Madden v. Ellspermann
| Decision Date | 18 June 1991 |
| Docket Number | No. WD,WD |
| Citation | 813 S.W.2d 51 |
| Parties | Robert MADDEN, Respondent, v. John S. ELLSPERMANN, Appellant. 43821. |
| Court | Missouri Court of Appeals |
Robert O. Lesley, Cheryl M. Gill, Stinsen, Mag & Fizzell, Kansas City, for appellant.
Dennis E. Egan, Popham, Conway, Sweeny, Fremont & Bundschu, Kansas City, for respondent.
Before LOWENSTEIN, P.J., and TURNAGE and FENNER, JJ.
Robert Madden filed suit against Kidder, Peabody & Co., Inc. and John S. Ellspermann for breach of contract, wrongful termination and misappropriation of commissions. Kidder, Peabody and Ellspermann moved that the proceedings be stayed and the parties ordered to submit the matter to arbitration. The court sustained the motion of Kidder, Peabody and ordered that the dispute between Madden and the firm be arbitrated but overruled the motion of Ellspermann. Ellspermann appeals and contends that Madden signed a form which required the dispute between him and Madden be submitted to arbitration. Reversed and remanded.
Madden filed a petition against Kidder, Peabody and Ellspermann in three counts. The petition alleged that Kidder, Peabody and its office manager, Ellspermann, had requested Madden to leave his employment with E.F. Hutton and join Kidder, Peabody in a sales brokerage relationship. Madden alleged that he made certain demands which Kidder, Peabody would have to meet before he would be willing to agree to work for it. Among these demands was that Madden have a ten-year employment contract.
Madden alleged that he and Ellspermann signed a written employment agreement and attached a copy to the petition. The agreement does not specify that Madden would be employed for ten years.
Madden further alleged that he began employment with Kidder, Peabody on January 5, 1987. He alleged that Ellspermann notified him on March 21, 1988, that he was being terminated because he failed to notify Kidder, Peabody that he was purchasing an interest in Anchor Savings and Loan.
Madden alleged that Ellspermann acted individually and within the course and scope of his employment as the office manager of Kidder, Peabody in Kansas City. There are no allegations in the petition as to any individual acts taken by Ellspermann beyond the scope of his employment. The petition alleges that the act of Ellspermann in terminating Madden was done in the course and scope of his employment.
Ellspermann filed an answer in which he alleged that the court must compel arbitration because Madden agreed to arbitrate by signing a Uniform Application for Securities Industry Registration or Transfer (Form U-4). Form U-4 contained the following provision: "I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations with which I register...." The form indicated that Madden was registering with the National Association of Securities Dealers (NASD) and the New York Stock Exchange (NYSE).
Ellspermann filed an affidavit with the trial court and attached a copy of Sec. 8, p 3708 of the NASD Code of Arbitration Procedure which provides that a dispute, claim or controversy arising out of or in connection with the business of any member shall be arbitrated at the instance of a person associated with a member against a person associated with a member.
As noted Ellspermann filed a motion to stay proceedings and order arbitration on Madden's petition. The court overruled the motion and Ellspermann has appealed.
Madden contends the order is not appealable because § 512.020, RSMo 1986 1 only allows an appeal from a final judgment and the order refusing to submit the dispute to arbitration is not a final judgment. Section 435.440 provides that an appeal may be taken from an order denying an application to compel arbitration made under § 435.355. Section 435.355 states that on application of a party showing an agreement to submit a controversy to arbitration, the court shall summarily determine the issue whether an agreement to arbitrate exists if the opposing party denies the existence of the agreement to arbitrate. If the court finds for the moving party it shall order arbitration, otherwise it shall deny the application. Here the court did not make a finding of whether or not there was an agreement to submit the controversy to arbitration. However, this court assumes all fact issues were resolved in accordance with the result reached. Estate of Strauss v. Schaeffer, 781 S.W.2d 274, 275[1, 2] (Mo.App.1989). While it would certainly be helpful to have the benefit of the trial court's findings, the statute does not require findings and the parties did not request any. It must therefore be assumed that the court found that there was no agreement to submit this dispute to arbitration.
There is a conflict between § 435.440 and § 512.020 because the former allows an appeal from an order which does not constitute a final judgment while the latter requires a final judgment before an appeal is allowed. When there is a conflict between two statutes, one of which deals with a subject in a general way and the second treats a part of the same subject in a more detailed way, the specific statute will govern. O'Flaherty v. State Tax Com, 680 S.W.2d 153, 154 (Mo. banc 1984). Section 512.020 deals with appeals in a general way but § 435.440 deals specifically with an appeal from an order denying an application to compel arbitration. In that instance the special statute allowing an appeal from an order denying arbitration will prevail and the order denying arbitration in this case is appealable.
Ellspermann contends that Madden signed the Form U-4 which required Madden to submit any controversy arising out of the business of Kidder, Peabody to arbitration and the court should have ordered arbitration.
Madden contends first that he is not obligated to have his claim against Ellspermann arbitrated because Ellspermann is not a signatory of the Form U-4. The question of nonsignatories being bound by an agreement to submit a dispute to arbitration has been raised...
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...be resolved in favor of arbitration' [citations omitted]." 78 N.Y.2d at 81-82, 571 N.Y.S.2d 680, 575 N.E.2d 98. In Madden v. Ellspermann, 813 S.W.2d 51 (Mo.App.1991), the NASD Code received a broad characterization. Madden, the stockbroker plaintiff, sued his former brokerage firm employer,......
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