File Name: 12a0473n.06
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 10-4357
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
MARK E. DOTTORE, May 04, 2012
LEONARD GREEN, Clerk
Plaintiff-Appellee,
v. ON APPEAL FROM THE
UNITED STATES DISTRICT
THE HUNTINGTON NATIONAL BANK, COURT FOR THE NORTHERN
DISTRICT OF OHIO
Defendant-Appellant.
/
Before: KEITH, MARTIN, and BOGGS, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. The Huntington National Bank appeals the district
court’s denial of Huntington’s motion to compel arbitration in a case regarding investment fraud.
David Dadante allegedly operated an investment fund that was actually a Ponzi scheme. In the
matter before this Court, Mark Dottore, the receiver for the investment fund, alleges that Huntington
breached its duty of care to the fund investors and aided Dadante in committing fraud. Huntington
moved to compel arbitration on this claim, arguing that there exists between the parties an agreement
to arbitrate claims. The district court found there was no agreement to arbitrate and denied
Huntington’s motion. Huntington appeals, arguing that the district court erred in finding there was
no arbitration agreement. For the following reasons, the judgment of the district court is
AFFIRMED.
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Dottore v. Huntington Nat’l Bank
Page 2
“We review de novo a district court’s decisions regarding both the existence of a valid
arbitration agreement and the arbitrability of a particular dispute.” Floss v. Ryan’s Family Steak
Houses, Inc., 211 F.3d 306, 311 (6th Cir. 2000). “It is well settled in both commercial and labor
cases that whether parties have agreed to submit a particular dispute to arbitration is typically an
issue for judicial determination.” Granite Rock Co. v. Int’l Bhd. of Teamsters, 130 S. Ct. 2847, 2855
(2010) (alteration and internal quotation marks omitted).
While we recognize the federal policy favoring arbitration, Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983), “no matter how strong the federal policy favors
arbitration, arbitration is a matter of contract between the parties, and one cannot be required to
submit to arbitration a dispute which it has not agreed to submit to arbitration.” Simon v. Pfizer, Inc.,
398 F.3d 765, 775 (6th Cir. 2005) (internal quotation marks omitted); see also E.E.O.C. v. Waffle
House, Inc., 534 U.S. 279, 294 (2002). We thus consider whether, under Ohio law, the parties have
agreed to submit this dispute to arbitration.
Under Ohio contract law, “[t]he intent of the parties to a contract is presumed to reside in the
language they chose to employ in the agreement.” Kelly v. Med. Life Ins. Co., 31 Ohio St. 3d 130,
132, 509 N.E.2d 411, 413 (Ohio 1987). “Contract integration provides that where the parties’ intent
is sought to be ascertained from several writings, a prior writing will be rejected in favor of a
subsequent one if the latter writing contains the whole of the parties’ agreement.” TRINOVA Corp.
v. Pilkington Bros., P.L.C., 70 Ohio St. 3d 271, 275, 638 N.E.2d 572, 575 (Ohio 1994). Thus, when
the latter writing “is complete and unambiguous on its face, parol evidence is inadmissible to show
a contrary intent of the parties.” Id.; see also State ex rel. Petro v. R.J. Reynolds Tobacco Co., 104
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Dottore v. Huntington Nat’l Bank
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Ohio St. 3d 559, 564, 820 N.E.2d 910, 915 (Ohio 2004) (“The purpose of contract construction is
to effectuate the intent of the parties, and that intent is presumed to reside in the language they chose
to employ in the agreement. Courts resort to extrinsic evidence of the parties’ intent only where the
language is unclear or ambiguous, or where the circumstances surrounding the agreement invest the
language of the contract with a special meaning.” (citations and internal quotation marks omitted)).
“A contract that appears to be a complete and unambiguous statement of the parties’ contractual
intent is presumed to be an integrated writing.” Bellman v. Am. Int’l Grp., 113 Ohio St. 3d 323, 326-
27, 865 N.E.2d 853, 857 (Ohio 2007). Where a contract is found to be integrated, courts consider
the language of the contract alone to define the obligations by which the parties intended to be
bound. Id., 865 N.E.2d at 856-57 (“The parol-evidence rule . . . assumes that the formal writing
reflects the parties’ minds at a point of maximum resolution and, hence, that duties and restrictions
that do not appear in the written document were not intended by the parties to survive.” (alteration
and internal quotation marks omitted)).
When Dadante opened fund accounts with Great Lakes Bank and Metropolitan Bank in 2001,
he signed agreements governing the accounts. Neither party has been able to find the original, signed
account agreements, but they agree these documents did not include an arbitration agreement. In
2003, both Great Lakes and Metropolitan merged into Sky Bank, succeeded in interest by
Huntington. At the time of the merger, Huntington sent notices to all bank customers, attaching a
document labeled “Deposit Account Agreement and Disclosure” which informed the recipients of
the “terms and conditions” under which their accounts would now be governed; these terms and
conditions include an agreement to arbitrate. In 2005, Frank Regalbuto, a representative of the
No. 10-4357
Dottore v. Huntington Nat’l Bank
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investment fund, signed and filed a change of signature with Huntington, substituting himself for
Dadante on the fund’s account. The second page of the 2005 change of signature document is titled
“YOUR DEPOSIT ACCOUNT TERMS AND CONDITIONS” and reads: “AGREEMENT – These
terms govern the operation of this account unless varied or supplemented in writing . . . . Each of you
agrees . . . to the terms of this account.” This document does not include an agreement to arbitrate.
We do not need to determine whether the original 2001 account agreements allow or prohibit
amendments such as those in the 2003 notice or whether the parties were bound by the unsigned
2003 notice of account terms. No enforceable arbitration agreement exists between the parties
because the 2005 change of signature document governs the account and it does not include an
agreement to arbitrate. This 2005 document is entitled “account terms and conditions.” The
document provides an array of terms and conditions to govern various aspects of the operation of the
account, including clauses regarding “liability,” “deposits,” “withdrawals,” “ACH and wire
transfers,” “ownership of [the] account and beneficiary designation,” “amendments and termination,”
“direct deposits,” and “unclaimed funds.” The document does not incorporate any documents by
reference. By its own terms, the document limits the agreement governing the operation of the
account to those terms and conditions contained within the document, “unless varied or
supplemented in writing.” It has not been. We hold that the 2005 agreement is “complete and
unambiguous on its face” and evidences the parties’ intent for the account to be governed by this
document. Therefore, we do not consider outside evidence in our determination of the obligations
by which the parties intended to be bound. See TRINOVA Corp., 70 Ohio St. 3d at 275, 638 N.E.2d
at 575; Petro, 104 Ohio St. 3d at 564, 820 N.E.2d at 915.
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Dottore v. Huntington Nat’l Bank
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Because the agreement is complete and unambiguous, Ohio law presumes it is integrated.
See Bellman, 113 Ohio St. 3d at 326-27, 865 N.E.2d at 857. The integrated agreement does not
contain an agreement to arbitrate. Therefore, the district court did not err in denying Huntington’s
motion to compel arbitration.
The judgment of the district court is AFFIRMED.