                      UNITED STATES COURT OF APPEALS                            FILED
                                                                    United States Court of Appeals
                             FOR THE TENTH CIRCUIT                          Tenth Circuit
                         _________________________________
                                                                            April 8, 2019
 SARAH LEE GOSSETT PARRISH,
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
       Plaintiff - Appellant,

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

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, MORITZ, and EID, Circuit Judges.
                  _________________________________

      Sarah Lee Gossett Parrish contends that Arvest Bank breached its Electronic

Fund Transfer (“EFT”) Agreement by providing inaccurate account balance

information through its online and mobile banking platforms, causing her to incur

unexpected overdraft fees. In the second appeal in this case, Parrish challenges the

district court’s order granting summary judgment to Arvest on her breach of contract

claim. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                     Background

      Arvest is an Arkansas-chartered bank with over 250 locations scattered

throughout Arkansas, Kansas, Missouri, and Oklahoma. Parrish has had multiple

accounts with an Arvest branch in Oklahoma since 1997.

      In 2015, Parrish filed a putative class action against Arvest related to its

electronic banking services and its online and mobile banking tools.1 The operative

(second amended) complaint (“SAC”) asserted claims for actual fraud; constructive

fraud; false representation/deceit; breach of fiduciary duty; breach of contract

(namely, the EFT Agreement), with a sub-claim for breach of the implied covenant of

good faith and fair dealing; and unjust enrichment. Parrish alleged that she regularly

used her online and mobile banking access to check her account balances and

frequently based her purchase decisions on the balances displayed through these

platforms. She accused Arvest of employing suspect debiting practices—such as

batching by transaction type2 and reordering transactions at the end of the day to

maximize fees rather than processing them chronologically, failing to show real-time

balance information online, and not processing intra-account transfers




      1
        Because judgment was entered before a class was certified, we do not recount
or consider the allegations on behalf of the putative class.
      2
        Parrish alleged that Arvest grouped and posted transactions in the following
order: point-of-sale transactions, other debit transactions, check transactions,
Automated Clearing House (“ACH”) transactions, and other transactions. See Aplt.
App. at 18.
                                           2
instantaneously. According to Parrish, these practices sometimes resulted in

insufficient funds and overdraft fees in her account.

       The district court dismissed all claims under Federal Rule of Civil Procedure

12(b)(6). On appeal, this court reversed and remanded as to the 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 EFT Agreement, we found that Parrish 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 mobile banking

platforms to check their account balances and the credits and debits 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 completed,” id., could be

an inaccurate posting and therefore remanded.

      On remand, the SAC set the parameters for what remained of the contractual

claim because Parrish never sought to amend it. The SAC alleged that a contract was

formed “[w]hen [Parrish] . . . submitted to the EFT Agreement” and that “Arvest

agreed, among other things, to provide an accurate and reliable online and mobile

banking platform upon which [she] could rely.” Aplt. App. at 35. It then defined

reliability as being “‘current’ and in real-time.” Id. The SAC further alleged that

Arvest breached the contract by providing inaccurate balances and by not reflecting

the transfer of money as promised, causing Parrish to overdraw her account. With

                                           3
respect to promises made about transfers, it alleged that “Arvest does not

instantaneously process intra-bank transfers, even when it represents that it has done

so,” id. at 26.

       Arvest ultimately filed a motion for summary judgment on two grounds. First,

Arvest argued that the breach of contract claim is precluded by the clear,

unambiguous terms of two related, supplemental agreements—“Online Banking

Terms and Conditions” and the “Mobile Banking Addendum”—which are

incorporated into the EFT Agreement and take precedence in the event of a conflict.3

All online customers must agree to the provisions therein, which state that Arvest’s

online and mobile banking applications are not warranted to be error-free and which

disclaim any liability regarding performance, inaccuracy, or reliability. Second, and

in the alternative, Arvest argued that Parrish cannot show the information displayed

on her online account caused her to incur overdraft fees she would not have

otherwise incurred, given the timing of the various transactions.

       Parrish responded that summary judgment is inappropriate because there is a

genuine issue of material fact. Through an affidavit, she proffered six examples to

support her breach of contract claim, none of which were included in the SAC. The


       3
        By their terms, the Online Banking Terms and Conditions control over the EFT
Agreement in the event of a conflict, whereas the Mobile Banking Addendum controls
over the Online Banking Terms and Conditions. The EFT Agreement is therefore
subordinate to both supplemental agreements. These documents were not before us
during the first appeal because a court must limit its review to the contents of the
complaint when assessing a Rule 12(b)(6) motion. But Arvest authenticated and
attached the various iterations of the agreements to its summary judgment motion.
See Aplt. App. at 118-59.
                                           4
first five examples were transactions for which Parrish purportedly incurred overdraft

fees due to Arvest’s practice of reordering and batch processing her transactions at

night, rather than processing them in chronological order. The sixth example was a

two-day period when the balance in her business account fluctuated at night after an

intra-bank transfer even though no additional activity occurred.

      Turning to Arvest’s legal arguments, Parrish maintained that the liability

disclaimer in the supplemental agreements is ineffective under Arkansas’s Uniform

Commercial Code, which she contends applies even though the contract at issue does

not involve the sale of goods. Likewise, she argued that the disclaimer would be

ineffective if Oklahoma law governed because the EFT Agreement and the

supplemental agreements are unenforceable adhesion contracts.

      The district court granted Arvest’s motion and again entered judgment against

Parrish. As a threshold matter, it determined that the EFT Agreement promises

accuracy only as to posted amounts (not pending or unprocessed transactions), yet

Parrish “has offered no evidence suggesting that the bank at any time inaccurately

reported posted transactions,” id. at 233. Instead, she “relies on the impact of the

eventual posting of other transactions which were pending on the same day she made

the various transfers resulting in overdrafts,” id. The district court also found

Parrish’s claim about the timing of transfers to be inconsistent with the Online

Banking Terms and Conditions, which specifies a 7:00 p.m. cut-off for the posting of

transfers. Transfers initiated before that time are posted on the same business day,

whereas transfers initiated after that time are not posted until the next business day.

                                            5
See id. at 129. Finally, the district court rejected Parrish’s arguments 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 novo, 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 granted if “there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). Stated otherwise, “[t]he moving party is

entitled to summary judgment where 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 examine the record and

reasonable inferences drawn therefrom in the light most favorable to the non-moving

party.” Id.

      Parrish argues that the district court erred in finding that (1) the EFT

Agreement does not guarantee Arvest will provide accurate balances through its

online and mobile banking platforms; (2) she failed to offer evidence demonstrating

Arvest provided inaccurate balances through its online and banking platforms; and

(3) her breach of contract claim is precluded by the warranty disclaimer in the

supplemental agreements. We are not persuaded by the first two arguments, and it is

unnecessary to reach the third one.



                                           6
                 A. Plain Language of the Parties’ Agreement

      Although this court applied Oklahoma law in resolving the first appeal, the

parties alternately reference Arkansas and Oklahoma law in their briefs for this

second appeal. The uncertainty arises because Parrish is an Oklahoma resident, and

the law where the contract was made 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 the Online Banking

Terms and Conditions designates Arkansas law as governing “to the extent there is

no applicable Federal law or regulation.” Aplt. App. at 127, 133; see also id. at 139

(different version designating Arkansas law as governing “to the extent applicable”).

We need not decide which law applies because the same principles guide our analysis

either way.

      We examine the plain language of the parties’ agreement when that language

is clear and unambiguous. See Roth v. Prewitt, 283 S.W.2d 155, 157 (Ark. 1955);

Bank of Okla., N.A. v. Red Arrow Marina Sales & Serv., Inc., 224 P.3d 685, 700

(Okla. 2009). Further, “[i]t is our duty to interpret instruments by trying to make all

parts of the instrument harmonize, and stand together, if possible, 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 of its parts, and not

construed so as to make a provision meaningless, superfluous or of no effect.”

(footnotes omitted)).

                                            7
      Applying these principles, we agree with the district court’s well-reasoned

analysis of the contractual provisions addressing the accuracy of account balances

and the timing of transfer postings. 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 platforms 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 between posted and pending

transactions. Even so, Parrish continues to fault Arvest for not providing real-time

balances. Simply put, her argument disregards the plain language of the EFT

Agreement, which specifically addresses posted transactions but says nothing about

pending ones.

      Parrish fares no better with her transfer argument, which depends on the

erroneous premise that Arvest promised instantaneous intra-bank transfers. See, e.g.,

Aplt. App. at 17-18 (alleging in the SAC that “Arvest transfers the funds [for

intra-bank transfers] instantly, regardless of whether the transaction is performed in-

person or remotely”); id. at 26 (alleging that “Arvest does not instantaneously

process intra-bank transfers, even when it represents that it has done so, and even

when standard banking practices provide that this be accomplished”); id. at 27

(alleging that the EFT Agreement “states customers may rely upon online and mobile

banking . . . to make instantaneous transfers between Arvest accounts”). As the

district court noted, the Online Banking Terms and Conditions include a 7:00 p.m.

                                           8
cut-off for the posting of transfers, which contradicts Parrish’s premise. After the

first appeal, an open question existed as to whether Arvest had failed to post an intra-

bank transfer in accordance with the EFT Agreement. Now that the supplemental

agreements are properly before us, it is clear Arvest was not contractually obligated

to make intra-bank transfers instantaneously.

      For these reasons, the district court did not err in its interpretation of the

applicable agreements.

                  B. No Genuine Issue as to Any Material Fact

      Similarly, we discern no error in the district court’s evaluation of the evidence

Parrish presented to try to create a genuine issue of material fact. Parrish identified

six discrete occasions on which Arvest allegedly breached its contract with her.

Assuming it is even appropriate for Parrish to raise these examples given their

absence from the SAC, none of them defeat summary judgment.

      The first five occasions relate to Arvest’s batching and reordering process and

Parrish’s contention that she incurred 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 processed her transactions

in order (though she concedes she anticipated some penalties). Without pointing to

any particular contract language, Parrish argues that this practice affected the

accuracy of her account.

      Parrish does not clearly articulate how this alleged practice supports her

breach of contract claim. In any event, we held in the first appeal that Parrish has

                                            9
“not plausibly show[n]” the EFT Agreement “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 court’s conclusion that “the statement in the EFTA

about accounts being debited ‘each time’ a customer uses a debit card ‘does not say

or imply that the posting will be instantaneous’”); id. at 761 (noting Parrish’s

acknowledgment that “she does not allege any such explicit representations in the

EFTA . . . regarding chronological posting”). “[W]hen a case is appealed and

remanded, the decision of the appellate court establishes the law of the case and

ordinarily will be followed by both the trial court on remand and the appellate court

in any subsequent appeal.” Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183

(10th Cir. 1995) (applying the law of the case doctrine). Further, this issue was part

of Parrish’s fraud claim, not her breach of contract claim, and was thus outside the

scope of the remand. Accordingly, we will not revisit this argument here.

      The sixth example relates to account activity on July 14, 2015. Parrish

attached screenshots from her business account, which seem to show a fluctuating

balance throughout the night even though no additional transactions posted to the

account. This example cannot create a genuine issue of material fact because the

account in question is a business account. See Aplt. App. at 200-02 (identifying

account as “Business Checking”). By its terms, the EFT Agreement clearly applies

only to accounts “held for personal, family or household purposes.” Id. at 41.

Moreover, even if this account was within the scope of the EFT Agreement, Parrish

states that the fluctuation stems from Arvest’s batch processing and reordering.

                                           10
See id. at 198 (explaining that the online and mobile account balance reflected

enough funds for an intra-bank transfer, but an overdraft fee was imposed after

Arvest batched and reordered the transactions) (Parrish Aff.). As we just explained,

that process does not violate the contract.

                            C. Validity of Disclaimers

      Because we conclude there was no breach of contract as a matter of law and

because Parrish did not create a genuine issue of a material fact, we need not address

whether the disclaimer in the supplemental agreements precludes her breach of

contract claim.

                                      Conclusion

      We affirm the judgment of the district court. The EFT Agreement authorized

Arvest to collect an overdraft fee “for each item presented against insufficient funds

in [her] account” even when an ATM Card or CheckCard transaction “was

preauthorized based on sufficient funds in the account at the time of withdrawal,

transfer or purchase.” Aplt. App. at 45. Arvest did just that. Parrish’s arguments to

the contrary are inconsistent with the plain language of the parties’ agreement.


                                               Entered for the Court


                                               Nancy L. Moritz
                                               Circuit Judge




                                              11
