First of Michigan Corp. v. Trudeau

• Decision Date: 21 December 1999
• Docket Number: Docket No. 210296.
• Citation: 603 N.W.2d 116,237 Mich. App. 445
• Parties: FIRST OF MICHIGAN CORPORATION, and John Amrozi, Plaintiffs-Appellants, v. Joseph A. TRUDEAU, and Helen Trudeau, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

603 N.W.2d 116

237 Mich. App. 445

FIRST OF MICHIGAN CORPORATION, and John Amrozi, Plaintiffs-Appellants, v. Joseph A. TRUDEAU, and Helen Trudeau, Defendants-Appellees.

Docket No. 210296.

Court of Appeals of Michigan.

Submitted June 9, 1999, at Detroit.

Decided September 10, 1999, at 9:00 a.m.

Released for Publication December 21, 1999.

Miller, Canfield, Paddock and Stone, P.L.C. (by Michael P. Coakley, Thomas R. Cox, and James M. Pelland), Detroit, for the plaintiffs.

Weisman, Trogan, Young & Schloss, P.C. (by Anthony V. Trogan, Jr.), Bingham Farms, for the defendants.

Before: ZAHRA, P.J., and SAAD and COLLINS, JJ.

SAAD, J.

I NATURE OF THE CASE

The arbitration codes for each of the securities self regulatory organizations, including the New York Stock Exchange (NYSE), provide that the investor is contractually obliged to bring an arbitral claim against his broker within six years of the alleged wrongful conduct ("event giving rise to the claim"). Our Court has held that an identically worded six-year rule is not a statute of limitation, but rather an eligibility rule that will not be subject to equitable tolling principles. Chubb Securities Corp. v. Manning, 224 Mich. App. 702, 708-709, 569 N.W.2d 886 (1997). Accordingly, claims of fraudulent concealment will not toll the six-year eligibility period. Id. Therefore, an investor who claims that a broker induced him to make an unsuitable investment must demand arbitration within six years of the investment or lose his right to arbitrate — even if the broker's fraudulent concealment prevented the investor from discovering that the investment was unsuitable within the six-year period.

Here, the investors-defendants Joseph and Helen Trudeau alleged in their arbitration demand that plaintiffs intentionally misstated the value of their investments by supplying them with an inaccurate statement. Although the Trudeaus made the investments more than six years before they demanded arbitration, they allege that plaintiffs made the alleged material misrepresentations within the six-year eligibility period. The Trudeaus contend that plaintiffs' issuance of inaccurate financial statements constitute new and distinct wrongdoings and that their claim was therefore eligible under the six-year rule. The identical question raised here by the Trudeaus was recently answered by the Sixth Circuit Court of Appeals in Osler v. Ware, 114 F.3d 91 (C.A.6, 1997). There, as here, the investor claimed that the broker's periodic financial statements misrepresented the value of the investor's portfolio. The investor in Osler, like the Trudeaus here, argued that the misrepresentation was a separate and distinct wrongful act that triggered a new six-year eligibility period. The broker in Osler, as here, asserted that any claim must relate to the original investment and should therefore be precluded by the six-year rule if not made within six years of the original investment. Recently, this Court adopted the reasoning and holding of Osler, and held that the six-year rule did not preclude arbitration claims for misconduct that occurred after the initial investment, such as account "churning" and misrepresentation of an investment's performance. Todorov v. Alexander, 236 Mich.App. 464, 600 N.W.2d 418 (1999). Accordingly, we find that postinvestment claims regarding the misrepresentation of the value of the investor's portfolio is a separate "event giving rise to" a new claim, thereby triggering a new six-year eligibility period. We therefore remand to the trial court for determination of which of defendants' claims are eligible for arbitration under the six-year rule.

II FACTS AND PROCEEDINGS

The controlling facts are not in dispute. Plaintiff First of Michigan Corporation is a securities broker/dealer. Plaintiff John Amrozi is First of Michigan's registered representative who was assigned to the joint investment account owned by defendants. Utilizing plaintiffs' services, defendants made several investments in limited partnerships through plaintiffs between November 6, 1985, and December 21, 1988. Defendants signed an account agreement that included a predispute uniform submission agreement for NYSE arbitration. According to the terms of the arbitration agreement, defendants were bound by the NYSE arbitration rules, including Rule No 603:

No dispute, claim or controversy shall be eligible for submission to arbitration under this Code where six (6) years shall have elapsed from the occurrence or event giving rise to the act or the dispute, claim or controversy. This section shall not extend applicable statutes of limitations, nor shall it apply to any case which is directed to arbitration by a court of competent jurisdiction.

In October 1995, defendants initiated an arbitration action against plaintiffs in the NYSE. In the arbitration claim, defendants alleged, inter alia, that plaintiffs made repeated and continuing misrepresentations and committed new acts of misconduct after defendants purchased the investments. Plaintiffs moved to enjoin arbitration pursuant to Rule 603, arguing that all of defendants' arbitration claims were ineligible pursuant to the six-year rule. The trial court granted plaintiffs' motion with respect to all of defendants' claims except paragraph 11(b) of their first amended statement of claim, which reads as follows:

Many times over the years, [defendants] asked for a "portfolio" showing all of their investments and their current value. Each time Mr. Amrozi would say "OK — it's in the mail". The "portfolio" never arrived until after the request was made in writing by letter dated October 7, 1994.... What was eventually delivered was itself fraudulent and misleading.

Plaintiffs maintained that this claim, as well as the others, was rendered ineligible because it was filed more than six years after the investments had been purchased. Plaintiffs averred that the trial court was bound to bar the arbitration under the rule announced in Chubb. The trial court, however, concluded that this claim was predicated on events that occurred within the six-year period preceding the defendants' filing of the claim and that Chubb was therefore distinguishable. Plaintiffs now appeal, and we affirm the judgment of the trial court.

III ANALYSIS

Plaintiffs argue on appeal that the trial court failed to follow Michigan law when it refused to bar all of defendants' claims as ineligible for arbitration. We disagree.

Plaintiffs contend that the trial court failed to follow the binding precedent of Chubb when deciding this case and, therefore, failed to afford Chubb the precedential effect required by MCR 7.215(C)(2). However, because Chubb is factually distinguishable from the present case, the trial court was not required to arrive at the same conclusion that this Court reached in Chubb. Chambers v. Midland. Country Club, 215 Mich.App. 573, 578, 546 N.W.2d 706 (1996). Furthermore, this Court recently elaborated on the reasoning in Chubb and held that Chubb did not apply where the investor complained of conduct that took place after the initial investment was made. Todorov, supra.

In Chubb, the parties' arbitration dispute was governed by the National Association of Securities Dealers Code of Arbitration Procedure, which included a six-year eligibility rule (§ 15) identical to Rule 603. The defendant-investor sought arbitration, claiming that the plaintiff-broker had fraudulently induced her into investing in an unsound limited partnership. Id., 704, 569 N.W.2d 886. Defendant claimed that she was entitled to arbitration because the plaintiff's alleged fraudulent concealment tolled the six-year time limit. This Court held that the six-year eligibility period began to run at the time the fraud was perpetrated, that is, when the investment purchases were made and not when the investor first discovered that she suffered a financial loss. Id., 708-709, 569 N.W.2d 886. The Court rejected the argument that the contractual limitations period had been "tolled" by the plaintiff's fraudulent concealment:

[T]he six-year eligibility period found in former § 15 of the NASD code cannot be tolled on the basis of a claim of fraudulent concealment....

[T]he six-year eligibility period of former § 15 began to run at the time the investment purchases were made, rather than, as argued by defendant, when defendant decided that the purchases were no longer in her best interest.... We agree with the court in [Dean Witter Reynolds, Inc. v. McCoy, 853 F.Supp. 1023,] 1030-1031 [(E.D.Tenn., 1994), aff'd. 70 F.3d 1271 (C.A.6, 1995) ], that "[t]he date of the occurrence or event does not under any circumstances depend on the date when the aggrieved investor first discovers that he or she has suffered a financial loss." [Id., 707-708, 569 N.W.2d 886.]

The Court further commented that "if the limited partnership investments were too speculative and not in the best interests of defendant, then the investments were not suitable on the dates that the investments were purchased." Id., 709, 569 N.W.2d 886.

Here, defendants maintain that paragraph 11(b) of their claim is distinguishable from the investor's claim in Chubb because their claim does not challenge the original investment, but instead seeks relief for wrongful conduct that is...