Amtower v. William C Roney & Co.

590 N.W.2d 580 (1998) 232 Mich. App. 226

Franklin AMTOWER, John Barbuscak, Sally Boukma, Personal Representative of the Estate of Louise Allen, Richard Bumb, Richard Cummings, Roger Davis, Thomas Deagostino, Vajendra Desai, Dewane Englerth, David Farber, Jeffrey Farber, Carl Freeman, Patricia Hutchinson, James Jolliffe, George Krull, Gary Lambert, Theo Merrill, Mazhar Munir, Thomas Nawrot, Leone Richardson, Paul Tatseos, John Tracy, Barry Miller, Dennis Chagnon and John Christ, Plaintiffs-Appellants,
v.
WILLIAM C. RONEY & CO. d/b/a Roney & Co., Defendant-Appellee.

Docket No. 211717.

Court of Appeals of Michigan.

Submitted May 19, 1998, at Lansing. Decided October 16, 1998, at 9:10 a.m. Released for Publication January 15, 1999.

Fieger, Fieger & Schwartz (by Geoffrey N. Fieger and Rebecca S. Eaton), Southfield, for the plaintiffs.

Honigman Miller Schwartz and Cohn (by Raymond W. Henney and Steven M. Ribiat), Detroit, for the defendant.

Before CORRIGAN, C.J., and HOLBROOK, Jr. and YOUNG, Jr., JJ.

ON REMAND

YOUNG, Jr., J.

This case involves claims arising out of infelicitous securities investments in which defendant advised plaintiffs to participate. As a part of these investment transactions, plaintiffs executed customer agreements providing that any claims against defendant arising from the investments must be submitted to binding arbitration within one year of the accrual of the cause of action.

Plaintiffs sued and defendant moved to dismiss plaintiffs' claims on the basis that plaintiffs had agreed to arbitrate any such disputes and that, under the arbitration provisions, plaintiffs' claims were barred by the contractual limitation period. The trial court concluded that plaintiffs' claims were barred by the contractual limitation period and dismissed plaintiffs' action. The plaintiffs appealed. Relying on Michigan precedent, Bennett v. Shearson Lehman-American Express, Inc., 168 Mich.App. 80, 83, 423 N.W.2d 911 (1987), we affirmed the determination that the plaintiffs' claims are arbitrable and reversed and remanded for arbitration, holding that procedural issues, such as the timeliness of an otherwise arbitrable claim, must be determined by the arbitrator, not the court. Amtower v. William C. Roney & Co., unpublished opinion per curiam of the Court of Appeals, issued February 11,1997 (Docket No. 165777).

This case has now returned to us^[1] on remand from the Supreme Court for the limited purpose of considering "whether the Federal Arbitration Act [FAA], 9 U.S.C. § 1 et seq., requires that a court instead of arbitrators decide the issue of the timeliness of plaintiffs' claims." 457 Mich. 864, 581 N.W.2d 731 (1998). We hold that it does not, and we again conclude that the timeliness of plaintiffs' claims is a question to be decided by the arbitrator rather than the trial court. Accordingly, we reverse and remand this matter for further proceedings.

I. Underlying Facts and Procedural History

For completeness, we repeat the facts of this case as set forth in our prior unpublished opinion:

Following the advice of defendant, an investment adviser, plaintiffs invested in a limited partnership known as the Certified Historic Income Properties VII Limited Partnership (CHIPS VII). Twelve of the plaintiffs, Franklin Amtower, Richard Bumb, Richard Cummings, Thomas DeAgostino, David Farber, Jeffrey Farber, Carl Freeman, Patricia Hutchinson, Gary Lambert, Paul Tatseos, Barry Miller and John Christ, executed customer agreements with defendant. These agreements provided that any claims against defendant arising out of the CHIPS VII transaction would be submitted to binding arbitration within one year of the accrual of the cause of action.

Plaintiffs brought this action pursuant to the Michigan Consumer Protection Act, M.C.L. § 445.901 et seq.; MSA 19.418(1) et seq. Plaintiffs alleged that defendant misrepresented pertinent facts regarding the integrity of the CHIPS VII investment.[^[2]] Defendant moved for summary disposition against Amtower, Bumb, Cummings, DeAgostino, David and Jeffrey Farber, Freeman, Hutchinson, Lambert, Tatseos, Miller and Christ, arguing for outright dismissal or, alternatively, for an order to compel arbitration. Defendant argued that the arbitration agreement precluded these plaintiffs from obtaining relief from the courts. Defendant also argued that the action had been brought more than one year from the time the cause of action accrued. Defendant argued that the cause of action accrued in October, 1990, when plaintiffs were notified that the CHIPS VII investments were failing. Plaintiffs argued in response that the arbitration agreement was invalid because they had not made a knowledgeable waiver of rights. Plaintiffs also argued that the cause of action did not accrue until May 8, 1991, when they learned that the CHIPS VII general partner had misappropriated funds.

The trial court concluded that the arbitration agreement was valid and that the cause of action accrued in October, 1990. The trial court granted defendant's summary disposition motion. The trial court later denied plaintiff[s'] motion for relief from order and for reconsideration pursuant to MCR 2.612.

On appeal, plaintiffs abandoned any claim that the arbitration agreements were invalid and argued only that the trial court erred in determining that their cause of action accrued in October 1990. Defendant argued that the court correctly made this determination. Although not an issue raised by the parties, we held in our prior opinion that the arbitrator, not the trial court, should decide whether plaintiffs' claims were barred by the contractual one-year limitation period:

Although the existence of a contract to arbitrate and its enforceability is a judicial question that cannot be decided by an arbitrator, City of Huntington Woods v. Ajax Paving [Industries, Inc. (After Remand)], 196 Mich.App. 71, 74, 492 N.W.2d 463 (1992), procedural matters arising out of an arbitrable dispute are for the arbitrator, and not the court, to determine. Bennett v. Shearson Lehman-American Express, Inc., 168 Mich.App. 80, 83, 423 N.W.2d 911 (1987). As such, the timeliness of bringing of an arbitration proceeding is a procedural issue to be determined by the arbitrator rather than the courts. Id.; see also Nielsen v. Barnett, 440 Mich. 1, 10, 485 N.W.2d 666 (1992). Therefore, the trial court erred in making a determination regarding when plaintiffs' cause of action accrued.

On the basis of defendant's argument in seeking leave to appeal to the Supreme Court, that the FAA preempted state law and that federal law required the court rather than an arbitrator to determine the question of timeliness, the Supreme Court, in lieu of granting leave to appeal, remanded the matter for further consideration.^[3]

II. Analysis

Now that it has made its legal position more clear, we agree with defendant that the FAA applies to this dispute, which dispute unquestionably arises out of contracts involving interstate commerce. Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). State courts are bound, under the Supremacy Clause, U.S. Const., art. VI, cl. 2, to enforce the FAA's substantive provisions. Ultracashmere House, Ltd. v. Meyer, 664 F.2d 1176,1180 (C.A.11,1981). However, as more fully explained below, because the parties broadly agreed to arbitrate the merits of any controversy arising between them, we conclude that federal law requires that an arbitrator, rather than the trial court, must decide the procedural issue whether plaintiffs' claims were timely.

A. General Federal Rule—Timeliness Issues as Questions of "Procedural Arbitrability"

In John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557-558, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), the Supreme Court held that "[o]nce it is determined ... that the parties are obligated to submit the subject matter of a dispute to arbitration, ``procedural' questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator." Since that decision, an overwhelming majority of federal appellate circuits (including the Sixth Circuit Court of Appeals) considering the issue have determined that timeliness of a claim is a procedural matter and, therefore, within the arbitrator's jurisdiction.^[4] Michigan, which has developed its own strong policy favoring arbitration on the basis of federal precedent,^[5] is in accord. Michigan law also provides that arbitrators, rather than courts, should decide the application of such potential defenses to arbitration as contractual limitation periods, statutes of limitation, and the doctrine of laches. See, e.g., Brown v. Holton Public Schools, 397 Mich. 71, 73-74, 243 N.W.2d 255 (1976); Iron Co. v. Sundberg, Carlson & Associates, Inc., 222 Mich.App. 120, 126, 564 N.W.2d 78 (1997); Bennett, supra at 83, 423 N.W.2d 911.

B. Parties' Intent to Reserve Timeliness Issues for the Court

Notwithstanding the general federal rule, it is equally clear that the parties to an arbitration agreement can provide that certain issues be determined by the court if they so specify in their contract."[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he had not agreed so to submit.'" AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (citations omitted). Thus, "the basic objective in this area is ... to ensure that commercial arbitration agreements, like other contracts, "are enforced according to their terms," and according to the intentions of the parties." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (citations omitted).

Consequently, the determination whether the issue of timeliness must be decided by the arbitrator or a court inexorably becomes a question of contract interpretation. When deciding whether the parties agreed to arbitrate a certain matter, courts should ordinarily apply basic state-law principles that govern the formation of contracts. Id. at 944, 115 S.Ct. 1920. "``The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties.' "Goodwin, Inc. v. Coe Pontiac, 392 Mich. 195, 209, 220 N.W.2d 664 (1974), quoting McIntosh v. Groomes, 227 Mich. 215, 218, 198 N.W. 954 (1924) (emphasis in Goodwin). "Where the language of a contract is clear and unambiguous, the intent of the parties will be ascertained according to its plain sense and meaning." Haywood v. Fowler, 190 Mich.App. 253, 258, 475 N.W.2d 458 (1991).

However, consistent with the strong federal policy promoting arbitration, any ambiguity concerning whether a specific issue falls within the scope of arbitration, such as whether a claim is timely, must be resolved in favor of submitting the question to the arbitrator for resolution. See AT & T Technologies, supra at 650, 106 S.Ct. 1415. In other words, there is a presumption of arbitrability "``unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.'"Id., quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).^[6] In First Options, supra at 945, 115 S.Ct. 1920, the Court explained that when the parties have a contract that provides for arbitration of some issues, "the parties likely gave at least some thought to the scope of arbitration." Therefore, the law "insist[s] upon clarity before concluding that the parties did not want to arbitrate a related matter." Id.

With these principles in mind, we turn to the arbitration provisions at issue in this case. Most of the customer agreements contain the following language related to arbitration:

Any and all controversies which may arise between us ... concerning, arising out of, or relating to, your business, my account(s), transactions with you for me, any other transactions, this agreement or the construction, performance or breach of this or any other agreement between us... shall be submitted to, and settled and determined by, binding arbitration.... Arbitration must be commenced within one year after the cause of such action accrued by service upon the other of a written demand for arbitration or a written notice of intention to arbitrate, naming therein the arbitration tribunal.

Some of the agreements used slightly different language, but with the same import:

It is agreed that any controversy between us arising out of ... this agreement shall be submitted to arbitration.... Arbitration must be commenced within one year after the cause of action accrued by service upon the other of a written demand for arbitration or a written notice of intention to arbitrate, naming therein the arbitration tribunal.

Particularly when considered in light of the federal presumption in favor of arbitrability, we believe that these broadly worded arbitration clauses, covering as they do any controversy arising between the parties, indicate that the arbitrator must decide the timeliness issue. This conclusion makes sense when one considers that the timeliness issue itself requires a determination of often-disputed, as here, fact questions regarding when "the cause of action accrued." Federal precedent makes it clear that, ordinarily, this is a question that the arbitrator is in a better position to decide. In John Wiley & Sons, supra at 556-557, 84 S.Ct. 909, the Court explained:

Questions concerning the procedural prerequisites to arbitration do not arise in a vacuum; they develop in the context of an actual dispute about the rights of the parties to the contract or those covered by it....

Doubt whether grievance procedures or some part of them apply to a particular dispute, whether such procedures have been followed or excused, or whether the unexcused failure to follow them avoids the duty to arbitrate cannot ordinarily be answered without consideration of the merits of the dispute which is presented for arbitration.

We also believe, as a general rule, that submitting procedural matters, such as timeliness, to the arbitrator is consistent with the United States Supreme Court's admonition that in deciding whether the parties have agreed to submit a particular grievance to arbitration, "a court is not to rule on the potential merits of the underlying claims." AT & T Technologies, supra at 649, 106 S.Ct. 1415.

C. Exceptions to the General Rule—Roney & Co. v. Kassab and Smith Barney, Inc. v. Sarver

In opposition to the general federal rule favoring the determination of timeliness issues by an arbitrator, defendant cites two recent decisions from the Sixth Circuit Court of Appeals, Roney & Co. v. Kassab, 981 F.2d 894 (C.A.6, 1992), and Smith Barney, Inc. v. Sarver, 108 F.3d 92 (C.A.6, 1997), for the proposition that the court must determine whether a plaintiff's claims are barred by a contractual limitation period in the absence of clear and unmistakable evidence that the parties intended the question to be for the arbitrator. However, these cases are clearly distinguishable, involving contract language much different than that at issue here. Roney & Co., supra at 898, involved Rule 603 of the New York Stock Exchange, while Smith Barney, supra at 94, n. 2, involved the identically worded § 15 of the Code of Arbitration Procedure of the National Association of Securities Dealers, Inc. Both provisions state that after six years from the events giving rise to the dispute have elapsed, the dispute "shall [not] be eligible for submission to arbitration...."

In light of this "eligible for submission" language, it has been recognized that Rule 603 and § 15 are unlike ordinary procedural limitation periods because they indicate "that the parties intended to bar from arbitration disputes raised more than six years after the events giving rise to them." PaineWebber Inc. v. Hartmann, 921 F.2d 507, 513 (C.A.3, 1990); see also Cogswell v. Merrill Lynch, Pierce, Fenner & Smith Inc., 78 F.3d 474, 476 (C.A.10,1996). Furthermore, even given the unique character of the time-bar language of Rule 603 and § 15 at issue in Roney & Co. and Smith Barney, we note that currently there is an even split among the federal appellate circuits regarding the question whether such language abrogates the general rule that timeliness is a procedural matter that must be submitted to the arbitrator.^[7]

We conclude that the analysis contained in Roney & Co. and Smith Barney is limited to the unique language of Rule 603 and § 15 and represents a specific exception to the general federal rule that timeliness issues must be submitted to an arbitrator.^[8] Consequently, the decisions in Roney & Co. and Smith Barney provide no guidance in our determination how the arbitration agreements in this case should be construed. We further conclude that the contractual language at issue in this case does not unmistakably remove the issue of the timeliness of a claim from the purview of the arbitrator and is thus not equivalent to the language that the Sixth Circuit Court of Appeals found in Roney & Co. and Smith Barney to preclude submission of the issue to an arbitrator.

III. Conclusion

Because the parties have included a broadly worded arbitration provision encompassing the core claim, we conclude that the timeliness of plaintiffs' claims is for the arbitrator to decide as a procedural matter. Accordingly, we reverse and remand this matter to the trial court with instructions to grant defendant's alternative motion to compel arbitration. We do not retain jurisdiction.

Reversed and remanded.

NOTES

[1] Upon remand, Judge Holbrook, Jr., was substituted for (now) Justice Clifford W. Taylor.

[2] Plaintiffs also alleged claims of breach of fiduciary duty, breach of contract, and negligence.

[3] Although defendant mentioned the FAA and cited various federal cases in arguing before this Court that the trial court properly calculated the accrual date of plaintiffs' claims, defendant did not, until it filed briefs in the Supreme Court, assert that the matter was actually governed by the FAA. We therefore addressed the arbitration question relying on Michigan precedent. See Bennett, supra at 83, 423 N.W.2d 911.

In any event, we note that Bennett, although a Michigan case, is entirely founded on federal law. Bennett can be traced directly back to our Supreme Court's decision in Brown v. Holton Public Schools, 397 Mich. 71, 73-74, 243 N.W.2d 255 (1976), which, in turn, relied on a series of federal cases. Thus, as a practical matter, whether the issue at hand (who, as between arbitrator or court, should determine a timeliness question) is addressed under Michigan or federal law, the legal rule and result is the same.

[4] See, e.g., Glass v. Kidder Peabody & Co., Inc., 114 F.3d 446, 455 (C.A.4, 1997); United Rubber, Cork, Linoleum, & Plastic Workers of America, AFL-CIO, CLU, Local 164 v. Pirelli Armstrong Tire Corp., 104 F.3d 181, 184 (C.A.8, 1997);Local 285, Service Employees Int'l Union, AFL-CIO v. Nonotuck Resource Associates, Inc., 64 F.3d 735, 739 (C.A.1, 1995); Denhardt v. Trailways, Inc., 767 F.2d 687, 689-690 (C.A.10, 1985); Nursing Home & Hosp. Union No. 434 AFL-CIOLDIU v. Sky Vue Terrace, Inc., 759 F.2d 1094, 1097 (C.A.3, 1985); Commerce Park at DFW Freeport v. Mardian Constr. Co., 729 F.2d 334, 339, n. 5 (C.A.5, 1984); Belke v. Merrill Lynch, Pierce, Fenner & Smith, 693 F.2d 1023, 1027-1028 (C.A.11, 1982); O'Neel v. Nat'l Ass'n of Securities Dealers, Inc., 667 F.2d 804, 807 (C.A.9, 1982); Conticommodity Services Inc. v. Philipp & Lion, 613 F.2d 1222, 1227 (C.A.2, 1980); Chambers v. Beaunit Corp., 404 F.2d 128, 131 (C.A.6, 1968).

[5] See Detroit v. A W Kutsche & Co., 309 Mich. 700, 703, 16 N.W.2d 128 (1944). In Michigan, arbitration clauses are to be liberally construed with any doubts to be resolved in favor of arbitration. Chippewa Valley Schools v. Hill, 62 Mich.App. 116, 120, 233 N.W.2d 208 (1975).

[6] Although the general principles to be applied in construing arbitration agreements originated in the labor context, we note that the United States Supreme Court has since applied them in a commercial arbitration case. See First Options, supra; see also PaineWebber Inc. v. Elahi, 87 F.3d 589, 594, n. 6 (C.A.1, 1996) (recognizing that principles derived from labor arbitration cases may be applied in a commercial setting).

[7] By way of illustration, the Third, Sixth, Seventh, Tenth, and Eleventh Circuit Courts of Appeal have held that the application of the § 15 time-bar provision is for the court to decide. See, e.g., Smith Barney, supra; Cogswell, supra at 478-481; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cohen, 62 F.3d 381, 383-384 (C.A.11, 1995);Smith Barney Inc. v. Schell, 53 F.3d 807, 809 (C.A.7, 1995);PaineWebber Inc. v. Hofmann, 984 F.2d 1372, 1378 (C.A.3, 1993). On the other hand, the First, Second, Fifth, Eighth, and Ninth Circuit Courts of Appeal have held that the application of § 15 is reserved for the arbitrator. See, e.g., PaineWebber Inc. v. Elahi, 87 F.3d 589, 599 (C.A.1, 1996); PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1196-1199 (C.A.2, 1996); Smith Barney Shearson, Inc. v. Boone, 47 F.3d 750, 753-754 (C.A.5, 1995); FSC Securities Corp. v. Freel, 14 F.3d 1310, 1312-1313 (C.A.8, 1994); O'Neel v. Nat'l Ass'n of Securities Dealers, Inc., 667 F.2d 804, 807 (C.A.9, 1982). As stated in the text, the language of Rule 603 is identical.

[8] This exception to the general rule is nevertheless consistent with the basic presumption of arbitrability, AT & T Technologies, supra at 650, 106 S.Ct. 1415, and the principle that a court must enforce only the contractual arbitration agreement the parties have struck. First Options, supra at 947, 115 S.Ct. 1920. As recognized in General Drivers, Warehousemen & Helpers, Local Union 89 v. Moog Louisville Warehouse, 852 F.2d 871 (C.A.6, 1988), procedural matters (such as the timeliness of a claim) are presumptively resolved by an arbitrator unless the parties have specified otherwise in the arbitration agreement. See id. at 875.

In General Drivers, the parties' arbitration agreement provided that untimely grievances "``shall not thereafter be arbitrable.'" Id. at 873. The Sixth Circuit Court of Appeals found that this language constituted "positive assurance" that the parties intended that the timeliness issue was for the court to decide as a condition precedent to arbitration. Id. at 874. As stated in the text, the language of the parties' arbitration agreements in this case contains no similar language of "positive assurance" that they intended to remove the question of timeliness of a claim from the arbitrator's consideration.