Slaughter, J.
Plaintiffs, Cliff and Wendy Decker, have a checking account with Star Financial Bank, a wholly owned subsidiary of defendant, Star Financial Group, Inc. The Deckers, on behalf of themselves and others similarly situated, filed a class-action complaint alleging the Bank collected improper overdraft fees. Before the Deckers sued, the Bank added an arbitration and no-class-action addendum to the terms and conditions of the Deckers’ account agreement. After the Deckers sued, the Bank cited the addendum and responded with a motion to compel arbitration, which the trial court granted. We hold that the account agreement’s change-of-terms clause did not allow the Bank to add the addendum. We reverse and remand.
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The Deckers raise three arguments on appeal: (1) the Bank buried notice of the addendum at the end of their monthly statement and thus did not provide the contractually required reasonable notice; (2) the account agreement’s change-of-terms clause did not allow the Bank to add the addendum; and (3) the continued use of their checking account did not manifest their assent to the addendum.
For us to affirm the trial court’s judgment of dismissal, the Bank must run the table on all three of the Deckers’ arguments. In contrast, the Deckers need win only one of their arguments for us to resolve the appeal in their favor. Without expressing any opinion on the merits of the Deckers’ first and third arguments, we hold that the specific language of the account agreement’s change-of-terms clause did not permit the Bank to add the addendum. Thus, the addendum was not a valid amendment to the account agreement.
The agreement’s operative provision is Section 10, which allows the Bank to “change any term of this agreement.” The Bank proceeded here as if the account agreement’s change-of-terms clause gave it a blank check to amend the agreement any way it saw fit to fend off threatened litigation. But Section 10—which the Bank itself wrote—is not so elastic. This section does not say the Bank can change the agreement however it wants. If the Bank wanted such flexibility, it might have given itself the power to “change this agreement” as desired. Instead, the section is more limited in scope. It limits the Bank to changing “any term of this agreement.” Words matter. The difference between a far-reaching power to amend “this agreement” and the narrower power to amend “any term of this agreement” makes all the difference on this record. The latter—which governs here—limits the Bank to modifying the terms that existed in the original account agreement. Relevant here, the original agreement contained neither a general dispute-resolution provision nor a specific arbitration or no-class-action provision. Thus, there was not “any term” of that agreement the Bank could “change” to effectuate the result it sought here through its addendum. Because the original account agreement did not mention dispute resolution generally or arbitration or class action specifically, Section 10 did not permit the Bank to add such provisions by amendment. To conclude otherwise would violate Section 10.
Case authority from elsewhere recognizes this key distinction…
Here, following the reasoning of the Badie court, we agree that our case likewise turns on “what the parties intended by the word ‘term[]’”. Id. at 285. But, unlike the Badie court, we conclude that the plain text of the change-of-terms clause allows us to resolve this case without resorting to an ambiguity analysis. In focusing on the word “term”, we must also give effect to the modifier “any”. The agreement did not define “any”; thus, we give the term its plain meaning. Reuille, 888 N.E.2d at 771 (quoting Cabanaw, 648 N.E.2d at 697). Using “any” shows that the agreement did not allow the Bank to add new terms that differed in kind from those included in the original account agreement. Instead, Section 10 allowed the Bank merely to change a specific kind of term by amendment— namely, only those terms existing in the original account agreement. Because the original account agreement had no general dispute-resolution provision or specific arbitration or class-action provisions, the Bank could not add such provisions by amendment. Thus, the addendum was not a valid amendment to the account agreement.
Our concurring colleague would hold that Sections 2 and 10 of the parties’ agreement independently authorize the Bank’s addendum. As for Section 2, he believes the Bank need only send customers a document “pertaining” to their account to establish a new agreement. We respectfully disagree….
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Given our dispositive conclusion that the agreement’s change-of-terms clause did not allow the Bank to add the addendum, we do not consider whether the Deckers received reasonable notice of the addendum or whether their continued use of their checking account manifested their assent to the addendum.
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For these reasons, we reverse the trial court’s judgment and remand for further proceedings consistent with our opinion.
Rush, C.J., and Massa and Molter, JJ., concur.
Goff, J., concurs in the judgment with separate opinion.
Goff, J., concurring in the judgment.
I agree with the Court that the Deckers are not bound by the arbitration addendum to their account agreement. But I reach that conclusion for a different reason. In my view, the agreement—taken as a whole—permits the addition of an arbitration addendum. But, given the lack of reasonable opportunity to reject the addendum, the Deckers did not, as I see it, assent to a change in terms.
I. The agreement, when read in full, permits the addition of an arbitration addendum.
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II. The Deckers did not assent to the addendum by failing to close their account within ten days.
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Conclusion
In sum, I agree with the Court that the Deckers are not bound by the arbitration addendum to their account agreement. However, I reach that conclusion not because the agreement prohibits the Bank from adding new terms but, rather, because the Deckers’ failure to close the account within ten days did not, in my view, constitute assent to the addendum.