NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

RACHEL A. TURLEY, et al.

, Plaintiff s/Appellees

,

v.

LEO R. BEUS, et al.

, Defendant s/Appellants

.

No. 1 CA

- CV 15

- 0107

Appeal from the Superior Court in Maricopa County

No. CV2014

- 009811

The Honorable Katherine M. Cooper

, Judge

AFFIRMED

COUNSEL

Bryan Cave LLP , Phoenix By J. Alex Grimsley, Robert J. Miller, Sean K. McElenney Counsel for Plaintiffs/Appellees

Stinson Leonard Street LLP, Phoenix By Michael C. Manning, James E. Holland Jr.

Co

- Counsel for Defendants/Appellants Cardon

Moyes Sellers & Hendricks , Phoenix By Kei th L. Hendricks, Joshua T. Greer, Lawrence Palles

Co

- Counsel for Defendants/Appellants CardonTURLEY et al. v. BEUS et al.

Decision of the Court

2 Osborn Maledon, P.A.

, Phoenix By David B. Rosenbaum, Nathan Arrowsmith Counsel for Defendants/Appellants Beus/Nelson

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Randall M. Howe and Judge Donn Kessler joined.

J O N E S

, Judge :

¶1 Appellants appeal the trial court’s order s denying their motion to compel arbitration. For the following reasons, we affirm

.

FACTS 1 AND PROCEDURAL HISTORY

¶2 This fa mily dispute arose over an alleged promise by Wilford

Cardon to give his son , Wil

, 50% of the family ’s considerable assets in exchange for Wil’s agreement to manage the family businesses. Wil ford disputed making such a promise to the detriment of his seven other

children

. 2 In an attempt t o settle the dispute, Wilford and Wil met w ith t wo high

- ranking leaders of their c hurch (the Church Leaders)

.

¶3 The meeting resulted in an agreement (the November 2013

A greement)

, signed by Wilford and Wil, their wives, and the Church
Leaders, all in their individual capacities , that granted Wil 35 % o f the total

Cardon assets

— 28.75% “as compensation” for his management services plus 6 .25% as his inheritance

— and allocated 6.25% of the assets to each of

Wilford’s seven other children

. The November 2013 A greement also

contained a provision whereby the numerous Cardon c ompanies would be “governed by a board of directors” that “would include Wilford, Wil, another rotating family member, and others,” with final selection to be determined by the Church Leaders

. T he November 2013 A greement purported to create a board of directors (the Board) for the purpose of

1 We view the facts in the light most favorable to upholding the trial court’s ruling. Estate of DeCamacho ex rel. Guthrie v. La Solana Care & Rehab,

Inc. , 234 Ariz. 18, 19 n.1, ¶ 1 (App. 2014) (citing Ruesga v. Kindred Nursing
Ctrs., L.L.C. , 215 Ariz. 589, 597, ¶ 26 (App. 2007)).

2 Neither Wilford nor one of Wil’s siblings are parties to this appeal.TURLEY et al. v. BEUS et al.

Decision of the Court

3 disentangl ing Cardon investments by selling the real estate properties in which those investments were held and distributing the liquidated cash to

the various Cardon children in accordance with th e agreed

- upon schedule

.

¶4 Leo Beus, a longtime attorney and friend of Wilford’s

, later

averred that, shortly after the execution of the November 2013 Agreement,

the Church Leaders had asked him “to take affirmative steps to

. . . implement that Agreement ” and “to serve on the Board.” A s part of the s e responsibilities

, Beus informed Wil’s brother, Patrick, that Patrick had be en elected to the Board by a unanimous vote of the three then

- existing Board

members

— Wilford, Wil, and Beus

. Those four B oard members f urther agreed to a five

- member Board in total and selected Todd Nelson, who was to be “independent of all persons involved,” as the final B oard member.

A n initial B oard meeting was scheduled for early December 2013. T he

Cardons ’ estate

- planning attorney draft ed a “Comprehensive Management Agreement” (the Management Agreement) in preparation for the initial

B oard meeting.

¶5 The parties to the Management Agreement purport to be Boa Sorte L.P., Rio Claro, Inc., and Harvard Capital L.P. (the Compan ies), all of which hold Cardon assets and are, in turn, owned by a number of

irrevocable and multi

- generational trusts

. 3 Section 1.1(a) of the Management Agreement grants the Board “sole and unfettered authority to make . . . any and all determinations . . . regarding the business and affairs of [the Companies] and all Cardon Assets . . . and decisions by the Board are binding and non

- appealable by [the Companies] or any Cardon Family Member.” Section 1.1(b) further asserts that the Board “shall also have full authority to consider and resolve any . . . disputes raised by any . . . Cardon Family Member, and the Board’s decisions and actions shall be binding on . . . every Cardon Family Member, none of which shall have any right to litigate or arbitrate suc h decision unless” the Board’s decision involved fraud or dishonesty related to self

- dealing, in which case the matter would be resolved by a qualified arbitrator selected by the American Arbitration

Association.

¶6 Upon reviewing the Management Agreement, Wilford specifically requested a right of appeal of B oard decisions to the Church

Leaders

. The B oa rd members unanimously agreed nothing in Section 1.1(b)

3 As of June 2014, eleven trusts had ownership interests in the Companies, with all parties involved

— Wilford, Wil, B eus, Patrick, and

five other Cardon children (the Siblings)

— serving as a trustee or “power

holder” f o r one of the various trusts.TURLEY et al. v. BEUS et al.

Decision of the Court

4 would “limit the right of appeal” they agreed to in Section 1.9. As relevant
here, S ection 1. 9 provi des the right of appeal is “ in the sole and abso lute

discretion ” of the Church Leaders and “acknowledge[s] that it is the strong desire of [the Church Leaders] not to be a final arbiter of any dispute,” but notes “[i] f the Ap peal is considered, [ the Church Leaders’] decision . . . shall be binding on the Board. ”

¶7 On the signature page, the Manage ment Agreement establishes, with the signatures of the five Board members, that it i s to be “binding on all signatories hereto and all Cardon Family Members

conce rning management of Cardon Assets as defined herein.” A lthough

the document has numerous signature block s for the Board directors,

m anager s of the Companies

, trustee s of the trusts, and individual Cardon family member s , only Wilford and Patrick ever signe d the Management Agreement , both of whom signed in December 2013. Additionally, Section 1.11 provides that “[t]he [Companies’] respective governing instruments shall be modified as soon as reasonably possible to expressly grant authority to the Board as p rovided for herein,” but this did not occur.

¶8 Despite the attempt to settle disputes through the Management Agreement, f amily acrimony continued

. Beus met with the Siblings in December 2013, where he purportedly circulated copies of the Management Agreeme nt, but the document remained substantially

unexecuted. Although the Siblings were not fully aware of the Board’s involvement in managing the Cardon assets, Wilford , Patrick, and the Siblings 4 would consult either Beus or the Church Leaders for advice, and, in so doing, evidence d a basic understanding of the Board’s structure and

purpose. T h e Management Agreement’s appeal provision

, involving

recourse t o the Church Leaders

, was first invoked in Jan uary 2014 . At that

time , the Church Leader s declined to consider the dispute, stating “[o]ur role never was and is not now to participate in the complex details of the Cardon Group. We have neither the time nor responsibility to understand the many issues. For this reason, we encouraged the form ing of [the B oard ]

. . . .”

¶9 The Board met in late December 2013 as well as January and

March 2014 and discussed, among other issues, the value of two vacation homes to be transferred to Wilford and the Siblings such that Wil could be

credited for his 35% share

. Several emails from the Siblings to Beus in February 2014 continue d to evince a rudimentary awareness of the Board

4 Appellees include Patrick and the Cardon Siblings minus Wil and one Cardon child that is not a party to this appeal. See supra nn.2

- 3.TURLEY et al. v. BEUS et al.

Decision of the Court

5 a nd its function in settling di sputes within the Cardon family

, and Beus

referred to the Board’s arbitration function in one of his r esponses. Moreover, Patrick communicated to the Board that he and the Siblings

, together with Wilford, had created their own b oard

— separate from the one created by the Management Agreement

— and Patrick, as chairman of

the alternate board , was “tasked to report the decisions and progress of the [Management Agreement’s] Board to disentangle the assets owned by Boa
Sorte, Rio Claro, and Harvard.” Patrick also ask ed Beus how the Board

intended to “handle the arbitration” on the property valu ation issue so he could prepare for an April 2014 Board meeting and the “related arbitration process.”

¶10 At the April 2014 Board meeting and alleged arbitration hearing , Wilford and Patrick presented materials acknowledging “ Wilford, [Wilford’s wife] , and [the] Seven Siblings [‘] desire to separate the ownership and control of the [vacation homes] ” and the Board’s “authority to arbitrate disentanglement” as “ empowered through the Comprehensive Management Agreement.” Following the presentation, t he Board rej ected

Wilford and Patrick’s valuation , and Wilford and Patrick appealed the

decision to the Church Leaders

.

¶11 The Church Leader s replied “that it would be impossible and inappropriate for us . . . to sit in judgment on the large array of complex

issues bef ore the family, [and] we [have been] very grateful that those controlling the Cardon Group accepted to be gov erned by [the Board] .” Thereafter, Wilford, Patrick, and the Siblings explicitly disavowed the Board’s authority, repudiated the validity of the M anagemen t Agreement,

and threatened Beus and Nelson with litigation. In late June 2014, Pat rick requested that the Church Leaders dissolve the Board. The Church Leaders

continued to reject any formal participation in the management of the

Cardon assets :

Through the past eight months, we have encouraged family

members to find solutions through the [B] oard that was

established. . . . After the request two weeks ago from two [B] oard mem bers for a change in two other [B] oard members,
we, for the first time, asked for a copy of the Comprehensive Management Agreement. . . . [W]e were surprised to learn that this agreement granted us legal authority with respect to the [B] oard, including . . . the power to accept, con sider, and decide appeals from [B] oard decis ions (paragraph 1.9). We believed our role was informal, and not legally binding. . . . So that there is no misunderstanding, we cannot accept andTURLEY et al. v. BEUS et al.

Decision of the Court

6 refuse to accept the legal powers, responsibilities, and duties that the Management Agreement gives to us.

¶12 In July 2014, Appellees filed suit again st Wil, Beus, and Nelson (Appellants)

, seeking : (1) a declaratory judgment that the November 2013 Agreement and the Management Agreement were void

and unenforceable ; (2) removal of Wil and Beus from their managemen t and trustee positions in the Companies and the irrevocable trusts; (3) the appointment of a receiver for the Companies ; and (4 ) a permanent injunction prohibiting Appellants from acting in their asserted capacities as members of the Board under the Manag ement Agreement

. Appellants

moved to compel arbitration of the issues before the Board pursuant to the

terms of the Management Agreement

.

¶13 The t rial court held oral argument and, after taking the matter

under advisement

, issued a partial ruling in November 2014 concluding

that the Siblings

, “other than Patrick Cardon, a re not signatories to t he Management Agreement and a re not bound by it. They are not required to participate in [alternative dispute resolution (ADR)] wit h the Board.” As to
Patrick, the trial court f ound his claims “are subject to ADR with the Board if the Management Agreement itself is valid and enforceable ” but did not find the Agreement to be void as to Patrick “ based on the [Church Leaders’]

role.” T he court reserved its final ruling pending submission of additional plea dings and argument regarding whether the Management Agreement was fully executed or whether requiring an ADR that allows Appellants to decide the charges against them was a legal absur dity.

¶14 After further pleadings and oral argument, the trial court ruled, in April 2015, that all Appellees, including Patrick, were “not required to submit their claims to ADR before the Board.” The court concluded the Management Agreement was unconscion able to the degree that it allowed Appellants to sit as binding arbitrators over the claims against them. The court identified multiple, unresolved factual disputes regarding Appellees’ ratification or acceptance of t he Management Agreement and Board deci sions and whether the Management Agreement may be voidable for mutual mis take resulting from the Church Leaders “want[ing] nothing to do with the MA or the Board.”TURLEY et al. v. BEUS et al.

Decision of the Court

7 ¶15 Appellants timely appealed the denial of their motion to compel arbitration

. We have juri sdiction pursuant to Arizona Revised Statutes (A.R.S.) section s 12

- 120.21(A)(1) 5 and

- 2101.01 (A)(1).

DISCUSSION

I. The Siblings Never Consented to t he Purpor ted Arbitration Agreement

.

¶16 We begin with the general rule in Arizona that the courts

, rather than arbitrators, decide the threshold , jurisdictional issue of whether parties have an existing agreement to arbitrate a particular disput e. 6 Duenas v. Life Care Ctrs. of Am., Inc. , 236 Ariz. 130, 140, ¶ 31 (App. 2014) (quoting
A.R.S. § 12

- 3006(B)); accord A. R.S. § 12

- 1502(A) ; Foy v. Thorp , 186 Ariz. 151,

153

- 54 (App. 1996) (citing City of Cottonwood v. James L. Fann Contracting,

Inc. , 179 Ariz. 185, 189

- 90 (App. 1994))

. This determination is governed by

g eneral principles of contract law

. Stevens/Leinweber/S ullens, Inc. v. Holm Dev. & Mgmt., Inc. , 165 Ariz. 25, 28 (App. 1990) . And

, it is axiomati c that an
agreement does not exist u nless it is legally enforceable

. S ee, e.g. , 17A Am. Jur. 2d Contracts § 1 (2016).

¶17 The validity and enforceability of an arbitration clause
present mixed questions of fact and law subject to de novo review. Duenas

, 236 Ariz. at 135 n.1, ¶ 6 (quoting DeCamacho , 234 Ariz. at 20, ¶ 9 ). We also review the denial of a motion to compel arbitration de novo

. Sun Valley

Ranch 308 L td

. P ’ship ex rel. Englewood Props., Inc. v. Robson , 231 Ariz. 287, 291, ¶ 9 (App. 2012) (citing Nat’l Bank of Ariz. v. Schwartz , 230 Ariz. 310, 311, ¶ 4 (App. 2012)). Notwithstanding our de novo review, w e defer to the trial

5 Absent materia l changes from the relevant date, we cite a statute’s

current version.

6 Appellees argue Appellants rendered this appeal moot by conceding

the Board lack s authority to arbitrate certain counts in Appellees’ complaint involving the validity of the trusts o r the Management Agreement as a

whole

. However, in reviewing the denial of a motion to compel arbitration, such claims are outside this Court’s jurisdiction in first deciding whether an agreement to arbitrate exists

. Compare A.R.S. § 12

- 3006(B) ( “The court shall decide whether an agreement to arbitrate exists . . . .”), with A.R.S.
§ 12

- 3006(C) (“An arbitrator shall decide whether . . . a contract containing a valid agreement to arbitrate is enforceable.”); see also A.R.S. § 12

- 3007(A)(2)

.TURLEY et al. v. BEUS et al.

Decision of the Court

8 court’s factual findings un less clearly erroneous. Austin v. Austin , 237 Ariz

. 201, 204, ¶ 2 (citing Harrington v. Pulte Home Corp. , 211 Ariz. 241, 245, 246

- 47, ¶ ¶ 8, 16 (App. 2005)).

¶18 “Although public policy supports arbitration agreements, ‘only when the arbitration provision is e nforceable will the court compel

arbitration.’” Id. at 206, ¶ 12 (quoting WB, The Bldg. Co. v. El Destino, L.P.

, 227 Ariz. 302, 306, ¶ 11 (App. 2011)). In defining the validity and enforceability of an arbitra tion agreement, A.R.S. § 12

- 3006(A) states:

A n agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforc eable and irrevocable, except on a ground that exist s at law or in equity for the

revocation of a contract.

The l egal and equitable grounds for revoking a contract include lack of mutual consent, consideration, or capacity ; fraud, duress, or mistake; or procedural or substantive unconscionability

. Austin , 237 Ariz. at 206, ¶ 12 (quoting St evens/Leinweber , 165 Ariz. at 28

- 29) ; Falcone Bros. & Assocs., Inc. v. City of Tucson , 240 Ariz. 483

, 490, ¶ 21 (App. 2016) (cit ation omitted )

.

¶19 A ppellants argue the Sibling s ’ signatures on the Management Agreement were not required to enforce the arbitrati on provision contained
therein, see Smith v. Pinnameneni , 227 Ariz. 170, 177, ¶ 23 (App. 2011) (“Nonsignatories . . . can be required to arbitrate under certain circumstances.”) (cit ations omitted ), because they either : (1) impliedly accepted the arbitratio n agreement by their conduct; (2) designated Patrick
as an agent to ente r the agreement on their behalf; or (3) are estopped from now contesting the arbitration agreement because they availed themselves

of the benefits of the Board’ s arbitration decisions before April 2014

. As detailed below, Appellants have not met their burden in proving any circumstances existed such that the arbitration provision should be enforced against the Siblings as nonsignatories.

A. Implied Consent and Assu mption

¶20 A nonsignatory may be bound by an arbitration clause if his

conduct indicates he is assuming the duty to arbitrate. See Duenas , 236 Ariz. at 139, ¶ 26 (citing Bridas S.A.P.I.C. v. Gov’t of Turkmenistan , 345 F.3d 347

, 356 (5th Cir. 2003)); see also Thomson

- CSF, S.A. v. Am. Arbitration Ass’n , 64 F.3d 773, 777 (2d Cir. 1995) (citations omitted)

. Indeed, a n implied and enforceable agreement may be inferred from an individual’s acts or conduct, though the burden of proving such an agreement is on the pa rtyTURLEY et al. v. BEUS et al.

Decision of the Court

9 asserting it. See Carroll v. Lee , 148 Ariz. 10, 13 (1986); Alexander v. O’Neil , 77 Ariz. 91, 98 (1954) (citing Kellogg v. Gleeson , 178 P.2d 969, 972 (Wash. 1947)) ; Johnson Int ’l , Inc. v. City of Phx. , 192 Ariz. 466, 470

- 71, ¶ 26 (App. 1998).

However

, “a distinct intent common to both parties must exist ” before an enforceable agreement is created

, “ and until all understand alike there can

be no contractual assent.” Hartford v. Indus. Comm’n , 178 Ariz. 106, 112 (App. 1994) (citing Hill

- Shafer P’ship v. Chilson Family Tr. , 165 Ariz. 469, 473 (1990)). Whether m utual assent exists is a factual question , resolved by

consideration of objective evidence, “ not the hidden intent of the parties .”

Tabler v. Indus. Comm’n , 202 Ariz. 518, 521, ¶ ¶ 12

- 13 (App. 2002 ) (citing Callie

v. Near , 829 F.2d 8 88, 890

- 91 (9th Cir. 1987), and Hartford , 178 Ariz. at 112).

¶21 Appellants attempt to meet their burden of proof through

email communications indicating the Siblings had an opportunity to review the Management Agreement, w ere general ly aware of the Board and its actions, and occasionally communicated familial disputes to Beus. Mere knowledge of a contract is not a sufficient manifestation of intent to be

bound. See Althaus v. Cornelio , 203 Ariz. 597, 601, ¶ 17 (App. 2002) (“[T]he fact that one of the parties, with the knowledge and approval of the other , has begun performance is nearly always evidence that they regard the contract as consummated and intend to be bound thereby.”) (quoting Schade v.

Diethrich , 158 Ariz. 1, 10 (1988)). M ore o ver , Appellants admit they presented the Management Agreement, with explanation by Beus , to the Siblings , thereby provid ing them with a distinct and objective opportunity to unambiguously provide their consent to arbitration by signing ; yet, the Sibling s declined to do so. Appellants’ evidence, in its totality, is insufficient to establish error in the trial court’s factual finding that the Siblings did not intend to be bound to arbitration.

B. Agency and Waiver

¶22 The party asserting agen cy has the burden of showing the

relevant person was in fact a non signatory’s agent and, thus , had authority

to bind the non signatory to an agreement. See Escareno v. Kindred Nursing
Ctrs. W., L.L.C. , 239 Ariz. 126, 129, ¶ 7 (App. 2016) (citing Goodman v. Physical Res. Eng’g, Inc. , 229 Ariz. 25, 29, ¶ 12 (App. 2011), and Restatement (Third) of Agency § 6.01 (2006)); see also Duenas , 236 Ariz. at 139, ¶ 27 (noting agent “could not contractually limit [the principals’] personal claims without

their assent ”)

. “Apparent authority . . . arises when ‘the principal intentionally or inadvertently induce[s] third persons to believe [a particular] person was his agent although no actual or express authority was conferred on him as agent.’” Escareno , 239 Ariz. at 13 0, ¶ 8 (quoting

Reed v. Gershweir , 160 Ariz. 203, 205 (App. 1989)). Whether an agencyTURLEY et al. v. BEUS et al.

Decision of the Court

10 relationship exists is a question of fact. Id. at 129, ¶ 6 (quoting Goodman

, 229 Ariz. at 29, ¶ 12, and Salvation Army v. Bryson , 229 Ariz. 204, 211, ¶ 23 (App. 2012)).

¶23 Appellants contend that Patrick’s communication of his

status as chairman of Wilford and Appellees’ alternate board, coupled with the materials Patrick presented at the April 2014 meeting acknowledging the Board’s authority to arbitrate

, are sufficient to create an apparent agency relationship between Patrick and the other Appellees. However, Patrick’s representations cannot prove apparent authority because such authority “can never be derived from the acts of the agent alone.” Reed , 16 0 Ariz. at

205. The trial court found no evidence that the Siblings authorized Patrick to sign the Management Agreement or participate in Board proceedings on

their behalf , and Appellants have not shown those findings were clearly

erroneous

. 7 And if Patr ick was not the Sibling s’ agent at the April 2014 Board meeting, they cannot be found to hav e waived their objection to arbitration allegedl y occurring at that meeting, given th e Siblings did not attend, much less participate in, the meeting

.

C. Estoppel an d Third

- Party Beneficiary

¶24 The equitable estoppel and third

- party beneficiary doctrines each evaluate whether a nonsignatory has received benefits from a n arbitration agreement or a contract containing an arbitration clause and

, therefore

, should be equitab ly barred from avoiding arbitration. S ee
S choneberger v. Oelze , 208 Ariz. 591, 594 n.6, ¶ 14 (App. 2004) (citing Bridas

, 345 F.3d at 362), superseded by A.R.S. § 14

- 10205 ; see also Austin , 237 Ariz. at

208

- 09, 2 10, ¶¶ 23

- 24 , 29 (citations omitted).

¶25 Appellants argue the Siblings accepted two primary benefits

from Board decisions that compel them to arbitrate the present disputes

— financial distributions and the implementation of a “timeout” between Wil and the rest of the family. Regarding the finan cial distributions, w e cannot say the Siblings claim ed any direct benefits from the Board’s deci sion, given

the Sibling s were unaware t hey derived from Board action. Austin , 237 Ariz. at 210, ¶ 29 (“[A] nonsignatory may be compelled to arbitrate only

when the nonsignatory . . . knowingly exploits the benefits of an agreement

7 Appellants also assert the Siblings themselves consented to Patrick representing their interests on the Boar d in the December 2013 meetings, an assertion the Siblings deny

. These conflicting assertions were reconciled by
the trial court, and we def er to the court’s findings in the absence of clear

error.TURLEY et al. v. BEUS et al.

Decision of the Court

11 containing an arbitration clause . . . .”) (emphasis added) (citation omitted). And though some of the Siblings acknowledged Beus’ hand in directing the

“timeout” between Wil and the family, such an informal and indirect benefit relative to an agreement designed to disentangle signifi cant, illiquid

financial assets is insuffici ent to overcome the court’ s discretionary findings and establish an equitable requirement to arbitrate under the Management Agreement. See id. at 209, ¶¶ 24, 28. Again, Appellants have not established error in the trial court’s findings.

II. Mutual Mistake as to the Availability of an Appeal of the Board’s

Decisions Renders the Arbitration Agreement Void a s to Patrick

.

¶26 Appellants argue the trial court erred in determining the arbitration agreement was unconscionable as to Patrick. Whether a contract

is unconscionable and unenforceable are question s of law subject to de novo

review. See Duenas

, 236 Ariz. a t 135 n.1, ¶ 6 (citations omitted). Accordingly, we may affirm the trial court for any reason supported by the

record

. Navajo Nation v. Ariz. Dep’t of Econ. Sec. , 230 Ariz. 339, 344, ¶ 14 (App. 2012) (cit ing St. Joseph’s Hosp. v. Ariz. Health Care Cost C ontainment Sys. , 185 Ariz. 309, 312 (App. 1996) ); WB , 227 Ariz. at 309, ¶ 16 (citing United Effort Plan Tr. v. Holm , 209 Ariz. 347, 351, ¶ 24 (App. 2004)).

¶27 Procedural unconscionability addresses the fairness of the bargaining process, including whether mistakes of important facts

occurred. Duenas , 236 Ariz. at 135, ¶ 8 (quoting Clark v. Renaissance W.,

L.L.C. , 232 Ariz. 510, 512, ¶ 8 (App. 2013)). “ A mutual mistake exists where there has been a meeting of the minds of the parties and an agreement is actually entered into, but the agreement contains a mistake regarding an essential part of the contract .” Hartford , 178 Ariz. at 111 (citing Renner v.

Kehl , 150 Ariz. 94, 97 (1986), and Hill

- Shafer , 165 Ariz. at 473) ; see also Restatement (Second) of Contracts § 152 cmt. b (1981) (“A mistake of both parties does not make the contract voidable unless it is one as to a basic assumption on which both parties made th e contract.”). A party seeking to rescind an agreement on the basis of mutual mistake must do so through clear and convincing evidence. Estate of Nelson ex rel. Franz v. Rice , 198 Ariz.
563, 566, ¶ 7 (App. 2000) (citing Emmons v. Superior Court , 192 Ariz . 509, 513, ¶ 15 (App. 1998)).

¶28 Appellees argue clear and convincing evidence exists to show the Church Leaders were never aware of nor consented to binding appellate jurisdiction over Board decisions, a n integral provision of the arbitration agreement for which all Board members, including Patrick, specifically negotiated. Appellants counter with the assertion that the Church LeadersTURLEY et al. v. BEUS et al.

Decision of the Court

12 were merely exercising their right of discretionary review under the Management Agreement, or, alternatively, Patrick had al ready been put on notice that the Church Leaders would not issue binding decisions. Although the discretionary nature of th e Management Agreement’s appeal provision is clearly delineated, the record portrays a fundamental misunderstanding regarding the bi nding force of th e appeal provision.

¶29 Before the Management Agreement’s creation, the Board negotiated and discussed a right of a binding appeal to the Church Leaders “so that the board would have a safety check on its decision making.” An appeal provisi on was included within the Management Agreement that

stated the Church Lead ers would act as binding arbitrators of disputed

Board decisions

. Yet, eight months later, when the Church Leaders reviewed a copy of the Management Agreement for the first time

, they

un equivocally “ refuse [d] to accept the legal powers, responsibilities, and duties that the Management Agreement” gave to them. See supra ¶ 11. Although the Church Leaders had “denied review” once before, in January
2014, their statements at the time were not so unmistakable as to lead Patrick to believe they would never issue a binding decision regarding

Board action. See supra ¶ 8. And there is a fundamental distinction between denying review of a particular dispute and universal unwillingness to participate in binding arbitration

.

¶30 Considering the evidence as a whole, c lear and convincing

evidence exists to establish t he appeal provision w as a basic tenet of the arbitration agreement (which comprises both Section 1.1 (b) ’s grant of

arbitration aut hority to the Board and Section 1.9’s right of appeal )

. Because both parties were mistaken regarding their understanding of the Church Leaders’ role in review of the Board’s decisions, S ection 1.9 is a nullity and the entire arbitration agreement is unenf orceable as to Patrick. On this basis, we hold, as a matter of law, that Patrick is not bound by the arbitration agreement on the grounds of mutual mistake. 8

¶31 We are mindful of Appellants’ argument that Patrick waived his objection to the April 2014 Board meeting and alleged arbitration hearing

. See A.R.S. § 12

- 3023(A)(5) (“[T]he court shall vacate an award made in the arbitration proceeding if . . . [t]here was no agreement to arbitrate, unless the person participated in the arbitrat ion proceeding without raising [an] objection [concerning lack of notice] not later than the

8 Because the existing record supports this determination, Appellees’ motion to supplement the record on appeal is denied.TURLEY et al. v. BEUS et al.

Decision of the Court

13 beginning of the arbitration hearing.”); see also Pinnamaneni , 227 Ariz. at 177, ¶ 24 (“[O]ne who consents to arbitration without objection

— even when

there is no binding contract

. . . — must abide by the arbitrator’s decision

. . . .”) (cit ing Verdex Steel & Constr. Co. v. Bd. of Supervisors , 19 Ariz. App. 547, 550 (1973) )

. But in our de novo interpretation of the arbitration
agreement , we construe Section 1.1 (b ) ’s Board arbitration proceedings and Section 1.9’s right of appeal to the Church Leade rs as inextricable parts of the whole agreement to arbitrate

.

¶32 As applied narrowly to the facts of this case, we interpret the agreed

- upon proceeding encompass ed both a n opportunity to be heard by

the Board and a right to seek review from the Church Leaders . B ecause the right to seek binding review by the Church Leaders was the illusory product of a mutual mistake, the April 2014 “arbit ration proceeding” could never be completed, and Patrick cannot have waived his objection there to.

¶33 Moreover, even if Patrick had waived his right to object to the purported April 2014 arbitration hearing, any award derived from that

arbitration would be unenforceable against the Siblings, who did not agree

to arbitrate and cannot be bound to the outcome. 9 See supra Part I.

The test of indispensability in Arizo na is whether the absent person’ s interest in the controversy is such that no final judgment o r decree could be entered, doing justice between the parties actually before the court and without injuriously affecting the rights of others not brought into the action.

Copper Hills Enters. v. Ariz. Dep’t of Revenue , 214 Ariz. 386, 392, ¶ 21 (App. 2007) (quoting Town of Gila Bend v. Walled Lake Door Co. , 107 Ariz. 545, 549 (1971)). Indispensability of parties is a question of law subject to de novo

review. Gerow , 192 Ariz. at 14, ¶ 19 (citing Connolly v. Great Basin Ins. , 6 Ariz. App. 280, 285 (1967), a nd Tovrea Land & Cattle Co. v. Linsenmeyer , 100 Ariz. 107, 114 (1966)).

¶34 Applying this principle to the facts before us, we conclude

t here is no way the Board could address the valuation of the vacation home s

9 Although the indispensability defense was not addressed by the tria l court, it is not waivable and may be raised at any time. Gerow v. Covill , 192
Ariz. 9, 14, ¶ 19 (App. 1998) (citing City of Flagstaff v. Babbitt , 8 Ariz. App. 123, 127 (1968) )

.TURLEY et al. v. BEUS et al.

Decision of the Court

14 and apportion the proper percentage interest a mong the Cardon family members without affecting the rights of the Siblings as trust beneficiaries with ownership interests in those homes

. 10 The Siblings are therefore indispensable to a just determination of the action. Without their participation, arbi tration of this issue under the Management A greement is

a meaningless nullity

.

¶35 Accordingly, we find no error in the trial court’s order declining to compel Patrick to arbitrate the dispute before the Board.

III. Appellants Waived Their Opportunity to Request an Evidentiary Hearing.

¶36 Appellants contend the trial court’s determination that certain questions of fact remained regarding whether the Appellees ratified and accepted the Management Agreement or the Board’s decisions, generally, requires this Court to r emand the matter for an evidentiary hearing. Appellants have not shown how the factual disputes on these issues are relevant to the sole question before the trial court

— whether Appellees could be compelled to participate in arbitration. But we need not reach that issue because the record reflects Appellants waived their opportunity to contest the court’s decision not to hold an evidentiary hearing

.

¶37 Pursuant to A.R.S. § 12

- 3007(A)(2):

10 The Appellants argue the Siblings’ claims are derivative of the

Co mpanies ’ because Wil, as the manager of the Companies, consented to the Board’s arbitration authority under the Management Agreement.

However, conferring arbitration authority on the Board was not a mere

business transaction requiring only management authority

. The terms of the Management Agreement itself recognized this, as the Agreement provided signature lines for the Siblings in their various capacities and included a provision calling for the Companies’ governing documents to be

revised to bestow authority on the Board. See supra ¶ 7. None of the parties allege that revision occurred. Moreover, a grant of s uch broad authority, as defined in the Management Agreement, would materially and adversely affect the Siblings’ rights under the Companies’ governing documents . A s members of the entity that manages the “main economic vehicle” of the

Cardon Companies, the Siblings never vote d or consented to amend any operating agreements to allow for such a material and adverse effect on their rights

.TURLEY et al. v. BEUS et al.

Decision of the Court

15 On motion of a person showing an agreement to arbitr ate and alleging another person’ s refusal to arbitrate pursuant to the

ag reement . . . the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.

To p roceed “ summarily

, ” the trial court must first determine whether material issues of fact are disputed and, if so, conduct an expedited evidentiary hearing to resolve those disputes. Ruesga , 215 Ariz. at 596, ¶ 24 (quoting Haynes v. Kuder , 491 A.2d 1286, 1290 (D.C. 1991)). The party claiming the existence of a factual dispute regarding arbitrability bears the burden of requesting a hearing. Id. (citing Ex parte Greenstreet, Inc. , 806 So.2d 1203, 1207 (Ala. 2001)). Absent a request, “any error in the trial court’s not holding a n evidentiary hearing is waived” on appeal. Brake Masters Sys., Inc. v. Gabbay , 206 Ariz. 360, 365, ¶ 15 (App. 2003) (citing Hahn v. Pima

C ty

. , 200 Ariz. 167, 172, ¶ 13 (App. 2001), and Trustmark Ins. v. Bank One,
Ariz., NA , 202 Ariz. 535, 543, ¶ 38 (App. 2002))

.

¶38 The record reflects Appellants made only a passing reference to holding an evidentiary hearing in their motion s for a new trial and to
amend the order denying the motion to compel arbitration as to the Siblings. And the evidence Appellants assert ed as creat ing a genuine issue of material fact was almost wholly contained in Beus’ affidavit, which the

trial court explicitly reviewed

, referenced , and apparently rejected in its

order denying Appellants’ motion to compel the Siblings to arbitration.

F urthermore, the record reflects the court heard oral argument and

reviewed hundreds of pages of the parties’ pleadings and supporting documentation and gave the matter adequate consi deration after taking it

under advisement. When the court deferred its de cision on Patrick’s obligation to participate in arbitration to a later date, Appellants were granted a second opportunity to provide additional briefing and exhibits and participate in oral argument. At no time did they request an evidentiary hearing.

¶39 With regard to the S iblings, Appellants’ obscure re ference to an evidentiary hearing was both untimely

— occurring for the first time in

motions filed after the trial court ruled on the motion to compel the Siblings
to arbitration, see Brake Masters , 206 A riz. at 365, ¶ 15

— and superfluous,

with out reference to additional or previously undiscovered , relevant

evidence not already contained in the robust record up on which the court

b a se d its ruling. With regard to Patrick, Appellants did not request a hearing at all. On this record, Appellants waived any claims of error regarding the failure to hold an evid entiary hearing.TURLEY et al. v. BEUS et al.

Decision of the Court

16 CONCLUSION

¶40 T he trial court’s denial of Appellants’ motion to compel

arbitration is affirmed as to all Appellees

.

¶41 Both parties r equest an award of attorneys’ fees on appeal. Appellants cite A.R.S. § 12

- 3014(E) as the authority for their request. This

section authorizes an award of fees to an arbitrator who is determined to be immune from civil liability. Because we hold th e par ties did not have an

enforceable arbitration agreement, this section does not apply, and Appellants request is denied

. Appellees request attorneys’ fees pursuant to

A.R.S. § 12

- 341.0 1(A)

. In our discretion, we deny Appellees’ request.
However, as the su ccessful parties , Appellees are awarded their costs on appeal pursuant to A.R.S. § 12

- 341 and upon compliance with ARCAP 21(b).