Whitemaine v. Aniskovich

• Decision Date: 15 May 2008
• Docket Number: No. 44898.,44898.
• Parties: Suzette WHITEMAINE, Appellant, v. Lisa ANISKOVICH; Banc of America Investment Services, Inc.; and Bank of America, N.A., Respondents.
• Court: Nevada Supreme Court

183 P.3d 137

124 Nev. 29

Suzette WHITEMAINE, Appellant, v. Lisa ANISKOVICH; Banc of America Investment Services, Inc.; and Bank of America, N.A., Respondents.

No. 44898.

Supreme Court of Nevada.

May 15, 2008.

Mirch & Mirch and Kevin J. Mirch¹ and Marie C. Mirch, Reno, for Appellant.

Hale Lane Peek Dennison & Howard and J. Stephen Peek, Elissa F. Cadish, and Patricia C. Halstead, Reno, for Respondents.

BEFORE MAUPIN, CHERRY and SAITTA, JJ.

OPINION

By the Court, SAITTA, J.:

This appeal presents an issue of first impression of whether two employment contracts can constitute a single agreement when one of the contracts contains an integration clause. Specifically, this matter concerns appellant Suzette Whitemaine's concurrent employment contracts with respondents Banc of America Investment Services, Inc. (BAIS), and its parent company, Bank of America, N.A. The BAIS employment contract contained a provision requiring Whitemaine to arbitrate any dispute related to her employment. The Bank of America employment contract did not contain an arbitration clause and featured an integration provision.

Whitemaine contends that the district court erred when it concluded that the arbitration clause in the BAIS contract applied to her contract with Bank of America, requiring her to arbitrate her claims against it. In particular, Whitemaine asserts that the integration clause at the end of her Bank of America contract indicated that the contract was a complete agreement and precluded the introduction of any additional terms. Thus, Whitemaine asserts that the arbitration clause in the BAIS agreement, which was executed after the Bank of America contract, could not be a part of her purportedly "complete" employment contract with Bank of America and, therefore, could not compel her to arbitrate her employment claims against Bank of America. We disagree.

We conclude that the two employment agreements generally form one contract under Collins v. Union Federal Savings and Loan.² However, Collins does not squarely dispose of this appeal because it did not address the preclusive effect of an integration clause. We hereby extend the reasoning of Collins and adopt the California Court of Appeal's reasoning in Brookwood v. Bank of America,³ which held that two separately executed employment agreements formed one contract even though one of the agreements contained an integration clause. Thus, we conclude that the Bank of America and BAIS employment agreements formed a single agreement, featuring an integration clause, an arbitration clause, and all the remaining provisions of those two agreements. Accordingly, we affirm the district court order confirming the arbitration award in favor of respondents Bank of America, BAIS, and Lisa Aniskovich.

FACTS AND PROCEDURAL HISTORY

In August 1997, Whitemaine entered into an employment agreement with Bank of America and agreed to work as a financial relationship manager. The Bank of America employment agreement contained an integration clause, which provided that it was "the complete agreement between [Bank of America] and [Whitemaine], and takes the place of all prior oral and/or written agreements . . . [and][a]ny future changes to th[e] Employment Agreement must be in writing, signed by an authorized Bank representative." The employment agreement did not include an arbitration clause or any reference to BAIS.

Three days later, Whitemaine entered into an employment agreement with BAIS, a subsidiary of Bank of America. Under the agreement, Whitemaine agreed to work as a registered representative, which required a securities registration and involved selling securities and providing investment advice. As a registered representative, Whitemaine was supervised by Aniskovich, a BAIS manager. Under paragraph eleven of the BAIS employment agreement, Whitemaine agreed to arbitrate any dispute relating to her employment. Whitemaine also agreed, under paragraph twelve, that the arbitration provision would survive the termination of her employment with BAIS.

Further, the BAIS employment agreement repeatedly mentioned Whitemaine's employment contract with Bank of America but did not purport to modify, cancel, or supersede the Bank of America agreement. In the introductory paragraph, the BAIS agreement stated that Whitemaine was dually employed by both Bank of America and BAIS. Under paragraph two of the BAIS contract, Whitemaine agreed that she only represented BAIS and not Bank of America. According to paragraph four, BAIS retained the exclusive right to control Whitemaine's employment regardless of the fact that she was also dually employed with Bank of America. Notably, in paragraph twelve, the BAIS agreement allowed either Bank of America or BAIS to terminate the BAIS agreement.

In January 1999, BAIS disciplined Whitemaine for violating a provision of her employment contract that prohibited her from reproducing and disclosing customer information without first obtaining approval. BAIS demoted Whitemaine to a preferred banker position with Bank of America and placed her on probation. After demoting Whitemaine, BAIS filed a mandatory U-5 form with the National Association of Securities Dealers (NASD), which stated that Whitemaine was no longer selling securities for BAIS because she did not adhere to its policy regarding written communication. Whitemaine worked as a preferred banker for Bank of America approximately six months before voluntarily terminating her employment.

In September 2001, Whitemaine instituted the present action against Aniskovich and BAIS, asserting various contract, tort, and statutory claims. Aniskovich and BAIS moved to dismiss Whitemaine's claims. The district court granted the motion with respect to several of Whitemaine's claims and then set the case for trial on her remaining claims.

Shortly before trial, Aniskovich and BAIS moved to compel arbitration before the NASD, based on the arbitration clause in Whitemaine's employment contract with BAIS. Over Whitemaine's objection, the district court granted respondents' motion. Thereafter, the district court permitted Whitemaine to amend her complaint to add Bank of America as a defendant.

The matter proceeded to arbitration, involving BAIS, Aniskovich, and Bank of America. At the conclusion of the arbitration proceedings, the NASD panel found in favor of respondents on Whitemaine's remaining claims. The NASD panel further found that BAIS defamed Whitemaine because the U-5 form contained a defamatory statement about her demotion, but BAIS was not liable because it enjoyed a conditional privilege.⁴ The NASD panel granted Whitemaine limited relief when it ordered respondents to amend her U-5 form to state that Whitemaine voluntarily terminated her employment.

Respondents subsequently moved the district court to confirm the arbitration award. Over Whitemaine's objection, the district court affirmed the arbitration award. Whitemaine then timely filed this appeal.⁵

DISCUSSION

While a district court's interpretation of a contractual term is a question of law,⁶ which this court reviews de novo,⁷ whether a contract exists and the parties' intentions regarding a contractual provision are questions of fact,⁸ which this court reviews for substantial evidence.⁹ Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion.¹⁰

The district court did not err when it found that the arbitration clause in Whitemaine's BAIS employment contract applied to her claims against Bank of America

Whitemaine contends that the district court erred when it found that the arbitration clause in her BAIS employment contract applied to her claims that arose out of her employment relationship with Bank of America. We disagree and conclude that the district court properly ordered Whitemaine to arbitrate her claims against Bank of America.

The two employment contracts constituted a single agreement

In Collins v. Union Federal Savings & Loan, this court concluded that two instruments are presumed to be a single contract if (1) they are contemporaneously executed, (2) they concern the same subject matter, and (3) one of the instruments refers to the other.¹¹

We conclude that all three requirements of Collins are satisfied in this case. We discuss each of these requirements in turn.

The contemporaneous execution requirement

In determining whether two instruments were contemporaneously executed, courts have concluded that this requirement can be satisfied in a wide range of time spans. For instance, courts have concluded that agreements were contemporaneously executed when they were entered into on the same day,¹² within a few days,¹³ within a few weeks,¹⁴ and even within a few months.¹⁵

The record in this case indicates that Whitemaine signed the BAIS agreement only three days after she signed the Bank of America agreement, which was well within the range of time that courts have considered sufficient to evidence contemporaneous agreements. Accordingly, we conclude that substantial evidence supports the district court's finding that the Bank of America and BAIS employment agreements, signed three days apart, were contemporaneously executed.

The same subject matter requirement

In a dual employment arrangement, two agreements concern the same subject matter if they both contain terms regarding the employment. For instance, in Brookwood v. Bank of America, a case involving almost identical facts and issues as the present matter, the California Court of Appeal concluded that a security dealer's dual employment contracts with related entities involved the same subject matter because they both contained provisions regarding the terms of the employee's employment.¹⁶

In Brookwood, the plaintiff executed employment agreements with BAIS and its parent company, Bank of America. Under the BAIS agreement, the plaintiff was required to (1) hold a NASD license, (2) execute an additional employment agreement...