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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 34054
MBNA AMERICA BANK, N.A.,                                                                           )
                                                                                                   )   Boise, June 2008 Term
Plaintiff-Respondent,                                                                              )
                                                                                                   )   2008 Opinion No.   92
v.                                                                                                 )
                                                                                                   )   Filed: July 1, 2008
MICHELLE FOUCHÉ,                                                                                   )
                                                                                                   )   Stephen W. Kenyon, Clerk
Defendant-Appellant.                                                                               )
)
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, in and for Valley County.  The Hon. George D. Carey, District Judge.
The judgment of the district court is vacated.
Belnap, Curtis & Williams, PLLC,  Boise, for appellant.  R. Wade Curtis argued.
Wilson & McColl, Boise, for respondent.  Alec T. Pechota argued.
EISMANN, Chief Justice.
This is an appeal from a judgment based upon the confirmation of an arbitration award.
Because the plaintiff failed to prove that the parties had agreed to arbitration, we reverse the
order confirming the award.   We vacate the judgment and remand for determination of the
plaintiff’s breach of contract claim.
I.  FACTS AND PROCEDURAL HISTORY
Michelle Fouché obtained a credit card from MBNA America Bank, N.A., (MBNA) on
February 13, 1996.   MBNA later contended that she had not paid the amount due on the credit
card, and in 2002 it commenced arbitration proceedings.  Fouché objected, asserting that she had
never agreed to arbitrate any disputes with MBNA.    It continued with the arbitration and
obtained an award of $23,214.18 on November 11, 2002.




On September 3, 2003, MBNA filed this action against Fouché for breach of contract to
recover the amount allegedly owing on the credit card.   MBNA later amended its complaint to
add a claim seeking confirmation of the arbitration award.   It also sought to dismiss its breach of
contract claim on the ground it would be moot if the arbitration award was confirmed, but the
court declined to rule on that motion until the arbitration claim was resolved.
Fouché appeared in the action pro se. She denied the existence of an agreement to
arbitrate  and  filed  a  counterclaim  against  MBNA  and  its  counsel  alleging  fraud,
misrepresentation, abuse of judicial process, and violation of consumer protection laws.   The
district court later severed Fouché’s claim against MBNA’s counsel and ordered that she file it as
a separate lawsuit.1
MBNA filed a motion to confirm the arbitration award and Fouché filed a motion to
vacate the award.   Because the motions were supported by affidavits, the district court treated
them as motions for summary judgment.   The district court held that there was a disputed issue
of material fact as to whether there was an agreement to arbitrate.
On March 1, 2005, MBNA moved for reconsideration of its application for confirmation
of the arbitration award.   It supported the motion with the affidavit of one of its assistant vice
presidents Ken Ballinger.   He stated that a true and correct copy of the cardholder agreement
regarding Fouché’s account was attached as Exhibit A to his affidavit.   The copy of the attached
credit card agreement did not contain an agreement to arbitrate, but it did include a provision
permitting MBNA to amend the agreement.  Ballinger also stated in his affidavit that on or about
December 20, 1999, a notice was sent to all MBNA cardholders, including Fouché, informing
them  that  MBNA  was  amending  the  cardholder  agreements  to  add  a  provision  requiring
mandatory arbitration of claims between MBNA and the cardholders.   The notice gave the
cardholders the option of rejecting the amendment by giving written notification to MBNA by
January 25, 2000.  Ballinger averred that MBNA’s records indicated that Fouché had not rejected
the amendment.   Fouché filed an opposing affidavit in which she stated that she had never
received the notice regarding the amendment to add a provision requiring arbitration.    The
district court denied the motion for reconsideration.   It held that there was a factual issue as to
whether there was “a valid arbitration agreement between the plaintiff and the defendant.”
1 The court also ordered that she did not have to pay another filing fee when filing the separate lawsuit.
2




The case was tried to the court on June 8, 2006.   After the trial, the district court issued a
written opinion finding that Fouché entered into a cardholder agreement with MBNA that
permitted MBNA to amend the agreement; that MBNA gave Fouché written notice it was
amending the agreement to add a provision requiring mandatory arbitration; and that she did not
elect to reject that amendment.    The court confirmed the arbitration award in the sum of
$23,214.18 and held that MBNA’s alternative count to collect the amount owing under the
cardholder agreement was moot.   It entered judgment against Fouché for the amount of the
award plus prejudgment interest in the sum of $10,730.68 and court costs and attorney fees in the
sum of $6,597.00.   Fouché then timely appealed.   After she filed her notice of appeal, Fouché
retained counsel to represent her on the appeal.
II.  ISSUES ON APPEAL
1.                                                                                                      Is the district court’s finding that there was an agreement to arbitrate supported by
                                                                                                        substantial and competent evidence?
2.                                                                                                      Is either party entitled to an award of attorney fees on appeal?
III.  ANALYSIS
A.   Is the District Court’s Finding that There Was an Agreement to Arbitrate Supported
by Substantial and Competent Evidence?
The original cardholder agreement between Fouché and MBNA did not include an
arbitration provision.   The district court found that the original agreement included a provision
giving MBNA the right to unilaterally amend the agreement and that it later did so in December
1999  when  it  sent  Fouché  written  notification  that  it  was  adding  a  mandatory  arbitration
provision to her cardholder agreement.    She contends on appeal that there is no evidence
supporting  the  district  court’s  finding  that  the  original  cardholder  agreement  contained  a
provision granting MBNA the right to unilaterally amend it.
“A trial court’s findings of fact will not be set aside on appeal unless they are clearly
erroneous.                                                                                              .   On appeal, this Court examines the record to see if challenged findings of fact
are supported by substantial and competent evidence.”   Thomas v. Madsen, 142 Idaho 635, 637-
38, 132 P.3d 392, 394-95 (2006) (citation omitted).
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MBNA did not offer its original cardholder agreement with Fouché into evidence at the
trial.   There was no evidence offered at trial on the issue of whether that agreement included a
provision granting MBNA the right to unilaterally amend the agreement.   In support of the trial
court’s finding that it had the right to amend the cardholder agreement, MBNA makes four
arguments.
First, it contends that at the beginning of the trial, both parties acknowledged that the
only issue to be tried was whether Fouché had received notification of the amendment adding an
arbitration clause to her cardholder agreement.    MBNA’s assertion is not accurate.   At the
beginning of the evidentiary hearing, the district court stated that the issue to be tried was
“whether or not there was a valid arbitration agreement between plaintiff and the defendant.”
MBNA’s counsel responded that “the Court’s pretty well aware of what the limited scope of this
proceeding is today, and I don’t see any need for an opening statement.”   Fouché then moved to
dismiss for lack of jurisdiction, but as a preface to that motion she stated that the purpose of the
evidentiary hearing was “to establish whether there was an amendment to the original cardholder
agreement, which provided an arbitration agreement within that.”    She then added,  “And,
however, in order for there to be an amendment to an agreement, the original agreement or
contract has to be entered into evidence on the record.                                                Of course there can be no
determination of the subsequent contract without the original first being placed into evidence.”
It is undisputed that Fouché’s original cardholder agreement did not contain an arbitration
clause.   For the parties to have agreed to arbitration, the original cardholder agreement would
have to have been amended.  To prove that the parties agreed to arbitration, MBNA was required
to prove that the original cardholder agreement or applicable law granted it the right to amend
the agreement and that it followed the proper procedures in doing so.   Its right to unilaterally
amend the cardholder agreement was one of the issues that MBNA had to prove in order to
establish that it had amended the agreement to include a provision for arbitration.
Next, it contends that the terms of the original cardholder agreement, including its right to
amend the agreement, were established pursuant to Rule  56(d) of the Idaho Rules of Civil
Procedure.2    MBNA’s  motion  for  reconsideration  was  treated  as  a  motion  for  summary
2 That Rule provides:
If on motion under this rule judgment is not rendered upon the whole case or for all the
relief asked and a trial is necessary, the court at the hearing of the motion, by examining the
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judgment.   Rule 56(d) provides that if a motion for summary judgment is denied, the trial court
can “make an order specifying the facts that appear without substantial controversy . . .                .   Upon
the trial of the action the facts so specified shall be deemed established, and the trial shall be
conducted accordingly.”
In this case, however, the district court did not specify as an established fact that
Fouché’s original cardholder agreement included a provision giving MBNA the unilateral right
to amend the agreement.   In its order denying the motion, the court listed various facts that were
in the record.   The only listed fact regarding the terms of the cardholder agreement was that it
“did not have an arbitration provision.”   The court did not list as an established fact that the
cardholder agreement included a provision permitting MBNA to modify its terms.
MBNA argues that Fouché admitted that Exhibit A to the Ballinger affidavit was a true
and correct copy of the original cardholder agreement.  In her affidavit in opposition to MBNA’s
motion  for  reconsideration,  she  stated,                                                              “The  original  credit  agreement  did  not  contain  an
arbitration clause.                                                                                      (See Plaintiff’s Exhibit A).”   During argument on the motion, she said, “The
defendant’s original agreement with MBNA did not contain an arbitration agreement, plaintiff’s
Exhibit A.”   The only facts deemed established under Rule 56(d) are those that the trial court
specifies in its order as being without substantial controversy.  The Rule states, “Upon the trial of
the action the facts so specified shall be deemed established, and the trial shall be conducted
accordingly.”                                                                                            (Emphasis added.)   Facts that could have been, but were not, so specified are not
deemed established.
Next, MBNA contends that Fouché offered the Ballinger affidavit into evidence during
the trial.   She questioned MBNA’s witness about the fact that Exhibit A to the affidavit had a
copyright date that was three years after she entered into her original cardholder agreement with
MBNA, but she did not offer either the affidavit or Exhibit A into evidence.
Finally, MBNA points to the testimony of its witness that all of MBNA’s numerous
cardholder agreements “contain the same verbiage,” but differ in appearance.   That testimony
pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain
what material facts exist without substantial controversy and what material facts are actually and
in good faith controverted.   It shall thereupon make an order specifying the facts that appear
without substantial controversy, including the extent to which the amount of damages or other
relief is not in controversy, and directing such further proceedings in the action as are just.   Upon
the trial of the action the facts so specified shall be deemed established, and the trial shall be
conducted accordingly.
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does not establish that MBNA had the unilateral right to amend its cardholder agreement with
Fouché.   Testimony that all of the cardholder agreements “contain the same verbiage” does not
by itself establish what that verbiage is because MBNA did not offer the terms of any cardholder
agreement into evidence.
In finding that MBNA had amended Fouché’s cardholder agreement, the district court
also relied upon various statutes enacted in the state of Delaware.   There was no evidence
presented during the trial, however, showing that Delaware law applied to this case.
The district court found that Fouché’s original cardholder agreement “did not have an
arbitration  provision,  but  gave  MBNA  the  right  to  change  the  agreement  under  certain
circumstances.”   There was no evidence admitted during the trial that supported the finding that
MBNA had the right to change the agreement.  Absent that evidence, MBNA failed to prove that
it amended the cardholder agreement to add a provision requiring mandatory arbitration, and it
therefore failed to prove that there was an agreement to arbitrate.   The order of the district court
confirming the arbitration award is reversed.   Because of our resolution of this issue, we will not
address the remaining issues that Fouché raised to challenge the confirmation of the arbitration
award.
The district court did not decide MBNA’s claim to recover for breach of contract, holding
it was moot once the court confirmed the arbitration award.   Since the confirmation of the
arbitration award has been reversed, this case must be remanded for consideration of the breach
of contract claim.   We therefore vacate the judgment in its entirety and remand this case for
further proceedings consistent with this opinion.
B.  Is Either Party Entitled to an Award of Attorney Fees on Appeal?
Both parties request an award of attorney fees on appeal.   Because we are remanding this
case for a decision on MBNA’s breach of contract claim, any determination of the prevailing
party is premature until the case is finally resolved.   Lexington Heights Development, LLC v.
Crandlemire,                                                                                            140  Idaho  276,  287,  92  P.3d  526,  537  (2004);  Thomas  v.  Medical  Center
Physicians, P.A., 138 Idaho 200, 211, 61 P.3d 557, 568 (2002).
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IV.  CONCLUSION
We reverse the confirmation of the arbitration award, vacate the judgment, and remand
this case for determination of MBNA’s breach of contract claim.   We do not award costs on
appeal.
Justices BURDICK, J. JONES, W. JONES and HORTON CONCUR.
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