Eassa Properties v. Shearson Lehman Bros., Inc.

• Decision Date: 08 August 1988
• Docket Number: No. 87-8582,87-8582
• Citation: 851 F.2d 1301
• Parties: EASSA PROPERTIES, a Florida General Partnership, Plaintiff-Appellant, v. SHEARSON LEHMAN BROTHERS, INC., Michael W. Swofford and Terry W. Bishop, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1301

851 F.2d 1301

EASSA PROPERTIES, a Florida General Partnership, Plaintiff-Appellant, v. SHEARSON LEHMAN BROTHERS, INC., Michael W. Swofford and Terry W. Bishop, Defendants-Appellees.

No. 87-8582.

United States Court of Appeals, Eleventh Circuit.

Aug. 8, 1988.

Charles E. Campbell, Hicks, Maloof & Campbell, Peter J. Quist, Atlanta, Ga., for plaintiff-appellant.

Peter J. Anderson, Peterson Young Self & Asselin, Louise Bailey Matte, Joel L. Larkin, Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH, Circuit Judge, HENDERSON ^* and HENLEY ^**, Senior Circuit Judges.

HENDERSON, Senior Circuit Judge:

Eassa Properties ("Eassa"), a Florida general partnership, appeals from an order entered by the United States District Court for the Northern District of Georgia granting the motion of Shearson Lehman Brothers, Inc. ("Shearson") and Terry W. Bishop to compel arbitration of several of Eassa's claims in this securities fraud action. We affirm.

Eassa is composed of four partners who are brothers. Alexander A. "Sandy" Simon, Jr., one of the partners, is the only brother to play a significant role in this case. Shearson is a Delaware corporation with its principal place of business in New York. During the relevant time period, Michael W. Swofford ¹ was a broker at Shearson. Bishop, a commodities specialist, assisted Swofford in trading for his commodity accounts at Shearson.

In 1982, Simon, who holds a master's degree from the Wharton School of Business of the University of Pennsylvania, was hired by Burton L. Reynolds, a well known actor and director, to handle his financial affairs. In order to facilitate this purpose, Simon held Reynolds's power-of-attorney. In mid-1983, Simon opened separate security accounts for himself and for Reynolds with Swofford at Shearson's Little Rock, Arkansas office. In doing so, Simon and Reynolds signed Customer's Agreements. In August, 1984, Simon opened separate commodity accounts for himself and for Reynolds with Swofford. Simon signed a Commodity Customer Agreement for his own account. Simon, as Reynolds's attorney-in-fact, executed a new Customer's Agreement for Reynolds's security account and a Commodity Customer Agreement for Reynolds's commodity account. In that same month, Simon also opened a security account and a commodity account with Swofford on behalf of Eassa. ²

On October 9, 1984, Swofford forged Simon's name to a purported letter of authorization, permitting the withdrawal of $700,000.00 from Reynolds's account. When confronted, Swofford eventually admitted that he had forged the signature on the letter. A subsequent investigation revealed that Swofford had stolen hundreds of thousands of dollars from Reynolds which he used to purchase a house, two expensive automobiles, a boat and other items of personal property. ³ It was also discovered that Swofford and Bishop apparently had transferred large sums of money without authorization from Eassa's security account to its commodity account and had begun to engage in high volume discretionary trading of commodities in excess of the account limitations placed on Shearson by Eassa.

On October 4, 1984, Simon, having been told by Swofford that the Eassa accounts had generated substantial profits, elected to cease trading in Eassa's accounts and to collect its profits. Simon received a check for $100,000.00 payable to Eassa on October 5, 1984 but never recouped the balance of the money he claims is owed to Eassa.

On November 22, 1985, Eassa filed a complaint in the United States District Court for the Northern District of Georgia seeking monetary damages based on different theories, including the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1961-1968; section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. U.S.C. Sec. 78j; Rule 10b-5 promulgated thereunder; section 12(2) of the Securities Act of 1933, 15 U.S.C. Sec. 77l(2); and various state securities and common law causes of action. On January 7, 1986, Shearson and Bishop filed a motion to compel arbitration of all of Eassa's claims except the count alleging a violation of Sec. 12(2). See 15 U.S.C. Sec. 77n; Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). The district court conducted a hearing on the motion on March 23 and 24, 1987 and granted the motion in an order dated June 17, 1987. This appeal followed.

At the district court hearing, Shearson produced three documents that purport to bind Eassa to arbitrate its claims against Shearson. These documents are a Customer's Agreement, a Commodity Customer Agreement and a Commodity Option Agreement (hereinafter referred to collectively as the "Agreements"). ⁴ The first two documents contain arbitration clauses while the third document incorporates by reference the arbitration provision in the second document.

On the Customer's Agreement, Simon's signature appears twice. The typewritten name "EASSA PROPERTIES" is displayed above each signature and "by: Alexander A. Simon, Jr. 8-24-84" is typed below each signature. On the Commodity Customer Agreement, Simon's signature appears five times. The typewritten name "EASSA PROPERTIES, by: A.A. Simon, Jr." appears beneath each signature. On the Commodity Option Agreement, "EASSA Properties, by A.A. Simon, Jr." is typed below Simon's signature. Eassa contends that the signatures on these documents are forgeries, but that even if they are genuine, Simon did not intend, nor did he have the authority, to bind Eassa to arbitration.

Simon did not deny that the signatures on the Agreements were in fact his signatures. He merely stated that he could not positively identify them. James A. Kelly, a forensics document examiner with the Georgia Bureau of Investigation, testified that he believed that the signature on only the Commodity Customer Agreement was "probably" a forgery. The district court examined the Agreements, compared the signatures on those documents with Swofford's forged signature and with signatures that Simon admitted were genuine, and concluded that Simon had signed all three Agreements. This finding of fact is not clearly erroneous. See Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 528 (1985) (a finding of fact will not be reversed as being clearly erroneous unless "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.").

Despite some evidence to the contrary, the district court accepted Simon's testimony that the Agreements contained no handwritten or typed information when he received them, with the exception of an "X" adjacent to the signature lines. Although it is undisputed that an agent of Shearson typed Eassa's name and account number on the front of the Agreements, the parties disagree about who typed the "Eassa" designation next to Simon's signatures. Simon contends that Shearson's agent typed the designation while Shearson claims that Simon's secretary, Wanda Machek, typed in the name. Although the district court stated that it was "unlikely" that Shearson completed the forms, the court did not make a finding on this issue. The court held that even if Shearson completed the Agreements, Eassa is bound by the arbitration provisions because "Simon intended to sign the documents on behalf of EASSA [and] ... authorized Shearson to complete the documents on behalf of EASSA." ⁵ Eassa argues that the district court's findings on the questions of intent and authorization are clearly erroneous.

The district court rejected Simon's testimony that, at the time he signed the Agreements, he "probably" though that they were for his personal account. The court's finding that Simon intended to bind Eassa when he signed the Agreements is not clearly erroneous in light of the fact that Simon admitted that he had previously executed identical documents for both his and Reynolds's accounts and the fact that he admitted that he intended to open a security and a commodity account for Eassa and had assumed that Shearson would send him the appropriate documentation to accomplish that purpose. The district court's finding that Simon impliedly authorized Shearson to complete the Agreements on Eassa's behalf also is not clearly erroneous in view of Simon's admission that he had discussed opening accounts for Eassa with Swofford and that,...