Jureczki v. Bank One Texas NA

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
September 15, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_________________________ Clerk
No. 03-20348
SUMMARY CALENDAR
_________________________
CARL JURECZKI; LORA JURECZKI
Plaintiffs - Appellants
v.
BANK ONE TEXAS, N.A.; BANC ONE SECURITIES CORP.; BANC ONE INSURANCE
AGENCY, INC.; BILL BERRY
Defendants - Appellees
______________________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-02-CV-4830)
______________________________________________________________________________
Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:1
In this appeal, we review the district court’s decision to grant Defendants-Appellees’
Motion to Compel Arbitration and Motion to Dismiss regarding claims brought by Plaintiffs-
Appellants for violations of § 10(b) of the Securities and Exchange Commission Act of 1934, 15
U.S.C. § 78, and §§ 35(d) and 36(a) of the Investment Company Act of 1940, 15 U.S.C. § 80,
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
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and for fraud, conspiracy, negligent and fraudulent misrepresentation, breach of contract, and
conversion in violation of Texas law. For the following reasons, we affirm the district court’s
judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In December 1998, Plaintiffs-Appellants, Carl and Lora Jureczki (hereinafter, the
“Jureczkis”), opened a deposit account with Bank One Texas, N.A. (hereinafter, “Bank One”).
At that time, the Jureczkis signed a signature card for the account. The signature card stated that
the Jureczkis “acknowledge[d] receipt of the Bank’s Account Rules and Regulations, including all
applicable inserts, and agree[d] to be bound by the agreements and terms contained therein.” The
Account Rules and Regulations (hereinafter, “Account Rules”) in effect for December 1998
included a broad arbitration clause.
The Jureczkis claim that in 2000, Defendant-Appellant, Bill Berry, removed $800,000
from the deposit account without their permission and invested the money through Defendants-
Appellants, Banc One Securities Corporation and Bank One Insurance Agency. The Jureczkis
were told that they could not recover the money without incurring a substantial penalty. After
losing $400,000, the Jureczkis pulled their money out of the investments and incurred penalty and
surrender charges. They subsequently brought this lawsuit.
Bank One moved to compel arbitration pursuant to the arbitration clause in the Account
Rules. The Jureczkis filed an affidavit from Mr. Jureczki that neither he nor his wife received a
copy of the Account Rules when the deposit account was opened. The district court ruled that
the contract was unambiguous, that the Jureczkis had agreed to be bound by the Account Rules,
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and that the arbitration agreement encompassed the Jureczkis’ claims against Bank One. The
district court also ruled that the Jureczkis’ claims against the other Defendants-Appellants were
“inextricably intertwined” with the claims against Bank One, and compelled arbitration of those
claims as well.
II.
STANDARD OF REVIEW
This court reviews de novo the district court’s construction of, and rulings on, the scope
of the arbitration agreement. Pennzoil Exploration and Prod. Co. v. Ramco Energy Ltd., 139
F.3d 1061, 1065 (5th Cir. 1998). Findings of fact made in support of the order compelling
arbitration may be reviewed for clear error. Cargill Inc. v. Golden Chariot MC, 31 F.3d 316, 317
(5th Cir. 1994). All doubts regarding the construction of the contract or any defenses to
arbitration will be resolved in favor of arbitration. Harvey v. Joyce, 199 F.3d 790, 793 (5th Cir.
2000).
III.
EXISTENCE OF A VALID AGREEMENT TO ARBITRATE
Before a court compels arbitration, it must decide if there is a valid, enforceable arbitration
agreement. Webb v. Investacorp, Inc., 89 F.3d 252, 257-258 (5th Cir. 1996). Disputes over the
validity of agreements to arbitrate are analyzed under ordinary state-law principles of contract
construction. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S. Ct. 1920, 1924, 131
L. Ed. 2d 985 (1995). Under Texas law, if the words of a written instrument can be read to have a
certain or definite legal meaning or interpretation, the contract is not ambiguous and the court will
construe the contract as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). The
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district court ruled that (1) the signature card constituted a valid contract; (2) the signature card
plainly incorporated by reference Bank One’s Account Rules; (3) the Account Rules included an
arbitration agreement; (4) the arbitration agreement encompassed the claims against Bank One.
Jureczki v. Bank One, Texas, N.A., 252 F. Supp. 2d 368, 373-375 (S.D. Tex. 2003).
The Jureczkis do not dispute that they signed a signature card when they opened their
deposit account with Bank One. It is clear that by signing the card they entered into a binding
contract. American Airlines Employees Federal Credit Union v. Martin, 29 S.W.3d 86, 96 (Tex.
2000) (“such signature cards establish a contract between banking institution and customer,
regardless of whether the customer reads all provisions to which he is agreeing.”). The Jureczkis
do, however, argue that they did not agree to the Account Rules referenced on the signature card
because they never received the Account Rules. This argument is in direct contradiction to
language on the signature card which clearly states that the signators have received the Account
Rules and agree to be bound by the agreements and terms therein. This is in accordance with
Texas which law allows separate, unsigned documents, including arbitration agreements, to be
incorporated by reference into contracts. Owen v. Hendricks, 433 S.W.2d 164, 166 (Tex. 1968);
Teal Construction Company/Hillside Villas Ltd. v. Daren Casey Interests, Inc., 46 S.W.3d 417
(Tex. App. 2001).
The Jureczkis also argue that the signature card is ambiguous as to its incorporation of
external Account Rules. The district court ruled as a matter of law that the signature card
unambiguously incorporated by reference the Account Rules and thus, the arbitration agreement.
Jureczki, 252 F. Supp. 2d at 373. We agree with the district court’s reading of the signature card.
The language on the card states that the Jureczkis acknowledged receipt of “inserts,” indicating a
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separate document was given to them, or at least referred to by the card. The only place the
signature card refers to the Account Rules is in the incorporation language. Finally, the use of the
word “therein” indicates that the card is referring to an external document. That external
document, the Account Rules, included an arbitration clause, giving rise to the valid arbitration
agreement recognized by the district court.
IV.
SCOPE OF AGREEMENT TO ARBITRATE
We review the district court’s decision to apply equitable estoppel to compel Plaintiffs-
Appellants to arbitration with Defendants-Appellees, Banc One Securities, Banc One Insurance
Agency, and Bill Berry, for abuse of discretion. Grigson v. Creative Artists Agency, L.L.C., 210
F.3d 524, 526 (5th Cir. 2000), cert denied 531 U.S. 1013 (2000).
This court held in Grigson that a non-signatory to an arbitration agreement can use the
agreement to compel arbitration in two instances: (1) when the signatory to a written agreement
containing an arbitration clause must rely on the terms of the written agreement in asserting its
claims against a non-signatory; and (2) when the signatory on the contract containing an
arbitration clause raises allegations of substantially interdependent and concerted misconduct by
both a non-signatory and one or more signatories to the contract. Grigson, 210 F.3d at 527
(quoting MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999)).
The district court found that the claims asserted by the Jureczkis are all based on the
wrongful withdrawal of funds from the Jureczkis’ account with Bank One, a transaction which
was governed by the Account Rules. However, the Jureczkis argue that they are not asserting
claims under the contract and are instead relying on state tort law claims to recover from
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Defendants. The Jureczkis cannot cast their claims in tort rather than under the contract
governing their account merely to avoid arbitration. Id. at 526. The district court saw through
their attempt to do so and correctly applied the first prong of the Grigson test.
The district court also found that the second prong of the Grigson test could be used to
compel arbitration because the Jureczkis’ claims against the signatories and non-signatories raise
“allegations of substantially interdependent and concerted misconduct.” Id. at 527. At the heart
of each of the Jureczkis’ claims is the allegation that all Defendants acted in concert to
fraudulently withdraw funds from their deposit account at Bank One. The district court
thoroughly deconstructed the Jureczkis’ complaint and found that all of their legal and factual
allegations were asserted against Defendants collectively. The district court was clearly within its
discretion when it found that the second prong of the Grigson test also allowed the non-signatory
Defendants to compel arbitration of the Jurezckis’ claims against them.
V.
CONCLUSION
For the foregoing reasons the judgment of the district court compelling arbitration and
dismissing the case is affirmed.
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