SUN VALLEY v. ROBSON

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE SUN VALLEY RANCH 308 LIMITED PARTNERSHIP, an Arizona limited partnership, by and through its limited partner, Englewood Properties, Inc.; and ENGLEWOOD PROPERTIES, INC., an Arizona corporation, ) ) ) ) ) ) ) ) Plaintiffs/Appellees, ) ) v. ) ) STEVEN S. ROBSON and KIMBERLY M. ) ROBSON, husband and wife; ) TIMBERLINE VILLAGE CORPORATION, ) an Arizona corporation; SCOTT ) HOMES MULTIFAMILY, INC., an ) Arizona corporation; THE STEVEN ) S. ROBSON SEPARATE PROPERTY ) TRUST AGREEMENT OF 1988 DATED ) OCTOBER 30, 1984 and its unknown ) beneficiaries, heirs and ) devisees; STEVEN S. ROBSON, as ) Trustee of THE STEVEN S. ROBSON ) SEPARATE PROPERTY TRUST ) AGREEMENT OF 1988 DATED OCTOBER ) 30, 1984; KIMBERLY MANAGEMENT, ) INC., an Arizona corporation; ) SCOTT MANAGEMENT COMPANY, an ) Arizona corporation, ) ) Defendants/Appellants. ) __________________________________) DIVISION ONE FILED: 11/20/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CV 11-0711 DEPARTMENT A O P I N I O N Appeal from the Superior Court in Maricopa County Cause No. CV 2011-095069 The Honorable Karen A. Potts, Judge VACATED AND REMANDED Beus Gilbert P.L.L.C. By Leo R. Beus Thomas A. Connelly Sarah S. Letzkus Attorneys for Plaintiffs/Appellees Scottsdale Stinson Morrison Hecker L.L.P. By Michael Charles Manning James E. Holland, Jr. Jennifer L. Allen Attorneys for Defendants/Appellants Phoenix D O W N I E, Judge ¶1 This case non-signatories may clause to arbitrate. to appoint requires compel us parties to bound determine by an whether arbitration We also consider an arbitrator s authority receivers, dissolve limited adjudicate claims for unjust enrichment. partnerships, and Because we conclude that all of the pending claims are subject to arbitration, we vacate the superior court s contrary order and remand with instructions to order arbitration. FACTS AND PROCEDURAL HISTORY ¶2 In February 2000, the following entities signed an agreement establishing Sun Valley Ranch 308 Limited Partnership ( SVR 308 ): 2 ¢ General partner Timberline Village Corporation ( Timberline ) by Steven Robson, 1 president; ¢ Limited partner Englewood Properties, Inc. ( Englewood ) by its president; ¢ Limited partner The Steven S. Robson Separate Property Trust Agreement of 1988 Dated October 30, 1984 by Steven Robson; ¢ Limited partner Kimberly Management Inc. by Steven Robson, president; ¢ Special limited partner Scott Homes Multifamily, Inc. ( Scott Homes ) by Steven Robson, president. ¶3 and On December 20, 2000, the parties signed an Amended Restated Agreement of Limited Partnership of Sun Ranch 308 Limited Partnership ( Partnership Agreement ). Valley That same day, Scott Homes as Contractor and SVR 308 as Owner signed a U.S. Department of Housing and Urban Development ( HUD ) contract ( Construction Contract ) for the construction of Sun Valley Ranch Apartments ( the Project ). ¶4 After the Project was completed, Timberline and Scott Management Company ( SMC ), of which Robson is president and CEO, signed a HUD Management Certification, agreeing to enter 1 Unless otherwise stated, references to Robson are to Steven Robson. Except for Englewood, the members of SVR 308 are part of the Robson Entities. 3 into a written management agreement for SMC to manage apartment rental operations. services SMC was reportedly paid for its management beginning in 2001, although Timberline and SMC apparently did not sign a HUD management agreement until several years later. ¶5 Timberline began marketing the Project for sale 2006. The Project sold in February 2008 for $32 million. sales proceeds Englewood, distributed approximately Timberline funds. were and the $2.6 Robson to the million Entities Robson asserted After Entities remained in claims in and escrow. to those Englewood hired a forensic accountant, who opined that Timberline and the Robson Entities owed SVR 308 $5,156,067 and that Englewood was entitled to $2,578,034 based on its ownership interest in SVR 308. ¶6 Englewood filed a lawsuit on behalf of itself and SVR 308 (collectively, SMC, and plaintiffs ) Steven defendants ). and against Kimberly the Robson Robson Entities, (collectively, The complaint asserted ten counts: breach of contract; breach of the implied covenant of good faith and fair dealing; unjust Entities, the misrepresentation; accounting; and enrichment SVR as to partners, breach piercing of the Scott and fiduciary corporate Entities. 4 Homes, SMC; duty; veil the Robson fraud/negligent dissolution of the and Robson ¶7 Defendants arbitration clause moved to compel contained in arbitration the based Partnership on an Agreement. Plaintiffs objected, arguing, inter alia, that the arbitration clause did not apply to all of their claims or to all parties named in the lawsuit. motion. Defendants pursuant to The superior court denied defendants timely Arizona appealed. Revised We Statutes have jurisdiction ( A.R.S. ) section 12-2101.01(A)(1). DISCUSSION ¶8 Uniform In 2010, the Arizona legislature adopted the Revised Arbitration through -3029. proceeding. Act ( AZ-RUAA ). See A.R.S. §§ 12-3001 The parties agree that AZ-RUAA applies to this See A.R.S. § 12-3003(A)(3) (AZ-RUAA applies if the arbitration or legal proceeding is commenced after January 1, 2011); Bruce E. Meyerson, Arizona Adopts the Revised Uniform Arbitration Because Act, AZ-RUAA 43 Ariz. St. substantially L.J. 481, mirrors 486 the (2011) Revised (same). Uniform Arbitration Act ( RUAA ), we look to cases arising thereunder and to RUAA s commentary for guidance. See In re Estate of Dobert, 192 Ariz. 248, 252, ¶ 17, 963 P.2d 327, 331 (App. 1998) (if an Arizona statute is based on a uniform act, courts assume the legislature intended to adopt the construction placed on the act by its drafters, and commentary to the uniform act is highly persuasive unless erroneous 5 or contrary to settled policy in this state ) (quoting State v. Sanchez, 174 Ariz. 44, 47, 846 P.2d 857, 860 (App. 1993)). ¶9 A.R.S. § 12-3006(A) states: An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable and irrevocable except on a ground that exists at law or in equity for the revocation of a contract. The court decides whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate. A.R.S. § compel 12-3006(B). We arbitration de novo. review the denial of a motion to Nat l Bank of Ariz. v. Schwartz, 230 Ariz. 310, 311, ¶ 4, 283 P.3d 41, 42 (App. 2012) (citations omitted). ¶10 Although it is commonly said that the law favors arbitration, it is more accurate to say that the law favors arbitration arbitrate. of disputes that the parties have agreed to S. Cal. Edison Co. v. Peabody W. Coal Co., 194 Ariz. 47, 51, ¶ 11, 977 P.2d 769, 773 (1999). Section 13.14 of the Partnership Agreement ( the arbitration clause ) reads, in pertinent part: Arbitration. In the event any controversy or dispute arises out of or relating to this Agreement or the breach hereof, each party shall name an arbitrator with in [sic] twenty (20) days after either party notifies the other in writing that there is such a dispute [o]r controversy existing . . . . 6 I. Claims Arising Under the Construction Contract ¶11 Plaintiffs contend they are only required to arbitrate disputes relating to the Partnership Agreement, whereas most of their claims arise under the Construction Contract, which lacks an arbitration Construction Agreement clause. Contract and that was Defendants incorporated claims arising counter into from the or that the Partnership related to the Construction Contract are subject to arbitration. ¶12 Other courts have rejected the notion that disputes arising out of an agreement that lacks an arbitration clause are ipso facto not subject to the arbitration clause of a related contract. Consol. Brokers Ins. Servs., Inc. v. Pan-Am. Assurance Co., Inc., 427 F. Supp. 2d 1074, 1081 (D. Kan. 2006). In Consolidated Brokers, the plaintiffs signed two contracts with the defendants, only one of which included an arbitration clause. Id. at 1077-78. parties, defendants sought In subsequent litigation between the to arising under both contracts. examined earlier caselaw compel arbitration Id. at 1078. mandating of The district court arbitration under circumstances, stating: [W]here there are two agreements at issue, one with an arbitration clause and one without, the courts first examined the breadth of the arbitration clause. If the court found the arbitration provision to be broad by purporting to cover all disputes related to the agreement, the court then 7 disputes such evaluated whether the agreements were sufficiently related to justify compelling arbitration of all claims arising under the agreements. In determining whether to compel arbitration of a dispute arising under an agreement lacking an arbitration clause when a related contract contains a broad arbitration clause that encompasses all matters in dispute, courts have considered the following specific factors: (1) whether the agreements incorporate or reference each other; (2) whether the agreements are dependent on each other or relate to the same subject matter; (3) whether the arbitration clause specifically excludes certain claims; (4) whether the agreements are executed closely in time and by the same parties. Id. at 1082. ¶13 The Consolidated Brokers analytic framework is consistent with Arizona law and with our tenet that doubts about the arbitrability of disputes should be resolved in favor of arbitration. Saguaro Highlands Cmty. Ass n v. Biltis, 224 Ariz. 294, 5, 295, omitted). ¶14 ¶ 229 P.3d 1036, 1037 (App. 2010) (citations We therefore adopt the Consolidated Brokers factors. The arbitration clause at issue here encompasses any controversies or disputes aris[ing] out of or relating to the Partnership Agreement. It is the paradigm of a broad clause. See Collins & Aikman Prods. Co. v. Bldg. Sys., Inc., 58 F.3d 16, 20 (2d Cir. 1995) (describing a clause requiring arbitration of [a]ny claim or controversy arising out of or relating to th[e] agreement as the paradigm of a broad clause ). 8 The duty to arbitrate attaches not only to controversies arising under the Partnership Agreement, but also to disputes relating to that agreement. Relating to is broader than arising from. See Bama s Best Hous., Inc. v. Hodges, 847 So. 2d 300, 303 (Ala. 2002) (an arbitration clause that applies to claims arising out of or relating than application to arbitration an the contract . clause . that . has a refers broader only to claims arising from the agreement ); Karl Storz Endoscopy-Am., Inc. v. Integrated Med. Sys., Inc., 808 So. 2d 999, 1013 (Ala. 2001) ( [I]t is often observed that the words relating to in the arbitration context are given a broad construction. ). ¶15 Because the arbitration clause is sufficiently broad to reach disputes under the Construction Contract, we turn to application have of alleged attached that to Agreement. not the and Consolidated a copy fully of Brokers the factors. Construction incorporated into Plaintiffs Contract the was Partnership The Construction Contract, on the other hand, does specifically incorporate the Partnership Agreement. Standing alone, this factor is neutral, though it demonstrates the related nature of the two agreements. ¶16 The next factor -- whether the two agreements are dependent on each other or relate to the same subject matter - weighs heavily in favor Construction Contract. of arbitrating disputes under the Plaintiffs complaint alleges that the 9 Construction Contract s terms are material terms of the Partnership Agreement and that the Construction Contract is the primary mechanism for achieving the Partnership s sole purpose. Furthermore, the complaint repeatedly links alleged wrongdoing under Partnership the Construction Agreement. For Contract example, terms breach the to of of the contract count cites Section 5.2(a) of the Partnership Agreement, which requires unanimous consent of all the partners for certain actions. because, Plaintiffs allege defendants violated this provision among other things, the SVR 308 partners did not unanimously agree to change orders to the Construction Contract or authorize payments for building permits and other fees that were reportedly Construction the contractor s Contract. Plaintiffs responsibility own under allegations the establish the inter-related and inter-dependent nature of the Construction Contract and the Partnership Agreement. Moreover, the two documents were signed the same day, 2 and the arbitration clause does not exclude any specific claims from its reach. ¶17 Given the broad scope of the arbitration clause in the Partnership Brokers Agreement factors, we and our conclude analysis that of disputes the relating Construction Contract are subject to arbitration. 2 Consolidated to the Plaintiffs As previously noted, the Construction Contract was signed by Scott Homes and SVR 308, through general partner Timberline. 10 acknowledge that their claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and fraud/negligent misrepresentation arise out of the Construction Contract. We next consider the remaining counts of the complaint to determine whether they too must be arbitrated. II. Common Law and Statutory Claims ¶18 According remedies grounded to in plaintiffs, statutes, common including law duties claims for and unjust enrichment and those seeking relief that may only be effected by a court, are not subject to arbitration. We conclude otherwise. A. ¶19 Unjust Enrichment Plaintiffs contend unjust enrichment is a common law theory of relief available on quasi-contractual grounds that does not depend Partnership on Agreement. duties The or obligations relevant imposed inquiry in by the terms of arbitrability, though, is whether the unjust enrichment claims raise some issue the resolution of which requires a reference to or construction of some portion of the contract. Dusold v. Porta-John Corp., 167 Ariz. 358, 362, 807 P.2d 526, 530 (App. 1990). ¶20 The unjust enrichment count against Scott Homes reads: Scott Homes has been enriched by receiving payment of construction costs over and above the fixed price set forth in the 11 Construction Contract, by failing to pay or reimburse Plaintiffs for the fees associated with Letter of Credit No. STI17082, and by failing to pay or reimburse Plaintiffs for the building permits and other fees that Scott Homes was obligated to pay for under the Construction Contract, but that it, in fact were paid directly and/or indirectly by Plaintiffs. ¶21 Plaintiffs claim the Robson Entities were unjustly enriched because they enjoyed the interest free use of SVR 308 funds for over seven months. The complaint alleges unjust enrichment by the SVR 308 partners (excluding Englewood) based on their receipt of improper distributions. Finally, plaintiffs assert SMC was unjustly enriched because it received fees for rental management services that were not authorized by the limited partners, as required by the Partnership Agreement. ¶22 To recover under an unjust enrichment theory, a party must prove: (1) an enrichment, (2) an impoverishment, (3) a connection between the enrichment and impoverishment, (4) the absence of justification for the enrichment and impoverishment, and (5) the absence of a remedy provided by law. Freeman v. Sorchych, 226 Ariz. 242, 251, ¶ 27, 245 P.3d 927, 936 (App. 2011). To determine whether defendants have been enriched without justification, the trier of fact will necessarily need to consider the Partnership Agreement and/or the Construction Contract. These documents establish rights and obligations of the parties not otherwise imposed by law. 12 Among other things, the agreements prescribe the terms for Project costs, building fees, partner distributions, payment of Project fees, management fees and contribution, allocation, and use of partnership funds. The terms of the documents are integral to a determination of whether defendants detriment enrichment of SVR claims received 308 and raise unjustified Englewood. some issue benefits As the such, to the resolution of the unjust which requires a reference to or construction of some portion of the contract, Dusold, 167 Ariz. at 362, 807 P.2d at 530, and they are subject to arbitration. B. ¶23 Receivership Based primarily on alleged breaches of the Partnership Agreement and Construction Contract, plaintiffs have requested the appointment of a receiver to take control of [SVR 308] and wind up its affairs. Seeking to divest management and control of SVR 308 from its partners based on alleged wrongdoing by those partners is clearly a controversy or dispute relating to the Partnership Agreement. It therefore falls within the scope of the arbitration clause. ¶24 Additionally, the Partnership Agreement specifically adopts the rules of the American Arbitration Association ( AAA ) governing commercial transactions. These rules permit arbitrators to impose interim measures deemed necessary for the 13 protection or conservation of property. 3 Arbitration Rules and http://www.adr.org/. partnership property. is a Mediation Appointing measure R-34, AAA Commercial Procedures, a designed available receiver to for protect a or at limited conserve See A.R.S. § 12-1241 (authorizing the superior court to appoint a receiver to protect and preserve property or the rights of parties ). ¶25 the We are unpersuaded by plaintiffs contention that only superior court may appoint receivers. Nothing in our statutes prohibits an arbitrator from exercising such authority. Indeed, A.R.S. § 12-3008(B)(1) confers broad powers on arbitrators, authorizing them to: issue such orders for interim remedies, including interim awards, as the arbitrator finds necessary to protect the effectiveness of the arbitration proceeding and to promote the fair and expeditious resolution of the controversy, to the same extent and under the same conditions as if the controversy were the subject of a civil action. See also includes Meyerson, an 43 important Ariz. new St. L.J. section . at . 494 . ( The AZ-RUAA clarifying an arbitrator s power to grant interim remedies . . . . ). 3 The AAA rules also authorize the arbitrator to determine whether a particular dispute is arbitrable. R-7, AAA Commercial Arbitration Rules and Mediation Procedures, available at http://www.adr.org/. Neither side has cited this provision, though, so we do not address its potential application to this case. 14 ¶26 Comments to RUAA make clear that arbitrators have broad authority to order provisional remedies and interim relief . . . . This authority has included the issuance of measures equivalent to civil remedies attachment, sequestration to available http://www.uniformlaws.org/. at preserve of assets. See replevin RUAA § 8, and cmt. 4, Sequestration is defined as, inter alia, [t]he separation or removal of property from the person in possession, pending some further action or proceedings affecting 1366 (6th ed. 1990). the functional § 12-1241. the property. Black s Law Dictionary In significant respects, sequestration is equivalent of a receivership under A.R.S. Plaintiffs request for a receiver is subject to arbitration. 4 C. ¶27 Dissolution and Accounting Plaintiffs allege that defendants breaches of contract and fiduciary duties have rendered it impossible to carry on the Partnership without denying Englewood its benefits as a limited partner. They therefore seek judicial dissolution of the Partnership pursuant to A.R.S. § 29-345 and winding Plaintiffs up its contend affairs these pursuant requests 4 to A.R.S. cannot be § 29-346. referred to We need not decide whether an arbitrator may impose interim or provisional remedies that require the participation of third parties such as garnishees. 15 arbitration relief. because only the superior court may grant such We disagree. ¶28 Armoudlian v. Zadeh involved claims for dissolution of a partnership, which the trial court ruled were subject to an arbitration clause contained in the partnership agreement. N.W.2d 502, 505 (Mich. Ct. App. 1982). 323 The Michigan Court of Appeals agreed, stating: [T]he parties do not dispute the existence of the partnership agreement containing the quoted arbitration clause. Moreover, it is plain that the agreement does not expressly exempt a dispute from arbitration when the relief requested is dissolution of the partnership. Therefore, the crucial stage of our inquiry is whether the dispute in question, on its face, is arguably covered by the partnership agreement and the arbitration clause. In this regard, any doubts must be resolved in favor of arbitration, in keeping with our longstanding preference for arbitration as a means of resolving disputes. Id. at 506. ¶29 Noting that the several alleged breaches dissolution of the demand partnership was based on agreement, the Michigan court deemed it within the scope of the arbitration clause. Id. The court rejected the notion that partnership dissolutions cannot occur in arbitration. Id. at 507. Like Arizona, the Michigan statutes provide[] for court jurisdiction over partnership Michigan s dissolution. statutory scheme Id. indicated 16 However, such nothing in jurisdiction is intended to be exclusive. Id. The court held that statutory partnership dissolution: is only one of a number of methods or causes of dissolution. A partnership may be dissolved pursuant to the mutual agreement of the partners. If partners are permitted to dissolve and terminate a partnership through their own private settlement and accounting, it follows that they may agree to an alternative nonjudicial mechanism to accomplish the same end. Arbitration is an acceptable forum for resolving partnership dissolution disputes. Id. (emphasis added) (internal citations omitted). ¶30 In relevant respects, Arizona law tracks the Michigan authorities discussed in Armoudlian. Arizona also resolves doubts about the arbitrability of specific disputes in favor of arbitration. Saguaro Highlands, 224 Ariz. at 295-96, ¶ 5, 229 P.3d at 1037-38. issue here partnership. As in Armoudlian, the Partnership Agreement at includes And its like own terms Michigan s for statute, dissolving A.R.S. § the 29-345 authorizes the superior court to dissolve limited partnerships when it is not reasonably practicable to carry on the business in conformity Michigan, with nothing the in partnership our statutes agreement. suggests Yet this as in power is exclusive or that parties may not agree to submit partnership dissolution and accounting disputes to arbitration. A.R.S. § 12-3021(C) (allowing 17 arbitrators to See also impose such remedies as the arbitrator considers just and appropriate under the circumstances of the arbitration proceeding ). ¶31 Plaintiffs based in large Agreement. part They Partnership dissolution and on breaches alleged clearly Agreement, relate and the to accounting of or the arise arbitration demands are Partnership out clause of the does not restrict an arbitrator s authority to grant such relief. These matters must therefore be resolved in arbitration. III. Non-signatories ¶32 308 Finally, we consider whether claims asserted by SVR and counts asserted against Steven Robson and SMC are SVR 308 was created by the Partnership Agreement. The subject to arbitration. A. SVR 308 ¶33 entity did not exist before the agreement was signed and could not itself have signed the Partnership Agreement. Nevertheless, and more fundamentally, a partnership agreement governs not only relations among the partners, as plaintiffs suggest, but also the relationship A.R.S. § between 29-1003(A); see the partners also § and the 29-1001(12) (a partnership. partnership agreement is the agreement among the partners concerning the partnership ). As a matter of law, SVR 308 is governed by and subject to the terms of the Partnership Agreement, including the arbitration clause. 18 B. Robson ¶34 Robson did not sign the Partnership Agreement or the Construction Contract in his individual capacity. Plaintiffs, however, have alleged that Robson is the alter ego of the Robson Entities and SMC. They are thus claiming that legally speaking, the Robson Entities and SMC. Robson is, See Deutsche Credit Corp. v. Case Power & Equip. Co., 179 Ariz. 155, 160, 876 P.2d 1190, 1195 (App. 1994) (alter ego status exists when there is such a unity of interest and ownership that the separate personalities of the corporation and the owners cease to exist ). ¶35 Rowe v. Exline presents a similar factual scenario. 63 Cal. Rptr. 3d 787 (Cal. Ct. App. 2007). The individual defendants in that case did not sign the underlying contract containing the arbitration clause. them, as well as the corporate Id. at 789. defendant, Plaintiff sued alleging the individuals were the alter egos of the corporate entity that had signed the contract. Appeal held that Id. at 790. the individual The California Court of defendants could arbitration by the plaintiff signatory, stating: [Plaintiff] does not refute the law permitting a nonsignatory to compel arbitration if sued as a signatory s agent. Nor does he provide any persuasive reason why a nonsignatory should be precluded from compelling arbitration if sued as a signatory s alter ego. Indeed, while an 19 compel agent is one who acts on behalf of a corporation, an alter ego is one who, effectively, is the corporation. Id. at 793-94. ¶36 We agree with the holding in Rowe. When a plaintiff sues an individual under an alter ego theory, that defendant may demand arbitration to the same extent the corporate entities could do so. With the exception of SMC, the Robson Entities signed the Partnership Agreement. Accepting plaintiffs alter ego claims as true, Robson is each of these entities and may compel arbitration of the claims against him. 5 ¶37 There is an additional, independent legal basis for granting Robson s arbitration demand. Most courts to consider the issue have distinguished between non-signatories seeking to compel arbitration arbitration clause by signatories and signatories non-signatories to arbitrate. Grizzle, 424 F.3d 795, to 799 an agreement attempting with to an compel See, e.g., CD Partners, LLC v. (8th Cir. 2005) ( The test for determining whether a nonsignatory can force a signatory into arbitration is different from the test for determining whether a signatory can force a nonsignatory into arbitration . . . . ); Amisil Holdings Ltd. v. Clarium Capital Mgmt., 622 F. Supp. 2d 825, 830-31 (N.D. Cal. 2007) (courts are more likely to order 5 We need not and do not decide whether a plaintiff signatory may compel arbitration by a non-signatory defendant based on an alter ego allegation. 20 arbitration demanded by a non-signatory when the resisting party is a signatory). As the Second Circuit has explained: [I]t matters whether the party resisting arbitration is a signatory or not . . . . [A] willing non-signatory seeking to arbitrate with a signatory that is unwilling may do so under what has been called an alternative estoppel theory, which takes into consideration the relationships of persons, wrongs, and issues . . . . Merrill Lynch Inv. Managers v. Optibase, Ltd., 337 F.3d 125, 131 (2d Cir. 2003) (internal citations omitted) (internal quotation marks omitted). ¶38 In CD Partners, the Eighth Circuit explored the circumstances under which a non-signatory may compel arbitration by a signatory: A nonsignatory can enforce an arbitration clause against a signatory to the agreement in several circumstances. One is when the relationship between the signatory and nonsignatory defendants is sufficiently close that only by permitting the nonsignatory to invoke arbitration may evisceration of the underlying arbitration agreement between the signatories be avoided. Another is when the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting [its] claims against the nonsignatory. When each of a signatory s claims against a nonsignatory makes reference to or presumes the existence of the written agreement, the signatory s claims arise out of and relate directly to the written agreement, and arbitration is appropriate. 21 424 F.3d at 798 (internal citations omitted) (internal quotation marks omitted); (non-signatory see also may relationship of compel between relationship Amisil, the the 622 F. Supp. arbitration entities alleged based involved, wrongs 2d to as the at on 830-31 close well as the nonsignatory s obligations and duties in the contract . . . and [the fact that] the claims were intimately founded in and intertwined with the underlying contract obligations ). ¶39 We agree with these authorities. Although Robson did not sign the Partnership Agreement or the Construction Contract in his individual capacity, he may nevertheless plaintiffs to arbitrate their claims against him. compel As previously determined, the trier of fact will be required to consider the Partnership Agreement and the Construction Contract in resolving plaintiffs claims, and Robson s conduct is intertwined with that of other defendants who signed the Partnership Agreement. C. SMC ¶40 Plaintiffs because it allege received that rental SMC income was unjustly during the enriched 2000-2006 timeframe, when no HUD management agreement was in place, and without unanimous consent of the SVR 308 partners, as required by the Partnership Agreement. These allegations demonstrate that the claims against SMC are based, at least in part, on purported violations of the Partnership Agreement. 22 For this reason, SMC may compel arbitration. See CD Partners, 424 F.3d at 798 (when signatory s claims against non-signatory refer to the written agreement, the signatory s claims arise out of and relate directly to the written agreement, and arbitration is appropriate ); 4 Am. Jur. 2d Alternative Dispute Resolution § 60 (non-signatory when latter signatory may must compel misconduct alleges rely by on arbitration contract substantially both the by for unwilling its claims interdependent nonsignatory and one and or signatory and when concerted more of the signatories ). CONCLUSION ¶41 We vacate the superior court s order denying defendants motion to compel arbitration and remand for further proceedings consistent with this opinion. Defendants request an award of attorneys fees incurred on appeal pursuant to A.R.S. § 12-341.01 and the Partnership Agreement. In the exercise of our discretion, we deny the request based on A.R.S. § 12-341.01. Defendants have not identified any provision of the Partnership Agreement that entitles them to a fee award at this stage of the proceedings. We therefore deny their request. As the successful parties on appeal, though, defendants are entitled to 23 recover their appellate costs upon compliance with ARCAP 21. deny plaintiffs fee request. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ ANN A. SCOTT TIMMER, Presiding Judge /s/ JOHN C. GEMMILL, Judge 24 We

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