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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARIZONA COURT OF APPEALS

DIVISION ONE

CALIENTE CONSTRUCTION INC., an Arizona corporation,

Plaintiff/Appellee, 

v.

WILDFLOWER BREAD COMPANY L.L.C., a Delaware limited liability 

company; 3410 GATEWAY BOULEVARD, L.L.C., a Delaware limited 

liability company, Defendants/Appellants. 

No. 1 CA-CV 19-0824 

Appeal from the Superior Court in Yavapai County

No. P1300CV201900074 

The Honorable David L. Mackey, Judge, Retired

VACATED AND REMANDED

COUNSEL

Caliente Construction, Inc., Tempe

By Kirk H. Hays

Counsel for Plaintiff/Appellee

Udall Shumway PLC, Mesa

By James B. Reed, Joel E. Sannes, Carson T.H. Emmons 

Counsel for Defendants/Appellants

FILED 11-17-2020
CALIENTE v. WILDFLOWER et al.

Decision of the Court

2 

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which Presiding 

Judge Jennifer M. Perkins and Judge Michael J. Brown joined.

G A S S, Judge:

¶1 Defendants, Wildflower Bread Company, L.L.C. and 3410 

Gateway Boulevard, L.L.C. (collectively, Wildflower), appeal from an order 

denying their motion to stay the superior court proceedings and compel 

arbitration. Because the claim against Wildflower is subject to a binding 

arbitration clause, we vacate the order and remand for further proceedings 

consistent with this decision.

FACTUAL AND PROCEDURAL HISTORY

¶2 Wildflower contracted with Caliente Construction, Inc. to 

construct a commercial restaurant. The contract required Caliente to submit 

monthly payment applications to Wildflower. 

¶3 Caliente submitted a payment application for $161,715.88. 

After Wildflower failed to pay the amount or object in writing, Caliente sent 

a demand letter. Forty-nine days later, Caliente recorded a mechanics’ lien. 

Forty-eight days after that, Caliente brought this action to foreclose the 

mechanics’ lien and assert a claim under Arizona’s Prompt Pay Act (PPA). 

¶4 Under the PPA, owners must make progress payments to 

contractors “on the basis of a duly certified and approved billing or estimate 

of the work performed and the materials supplied” on a thirty-day billing 

cycle unless they specify a different billing cycle. See A.R.S. § 32-1182.A.1 In 

general, owners must make these payments “within seven days after the 

date the billing or estimate is certified and approved.” Id. A billing or 

estimate is deemed certified and approved after fourteen days unless the 

owner objects in writing for any statutory reason. A.R.S. § 32-1182.D. 

1 After Caliente filed its PPA claim, the legislature renumbered the 

applicable provision without any relevant, substantive changes. See 2019 

Ariz. Sess. Laws, ch. 145, §§ 39, 43 (1st Reg. Sess.). We cite the current 

statute.
CALIENTE v. WILDFLOWER et al.

Decision of the Court

3 

¶5 Caliente moved for summary judgment, alleging its payment 

application was deemed approved when Wildflower failed to object within 

fourteen days. See id. Wildflower cross-moved to stay the superior court 

proceedings and compel arbitration under A.R.S. § 12-3007, arguing

Caliente’s claims were subject to the contract’s arbitration clause. The

superior court denied Wildflower’s motion, finding arbitration would alter 

Caliente’s right to prompt payment under subsection 32-1182.P. 

¶6 Wildflowertimely appealed. This court has jurisdiction under 

Article 6, Section 9, of the Arizona Constitution, and A.R.S. § 12-2101.01.A.1. 

ANALYSIS

¶7 This court reviews de novo the denial of a motion to compel

arbitration. Nat’l Bank of Ariz. v. Schwartz, 230 Ariz. 310, 311, ¶ 4 (App. 2012). 

“Although it is commonly said that the law favors arbitration, it is more

accurate to say that the law favors arbitration of disputes that the parties have 

agreed to arbitrate.” S. Cal. Edison Co. v. Peabody W. Coal Co., 194 Ariz. 47, 51, 

¶ 11 (1999) (emphasis added). The parties’ contractual language determines

the scope of the arbitration agreement. See Clarke v. ASARCO Inc., 123 Ariz. 

587, 589 (1979). Arbitration clauses are “construed liberally and any doubts

as to whether or not the matter in question is subject to arbitration should

be resolved in favor of arbitration.” New Pueblo Constructors, Inc. v. Lake

Patagonia Recreation Ass’n, Inc., 12 Ariz. App. 13, 16 (1970). 

¶8 Here, the contract requires Caliente and Wildflower to 

mediate any claim, dispute, “or other matters in controversy arising out of 

or related to the [c]ontract.” The parties must arbitrate any claim subject to, 

but not resolved by, mediation. The contract defines a claim as: 

a demand or assertion by one of the parties seeking, as a 

matter of right, payment of money, or other relief with respect 

to the terms of the [c]ontract. The term “Claim” also includes 

other disputes and matters in question between the Owner 

and Contractor arising out of or relating to the [c]ontract. 

This language denotes a broad arbitration clause because “’[r]elating to’ is

broader than ‘arising from.’” See Sun Valley Ranch 308 Ltd. P’ship ex rel. 

Englewood Props., Inc. v. Robson, 231 Ariz. 287, 292, ¶ 14 (App. 2012). 

¶9 Caliente argues the contract defines two types of claims and

its statutory PPA claim does not meet either definition. The first is a 

demand for “payment of money or other relief with respect to the terms of

the [c]ontract.” Caliente contends its PPA claim is a statutory demand for
CALIENTE v. WILDFLOWER et al.

Decision of the Court

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payment, not a demand for payment under the contract. The second

“includes other disputes and matters in question . . . arising out of or

relating to the [c]ontract.” Caliente argues the second definition necessarily

excludes “demands for payment” because those are included in the first

sentence. According to Caliente, this separation means only demands for

payment under the contract are subject to arbitration but its statutorily-based

PPA claim—which is based on the contract with Wildflower—is not.

¶10 The contract does define two types of claims. The distinction, 

however, is between disputes over “relief with respect to the terms of the

[c]ontract,” and those “arising out of or relating to the [c]ontract.” In Dusold

v. Porta-John Corporation, this court considered whether a similar contractual

provision requiring the parties to arbitrate “any controversy or claim

arising out of, or relating to this agreement” applied to the plaintiff’s tort

claim. See 167 Ariz. 358, 359 (App. 1990). The Dusold court held a dispute

arises out of, or relates to, a contract if the resolution “requires a reference

to or construction of some portion of the contract itself.” Id. at 362. 

¶11 Contrary to Caliente’s arguments, its PPA claim is a dispute

“arising out of or relating to the [c]ontract.” See id. The contract required 

Caliente to provide a schedule of values to be used “as a basis for reviewing 

[its] Applications for Payment.” Caliente’s payment applications must be 

itemized and prepared in accordance with this schedule and “supported by 

such data substantiating [Caliente’s] right to payment as [Wildflower] may 

require, such as copies of requisitions from Subcontractors and material 

suppliers.” Resolution of Caliente’s PPA claim, therefore, “requires a 

reference to” the contract, making the claim subject to arbitration. See id.

¶12 Caliente, however, contends the claim does not require 

reference to the contract because Wildflower cannot challenge the amount

owed after it failed to object timely to the payment application. But this

argument goes to the merits of Caliente’s claim and ignores the issue on

appeal—whether the claim is subject to arbitration. Simply asserting 

Wildflower owes $161,715.88 in a complaint does not make it so. Regardless 

of the forum, determining whether Caliente made a proper payment 

application, whether Wildflower waived any objection, and what—if 

anything—Wildflower owes, all require reference to the contract. 

¶13 Caliente also argues the arbitration clause does not apply to

the mechanics’ lien and PPA claims because they are purely statutory, citing

as persuasive authority Masaryk v. Mendelsohn Construction, LLC. See 1 CACV 13-0085, 2015 WL 1456636 (Ariz. App. Mar. 31, 2015) (mem. decision). 

Masaryk, however, dealt with a separate issue—whether a PPA claim is 
CALIENTE v. WILDFLOWER et al.

Decision of the Court

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“separate and distinct” from a breach of contract claim. See id. at *2–3, ¶¶ 

10–12. Here, in contrast, we must decide if the PPA claim “requires a 

reference to or construction of some portion of” the contract. See Dusold, 167 

Ariz. at 362. Masaryk, therefore, is not persuasive. Further, this court has 

previously applied similarly broad arbitration provisions to statutory 

claims. See, e.g., Estate of DeCamacho ex rel. Guthrie v. La Solana Care & Rehab, 

Inc., 234 Ariz. 18, 23–25, ¶¶ 19–27 (App. 2014) (claims brought under the 

Adult Protective Services Act); Sun Valley, 231 Ariz. at 295, ¶¶ 30–31 (claims 

to dissolve a partnership under § 29-345). 

¶14 The superior court concluded arbitrating the PPA claims 

would violate subsection 32-1182.P. We disagree. The arbitration 

requirement does not alter or delay Caliente’s right to receive payment. It 

only identifies the venue where Caliente must bring its claim. The superior 

court’s conclusion also is contrary to language in the PPA. The PPA 

expressly contemplates arbitration of PPA claims. See A.R.S. §§ 32-1182.S 

(“In any action or arbitration brought to collect payments . . . pursuant to this 

section, the successful party shall be awarded costs and attorney fees in a 

reasonable amount.”) (emphasis added), -1183.J (same), -1185.F (same). 

¶15 Finally, the mechanics’ lien claim is moot because the lien was 

released and replaced with a bond. Once the underlying right to payment 

is resolved, any amount owed will come from the bond.

ATTORNEY FEES ON APPEAL

¶16 Both parties request attorney fees on appeal. We deny 

Caliente’s request because it is not the successful party on appeal. See A.R.S. 

§ 32-1182.S. We also exercise our discretion and decline to award 

Wildflower its attorney fees on appeal, but as the successful party on 

appeal, Wildflower is entitled to recover its reasonable costs under § 12-342 

upon compliance with ARCAP 21. 
CALIENTE v. WILDFLOWER et al.

Decision of the Court

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CONCLUSION

¶17 For the above reasons, we vacate the order denying 

Wildflower’s motion to stay proceedings and compel arbitration. On 

remand, the superior court shall stay its proceedings pending arbitration of 

the PPA claim.