Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CC-624 | December 12, 2016 Page 1 of 8

MEMORANDUM DECISION 

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case. 

ATTORNEYS FOR APPELLANTS

Ronald A. Wright 

Marsha L. Hackenberg 

Wright & Associates, PC 

Carmel, Indiana 

ATTORNEY FOR APPELLEE

Thomas M. Connor 

Dinsmore & Shohl LLP 

Cincinnati, Ohio 

IN THE 

COURT OF APPEALS OF INDIANA

Afsaneh S. Kleinman and Dr. 

Elliot Kleinman, 

Appellants-Plaintiffs, 

v. 

Fifth Third Securities, Inc., 

Appellee-Defendant. 

December 12, 2016

Court of Appeals Case No. 

49A02-1603-CC-624 

Appeal from the Marion Superior 

Court 

The Honorable John F. Hanley, 

Judge 

Trial Court Cause No. 

49D11-1412-CC-41876 

Vaidik, Chief Judge. 
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CC-624 | December 12, 2016 Page 2 of 8

Case Summary 

[1] Afsaneh and Elliot Kleinman sued Fifth Third Securities, Inc., alleging that 

they had received bad investment advice. Fifth Third Securities responded with 

a motion to dismiss the case and to compel arbitration, claiming that the 

Kleinmans had agreed that any disputes would be arbitrated. The trial court 

granted the motion, and the Kleinmans appeal. Finding no error, we affirm. 

Facts and Procedural History 

[2] On December 17, 2012, the Kleinmans deposited $500,000 into an account 

with Fifth Third Securities. Appellants’ App. p. 47. On December 19, Afsaneh 

met with Gregory Lutterman, a financial advisor with Fifth Third Securities, to 

discuss how to invest the money. Lutterman recommended that the Kleinmans 

put the funds into Unit Investment Trusts (“UITs”). He also gave Afsaneh a 

Brokerage Account Application (“Account Application”) form and a UIT 

Explanation of Investments form to discuss with Elliot. The parties dispute 

whether the Kleinmans agreed to the UIT investments on December 19, but 

two days later, Fifth Third Securities used the $500,000 to purchase units in 

four UITs, and it sent the Kleinmans a notice confirming the transactions. Six 

weeks later, in February 2013, the Kleinmans met with Lutterman and signed 

an Account Application and a UIT Explanation of Investments relating to the 

investments. 
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[3] In December 2014, the Kleinmans filed suit against Fifth Third Securities. 

They did not provide us with a copy of their complaint, but they apparently 

alleged that Lutterman had given them bad investment advice and that they had 

lost money as a result. In response, Fifth Third Securities filed a motion to 

have the case dismissed and to compel arbitration on the ground that the 

Kleinmans had agreed that any dispute would be resolved via arbitration. It 

relied on two documents: the Account Application that the Kleinmans had 

signed and a document called Brokerage Account Customer Agreement 

(“Customer Agreement”). The Account Application included the following 

provision, in a box and bold letters just above the parties’ initials and signatures: 

Pre-Dispute Arbitration 

This account is governed by a pre-dispute arbitration clause, 

which appears on the last page of the Client Agreement, and 

you acknowledge that you have received a copy of this clause. 

Id. at 19. The last page of the Customer Agreement began with the heading 

“Resolving Disputes – Arbitration” and provided, in part: 

This agreement contains a pre-dispute arbitration clause. Under 

this clause, which becomes binding on all parties when you sign 

your account application, you, we, and NFS [National Financial 

Services LLC] agree as follows: 

[introductory provisions omitted] 

All controversies that may arise between me, You and NFS 

concerning any subject matter, issue or circumstances whatsoever 

(including, but not limited to, controversies concerning any 
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account, order or transaction, or the continuation, performance, 

interpretation or breach of this or any other agreement between 

me, You and NFS whether entered into or arising before, on or 

after the date this account is opened) shall be determined by 

arbitration in accordance with the rules then prevailing of the 

Financial Industry Regulatory Authority (FINRA) or any United 

States securities self-regulatory organization or United States 

securities exchange of which the person, entity or entities against 

whom the claim is made is a member, as I may designate. 

Id. at 25. 

[4] While the motion to dismiss was pending, the Kleinmans deposed Lutterman. 

Lutterman testified that while he could not specifically recall giving the 

Kleinmans a copy of the Customer Agreement along with the Account 

Application, it was “standard practice” to do so. Lutterman Depo. p. 14, 25 

(included in Volume of Exhibits). The next month, the Kleinmans moved to 

publish the deposition. On November 13, 2015, the trial court granted that 

motion and also issued an order granting Fifth Third Securities’ motion to 

dismiss and to compel arbitration. 

[5] The Kleinmans now appeal. 

Discussion and Decision 

[6] The Kleinmans contend that the trial court erred by granting Fifth Third 

Securities’ motion to dismiss and to compel arbitration. We review such 

matters de novo. Brumley v. Commonwealth Bus. Coll. Educ. Corp., 945 N.E.2d 

770, 774-75 (Ind. Ct. App. 2011). 
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[7] As the party seeking to compel arbitration, Fifth Third Securities had the 

burden of showing that the parties entered into an arbitration agreement and 

that the dispute at issue is covered by the agreement. Id. at 775-76. The 

Kleinmans maintain that Fifth Third Securities failed to make these two 

showings. We disagree.1

I. Existence of Arbitration Agreement 

[8] The parties entered into an arbitration agreement. The Kleinmans signed the 

Account Application, and by doing so they acknowledged that (1) their account 

would be “governed by a pre-dispute arbitration clause” and (2) they “have 

received a copy of this clause.” Fifth Third Securities’ arbitration clause 

appears on the last page of its Customer Agreement, and the Kleinmans’ 

acknowledgement that they received a copy of the clause is corroborated by 

Lutterman’s deposition testimony that it was “standard practice” to provide a 

copy of the Customer Agreement along with the Account Application. 

[9] The Kleinmans make much of the fact that the arbitration acknowledgement in 

the Account Application references a “Client Agreement,” whereas the 

document relied upon by Fifth Third Securities is called “Customer 

Agreement.” They note the lack of evidence that a document called “Client 

Agreement” even exists. But if the Kleinmans were concerned about the 

 

1

 Fifth Third Securities correctly notes that “Indiana recognizes a strong policy favoring the enforcement of 

arbitration agreements.” Koors v. Steffen, 916 N.E.2d 212, 215 (Ind. Ct. App. 2009), reh’g denied. This appeal, 

however, primarily concerns whether an agreement to arbitrate the dispute at issue even exists. 
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absence of a document called “Client Agreement,” the time to raise that 

concern was before signing the Account Application. Had they done so, Fifth 

Third Securities no doubt would have realized its imprecise drafting and 

explained that the relevant document is called “Customer Agreement.” 

Instead, the Kleinmans simply signed the Account Application, thereby 

acknowledging their receipt of the arbitration clause. That acknowledgement—

regardless of the precise name of the document in which the arbitration clause 

appears—is the key fact for our purposes. This fact strongly suggests that the 

Kleinmans understood “Client Agreement” to be a reference to the “Customer 

Agreement” in which the arbitration clause actually appears. The only other 

possibility is that the Kleinmans signed the Account Application without 

reading it. If that is the case, they did so at their own peril. See Clanton v. United 

Skates of Am., 686 N.E.2d 896, 899-900 (Ind. Ct. App. 1997) (“Under Indiana 

law, a person is presumed to understand the documents which he signs and 

cannot be released from the terms of a contract due to his failure to read it.”). 

[10] In support of their argument that they did not agree to arbitration, the 

Kleinmans cite Webb v. First Tennessee Brokerage, Inc., No. E2012-00934-COAR3-CV, 2013 WL 3941782 (Tenn. Ct. App. June 18, 2013), in which the 

Tennessee Court of Appeals affirmed a trial court’s denial of a motion to 

compel arbitration. In that decision, the court addressed the law of Tennessee, 

not Indiana. Furthermore, the publication status and precedential value of the 

decision are unclear—the court apparently did not designate it for publication 

in the Southwestern Reporter. In any event, the trial court decision that was 
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affirmed in that case turned in part on the fact that nowhere in the documents at 

issue did the customer “expressly say that she agrees to arbitrate.” 2013 WL 

3941782 at *12. Here, on the other hand, the first line of the arbitration clause 

states, “This agreement contains a pre-dispute arbitration clause. Under this 

clause, which becomes binding on all parties when you sign your account 

application, you, we, and NFS agree as follows . . . .” Appellants’ App. p. 25 

(emphasis added). This fact distinguishes this case from Webb. 

II. Scope of Arbitration Agreement 

[11] The Kleinmans also assert that even if an arbitration agreement exists, it does 

not cover the dispute at issue. They base this argument on the fact that they did 

not sign the Account Application until February 2013, six weeks after Fifth 

Third Securities put their money into the UITs. The Kleinmans contend that 

the agreement “was not in place at the time the investment was made, therefore 

it does not apply to the actions taken by the bank in December 2012.” 

Appellants’ Br. p. 18. We cannot say that this delay rendered the arbitration 

clause inapplicable to the parties’ dispute. The clause is written very broadly to 

cover “[a]ll controversies . . . concerning any subject matter, issue or 

circumstances,” including “controversies concerning any account, order or 

transaction, or the continuation, performance, interpretation or breach of this or 

any other agreement between me, You and NFS whether entered into or 

arising before, on or after the date this account is opened[.]” Appellants’ 

App. p. 25 (emphasis added). 
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[12] In a final attempt to avoid the arbitration clause, the Kleinmans suggest that 

because they did not sign the Account Application until after Fifth Third 

Securities had completed the UIT transactions, Fifth Third Securities’ actions 

were taken “without authorization” and were “illegal” and therefore fall 

outside the scope of the arbitration agreement. Appellants’ Br. p. 19. They do 

not support this argument with cogent reasoning, so it is waived. See Ind. 

Appellate Rule 46(A)(8)(a); City of Indianapolis v. Buschman, 988 N.E.2d 791, 

795 (Ind. 2013). Waiver notwithstanding, the Kleinmans’ claim that the 

transactions were not authorized is belied by the fact that when Fifth Third 

Securities sent them a notice confirming the transactions, they did not question 

the transactions or seek to have them reversed. Instead, the Kleinmans waited 

six weeks and then signed the Account Application, thereby ratifying the earlier 

investments. In short, the time for claiming that Fifth Third Securities’ initial 

actions were “illegal” has long passed. 

[13] Affirmed. 

Baker, J., and Najam, J., concur.