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1 Reports. Please see Rule 12

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6

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7

SIMON RODRIGUEZ and 8 JUAN M. RODRIGUEZ, 9

Plaintiffs

- Appellees, 10

v. A

- 1

- CA

- 36223 11

J.G. FORRESTER , 12

Defendant

- Appellant. 13

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 14 Jane Shuler

- Gray, District Judge 15

Marrs Griebel Law, Ltd. 16 Clinton W. Marrs 17 Albuquerque, NM 18
for Appellees 19
Sutin, Thayer & Brown, P.C. 20 Frank C. Salazar 21 Jacqueline K. Kafka 22 Albuquerque, NM 23
for Appellant 24

MEMORANDUM OPINION 25

HANISEE , Judge. 262

{1} Defendant appeals from the district court’s denial of his motion to compel 1
arbitration. We affirm in part and reverse in part

. 2

BACKGROUND 3

{ 2 } Defendant J.G. Forrester (Forrester) is the sole owner and managing partner 4
of Black Gold Resources, Inc. (Black Gold), a Tennessee company incorporated in 5

December 2013. Forrester serves as president, chief executive officer, director, and 6
registered agent of Black Gold. Black Gold is the managing partner of Roaring 7

Fork JV (Roaring Fork), a Tennessee general partnership created by Forrester in 8

2013 to drill wells for oil and gas in Kansas , Texas, and Oklahoma

. 9

{ 3 } In December 2014, Plaintiff Juan Rodriguez (Son) signed a subscription 10
agreement (the Agreement) with Forrest er to purchase a “ U nit” in the Roaring 11

Fork partnership

. Plaintiff Simon Rodriguez (Father) transferred $60,000 to Son’s 12
checking account so that Son could fund the investment. Father was not a signatory 13
to the Agreement
, which contains an arbitration provision requiring “all 14
controversies, disputes, or claims pertaining in any manner whatsoever [ to ] be 15
resolved exclusively through binding arbitration. ” 16

{ 4 } Plaintiffs commenced this action against Forrester and one of his emplo yees 1 17
in January 2016 alleging, among other things, a violation of the New M exico 18

Uniform Securities Act and the New Mexico Unfair Practices Act . Pursuant to the 19

1 The second named defendant has since been dismissed with prejudice from the case.3

complaint, Plaintiffs “seek to recover $60,000 they lost because of [ Forrester’s ] 1

unlawful solicitation of their investment in the securities of Black Gold

. . . and 2

[ Forrester’s ] unlawful sale of the securities to them.” 3

{ 5 } Forrester moved to dismiss Plaintiffs’ complaint for lack of personal 4
jurisdiction or, in the alternative, to stay the proceedings and compel arbitration in 5
accordance with the terms of the Agreement

. With respect to t he latter, Forrester 6
argued that the Agreement’s arbitration provision covered “all the claims brought 7
by Plaintiff [sic]” and that the “proper defe ndants” in the action were not Forrester 8

and hi s employee but rather “the entities that sold [Son] the Roaring Fork Unit and 9
signed the Agreement: Black Gold and Roaring Fork

. ” In sum, Plaintiffs’ effort to 10
avoid the arbitration clause by “attempting to hold [Forrester] personally liable for 11
actions allegedly taken by the Black Gold entity ” was “an impermissible tactic” 12
that the district court should reject. 13

{ 6 } The district court denied Forrester ’s moti on to compel arbitration on the 14

basis that Father and Son “have chosen to sue individually J.G. Forrester ” and that 15
“they have not sued . . . Roaring Fork and Black Gold.” T he court certified its 16

decision for interlocutory appeal
, which we granted

. 17

DISCUSSION 18

I. Standard of Review 194

{ 7 } As an initial matter, it was unnecessary for the district court to certify its 1
order denying Forrester’s motion to compel arbitration for interlocutory appeal. 2

The New Mexico Uniform Arbitration Act, NMSA 1978, §§ 44

- 7A

- 1 to

- 32 (2001) 3

states that
, “[a ]n appeal may be taken from .

. . an order denying a motion to 4
compel arbitration[.]” Section 44

- 7A

- 29(a)(1). 5

{ 8 } We apply a de novo standard of review to a district court ’ s denial of a 6

motion to compel arbitration

. Heye v. Am. Golf Corp. , 2003

- NMCA

- 138
, ¶ 4, 134 7

N.M. 558, 80 P.3d 495. Similarly, whether the parties have agreed to arbitrate 8
presents a question of law, and we review the applicability and construction of a 9
contractual provision requi ring arbitration de novo. Santa Fe Tech s. , Inc. v. Argus 10

N etworks, Inc. , 2002

- NMCA

- 030, ¶ 51, 131 N.M. 772, 42 P.3d 1221. 11

{ 9 } The right to directly appeal an order denying a motion to compel arbitration 12

reflects New Mexico’s strong preference for resolving disputes through arbitration 13
where parties have, as a matter of contract, agreed to that form of dispute 14

resolution. See Horne v. Los Alamos Nat’l Sec., L.L.C. , 2013

- NMSC

- 004, ¶ 16, 15
296 P.3d 478 (explaining that “there is st rong public policy in this state in favor of 16
resolution of disputes through arbitration” and that “[w]hen a party agrees to a non

17
judicial forum for dispute resolution, the party should be held to that agreement” 18

( omission , internal quotation marks, and ci tation s omitted)) ; Christmas v. 19
Cimarron Realty Co. , 1982

- NMSC

- 079, ¶ 7, 98 N.M. 330, 648 P.2d 788 205

(“Arbitration is a contractual remedy for the settlement of disputes by extrajudicial 1
means.”). Much as parties cannot be forced to arbitrate when they have not 2
contractually agreed to do so
, see Heye , 2003

- NMCA

- 138, ¶ 8 (explaining that “a 3
legally enforceable contract is a prerequisite to arbitration [ and that ] without such a 4
contract, parties will not be forced to arbitrate”), “w hen parties have agreed to 5

arbitrate, the courts must compel arbitration.” Santa Fe Technologies , Inc. , 2002

- 6

NMCA

- 030, ¶ 51. 7

II. T he District Court Erred in Denying Forrester ’s Motion to Compel 8 Arbitration as to Son 9

{1 0 } The sole question before us is whether Forrester may compel Father and Son 10

to arbitrate the ir claims. In the district court, Plaintiffs argued that the only two 11
parties to the Agreement were Son and Roaring Fork and that there existed in the 12

record “no contract of any kind, whether arbitration agreement or otherwise,” 13

between Plaintiffs and Forrester . The district court agreed with Plaintiffs and 14

denied Forrester ’s motion to compel arbitration , reasoning that Plaintiffs had 15
“chosen to sue individually J.G. Forreste r ” and that “they have not sued . . . 16
Roaring Fork and Black Gold.” We reverse the district court’s ruling with respect 17

to Son. As to Father, we agree that as a non signatory to the Agreement and on the 18

record before us , Father cannot be compelled to arbitrate. We explain. 19

{ 1 1} We begin by addressing the district court’s treatment of Plaintiffs jointly 20
notwithstanding that , as between the two, Son was the only signatory to the 216

Agreement. In Monette v. Tinsley , 1999

- NMCA

- 040, ¶¶ 1, 6, 12, 126 N.M. 748, 1
975 P.2d 361, this Court addressed a similar situation where one plaintiff, Donald 2
Monette, was a signatory to an agreement containing an arbitration provision that 3
the defendants were attempting to enforce against Donald and his brother and co

4
plaintiff, Charles Monette, who was not a signatory to the agreement. We affirmed 5
the district court’s denial of the motion with respect to Charles, concluding that 6
Charles was not a party to the contract and that the def endants had failed to show 7
why Charles, a nonsignatory
, should be bound to arbitrate in that case. Id. ¶¶ 9, 12. 8

Monette thus illustrates that determinations regarding whether a plaintiff can be 9
compelled to arbitrate must take into account whether the plaintiff is a signatory or 10
nonsignatory to a n agreement to arbitrate

. 11

{1 2 } The record in this case reflects that the district court did not consider how 12
each Plaintiff’s relationship to the Agreement

— i.e., Son’s status as a signatory, 13
and Father’s status as a nonsignatory

— separately affected whether or not he could 14
be compelled to arbitrate his claims against Forrester

. We thus proceed with 15
separate analyses of whether Son, on the one hand, and Father, on the other, may 16
be compelled to arbitrate

. 17

A

. Son is a Signatory to the Agreement an d Must Arbitr ate His Claims 18

{1 3 } When faced with a motion to compel arbitration, a district court “is 19
compelled to order the parties to arbitrat e unless it finds that there is no 207

enforceable agreement to arbitrate

. ” Alexander v. Calton & Assocs., Inc. , 2005

- 1

NMCA

- 034, ¶ 9, 137 N.M. 293, 110 P.3d 509. “ Arbitration agreements are a 2
species of contract, subject to the princip les of New Mexico contract law.” L.D. 3

Miller Const r ., Inc. v. Kirschenbaum , 2017

- NMCA

- 030, ¶ 18, 392 P.3d 194. 4
“Courts are to interpret the provisions of arbitration agreements by the rules of 5
contract law and are to apply the plain meaning of the language utilized, in order to 6
give effect to the agreements struck by the parties.” Horne , 2013

- NMSC

- 004, ¶ 16 7
(internal quotation marks and citation omitted ). 8

{1 4 } T he Agreement for the purchase of one unit in Roaring Fork was “entered 9

into .

. . between Black Gold
. . ., as [m]anaging [v]enturer of the Roaring Fork .

. . , 10

and [ Son. ]” The signatories to the Agreement were “J.G. Forrester, President” on 11

behalf of Black Gold, and Son. The purpose of the Agreement was to formalize a 12
relationship between Son and Forrester ’s company, Black Gold
, whereby Son 13
gained a working interest in up to two wells being drilled in Kansas by Roaring 14

Fork , the general partnership of which Forrester’s company was the managing 15

partner . Son’s working interest of 1.75 percent had the potential to yield him a 16

1.3125 percent net revenue interest in each of the we lls. The Agreement’s broadly 17

worded arbitration clause provided that : 18
It is agreed that any and all controversies, disputes, or claims 19 pertaining in any manner whatsoever to this A greement or the 20 purchase of Units in the Joint Venture shall be resolved exclusively by 21 binding arbitration .

. . . This agreement to arbitrate

. . . shall be 228

broadly interpreted and covers all controversies, disputes, and claims 1 arising out of or relating to a U nit purchase including, but not limited 2 to[,] contract claims, tort claims, and statutory claims or any 3 combination of claims. 4

B y its plain language, the arbitration clause cover s all types of claims

— contract, 5
tort, statutory, or other

— that may hav e accrued both before and after the parties 6
entered the Agreement, so long as such claims “pertain[] in any manner 7

whatsoever” and/or “aris[e] out of or relat[e] to” not only the Agreement itself but 8

also Son’s purchase of the unit , i.e., what led to and r esulted

— or failed to result

— 9
from the purchase

. Indeed, Son conceded in the hearing before the district court 10
that “unquestionably, [Son] would be required to arbitrate [ his ] claims if he chose 11
to bring claims against Roaring Fork.” 12

{1 5 } Son contends, however, that he cannot be compelled to arbitrate his claims 13
against Forrester because he sued Forrester in his individual capacity ( i.e., J.G. 14

Forrester ) and not in his corporate capacity ( i.e., J

. G. Forrester, President ). He 15
argues that constr uing the Agreement to include Son’s claims against Forrester “for 16
his own, individual[] misconduct” would impermissibly “fashion a new 17
agreement” between Son and Forrester that does not exist. We disagree. 18

{1 6 } It is well established that “ [p] arties contracting to resolve disputes by 19
arbitration are bound by their agreement.” Luginbuhl v. City of Gallup , 2013

- 20

NMCA

- 053, ¶ 25, 302 P.3d 751 (internal quotation marks and citation omitted). It 21
is also true that “[g] enerally, third parties who are no t signatories to an arbitration 229

agreement are not bound by the agreement and are not subject to, and cannot 1
compel, arbitration. ” Horanburg v. Felter , 2004

- NMCA

- 121, ¶ 16, 136 N.M. 435, 2

99 P.3d 685. However, there are numerous exceptions to this rule, and even a party 3
who is not a signatory to an arbitration agreement may, in certain circumstances, 4
enforce an agreement to arbitrate or be compelled to arbitrate

. See Damon v. 5

StrucSure Home Warranty, LLC , 2014

- NMCA

- 116, ¶¶ 11, 16 , 338 P.3d 123 6
(identifying the “five theories for binding nonsignatories to arbitration agreements” 7
that federal courts have recognized and concluding that one of the theories

— 8
equitable estoppel

— applied to prevent the plaintiff in that case, a nonsignatory to 9

the arbit ration agreement, from avoiding arbitration (internal quotation marks and 10

citation omitted))

. Thus, when a district court is presented with a motion to compel 11
arbitration and must determine whether an arbitration agreement is enforceable 12
between the partie s, the question of enforceability cannot be answered simply by 13
comparing the case’s caption to the agreement’s signature lines to confirm 14
identicality of the parties. Rather, the district court must determine whether the 15
agreement may be enforced by the pa rty seeking to compel arbitration against the 16
party resisting arbitration despite the fact that one party

— either the party seeking 17
to compel or the party seeking to avoid arbitration

— is not a signatory to the 18

agreement. The question is ultimately one of in tent: did the parties in the instant 19

case intend to decide their claims through arbitration? See Mitsubishi Motors Corp. 2010

v. Soler Chrysler

- Plymouth, Inc. , 473 U.S. 614, 626 (1985) (explaining that “the 1
first task of a court asked to compel arbitration of a dispute is to determine whether 2
the parties agreed to arbitrate that dispute” because “as with any other contract, the 3
parties’ intentions control”). 4

{1 7 } Here, Son agreed to arbitrate “any and all controversies, disputes, or claims 5
pertaining in any manner whatsoever to this A greement or the purchase of Units in 6

the Joint Venture.” Son’s argument that he only agreed to arbitrate any claims he 7
may have ag ainst Roaring Fork and that he ca nnot be compelled to arbitrate by 8
anyone other than Roaring Fork is unavailing. We have no difficulty concluding 9

that if Son had named Forrester in his corporate capacity (i.e., J.G. Forrester, 10

President) as a defendant in the instant suit, Forrester would be able to compel 11
arbitration of Son’s claims based on his clear status as a signatory to the 12
Agreement. The question , here, is simply whether Son may avoid the Agreement’s 13
arbitration provision by a stratagem o f nam ing Forrester in his individual, rather 14
than corporate, capacity in the complaint. 15

{1 8 } In arguing that he has “stated claims against Mr. Forrester for his own 16
personal statutory and tortious misconduct[,]” Son appears to either confuse or 17
erroneously conflate suits against an individual corporate agent for personal 18
liability and suits against a person in their personal, rather than corporate, capacity. 19
Citing and devoting much discussion to cases such as Kaveny v. MDA Enters

. , Inc.
, 2011

2005

- NMCA

- 118, 138 N.M. 432 , 120 P.3d 854, Stinson v. Berry , 1997

- NMCA

1

076, 123 N.M. 482, 943 P.2d 129, and Kreischer v. Armijo , 1994

- NMCA

- 118, 118 2
N.M. 671, 884 P.2d 827, Son argues that “[i]t is axiomatic that if an agent of a 3
business entity directs or actively participates in th e commission of the entity’s 4
statutory or tortious violation, the individual agent can be held personally liable.” 5
He additionally argues that “[w]hen acting as an agent of a business enterprise, the 6

individual actor is not free to violate his or her statu tory or common law 7
obligations” and that an individual may be held individually liable “even when the 8
individual is acting within the scope of his or her corporate duties[.]” But the fact 9
that corporate agents may be held personally liable for their own individual 10
wrongdoing within the scope of their corporate duties says nothing about whether 11

corporate agent s may enforce an arbitration agreement to which they are 12
signator ies , despite that t he y ha ve been named in their individual capacit ies in the 13
plainti ff’s complaint . Son’s reliance upon the cited cases thus not only is misplaced 14

but also evi nces that his claims are, in actuality , against Forrester in his corporate, 15
not individual, capacity. 16

{ 19 } In light of the breadth of the Agreement’s arbitration provision and the fact 17
that all of Son’s claims against Forrester (1) pertain to, arise under, or relate to the 1812

Agreement 2 or Son’s U nit purchase, and (2) involve conduct relating to Forrester’s 1
behavior in his corporate, not personal , capacity, we conclud e that t o allow Son to 2

avoid the A greement would be to impermissibly eviscerate or nullify the 3
underlying agreement into which Son entered

. Thus, we reverse the district court ’s 4

denial of Forrester’s motion to compel arbitration with respect to Son. 5

B

. Father Was Not a Party t o t he Agreement and Is Not Compelled to 6 Arbitrate His Claims 7

{ 20 } Because arbitration is a matter of contract, “a party cannot be required to 8
submit to arbitration any dispute which he has not agreed so to submit.” Clay v 9

N.M. Titl e Loans, Inc. , 2012

- NMCA

- 102, ¶ 14, 288 P.3d 888 (internal quotation 10

marks and citation omitted). Thus, f or the same reason a district court must order 11
parties to arbitrate where it concludes that an enforceable agreement to arbitrate 12

exists, “if the court finds that there is no enforceable agreement, it may not order 13
the parties to arbitrate.” Alexander , 2005

- NMCA

- 034, ¶ 9 (alterations, omission, 14
internal quotati on marks, and citation omitted); see § 44

- 7A

- 8(c)

. 15

{ 2 1} It is undisputed that Fath er is a nonsignatory to the Agreement. Unlike Son, 16
Father never agreed to arbitrate any claims he might have related to Son’s U nit 17
purchase and the Agreement
, regardless of against whom those claims were 18
brought. On the record before us, it seems Father’s only role in this matter was to 19

2 Indeed, we find puzzling Son’s attempt to repudiate the Agreement at the same time he is suing Forrester to recover under the Agreement based on Forrester ’s alleged breach of the Agreement.13

l end Son the money by which Son acquired the one

- unit interest. W e state no 1
opinion regarding the viability of Father’s claims against Forrester and note only 2

that Forrester makes no argument that any exception for binding a nonsignatory 3
applies to Father. Indeed, Forrester’s p osition in the district court was that “[t]here 4
is no factual or legal basis for [Father’s] claims [,] ” i.e., by attacking the merits of 5
Father’s claims, not whether they are arbitrable. Because Forrester fails to identify 6
any basis upon which Father, an undisputed nonsignatory to the Agreement, may 7
be bound by the Agreement, we affirm that portion of the district court’s ruling 8
denying Forrester’s motion to compel arbitration as against Father

. 9

C ONCLUSION 10

{ 22 } For the foregoing reasons, we affirm the district court’s denial of Forrester ’s 11
motion with respect to Father, reverse with respect to Son, and remand for further 12
proceedings in accordance with this opinion. 13

{ 23 } IT IS SO ORDERED. 14

______________________________ 15 J. MILES HANISEE, Judge 16

WE CONCUR: 17

_______________________________ 18 LINDA M. VANZI, Chief Judge 19

_____________________________________ ______________ _ 2014

DANIEL J. GALLEGOS, Judge Pro Tempore 1