Union Planters Bank, Nat. Ass'n v. Rogers

• Decision Date: 28 April 2005
• Docket Number: No. 2003-CA-02221-SCT.,2003-CA-02221-SCT.
• Citation: 912 So.2d 116
• Parties: UNION PLANTERS BANK, NATIONAL ASSOCIATION v. Neal Doniphan ROGERS, Jr., Executor of the Estate of Helen Rogers, Deceased, a/k/a Helen K. Rogers.
• Court: Mississippi Supreme Court

Page 116

912 So.2d 116

UNION PLANTERS BANK, NATIONAL ASSOCIATION v. Neal Doniphan ROGERS, Jr., Executor of the Estate of Helen Rogers, Deceased, a/k/a Helen K. Rogers.

No. 2003-CA-02221-SCT.

Supreme Court of Mississippi.

April 28, 2005.

Rehearing Denied October 20, 2005.

Charles J. Swayze, Jr., Greenwood, attorney for appellant.

Nathan P. Adams, Jr., Greenville, attorney for appellee.

EN BANC.

WALLER, Presiding Justice, for the Court.

¶ 1. This appeal involves an issue of first impression in Mississippi — the interpretation of Miss.Code Ann. § 75-4-406 (Rev.2002), which imposes duties on banks and their customers insofar as forgeries are concerned. The case arises from a series of forgeries made by one person on four checking accounts maintained by Helen Rogers at the Union Planters Bank. We find that the circuit judge erred in denying Union Planters' motion for JNOV because, under § 75-4-406, Rogers failed to inspect her bank statements in a timely manner and because Rogers produced no evidence that Union Planters had failed to exercise ordinary care or that Union Planters acted with bad faith in paying the checks.

FACTS

¶ 2. Neal D. and Helen K. Rogers¹ maintained four checking accounts with the Union Planters Bank in Greenville, Washington County, Mississippi. Each of these four accounts had originally been opened at banks (the Sunburst Bank, the Magnolia Federal Savings Bank; and the Washington Federal Savings Bank) which later merged with Union Planters. The Rogers were both in their eighties when the events which gave rise to this lawsuit took place. After Neal became bedridden, Helen hired Jackie Reese to help her take care of Neal and to do chores and errands.

¶ 3. In September of 2000, Reese began writing checks on the Rogerses' four accounts and forged Helen's name on the signature line. Some of the checks were made out to "cash," some to "Helen K. Rogers," and some to "Jackie Reese." The following chart summarizes the forgeries to each account:²

                ACCOUNT NUMBER AMOUNT
                NUMBER BEGINNING ENDING OF CHECKS OF CHECKS
                ------------------------------------------------------------------------
                  54282309     11/27/2000   6/18/2001      46       $16,635.00
                ------------------------------------------------------------------------
                  0039289441    9/27/2000   1/25/2001      10       $ 2,701.00
                ------------------------------------------------------------------------
                  6100110922   11/29/2000   8/13/2001      29       $ 9,297.00
                ------------------------------------------------------------------------
                  6404000343   11/20/2000   8/16/2001      83       $29,765.00
                ------------------------------------------------------------------------
                    TOTAL                                 168       $58,398.00
                

¶ 4. Neal died in late May of 2001. Shortly thereafter, the Rogerses' son Neal, Jr., began helping Helen with financial matters. Together they discovered that many bank statements were missing and that there was not as much money in the accounts as they had thought.³ In June of 2001, they contacted Union Planters and asked for copies of the missing bank statements. In September of 2001, Helen was advised by Union Planters to contact the police due to forgeries made on her accounts. More specific dates and facts leading up to the discovery of the forgeries are not found in the record.

¶ 5. Subsequently, criminal charges were brought against Reese.⁴ In the meantime, Helen filed suit against Union Planters, alleging conversion (unlawful payment of forged checks) and negligence. After a trial, the jury awarded Helen $29,595 in damages, and the circuit court entered judgment accordingly. From this judgment, Union Planters appeals.

DISCUSSION

I. WHETHER THE CIRCUIT JUDGE ERRED IN DENYING UNION PLANTERS' MOTION TO COMPEL ARBITRATION.

¶ 6. After its acquisition of the Sunburst Bank, the Magnolia Federal Savings Bank and the Washington Federal Savings Bank, Union Planters sent many mailings to its customers outlining the duties and responsibilities of the bank to the customers and of the customers to the bank. Contained in one of the mail-outs was an arbitration clause which included the following language:

BY SIGNING A SIGNATURE CARD AND USING YOUR ACCOUNT YOU AGREE TO THE TERMS OF THIS ARBITRATION AGREEMENT. BY SIGNING YOUR SIGNATURE CARD YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS ARBITRATION AGREEMENT, INCLUDING THE WAIVER OF YOUR RIGHT TO A JURY TRIAL OR TRIAL BY A JUDGE IN A PUBLIC COURT.

The circuit judge ruled that the arbitration clause was not enforceable because, even though Rogers had signed signature cards with the individual banks prior to merger, she had never signed a signature card for Union Planters containing an arbitration clause.

¶ 7. Union Planters argues that whether Rogers signed a Union Planters signature card is immaterial because many of the mail-outs had the following or similar language: "Your continued use of the Account evidences your agreement to any amendment." Since Rogers continued to use her accounts, it contends, she agreed to the amendment which added the arbitration clause. Union Planters also cites to Herrington v. Union Planters Bank, 113 F.Supp.2d 1026 (S.D.Miss.2000), aff'd, 265 F.3d 1059 (5th Cir.2001), which dealt with almost identical facts. There, United States District Judge Walter Gex held as follows:

When the plaintiffs signed their initial signature cards [from a bank before it merged with Union Planters], they agreed that the terms and conditions of their deposit accounts could change in the future upon sufficient notice. It is undisputed that the plaintiffs were given notice in March of 1998 that their accounts were being revised to include an arbitration clause. It is further undisputed that the plaintiffs continued to use their accounts after the effective date of the arbitration clause. . . .

* * *

The cover letter accompanying the "revised Deposit Account Agreement" explicitly informed the plaintiffs that the revised deposit agreement contained "important information about [the depositor's] [sic] account." After reviewing the letter and revised deposit agreement, the Court finds that the plaintiffs were sufficiently notified that the terms and conditions of their accounts would change. . . . The plaintiffs' apparent failure to read the revisions to their accounts is irrelevant to the issue of whether they agreed to arbitrate or are subject to those changes.

* * *

The absence of the plaintiffs' signature on a new card does not alter the fact that the plaintiffs accepted the terms of the arbitration agreement by continuing to utilize their accounts. The plaintiffs could have simply declined to accept the arbitration provision by terminating their account before the effective date of the amendment. Because the plaintiffs continued performance under the revised deposit agreements. ., the Court finds that the plaintiffs agreed to arbitrate their disputes with Union Planters.

113 F.Supp.2d at 1031-32 (citations omitted).

¶ 8. A review of arbitration law and contract law leads us to a different conclusion. Submitting to arbitration means giving up the right to file a lawsuit in a court of competent jurisdiction. Waiving that right requires more than implied consent:

Waiver presupposes full knowledge of a right existing, and an intentional surrender or relinquishment of that right. It contemplates something done designedly or knowingly, which modifies or changes existing rights or varies or changes the terms and conditions of a contract. It is the voluntary surrender of a right. To establish a waiver, there must be shown an act or omission on the part of the one charged with the waiver fairly evidencing an intention permanently to surrender the right alleged to have been waived.

Ewing v. Adams, 573 So.2d 1364, 1369 (Miss.1990). We find absolutely no evidence that either of the Rogerses voluntarily and knowingly waived their right to access to the courts. As another federal district court has held:

[T]his court has no hesitation in finding that the parties never agreed to arbitration and that plaintiff did not waive her right to seek adjudication of her claims in court. The application was the only document plaintiff ever signed; there is, of course, no mention in its contents of the arbitration endorsement. That endorsement is part of the insurance contract which plaintiff received upon completion of the application process. When plaintiff received the policy, she was given the option of "return[ing] it for any reason," in which case, the policy was "void from the beginning. . . ." There was no notice, no discussion, and no negotiation of the arbitration endorsement, circumstances, which, in this court's view, hardly signify either agreement or waiver. The arbitration endorsement is therefore not enforceable, and this matter may proceed in this court.

McCreary v. Liberty Nat'l Life, 6 F.Supp.2d 920, 920-21 (N.D.Miss.1998) (quoted with favor in Pre-Paid Legal Servs., Inc. v. Battle, 873 So.2d 79, 83 (Miss.2004)). See also Stone v. Golden Wexler & Sarnese, P.C., 341 F.Supp.2d 189 (E.D.N.Y.2004) (arbitration agreement not binding without express or implicit consent by customer); Gustavsson v. Washington Mut. Bank, 850 So.2d 570 (Fla.Dist.Ct.App.2003) (same); DIRECTV, Inc. v. Mattingly, 376 Md. 302, 829 A.2d 626 (2003) (citing Mattingly v. Hughes Electronics Corp., 147 Md.App. 624, 810 A.2d 498 (2001)) (where contract mandated written notice of changes and written notice of addition of arbitration clause was not given, arbitration was not binding on customer).

¶ 9. As in McCreary and Pre-Paid, the Rogerses signed signature cards for the four banks prior to their merger with Union Planters, and these signature cards did not contain arbitration provisions.

¶ 10. The use of basic contract construction rules also leads us to the conclusion that the Rogerses were not bound by Union Planters' arbitration provision. A cardinal rule of construction of a...