Jacqueline E. Heintz individually and as Personal Representative of the Estate of Ada L. Colvin, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0242

Jacqueline E. Heintz individually
and as Personal Representative of the Estate of Ada L. Colvin,
Respondent,

vs.

Cambridge Investment Research, Inc., et al.,
Appellants.

Filed December 2, 2019
Affirmed
Florey, Judge

Hennepin County District Court
File No. 27-CV-18-17627

Kirsten J. Hansen, Patrick M. Biren, Alex A. Herman, Stich, Angell, Kreidler & Unke,
P.A., Minneapolis, Minnesota (for respondent)

Ansis V. Viksnins, Mae B. van Lengerich, Monroe Moxness Berg, P.A., Minneapolis,
Minnesota; and

Steven J. Alagna (pro hac vice) Bryan Cave Leighton Paisner, St. Louis, Missouri (for
appellants)

Considered and decided by Florey, Presiding Judge; Reyes, Judge; and Smith, Tracy
M., Judge.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellants seek review of the district court’s order staying their motion to compel
arbitration. Appellants argue that several valid arbitration agreements exist between the
parties, pursuant to wh ich any questions of arbitrability should be submitted to an
arbitrator. Respondent challenges the existence, validity, and/or applicability of any such
agreements on several grounds. The district court found there to be a fact issue precluding
appellant’s motion to compel and stayed that motion pending further discovery. We affirm.
FACTS
Respondent Jacqueline Heintz is the daughter of Ada Colvin, who passed away in
2017. In 1990, Colvin appointed Heintz as her power of attorney (POA) and opened a
transfer-on-death (TOD) investment account with Transamerica Fin ancial Resources
(Transamerica). In 2011, Heintz was made the sole primary beneficiary of the account’s
proceeds. In 2014, the investment adviser representative (IAR) who helped Heintz and
Colvin with the TOD account retired, and appellant Lisa Nesser became the new IAR for
the account.
In 2016, Transamerica notified Heintz and Colvin that it was selling certain assets
and that their TOD account had to be moved to a different firm. At around the same time,
Nesser sent Heintz and Colvin a letter, informing them that she was aligning her work with
appellant Cambridge Investment Research, Inc. (Cambridge)—a firm that Nesser said was
a better fit for her and her clients. Nesser included certain papers with the letter and
instructions for Heintz, as Colvin’s POA, to sign and return them in order to register

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Cambridge as the new broker/dealer of record. Heintz signed and returned the papers as
instructed. Appellants contend that, between the mailed documents and others, there were
three separate agreements between themselves and Heintz.
Cambridge became the new broker/dealer for the account in April of 2016.
According to her appellate brief, Heintz did not learn until after Colvin passed away in
March 2017 that Nesser incorrectly registered the account with Cambridge as a
nonqualified individual account, rather than an individual TOD account. Rather than
admitting her mistake, Heintz alleges, Nesser misrep resented to Cambridge that the
account had never been designated a TOD and altered documents in the Transamerica file
to continue misleading Cambridge. This error, Heintz claims, caused the account to fail to
vest in her as the sole beneficiary, becoming the estate’s probate asset instead. This was
the impetus for Heintz’ s original action—brought against Cambridge, Cambridge
Investment Research Advisors, Inc. (CIRA) , Lisa Nesser, and Lisa Nesser, LLC
(collectively, appellants)—alleging, inter alia, negligence and fraud.
After Heintz filed and served the complaint, a ppellants filed a motion to compel
arbitration based on the three purported agreements . Heintz challenged the motion on
several grounds, and the district court stayed the motion. The district court cited “among
other issues, a fact question” as the reason for staying the motion. Appellants took appeal,
and Heintz challenged that appeal on jurisdictional grounds, arguing that the stay was not
an order denying arbitration or otherwise a final decision and therefore not amenable to
review. This court instructed the parties to brief the appealability issue, whereafter we held

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that the district court’s order was , in effect, an order denying appellants’ motion and thus
subject to appeal under Minn. Stat. §§ 572B.01-.31 (2018). This appeal follows.
D E C I S I O N
Appellants argue that the district court erred in effectively denying their motion to
compel arbitration in part because there were three separate agreements to arbitrate, and
the court’s order mentions a fact issue as to only one of them. Appellants argue that a ny
one of the agreements is sufficient to compel arbitration , and the district court’s order
should be reversed. In response, Heintz levies numerous attacks on the existence, validity,
and/or scope of each of the purported agreements—one of which being her allegedly forged
signature.1 Heintz’s allegation of forgery was the only fact issue specifically identified by
the district court ’s order. On appeal, the parties allege numerous facts and have briefed
issues on applicable law, statutory construction, agency, fraud, contract law, and the scope
of the purported agreements. We cannot, however, reach any of it, because the procedural
posture of this case substantially limits our review.
This case barely progressed past the pleading stage before being appealed. Save for
the order staying appellants’ motion, there are no final judgments or other determinations
to review. Even if there were, there has been neither evidence nor findings of fact upon
which we could base such a review. Because the district court made no mention of the
other two agreements, this court cannot resolve appellants’ primary argument without

1 Some of Heintz’s other allegations include certain parts of the agreements being left out
when she received them; Nesser leaving misleading or otherwise improper instructions;
and certain clauses, including an arbitration clause that was purportedly incorporated by
reference, being withheld from her until appellants’ motion to compel arbitration.

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independently finding facts and deciding unanswered questions. Hoyt Inv. Co. v.
Bloomington Commerce & Trade Ctr. Assocs., 418 N.W.2d 173, 175 (Minn. 1988) (“[A]n
undecided question is not usually amenable to appellate review.”); Fontaine v. Steen, 759
N.W.2d 672, 679 (Minn. App. 2009) (“It is not within the province of appellate courts to
determine issues of fact on appeal.” (internal quotation omitted)). That is, we cannot decide
whether the district court erred in staying the motion to compel on the basis of the other
two agreements without independently ruling on the existence, validity, and scope of those
agreements. Therefore, the only issue we review is whether the d istrict court erred in
staying appellants’ motion to compel, insofar as that order was based on Heintz’s forgery
allegation.
Appellants argue that we may pass upon the applicability of the other agreements
because our review is de novo. Kilcher v. Dale, 784 N.W.2d 866, 870 (Minn. App. 2010).
It is true that our review is de novo. Under normal circumstances, on appeal from a district
court’s interpretation of an arbitration agreement, we are tasked with reviewing whether
(1) a valid agreement to arbitrate exists and (2) the dispute at hand falls within the scope
of the arbitration agreement. Id. Had the district cou rt denied the motion to compel
arbitration on either of these bases, a ppellants would be correct in their assertion that we
could reach that question . However, the district court denied the motion to compel not
because it found there to be no agreement that applies to this dispute, but because it did not
have enough information to even reach those questions. Appellants would have us not
review an interpretation of an agreement, but conduct the initial interpretation ourselves
upon the parties’ bare allegations alone. We cannot determine whether there existed other

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agreements to arbitrate and that the district court thereby erred in staying the motion to
compel arbitration.2
With respect to the issue of whether the district court erred in not compelli ng
arbitration based on Heintz’s forgery allegation, appellants argue that, to the extent that the
arbitrability of Heintz’s claims is at issue, the parties agreed to submit the issue of
arbitrability to arbitration. Again, this is a generally correct assertion, but it does not
resolve the issue here. When a plaintiff’s argument against arbitration is that the re is no
legally effective agreement to arbitrate, the court must resolve that issue before compelling
arbitration. Prima Paint Corp. v. Flood & Conklin Mfg. Co. , 388 U.S. 395, 40 3 (1967)
(“[The] court is instructed to order arbitration to proceed once it is satisfied that the making
of the agreement for arbitration . . . is not an issue.” (internal quotation omitted)). The
Minnesota Supreme Court has extended this principle to al legations against the existence
of the contract itself. Onvoy, Inc. v. SHAL, LLC , 669 N.W.2d 344, 353 -54 (Minn. 2003)
(“[P]arties may not be compelled to arbitrate claims if they have alleged that the contract
at issue never legally existed.”).
It is undisputed that a forged signature could amount to fraud and nullify a contract.
Strader v. Haley, 12 N.W.2d 608, 611 (Minn. 1943) (“When a signature is forged or made
without the authority of the person whose signature it purports to be, it is wholly
inoperative . . . .” (internal quotation omitted)). Heintz’s allegation that her signature was

2 While the dis trict court mentioned only the alleged forgery as a fact issue precluding
arbitration, it stated that this was “among other issues,” and we simply cannot pass upon
the propriety of that decision at this early stage.

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forged on one agreement is a claim of fraudulent inducement of that agreement. Moreover,
Heintz alleges facts that put into question whether she was provided with the information
and forms necessary to enter into valid and enforceable agreements. The district court ,
therefore, did not err in staying a ppellants’ motion to compel arbi tration. Onvoy, 669
N.W.2d at 354 (“[A]llegations that a contract is void may be heard by a court .”). The
district court must first establish that a valid contract and agreement to arbitrate exists; and
it, like us, cannot do so on the dearth of this record.
We emphasize that we are not passing upon the arbitrability of Heintz’s claims. We
only affirm the district court’s order staying arbitration pending further discovery so that it
may decide the threshold question of whether a valid contract and agreement to arbitrate
exists.
Affirmed.