Wells Fargo Bank, N.A. (“Wells Fargo”), and Teresa Grier appeal from the judgment of the Tallapoosa Circuit Court denying their motion to compel John Robert Chapman, Jr. (“Chapman”), individually and as administrator of the estate of Margaret McCall Chapman (“the estate”), to arbitrate the claims brought against Wells Fargo and Grier arising out of the “cashing in” of a certifícate of deposit (“CD”) on April 2, 2009, and the death of Margaret McCall Chapman (“Maggie”) on April 2 or 3, 2009.
In May 2003, Maggie, who was then approximately 15 years old, opened a checking account (“the account”) at what was then SouthTrust Bank (“SouthTrust”). The account was a “multiple-party with survivorship” account, with Chapman, Maggie’s father, designated as the other party to, and other authorized signer on, the account. Both Maggie and Chapman signed the signature card, with Maggie also signing an Internal Revenue Service (“IRS”) certification on the signature card. The signature card contained, in pertinent part, the following deposit agreement:
“I/We hereby authorize each person whose name appears above to transact business with this account in writing, by telephone, in person, by telegram, by telex, and by means of any automated teller machine, point of sale terminal, or other electronic device. I/We acknowledge receipt of the Bank’s Rules and Regulations Governing Deposit Accounts and its Schedule of Services and Service Charges, and I/we acknowledge that we received a copy of the Bank’s Schedule of Funds Availability before signing this agreement. I/We agree to be bound by such Regulations and Schedule and all amendments made to either of them from time to time upon notice to any one of the persons signing above, each of whom is hereby designated as agent for the others in connection with all matters concerning this account.”
The arbitration agreement contained in the SouthTrust Rules and Regulations Governing Deposit Accounts (“account regulations”) in effect at the time Maggie and Chapman opened the account read, in part:
“34. ARBITRATION OF DISPUTES. BY OPENING OR MAINTAINING YOUR ACCOUNT, YOU AND WE AGREE THAT ANY CONTROVERSY BETWEEN YOU AND US, OR BETWEEN YOU AND ANY OF OUR OFFICERS, EMPLOYEES, AGENTS, OR AFFILIATED ENTITIES, THAT ARISES OUT OF OR IS RELATED TO YOUR ACCOUNT, OR ANY PRODUCT OR SERVICES RELATED TO YOUR ACCOUNT, OR ANY ADVERTISEMENT, INDUCEMENT, DISCLOSURE OR AGREEMENT RELATED TO YOUR ACCOUNT OR ANY SUCH PRODUCT OR SERVICES, OR THAT QUESTIONS THE ENFORCEABILITY OF THIS AGREEMENT TO ARBITRATE, OR ANY RELATIONSHIP THAT RESULTS FROM ANY OF THE FOREGOING, WHETHER THE CONTROVERSY IS NOW EXISTING OR ARISES IN THE FUTURE AND WHETHER BASED ON CONTRACT, IN TORT, OR ON ANY OTHER LE*777 GAL THEORY, INCLUDING CLAIMS OF FRAUD, SUPPRESSION, MISREPRESENTATION AND FRAUD IN THE INDUCEMENT (INDIVIDUALLY AND COLLECTIVELY, ANY ‘CLAIM’), WILL BE SETTLED BY BINDING ARBITRATION UNDER THE FEDERAL ARBITRATION ACT (‘FAA’), 9 U.S.C. SECTION 1ET SEQ....
“The arbitration will be administered by the American Arbitration Association (‘AAA’) under its Arbitration Rules for the Resolution of Consumer-Related Disputes....
“.... Any question regarding whether a particular dispute is subject to arbitration, including claims of unconscionability, will be decided by the arbitrator. ...”
Over the following years, changes were made to the account regulations governing the account and SouthTrust Bank merged with Wachovia Bank (“Wachovia”), which instituted its own regulations regarding the account. All the SouthTrust and Wa-chovia account regulations contained arbitration clauses, although they were not identical. Maggie continued to utilize the account until the date of her death on April 2 or 3, 2009.
Upon Maggie’s death, Chapman became the owner of the account by virtue of the survivorship provisions of the account. At some point after Maggie’s death, Wachovia merged with Wells Fargo. As of June 2011, the account remained open.
According to the complaint, Chapman held a CD in his name as “custodian” for Maggie with Wachovia at a branch in Alexander City. On April 2, 2009, Chapman went to the Wachovia branch in Alexander City between 10:30 a.m. and 11:15 a.m. During that visit, Chapman spoke with Grier, whom he informed that the purpose of his visit was to be certain that Maggie could not access or receive the funds held in the CD. Grier represented to Chapman that because he was the custodian of the CD, Maggie could not access the funds held in the CD without his signature. Chapman advised Grier or other agents of Wachovia that “payment of the CD funds [to Maggie] would result in Maggie being placed in imminent danger of suffering bodily injury and/or death.” Chapman then requested that Maggie’s name be removed from the CD entirely, so as to prevent her access to the funds; Grier represented that Maggie’s name had been removed from the CD and that no signature was necessary to effect the removal of Maggie’s name from the CD. However, despite those assurances, at approximately 1:58 p.m. on that same day, Maggie, who was then 21 years old, and another person visited the Wachovia branch in Auburn, Maggie redeemed the CD, and the bank paid her $11,224.17 in cash.
After Maggie received the money, she and others used some of the funds to purchase illegal narcotic drugs, which they consumed together. The remaining funds were taken to Birmingham to be used by others to purchase a vehicle, while Maggie remained in Auburn. Maggie died from a drug overdose on April 2 or 3, 2009.
Chapman, individually and as the administrator of Maggie’s estate, sued Wells Fargo and Grier, among others, alleging various theories of recovery. Against Wells Fargo, the complaint asserted claims of wrongful death, breach of contract, fraudulent misrepresentation, fraudulent suppression, and negligence/wantonness. Against Grier, the complaint asserted the following claims: fraudulent misrepresentation, fraudulent suppression, and negligence/wantonness.
Wells Fargo and Grier moved to compel arbitration of the claims against them. They produced copies of several account regulations that had governed the account
Chapman, on his own behalf and on behalf of the estate, filed a response in opposition to Wells Fargo and Grier’s motion in which he argued that Wells Fargo and Grier had not offered evidence of a contract calling for arbitration, that no agreement governing the CD at issue had been offered as evidence, and that Wells Fargo and Grier had not provided evidence indicating that Maggie or Chapman had ever received notice of the mergers of the respective banks or of changes to the account regulations governing the account. Chapman also argued that Grier, as an employee of Wells Fargo, was not entitled to rely on any arbitration agreement that might exist. Chapman did not provide the court any evidence in support of his opposition to the motion to compel arbitration.
The trial court denied Wells Fargo and Grier’s motion to compel arbitration. Wells Fargo and Grier appeal, arguing that they met their prima facie burden of proving the existence of a contract calling for arbitration and proving that the contract involved a transaction affecting interstate commerce and that Chapman and the estate failed to prove any applicable defenses to the arbitration agreement. We affirm the judgment in part, reverse it in part, and remand the cause with instructions.
“ ‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ Ex parte Roberson,749 So.2d 441 , 446 (Ala.1999). Furthermore:
“‘A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell,739 So.2d 1110 , 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. “After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’
“Fleetwood Enters., Inc. v. Bruno,784 So.2d 277 , 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers,674 So.2d 1260 , 1265 n. 1 (Ala.1995) (emphasis omitted)).”
Vann v. First Cmty. Credit Corp.,
Chapman contends that he did not sign the original SouthTrust signature card and that he is therefore not bound by the arbitration agreement in the original SouthTrust account regulations. However, our examination of the document reveals that he and Maggie signed in the signature section and that Maggie signed the IRS tax certification, because her Social Security number was the one used to establish the account. Thus, we reject any contention by Chapman that he is not bound by the arbitration agreement in the original SouthTrust account regulations.
Chapman next argues that Wells Fargo and Grier failed to prove that Maggie and Chapman were provided with the SouthTrust account regulations and, therefore, that the trial court properly denied Wells Fargo and Grier’s motion to compel arbitration. However, the SouthTrust signature card that both Maggie and Chapman signed stated that they “acknowledged receipt of the Bank’s Rules and Regulations Governing Deposit Accounts” and that they “agree to be bound by such Regulations -” The fact that the account regulations were part of the contract between Maggie and Chapman and South-Trust was therefore evident; Maggie and Chapman acknowledged receipt of those regulations, and Chapman cannot now claim ignorance of them. See Tyler v. Williams,
Chapman also challenges the validity of the arbitration agreement on the ground that Maggie’s minority at the time she opened her SouthTrust account prevented her from being able to contract. Certainly, Maggie’s contract with South-Trust was voidable because she executed it when she was a minor and it was not a contract for “necessaries.” S.B. v. Saint James Sck,
Chapman appears to further argue in his brief on appeal that Maggie could not have disaffirmed the contract with SouthTrust because its merger with Wachovia occurred before she reached the age of majority; we fail to see the legal importance of this fact. As noted above, Maggie could have disaffirmed her contract with SouthTrust while she was a minor; she did not. She also failed to disaffirm the contract at any time after the merger with Wachovia or after she reached the age of majority. As we ex-
As support for the trial court’s denial of Wells Fargo and Grier’s motion to compel arbitration, Chapman further suggests that Wells Fargo and Grier failed to prove the existence of a valid arbitration agreement because they did not prove that Maggie had received notice of the changes to the account regulations between 2003 and 2009 or of the merger between SouthTrust and Wachovia. Based on that argument, Chapman contends that Maggie could not have been bound by the arbitration agreements contained in the various account regulation changes and in the Wachovia account regulations, to which, Chapman argues, Maggie never assented. Likewise, Chapman appears to argue that he received no notice of the Wells Fargo merger and its account regulations, so he cannot be bound by the arbitration agreement in the account regulations as amended by Wells Fargo. As Wells Fargo and Grier point out, the various account regulations indicate that changes may be made in the account regulations from time to time; as Chapman points out, the exact wording and requirements of each of the account regulations varies, but they all require that some form of notice of the changes be provided to the account holder.
Our supreme court has stated that “[ajmendments to the conditions of unilateral-contract relationships [like those between a bank and its customers] with notice of the changed conditions are not inconsistent with the general law of contracts.” SouthTrust Bank v. Williams,
However, the record in each of those cases contained evidence indicating that notice of the provision in question had been provided to each party. In Williams, SouthTrust had presented evidence indicating that its customers had been given notice of the amendments to its regulations in January 1997 when SouthTrust “enclos[ed] in each customer’s ‘account statement’ a complete copy of the regulations, as amended.” Williams,
The record in the present case lacks any evidence indicating that notice of the various changes in the account regulations over the years or notice of the mergers between SouthTrust and Wachovia and Wachovia and Wells Fargo were provided to Maggie or to Chapman.
We next consider whether Chapman is required to submit the wrongful-death claim to arbitration under the South-Trust arbitration agreement. Chapman argues that, pursuant to Entrekin v. Internal Medicine Associates of Dothan, P.A.,
We assume that Chapman advances this argument because Chapman contends that he did not sign the SouthTrust signature card and that he is therefore not bound by the SouthTrust arbitration agreement. We have concluded that the evidence establishes that Chapman did sign the signature card, however; therefore, we need not determine whether Carraway and Tur-cotte stand for the proposition that a decedent may agree to arbitrate a wrongful-death claim arising from his or her own death. Instead, we may rely on Chapman’s being a signatory to the SouthTrust arbitration agreement to compel him to arbitrate the wrongful-death claim like the personal representatives in Carraway and Turcotte.
Chapman further argues that Wells Fargo and Grier failed to provide an arbitration agreement pertaining specifically to the CD at issue. This argument is essentially one that the dispute regarding the CD is not within the scope of the arbitration agreement. Typically, once the movant has met its burden of proof, “ ‘ “the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’ ” Vann,
In CitiFinancial Corporation, L.L.C. v. Peoples,
By agreeing to SouthTrust’s account regulations, Maggie and Chapman agreed that the applicable arbitration rules of the AAA would govern any of their disputes with SouthTrust and its successor, Wells Fargo, and, pursuant to those rules, they agreed to submit any disputes as to the arbitrability of a particular claim to the arbitrator for resolution. Thus, that threshold question is not for the trial court to decide but, rather, is an issue for the arbitrator to resolve.
Chapman makes one additional argument regarding the motion to compel insofar as it relates to the claims asserted against Grier. He argues that Grier, as a nonsignatory to the arbitration agreement, is not entitled to enforce the arbitration agreement. We note that the SouthTrust arbitration agreement includes within its scope disputes between account holders and employees. Grier was employed by Wachovia on April 2, 2009, and, based on the allegations of the complaint, she was also employed by Wells Fargo at some point; the record does not reflect whether she was employed by SouthTrust. However, under the terms of the SouthTrust arbitration agreement, which continues in effect in light of the failure of proof regarding whether Maggie and Chapman received notice of the amendments to the account regulations or of the mergers between SouthTrust and Wachovia and Wa-chovia and Wells Fargo, any claims against Grier brought by Chapman, individually or on behalf of the estate, would be arbitrable if she were considered to be the employee of SouthTrust’s successor bank, Wachovia.
In any event, our supreme court has long held that a nonsignatory employee is entitled to rely on the arbitration agreement of his or her employer when the employee is sued for conduct occurring in the line and scope of his or her employment. See Monsanto Co. v. Benton Farm,
Wells Fargo and Grier have demonstrated that a written arbitration agreement exists, they have provided undisputed evidence demonstrating that banking activities like those Wells Fargo engages in affect interstate commerce, and they have demonstrated that Grier is entitled to enforce the arbitration agreement. Thus, Wells Fargo and Grier met their burden on the motion to compel arbitration. Chapman has failed to demonstrate that the SouthTrust arbitration agreement was invalid. The trial court erred in denying Wells Fargo and Grier’s motion to compel arbitration, and we reverse its judgment and remand the cause for the trial court to enter an order granting the motion to compel arbitration of the claims against Wells Fargo and Grier and to either issue a stay the action against Wells Fargo and Grier pending arbitration or to dismiss the action. See Peoples,
Wells Fargo and Grier further argue on appeal that the trial court erred by failing to impose the costs of this litigation on Chapman, individually and in his capacity as administrator of the estate. According to Wells Fargo and Grier, the Wells Fargo arbitration agreement requires that a party who fails to submit to arbitration after a lawful demand bears the costs and expenses, including attorney fees, incurred by the party seeking to compel arbitration. However, as we explained above, the operative arbitration agreement is the South-Trust arbitration agreement and not the Wells Fargo arbitration agreement. Thus, we cannot reverse the trial court’s judgment insofar as it refused to order Chapman to bear the costs and expenses associated with the motion to compel arbitration.
Notes
. On appeal, Chapman does not make any argument that the contracts containing the arbitration agreements do not involve a transaction affecting interstate commerce.
. As noted above, the various account regulations prescribed different ways of effecting notice, including mailing a copy of the amendments to the account holder or posting the amendments at a bank branch. In light of Wells Fargo and Grier's failure to present evidence indicating that notice of amendments and mergers was provided to Maggie and Chapman, we need not discuss further the various requirements of the various account regulations regarding notice.
. We note that Chapman argues that he did not sign the SouthTrust account as a personal representative or in a representative capacity. However, although the personal representatives in Carraway and Turcotte signed the arbitration agreements in some form of representative capacity, that particular fact did not appear to form the basis of the decisions to compel those personal representatives to arbitrate; to be certain, neither personal representative was a personal representative before the death of each decedent. Instead, it appears that the supreme court considered the fact that each personal representative was a signatory to the agreement to be the pivotal issue. See Noland Health Servs., Inc. v. Wright,
. If, as Chapman argues, Grier’s actions were not in the scope of her employment with Wachovia, then Wells Fargo would not be responsible for Grier's alleged misrepresentations, because liability of a principal under the theory of respondeat superior is based on the requirement that the act of the employee be committed in the line and scope of his or her employment or that the act be in the furtherance of the employer’s business or that the employer participate in, authorize, or ratify the act. See Pritchett v. ICN Med. Alliance, Inc.,