This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
DOCTOR’S ASSOCIATES INC., 2 Plaintiff/Counter-Defendant-Appellant, 3

v. NO. 33,997 4 JOSE LUIS CARBONELL and 5 VICTORIA CARBONELL, 6 Defendants/Counter-Plaintiffs-Appellees, 7 and 8 JOSE LUIS CARBONELL and 9 VICTORIA CARBONELL , 10 Third Party Plaintiffs-Appellees, 11

v. 12 CAROL ENGLISH, 13 Third Party Defendant-Appellant. 14

APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY 15 Henry Quintero, District Judge 162 Gordon Davis Johnson & Shane P.C. 1 John M. Dickey 2 El Paso, TX 3 for Appellants Doctor’s Associates, Inc. and Carol English 4 Scott Hulse P.C. 5 Casey S. Stevenson 6 El Paso, TX 7 for Appellees 8 MEMORANDUM OPINION 9 WECHSLER, Judge. 10
{1} Appellants Doctor’s Associates, Inc. (DAI) and Carol English appeal the district 11 court’s order denying their motion to compel arbitration. We affirm. 12 BACKGROUND 13
{2} DAI and Jose Luis Carbonell and Victoria Carbonell were parties to a franchise 14 agreement under which DAI, as franchisor, granted the Carbonells, as franchisees, the 15 right to operate a Subway re staurant in Silver City, New Mexico. English was DAI’s 16 development agent. The parties’ rights and responsibilities werelargely governed by 17 a franchise agreement, which contained an arbitration clause. As relevant to this 18 appeal, the scope of the arbitration clauseprovided that “[a]ny dispute, controversy 19 or claim arising out of or relating to this [a]greement or the breach thereof shall be 20 settled by arbitration.” 213 {3} Following the procedures established inthe franchise agreement, on April 11, 1 2012, DAI submitted a demand for arbitration to the American Dispute Resolution 2 Center, Inc. Prior to a scheduled hearing be fore an arbitrator, the parties entered into 3 a stipulated award, resolving the need fo r arbitration. The arbitrator approved the 4 stipulated award. 5
{4} In the stipulated award, the Carbonells admitted to violating the franchise 6 agreement by failing to adhere to certain requirements of the franchisor’s operations 7 manual. They agreed to “transfer the re staurant in accordance with the standard 8 transfer procedures established by [DAI] to a buyer approved by [DAI] within ninety 9 (90) days[.]” The stipulated award additionally contained the following provisions: 10 6. This Award is the Final Award . It is effective immediately, 11 without the necessity of further hearing and can be confirmed in 12 any court having jurisdiction. 13

. . . 14 9. The [p]arties agree and understand that this Stipulated Award 15 contains the entire understanding of the parties. 16
{5} The transfer did not take place withinthe specified peri od. On May 7, 2013, 17 DAI filed an action in district court, alleging that the Carbonells had breached the 18 stipulated award and requesting that the c ourt confirm “the arbitration award as set 19 forth in the [s]tipulated [a]ward.” It subs equently filed an amended complaint. The 20 Carbonells filed an answer, counterclaim, and third-party complaint. In their 214 counterclaim and third-party complaint, th ey claimed that DAI breached the franchise 1 agreement and the stipulated award and, w ith English, a third-party defendant, had 2 engaged in a civil conspiracy and fraudulent misconduct in connection with the 3 Carbonells’ transfer of the restaurant. Eng lish filed an answer to the third-party 4 complaint. 5
{6} On November 27, 2013, DAI and English moved the district court to compel 6 arbitration based on the arbitration clause of the franchise agreement. In response, the 7 Carbonells argued that the matter was properly before the district court because their 8 counterclaim did not arise from the franchise agreement, but from the stipulated award 9 that did not contain an arbitration clause . Because their counterclaim and cross-claims 10 referred to the franchise agreement in addition to the s tipulated award, the Carbonells 11 asserted that they would seek leave to amend the counterclaim and third-party 12 complaint “to clarify that their claims arise only from” the stipulated award. The 13 Carbonells reiterated this position at the beginning of their argument on the motion. 14
{7} After hearing argument on the motion, the district court issued an order denying 15 the motion. It concluded that there wa s no agreement to arbitrate because the 16 Carbonells’ claims arose from the stipulated award, not from the franchise agreement 17 or through arbitration, the stipulated aw ard did not require arbitration, and the 185 stipulated award did not contain language incorporating the arbitration requirements 1 of the franchise agreement. 2

ABSENCE OF AGREEMENT TO ARBITRATE 3
{8} The issue on appeal, as it did in the district court, centers on whether the 4 Carbonells’ claims are based on the stipulatedagreement or the franchise agreement. 5 As explained by the district court, a court cannot compel arbitration in the absence of 6 an enforceable agreement to arbitrate. Alexander v. Calton & Assocs., Inc. , 2005- 7 NMCA-034, ¶ 9, 137 N.M. 293, 110 P.3d 509. We decide this issue as a matter of 8
contract. See Clay v. N.M. Title Loans, Inc. , 2012-NMCA-102, ¶ 14, 288 P.3d 888 9 (“[The general] rule is that arbitration is a matter of contract and a party cannot be 10 required to submit to arbitration any dispute which he has not agreed so to submit.” 11 (internal quotation marks and citation omitted)). In doing so, we seek to fulfill the 12 intent of the parties and look to the plai n meaning of the contractual language when 13 possible. Id. ¶¶ 14, 20; Santa Fe Techs., Inc. v. Argus Networks, Inc. , 2002-NMCA14 030, ¶ 52, 131 N.M. 772, 42 P.3d 1221. We review de novo the district court’s denial 15 of the motion to compel arbitration. Cordova v. World Fin. Corp. of N.M. , 2009- 16 NMSC-021, ¶ 11, 146 N.M. 256, 208 P.3d 901. 176 {9} There is no question that the parties had a valid, enforceable arbitration clause 1 as contained in the franchise agreement. It was broad in scope and required the parties 2 to settle by arbitration “[a]ny dispute, controversy or claim arising out of or relating 3 to” the franchise agreement. However, although a broad arbitration clause requires a 4 broad interpretation as to its scope, the cl aims at issue must bear a “‘reasonable 5 relationship’ to the contract in wh ich the arbitration clause is found.” Clay , 2012- 6 NMCA-102, ¶ 14; Santa Fe Techs. , 2002-NMCA-030, ¶¶ 52, 55. 7
{10} The franchise agreement arbitration provisi on clearly applied to disputes arising 8 from the franchise agreement and led the parties to pursue arbitration arising from 9 their dispute concerning the operations of the Carbonells’ restaurant. The question 10 before us, however, is not as simple. Whenthe parties proceeded to arbitrate the 11 operations dispute, they entered into another agreement: the stipulated award. 12
{11} Appellants argue that the stipulated aw ard flows from the franchise agreement 13 because the franchise agreement governed the entire relationship of the parties. 14 According to Appellants, “[a]ll claims arise out [of] or relate to the . . . [f]ranchise 15 [a]greement and simply could not have arisenin the absence of the parties’ franchise 16 relationship.” 17
{12} Although we agree with Appellants that the parties intended the franchise 18 agreement to govern their relationship, we do not agree that the parties could not vary 191 Appellants also rely on trial court cas es in which DAI has been a party in 12 support of its “but-for” position. The only reported case cited is Doctor’s Associates, 13 Inc. v. Quinn , 42 F.Supp.2d 184 (D.Conn.1999). In that case, a DAI development 14 agent alleged that DAI had orally agreed to share losses incurre d when the agent, at 15 DAI’s request, purchased and resold DAI franchises. Id. at 185-86. The development 16 agent and DAI had previously entered into a development agent agreement that 17 contained a similar arbitration clause to the franchise agreement at issue in this appeal. 18 Id. at 185. The federal districtcourt, in ordering that th e development agent’s damages 19 claim was subject to arbitration, determinedthat the dispute “clearly [arose] out of 20 [the] defendant’s role as a development ag ent for [the] plaintiff[,]” and that the 21 development agent’s “role as development agent and his rights and obligations as 22 defined in the [development agent a]greement will be an issue” in the lawsuit 23 involving the oral agreement. Id. at 187-88. Because of its different facts, Quinn is not 24 persuasive. 25 7 their relationship such that all consequen ces of their actions would be controlled by 1 the franchise agreement merely because it was the first agreement between them. See 2 Clay , 2012-NMCA-102, ¶ 22 (citing with approval Aiken v. World Fin. Corp. of S.C. , 3 644 S.E.2d 705, 708 (S.C. 2007), that “applying what amounts to a but-for causation 4 standard essentially includes every dispute imaginable between the parties, which 5 greatly oversimplifies the parties’ agreemen t to arbitrate claims between them” and 6 stating that “[s]uch a result is illogicaland unconscionable.” (alteration, internal 7 quotation marks, and citation omitted)). 1 The stipulated award, which, according to 8 DAI, “could not have arisen in the absence of the parties’ franc hise relationship[,]” 9 varied the parties’ relationship. It adde d another express, written agreement between 10 them. We thus must examine the stipul ated award in addition to the franchise 118 agreement in order to determine the intent of the parties regarding arbitration. See CC 1 Hous. Corp. v. Ryder Truck Rental, Inc. , 1987-NMSC-117, ¶ 6, 106 N.M. 577, 746 2 P.2d 1109 (“When discerning the purpose, mean ing, and intent of the parties to a 3 contract, the court’s duty is confined to in terpreting the contract that the parties made 4 for themselves, and absent any ambiguity, th e court may not alter or fabricate a new 5 agreement for the parties.”). 6
{13} The parties expressed in the stipulatedaward the provisions of the franchise 7 agreement that would pertain to their agreement under the stipulated award. In this 8 regard, the stipulated award incorporated provisions of the franchise agreement that 9 were necessary to carry out the terms of the stipulated award and for the Carbonells 10 to continue to operate the re staurant pending a transfer, suchas those pertaining to the 11 termination of the franchise agreement, insurance requirements, the applicability of 12 the operations manual, and non-compete provi sions. The transfer was to follow DAI’s 13 standard transfer procedures. The parties stated in the stipulated agreement: “The 14 [p]arties agree and understand that this [s ]tipulated [a]ward contains the entire 15 understanding of the parties.” The stipul ated award does not contain a provision 16 requiring arbitration. 17
{14} Based on the parties’ language, as expre ssed in both their franchise agreement 18 and stipulated award, we conclude, as did the district court, that the parties did not 199 intend the arbitration clause of the franchiseagreement to apply to claims that arose 1 out of the stipulated award. See Clay , 2012-NMCA-102, ¶ 14 (requiring a reasonable 2 relationship between the claims at issue and the contract containing the arbitration 3 clause). The parties varied their relati onship with the stipulated award. Most 4 importantly, they included the merger clausein which they expressed the intent that 5 the stipulated award was “the entire understanding.” They designated the aspects of 6 the franchise agreement that they belie ved were appropriate while the Carbonells 7 operated the restaurant pursuant to the stipulated agreement. Thus, although the 8 franchise agreement still provided the bac kground for the parties’ relationship, the 9 parties focused on the stipulated award to complete their relationship. 10
{15} Appellants argue that the arbitration clau se of the franchise agreement remained 11 in effect after the stipulated award because “[i]t would be unnecessary and duplicative 12 to again include the arbitration provision” inthe stipulated award. In this regard, 13 Appellants point to the provisions of the stipulated award that required continued 14 compliance with the franchise agreement for insurance and non-compete protections. 15 They contend that such provisions “make clear that the Carbonells were expected to 16 continue to comply with the terms of” the franchise agreement. However, we consider 17 these provisions to be inconsistent with anintent that the provisions of the franchise 18 agreement continued in effect without menti on in the stipulated award. If the parties 192 Appellants also assert that the Carbonells allege in their counterclaim that they 16 “have performed as required under the franchi se agreement” as well as the stipulated 17 award. As we have noted, how ever, the Carbonells have statedto the district court that 18 they would amend their counterclaim and third-party complaint to make it clear that 19 they only alleged a breach of the stipulated award. 20
10 made such an assumption, it would not have been necessaryto specifically state that 1 the insurance and non-compete provisions had continued effect. See Bank of N.M. v. 2 Sholer , 1984-NMSC-118, ¶ 6, 102 N.M. 78, 691 P.2d 465 (“A contract must be 3 construed as a harmonious whole, and every word or phrase must be given meaning 4 and significance according to its importance inthe context of the whole contract.”). 5
{16} Appellants further assert th at the Carbonells’ claims “specifically relate to the 6 termination and attempted transf er” of the franchise agreement. 2But, the Carbonells’ 7 claims pertain to the transf er of the Carbonells’ Silver City restaurant and other 8 restaurants, which was the e xpress subject matter of the s tipulated award. Appellants 9 do not otherwise specifically tie the Carbonells’ claims to the franchise agreement. We 10 conclude that the parties did not intend fo r the arbitration clause of the franchise 11 agreement to apply to the Carbonells’ claims. See Benz v. Town Ctr. Land, LLC , 12 2013-NMCA-111, ¶ 31, 314 P.3d 688 (“The purpos e, meaning, and intent of the 13 parties to a contract is to be deduced from the language employed by them; and where 14 such language is not ambiguous, it is conc lusive.” (alteration, internal quotation 15 marks, and citation omitted)). 1611 {17} Appellants additionally state that the language of the stipulated award 1 “contains the entire understanding of the parties[,]” was a “boilerplate merger 2 clause[,]” and contend that it was insufficient to supersede the arbitration clause of the 3 franchise agreement. Appellants rely on Riley Manufacturing Co. v. Anchor Glass 4 Container Corp. , 157 F.3d 775 (10th Cir. 1998), in this regard. 5
{18} In Riley , the parties entered into a manuf acturing agreement that included an 6 arbitration clause. Id. at 776-77. After a copyright dispute arose, the parties entered 7 into mutual releases and a settlement agreement. Id. at 777. In the settlement 8 agreement, the parties agreed to reestablish a business relationship. Id. at 778. The 9 settlement agreement contained a merger clau se, stating that the settlement agreement 10 constituted the entire agreement of the partie s and “cancels, terminates and supersedes 11 any and all prior representations and ag reements relating to the subject matter 12 thereof.” Id. (internal quotation marks omitted). The Tenth Circuit addressed the 13 merger clause in th e context of a subsequent lawsuit, concluding that the merger 14 clause canceled provisions that related to the subject matter of the settlement 15 agreement, the specific copyrig ht designs at issue in the original threatened lawsuit 16 as well as the continuing use of the plai ntiff’s copyright designs, but that the 17 arbitration clause of the manufacturing ag reement would apply to other issues that 18 were not the subject matter of the settlement agreement. Id. at 778, 783. The Tenth 1912 Circuit also expressed the presumption that an arbitration provision is presumed to 1 survive the expiration of the parties’ contr act unless there is “some express or implied 2 evidence that the parties intend to override this presumption[.]” Id. at 781. It noted that 3 there is no longer a presumption if the parties “express or clearly imply an intent to 4 repudiate post-expiration arbitrability” or “thedispute cannot be said to arise under 5 the previous contract.” Id. 6
{19} Appellants argue from Rileythat the merger provision inthis case is insufficient 7 to repudiate the arbitration provision of the franchise agreement because it neither 8 expressly nor clearly implies that arbitr ation does not apply. However, we do not 9 believe that Rileyaffects our reasoning in this case for three reasons. 10
{20} First, the holding in Rileyrelied on the specific language in the settlement 11 agreement and the facts of that case. Second, even if we were to apply a presumption 12 of survival absent evidence to the contrary, (1) we can reasonably imply from the 13 language of the stipulated award that th e parties did not intend for the arbitration 14 provision of the franchise agreement to apply to a breach of the stipulated award, and 15 (2) the present dispute did not arise from th e franchise agreement. Third, although the 16 parties’ intent would have been more clearly stated if they had included language in 17 the stipulated award similar to the cancellation language in Riley , in construing the 18 intent of the parties, we cannot disregard the language that they did use. See Montoya 1913 v. Villa Linda Mall, Ltd. , 1990-NMSC-053, ¶ 8, 110 N.M . 128, 793 P.2d 258 (“It is 1 black letter law that, absent an ambiguity, a court is bound to interpret and enforce a 2 contract’s clear language and cannot creat e a new agreement for the parties.”). 3 STIPULATED AWARD AS ARBITRATION AWARD 4
{21} The district court found that the stipulated award “was entered into in lieu of 5 arbitration. It was not reached through arb itration, or facilitated by an arbitrator.” 6 Appellants assert that the district court erred in these findings . They address these 7 findings on appeal, although they question their relevance. We do not address 8 Appellants’ argument in this regard because it does not affect our determination of the 9 appeal. 10 CONCLUSION 11
{22} We affirm the order of the district court denying the motion to compel. 12
{23} IT IS SO ORDERED. 13

______________ __________________ 14 JAMES J. WECHSLER, Judge 15

WE CONCUR: 16

________________________________ 17 JONATHAN B. SUTIN, Judge 1814 ________________________________ 1 RODERICK T. KENNEDY, Judge 2