David v. Merrill Lynch, Pierce, Fenner and Smith, Inc. (1989)

In David v. Merrill Lynch, Pierce Fenner and Smith, Inc., 440 N.W.2d 269, 270-71 (N.D.1989), a customer of a commodity trading corporation sued the corporation claiming he was fraudulently induced to enter into an arbi *445 tration agreement, the corporation moved to compel arbitration, and the district court decided the customer’s fraud-in-the-inducement claim before ordering arbitration.

See Kramer, 2006 ND 64, ¶ 12 , 711 N.W.2d 164 ; David v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 440 N.W.2d 269, 273-74 (N.D.1989).

Ctr., 215 N.J. 265 , 72 A.3d 224, 233 (2013) (finding that assessment of whether party to arbitration agreement has waived that remedy must focus on totality of circumstances, including whether party's litigation conduct resulted in prejudice to other party); Cusimano v. Schnurr, 26 N.Y.3d 391 , 23 N.Y.S.3d 137 , 44 N.E.3d 212, 218 (2015) ("Generally, when addressing waiver, courts should consider the amount of litigation that has occurred, the length of time between the sta…

Ctr., 572 A.3d 224 , 233 (N.J. 2013) (finding that assessment of whether party to arbitration agreement has waived that remedy must focus on totality of circumstances, including whether party’s litigation conduct resulted in prejudice to other party); Cusimano v. Schnurr, 144 N.E.3d 212 , 218 (N.Y. 2015) (“Generally, when addressing waiver, courts should consider the amount of litigation that has occurred, the length of time between the start of the litigation and the arbitr…

Here, although CBSH asserts it executed the first JOA in 2008 only because it did not notice the nondisclosure provision, the “[f]ailure to read a document before signing does not excuse ignorance of its contents unless the party shows that he was prevented from reading it by fraud, artifice, or design by the other party or his authorized representative.” David v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 440 N.W.2d 269, 273-74 (N.D.1989) (internal quotations and citati…

Here, although CBSH asserts it executed the first JOA in 2008 only because it did not notice the nondisclosure provision, the “[f]ailure to read a document before signing does not excuse ignorance of its contents unless the party shows that he was prevented from reading it by fraud, artifice, or design by the other party or his authorized representative.” David v. Merrill Lynch, Pierce, Fenner and Smith, Inc. , 440 N.W.2d 269, 273-74 (N.D. 1989) (internal quotations and cita…

Paine-Webber, Inc. v. Voorhees, 891 S.W.2d 126, 128 (Mo.1995); David v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 440 N.W.2d 269, 274 (N.D.1989), but argue that them tort claims are derived from Gierke’s negligence with respect to the Protective policy, rather than from any Edward Jones accounts and that the Protective policy was independent of any account Jodee Schwarz held at Edward Jones.

However, as the North Dakota Supreme Court stated in David v. *1099 Merrill Lynch, Pierce, Fenner and Smith, Inc., 440 N.W.2d 269, 274 (N.D.1989), “[a] person having the capacity and opportunity to read a contract and who is not misled as to its contents cannot avoid the contract.” Therefore, Stroklund’s argument that he was not provided any explanation regarding the arbitration agreement fails.

Nevertheless, the North Dakota Supreme Court has noted “[t]here is nothing inherently unfair or oppressive about arbitration clauses” in contracts, David v. Merrill Lynch, 440 N.W.2d 269, 274 (N.D.1989), and “has generously encouraged broad arbitrability of disputes.” Superpumper, Inc. v. Nerland Oil, Inc., 1998 ND 144, ¶ 9 , 582 N.W.2d 647 . [¶ 16] The McKibbens argue that the award should be vacated because of partiality.

See David v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 440 N.W.2d 269, 271 (N.D.1989); Froholm v. Cox, 934 F.2d 959, 961 (8th Cir.1991) (applying North Dakota law). 24 The judgment of the district court is affirmed. 1 The HONORABLE PATRICK A. CONMY, Judge of the United States District Court for the District of North Dakota 2 A top lease is a lease granted before the expiration of an existing lease that becomes effective when the existing lease expires.

See David v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 440 N.W.2d 269, 271 (N.D.1989); Froholm v. Cox, 934 F.2d 959, 961 (8th Cir.1991) (applying North Dakota law).

See David v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 440 N.W.2d 269, 274 (N.D.1989) (stating person having capacity and opportunity to read contract without being misled as to its contents cannot avoid contract on ground of mistake if person signs contract without reading it). [¶ 13] Relying on Christmann v. Christmann, 1997 ND 209 , 570 N.W.2d 221 , Kenneth Kramer also claims the district court erred in incorporating the property settlement agreement into the divorce…