Tomazich v. U.S. Bancorp

No. 04-452
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 243NSTEPHEN C. TOMAZICH,
Plaintiff and Respondent,
v.
U.S. BANCORP PIPER JAFFRAY, INC.,
ROBERT ENGLISH, and THOMAS J. O’NEILL,
Defendants and Appellants,
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow, Cause No. DV 02-131,
The Honorable Kurt D. Krueger, Judge presiding.
COUNSEL OF RECORD:
For Appellants U.S. Bancorp Piper Jaffray, Inc., and Robert English:
Stanley T. Kaleczyc and Brand G. Boyar, Browning, Kaleczyc, Berry &
Hoven, P.C., Helena, Montana
John S. Lutz, Fairfield and Woods, P.C., Denver, Colorado
For Appellant Thomas J. O’Neill:
Robert J. Phillips and John F. Haffey, Phillips & Bohyer, Missoula, Montana
For Respondent Tomazich:
Donald C. Robinson and Lisa A. Levert, Poore, Roth & Robinson, P.C.,
Butte, Montana
Submitted on Briefs: March 30, 2005
Decided: September 27, 2005
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Pursuant to § I, para. 3(c), Montana Supreme Court 1996 Internal Operating Rules,
the following decision shall not be cited as precedent. It shall be filed as a public document
with the Clerk of the Supreme Court and its case title, Supreme Court cause number and
disposition shall be included in this Court's quarterly list of noncitable cases published in the
Pacific Reporter and Montana Reports.
¶2 The case is one of 23 different actions against U.S. Bancorp Piper Jaffray, Inc.,
(Piper) involving the alleged mismanagement of accounts in the corporation’s Butte office.
This particular action involves several forms, the first of which was signed by Stephen
Tomazich (Tomazich) in 1993.
¶3 These facts and the issues arising here are substantially identical to those in Willems
v. U.S. Bancorp Piper Jaffray, Inc., 2005 MT 37, ¶ 22, 326 Mont. 103, ¶ 22, 107 P.3d 465,
¶ 22. That case held that a clause granting Piper broad discretion over an investor’s holdings
created a fiduciary duty. Willems, ¶ 22. That same clause, in addition to the arbitration
clause, was included as part of Tomazich’s 1993 PAT Plus Agreement. Willems, ¶ 17.
Willems further held that because of the fiduciary duty, Piper was obligated to advise the
investor of the arbitration clause, and that because Piper did not, the arbitration clause was
unenforceable. Willems, ¶ 25.
¶4 Here, in light of Willems, O’Neill owed a fiduciary duty to Tomazich to explain the
arbitration provisions in the contracts at issue, beginning therein with the 1993 form.
Further, Tomazich relied on Thomas O’Neill’s (O’Neill) expertise in the business
transactions at issue and trusted him to look out for his best interest and expected him to
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explain any important contract terms. However, O’Neill failed to explain to Tomazich the
consequences of the arbitration provisions that Tomazich was found to have not understood.
Therefore, we affirm the District Court’s conclusion that the pre-dispute arbitration
provisions are unenforceable and decline to address further issues raised by appellants.
/S/ JOHN WARNER
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
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