## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 3 2003 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIAM J. SPAHR, by and through his co-conservators Steven D. Spahr and Barbara J. Spahr, Plaintiff - Appellee, v. MELISSA CATHERINE SECCO, a/k/a Melissa Radtke, a/k/a Melissa Fisher, a/k/a Melissa Ball, a/k/a Melissa Sweeney, a/k/a Melissa Simms; U.S. BANCORP INVESTMENTS, INC., a Minnesota corporation f/k/a FBS Investment Services, Inc., Defendants - Appellants. Nos. 00-1132 & 00-1152

Appeal from the United States District Court

for the District of Colorado (D.C. No. 99-M-1646)
Dale A. Gaar, Denver, Colorado, for Plaintiff-Appel lee. Stephen D. Bell, Dorsey & Whitney LLP (Brian E. Cas ey, with him on the opening and reply briefs; William D. Nelson and Gil bert M. Roman of Rothgerber, Johnson & Lyons, L.L.P. on the suppleme ntal brief), Denver, Colorado, for Defendant-Appellant U.S. Bancorp Inve stments, Inc. Francis V. Cristiano, Denver, Colorado, for Defenda nt-Appellant Melissa Catherine Secco.* The Honorable Thomas M. Reavley, United States Co urt of Appeals for

the Fifth Circuit, sitting by designation. -2- Before LUCERO , McWILLIAMS , and REAVLEY , * Circuit Judges.

LUCERO , Circuit Judge.

In August 1999, William J. Spahr, through the co-co nservators of his estate, brought suit in state court against U.S. Bancorp In vestments, Inc., and Melissa Catherine Secco, alleging breach of fiduciary duty, fraud, constructive trust, and negligence. Defendants removed the case to federal court and then filed a motion to stay the proceedings and order arbitration, purs uant to an agreement signed by Spahr in 1995. On the basis that the parties’ agre ement, which contained an arbitration provision, was unenforceable due to Spa hr’s mental incapacity, the district court denied the motion. This appeal pres ents the question, not yet considered in this circuit, whether the Federal Arb itration Act (“FAA”), 9 U.S.C. § 4, dictates that an arbitrator, rather than the c ourt, decide a mental capacity challenge to a contract providing for arbitration o f all disputes relating to that contract. Exercising jurisdiction under 9 U.S.C. § 16, we conclude that it does not and affirm the district court’s order denying a rbitration.-3- I According to the complaint, Spahr “is an adult and unable to manage his property and financial affairs effectively because he suffers from dementia and Alzheimer’s disease.” (U.S. Bancorp’s App. at 8 ¶2.) On June 6, 1995, he opened an investment account at U.S. Bancorp, forme rly known as FBS Investment Services, Inc., through Secco, its emplo yee. In doing so, Spahr signed a Cash Account Agreement promising to submit any co ntroversy arising out of the account to arbitration: I agree that any controversy arising out of or relating to my account, to transactions with or for me or to this agreementor the breach thereof, whether executed or to be executed within or outside of the United States, and whether asserted against broker- dealer and/or its present or former agents or employees, will be sett led by arbitration before and in accordance with the then current rule s of the National Association of Securities Dealers, Inc. [(“NASD”)]. (Id. at 82 ¶ 24.) During the following year, Secco exploited Spahr’s mental deficiencies and finagled him out of large sums of money and real es tate. In doing so, Spahr claims, Secco breached her fiduciary duties as Spah r’s broker, investment advisor, and trustee. Spahr also alleges that Secco defraud ed and exercised undue influence over him. Spahr seeks recovery from U.S. Bancorp under vicari ous liability and negligence theories. Although much of the challeng ed conduct occurred after1 Three months after Spahr signed the Cash Account Agreement, he

executed the William G. Spahr Trust, transferring alarge amount of his assets, including his account at U.S. Bancorp, into this tr ust. Spahr named himself and Julius Wall as co-trustees. In this capacity, they signed a new Customer Agreement with U.S. Bancorp that contained an arbit ration provision substantially identical to the one in Spahr’s initial Cash Accoun t Agreement. In January and February of 2000, Spahr’s co-conservators, Barbara and Steven Spahr, invalidated the Spahr Trust and signed another Customer Agreeme nt with U.S. Bancorp containing an identical arbitration agreement. -4- U.S. Bancorp discharged Secco for violating NASD br oker-dealer ethical guidelines, the complaint alleges that as an employ ee, Secco was “‘legendary’ in the stock brokerage community for convincing elderl y men to loan her money in exchange for sex.” ( Id. at 9 ¶ 13.) Spahr claims that U.S. Bancorp was ne gligent in employing her for “[a] . . . position that invol ved close contact with the clients of [U.S. Bancorp], handling funds of the clients of [U.S. Bancorp] and making investment recommendations for clients.” ( Id. at 16 ¶ 78.) After the suit was filed, U.S. Bancorp filed a motion—which Secco soug ht to join—to stay the district court proceedings and compel arbitration b ased on the Cash Account Agreement signed by Spahr and subsequent customer a greements signed on his behalf. 1 After a two-day evidentiary hearing on U.S. Bancorp ’s motion to compel arbitration, the district court concluded that the 1995 Cash Account Agreement “is not an enforceable agreement under the law [for ] failure of [Spahr] to have sufficient mental capacity to understand the nature and effect of this contract.”2 We abated this appeal pending the Supreme Court’s decision in Howsam

v. Dean Witter Reynolds, Inc. , 123 S. Ct. 588 (2002). That case has now been decided and the parties have filed supplemental bri efs addressing its effect, if any, on the present appeal . -5- (Id. at 211.) On this basis, the court denied U.S. Ban corp’s motion to compel arbitration. In response to U.S. Bancorp’s argumen t that subsequent customer agreements signed by co-trustees of the Spahr Trustand Spahr’s co-conservators require arbitration, the court concluded that “[t]h e matter of later ratification has nothing to do with this case.” ( Id. at 210.) Denying Secco’s request to join U.S. Bancorp’s motion, the district court determined that the “allegations here deal with things that had nothing to do with . . . [Secc o] being the customer’s representative for [U.S. Bancorp].” (Secco’s App. at 82.) On appeal, U.S. Bancorp and Secco challenge the dis trict court’s rulings on the ground that Spahr’s mental incompetence claim m ust be submitted to arbitration under the parties’ agreement. Defendan ts also challenge the district court’s decision that Spahr was not obligated to ar bitrate this dispute based on the subsequent customer agreements signed on his behalf. Secco further contends that the district court misconstrued the arbitratio n provision to exclude the claims against her. 2
II We review de novo trial court denials of motions to compel arbitration.3 U.S. Bancorp’s motion to stay the district court proceedings and compel

arbitration is governed by the FAA. The coverage s ection of the FAA, 9 U.S.C. § 2, provides: A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transact ion, or the refusal to perform the whole or any part thereof, or an agreem ent in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocabl e, and enforceable, save upon any grounds as exist at law or in equity for t he revocation of any contract.

4 Section 4 further provides that, except where the dispute is within admiralty jurisdiction, either party may request a jury trial on the issue of whether an arbitration agreement has been made. In the ins tant case, the record reflects that all parties waived a jury trial. -6- Williams v. Imhoff

, 203 F.3d 758, 762 (10th Cir. 2000). Motions to c ompel arbitration are governed by 9 U.S.C. § 4, 3 which provides: The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the fail ure to comply therewith is not in issue , the court shall make an order directing the parties to proceed to arbitration in accordance wit h the terms of the agreement. . . . If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. 4 9 U.S.C. § 4 (emphasis added). This provision requ ires judicial resolution of issues that go to the “making” of an agreement for arbitration. Prima Paint Corp. v. Flood & Conklin Mfg. , 388 U.S. 395, 403–04 (1967). It has long been a tenet of federal arbitration law that “arbitration is a m atter of contract and a party cannot be required to submit to arbitration any dis pute which he has not agreed so-7-

to submit.” AT&T Techs. v. Communications Workers of Am. , 475 U.S. 643, 648 (1986). It follows that “[t]he question whether th e parties have submitted a particular dispute to arbitration, i.e., the ‘ question of arbitrability ,’ is an issue for judicial determination unless the parties clearly a nd unmistakably provide otherwise.” Howsam , 123 S. Ct. at 591. Although “doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration,” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp. , 460 U.S. 1, 24–25 (1983), a court may compel arbitration of a particular dispute under § 4 of the FAA only when satisfied that the “making” of the agreement to arb itrate is not at issue, Prima Paint , 388 U.S. at 404. In denying U.S. Bancorp’s motion to compel arbitrat ion, the district court concluded that Spahr’s June 6, 1995, Cash Account A greement was “not an enforceable agreement under the law.” (U.S. Bancorp’s App. at 211.) On appeal, U.S. Bancorp advances two arguments in support of i ts position that Spahr’s mental capacity challenge should have been decided by arbitrators: It argues that the parties agreed to arbitrate arbitrability, and asserts that Spahr’s mental capacity challenge goes to the validity of the enti re contract, rather than merely the arbitration clause itself. For the latter reas on, U.S. Bancorp contends that the Supreme Court’s decision in Prima Paintdictates arbitration of Spahr’s mental5 U.S. Bancorp also argues, in its supplemental bri ef, that Spahr’s mental

capacity challenge is not a “question of arbitrabil ity” for the court to decide under the Supreme Court’s recent decision in Howsam . In Howsam , the Supreme Court analyzed whether the court or arbitrator should con strue an arbitration rule of the National Association of Securities Dealers (“NASD”) providing that “no dispute shall be eligible for submission to arbitration . . . where six (6) years have elapsed from the occurrence or event giving rise to the . . . dispute.” 123 S.Ct. at 590. Holding that the arbitrators should apply this rule to the underlying controversy because it was not a “question of arbitrability” fo r the court to decide, the Court explained that questions of arbitrability have a “f ar more limited scope,” id. at 592, and not every “potentially dispositive gateway question” is a “question of arbitrability,” id. Howsam , however, did not address the precise question in the instant case, namely, when a challenge to a contrac t containing an arbitration clause puts the “making” of an agreement to arbitrate in issue under § 4 of the FAA. The Court’s previous decision in Prima Paintsquarely dealt with that question. Because Howsamis not controlling here, we analyze whether Spahr’ s mental capacity challenge puts the “making” of an a greement to arbitrate in issue under § 4 within the framework set forth in Prima P aint

.

-8- capacity challenge. We reject both arguments. 5
A We first consider whether the agreement signed by S pahr in 1995 contains “clear and unmistakable evidence” that the parties agreed to submit the question of arbitrability to arbitration. In First Options of Chicago, Inc. v. Kaplan , the Supreme Court held that “[j]ust as the arbitrability of the merits of a dispute depends on whether the parties agreed to arbitrate that dispute, so the question ‘who has the primary power to decide arbitrability’ turns upon what the parties agreed about thatmatter.” 514 U.S. 938, 943 (1995) (citation omitt ed). First Options concludes that we “should not assume that the part ies agreed to arbitrate-9-

arbitrability unless there is clear and unmistakabl e evidence that they did so.” Id. at 944. On this authority, this court has held that broad provisions to arbitrate all disputes arising out of or relating to the overall contract, like the one at issue here, do not provide the requisite clear and unmist akable evidence “within the four corners of the . . . [a]greement that the part ies intended to submit the question of whether an agreement to arbitrate exist s to an arbitrator.” Riley Mfg. Co. v. Anchor Glass Container Corp. , 157 F.3d 775, 780 (10th Cir. 1998); see also McLaughlin Gormley King Co. v. Terminix Int’l Co. , 105 F.3d 1192, 1194 (8th Cir. 1997) (concluding that the arbitration cl ause in question did not clearly and unmistakably evidence the parties’ intent to gi ve the arbitrator power to determine arbitrability where the clause did not me ntion a “controversy over arbitrability”); cf. PaineWebber, Inc. v. Bybyk , 81 F.3d 1193, 1199–1200 (2d Cir. 1996) (holding that a provision requiring arbitrati on of “any and all controversies” indicates the parties’ intent to sub mit to arbitration the very question of arbitrability). We thus conclude that the district court properly set out to determine the arbitrability of Spahr’s underlyin g claims, all of which fall within the scope of the arbitration clause if that provision proves to be enforceable.
B This leads to our next inquiry: Does Spahr’s ment al capacity challenge to6 Whereas the party in Prima Paintbrought suit to rescind the contract, in

the instant case, we find nothing in the record that indicates a formal election by Spahr to rescind the 1995 Cash Account Agreement in its entirety. In litigating the matter in the courts, however, Spahr has implic itly elected to rescind the arbitration clause of the contract. -10- the Cash Account Agreement place the “making” of th e agreement to arbitrate at issue under § 4 of the FAA? If Spahr’s challenge d id not place the “making” of the arbitration provision at issue within the meani ng of § 4, the district court erred in denying U.S. Bancorp’s otherwise valid mot ion to compel arbitration. On the other hand, if Spahr’s challenge did place the “making” of the arbitration agreement at issue, the district court acted proper ly in determining that the arbitration clause was unenforceable on the basis t hat Spahr lacked the mental capacity to enter into a contract. In Prima Paint , the Supreme Court held that, in the context of a fraud in the inducement challenge, the “making” of an agreem ent for arbitration is at issue when there is an independent challenge to the arbit ration clause itself. 388 U.S. at 403–04. In that case, the parties entered into a consulting contract that included a promise to arbitrate any controversy ari sing out of the contract. When one party sued to have the overall contract rescind ed, alleging fraud in the inducement, the other party brought a motion in dis trict court to stay the proceedings and compel arbitration. 6 Affirming the district court’s grant of a stay pending arbitration, the Second Circuit held that t he “claim of fraud in the-11-

inducement of the contract generally—as opposed to the arbitration clause itself—is for the arbitrators and not the courts.” Id. at 400. “[E]xcept where the parties otherwise intend[,] arbitration clauses as a matter of law are ‘separable’ from the contracts in which they are embedded, and . . . where no claim is made that fraud was directed to the arbitration clause i tself, a broad arbitration clause will be held to encompass arbitration of the claim that the contract itself was induced by fraud,” held the Second Circuit. Id. at 402. Resolving a split among circuits, the Supreme Courtheld that a fraudulent inducement claim that goes to the entire contract m ust be resolved by an arbitrator. It concluded that § 4 of the FAA, whic h divests the court of jurisdiction “upon being satisfied that the making of the agreement for arbitration . . . is not in issue,” provided the answer. Id. at 403. “[I]f the claim is fraud in the inducement of the arbitration clause itself—an issue which goes to the ‘making’ of the agreement to arbitrate—the federal court may proceed to adjudicate it. But the statutory language does notpermit the federal court to consider claims of fraud in the inducement of the c ontract generally.” Id. at 404. U.S. Bancorp argues that because Spahr’s mental inc ompetence claim challenges the Cash Account Agreement generally, rather than the arbitration provision in particular, the district court should have stayed its proceedings and directed arbitration of that dispute under Prima Pa int . While we have not7 U.S. Bancorp argues that the Prima Paintrule should apply here because

mental incapacity, like fraud in the inducement, is a contractual defense that merely renders a contract voidable. “Unlike a void contract, a voidable contract is an agreement that unless rescinded imposes on th e parties the same obligations as if it were not voidable.” Sphere Drake Ins. Ltd. v. Clarendon Nat’l Ins. Co. , 263 F.3d 26, 31 (2d Cir. 2001). It is true that ma ny circuits have applied Prima Paintto voidable contracts—i.e., those where the contra ct was induced by fraud, mistake, or duress—but not to void contracts. See id. at 32 (holding that a party is not entitled to a trial on the arbitrability of a voidable contract unless the party alleges that the arbitration clause itself is voida ble, yet if a party alleges that the contract is void, it need not specifically allege t hat the arbitration clause itself is void); Sphere Drake Ins. Ltd. v. All Am. Ins. Co. , 256 F.3d 587, 591 (7th Cir. 2001) (concluding that “as arbitration depends on avalid contract an argument that the contract does not exist can’t logically be resolved by the arbitrator”); Sandvick AB v. Advent Int’l Corp. , 220 F.3d 99, 107 (3d Cir. 2000) (drawing a distinction for purposes of applying Prima Paint“between contracts that are asserted to be void or non-existent . . . and those that are merely voidable”); Three Valleys Mun. Water Dist. v. E.F. Hutton & Co. , 925 F.2d 1136, 1140–41 (9th Cir. 1991)(“We read Prima Paintas limited to challenges seeking to avoid or rescind a contract—not to challenges going to the v ery existence of a contract that a party claims never have agreed to.”). As explain ed in further detail below, this distinction is not dispositive where, as here, a pa rty challenges a contract containing an arbitration clause on the basis of me ntal incapacity. -12- considered the scope of Prima Paint ’s applicability beyond claims of fraud in the inducement, other circuits have had occasion to do so. 7 See, e.g. , Primerica Life
Ins. Co. v. Brown , 304 F.3d 469, 472–73 (5th Cir. 2002) (holding that the arbitrator is to decide a mental capacity defense t hat does not specifically relate to the arbitration agreement ); Jeske v. Brooks , 875 F.2d 71, 75 (4th Cir. 1989) (holding that unconscionability and lack-of-conside ration defenses challenging the entire contract, rather than the arbitration cl ause itself, are for the arbitrator to decide); Unionmutual Stock Life Ins. Co. v. Benefic ial Life Ins. Co. , 774 F.2d-13-

524, 529 (1st Cir. 1985) (same with mutual mistake and frustration of purpose); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Hayd u , 637 F.2d 391, 398 (5th Cir. 1981) (same with duress and unconscionability); Com monwealth Edison Co. v. Gulf Oil Corp. , 541 F.2d 1263, 1271 (7th Cir. 1976) (same with fr ustration of performance). In Unionmutual , the First Circuit concluded that “[t]he teaching of Prima Paintis that a federal court must not remove from the a rbitrators consideration of a substantive challenge to a contr act unless there has been an independent challenge to the making of the arbitrat ion clause itself. The basis of the underlying challenge to the contract does not a lter the . . . principle.” 774 F.2d at 529. In Primerica , the Fifth Circuit recently concluded that a menta l capacity defense to a contract that contains an arbitration clause is “part of the underlying dispute between the parties,” and must be submitted to the arbitrator. 304 F.3d at 472. Relying on Prima Paint , the court held that “unless a defense relates specifically to the arbitration agreement, it must be submitted to the arbitrator as part of the underlying dispute.” Id. We disagree, and hold that the rule announced in Prima Paintdoes not extend to a case where a party challenges a contract on the basis that the party lacked the men tal capacity to enter into a

contract. As noted, Prima Paintsubmits to arbitrators the resolution of a claim o f8 Commentators have explained the distinction betwe en challenging a

contract on the basis of status (i.e., mental incap acity) and challenging a contract on the basis of the conduct of the bargaining parti es (i.e., fraudulent inducement). See, e.g. , E. Allan Farnsworth, Farnsworth on Contracts § 4.1 at 419–20 (2d ed. 1998). Farnsworth explains that courts “police” ag reements against unfairness by placing limits on their enforceability, and that th ere are two established (continued...) -14- fraud in the inducement of the entire contract, as contrasted with a claim of fraud in the inducement of the arbitration agreement itse lf. Because the latter claim involves the “making” of an agreement to arbitrate under § 4, it is for the court to resolve. 388 U.S. at 403–04. Courts may apply thi s rule with ease when a party challenges a contract on the basis that it was indu ced by fraud because it is conceivable either that (1) he or she was fraudulen tly induced to agree to a contract containing an arbitration agreement; or (2 ) he or she was fraudulently induced to agree to the arbitration provision in pa rticular. We cannot say the same when a party raises a mental capacity challeng e, as it would be odd indeed if a party claimed that its mental incapacity specific ally affected the agreement to arbitrate. We conclude, therefore, that the analyt ical formula developed in Prima Paintcannot be applied with precision when a party cont ends that an entire contract containing an arbitration provision is une nforceable because he or she lacked the mental capacity to enter into the contra ct. Unlike a claim of fraud in the inducement, which can be directed at individual provisions in a contract, a mental capacity challenge can logically be directed only at the entire contract. 88 (...continued)

perspectives for policing contractual agreements: (1) status, and (2) behavior. Status focuses on the characteristics of the party involved. Classic examples of the status perspective include restrictions on the capacity of a specified class of persons, such as minors and the mentally incompeten t, whose power to contract has been limited in order to shield them from the c onsequences of unwise bargains. In contrast, the behavior perspective fo cuses on how the parties acted during the bargaining process; a classic example is the rule that allows a party to avoid a contract on the ground that the party has b een induced to make the contract by misrepresentation. Id.

9 Given this conclusion, we do not address Secco’s argument that the district court erred in denying her request to join U.S. Bancorp’s motion to stay the proceedings and compel arbitration. -15- In the present case, although Spahr signed the Cash Account Agreement, which contains a promise to arbitrate “any controve rsy arising out of or relating to” the agreement, he contended below and continues to argue here that the overall agreement is unenforceable because he was m entally incompetent when he entered into the contract. We hold that Spahr’s me ntal incapacity defense naturally goes to both the entire contract and the specific agreement to arbitrate in the contract. Therefore, Spahr’s claim that he lac ked the mental capacity to enter into an enforceable contract placed the “making” of an agreement to arbitrate at issue under § 4 of the FAA. In determining that th e June 5, 1995, Cash Account Agreement was unenforceable, the district court act ed within its authority under § 4. 9
III U.S. Bancorp argues that, even if the court properl y determined that Spahr-16-

lacked the mental capacity to enter into the 1995 A greement, it erred in refusing to consider whether Spahr’s representatives subsequ ently ratified the agreement to arbitrate. Alternatively, U.S. Bancorp asserts that the subsequent agreements signed by Spahr’s representatives constituted a new and independent obligation for Spahr to arbitrate the present dispute. Specif ically, U.S. Bancorp contends that subsequent Customer Agreements signed by Juliu s Wall, as co-trustee of the William G. Spahr Trust, and Steven and Barbara Spah r, as Spahr’s coconservators, require Spahr to arbitrate the presen t dispute. These agreements contained arbitration provisions identical to the o ne signed by Spahr when he opened his account at U.S. Bank, and require arbitr ation of “any controversy arising out of or relating to [Spahr’s] account, to transactions with or for [him] or to this agreement. . . .” (U.S. Bancorp’s App. at 8 5, 236.) The district court concluded that “[t]he matter of later ratification has nothing to do with this case.” (Appellant’s App. at 210.) We agree with the distr ict court. Challenging the district court’s conclusion, U.S. B ancorp cites the Restatement (Second) of Contracts § 15(2), cmt. d, for the proposition that “[r]egardless of the other party’s knowledge or goo d faith and regardless of the fairness of the terms, the incompetent person on re gaining full capacity may affirm or disaffirm the contract, or the power to a ffirm or disaffirm may be exercised on his behalf by his guardian or after hi s death by his personal-17-

representative.” U.S. Bancorp contends that “[e]ve n if Spahr was initially unable to agree to arbitrate, he essentially ‘became compe tent again’ when Wall as cotrustee and later the co-conservators (all of whom are unquestionably competent) were given the authority to act on Spahr’s behalf w ith regard to the Spahr Account and USBI.” (U.S. Bancorp’s Br. at 32.) U. S. Bancorp points us to authority holding that one who regains mental capacity can ratify a contract. See Brisacher v. Tracy-Collins Trust Co. , 277 F.2d 519, 521 (10th Cir. 1960); Norfolk S. Corp. v. Smith , 414 S.E.2d 485, 487 (Ga. 1992); Apfelblat v. Nat’ l Bank Wyandotte-Taylor , 404 N.W.2d 725, 727 (Mich. Ct. App. 1987). These cases are not persuasive here as there is no allegation that Spahr has regained his capacity since signing the 1995 Cash Account Agreement. As further support for its ratification argument, U.S. Bancorp highlights the fact that both the Spahr Trust and the later ac count opened by Spahr’s coconservators remained at U.S. Bancorp, generating i ncome on Spahr’s behalf. However, U.S. Bancorp does not identify case law orother authority to show how these operative facts resulted in the ratification of the Customer Account Agreement signed by Spahr in 1995. Moreover, we se e no evidence in the record that Wall (as co-trustee of the Spahr Trust) or Spa hr’s co-conservators ratified the arbitration provision in the 1995 Cash Account Agre ement signed by Spahr while he was mentally incompetent. In short, we agree wi th the district court that U.S.-18-

Bancorp’s ratification argument lacks merit. We further reject U.S. Bancorp’s alternative argume nt that the district court erred because subsequent customer agreements, each of which contains an arbitration provision identical to the one Spahr si gned when he initially opened his account, constitute an independent obligation f or Spahr to arbitrate the instant dispute. U.S. Bancorp argues that an arbitration a greement can cover matters that arose prior to the signing of the agreement, citing R.M. Perez & Assoc., Inc. v. Welch , 960 F.2d 534, 539 (5th Cir. 1992), Whisler v. H.J . Meyers & Co. , 948 F. Supp. 798, 802 (N.D. Ill. 1996), and Shotto v. Laub , 632 F. Supp. 516, 522 (D. Md. 1986). While this proposition is not without s upport, the later customer agreements signed by Wall and Spahr’s co-conservato rs do not cover the present dispute. The Customer Agreement signed by Wall was in relation to the Spahr Trust; none of Spahr’s claims are related to the Sp ahr Trust; the third agreement, signed by Spahr’s co-conservators, involves a diffe rent account number, and none of Spahr’s claims arise out of that specific accoun t. In fact, Spahr’s coconservators had already filed the present suit in state court when they signed the stated third account agreement.
IV For the foregoing reasons, we AFFIRM the district court’s order denying U.S. Bancorp’s motion to compel arbitration.