claims
    under the FAA as provided for in written documents that it contends govern the
    parties’ relationship. Treating the Bank’s request as a motion to compel arbitration,
    the trial court denied the motion after an evidentiary hearing, concluding that the
    controlling contract did not provide for arbitration. The trial court concluded, inter
    alia, that a subsequent agreement superseded any prior agreement providing for
    arbitration and that later agreements were ineffectual because the signatories to them
    lacked authority to bind the District. With one exception, it also denied a stay of all
    claims, thereby allowing the unstayed claims to proceed in another forum (i.e., before
    the Contracting Officer and the Contract Appeals Board.) 9
    The Bank argues that, under Andersen, it is entitled to appellate review from
    the denial of its motion to compel arbitration and for a stay. Andersen supports the
    Bank’s argument. Here, the Bank relied upon a written agreement containing a
    provision for arbitration under the FAA, albeit one that the trial court found, after an
    evidentiary hearing, had been superseded by subsequent agreements. Whether the
    Bank can prevail ultimately on its argument that the agreement containing the
    9
    The trial court retained jurisdiction of only the fraud claim and stayed the
    action as to that claim.
    19
    arbitration provision controls goes to the merits of the controversy rather than the
    appellate court’s jurisdiction to adjudicate it. As the Supreme Court stated in
    Andersen, jurisdiction over the appeal is determined by the category of the order
    appealed from rather than the strength of the grounds for overturning it. Andersen,
    
    supra,
     129 U.S. at 1900. Thus, an appeal from the denial of the Bank’s motion to
    compel arbitration and stay the court’s denial of the motion would be immediately
    appealable under the FAA. See id. at 1900-01.
    Moreover, case precedents from this court also support our jurisdiction to
    review the denial of the Bank’s motion to compel arbitration. This court has
    exercised jurisdiction of an appeal from an order denying a motion to compel
    arbitration, concluding that it is a final order, appealable pursuant to 
    D.C. Code §11
    -
    721 (a)(1).10 See, e.g., 2200 M Street LLC v. . Mackell, 
    940 A.2d 143
    , 147 & 147 n.2
    (D.C. 2007) (citing 
    D.C. Code § 16-4317
     (a)(1)11 and Umana v. Swindler & Berlin,
    10
    
    D.C. Code § 11-721
     (a)(1) (conferring jurisdiction upon the D.C. Court of
    Appeals from “all final orders and judgments of the Superior Court of the District of
    Columbia”).
    11
    
    D.C. Code § 16-4317
     (a)(1) then provided that for purposes of appeal, an
    order denying an application to compel or stay arbitration was a final order. This
    section was a part of the Uniform Arbitration Act, 
    D.C. Code §§ 16-4301
    , -4319
    (DCUAA) that was repealed effective July 1, 2009. 55 DCR 1847 (Feb. 27, 2008).
    (continued...)
    20
    
    669 A.2d 717
    , 723 (D.C. 2005)) (other citation omitted). This court has also held that
    it had jurisdiction over the appeal of an interlocutory order denying a motion to
    compel arbitration under 
    D.C. Code § 11-721
     (a)(2)(A) because the order
    “‘frustrate[d] arbitration.’” Mausurovsky, supra note 11, 687 A.2d at 201 n.1
    (quoting Brandon v. Hines, 
    439 A.2d 496
    , 506-07 (D.C. 1981) and citing Umana,
    supra, 669 A.2d at 721 & n.11)). In Brandon, we concluded that an order denying
    a motion to confirm an arbitration award and requiring the parties to go to trial is an
    appealable interlocutory order dissolving an injunction under 
    D.C. Code § 11-721
    (a)(2)(A) (1973).12 Brandon, 
    439 A.2d at 500
    . In reaching this conclusion, this court
    found persuasive the Supreme Court’s opinion in Carson v. Am. Brands, Inc., 450
    11
    (...continued)
    The Revised Uniform Act also provides that an appeal may be taken from “[a]n order
    denying or granting a motion to compel arbitration.” 
    D.C. Code § 16-4427
     (a)(1)
    (2001). This court has not resolved the question of the validity of the apparent
    jurisdictional grant by the Council to this court under the DCUAA or the Revised
    Uniform Act. See Masurovsky v. Green, 
    687 A.2d 198
    , 201, n.1 (D.C. 1996)
    (declining to decide the issue because of jurisdiction to review an interlocutory order
    under 
    D.C. Code § 11-721
     (a)(2)(A)); Umana, supra, 699 A.2d at 722 (holding that
    “the DCUAA does not attempt to confer jurisdiction upon this court under the
    circumstances of this case,” and therefore, it need not decide whether 
    D.C. Code § 16-4317
     is consistent with the Home Rule Act).
    12
    
    D.C. Code § 11-721
     (a)(2)(A) confers jurisdiction upon the District of
    Columbia Court of Appeals from interlocutory orders of the Superior Court “granting,
    continuing, modifying, refusing, or dissolving or refusing to dissolve or modify
    injunctions.” This section remains unchanged in the 2001 edition of the Code.
    
    21 U.S. 79
    , 90 (1981), interpreting the federal interlocutory appeals statute that has
    language virtually identical to our local statute.13 Brandon, 
    439 A.2d at 509
    . This
    court observed in Brandon that the trial court’s order, if entered by a federal court,
    would have been “an appealable interlocutory order ‘dissolving’ an ‘injunction’ under
    
    28 U.S.C. § 1292
     (a)(1).” 
    Id.
     Thus, we concluded that “denials — but not grants —
    of stays of litigation pending arbitration are appealable interlocutory orders, since
    only orders that frustrate (in contrast with facilitate) arbitration impose a sufficiently
    serious injury to justify an immediate appeal.” 
    Id. at 506-07
    .14
    It was this court’s decision in Calomiris, 
    supra,
     that prompted the motions
    panel to raise the jurisdictional question. In Calomiris, this court dismissed for lack
    of jurisdiction an appeal from an order denying summary judgment to one of four
    trustees who argued that the trust instrument required that disputes over
    administration of the trust be resolved by arbitration. Calomiris, 
    894 A.2d at 408, 411
    . Appellant argued that this court had jurisdiction because the order appealed
    13
    The federal appellate jurisdictional statute referenced was 
    28 U.S.C. § 1292
    (a)(1) (1976).
    14
    Under § 16-4427 of the current Revised Arbitration Act, “[a]n appeal may
    be taken from . . . An order denying or granting a motion to compel arbitration”
    (italics added).
    22
    from was either (1) a final appealable order under 
    D.C. Code § 16-4317
     (i.e., an order
    denying a motion to compel arbitration), or (2) an appealable interlocutory order
    under Brandon, 
    supra,
     
    439 A.2d at 507
     (i.e., one that frustrates the arbitration
    process). Calomiris, 
    894 A.2d at 408-09
    . In Calomiris, we rejected the statutory
    argument because the arbitration provision at issue was established by Will, and not
    by contract as required for applicability of the statute.15 
    Id. at 409-10
    . Thus, this
    court held in Calomiris that the will that contained the arbitration provision was not
    a contract within the meaning of the District’s Uniform Arbitration Act. 
    Id. at 410
    .
    Similarly, the court determined that the interlocutory order rule of Brandon v. Hines
    presupposed that the parties agreed by contract to arbitration, and therefore the rule
    was inapplicable to the facts presented. Calomiris, 
    894 A.2d at 410
    .
    The condition precedent found lacking in Calomiris is present in this case.
    Here, the Bank does rely upon a written contract containing an arbitration provision.
    Although the trial court found that this contract was superseded by another agreement
    15
    
    D.C. Code § 16-4317
     (a)(1) provided that for purposes of appeal, certain
    orders shall be deemed final, including “[a]n order denying an application to compel
    arbitration made under section 16-4302.” Proceedings to compel or stay arbitration
    under §16-4302 required a showing of an agreement as described in § 16-4301. (See
    note 9, supra). Calomiris, 
    supra,
     
    894 A.2d at 409
    . The court concluded that a Will
    establishing a trust is not a written agreement or contract. 
    Id.
    23
    between the parties that does not provide for arbitration, such a merits determination
    cannot foreclose appellate review of the trial court’s decision. See Andersen, 
    supra,
    129 S. Ct. at 1900
    . Otherwise, the trial court’s determination that the contract with
    the arbitration clause was superseded and does not govern the dispute would
    effectively foreclose appellate review. Nothing in Calomiris requires such a result.
    For all of these reasons, we are satisfied that this court has jurisdiction of this appeal.
    See Mackell, supra, 940 A.2d at 147 n.2 (holding that denial of a motion to compel
    arbitration is a final appealable order allowing this court to exercise jurisdiction
    pursuant to 
    D.C. Code § 11-721
    ); see also Andersen, 
    supra,
     
    129 S. Ct. at 1900-01
    (holding that the FAA provides for an immediate appeal of an order refusing a stay
    under the Act as determined by the category of the order appealed from rather than
    the strength of the grounds for reversal).
    B. Forum Challenge
    The Bank argues that the trial court erred in resolving the District’s objections
    to the existence, scope or validity of the parties’ arbitration agreement. It contends
    that, under applicable law, these issues are for the arbitrator; therefore, the trial court
    erred in denying its motion to compel arbitration. The District responds that its
    24
    challenges to the arbitration clause itself and to the validity of the post-2005 contracts
    based on whether the person lacked authority to bind the District are properly
    resolved by the court.16
    16
    The District also argues that the Bank is judicially estopped from contending
    in this court that it was for the arbitrator to decide the validity and scope of the
    arbitration agreement because it affirmatively asserted a contrary position in the trial
    court. The Bank responds that the judicial estoppel rule does not apply because its
    position on appeal is not clearly inconsistent with the one it maintained in the trial
    court.
    “The doctrine of judicial estoppel precludes a party from taking one position
    on an issue in the trial court and the opposite position on appeal.” Fairman v. District
    of Columbia, 
    934 A.2d 438
    , 443 (D.C. 2007) (citations omitted). It is an equitable
    doctrine intended to protect the judicial process from improper use. New Hampshire
    v. Maine, 
    532 U.S. 742
    , 751-52 (2001) (citations omitted). Factors required for
    application of the doctrine include: (1) a clear inconsistency between the party’s
    earlier position and later one; (2) success in asserting the prior position thereby
    creating the perception that one of the courts was misled; and (3) the realization of
    an unfair advantage by one party or the imposition of an unfair detriment to the
    opposing party. 
    Id. at 752
     (citations omitted).
    The record supports the Bank’s claim that the position it took in the trial court
    is not clearly inconsistent with the position it asserts on appeal. First, the District
    concedes that the Bank maintained in the trial court, as it does on appeal, that a
    challenge to the validity of the contract as a whole was for the arbitrator. Second, the
    record shows that the Bank argued that the arbitrator, not the court, had the authority
    to determine whether the District’s claims are arbitrable. It contended that all the
    District’s claims are subject to arbitration and therefore, the trial court should dismiss
    them or stay the action and direct the parties to proceed to arbitration. Finally, as the
    Bank points out, it was not successful in advancing these positions in the trial court.
    For these reasons, we agree that the judicial estoppel rule is not applicable here.
    25
    We start with the basic principle that “arbitration is simply a matter of contract
    between the parties; it is a way to resolve those disputes — but only those disputes
    — that the parties have agreed to submit to arbitration.” First Options of Chicago,
    Inc. v. Kaplan, 
    514 U.S. 938
    , 943 (1995); accord, Sandvik AB v. Advent Int’l. Corp.,
    
    220 F.3d 99
    , 105 (3d Cir. 2000) (citation omitted) (noting that a party cannot be
    required to submit to arbitration when he has not agreed to do so because arbitration
    is a matter of contract). Generally, in deciding whether the parties agreed to
    arbitration, the courts apply ordinary state-law contract principles. First Options, 
    514 U.S. at 944
     (citations omitted). This general rule is subject to qualification when
    deciding whether the parties have agreed to have the arbitrator decide the question
    of arbitrability. 
    Id.
     With respect to this issue, the Supreme Court has admonished
    that “[c]ourts should not assume that the parties agreed to arbitrate arbitrability unless
    there is ‘clea[r] and unmistakabl[e]’ evidence that they did so.” 
    Id.
     (quoting AT & T
    Technologies, Inc. v. Communications Workers, 
    475 U.S. 643
    , 649 (1986)).
    Challenges to arbitration agreements may be directed to the validity of the
    arbitration clause itself or to the contract as a whole. Buckeye Check Cashing v.
    Cardegna, 
    546 U.S. 440
    , 444 (2006). Guided by § 4 of the FAA, the Supreme Court
    has held that a challenge to the making of the arbitration agreement itself is properly
    26
    resolved by court, while a challenge to the validity of the contract as a whole is for
    the arbitrator.17 Prima Paint Corp. v. Flood & Conklin Mfg. Co., 
    388 U.S. 395
    , 402
    (1967) (holding that it is for the federal court to adjudicate a claim of fraud in the
    inducement of the arbitration clause itself, but not claims of fraud in the inducement
    of the contract as a whole); Keeton v. Wells Fargo Corp., 
    987 A.2d 1118
    , 1122 (D.C.
    2010) (holding that a claim that the arbitration clause is unconscionable disputes its
    validity and is for the court, not the arbitrator, to decide). More recently, in Buckeye,
    the Supreme Court summarized these principles, as extracted from its precedents, that
    are pertinent to the issue presented here.
    First, as a matter of substantive federal arbitration law, an
    arbitration provision is severable from the remainder of the
    contract. Second, unless the challenge is to the arbitration
    clause itself, the issue of the contract’s validity is
    17
    Section 4 of the FAA provides in pertinent part:
    A party aggrieved by the alleged failure, neglect, or
    refusal of another to arbitrate under a written agreement for
    arbitration may petition any United States district court
    . . . for an order directing that such arbitration proceed in a
    manner provided for in such agreement . . . . [U]pon being
    satisfied that the making of the agreement for arbitration or
    the failure to comply therewith is not in issue, the court
    shall make an order directing the parties to proceed to
    arbitration in accordance with the terms of the
    agreement . . . .
    27
    considered by the arbitrator in the first instance. Third, this
    arbitration law applies in state as well as federal courts.
    Buckeye, 
    546 U.S. at
    445-46 (citing Prima Paint, 
    388 U.S. at
    403 and 404 and
    Southland Corp. v. Keating, 
    465 U.S. 1
     (1984))18 (emphasis added). With these
    principles in mind, we review the parties’ respective arguments.
    The Bank asserts that the arbitration clause in the Treasury Booklet that
    incorporates by reference the AAA Commercial Arbitration Rules requires the parties
    to submit the arbitrability question itself to arbitration. Specifically, the Bank cites
    Rule R-7 that provides:
    (a) The arbitrator shall have the power to rule on his or her
    own jurisdiction, including any objections with respect to
    the existence, scope or validity of the arbitration
    agreement.
    (b) The arbitrator shall have the power to determine the
    18
    In Southland, supra, the Supreme Court held that the FAA created a body
    of federal substantive law applicable in state and federal courts, and it rejected the
    notion that, even for state law claims in state court, state-law could bar enforcement
    of § 2 of the FAA. 
    465 U.S. at 10-14
    . Section 2 provides that a written provision in
    a contract to settle or submit to arbitration a controversy arising out of it “shall be
    valid, irrevocable, and enforceable, save upon such grounds as exist at law or in
    equity for the revocation of any contract.” 
    9 U.S.C. § 2
    .
    28
    existence or validity of a contract of which an arbitration
    clause forms a part. Such arbitration clause shall be treated
    as an agreement independent of the other terms of the
    contract. A decision by the arbitrator that the contract is
    null and void shall not for that reason alone render invalid
    the arbitration clause.
    Commercial Arbitration Rule R-7. The Bank argues that incorporation of these rules
    into the contract show “clearly and unmistakably” that the parties intended for the
    arbitrator to decide the issue of arbitrability. See First Options, 
    supra,
     
    514 U.S. at 944
     (requiring that the parties’ intention for the arbitrator to decide arbitrability be
    shown “clearly and unmistakably”). In support of its position, the Bank relies
    primarily upon the Supreme Court’s decision in Rent-A-Center, West, Inc. v. Jackson,
    
    130 S. Ct. 2772
     (2010). This case does not support the Bank’s position that the issue
    of arbitrability is for the arbitrator.
    The issue in Rent-A-Center was whether under the FAA, a district court may
    decide a challenge to a contract as unconscionable where the agreement expressly
    delegated that authority to the arbitrator. Rent-A-Center, supra, 
    130 S. Ct. at 2775
    .
    Respondent Jackson had sued his former employer, Rent-A-Center, for
    discrimination, but as a condition of employment, he had signed an agreement that
    precluded him from pursuing his claims in court. 
    Id. at 2775
    . The agreement gave
    29
    the arbitrator the exclusive authority to resolve any dispute concerning the
    enforceability of the agreement.19 
    Id.
     The District Court granted Rent-A Center’s
    motion to compel arbitration, but a divided panel of the Ninth Circuit reversed in part,
    holding that “the threshold question of unconscionability is for the court.” 
    Id.
    (quoting Jackson v. Rent-A-Center West, Inc., 
    581 F.3d 912
    , 917 (9th Cir. 2009)).
    The Supreme Court reversed, holding that, absent a specific challenge to the
    arbitration provision itself, the court must treat this delegation provision as valid
    under § 2 of the FAA and leave the challenge to the validity of the agreement as a
    whole to the arbitrator.20 Id. at 2779. Thus, Rent-A-Center suggests a different
    outcome had petitioner preserved a specific challenge to the provision delegating
    arbitrability to the arbitrator. See id. at 2779-80; see also Prima Paint, 
    supra,
     
    388 U.S. at 403-04
    ; Keeton, 
    supra,
     
    987 A.2d at 1122
    .
    Unlike petitioner in Rent-A-Center, the District directs one of its challenges to
    19
    The agreement provided that “[t]he Arbitrator, and not any federal, state, or
    local court or agency, shall have exclusive authority to resolve any dispute relating
    to the interpretation, applicability, enforceability or formation of this Agreement
    including, but not limited to any claim that all of any part of the Agreement is void
    or voidable” Rent-A-Center, supra, 
    130 S. Ct. at 2775
    .
    20
    Petitioner challenged specifically the delegation provision for the first time
    in the Supreme Court, and therefore, the Court would not consider it. Rent-A-Center,
    supra, 
    130 S. Ct. at 2781
    .
    30
    the validity of the arbitration clause itself. The District argues that it never entered
    an agreement to arbitrate any contract-related dispute because no authorized agent for
    the District had authority to sign such an agreement. Therefore, the District’s
    reliance upon Rent-A-Center is well-placed. In Rent-A-Center, supra, the Supreme
    Court stated that where a party challenges the agreement to arbitrate at issue under
    § 2 of the FAA, then the court must decide the issue. Id. at 2778. Many appellate
    courts, including this court, have held that it is for the court, rather than an arbitrator,
    to decide the validity of the arbitration clause. See Keeton, 
    supra,
     
    987 A.2d at
    1122
    (citing Hercules & Co. v. Shama Rest. Corp., 
    566 A.2d 31
    , 39 (D.C. 1989);
    Nagrampa v. MailCoups, Inc., 
    469 F.3d 1257
    , 1263-64 (9th Cir. 2006) (en banc); and
    Burden v. Check Into Cash of Ky. LLC, 
    267 F.3d 483
    , 491 (6th Cir. 2001)) (holding
    that it was for the court to decide the validity of an arbitration clause itself in a form
    contract.). Likewise, in the present case, it was for the court to determine whether the
    District, through authorized agents, ever agreed to be bound by the arbitration
    provision. Unless the District agreed to arbitration, it cannot be forced to have its
    dispute, including questions of arbitrability, heard in a private forum. Therefore, the
    trial court properly considered in the first instance the District’s challenge to the
    arbitration provision under the circumstances presented here.
    31
    The Bank also argues that, insofar as the District’s position is that the
    agreement containing the arbitration provision is superseded by subsequent
    agreements, its challenge is to the contract as a whole, and therefore, must be resolved
    by the arbitrator. It contends that to the extent that the trial court relied upon the
    merger clause in the 2005 contract to invalidate the 2000 Corporate Resolution
    authorizing various District employees to act on its behalf, “it impermissibly operates
    to invalidate the underlying Treasury Booklet and Deposit Agreement as a whole and,
    therefore, the issue of contract validity should have been submitted to arbitration.”
    The District responds that because the validity of the post-2005 contracts that the
    Bank alleges the District entered turns on whether the person who signed lacked
    authority to bind the District, resolution by the court is appropriate.
    For this argument, the Bank relies upon cases holding that challenges to the
    validity of the contract as a whole are for the arbitrator to decide. These include:
    Buckeye, supra, 
    546 U.S. at 449
     (reaffirming that in both federal and state courts, “a
    challenge to the validity of the contract as a whole, and not specifically to the
    arbitration clause, must go to the arbitrator.”); Rent-A-Center, supra, 
    130 S. Ct. at 2779
     (requiring for court intervention that the challenge be directed to the agreement
    to arbitrate itself and leaving the challenge to the agreement as a whole to the
    32
    arbitrator); Prima Paint Corp., supra, 
    388 U.S. at 403-04
     (challenges to the
    arbitration agreement itself go to the court, while challenges to the entire contract of
    which arbitration is a part are for the arbitrator); see also Menna v. Plymouth Rock
    Assurance Corp., 
    987 A.2d 458
    , 465 n.30 (D.C. 2010) (noting that the validity of the
    contract with an arbitration clause is for the arbitrator unless the challenge is directed
    specifically to the validity of the arbitration clause itself under the District’s Revised
    Uniform Arbitration Act).21 The Bank contends that resisting arbitration on the
    ground that the agreement in which the arbitration provision is found is superseded
    by later agreements is tantamount to contesting the contract as whole, and thus, the
    principle from the cases it cites applies to require consideration by the arbitrator.
    The District acknowledges the general principles extracted from these cases.
    However, it contends that where the issue turns on whether the person who signed the
    contract lacked authority to commit the principal, judicial review is appropriate, a
    point referenced in Buckeye, supra, which the District cites. In Buckeye, the Supreme
    Court considered whether a court or an arbitrator should decide the claim that the
    contract containing an arbitration provision was void because it violated state lending
    and consumer-protection laws. Buckeye, 
    546 U.S. at 442
    . Reversing the Florida
    21
    
    D.C. Code §§ 16-4401
     to -4432 (Supp. 2009).
    33
    Supreme Court, the Court held that this challenge to the validity of the contract as a
    whole was for the arbitrator. 
    Id. at 446
    . While reaffirming this general principle and
    finding it to be applicable in Buckeye, the Supreme Court also stated that
    [o]ur opinion . . . does not speak to the issue decided in the
    cases . . . which hold that it is for the courts to decide
    whether the alleged obligor ever signed the contract, . . .
    [or] whether the signor lacked authority to commit the
    alleged principal, Sandvik AB v. Advent Int’l Corp., 
    220 F.3d 99
     (C.A. 3 2000);[22] Sphere Drake Ins. Ltd. v. All Am.
    Ins. Co., 
    256 F.3d 587
     (C.A. 7 2001))[23] . . . .
    Buckeye, 
    546 U.S. at
    444 n.1. This is the essence of the District’s challenge here. It
    contends that it never agreed to arbitration because its 2005 contract did not provide
    22
    In Sandvik, the Third Circuit affirmed the District Court’s denial of a motion
    to compel arbitration where the other party claimed that the agent who signed the
    agreement lacked authority to sign it and so notified Sandvik. Sandvik, 
    supra,
     
    220 F.3d at 101
    . The court held that when the very existence of the agreement was
    disputed, the district court properly refused to order arbitration until it resolved the
    threshold question of whether the arbitration agreement exists. 
    Id. at 111
    .
    23
    In Sphere Drake, the Seventh Circuit held that whether a broker had
    authority to bind Sphere Drake on reinsurance contracts containing an arbitration
    provision was appropriate for resolution by the court. Sphere Drake, 
    supra,
     
    256 F.3d at 592
    . The court distinguished the Supreme Court’s decision in Prima Paint in
    which the Supreme Court held that it was for the arbitrator to resolve a claim of fraud
    in the inducement of the contract. 
    Id. at 590
    . It noted that in Prima Paint, the parties
    actually reached an agreement, while in Sphere Drake, whether there ever was an
    agreement was the issue, and arbitration is contractual. 
    Id. at 590-91
    .
    34
    for it and none of its employees were authorized to bind the District to arbitration.
    Thus, we conclude that the trial court was the proper forum in which to determine
    whether the District, through its duly authorized agent, ever agreed to arbitration.
    IV. Merits Analysis
    A. Standard of Review and Generally Applicable Legal Principles
    The court reviews de novo an order denying a motion to compel arbitration.
    Fleetwood Enter. Inc. v. Gaskamp, 
    280 F.3d 1069
    , 1073 (5th Cir. 2002) (citing Webb
    v. Investacorp, Inc., 
    89 F.3d 252
    , 257 (5th Cir. 1996)); see also Mausurovsky, supra
    note 11, 
    687 A.2d at 202
     (citation omitted) (reviewing denial of a motion to compel
    arbitration under the de novo standard). When the trial court sits as the trier of fact,
    we review its factual findings under the “clearly erroneous” standard. Psaromatis v.
    English Holdings, I, L.L.C., 
    944 A.2d 472
    , 481 (D.C. 2008) (citations omitted). We
    accord the trial court’s factual findings considerable deference, and we will not
    reverse them unless plainly wrong or without evidentiary support. 
    Id.
     (citing 
    D.C. Code § 17-305
     (a) (2001)) (providing that for non-jury cases, “the judgment may not
    be set aside except for errors of law unless it appears that the judgment is plainly
    35
    wrong or without evidence to support it.”). Thus, when the facts lend themselves to
    more than one interpretation, this court defers to the trial court’s judgment. Davis v.
    United States, 
    564 A.2d 31
    , 35 (D.C. 1989) (en banc) (citations omitted). This court
    reviews the trial court’s legal conclusions de novo. Chibs v. Fisher, 
    960 A.2d 588
    ,
    589 (D.C. 2008) (citing 
    D.C. Code § 17-305
     (2001)).
    In reviewing a decision to compel arbitration under the Federal Arbitration Act,
    we consider first whether the parties had an agreement to arbitrate the dispute.
    Fleetwood Enter., 
    supra,
     
    280 F.3d at
    1073 (citing Mitsubishi Motors Corp. v. Soler
    Chrysler-Plymouth, Inc., 
    473 U.S. 614
    , 62 (1985)) (citation omitted). We make this
    determination based on ordinary state-law contract principles. 
    Id.
     (citing First
    Options of Chicago, 
    supra).
     The FAA does not require parties to arbitrate a dispute
    unless they have agreed to do so. Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland
    Stanford Junior Univ., 
    489 U.S. 468
    , 478 (1989). If it is determined that the parties
    had a valid agreement to arbitrate, then we consider next whether the parties’ dispute
    falls within the scope of their agreement. Fleetwood Enter., 
    280 F.3d at
    1073 (citing
    Webb v. Investacorp, 
    89 F.3d 252
    , 258 (5th Cir. 1996)).
    The Bank argues that, in performing our de novo review, we must consider the
    36
    national policy favoring arbitration. However, as the District points out, “th[e]
    federal policy favoring arbitration does not apply to the determination of whether
    there is a valid agreement to arbitrate between the parties; instead ‘[o]rdinary contract
    principles determine who is bound.’” Fleetwood Enter., supra, 
    280 F.3d at 1073
    (quoting Daisy Mfg. Co., Inc. v. NCR Corp., 
    29 F.3d 389
    , 392 (8th Cir. 1994)) (other
    citation omitted); see also Granite Rock Co. v. Int’l Bd. of Teamsters, 
    130 S. Ct. 2847
    , 2859-60 (2010) (holding the presumption in favor of arbitration applicable only
    “where it reflects, and derives its legitimacy from, a judicial conclusion that
    arbitration of a particular dispute is what the parties intended because their express
    agreement to arbitrate . . . [is] best construed to encompass the dispute.”); accord,
    Masurovsky, supra note 11, 
    687 A.2d at 205
    . In Masurovsky, this court rejected an
    argument similar to the Bank’s argument here, concluding that the “initial
    determination whether a ‘valid arbitration agreement’ exists must be determined apart
    from the presumption [in favor of arbitration.]” 
    Id.
     In reaching this conclusion, we
    relied upon the Supreme Court’s reiteration of the principle that in deciding whether
    parties have agreed to arbitrate, courts should generally apply state law contract
    principles and its omission of any suggestion that these principles should be
    superseded by the federal presumption. 
    Id.
     (citing First Options of Chicago, 
    supra,
    514 U.S. at 938
    ). Consistent with these established principles, we conclude here that
    the presumption in favor of arbitration attaches only after the court finds initially that
    37
    a valid agreement to arbitrate exists. 
    Id.
     With these principles in mind, we turn to
    consideration of whether the parties agreed to arbitrate the dispute.
    B. Contract Issues
    The Bank argues that it had a contractual agreement with the District to
    arbitrate claims in North Carolina. It contends that officials in the Office of the Chief
    Financial Officer (OCFO) agreed to the terms set forth in its Treasury Services
    Booklet which included a provision for arbitrating disputes related to the Controlled
    Disbursement Account. On appeal, the District argues, as it did in the trial court, that
    there was no agreement to arbitrate contract or fraud claims because OCFO
    employees lacked actual authority to enter such agreements by reason of provisions
    in the PPA. The trial court agreed with the District’s position, ruling that at the times
    relevant to the controversy, OCFO officials lacked the authority under the PPA to
    agree to arbitration in North Carolina. Further, the trial court concluded that the 2005
    contract incorporating the PPA evidenced the parties’ intent to adhere to the PPA in
    its dealings with the Bank. The court also found that the 2005 contract provisions
    governing dispute resolution and authority to modify the contract superseded any
    dispute resolution or forum selection clauses previously agreed upon by the parties.
    The Bank challenges each of these rulings.
    38
    1. Scope of Authority of OCFO Employees
    Contrary to the trial court’s ruling and the District’s position, the Bank argues
    that the OCFO was authorized to agree to arbitrate the District’s claims. The District
    responds that its employees, including those in the OCFO, who were bound by the
    PPA, lacked authority to agree to arbitrate contract claims and claims involving
    fraud.24
    The District relies for its argument principally upon the PPA statute and this
    court’s decision in District of Columbia v. Greene, 
    806 A.2d 216
     (D.C. 2002), in
    which this court addressed a similar issue. In Greene, Verizon South claimed that it
    had an agreement with the District to submit contract disputes to arbitration, while
    the District claimed that it did not because it could not agree to arbitration under the
    PPA. Greene, 
    806 A.2d at 218
    . In determining whether to enjoin arbitration until the
    matter was resolved by the Contract Appeals Board (CAB), this court construed
    applicable provisions of the PPA and determined that the District was likely to prevail
    on the merits of its argument that its employees could not agree to arbitration under
    that PPA. 
    Id. 220-22
    . In reaching this conclusion, this court observed that the PPA
    24
    For purposes of this appeal, the District does not contend that its contracting
    officers lack authority to agree to arbitration as a general proposition.
    39
    plainly established the CAB as the exclusive hearing tribunal for determining the
    contract claims at issue in the case. 
    Id. at 220
    . The court found persuasive the
    following provisions of the PPA, which are relevant to the issues we address here:
    
    D.C. Code § 2-308.03
     (a)(1) states that . . . “[a]ll claims by
    the District government against a contractor arising under
    or relating to a contract shall be decided by the contracting
    officer . . . .” In like fashion § 2-308.05 (a) provides that
    “[a]ll claims by a contractor against the District
    government arising under or relating to a contract shall be
    . . . submitted to the contracting officer for a decision.” In
    § 2-309.03(a), the statute goes on to declare that “[t]he
    [Contract Appeals] Board shall be the exclusive hearing
    tribunal for, and shall have jurisdiction to review and
    determine de novo: . . . (2) Any appeal by a contractor from
    a final decision by the contracting officer on a claim by a
    contractor, when such claim arises under or relates to a
    contract; and (3) Any claim by the District against a
    contractor, when such claim arises under or relates to a
    contract.”
    Greene, 
    806 A.2d at
    220 (citing the quoted sections).
    Interpreting these and other provisions of the PPA, this court concluded in
    Greene that the PPA, in effect, withheld from the District’s contracting officers the
    power to agree to arbitration by specifying the manner in which the District may
    40
    procure property, supplies and services 25 and designating the CAB as the sole hearing
    tribunal for resolution of contract disputes. Greene, 
    806 A.2d at 222
    . Also pertinent
    to the court’s decision, under local contract law, a contracting officer cannot obligate
    the District to terms that exceed his or her actual authority. 
    Id.
     at 222 (citing Coffin
    v. District of Columbia, 
    320 A.2d 301
    , 303 (D.C. 1974)). Thus, here, as in Greene,
    District employees or entities subject to the PPA would have had no authority to
    agree to a dispute resolution procedure different than the one specified by law. The
    general rule is that persons contracting with a municipal corporation must take notice
    of the nature and extent of its agent’s authority. 
    Id.
     at 222 and 222 n.7 (citing
    Chamberlain v. Barry, 
    606 A.2d 156
    , 159 (D.C. 1992), and Coffin, 
    320 A.2d at 303
    (quoting 10 McQuillan Municipal Corporations § 29.04 at 219-22 (3d ed. 1966)).
    Thus, the Bank was bound to note any statutory limitation on the authority of those
    in the District with whom it contracted.
    To counter these authorities, the Bank argues that there is no statutory
    provision specifically precluding the OCFO from agreeing to arbitrate.             This
    argument was made and rejected in Greene. As this court explained in that case, this
    “argument is difficult, if not impossible, to square with the language of § 2-309.03
    25
    See 
    D.C. Code § 2-301.01
    .
    41
    (a) making the CAB ‘the exclusive hearing tribunal’ for claims of the kind
    enumerated.” Greene, 
    806 A.2d at 220
     (citation omitted). Thus, contracting officers
    who were bound by the PPA did not have authority to agree to resolve contract
    disputes in another forum in another state.
    We find unpersuasive the Bank’s assertion that Greene is not supportive of the
    District’s position because it involved consideration of injunctive relief rather than
    a decision on the merits of the claim. In determining whether to grant this
    extraordinary remedy, the court had to decide whether there was a substantial
    likelihood that the moving party would prevail on the merits. See Greene, 
    supra,
     
    806 A.2d at
    219-20 (citing District of Columbia v. Grp. Ins. Admin., 
    633 A.2d 2
    , 21 (D.C.
    1983) (quoting Wieck v. Sterenbuch, 
    350 A.2d 384
    , 387 (D.C. 1976)). This required
    the court to address squarely the same question raised here, i.e., whether the PPA
    withheld authority from its contracting officers to agree to arbitration. In doing so, the
    court had to construe the PPA statute before deciding whether the District was likely
    to prevail on its claim. Thus, we agree that Greene is good authority for the District’s
    position here. Moreover, we are persuaded by its statutory analysis of the issue.
    Next, the Bank argues that the OCFO is exempt from PPA provisions regarding
    contracting authority. It contends that 
    D.C. Code § 2-301.04
     (a) and subsequent
    42
    Congressional enactments confirm the independent authority of the OCFO to contract
    and therefore to agree to arbitration.26 The District responds with authorities
    supporting its claim that the OCFO has always been bound by the PPA.
    The section of the Code upon which the Bank relies for its exemption argument
    reads in pertinent part as follows:
    . . . [the PPA] shall apply to all departments, agencies,
    instrumentalities, and employees of the District
    government . excluding . . ., and (to the extent described in
    § 1-204.26) the Office of the Chief Financial Officer of the
    District of Columbia . . . .
    
    D.C. Code § 2-301.04
     (a) (2001) (“2005 exemption”).27 However, as the District
    points out, § 2-301.04 (a)’s exemption is subject to the limitation forth in § 1-204.26.
    Although § 1-204.26 provided for the CFO to carry out procurement of goods and
    services for the OCFO through an office independent of the Chief Procurement
    26
    The Congressional actions referenced by the Bank are: District of Columbia
    Appropriations Act, 2006, 109 Pub. L. No. 115, § 132, 
    119 Stat. 2508
    , 2522 (2005);
    Continuing Appropriation Resolution 2007, Pub. L. No. 109-289, § 127(b), 
    120 Stat. 1311
    , 1316 (2006); H.J. Res. 100, 109 Pub. L. No. 369, 
    120 Stat. 2642
     (2006); H.J.
    Res. 102, 109 Pub. L. No. 383, 
    120 Stat. 2678
     (2006).
    27
    This provision was repealed effective April 8, 2011. D.C. Law 18-371,
    § 1201(a).
    43
    Officer (CPO), it made the OCFO subject to the same procurement provisions
    applicable to the CPO. See 
    D.C. Code § 1-204.26.28
     Thus, while § 2-301.04 (a)
    provided the OCFO with independent contracting authority, it made it subject to the
    PPA’s procurement provisions to the same extent as the CPO. The Bank argues that
    such an interpretation would render the exclusion in § 2-301.04 (a) meaningless,
    contrary to the rule of statutory construction requiring that effect be given to each
    statutory provision, absent express legislative intent to the contrary. It contends that
    to give effect to both statutes, §1-204.26 must be interpreted to authorize the OCFO
    to procure goods and services independent from the PPA except when its
    procurement is carried out by the OCFO’s Chief Procurement Officer.29
    28
    
    D.C. Code § 1-204.26
     provides in pertinent part as follows:
    The Chief Financial Officer shall carry out
    procurement of goods and services for the Office
    of the Chief Financial Officer through a
    procurement office or division which shall operate
    independently of, and shall not be governed by, the
    Office of Contracting and Procurement . . . or any
    successor office, except the provisions applicable
    under such unit to procurement carried out by the
    Chief Procurement Officer established by § 2-
    301.05 or any successor office shall apply with
    respect to the procurement carried out by the
    Chief Financial Officer’s procurement office or
    division. (Emphasis added.)
    29
    The Bank relies upon the September 25, 2000 and March 6, 2006 TSB
    Authorizations because they were not carried out by OCFO’s Chief Procurement
    (continued...)
    44
    We have no quarrel with the Bank’s recitation of the rule of statutory
    construction;30 however, its application of the rule here is flawed. Both § 2-301.04
    (a) and § 1-204.26, referenced therein, can be given effect without one defeating the
    purpose of the other. While § 2-301.04 (a) provided for independent contracting
    authority for the OCFO, § 1-204.26 simply required that in exercising that authority,
    the OCFO adhere to the same statutory procurement requirements by which the
    District’s CPO was bound. This interpretation, persuasively urged by the District, is
    consistent with the plain meaning of the statutes. See Boyle v. Giral, 
    820 A.2d 561
    ,
    568 (D.C. 2003) (setting forth the principle that we look first to the plain meaning of
    a statute in interpreting it, read in light of the statute as a whole) (citation omitted).
    There is nothing in the statute that suggests, as the Bank contends, that District
    officials in the OCFO’s Office of Finance and Treasury, as opposed to those in the
    Procurement Office, were at liberty to ignore the requirements of the PPA.31 In any
    29
    (...continued)
    Officer.
    30
    See Detweiler v. Pena, 
    38 F.3d 591
    , 594 (D.C. Cir. 1994) (quoting Morton
    v. Mancari, 
    417 U.S. 535
    , 551 (1974) (“When two statutes are capable of co-
    existence, it is the duty of the courts, absent a clearly expressed congressional
    intention to the contrary, to regard each as effective.”)); see also Abadie v. District
    of Columbia, 
    843 A.2d 738
    , 742 (D.C. 2004) (stating that “[i]f related statutes
    conflict, we must reconcile them”). (Citation omitted).
    31
    The 2000 and 2006 TSB Authorizations were executed by District Officials
    in the OCFO’s Office of Finance and Treasury, acting under a 2000 corporate
    (continued...)
    45
    event, the parties’ 2005 contract, hereinafter discussed, incorporated the PPA, and
    thus, as the trial court determined, “evidence[d] the intent of the OCFO to adhere to
    the PPA with respect to its dealings with the [Bank].”
    This court’s decision in Abadie, 
    supra,
     
    843 A.2d at 738
    , relied upon by the
    District, supports its argument that the OCFO was subject to the PPA. In Abadie, this
    court concluded that, with limited, specified exceptions, the PPA applied to the OCFO
    during “control years.”32 
    Id. at 745-46
    . The court noted in Abadie that § 2-301.04 (a),
    which sets forth governmental entities exempt from the PPA, did not include the
    OCFO, although it did list the Control Board for exemption. Id. at 743. Consistent
    with the legislative history and rules of statutory interpretation, this court held in
    Abadie that the OCFO’s exemption for control years applied only to the types of
    31
    (...continued)
    resolution. The Bank contends that these particular officials were not bound by the
    PPA.
    32
    The Procurement Reform Amendment Act of 1996 (effective April 1997)
    (Reform Act) exempted the OCFO from provisions of the PPA during control years,
    and required the OCFO to “adopt . . . the procurement rules and regulations adopted
    by the District of Columbia Financial Responsibility and Management Assistance
    Authority [Control Board].” 
    D.C. Code § 2-301.04
     (c) (2001). A control year is “any
    fiscal year for which a financial plan and budget approved by the [Control Board] . . .
    is in effect, and includes Fiscal Year 1996.” 
    D.C. Code § 47-393
     (4) (2005). In
    Abadie, 
    supra,
     this court considered and interpreted several statutory provisions
    related to its decision including those related to the OCFO and the PPA. See Abadie,
    
    843 A.2d at 741, 742-44
    .
    46
    contracts listed in the sentence that immediately preceded it, i.e., those for professional
    services of “accountants, lawyers, and other experts.” 
    Id. at 745
    .
    The Bank argues that even if Abadie could be construed as subjecting the OCFO
    to the PPA, its holding was rejected by subsequent Congressional enactments,
    specifically, the District’s 2006 Appropriations Act, which became law on November
    30, 2005 (effective retroactively from April 1997), three extensions of the 2005
    exemption, and permanent codification of the exemption in 
    D.C. Code § 2-301.04
    .
    The District responds that there is no evidence that Congress considered or intended
    to overrule Abadie and that the 2006 Appropriations Act did not exempt the OCFO
    from the dispute resolution provisions of the PPA or render ineffective the terms of
    the parties’ 2005 contract incorporating the PPA that was executed before enactment
    of the statute.
    The 2006 Appropriations Act provided that
    [t]he entire process used by the Chief Financial Officer to
    acquire any and all kinds of goods, works, and services by
    any contractual means . . . shall be exempt from all of the
    provisions of the District of Columbia’s Procurement
    Practices Act: Provided, That provisions made by this
    subsection shall take effect as if enacted in D.C. Law 11-
    259 [(the 1996 Procurement Reform Amendment Act)] and
    47
    shall remain in effect until September 30, 2006.
    District of Columbia Appropriations Act, 2006, Pub. L. No. 109-115, § 132, 
    119 Stat. 2396
    , 2522 (2005).33 While the 2006 Act exempted the OCFO from the PPA with
    respect to the acquisition of goods and services by contract, it did not address the
    administration of any contract entered or the resolution of disputes arising therefrom
    covered by sections of the PPA. To that extent, it left intact other provisions of the
    PPA governing contract administration.         Neither the plain language of these
    enactments nor the legislative history cited by the Bank supports its argument that
    Congress intended to overrule Abadie.34 When overruling court decisions, Congress
    has been explicit in the past.35
    33
    This exemption was extended three times through February 15, 2007. See
    Continuing Appropriations Resolution 2007, Pub. L. No. 109-289, § 127 (b), 
    120 Stat. 1311
    , 1316 (2006) (extension through 11/17/06); H.J. Res. 100, 109 Pub. L. No.
    369, 120 Stat 2642, 2642 (2006) (extension through 12/8/06); H.J. Res. 102, 109 Pub.
    L. No. 383, 
    120 Stat. 2678
    , 2678 (2006) (extension through 2/15/07).
    34
    Reference is made to H.R. Conf. Rep. 109-307 (2005), 
    205 WL 3131557
    :
    S. Rep. 109-109 (2005) (2005), reprinted in 2006 U.S.C.C.A.N. 1260.
    35
    See, e.g., Molovinsky v. Fair Emp’t Council of Greater Washington, Inc.,
    
    683 A.2d 142
    , 148 n.11 (D.C. 1996) (Noting that “[t]he legislative history makes
    clear that Congress specifically intended to overrule Luck [v. United States, 
    121 U.S. App. D.C. 151
    , 
    348 F.2d 763
     (1965)], rejecting the Luck rule as ‘absolutely
    unworkable.’ H.R. Rep. No. 91-907, [91t Cong., 2d Sess. 62, 63 (1970)]”; Brown v.
    United States, 
    518 A.2d 446
    , 447- 48 n.3 (D.C. 1986) (referencing legislative history
    reflecting Congressional intent to overrule definition of a term in a particular case as
    (continued...)
    48
    The District argues that the process used to acquire the Bank’s services had
    concluded before this law was enacted. Although this provision was made retroactive
    to 1997, the District argues that the 2006 Act did not invalidate the parties’ 2005
    agreement to be bound by the PPA, as the Bank suggests. As it points out, the “laws
    in effect at the time of the making of a contract form a part of the contract ‘as fully as
    if they had been expressly referred to or incorporated in its terms.’” Double H. Hous.
    Corp. v. Big Wash, Inc., 
    799 A.2d 1195
    , 1199 (D.C. 2002) (quoting Farmers &
    Merchants Bank of Monroe v. Federal Reserve Bank of Richmond, 
    262 U.S. 649
    , 660
    (1923)) (other citation omitted); accord, Akassy v. William Penn Apts. Ltd. P’ship, 
    891 A.2d 291
    , 300 (D.C. 2006). In this case, the parties specifically incorporated into the
    2005 contract the PPA, the law in effect at the time.
    The District contends that the PPA is even clearer in precluding OCFO
    employees from agreeing to arbitrate claims involving fraud. While the PPA
    authorized contracting officers to resolve contract disputes (see 
    D.C. Code § 2-308.03
    (a)(1) (2006 Repl.)), it did “not authorize the contracting officer to settle, compromise,
    pay or otherwise adjust any claim involving fraud.” 
    D.C. Code § 2-308.03
     (a)(4)
    35
    (...continued)
    reflected in H.R. Rep. No. 907, 91st Cong. 2d Sess. 62 (1970)).
    49
    (2006 Repl.)).36     The District argues that this express prohibition precluded a
    contracting officer for the District from agreeing to arbitration of claims involving
    fraud.
    A preliminary question raised by the District’s position is whether an agreement
    to arbitrate a dispute falls within the parameters of these PPA prohibitions. The
    answer depends to some extent upon the meaning of the term “arbitration.” This court
    has observed previously that The Federal Arbitration Act “is silent on the definition
    of ‘arbitration.’”37 See Washington Automotive v. 1828 L St. Assocs., 
    906 A.2d 869
    ,
    875 (D.C. 2006); see also Harrison v. Nissan Motor Corp. In U.S.A., 
    111 F.3d 343
    ,
    350 (3d Cir. 1997) (noting that the FAA does not define “arbitration,” and that “courts
    and commentators have struggled to do so.”). In determining whether a certain
    appraisal process constituted an arbitration under the FAA, the Tenth Circuit noted
    that “[c]entral to any conception of classic arbitration is that the disputants empowered
    a third party to render a decision settling their dispute.” Salt Lake Tribune v. Mgmt.
    Planning, 
    390 F.3d 684
    , 689 (2004) (citation omitted). Also essential to rendering the
    36
    
    D.C. Code § 308.03
     was repealed effective April 8, 2011, D.C. Law 18-371,
    § 1201(a).
    37
    Similarly, this court noted that the D.C. Arbitration Act did not define the
    term “arbitration.” Washington Automotive, 
    supra,
     
    906 A.2d at 875
    .
    50
    process an arbitration is that the third party’s decision will settle the dispute. Id. at
    690 (citation omitted). In defining arbitration in Harrison, 
    supra,
     the court stated,
    “[a]lthough it defies easy definition, the essence of arbitration . . . is that, when the
    parties agree to submit their disputes to it, they have greed to arbitrate these disputes
    through to completion.” 
    111 F.3d at 350
    . Dictionary definitions include these
    described elements, including binding and final settlement or resolution of a dispute
    by a designated third party.38 The PPA precludes contracting officers from settling or
    adjusting disputes involving fraud. When the government is a party to a contract, its
    representative must have actual authority in order to bind the government to it. See
    Hanlin v. United States, 
    316 F.3d 1325
    , 1328 (Fed. Cir. 2003) (setting forth actual
    authority as an element of proof required to prove an express or implied-in fact
    contract with the government); accord, City of Cincinnati v. United States, 
    153 F.3d 1375
    , 1377 (Fed. Cir. 1998). It follows rationally that a government representative
    cannot delegate to another actual authority that he or she does not possess. In short,
    contracting officers bound by the PPA cannot agree to settle, compromise or otherwise
    38
    For example, arbitration is defined as “[a] method of dispute resolution
    involving one or more neutral third parties who are usually agreed to by the disputing
    parties and whose decision is binding.” Black’s Law Dictionary, 112 (8th ed. 2009).
    Webster’s Third New International Dictionary defines “arbitration” as “the hearing
    and determination of a case between parties in controversy by a person or persons
    chosen by the parties or appointed under statutory authority instead of by a judicial
    tribunal provided by law.” Webster’s Third New International Dictionary, 110 (3d
    ed. 1993).
    51
    adjust fraud claims, and they cannot delegate to others the authority to do so. Thus,
    we agree with the District that the PPA withheld authority from OCFO employees to
    agree to arbitrate fraud claims as well as contract claims. “A person making or
    seeking to make a contract with a municipal corporation is charged or imputed with
    knowledge of the scope of the agency’s authority.” Chamberlain v. Barry, 
    606 A.2d 156
    , 159 (1992) (citing Coffin, 
    supra,
     
    320 A.2d at 303
    ).
    2. Preemption
    The Bank argues that even if the PPA did apply to the OCFO, the FAA
    preempts state laws like the PPA. It contends that the FAA prohibits state law from
    interfering with the objectives of the FAA, and therefore, the District’s argument that
    the PPA withheld authority from District officials to agree to arbitration must fail.
    Unquestionably, the FAA “establishes a national policy favoring arbitration when the
    parties contract for that mode of dispute resolution.” Preston v. Ferrer, 
    552 U.S. 346
    ,
    349 (2008) (citing Southland Corp. v. Keating, 
    465 U.S. 1
     (1984)) (emphasis added).
    The FAA provides for the application of federal substantive law regarding arbitration
    in both federal and state courts. 
    Id.
     (citing Southland, 
    465 U.S. at 16
    ). Relying upon
    Preston, the Bank argues that the PPA’s grant of exclusive jurisdiction of FCA claims
    to Superior Court and contract claims to the Contracting Officer and the CAB is
    52
    superseded by the FAA. The District counters that Preston did not involve a statute
    that withheld authority from a government employee to agree to arbitrate, but rather
    one that bars enforcement of otherwise enforceable arbitration agreements. The
    District argues that the former is permissible, while the latter is not. The District has
    the better argument on this point.
    In Preston, there was no dispute that the parties had a written agreement
    providing for arbitration. The Supreme Court held that “when parties agree to
    arbitrate all questions arising under a contract, state laws lodging primary
    jurisdiction in another forum, whether judicial or administrative, are superseded by the
    FAA.” Id. at 349-50 (emphasis added). Preston, claiming fees allegedly due under
    a contract with Ferrer, sought arbitration under an arbitration clause covering “any
    dispute . . . relating to the terms of [the contract] or breach, validity, or legality thereof
    . . . in accordance with the rules [of the American Arbitration Association].” Id. at
    350. Ferrer petitioned the California Labor Commissioner to have the contract
    declared void under the California Talent Agencies Act (TAA)39 because Preston had
    acted as a talent agent without the requisite license. Id. Although finding a basis for
    the exercise of jurisdiction, the Labor Commission’s hearing officer denied Ferrer’s
    39
    Cal. Lab. Code Ann. § 1700 et seq. (West 2003 and Supp. 2008).
    53
    motion to stay arbitration for lack of authority to grant such relief. The Los Angeles
    Superior Court denied Preston’s motion to compel arbitration, and the California Court
    of Appeals affirmed, holding that the TAA vests “exclusive original jurisdiction” over
    the dispute in the Labor Commissioner. The California Supreme Court denied review,
    and the Supreme Court granted certiorari to determine whether the FAA overrides
    state law vesting initial adjudicatory authority in a state administrative agency. The
    Supreme Court determined that the TAA conflicts with the FAA’s dispute resolution
    mechanism in that (1) it granted exclusive jurisdiction to the Labor Commissioner to
    decide an issue that the parties agreed to arbitrate, and (2) it imposed prerequisites to
    enforcement of the arbitration agreement not applicable to contracts generally. Id. at
    356. Therefore, the Supreme Court held that the FAA superseded state law (the TAA)
    and that pursuant to the parties’ contract, their rights must be decided in an arbitral
    forum. Id. at 352.
    There is an important difference between the circumstances presented in
    Preston and those presented here. In this case, the PPA simply imposes statutory
    restrictions on the authority of municipal employees to agree to arbitration. It does not
    bar enforcement of valid arbitration agreements or impose conditions upon such
    agreements not applicable to other contracts. See Greene, 
    supra,
     
    806 A.2d at 221
    . As
    the court stated in Greene in addressing an analogous argument that applies here:
    54
    “what [the Bank’s] argument does is to mistake the authority of a state to bar
    enforcement of otherwise valid arbitration agreements — power denied the state
    except insofar as § 2 [of the FAA] permits — for the authority of a government
    contracting for goods or services in its own behalf to refuse to agree to arbitrate
    disputes.” Id. The FAA does not mandate arbitration; it requires enforcement of
    privately negotiated arbitration agreements. Id. at 222. Here, the PPA withheld from
    contracting officers the authority to bind the District to arbitration, just as any private
    corporation or individual might limit an agent’s contracting authority. Therefore, we
    reject the Bank’s preemption argument.
    3. Controlling Contractual Agreement
    As previously discussed, the trial court ruled that the PPA, which was
    incorporated into the 2005 contract, withheld from the CFO and OCFO officials the
    authority to agree to arbitration and forum selection for contract and fraud claims at
    the time the authorization and agreements for Treasury Services were signed.
    Alternatively, the trial court found that the parties’ 2005 contract provisions governing
    dispute resolution and contract modification superseded any clauses on the subject that
    the Bank claims were agreed upon previously and any provision that would otherwise
    allow District officials to agree to arbitration in North Carolina or elsewhere. The
    55
    court also concluded that after execution of the 2005 contract, the Deputy
    CFO/Treasurer lacked authority to bind the District to dispute resolution clauses in the
    2008 deposit agreement. The Bank argues that the trial court erred in its rulings
    because:    (1) it misapplied basic contract integration principles in holding
    unenforceable the arbitration provisions in the TSB and the forum selection clauses
    in the Deposit Agreement signed before the 2005 contract; and (2) the 2005 contract
    cannot supersede documents containing such provisions signed by District officials
    after the 2005 contract was entered.40 The Bank contends that the 2005 contract is
    partially integrated and that the arbitration clause in the TSB and the forum selection
    provisions in the Deposit Agreements operate harmoniously and must be integrated
    into the 2005 contract. Alternatively, it argues that subsequently executed agreements
    control dispute resolution.
    a. Effect of the 2005 Contract on Prior Agreements
    40
    The documents the Bank references include: (1) previously and
    subsequently signed Authorizations incorporating the Treasury Booklet which
    contained an arbitration clause; (2) Documents in the “Agreements/Documentation”
    section in its responses to the 2002 and 2005 RFPs; and (3) Treasury Booklets that
    it contended were sent with its responses to the 2002 and 2005 RFP. However, the
    trial court found as fact that the Treasury Booklet was not included in these two
    submissions.
    56
    “When parties to a contract have executed a completely integrated written
    agreement, it supersedes all other understandings and agreements with respect to the
    subject matter of the agreement between the parties, whether consistent or
    inconsistent, and is viewed as the sole expression of the parties’ intent.” Masurovsky,
    supra, 
    687 A.2d at
    202 (citing Howard Univ. v. Good Food Servs., Inc., 
    608 A.2d 116
    ,
    126-27 (D.C. 1992)) (other citation omitted). A partially integrated agreement is one
    “where the writing represents the agreement of the parties with respect to the matters
    stated therein, but there may be additional consistent terms.” 
    Id.
     (citing Good Food
    Servs., 
    608 A.2d at 126
    )) (other citation omitted). Whether an agreement is completely
    or partially integrated is a preliminary question of fact for the trial court. 
    Id.
     at 126
    (citing Ozerol v. Howard Univ., 
    545 A.2d 638
    , 641 (D.C. 1988)). In making its factual
    inquiry, the trial court must consider the intent of the parties when they entered the
    agreement as derived from “the conduct and language of the parties and the
    surrounding circumstances.” 
    Id.
    In this case, before deciding that the parties’ 2005 contract rendered ineffective
    any prior authorizations or agreements for arbitration and forum selection, the trial
    court held an evidentiary hearing, made factual findings, and considered the factors
    essential to its determination as set forth in our case law. See, e.g., Good Food Servs.,
    57
    supra, 
    608 A.2d at 126
     (citation omitted). The trial court concluded that the “parties’
    written contract containing a merger clause, the conduct of the parties and the
    surrounding circumstances, evaluated as a whole, weigh heavily in favor of the 2005
    contract’s categorization as a fully integrated document with respect to dispute
    resolution and authority to modify.” The court also stated that even if the 2005
    contract could be characterized as partially integrated, it would supersede any
    inconsistent terms in prior agreements. See 
    id.
     However, the trial court also found
    that the parties did not intend for the 2005 contract to invalidate documents signed by
    OCFO and OFT officials to the extent that they allowed the account to remain open
    and maintained by authorized individuals.
    The trial court’s ultimate conclusion that the 2005 contract is a completely
    integrated document with respect to dispute resolution and authority to modify is
    supported by the record and applicable law. First, the 2005 contract contains a merger
    clause that states, “This contract, including specifically incorporated documents,
    constitutes the total and entire agreement between the parties.          All previous
    discussions, writings, and agreements are merged herein.” The presence of a merger
    clause, although not conclusive, is a significant factor indicating that the parties
    intended the 2005 contract to be a complete expression of the terms agreed upon.
    58
    Good Food Servs., supra, 
    608 A.2d at 127
     (II Farnsworth on Contracts § 7.3, at 204-
    07 (1990)). Second, specific items or documents intended to be included in the
    contract are listed. A listing of extrinsic items that form a part of the contract is a
    factor tending to support the conclusion that a contract is completely integrated.
    Hercules & Co. v. Shama Rest. Corp., 
    613 A.2d 916
    , 928 (D.C. 1992) (holding that
    this factor, along with two merger clauses, established “beyond peradventure” that the
    contract was completely integrated). The trial court found that the TSB containing an
    arbitration clause, aside from not being enumerated as a contract document, was not
    included in the Bank’s response to the 2002 RFP or its 2005 best and final offer.41
    This factual determination is supported by the evidence and not clearly erroneous;
    therefore, we accept it. See Psaromatis v. English Holdings I, L.L.C., 
    944 A.2d 472
    ,
    481 (D.C. 2008) (setting forth clearly erroneous standard for review of the trial court’s
    factual findings when sitting as fact finder).
    41
    The trial court did not credit the testimony of the Bank’s Senior Vice
    President Biachi that he mailed the TSB with the 2002 and 2005 responses to the
    RFP. See Lazo v. United States, 
    54 A.3d 1221
    , 1230 (D.C. 2012) (stating that this
    court will not redetermine the trial court’s credibility determinations where it had the
    opportunity to observe the witness’ demeanor). Here, the trial court also found that
    Mr. Biachi, who signed the contract, did not focus on the merger clause, dispute
    resolution clause, arbitration or the requirements of the PPA, nor did he even know
    that there was an arbitration provision in the TSB. The trial court also found that at
    no time did the parties discuss dispute resolution before the award of the 2005
    contract.
    59
    Third, the trial court considered the circumstances surrounding the making of
    the contract before determining that it was fully integrated, specifically as to dispute
    resolution and modification authority. See Good Food Servs., supra, 
    608 A.2d at 126
    (setting forth surrounding circumstances as one focus of the inquiry into whether the
    parties intended an agreement to be completely integrated). Briefly stated, these
    circumstances included the OCFO’s “effort[s] to assert control over the District’s
    finances, including its bank accounts,” in part, by issuing the 2002 RFP.42 The trial
    court found that “[a]n important part of that endeavor was empowering only one
    person to contractually bind the District, and except for claims under the False Claims
    Act, establishing only one method of resolving disputes — through the Contracting
    Officer.” To this end, the RFP provided that only the Contracting Officer is
    authorized to make modifications or changes to the terms and conditions of the
    contract. The RFP further required that bidders include a dispute resolution provision
    stating that “[i]f a dispute arises under or relates to the contract, a claim by the
    Contractor shall be made in writing and submitted to the Contracting Officer for a
    written decision. A Claim by the District against the Contractor shall be subject to
    written decision by the Contracting Officer.” Contract clauses required by the RFP
    also included the incorporation by reference of the PPA and applicable regulations
    42
    The trial court found that there were 1400 bank accounts when Dr. Gandhi
    was appointed CFO in June 2000.
    60
    and the laws of the District of Columbia. Except for fraud claims, the PPA provided
    for only one form of dispute resolution for contract claims, i.e., that they be resolved
    by the Contracting Officer. The PPA provides that contracting officers are “not
    authorize[d] . . . to settle, compromise, pay, or otherwise adjust any claim involving
    fraud.” 
    D.C. Code § 2-308.03
     (a)(4) (2006 Repl). It also provides that the District
    may bring a civil action in Superior Court for fraud claims. 
    D.C. Code § 2-308.14.43
    The District issued an amendment to the RFP on March 31, 2005, but the terms
    and conditions related to dispute resolution, contract modification, and incorporation
    of the PPA and other laws of the District of Columbia remained unchanged. Consistent
    with the RFP’s requirements, the 2005 contract executed by the parties states in
    Article I that “[t]he intent of this contract is for a contractor to manage the
    disbursement account in accordance with the published RFP.”44 The trial court found
    that “[s]ignificantly, the Treasury Booklet was not included as part of the [Bank’s]
    2002 RFP Response and the 2005 [Best and Final Offer] that were incorporated into
    the 2005 Contract that Mr. Bianchi [the Bank’s Senior Vice President] signed.” This
    43
    
    D.C. Code § 2-308.14
     is now codified at 
    D.C. Code § 2-381.02
     (a).
    44
    The contract incorporated the following documents “by order of
    precedence:” Articles I through V; Contractor’s Technical Proposal and Cost
    Proposal; Contractor’s Best and Final Offer dated April 25, 2005; and the District’s
    RFP.
    61
    factual finding, which is supported by the evidence, is not challenged. Given the
    language in the written contract, the conduct of the parties, and the surrounding
    circumstances as found by the trial court, we discern no error in its conclusions that
    objectively the parties intended the 2005 written contract to govern their relationship
    related to the CDA with respect to dispute resolution and authority to modify the
    agreement and that any prior inconsistent provisions on these subjects were
    superseded by the 2005 contract.45 “Our jurisdiction adheres to an objective law of
    contracts, meaning that the written language embodying the terms of an agreement
    will govern the rights and liabilities of the parties regardless of the intent of the parties
    at the time they entered into the contract[.]” Aziken v. District of Columbia, 
    70 A.3d 213
    , 218-19 (D.C. 2013) (internal quotation marks omitted).
    The Bank argues that the trial court erred by failing to harmonize the dispute
    resolution provisions of the 2005 contract and the TSB’s arbitration clause. It
    contends that the TSB and Deposit Agreement operate harmoniously with the 2005
    contract, and therefore must be construed together as one contract. In interpreting a
    45
    See Good Food Servs., supra, 
    608 A.2d at 126-27
     (setting forth basis for
    determining the preliminary factual issue of whether the parties intended a writing to
    be integrated); see also Ozerol, 
    545 A.2d at 641
     (contrasting completely and partially
    integrated agreements and noting that the latter may have consistent, as opposed to
    inconsistent, additional terms).
    62
    contract, we consider the document as whole “so as to give effect, if possible, to all
    of the provisions in the contract.” Steele Found. Inc. v. Clark Constr. Grp., 
    937 A.2d 148
    , 154 (D.C. 2007) (citing Akassy, 
    supra,
     
    891 A.2d at 303
    ). Contrary to the Bank’s
    argument, the dispute resolution mechanism agreed upon in the 2005 contract and the
    prior arbitration and forum selection clauses upon which it relies cannot be reconciled
    or harmonized.46 As the trial court concluded, the mechanisms for dispute resolution
    agreed upon in the 2005 written contract are inconsistent with any prior arbitration and
    forum selection provisions calling for arbitration in North Carolina that the Bank
    contends were agreed upon prior thereto. The provisions in the 2005 contract,
    solicited, negotiated, and agreed upon in writing, provide that: (1) except for fraud
    claims, claims related to the parties’ contract will be decided by the Contracting
    Officer and Contract Appeals Board; and (2) fraud claims can be pursued in a civil
    46
    Bank Julius Baer & Co. v. Waxfield Ltd., 
    424 F.3d 278
     (2d Cir.), upon which
    the Bank relies, is distinguishable. In that case, the district court determined that
    merger and forum selection clauses in a series of subsequently executed Pledge
    Agreements superseded a prior agreement to arbitrate disputes. 
    Id. at 280
    . The
    Pledge Agreements had a clause providing that “all rights and remedies provided in
    this Agreement are cumulative and not exclusive of any provided under any other
    agreement or by law or in equity.” 
    Id. at 282
    . The circuit court stated that in light of
    this clause, it would make little sense to read the merger clause to destroy prior
    contract relationships. 
    Id. at 283
    . Consistent with New York law, the court “read the
    merger clause as providing that the Pledge Agreements supersede any previous
    agreements only to the extent that they conflict. 
    Id.
     In the case before this court, we
    have no similar non-exclusive remedies provision, and the terms of the dispute
    resolution provisions in the written contract and prior documents conflict.
    63
    action in court by the Attorney General as stated in the PPA, which was incorporated
    by reference. These provisions are entirely inconsistent with any prior agreements to
    arbitrate claims in North Carolina or elsewhere. Even if the 2005 agreement is
    characterized as only partially integrated, prior inconsistent terms with respect to the
    matters stated therein were superseded by the 2005 contract, and therefore, they cannot
    control. See Masurovsky, supra note 11, 
    687 A.2d at
    202 (citing Good Food, 
    supra,
    608 A.2d at 126
    ) (other citation omitted). To the extent that provisions for dispute
    resolution and forum selection are referenced on bank signature cards and
    authorizations pre-dating the parties’ 2005 contract, for the foregoing reasons, we
    agree with the trial court that they were superseded by the 2005 contract and cannot
    be harmonized with it.
    b. Effect of Subsequently Executed Documents on the 2005 Contract
    Alternatively, the Bank argues that TSB and Deposit Agreements signed by
    OFT officials after the 2005 contract was entered control.47 It contends that for
    47
    The Bank relies on the 2006 Authorization agreeing to be bound by the TSB,
    signed by Deputy Chief Financial Officer, Lasana Mack, pursuant to authority
    provided by the 2000 Corporate Resolution, and signature cards signed in 2006. The
    TSB provides for arbitration in the United States, and the Deposit Agreements
    provide for actions or proceedings involving the account to be maintained in the
    (continued...)
    64
    partially integrated contracts, the most recent writing controls or that the 2005 contract
    could be supplemented or modified by documents executed thereafter. The Bank
    takes the position that OFT officials retained independent contracting authority under
    the 2000 Corporate Resolution and that by signing signature cards and Authorizations,
    OFT employees bound the District to the Deposit Agreement’s forum selection clause
    and the Treasury Booklet’s arbitration clause. The Bank argues that these documents
    either reinstated the terms of the TSB and Deposit Agreement or modified,
    supplemented, and amended the terms of the 2005 Contract to include them.48 The
    trial court held that after execution of the 2005 contract, which was extended each year
    up to November 2009, OFT officials “plainly lacked the authority to bind the District
    to the dispute resolution clauses in either the 2004 Treasury Booklet or the 2008
    Deposit Agreement.”
    There are at least two major impediments to the Bank’s suggested result on this
    issue. First, the RFP and the 2005 contract provided that the Contracting Officer was
    47
    (...continued)
    Banking Center maintaining the account, in this case North Carolina.
    48
    The District suggested that this court need not consider whether OFT
    employees retained contracting authority after the 2005 contract was executed
    because it did not understand the Bank’s argument to be that subsequent agreements
    altered or modified the terms of the existing contract. In its Reply Brief, the Bank
    clarified its position to state otherwise.
    65
    the “only official authorized to contractually bind the District.” Even assuming that
    OFT officials retained some authority related to banking services after the execution
    of the 2005 contract, the Bank, as a party to that contract, knew that only the
    Contracting Officer had authority to agree on behalf of the District to modify or vary
    its terms. Even absent actual knowledge of the limitations on a government agent’s
    authority, as existed here, “one who contracts with a government agent is
    constructively notified of the limits of that agent’s authority, and any reliance on
    contrary representations cannot be reasonable.” Williams v. District of Columbia, 
    902 A.2d 91
    , 96 (D.C. 2006) (citing Leonard v. District of Columbia, 
    801 A.2d 82
    , 86
    (D.C. 2002) and Greene, 
    supra,
     
    806 A.2d at
    222 n.7 (“persons dealing with a
    municipal corporation through its agent are bound to know the nature and extent of the
    agent’s authority”) (quoting Coffin, 
    supra,
     
    320 A.2d at 303
    )) (other citations omitted).
    Put another way, the Bank knew that whatever authority other officials had to sign
    bank documents on behalf of the District, that authority did not include modification
    of the parties’ 2005 contract. Therefore, the Bank could not bind the District to a
    modification of the dispute resolution provisions in the 2005 contract simply because
    officials, other than the authorized Contracting Officer, signed form bank signature
    cards and/or deposit agreements with printed language purporting to impose different
    arbitration and forum selection requirements. The trial court found that the individuals
    66
    who signed these cards for the District were unaware that the fine print had arbitration
    and forum selection terms. According to the testimony and trial court findings, they
    signed the documents only for the purpose of adding or changing signatories on the
    accounts without noting the fine print. None of them intended to effect a modification
    of the 2005 contract. Of course, “[a] person who signs a contract after having had an
    opportunity to read and understand it is bound by its provisions.” Interdonato v.
    Interdonato, 
    521 A.2d 1124
    , 1133 (D.C. 1987) (citation omitted). However, that is
    not the issue here. The determinative issue in this case is whether the person who
    signed the document had authority to bind the District government to a modification
    of the 2005 contract. Under the terms of that contract, only the Contracting Officer
    had that authority.
    Second, the 2005 contract was extended four times after its initial execution,
    finally in November 2008 and expiring “on November 12, 2009 or the date any new
    contract was executed, whichever came first.” This contract’s essential terms
    concerning dispute resolution, incorporation of the PPA, and contract modification
    remained unchanged throughout this period. Therefore, to the extent that the Bank
    argues that the last executed document controls, that would be the 2005 contract that
    was extended each year through November 2009. Therefore, under the Bank’s
    67
    modification analysis, this contract would have continued to govern dispute resolution
    and contract modification.
    C. Challenge to the CAB’s Jurisdiction Over the Claims Asserted
    Finally, the Bank argues that there is no conflict between the dispute resolution
    provisions in the 2005 contract and the arbitration provision it seeks to enforce
    because the District’s claims are not subject to the jurisdiction of the Contracting
    Officer or CAB. It contends that the District’s claims are either statutory or tort claims
    which the Contracting Officer and CAB have no authority to resolve. The District
    views the Bank’s argument as its recognition that by incorporating the PPA into the
    contract, the parties agreed that the Contracting Officer would hear contract claims,
    and the Attorney General for the District could bring an FCA claim in Superior Court.
    At the same time, the District agrees with the Bank that its claims do not fall within
    the provision of the 2005 contract requiring that the contracting officer decide disputes
    related to the contract. It contends that its statutory and tort claims against the Bank
    do not turn on the contractual relationship between the parties and that they could have
    been asserted against any bank that negotiated the fraudulent checks. Therefore, the
    District concedes that the trial court erred in holding that the District’s claims related
    68
    to the contract, but takes the position that the claims should have been resolved in
    Superior Court.
    Under the PPA, “[a]ll claims by the District government against a contractor
    arising under or relating to a contract shall be decided by the contracting officer who
    shall issue a decision in writing. . . .” 
    D.C. Code § 2-308.03
     (a)(1) (2001). The
    Contract Appeals Board had jurisdiction of “[a]ny claim by the District against a
    contractor, when such claim arises under or relates to a contract.” 
    D.C. Code § 2
    -
    309.03 (a)(3) (2001). The statute limits this jurisdiction by providing that the
    contracting officer is not authorized “to settle, compromise, pay, or otherwise adjust
    any claim involving fraud.” 
    D.C. Code § 308.03
     (a)(4) (2001). The PPA provides that
    the District may bring a civil action to recover damages or penalties against any person
    who commits specified fraudulent acts. 
    D.C. Code § 2-308.14
     (a)(1)-(9).
    A claim arises under a contract “(1) where the claim ultimately depend[s] on the
    existence of a contractual relationship between the parties; (2) resolution of the claim[]
    relates to interpretation of the contract; or (3) [a] contract-related tort claim involve[s]
    the same operative facts as a parallel claim for breach of contract.” Cheney v. IPD
    Analytics, LLC, 
    583 F. Supp. 2d 108
    , 122 (D.D.C. 2008) (alteration in original)
    69
    (quoting Terra Int’l, Inc. v. Mississippi Chem. Corp., 
    119 F.3d 688
    , 694 (8th Cir.
    1997)) (internal quotation marks omitted). There must be a “causal connection
    between the claim and the contract based on rights, duties, or injury flowing from the
    contract.” Id. at 122 (quoting Phillips v. Audio Active, Ltd., 
    494 F.3d 378
    , 389 (2d Cir.
    2007)) (internal quotation marks omitted). The statute does not define “related to” the
    contract or distinguish between the phrases “arising under” and “related to” the
    contract. The definition of “related to” is simply “associated with” or “connected
    to.”49 There must be some nexus between the contract and the claim asserted such that
    reliance on the contracting officer’s expertise promotes a just resolution.
    It is not clear on this record that the District’s claims arise under the parties’
    contract based on the definition extracted from Cheney, supra, 583 F. Supp. at 122.
    The District sued the Bank for violation of the Uniform Commercial Code (Counts I
    and II), Negligence (Count III), Fraud (Count IV), Negligent and Intentional Breach
    of Fiduciary Duties (Count V), Conversion (Count VI), False Claims Act violations
    (Count VII),50 and Failure to Adequately Hire, Train or Supervise (Count VIII).
    49
    The American Heritage Dictionary of the English Language, 1097 (William
    Morris, ed. 1969).
    50
    In Count VII of its first amended complaint, the District adopted and
    incorporated the factual allegations set forth in the preceding eight counts (paragraphs
    (continued...)
    70
    Resolution of none of the claims appear to concern an interpretation of the contract,
    and there is no parallel breach of contract claim. To some extent, some of the claims
    may depend upon the existence of a contractual relationship between the parties. See
    Cheney, 
    supra,
     583 F. Supp. at 122. Others may not. Nor do all of the claims appear
    on the face of the complaint to be connected to the contract itself or require the
    expertise of a contracting officer for just resolution. Further inquiry by the trial court
    appears to be necessary to make that determination.
    This court has held that the CAB does not have jurisdiction over a claim for
    professional negligence, recognizing the CAB’s position with respect to its own
    jurisdiction. District of Columbia Water and Sewer v. Delon Hampton & Assocs., 
    851 A.2d 410
    , 417 n.16 (D.C. 2004) (citing George A. Bass Constr. Co., CAB No. D-869
    (June 10, 1991)).51 In particular, this court noted that the CAB had stated that “‘any
    50
    (...continued)
    1 - 117) of its complaint as the basis for its False Act Claims under 
    D.C. Code § 2
    -
    308.14 (a), subsections (2) (knowingly mak[ing], us[ing] or caus[ing] to be made or
    used, a false record or statement to get a false claim paid or approved by the
    District”), (3) (“conspir[ing] to defraud the District by getting a false claim allowed
    or paid by the District”), (8) (failing to disclose after discovery a false claim to the
    District received as an inadvertent payment or overpayment), and (9) (knowingly
    failing to repay an inadvertent payment or overpayment to the District).
    51
    In Delon Hampton, an issue under consideration was whether the trial court
    abused its discretion in not referring claims for breach of contract and professional
    negligence for administrative remedy under the doctrine of primary jurisdiction. 851
    (continued...)
    71
    action based on negligence lies not before the Board but in Superior Court.’” 
    Id.
    (quoting Bass Constr. Co.). More recently, the CAB has explained that it may
    exercise jurisdiction over claims that actually are for defective contract performance,
    although asserted in the language for tort actions. In re Chief Procurement Officer
    (GTE South, Inc.), 2002 DCBCA LEXIS 23, at *3-4 n.2. Although the CAB
    dismissed the tort claims in GTE South because its jurisdiction is limited to contract
    actions, it explained circumstances under which it had considered cases asserted as
    torts, but that were actually contract claims. Specifically, the CAB stated:
    Although, at times, the Board exercises jurisdiction over
    claims which are framed in the language of tort actions,
    those cases deal with contract performance, not torts
    unrelated to performance. For example, references to
    “negligence” and “professional malpractice” in performance
    of a contract, although sounding like a tort, do not convert
    into a tort what is in essence a claim for defective
    performance. See, e.g., Fry & Welch Associates, P.C., CAB
    No. D-0821, July 31 1997, 
    44 D.C. 6859
    , 6875.
    GTE South, 2002 DCBCA LEXIS 23 at *3-4 n.2. Whether the District’s claim for
    51
    (...continued)
    A.2d at 416-17. The trial court rejected the argument because the CAB would have
    declined to provide an administrative remedy, and the doctrine of primary jurisdiction
    does not apply where no administrative remedy exists. 
    Id.
     at 417 & n.417 n.16.
    72
    negligence (Count III) is in essence a claim for defective performance remains to be
    determined after further inquiry by the trial court.
    On the other hand, most of the District’s claims appear to involve fraud
    perpetrated by the District’s former employees and allegedly facilitated by the Bank.
    To the extent that these claims involve fraud, they are properly pursued in court, given
    the PPA’s prohibition against contracting officers paying, compromising, settling or
    otherwise adjusting any claim involving fraud, see 
    D.C. Code § 308.03
     (a)(4), and
    authorization for the District to sue persons committing certain fraudulent acts in
    Superior Court for damages. See 
    D.C. Code § 2-308.14
     (a)(1). Interpreting a similar
    federal statute, 41 U.S.C. 605(a), numerous district courts have held that the
    Government can sue in district court whenever fraud is at issue even if the claim itself
    is not for fraud. United States v. Menominee Tribal Enterprises, 
    601 F. Supp. 2d 1061
    , 1078 (E.D. Wis. 2009) (citing United States v. Unified Industries, 
    929 F. Supp. 947
    , 950-51 (E.D. Va. 1996); United States v. Rockwell Int’l Corp., 
    795 F. Supp. 1131
    , 1135 (N.D. Ga. 1992)). Similarly, the provision of the PPA lends itself to that
    same interpretation.
    In summary, we conclude that the District’s claims in the remaining seven
    counts may not be dismissed in favor of jurisdiction before the contracting officer and
    73
    the CAB without a determination of whether those claims can be properly pursued in
    that forum or are properly before the Superior Court. That determination must be
    made on the basis of the nature of the claim, rather than its title. Consistent with the
    principles set forth in this section, the trial court must make that determination with
    respect to each count.
    For the foregoing reasons, we affirm the trial court’s decision insofar as it holds
    that the parties had no agreement to arbitrate disputes in North Carolina. We remand
    the case to the trial court with instructions to determine, based on the principles
    enunciated in this opinion, which counts, if any, should remain for disposition in the
    Superior Court as claims involving fraud or as claims not otherwise within the
    jurisdiction of the Contract Appeals Board.
    So ordered.
    

Document Info

Docket Number: 10-CV-78

Citation Numbers: 80 A.3d 650, 2013 D.C. App. LEXIS 788, 2013 WL 6228165

Judges: Blackburne-Rigsby, Thompson, Wagner

Filed Date: 11/27/2013

Precedential Status: Precedential

Modified Date: 10/26/2024

Authorities (61)

Lazo v. United States , 2012 D.C. App. LEXIS 501 ( 2012 )

Sphere Drake Insurance Limited, Formerly Known as Odyssey ... , 256 F.3d 587 ( 2001 )

sandvik-ab-v-advent-international-corp-advent-international-gmbh-global , 220 F.3d 99 ( 2000 )

United States v. Menominee Tribal Enterprises , 601 F. Supp. 2d 1061 ( 2009 )

Buckeye Check Cashing, Inc. v. Cardegna , 126 S. Ct. 1204 ( 2006 )

Arthur Andersen LLP v. Carlisle , 129 S. Ct. 1896 ( 2009 )

Washington Automotive Co. v. 1828 L Street Associates , 2006 D.C. App. LEXIS 505 ( 2006 )

Coffin v. District of Columbia , 1974 D.C. App. LEXIS 220 ( 1974 )

Interdonato v. Interdonato , 1987 D.C. App. LEXIS 292 ( 1987 )

District of Columbia v. Greene , 2002 D.C. App. LEXIS 513 ( 2002 )

Brown v. United States , 1986 D.C. App. LEXIS 496 ( 1986 )

Molovinsky v. Fair Employment Council of Greater Washington,... , 1996 D.C. App. LEXIS 194 ( 1996 )

Keeton v. Wells Fargo Corp. , 2010 D.C. App. LEXIS 6 ( 2010 )

Behrens v. Pelletier , 116 S. Ct. 834 ( 1996 )

Aziken v. District of Columbia , 2013 D.C. App. LEXIS 373 ( 2013 )

Daisy Manufacturing Co., Inc., a Delaware Corporation v. ... , 29 F.3d 389 ( 1994 )

Terra International, Inc., a Delaware Corporation v. ... , 119 F.3d 688 ( 1997 )

Phillips v. Audio Active Ltd. , 494 F.3d 378 ( 2007 )

In Re Calomiris , 2006 D.C. App. LEXIS 90 ( 2006 )

In Re Grimes , 1996 D.C. App. LEXIS 296 ( 1996 )

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