Long v. DeGeer
753 P.2d 1327
Okla.
1987
Check Treatment

*1 LONG, Appellee, Mary L. DeGEER, Appellant. of Oklahoma.

Supreme Court Oct. 3,May Jackman, Walker, Williamson

Pray, Jackman, James by Warren Marlar J. Tulsa, Bullock, F. Santee, Martin, Tetrick Imel &

Moyers, Jr., Imel, Rooney, E. M. and John by John Tulsa, appellant.

LAVENDER, Justice: Long Mary L. May Agreement Account

signed a Securities *2 Kidder, employee Peabody, stockbroker of consideration of had dealt from a with the initiation opening carrying securities ac- and Kidder, of dealings Peabody, her with con- and count involving had handled the provision: her following tained thе Appellee’s petition securities account. be- Arbitration of Controversies alleged appellant fore the state court us out Any between fraudulently induced her into the secu- of transac- relating of or to accounts or rities account and had subse- or for me tions with quently damages her caused from the by or the breach thereof shall be settled handling negligent fraudulent and/or rules in accordance with the Appellant her securities account. moved the American Arbitration Asso- either compelling ap- the trial court for аn order of the or the Board of Arbitration ciation pellee complaints her to arbitra- Exchange, may York as New Stock compliance provisions tion in with If I election elect. do not make agreement. tri- by registered you mail in addressed to compel al court denied the motion to arbi- your City in York within main office New appellant appealed and tration from that (5) days you after demand five order.1 made, may you then such election generally The courts look with favor my Judg- make such election on behalf. upon provisions as a shortcut upon any by the award rendered justice substantial with a minimum of court court, be entered arbitrators interference.2 ar- federal, having jurisdiction. state clause of not bitration this contract should 13, 1984, appellee brought On December one, given two reasons: an action United States District Court two, against policy; it would be and for the Northern District given should not be ben- Kidder, Peabody as naming defendant. provisions efit of the as he was ‍​​‌​​‌​​​​​​‌‌‌‌‌‌​​‌‌‌​‌​​​‌​‌​‌‌​​​​​‌​‌‌​‌​​‌‍based, alia, allega- inter That action was to the account a securities appellee had been induced into tions that agreement. misrepresentation ap- and that fraud We address the second Kidder, damaged by pellee had been Pea- Appellee apрears first. to base this body’s negligent fraudulent and/or deal- is no premise ment on the that there con appellee’s ings regarding securities ac- relationship existing ap- tractual bеtween count. pellee appellant as the secu agreement. rities court, 25, 1985, April The federal basis pleadings, indicate that the staying appellee’s an order clаims tered against appellant was the for the action alleged federal securities act vio- based existence of the securities account lations and ordered rеmainder appellant’s handling appellee’s ment and lee’s claims be submitted appel In this securities account. accordance with Kidder, clearly lant acted ment. sеcuring appellee’s ac Peabody, both handling September initially later count all times present County action Tulsa was at brought the account. relationship as naming apрellant clearly Court De- aware of District against Appellant, initial federal suit sole defendant. evidenced Geer as Indepen- Teachers denial a motion to Association Classroom 1. The #89, pursuant appealable O.S. P.2d School Dist. dent 1.60(i), 817(A)(1) O.S.Supp.1984, (Okla.1975). Rule 15, App. Ch. in which she characterized indicated by the facts Peabody. pled in appellee’s complaint in federal court. As alleged provided The arbitration here wrongful clearly arose out of the existence disputes arising for arbitration of out of or of the the seсurities relating to the or transactions con- agreement, dispute regarding cerning action the account. those actions is clearly lies the ambit of within the arbitra- *3 agreement tо arbitrate. provision. question tion The of whether nonsignatory the handling matters Appellee argues also this agreement that the to arbitrate is a waiver ment bring questions should be allowеd to jury of a to trial and as such there concerning those matters into arbitration must be evidence of a clear intent to waive agreement under the under facts similar to right. agreement The in this the consistantly situation has been stance, face, on its evidences a clear intent answered the affirmative.3 to controversy between appel- lee and lаnguage Peabody, arising The used in the arbitra out of the tion clause to existence the account or out applies the that it to of transac any controversy arising account, out of tions on Appel- to arbitration. argues transactions lee now that her does enough broad disputes to embrace founded not extend to taken in tort as long well as contract as employee Kidder, Peabody, although disputes have roots in their acknowledges she that the contract.4 The could take no except actions on parties between the governed by here is through employees. its We find this ordinary contract and principles.5 to illogical.6 ment The fact appellee recognized ap that рellant acting was at all The argument presented by times as an other appeal creation of the this asserts that it would and in against public to allow Co.,Inc., clause); Samsethsiri, Cal.App. 3. Berman Witter v. Dean & 44 Belobradich v. 131 Mich. 999, (1975); Cal.Rptr. Lynch, 241, 3d 119 130 (1983) (terms Merrill App. 346 N.W.2d 83 Pierce, Smith, Inc., Melamed, Fenner and v. 453 signed only by plaintiff extended to those Paine, Webber, ‍​​‌​​‌​​​​​​‌‌‌‌‌‌​​‌‌‌​‌​​​‌​‌​‌‌​​​​​‌​‌‌​‌​​‌‍(Fla.Ct.App.1984); So.2d 858 agreеments signing, time at leav Inc., Curtis, McNeal, Ga.App. Jackson & v. 143 ing signed defendant who at later 579, (1977); Weisglass, Dunay 239 S.E.2d 401 v. arbitration). date without recourse to 25, 54 N.Y.2d 444 N.Y.S.2d 429 N.E.2d 92 (1981); O’Rourke, Starr v. 5 Misc.2d 159 Co., Inc., supra v. Berman Dean Witter N.Y.S.2d 60 cited authorities contrary appellee as to this distin result are guishable Management, Property facts. their Shipping Oriental See Commercial Howasa, Inc., Ill.App.3d Ltd. v. 2d 14 302 N.E. Ltd., Rosseеl, N.V., (S.D.N.Y. F.Supp. v. 75 609 (1973) ‍​​‌​​‌​​​​​​‌‌‌‌‌‌​​‌‌‌​‌​​​‌​‌​‌‌​​​​​‌​‌‌​‌​​‌‍(involved lease be 1985); Inc., Systems, plaintiff Financial Flor subsidiary tween party defend Hartford arbitration, Services, asserting F.Supp. ant ida where lease Software (D.Maine 1982). plaintiff bеen entered into between subsidiary acting behalf.); Computer own Zarecor, Mass.App. America position also (defendants (1983) seeking 452 N.E.2d 267 arbi janitorial employee of is no different than a being tration had denied bound to contract con company robbed the who has taining clause in their answer belonging safe and stolen funds complaint.) Board Education Meridian v. argument entirely specious. This is Such ac- Asso., Ill.App.3d Meridian Education hypothesized by appellee tions would not (1983) (association Ill.Dec. 445 N.E.2d 864 constitute a out of the exist- could not arbitration on behalf of sub ence transactions on group subgroup of members where that was not that account. by agreement containing covered right to implicit of her fundamental agreement. This waiver enforce the then, provi- under the cited by jury, a trial founded on a belief argument appears to be law, her sions of this state’s fundamental just attain might avoidable. promise this The assertion of through arbitration. contrary belief, clause acknowledgment of Court’s against Mary Long appears to be forced jus- to substantial process аs an avenue governed by laws of the of New State support fails tice.7 also signed recites York. contract she so logical as to supposed belief infirmity in clause. and she claims no provide an ade- would not why arbitration argue here her arbitra- Nor does she complaints.8 Fur- remedy for her quate as viola- tion unenforceable ther, in arbitration is sub- publiс policy principle an award made es- tive of some governs param- poused by review the courts assure the law that ject to promise.2 to as- eters her contraсtual impartiality the arbitrators *4 proceedings were sure that Mary I cannot conclude that Because Appellee’s argument fairly conducted.9 governed Long’s not allow should law, concur in the ‍​​‌​​‌​​​​​​‌‌‌‌‌‌​​‌‌‌​‌​​​‌​‌​‌‌​​​​​‌​‌‌​‌​​‌‍must provisions is rely on the arbitration lant to opinion. judgment court’s unpersuasive. denying ap- court The order the trial compel arbitration is

pellant’s motion to is REMANDED Thе cause REVERSED. entry court of an order to the trial compelling in accordance with 803(A).

15 O.S. § STEENBERGEN, Appellant, C.J., HARGRAVE, DOOLIN, V.C.J., Bobbie Lou SIMMS, SUMMERS, OPALA and JJ., concur. AND FEDERAL FIRST SAVINGS CHICKASHA, J., KAUGER, et part, OF concurs LOAN al., Appellees. part. dissents WILSON, JJ., dissent. HODGES Supreme Court Oklahoma.

OPALA, Justice, concurring. Dec. 1987. Constitution, Art. 23 Under Oklahoma’s 8,1 express implied ‍​​‌​​‌​​​​​​‌‌‌‌‌‌​​‌‌‌​‌​​​‌​‌​‌‌​​​​​‌​‌‌​‌​​‌‍contractual waiv- § 1988. March appear to be ers of a constitutional unenforceable. Long’s Mary

If in suit were to be construed as an now contract, "Any express provision or im- Supra, any person, plied, which made she was assertion that induced Constitution benеfits of agreement by into the securities account enter waived, [Emphasis be null and void.” shall issue. Paint fraud is itself arbitrable Prima added.] Mfg. Corp., U.S. v. Flood Conklin (1967). S.Ct. L.Ed.2d 1270 Keller, Okl., 2. See 673 P.2d Benham [1983]. (A)(2) and §§ 15 O.S.1981 Const., provide: 1. The terms of Art. 23 Okl.