UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ SARAH LEE GOSS ETT PARRISH, Plaintiff - Appellant,

v. ARVEST BANK, Defendant - Appellee. No. 18-6133 (D.C. No. 5:15-CV-00913-HE) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , MORITZ , and EID , Circuit Judges.

________________ _________________ Sarah Lee Gossett Parrish contends that Arvest Bank breached it s Electronic Fund Transfer (“EFT”) Agreemen t by providing inaccurate accountbalance information through its online a nd mobile banking platforms, ca using her to incur unexpected overdraft fees. In t he second appeal in this case, Parrish challenges the district court’s order granting summary judgment to Arvest on h er breach of contract claim. Exercising jurisdiction under 28 U.S.C. § 1291, we affi rm.

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 8, 2019
Elisabeth A. Shumaker Clerk of Court2 Background Arvest is an Arkansas-chartered bank with over 250 locations sc attered throughout Arkansas, Kansas, M issouri, and Oklahoma. Parrish h as had multiple accounts with an Arvest branc h in Oklahoma since 1997. In 2015, Parrish filed a putativ e class action against Arvest r elated to its electronic banking services and its online and mobile banking t ools. 1 The operative (second amended) complaint (“SAC”) asserted claims for actual f raud; constructive fraud; false representation/decei t; breach of fiduciary duty; b reach of contract (namely, the EFT Agreement), w ith a sub-claim fo r breach of the implied covenant of good faith and fair dea ling; and unjust enrichment. Parrish al leged that she regularly used her online and mobile ba nking access to check her account balances and frequently based her purchase d ecisions on the balances display ed through these platforms. She accused Arvest of employing suspect debiting pr actices—such as batching by transaction type 2 and reordering transactions at the end of the day to maximize fees rather than pro cessing them chronologically, fail ing to show real-time balance information online, a nd not processing intra-account tr ansfers

1 Because judgment was entered be fore a class was certified, we do not recount or consider the allega tions on behalf of the putative class.

2 Parrish alleged that Arvest gr ouped and posted transactions in the following order: point-of-sale transacti ons, other debit transactions, c heck transactions, Automated Clearing House (“ACH”) transactions, and other transa ctions. See Aplt. App. at 18.3 instantaneously. According to Pa rrish, these practices sometim es resulted in insufficient funds and overd raft fees in her account. The district court dismissed al l claims under Federal Rule of Civil Procedure 12(b)(6). On appeal, this court reversed and remanded as to th e breach of contract claim but affirmed the dismissal of her other claims, including the sub-claim. See Parrish v. Arvest Bank , 717 F. App’x 756 passim (10th Cir. 2017). Limiting our review to the language of the EF T Agreement, we found that Parr ish had alleged enough facts to state a plausible claim for breach of contract under the standard applicable to Rule 12(b)(6) motions. See id. at 764. We emphasized that the EFT Agreement “tells customers they can use Arvest’s online and mob ile banking platforms to check their accountbalances and the credits and d ebits that have posted

to their accounts,” id . We determined that Parrish’s “ example of Arvest not carrying out an intra-bank transfer, while displaying the transfer as co mpleted,” id. , could be an inaccurate posting and therefore remanded. On remand, the SAC set the param eters for what remained of the contractual claim because Parrish never s ought to amend it. The SAC allege d that a contract was formed “[w]hen [Parr ish] . . . submitted to the EFT Agreement” and that “Arvest agreed, among other things, to pr ovide an accurate and reliable online and mobile banking platform upon which [she ] could rely.” Aplt. App. at 3 5. It then defined reliability as being “‘curre nt’ and in real-time.” Id. The SAC further alleged that Arvest breached the contract by providing inaccurate balances a nd by not reflecting the transfer of money as promi sed, causing Parrish to overdraw her account. With4 respect to promises made about tr ansfers, it alleged that “Arve st does not instantaneously process intra-bank transfers, even when it repr esents that it has done so,” id . at 26. Arvest ultimately filed a moti on for summary judgment on two gr ounds. First, Arvest argued that the breach of contract claim is precluded by the clear, unambiguous terms of two related , supplemental agreements—“Onli ne Banking Terms and Conditions” and the “M obile Banking Addendum”—which a re incorporated into the EFT Agreem ent and take precedence in the event of a conflict. 3 All online customers must agree to the provisions therein, whic h state that Arvest’s online and mobile banking applica tions are not warranted to be error-free and which disclaim any liability regarding performance, inaccuracy, or re liability. Second, and in the alternative, Arvest argue d that Parrish cannot show the information displayed on her online account caused her to incur overdraft fees she wo uld not have otherwise incurred, given the tim ing of the various transaction s. Parrish responded that summary j udgment is inappropriate becaus e there is a genuine issue of material fact. Through an affidavit, she prof fered six examples to support her breach of contract c laim, none of which were includ ed in the SAC. The

3 By their terms, the Online Bank ing Terms and Conditions contro l over the EFT Agreement in the event of a conf lict, whereas the Mobile Bankin g Addendum controls over the Online Banking Terms and Conditions. The EFT Agreemen t is therefore subordinate to both supplemental agreements. These documents w ere not before us during the first appeal because a court must limit its review t o the contents of the complaint when assessing a Rule 12(b)(6) motion. But Arvest authenticated and attached the various iterations o f the agreements to its summar y judgment motion. See Aplt. App. at 118-59.5 first five examples were transac tions for which Parrish purport edly incurred overdraft fees due to Arvest’s practice of reordering and batch processin g her transactions at night, rather than processing th em in chronological order. The sixth example was a two-day period when the balance in her business account fluctua ted at night after an intra-bank transfer even thou gh no additional activity occurred

. Turning to Arvest’s legal argumen ts, Parrish maintained that th e liability disclaimer in the supplemental agreements is ineffective under Arkansas’s Uniform Commercial Code, which she conte nds applies even though the con tract at issue does not involve the sale of goods. Lik ewise, she argued that the d isclaimer would be ineffective if Oklahoma law gove rned because the EFT Agreement and the supplemental agreements are une nforceable adhesion contracts. The district court granted Arvest ’s motion and again entered ju dgment against Parrish. As a threshold matter, i t determined that the EFT Agr eement promises accuracy only as to posted amount s (not pending or unprocessed transactions), yet Parrish “has offered no evidence suggesting that the bank at an y time inaccurately reported posted transactions,” id . at 233. Instead, she “relie s on the impact of the eventual posting of other trans actions which were pending on th e same day she made the various transfers res ulting in overdrafts,” id. The district court also found Parrish’s claim about t he timing of transfe rs to be inconsisten t with the Online Banking Terms and Conditions, which specifies a 7:00 p.m. cut-o ff for the posting of transfers. Transfers initiated before that time are posted on the same business day, whereas transfers initiated afterthat time are not posted unti l the next business day.6 See id . at 129. Finally, the district court rejected Parrish’s argum ents about the disclaimer under both Arkansas and Oklahoma law. Parrish filed this timely appeal. Analysis We review the district court’s grant of summary judgment de nov o, applying the same standard that the district court applied. Cillo v. City of Greenwood Vill. , 739 F.3d 451, 461 (10th Cir. 2013). Summary judgment must be g ranted if “there is no genuine dispute as to any ma terial fact and the movant is en titled to judgment as a matter of law.” Fed. R. Civ. P . 56(a). Stated otherwise, “[t] he moving party is entitled to summary judgment whe re the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” 19 Solid Waste Dep’t Mechs. v. City of Albuquerque , 156 F.3d 1068, 1071 (10th Cir . 1998) (alteration and internal quotation marks omitted). “When applying this standard, we exa mine the record and reasonable inferences drawn the refrom in the light most favorab le to the non-moving party.” Id. Parrish argues that the district court erred in finding that (1 ) the EFT Agreement does not guarantee Arve st will provide accurate balan ces through its online and mobile banking platfo rms; (2) she failed to offer ev idence demonstrating Arvest provided inaccurate bal ances through its online and bank ing platforms; and (3) her breach of contract claim is precluded by the warranty d isclaimer in the supplemental agreements. We are not persuaded by the first two arguments, and it is unnecessary to reach the third one.7 A. Plain Language of the Parties’ Agreement Although this court applied Okla homa law in resolving the first appeal, the parties alternately reference Ar kansas and Oklahoma law in thei r briefs for this second appeal. The uncertainty a rises because Parrish is an Ok lahoma resident, and the law where the contract was m ade applies in contract actions per Oklahoma choice-of-law principles. See Harvell v. Goodyear Tire & Rubber Co. , 164 P.3d 1028, 1033-34 (Okla. 2006). Yet a choice-of-law provision in t he Online Banking Terms and Conditions designates Arkansas law as governing “to t he extent there is no applicable Federal law or re gulation.” Aplt. App. at 127, 1 33; see also id. at 139 (different version designating Ar kansas law as governing “to th e extent applicable”). We need not decide which law app lies because the same principle s guide our analysis either way. We examine the plain language of the parties’ agreement when th at language is clear and unambiguous. See Roth v. Prewitt , 283 S.W.2d 155, 157 (Ark. 1955); Bank of Okla., N.A. v. Red A rrow Marina Sales & Serv., Inc. , 224 P.3d 685, 700 (Okla. 2009). Further, “[i]t is our duty to interpret instrume nts by trying to make all parts of the instrument harmoni ze, and stand together, if possi ble, so as to ascertain the intention of the parties.” Anadarko Petroleum Co. v. Venable , 850 S.W.2d 302, 306 (Ark. 1993); accord McGinnity v. Kirk , 362 P.3d 186, 199 (Okla. 2015) (“A contract is to be construed as a whole, giving effect to each o f its parts, and not construed so as to make a provi sion meaningless, superfluous orof no effect.” (footnotes omitted)).8 Applying these principles, we agr ee with the district court’s w ell-reasoned analysis of the contractual pr ovisions addressing the accuracy of account balances and the timing of transfer posti ngs. When we addressed Arvest’ s promise of accuracy during the first appeal , we emphasized that “the [EFT Agreement] tells customers they can use Arvest’s online and mobile banking platf orms to check their account balances and the credits and debits that have posted to their accounts.” Parrish , 717 F. App’x at 764; see also Aplt. App. at 42 (EFT Agreement). Echoing the district court, we pointed out the critical distinction bet ween posted and pending transactions. Even so, Parrish c ontinues to fault Arvest for n ot providing real-time balances. Simply put, her argum ent disregards the plain langua ge of the EFT Agreement, which sp ecifically addresses pos ted transactions but says nothing about pending ones. Parrish fares no better with hertransfer argument, which depen ds on the erroneous premise that Arvest pro mised instantaneous intra-banktransfers. See, e.g. , Aplt. App. at 17-18 (alleging in the SAC that “Arvest transfers the funds [for intra-bank transfers] instantly, r egardless of whether the tran saction is performed inperson or remotely”); id. at 26 (alleging that “Arvest does not instantaneously process intra-bank transfers, eve n when it represents that it h as done so, and even when standard banking practices p rovide that this be accomplish ed”); id. at 27 (alleging that the EFT Agreement “states customers may rely upo n online and mobile banking . . . to make instantaneous transfers between Arvest ac counts”). As the district court noted, the Onlin e Banking Terms and Conditions i nclude a 7:00 p.m.9 cut-off for the posting of trans fers, which contradicts Parrish ’s premise. After the first appeal, an open question ex isted as to whether Arvest had failed to post an intrabank transfer in accordance with the EFT Agreement. Now that t he supplemental agreements are properly before u s, it is clear Arvest was not c ontractually obligated to make intra-bank tran sfers instantaneously. For these reasons, the district c ourt did not err in its interp retation of the applicable agreements.
B. No Genuine Issue as to Any Material Fact Similarly, we discern no error in the district court’s evaluati on of the evidence Parrish presented to try to cre ate a genuine issue of material fact. Parrish identified six discrete occasions on which Arvest allegedly breached its c ontract with her. Assuming it is even appropriate for Parrish to raise these exam ples given their absence from the SAC, none of th em defeat summary judgment. The first five occasions relate to Arvest’s batching and reorde ring process and Parrish’s contention that she inc urred additional fees because her transactions were not processed chronologically as promised; in other words, she would not have been penalized for some of the smaller transactions had Arvest proce ssed her transactions in order (though she concedes she anticipated some penalties). Without pointing to any particular contra ct language, Parrish argues that this prac tice affected the accuracy of her account. Parrish does not clearly articul ate how this alleged practice s upports her breach of contract claim. In any event, we held in the first appeal that Parrish has10 “not plausibly show[n]” the EFT A greement “actually represents” that transactions “will be posted in chronological order.” Parrish , 717 F. App’x at 761; see also id. at 760 (upholding the district c ourt’s conclusion that “the sta tement in the EFTA about accounts being de bited ‘each time’ a customer uses a debi t card ‘does not say or imply that the posting w ill be instantaneous’”); id. at 761 (noting Parrish’s acknowledgment that “she does not allege any such explicit repr esentations in the EFTA . . . regarding chronological posting”). “[W]hen a case i s appealed and remanded, the decision of the appe llate court establishes the l aw of the case and ordinarily will be followed by b oth the trial court on remand a nd the appellate court in any subsequent appeal.” Rohrbaugh v. Celotex Corp. , 53 F.3d 1181, 1183 (10th Cir. 1995) (applying the la w of the case doctrine). Furt her, this issue was part of Parrish’s fraud claim, not her breach of contract claim, and was thus outside the scope of the remand. Accordingl y, we will not revisit this arg ument here. The sixth example relates to acc ount activity on July 14, 2015. Parrish attached screenshots from her business account, which seem to s how a fluctuating balance throughout the night e ven though no additional transact ions posted to the account. This example cannot creat e a genuine issue of materia l fact because the account in question is a business account. See Aplt. App. at 200-02 (identifying account as “Business Checking”). B y its terms, the EFT Agreeme nt clearly applies only to accounts “held for per sonal, family or household purpos es.” Id. at 41. Moreover, even if this account was within the scope of the EFT Agreement, Parrish states that the fluctuation stem s from Arvest’s batch processin g and reordering.11 See id. at 198 (explaining that the on line and mobile account balance reflected enough funds for an intra-bank transfer, but an overdraft fee w as imposed after Arvest batched and reordered the transactions) (Parrish Aff.). As we just explained, that process does not vio late the contract. C. Validity of Disclaimers Because we conclude there was no breach of contr act as a matterof law and because Parrish did not create a genuine issue of a material fa ct, we need not address whether the disclaimer in the su pplemental agreements precludes her breach of contract claim. Conclusion We affirm the judgment of the d istrict court. The EFT Agreemen t authorized Arvest to collect an overdraft f ee “for each item presented aga inst insufficient funds in [her] account” even when an A TM Card or CheckCard transactio n “was preauthorized based on sufficien t funds in the account at the t ime of withdrawal, transfer or purchase. ” Aplt. App. at 45. Arvest did just that . Parrish’s arguments to the contrary are inconsistent w ith the plain language of the pa rties’ agreement.

Entered for the Court

Nancy L. Moritz Circuit Judge