SJH 11 v. Dowbuilt

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 29, 2026
• Docket: 25-8037
• Status: Unpublished

Opinion

Appellate Case: 25-8037 Document: 32-1 Date Filed: 05/29/2026 Page: 1

FILED UNITED STATES COURT OF APPEALS United States Court of Appeals Tenth Circuit FOR THE TENTH CIRCUIT _________________________________ May 29, 2026

Christopher M. Wolpert SJH 11 LLC, a Delaware limited liability Clerk of Court company,

Plaintiff - Appellee,

v. No. 25-8037 (D.C. No. 1:25-CV-00018-SWS) DOWBUILT, INC., a Washington (D. Wyo.) corporation and John Does 1-10,

Defendants - Appellants. _________________________________

ORDER AND JUDGMENT * _________________________________

Before MORITZ and FEDERICO, Circuit Judges, and ALLEN, District Judge **. _________________________________

During an arbitration between plaintiff SJH 11 LLC and nonparty SDI LLC—

which is ostensibly owned by defendant Dowbuilt, Inc.—the arbitrator ruled that SJH

was not required to arbitrate certain of its claims against Dowbuilt and instead could

file those claims in a court of competent jurisdiction. After SJH filed this action,

Dowbuilt moved to compel arbitration. The district court denied the motion and

Dowbuilt appeals.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). ** The Honorable Ann Marie McIff Allen, United States District Judge for the District of Utah, sitting by designation. Appellate Case: 25-8037 Document: 32-1 Date Filed: 05/29/2026 Page: 2

We affirm. Contrary to Dowbuilt’s strained interpretation of the arbitrator’s

order, the arbitrator did in fact determine that SJH is not required to arbitrate the

claims at issue. Since the parties do not dispute that questions of arbitrability were

delegated to the arbitrator, we are bound by that arbitrability ruling.

Background

In 2021, SJH and SDI entered into two identical contracts related to the

development of two properties in Jackson, Wyoming. Although the contracts were

solely between SJH and SDI, SDI included a statement in each that it was doing

business as Dowbuilt. The contracts required all disputes to be first mediated and

then, if unresolved, arbitrated by the American Arbitration Association (AAA) in

accordance with its Construction Industry Arbitration Rules.

SJH terminated the contracts in September 2022. 1 It refused to pay SDI’s final

invoices, and SDI filed for arbitration in November 2023. Referring to itself in its

filings as either doing business as Dowbuilt or simply as Dowbuilt, SDI asserted

claims for breach of contract and unjust enrichment. In February 2024, SJH answered

and filed counterclaims against SDI for breach of contract, breach of the implied

covenant of good faith and fair dealing, and conversion.

On December 6, 2024, SJH filed a motion under Construction Industry

Arbitration Rule 9(a), which provides that “[t]he arbitrator shall have the power to

1 SJH’s complaint alleges that it did so because of what it viewed as SDI’s suspicious billing practices. But its actual termination was for convenience based on a contract provision permitting SJH to “at any time, terminate the [c]ontract for [its] convenience and without cause.” App. vol. 1, 93; see also id. at 129 (same). 2 Appellate Case: 25-8037 Document: 32-1 Date Filed: 05/29/2026 Page: 3

rule on his or her own jurisdiction.” App. vol. 2, 333. As relevant here, SJH’s Rule 9

motion asked the arbitrator to make two findings: “(1) that the arbitration is limited

to claims between the parties to the construction contracts (SDI . . . and SJH); [and]

(2) [that] claims against Dowbuilt[,] . . . or any counterclaims or defenses in response

to such claims, are outside the scope of this action.” Id. at 373.

On December 18, the arbitrator conducted a telephone conference on SJH’s

motion. This conversation was not recorded or transcribed. According to Dowbuilt,

“[t]he parties and the arbitrator agreed during the hearing that Dowbuilt would be

joined to the [a]rbitration.” App. vol. 1, 64. Dowbuilt emailed the arbitrator later the

same day confirming its consent to join the arbitration. But SJH asserts that it never

consented to Dowbuilt joining the arbitration with regard to every possible claim it

might have against Dowbuilt; it merely acknowledged during the conference that

some of its February 2024 counterclaims involved Dowbuilt’s conduct. Indeed, SDI’s

counsel stated in a declaration that SJH did not share during the December 18 phone

conference that it planned to assert new claims against Dowbuilt.

The next day, December 19, the arbitrator issued an order denying SJH’s Rule

9 motion not on the merits but as “untimely under the provisions of the AAA

Construction Industry Arbitration Rule 9[(c)],” id. at 150, which requires such

motions to be submitted “no later than the filing of the answering statement,” App.

vol. 2, 333. The order noted SJH’s statement “that some of its counterclaims were

against Dowbuilt . . . , an entity distinct from [SDI]”; said that “the parties have

treated SDI . . . and Dowbuilt interchangeably” throughout the arbitration; and noted

3 Appellate Case: 25-8037 Document: 32-1 Date Filed: 05/29/2026 Page: 4

Dowbuilt’s consent “to be a party in this arbitration for purposes of defending any

claims that [SJH] has against it.” App. vol. 1, 150.

On December 30, SJH filed amended counterclaims in the arbitration, seeking

to add new fraud and other tort claims against Dowbuilt. The next day, SDI and

Dowbuilt moved to strike the amended counterclaims as untimely. Later the same

day, SJH replied, arguing that its amended counterclaims were, as “a matter of due

process,” required by the denial of its Rule 9 motion. Id. at 252. SJH stated it “did

not agree to Dowbuilt . . . being a party, quite the contrary, and has not treated these

two parties as interchangeable,” despite SDI “taking the unusual approach of

admitting SDI and Dowbuilt . . . are alter egos of one another.” Id. SJH further

argued that its additional, “separate” claims against Dowbuilt were “outside of the

contract.” Id. Adding Dowbuilt to the arbitration, SJH stated, “gets Dowbuilt . . . the

benefit of not being pursued in . . . state or federal court.” Id.

On January 2, 2025, the arbitrator issued an order striking SJH’s amended

counterclaims as untimely under Construction Industry Arbitration Rule 6(b), which

provides that “[a]fter the arbitrator is appointed[,] no new or different claim or

counterclaim may be submitted without the arbitrator’s consent.” Id. at 258 (quoting

App. vol. 2, 332). The arbitrator described the December 19 order denying SJH’s

Rule 9 motion as an order “that [SJH’s] pending claims against Dowbuilt, . . . as

represented in [SJH’s] counterclaim dated February . . . 2024, be included in this

arbitration.” Id. So, the arbitrator explained, SJH could still pursue its February 2024

counterclaims against Dowbuilt; it just couldn’t assert any new claims in the

4 Appellate Case: 25-8037 Document: 32-1 Date Filed: 05/29/2026 Page: 5

arbitration.

On January 7, SJH filed a motion for clarification, asking the arbitrator to

“confirm” that the January 2 order didn’t “prevent or otherwise preclude SJH from

pursuing any and all new claims set forth in the [a]mended . . . [c]ounterclaim[s]

against Dowbuilt . . . in a separate proceeding.” Id. at 261. Dowbuilt opposed the

motion, arguing in part that SJH’s additional claims against it were “clearly within

the scope of the [c]ontracts’ arbitration provision[s]” and were therefore waived by

SJH’s failure to include them among the initial February 2024 counterclaims. App.

vol. 2, 468.

The arbitrator issued an order clarifying the January 2 order on January 17,

again characterizing the December 19 order on the Rule 9 motion as allowing SJH’s

February 2024 counterclaims to “proceed against both SDI . . . and Dowbuilt, . . .

based on the representation by SJH that it had been proceeding in its counterclaims

against both entities.” App. vol. 1, 267. But the arbitrator determined that allowing

the February 2024 counterclaims to proceed “d[id] not mandate that SJH is forced to

arbitrate its [other] claims against Dowbuilt . . . in this arbitration or be precluded

from ever asserting those claims.” Id. That was so, the arbitrator reasoned, because

“[t]here is no arbitration agreement between Dowbuilt . . . and SJH.” Id. Thus, the

arbitrator “ordered that SJH retains its right to pursue claims against Dowbuilt . . .

that were not brought in its February . . . 2024 counterclaim[] in a court of competent

5 Appellate Case: 25-8037 Document: 32-1 Date Filed: 05/29/2026 Page: 6

jurisdiction.” 2 Id.

Two days later, SJH filed this action in federal district court against Dowbuilt,

asserting claims for fraud, negligent misrepresentation, conversion, and unjust

enrichment. Several months after that, Dowbuilt filed a motion to compel arbitration.

The district court denied the motion to compel, ruling that it was bound by the

arbitrator’s decision that SJH’s claims, to the extent they were not February 2024

counterclaims, weren’t arbitrable. It additionally ruled that SJH had not consented to

arbitration, that Dowbuilt’s consent was insufficient on its own, and that equitable

estoppel did not support compelling arbitration.

Dowbuilt appeals. 3 See 9 U.S.C. § 16(a)(1) (order denying motion to compel

arbitration is immediately appealable).

Analysis

“We review de novo the decision of the district court to grant or deny a motion

to compel arbitration.” Reeves v. Enter. Prods. Partners, LP, 17 F.4th 1008, 1011

(10th Cir. 2021). The parties agree on the applicable law. “Under the Federal

2 Within hours of the January 17 order, Dowbuilt and SDI backpedaled and sought to consent to SJH’s proposed amended counterclaims, which the arbitrator had previously struck as untimely at Dowbuilt and SDI’s urging in its January 2 order. SJH opposed that attempt, stating it planned to “proceed[] with its claims against Dowbuilt . . . in a court of competent jurisdiction.” App. vol. 2, 546. The arbitrator rejected Dowbuilt and SDI’s belated consent, responding that as things stood, the scheduled hearing would consider only “the claims brought by SDI against SJH and the counterclaims made by SJH in its February . . . 2024 pleading against SDI and Dowbuilt.” Id. at 542. 3 The district court, as it’s required to do, stayed proceedings below while this appeal is pending. See Coinbase, Inc. v. Bielski, 599 U.S. 736, 747 (2023). It appears that the underlying arbitration is stayed, as well. 6 Appellate Case: 25-8037 Document: 32-1 Date Filed: 05/29/2026 Page: 7

Arbitration Act, parties to a contract may agree that an arbitrator rather than a court

will resolve disputes arising out of the contract.” Henry Schein, Inc. v. Archer &

White Sales, Inc., 586 U.S. 63, 65 (2019). “The Act allows parties to agree by

contract that an arbitrator, rather than a court, will resolve threshold arbitrability

questions[,] as well.” Id. And crucially, “[w]hen the parties’ contract delegates the

arbitrability question to an arbitrator, a court may not override the contract.” Id. at

68. That’s because “arbitration is a matter of contract, and courts must enforce

arbitration contracts according to their terms.” Id. at 67.

Here, Dowbuilt accepts that SJH’s contracts with SDI, by electing to apply

AAA arbitration rules, delegated arbitrability questions to the arbitrator. 4 Dowbuilt

also accepts that we would therefore be bound by the arbitrator’s decision on that

point. But according to Dowbuilt, the arbitrator never decided arbitrability. In

support, Dowbuilt focuses on the third paragraph of the January 17 order, which

states that SJH must continue arbitrating its February 2024 counterclaims against

Dowbuilt but will not be “forced to arbitrate its [new] claims against Dowbuilt . . . in

this arbitration or be precluded from ever asserting those claims.” App. vol. 1, 267

(emphasis added). Dowbuilt interprets this language as a ruling that SJH can’t bring

its new claims “in this arbitration,” id. (emphasis added), not a broader ruling about

4 Dowbuilt also affirmatively asked the arbitrator to decide arbitrability. It argued, in response to SJH’s clarification motion, that SJH’s claims against it were waived because they were “clearly within the scope of the [c]ontracts’ arbitration provision[s].” App. vol. 2, 468. In so doing, Dowbuilt asked the arbitrator to decide if SJH’s claims were arbitrable. 7 Appellate Case: 25-8037 Document: 32-1 Date Filed: 05/29/2026 Page: 8

the arbitrability of those claims—for instance, whether they are arbitrable in a

separate arbitration proceeding.

But Dowbuilt’s myopic focus on the third paragraph overlooks the remainder

of the arbitrator’s order. The second paragraph states that “[t]here is no arbitration

agreement between Dowbuilt . . . and SJH.” Id. And there would be no need to

mention that fact if the arbitrator was not deciding arbitrability. And more

importantly, the fourth and final paragraph of the January 17 order explicitly states

“that SJH retains its right to pursue claims against Dowbuilt . . . that were not

brought in its February . . . 2024 counterclaim[] in a court of competent jurisdiction.”

Id. (emphasis added). This is more than a conclusion that SJH’s new claims against

Dowbuilt can’t be brought in this particular arbitration; it’s a conclusion that SJH is

not required to arbitrate its new claims against Dowbuilt.

The broader procedural context preceding the January 17 order corroborates

that conclusion. SJH’s initial Rule 9 motion sought to confirm that it could bring

claims against Dowbuilt outside the arbitration. But at that time, SJH did not tip its

hand that it planned to assert a new batch of noncontractual tort claims against

Dowbuilt. In Dowbuilt’s words, “SJH did not mention during the conference that it

intended to assert new causes of action or to increase its damages claim against either

SDI or Dowbuilt.” Id. at 64. Thus, the discussion between the parties and the

arbitrator at that time was limited to deciding whether SJH’s existing February 2024

counterclaims could proceed against Dowbuilt in the arbitration. And the only

question addressed in the December 19 order was whether “any claims” then pending

8 Appellate Case: 25-8037 Document: 32-1 Date Filed: 05/29/2026 Page: 9

against Dowbuilt were properly within the scope of the arbitration. Id. at 150. The

arbitrator answered that question in the affirmative, based on the parties, and

especially SDI, treating Dowbuilt and SDI as alter egos.

Reading the December 19 order as limited to the February 2024 counterclaims

likewise clarifies the untimeliness rationale of the January 2 order: preventing SJH

from asserting new claims against Dowbuilt so close to the scheduled arbitration

hearing. The January 17 order in turn confirms that the December 19 order was

limited to SJH’s February 2024 counterclaims. It describes that order as authorizing

the “unusual situation” “that the counterclaims brought by [SJH] . . . would proceed

against both SDI . . . and Dowbuilt.” Id. at 267.

With this context, the January 17 order provided the requested clarification on

the arbitrability of all SJH’s proposed claims against Dowbuilt: the February 2024

counterclaims against Dowbuilt would remain in the arbitration, but the new claims

were not required to be there. Despite Dowbuilt’s protestations, that’s an arbitrability

ruling—SJH is not required to arbitrate its new tort claims against Dowbuilt. We

therefore reject Dowbuilt’s argument that the arbitrator didn’t decide the arbitrability

of SJH’s claims against Dowbuilt. 5

That is the end of the matter, given that Dowbuilt concedes both the factual

5 Dowbuilt alternatively argues that the January 17 order is ambiguous regarding arbitrability, so we should remand to the arbitrator for clarity. For authority, it cites a case holding that remand to the arbitrator may be appropriate to clarify an ambiguous award. See U.S. Energy Corp. v. Nukem, Inc., 400 F.3d 822, 830 (10th Cir. 2005). But not only is the arbitrator’s January 17 order not an award— it’s also not ambiguous, as the discussion above illustrates. 9 Appellate Case: 25-8037 Document: 32-1 Date Filed: 05/29/2026 Page: 10

proposition that the parties agreed to submit arbitrability questions to the arbitrator

and the legal proposition that we lack the authority to override that agreement. To be

sure, Dowbuilt additionally argues that SJH should be compelled to arbitrate its

claims because it consented to do so and as a matter of equitable estoppel. But

because these are arbitrability arguments, we decline to consider them. The arbitrator

determined the arbitrability of the new claims, and we “may not decide an

arbitrability question that the parties have delegated to an arbitrator.” Henry Schein,

Inc., 586 U.S. at 69.

Conclusion

Because the parties delegated arbitrability to the arbitrator and the arbitrator

decided that SJH was not required to arbitrate its claims against Dowbuilt—with the

limited, unusual exception of the February 2024 counterclaims already filed in the

arbitration—we affirm the district court’s order denying Dowbuilt’s motion to

compel and remand for further proceedings.

Entered for the Court

Nancy L. Moritz Circuit Judge