UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ VICTORIA ANN BURGESS; ELIZABETH F. JOHNSON; CLARK WALKER JOHNSON; MAYNARD GARDNER MOODY, personal representative of the estate of Patricia Johnson Perry, deceased, Plaintiffs - Appellees,

v. HOWARD MITCHELL JOHNSON, Defendant - A p pellant. No. 19-5098 (D.C. No. 4:19-CV-00232-GKF-JFJ) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , PHILLIPS , and CARSON , Circuit Judges.

________________ _________________ Defendant Howard Johnson is th e sole trustee (the Trustee) of a trust created under Oklahoma law by Dr. E. O. Johnson in 1974. Plaintiffs Victoria Burgess, Elizabeth Johnson, Clark Johnson, and Maynard Moody (a s personal representative of the estate of Patricia Johnson Perry) are beneficiaries of th e trust. In May 2019 Plaintiffs sued the

* After examining the briefs and appellate reco rd, 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 This order and judg ment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### November 4, 2020 Christopher M. Wolpert Clerk of Court2 Trustee in the United States District Cour t for the Northern Di strict of Oklahoma, alleging that he had breached his fiduciary duties by wrongfully taking trust assets and spending trust money. In response the Trus tee moved the court to stay the proceedings and compel arbitration under §§ 3 and 4 of the Federal Ar bitration Act (FAA), 9 U.S.C. §§ 1–16. He argued that a provision (the Arb itration Provision) of the declaration of trust, as amended (the Trust Declaration ), constitutes an arbitr ation agreement that entitles him to compel arbitration under th e FAA. Defendants responded that the Arbitration Provision does not give the Trustee authority to compel arbitration and that the FAA does not apply in any event because the Arbitration Provision is not a “contract evidencing a transactio n involving commerce” as required by § 2 of the FAA. 9 U.S.C. § 2. The district court denied relief. The Trustee appeals. We ha ve jurisdiction under the FAA, see 9 U.S.C. § 16 (“An appeal may be taken from . . . an orde r . . . refusing a stay of any action under section 3 of this title . . . [or] denying a petition under secti on 4 of this title to order arbitration to proceed.”), and affirm. We ho ld that the Arbitration Provision does not empower the Trustee to compel arbitration in disputes with beneficiaries. We therefore need not address Plaintiffs’ arguments rega rding the applicability of the FAA to the Arbitration Provision or the Trustee’s arguments that Pl aintiffs are bound by the provision even though they are not signatories to the Trust Declaration. In particular, there is no need for us to gr ant the Trustee’s request that we certify to the Oklahoma Supreme Court the question whether Plainti ffs would be bound to the Arbitration Provision under a theory of equ itable estoppel or otherwise.3 I. DISCUSSION “We review a district court’s denial of a motion to compel arbitration de novo . . . [and] apply the same legal standa rd as the district court.” Beltran v. AuPairCare, Inc. , 907 F.3d 1240, 1251 ( 10th Cir. 2018). “Before granti ng a stay of litigation pending arbitration, a . . . court must determine th at an agreement to arbitrate exists.” Avedon Eng’g, Inc. v. Seatex , 126 F.3d 1279, 1283 (10th Cir. 19 97). This is because “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Howsam v. Dean W itter Reynolds, Inc. , 537 U.S. 79, 83 (2002) (internal quotation marks omitted); see also Avedon , 126 F.3d at 1287 (“The existence of an agreem ent to arbitrate is a threshold matter which must be established before the FA A can be invoked.”). “[T]o determine whether a party has agre ed to arbitrate a dispute, we apply ordinary state-law principles that go vern the formation of contracts.” Jacks v. CMH Homes, Inc. , 856 F.3d 1301, 1304 (10th Cir. 2017) (internal quotation marks omitted). Here, the parties agree that Oklahoma prov ides the relevant law for interpreting the Arbitration Provision. We accept the Trustee’s view th at the provision must be interpreted as a matter of contract law, even though Plaintiffs cont end that a declaration of trust is not a contract, because we are not sure that rules regarding the interpretation of trusts would compel a different result and the Trustee loses under his approach in any

event. Under Oklahoma law, “[t]he language of a contract is to govern its interpretation, if the language is clear and explicit, and do es not involve an absu rdity.” Okla. Stat.4 tit. 15, § 154. “The court[] will read the co ntract language in its plain and ordinary meaning unless a technical meaning is convey ed” and “will decide, as a matter of law, whether a contract provision is ambiguous.” Okla. Oncology & Hematology P.C. v. US Oncology, Inc. , 160 P.3d 936, 946 (Okla. 2007). “A court w ill not create an ambiguity by using a forced or strained construction, by taki ng a provision out of context, or by narrowly focusing on a provision.” Wynn v. Avemco Ins. Co. , 963 P.2d 572, 575 (Okla. 1998)

. The goal is “to give effect to the inte ntion of the parties as ascertained from the four corners of the contract.” Okla. Oncology , 160 P.3d at 946. The Arbitration Provisi on is § II, ¶ (1)(c) of the Trust Declaration. Section II is entitled “General Provisions Relati ng to Trusts.” Aplt. App., Vol. 1 at 25. It states in ¶ 1 that the trustees “shall have power to manage and contract with respect to the Trust estate, in the same manner and to the same ex tent as Grantor could do had Grantor owned such Trust estate individually,” and it also grants the trust ees certain additional powers “in their sole discretion,” such as the power to lease any portion of th e Trust estate and to retain property received by the trustees “without regard to diversification.” Id. The Arbitration Provision, ¶ 1(c ), conveys to the trustees the power “[t]o compromise,
contest, submit to arbitration or settle all claims by or agai nst, and all obligations of, the Trust estate or the Trustees[.]” Id. (emphasis added). The Trustee argues that this allows him to compel trust beneficiaries to arbitr ate their dispute with him. We disagree. We see no ambiguity in the Arbitrati on Provision. As one of a number of provisions of the Trust Declaration conveying power to the trustees , it simply provides them with a range of options in seeking to resolve a disput e involving the Trust. The5 trustees need not concede every claim agains t the trust or litigate every dispute through a court verdict. They may decide to “comprom ise, contest, submit to arbitration or settle” any claim. But, contrary to the Trustee’s vi ew, they may not compel an adversary to do any of those things. The language of the Arbitration Provisi on is adopted from Okla. Stat. tit. 60, § 175.24(A)(5), which provides that, absent “contrary or limiting provisions in the trust agreement or a subsequent orde r or decree of a court of competent jurisdiction,” a trustee
may “compromise, contest, arbitrate, or settle a ny and all claims of or against the trust estate or the trustee as such.” Interpreting virtually identica l language in a Texas statute, the Texas Court of Appeals said that the pr ovision “merely provide[s] a full range of powers to a trustee that would allow the trus tee to fully represent the interests of the
trust.” Casillas v. Cano , 79 S.W.3d 587, 589 (Tex. App. 2002). This language cannot reasonably be read as granting the trustees any power over other parties in disputes concerning the trust, nor could it. If a pers on injured on trust real estate brought a tort action against the Trust, the Trust Declara tion could not compel him to arbitrate the dispute, see Howsam , 537 U.S. at 83 (“[A] party ca nnot be required to submit to arbitration any dispute wh ich [she or] he has not agreed so to submit.” (internal quotation marks omitted)), any more than it could compel him to compro mise or settle the claim. By conveying the power to subm it a claim to arbitration in the same sentence that it conveys the power to compromise or settle the claim, the Arbitration Provision implies that the powers are parallel, and that they co ncern the authority of the trustees to deal with other parties, not to dominate them.6 The Trustee concedes that the language of § 175.24 is “permissive.” Aplt. Br. at 21. But he points out that the Trust De claration grants the trustees the power to exercise their authority in “their sole discre tion,” Aplt. App., Vol. 1 at 25, and contends that this additional language makes all the difference. But we fail to see how the solediscretion language changes our conclusion. To say that the trustees “shall have power in their sole discretion” to submit a dispute to arbitration is to say that they cannot be prohibited from exercising discretion by any pr ovision of the Trust Declaration or default provisions of state trust law. See In re XTO Energy Inc. , 471 S.W.3d 126, 131 (Tex. App. 2015) (describing discretionary powers as those that “a trustee may decide whether or not to exercise” without “interfere[nce] [fr om a court] except to prevent an abuse of discretion”). That is, to grant the trustees sole discretion is to say that no one can tell them whether to decide to arbitrate, etc. It does not mean that the trustees have absolute power to make others do their bidding. The Trustee has not cited us, nor are we aware of, any precedent for construing similar language as conveying a power to comp el arbitration. It may make sense for a trust declaration to include a provision requir ing arbitration of all disputes between the trustees and the beneficiaries. But it would strain judicial imagination to construe the language of the Arbitration Pr ovision as such a provision. It would make no sense to bury such a mandatory provision in a sentence that applies to all the trust’s disputes, including ones with third parties who could hardly be bound by the Trust Declaration, and encompasses compromise and settlement, as well as arbitration. We therefore reject the Trustee’s contention that the language of the Trust Declaration permits the trustees to7 compel arbitration. See Okla. Stat. tit. 15, § 159 (“A c ontract must receive such an interpretation as will make it lawful, operative, definite, reasonable and capable of being carried into effect, if it can be done without violating the intention of the parties.”). Finally, the Trustee contends that the “U nited States Supreme Court has already ruled that a permissive arbitration clause is a mandatory arbitration clause.” Aplt. Br. at 23 (emphasis omitted). In sup port of this proposition he cites Allis-Chalmers Corp. v. Lueck , 471 U.S. 202 (1985); Vaca v. Sipes , 386 U.S. 171, 18 4 n.9 (1967); and Republic Steel Corp. v. Maddox , 379 U.S. 650 (1965). But those cases stand for only a narrow (but very important) propositi on of law in the particular c ontext of collective-bargaining agreements between employers and labor uni ons, where the availability of compulsory arbitration has long been consider ed essential for labor peace. See United Steelworkers of Am. v. Warrior & Gulf Nav. Co. , 363 U.S. 574, 578 (1960) (“In the commercial case, arbitration is the substitute for litigation. Here arbitration is the substitute for industrial strife.”). When construing such contracts th e Supreme Court has declared that courts should not construe language as providing an exemption from compulsory arbitration unless there is no other reasonable interpretation. See Allis-Chalmers , 471 U.S. at 204 n.1 (“The use of [a] permissive ‘may’ [in a collective-bargaining agreement] is not sufficient to overcome the presumption that parties are not free to avoid the contract’s arbitration procedures.”); see also Republic Steel , 379 U.S. at 657–58 (the general rule against allowing employees to sidestep a c ontractually agreed grievance scheme “would not of course preclude [the employee’s] c ourt suit if the partie s to the collective bargaining agreement expressly agreed that arbitration was not the exclusive remedy”).8 We can think of absolutely no reason to apply to a trust dispute the special rules governing collective bargaining. Thus, we hold that the Arb itration Provision only allows the Trustee to agree to resolve disputes through arbitration and do es not empower him to compel others—even trust beneficiaries—to submit their disputes to arbitration. The Trustee cannot invoke the Arbitration Provision to compel Plai ntiffs to arbitrate this dispute.
II. CONCLUSION
We AFFIRM the district court’s order denying the motions to stay the court proceedings and to compel arbitration, and we DENY the motion to certify. Entered for the Court

Harris L Hartz Circuit Judge