Shearson/American Exp., Inc. v. Henson

• Decision Date: 23 February 1984
• Docket Number: No. 67843,67843
• Citation: 315 S.E.2d 485,169 Ga.App. 950
• Parties: SHEARSON/AMERICAN EXPRESS, INC. et al. v. HENSON.
• Court: Georgia Court of Appeals

Page 485

315 S.E.2d 485

169 Ga.App. 950

SHEARSON/AMERICAN EXPRESS, INC. et al. v. HENSON.

No. 67843.

Court of Appeals of Georgia.

Feb. 23, 1984.

Peter J. Anderson, Kirk M. McAlpin, Jr., Atlanta, for appellants.

J. Houston Lennard, Marietta, for appellee.

QUILLIAN, Presiding Judge.

This is an interlocutory appeal from denial of a motion to compel arbitration and stay proceedings.

Plaintiff-appellee Henson signed a Limited Discretionary Account Authorization with defendant-appellant Shearson/American Express. This agreement contained the following arbitration clause:

"Unless unenforceable due to federal or state law, any controversy arising out of or relating to my account, to transactions with you for me or this authorization or the breach thereof, shall be settled by arbitration in accordance with the rules, then in effect, of the National Association of Securities Dealers, Inc. or the Boards of Directors of the New York Stock Exchange, Inc. and/or the American Stock Exchange, Inc. as I may elect and shall be governed by the laws of the State of New York ..."

After nearly a year appellee commenced this action against Shearson/American Express and three of its officers and employees alleging a breach of fiduciary duty in the management of his account. Appellants demanded arbitration under the above arbitration provision of the agreement and then moved to compel arbitration and stay the proceedings. Whereupon appellee apparently revoked his consent to arbitration, although no copy thereof appears in the record. Apparently relying on Local Union 732 &c. v. Marta, 251 Ga. 15, 303 S.E.2d 1, which permits a party to contractual arbitration to withdraw therefrom at any time prior to award, the trial court denied the motion. Held:

This case involves securities transactions on national exchanges. "In Paine, Webber, Jackson & Curtis, Inc. v. McNeal, [143 Ga.App. 579(1), 580, 239 S.E.2d 401], this court held that transactions involving the purchase and sale of securities on national exchanges involve commerce within the meaning of the Federal Arbitration Act and that arbitration agreements relating to such transactions are consequently enforceable, even as to claims based on fraud." Merrill Lynch &c., Inc. v. Wilbanks, 162 Ga.App. 154, 155, 290 S.E.2d 122.

" 'Where such a transaction involves commerce, within the meaning of the Federal Arbitration Statute, the state law and policy with respect thereto must yield to the paramount federal law. [Cit.]' West Point-Pepperell v. Multi-Line Industries, 231 Ga. 329, 201 S.E.2d 452 (1973). See also Paine, Webber, Jackson & Curtis, Inc. v. McNeal, 143 Ga.App. 579 [supra]. The holding in Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp. [460 U.S. 1, 103 [S.Ct.] 927, 74 [L.Ed.]2d 765 (1983) ], made it clear that the Federal Arbitration Act creates a body of federal substantive law. 'Section 2 (of the Act) is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act.' Id. at 103 [S.Ct.] 941," Hilton Constr. Co. v. Martin &c. Contractors, 251 Ga. 701, 703, 308 S.E.2d 830.

"We accept and adopt [the foregoing Cone Memorial Hosp.] construction regarding the scope and purpose of the Arbitration Act and find that the arbitration clause at issue in the present case clearly falls within the ambit of the act. [Cit.]"...