The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY June 25, 2026
2026 COA 54
No. 25CA0855, Wright v. Goldstein — Courts and Court Procedure — Colorado Uniform Arbitration Act — Vacating Award — No Agreement to Arbitrate
A division of the court of appeals considers whether, under the
Colorado Revised Uniform Arbitration Act (CRUAA), §§ 13-22-201 to
-230, C.R.S. 2025, a respondent in an arbitration proceeding waives
their right to object to arbitrability based on the absence of an
arbitration agreement by participating in the arbitration proceeding
for almost a year before objecting to the arbitrator shortly before the
arbitration hearing. Based on the CRUAA’s language in section
13-22-223(1)(e), C.R.S. 2025, which requires a party to object to the
arbitrator “not later than the beginning of the arbitration hearing,”
the division concludes that the respondent didn’t waive his
objection. The division disagrees with a prior division’s contrary
conclusion in Harper Hofer & Associates, LLC v. Northwest Direct Marketing, Inc., 2014 COA 153, ¶ 28, which held that an objector
who participated in the arbitration proceeding waived its objection
by failing to seek a judicial stay of the arbitration before the
arbitration hearing commenced. Because the respondent in this
case timely objected to the arbitrator as required by statute, the
division reverses in part the district court’s order that the
respondent waived his objection and remands the case for further
findings of fact regarding whether an arbitration agreement existed.
The division rejects the appellants’ other contentions and
therefore affirms the judgment in part, reverses it in part, and
remands the case with directions. COLORADO COURT OF APPEALS 2026 COA 54
Court of Appeals No. 25CA0855 Jefferson County District Court No. 22CV31103 Honorable Ryan P. Loewer, Judge
James Wright; Damages Inc., LLC, a Colorado limited liability company; and And Justice For All, LLC, a Colorado limited liability company,
Plaintiffs-Appellants,
v.
Daniel Goldstein; Altru-Media LLC, a Colorado limited liability company; and Page 1 Solutions, LLC, a Colorado limited liability company,
Defendants-Appellees.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE SULLIVAN Pawar and Meirink, JJ., concur
Announced June 25, 2026
Sullenberger Roskamp PLLC, Neil S. Sullenberger, Jennifer L. Roskamp-Fields, Denver, Colorado, for Plaintiffs-Appellants
Fairfield and Woods, P.C., John M. Tanner, Denver, Colorado, for Defendants- Appellees ¶1 If a litigant who is unwilling to arbitrate believes no valid
agreement to arbitrate exists, the Colorado Revised Uniform
Arbitration Act (CRUAA), §§ 13-22-201 to -230, C.R.S. 2025,
requires that they register their objection with the arbitrator no
later than the beginning of the arbitration hearing.
§ 13-22-223(1)(e), C.R.S. 2025. In this commercial dispute brought
by plaintiffs, James Wright; Damages Inc., LLC; and And Justice
For All, LLC (AJFA) (collectively, Wright plaintiffs), against
defendants, Daniel Goldstein; Altru-Media LLC; and Page 1
Solutions, LLC (collectively, Goldstein defendants), and others,
Wright raised his objection with the arbitrator four days before the
arbitration hearing commenced. We therefore conclude that Wright
complied with the statute’s timing requirement; thus, we reverse
the district court’s order that he waived his objection and remand
the case with directions. In all other respects, we affirm the
judgment.
I. Background
¶2 Wright is the president and manager of Damages Inc., and
Goldstein is the president of Altru-Media and Page 1 Solutions. In
2012, the pair formed AJFA, a company that would develop,
1 manage, and market a network of legal advertising websites and
donate a percentage of its proceeds to social justice causes.
Damages Inc. and Altru-Media (a wholly owned subsidiary of Page 1
Solutions) each owned a fifty percent membership interest in AJFA.
¶3 As their new venture was getting off the ground, Wright and
Goldstein — as corporate representatives of Damages Inc. and
Altru-Media, respectively — entered into an operating agreement
and a memorandum of understanding (MOU) regarding AJFA. The
two signed both documents in June 2012, although they backdated
the operating agreement to March 16, 2012, the date they had filed
AJFA’s articles of organization with the Colorado Secretary of State.
The MOU contained a broad arbitration clause:
[A]ny controversy or claim arising out of or directly or indirectly relating to this MOU shall be submitted to the American Arbitration Association (“AAA”) for binding arbitration in accordance with the Commercial Arbitration Rules of the AAA.
¶4 AJFA was never profitable. And in 2019, Goldstein took steps
to sell Page 1 Solutions’ assets. Believing this violated AJFA’s
operating agreement, Wright filed a district court complaint on
behalf of himself, Damages Inc., and AJFA against the Goldstein
2 defendants and others.1 The complaint asserted claims for breach
of contract, breach of fiduciary duty, fraud by false representation,
fraud by omission, conspiracy, misappropriation of trade secrets,
civil theft, conversion, and unjust enrichment.
¶5 The Goldstein defendants responded by moving to compel
arbitration under the MOU’s arbitration clause and initiating
arbitration proceedings. The Wright plaintiffs opposed arbitration,
contending that only the operating agreement, not the MOU,
governed their claims.2 The district court granted the Goldstein
defendants’ motion and ordered that the Wright plaintiffs’ claims
against the Goldstein defendants proceed to arbitration.
¶6 In arbitration, the Goldstein defendants sought a declaratory
judgment that they weren’t liable to the Wright plaintiffs for any of
the nine claims asserted in the district court case and that they
1 In addition to suing the Goldstein defendants, the Wright plaintiffs
brought claims against Page 1 Solutions’ buyer, Advice Media LLC; its principal, Shawn Miele; and Altru-Media’s vice president, Troy Dunn. But those claims didn’t proceed to arbitration and aren’t at issue in this appeal. 2 The Wright plaintiffs also moved for a preliminary injunction and
temporary restraining order halting the arbitration proceedings. But the district court found that the Wright plaintiffs abandoned their motion after they asked to continue the preliminary injunction hearing and never asked for it to be rescheduled.
3 owned several of the disputed domain names. After a hearing, the
arbitrator determined that the Goldstein defendants weren’t liable
on any of the Wright plaintiffs’ claims but denied their request for a
declaration that they owned the domain names. The arbitrator also
awarded the Goldstein defendants their attorney fees.
¶7 The Wright plaintiffs then moved the district court to vacate
the arbitration award, while the Goldstein defendants filed a
competing motion to confirm the award. The court granted the
motion to confirm and denied the motion to vacate.
¶8 The Wright plaintiffs appeal the court’s confirmation order
under section 13-22-228(1)(c), C.R.S. 2025. They contend that the
district court erred by denying their motion to vacate because
(1) the arbitrator lacked jurisdiction over Wright in his individual
capacity; (2) the arbitrator lacked jurisdiction over Goldstein and
Page 1 Solutions; (3) the arbitrator exceeded her authority by
determining arbitrability; and (4) the arbitrator exceeded her
authority by making factual findings about nonparty witnesses.
Both sides also request their appellate attorney fees under a
prevailing party clause within the MOU.
4 II. Arbitral Jurisdiction Over Wright
¶9 Wright contends that the arbitrator lacked jurisdiction over
him because he signed the MOU (containing the arbitration clause)
as a corporate representative of Damages Inc., not in his individual
capacity. For their part, the Goldstein defendants contend that the
district court and the arbitrator correctly determined that Wright
waived this objection by raising it too late. Based on the CRUAA’s
language, we conclude Wright didn’t waive this argument.
A. Additional Background
¶ 10 During a prearbitration conference, which occurred almost a
year into the arbitration proceeding and just four days before the
scheduled arbitration merits hearing, Wright objected to the
arbitrator exercising jurisdiction over him in his individual capacity.
The arbitrator ordered briefing on the issue and delayed the hearing
to resolve the question.
¶ 11 After briefing, the arbitrator determined that Wright had
waived his objection to arbitral jurisdiction by failing to raise it
earlier and by failing to distinguish between himself and his
company, Damages Inc., in his filings. The case then proceeded to
a three-day arbitration hearing.
5 ¶ 12 After the arbitrator issued her decision, Wright again raised
his objection before the district court in his motion to vacate the
arbitration award. The district court, relying on Harper Hofer &
Associates, LLC v. Northwest Direct Marketing, Inc., 2014 COA 153,
concluded that Wright had waived his objection by failing to raise it
earlier before the court in a motion to stay the arbitration.
B. Standard of Review and Applicable Law
¶ 13 We review de novo a district court’s legal conclusions on a
motion to confirm or vacate an arbitration award. Brightstar LLC v.
Jordan, 2024 COA 39, ¶ 9.
¶ 14 We also review de novo questions of statutory interpretation.
Trinidad Area Health Ass’n v. Trinidad Ambulance Dist., 2024 COA
113, ¶ 23. “[O]ur obligation is to give full effect to the legislative
intent.” Est. of Breeden v. Gelfond, 87 P.3d 167, 170 (Colo. App.
2003). In doing so, we look to the entire statutory scheme to give
consistent, harmonious, and sensible effect to all its parts, and we
apply words and phrases according to their plain and ordinary
meaning. Trinidad, ¶ 23. Moreover, when construing a statute, we
must respect the General Assembly’s choice of language. UMB
Bank, N.A. v. Landmark Towers Ass’n, 2017 CO 107, ¶ 22.
6 ¶ 15 The CRUAA, modeled after the Uniform Arbitration Act (2000)
promulgated by the National Conference of Commissioners on
Uniform State Laws, see 7 pt. 1A U.L.A. 14-118 (2025), provides a
uniform statutory framework for arbitration to encourage the
settlement of disputes. Lane v. Urgitus, 145 P.3d 672, 678 (Colo.
2006). When interpreting a statute based on a uniform act, like the
CRUAA, we may consider authorities from other jurisdictions that
have also adopted the act. Hagerty Ins. Agency, LLC v. Luxury Asset
Cap., LLC, 2023 COA 57, ¶ 11; accord Est. of Guido v. Exempla, Inc.,
2012 COA 48, ¶ 22 (consulting decisions from other jurisdictions
that have adopted the Uniform Arbitration Act).
¶ 16 To promote the finality of arbitration awards and discourage
piecemeal litigation, the CRUAA strictly limits a reviewing court’s
role. Herrera v. Santangelo L. Offs., P.C., 2022 COA 93, ¶ 12.
Specifically, a reviewing court may decline to confirm an arbitration
award only for the limited reasons enumerated in section
13-22-223(1). Treadwell v. Vill. Homes of Colo., Inc., 222 P.3d 398,
401 (Colo. App. 2009).
7 ¶ 17 The absence of an agreement to arbitrate is one such reason,
albeit one that a litigant can waive. Section 13-22-223(1)(e) states
as follows:
Upon motion to the court by a party to an arbitration proceeding, the court shall vacate an award made in the arbitration proceeding if the court finds that . . . [t]here was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection under section 13-22-215(3)[, C.R.S. 2025,] not later than the beginning of the arbitration hearing . . . .
¶ 18 If a party clearly and explicitly reserves the right to object to
arbitrability in compliance with the statute, a party’s participation
in the arbitration doesn’t preclude them from later challenging the
arbitrator’s authority in court. See Ahluwalia v. QFA Royalties,
LLC, 226 P.3d 1093, 1098 (Colo. App. 2009). But see Harper,
¶¶ 22-25 (declining to follow Ahluwalia and concluding a party
waives any objection to arbitrability absent a request for court
review before proceeding to the arbitration hearing).
C. Analysis
¶ 19 Because Wright objected to the arbitrator exercising
jurisdiction over him in his individual capacity before the beginning
of the arbitration hearing, we conclude the district court erred by
8 failing to either vacate the arbitration award or make findings that
an arbitration agreement existed between Wright and the Goldstein
defendants.
¶ 20 Under the CRUAA’s plain language, a party may move to
vacate an arbitration award on the grounds that no agreement to
arbitrate exists between the parties. § 13-22-223(1)(e). A party
risks waiving this argument if they participate in the arbitration
without raising their objection “not later than the beginning of the
arbitration hearing.” Id. All here agree that Wright raised his
objection to the arbitrator four days before the scheduled
arbitration hearing. By doing so, Wright complied with the statute’s
timing requirement and thus preserved his ability to reraise his
objection before the district court in his motion to vacate the
arbitration award.
¶ 21 True, Wright didn’t raise his objection to the court through a
motion to stay the arbitration before the arbitration hearing
commenced. See § 13-22-207(2), C.R.S. 2025 (permitting the court
to stay an arbitration proceeding based on the absence of an
agreement to arbitrate). But nothing in section 13-22-223(1)(e)
requires such a motion. Instead, the objecting party need only
9 “rais[e] the objection under section 13-22-215(3)” not later than the
beginning of the arbitration hearing. § 13-22-223(1)(e). That
section, in turn, details the process for making objections to the
arbitrator — the exact process that Wright followed. See
§ 13-22-215(3) (stating the arbitrator “may adjourn the hearing
from time to time” upon a party’s request and for “good cause
shown”). So, by the plain language of the statute, Wright didn’t
waive his objection.
¶ 22 Court decisions from other jurisdictions construing similar
statutory language support our interpretation. In Holcim (Texas)
Ltd. Partnership v. Humboldt Wedag, Inc., 211 S.W.3d 796, 802-03
(Tex. App. 2006), for example, the court construed the Texas
Arbitration Act, modeled off the prior 1956 Uniform Arbitration Act,
which stated that a court must vacate an arbitration award if “there
was no agreement to arbitrate, the issue was not adversely
determined . . . , and the party did not participate in the arbitration
10 hearing without raising the objection.”3 Tex. Civ. Prac. & Rem.
Code Ann. § 171.088(a)(4) (West 2025). The court determined that
the statutory language “on its face” doesn’t require a party to seek a
judicial stay of the arbitration; rather, objecting to the arbitrator
sufficiently preserved the issue for a later motion to vacate the
award. Holcim, 211 S.W.3d at 803.
¶ 23 And in Azcon Construction Co. v. Golden Hills Resort, Inc., 498
N.W.2d 630, 632-33 (S.D. 1993), the court reached the same
conclusion based on nearly identical language in South Dakota’s
arbitration statute. See S.D. Codified Laws § 21-25A-24(5) (2025).
The court explained that seeking a judicial stay of the arbitration
was optional, not mandatory, in part because requiring such a
motion would defeat the purpose of creating an arbitration system:
3 Although the 1956 uniform act’s language isn’t identical to the
2000 act on which Colorado’s statute is based, we perceive no meaningful difference in how the two provisions treat a party’s objection to the absence of an arbitration agreement. The 2000 act requires the party to raise their objection to the arbitrator “not later than the beginning of the arbitration hearing,” Unif. Arb. Act § 23(5) (2000), 7 pt. 1A U.L.A. 92 (2025), while the 1956 act requires that the party “not participate in the arbitration hearing without raising the objection,” Unif. Arb. Act § 12(5) (1956), 7 pt. 1A U.L.A. 537 (2025). Under either version, Wright’s objection four days before the arbitration hearing was timely.
11 obtaining a quick and inexpensive resolution of contractual
disputes without the expense and delay of extended court
proceedings. Azcon, 498 N.W.2d at 633.
¶ 24 Other decisions are in accord. See, e.g., Wolfer v. Microboards
Mfg., LLC, 654 N.W.2d 360, 365 (Minn. Ct. App. 2002) (explaining
that, under Minnesota’s then-effective version of the 1956 Uniform
Arbitration Act, “a party may be estopped from arguing that no
arbitration agreement exists if an objection is not raised during the
arbitration hearing”); Amerisure Mut. Ins. Co. v. Glob. Reinsurance
Corp. of Am., 927 N.E.2d 740, 747-48 (Ill. App. Ct. 2010)
(construing Illinois’ version of the 1956 Uniform Arbitration Act and
determining that seeking a judicial stay of arbitration is permissive,
not mandatory).
¶ 25 We disagree with the division’s contrary conclusion in Harper,
which the district court relied on when deciding that Wright waived
his objection. See Digit. Landscape Inc. v. Media Kings LLC, 2018
COA 142, ¶ 68 (one division of the court of appeals isn’t bound by
another division’s decision). The Harper division determined that
objecting only to the arbitrator didn’t avoid waiver; the objecting
party must instead ask the trial court to decide the validity of the
12 arbitration clause under section 13-22-207(2) before proceeding to
the arbitration hearing. See Harper, ¶¶ 16-24. But the Harper
division didn’t grapple with the plain language of section
13-22-223(1)(e), which requires only that the party object to the
arbitrator no later than the beginning of the arbitration hearing.
Although a party remains free to seek a judicial stay of the
arbitration under section 13-22-207(2) and to ask the court to
resolve the objection, nothing in the statute requires that course of
action to avoid waiver.
¶ 26 For the same reason, we also aren’t convinced by the
Goldstein defendants’ reliance on other out-of-state cases that
follow Harper’s lead. Most of their cited cases don’t involve
statutory language akin to section 13-22-223(1)(e), which we
conclude is dispositive. Others, like Adams v. Barr, 2018 VT 12,
¶ 16, 182 A.3d 1173, 1179, depart from the statutory language in
favor of following the state’s prior case law on waiver. We decline to
follow that path. Our job is to “give full effect” to the legislature’s
intent, not favor our own precedent that deviates from the statute.
Est. of Breeden, 87 P.3d at 170; accord Phillips v. Bd. of Comm’rs,
242 P. 70, 71 (Colo. 1925) (when the reasoning of an appellate
13 decision would “abrogate an express provision of a statute, it is
wrong, and cannot avail as a precedent”).
¶ 27 We recognize, as the Goldstein defendants argue, that Wright
participated “substantially” in the arbitration proceeding for several
months before raising his objection on the proverbial eve of the
arbitration hearing. And the Goldstein defendants are correct that,
under ordinary waiver principles, a party can implicitly waive an
existing right or privilege by acting inconsistently with its assertion.
See Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984).
But the General Assembly is free to modify ordinary waiver
principles. See First Interstate Bank of Denv., N.A. v. Cent. Bank &
Tr. Co. of Denv., 937 P.2d 855, 862 (Colo. App. 1996) (first citing
Lambdin v. Dist. Ct., 903 P.2d 1126 (Colo. 1995); and then citing In
re Marriage of Rahn, 914 P.2d 463 (Colo. App. 1995)). It did so in
the CRUAA by setting an objection deadline in section
13-22-223(1)(e) that is relatively late in the arbitration process. We
aren’t at liberty to change or ignore that deadline. See UMB, ¶ 22;
see also § 13-22-204(3)(a), C.R.S. 2025 (parties to an arbitration
proceeding may not waive, or vary the effect of, the requirements of
section 13-22-223, among other provisions); Alexander v. Calton &
14 Assocs., Inc., 110 P.3d 509, 511 (N.M. Ct. App. 2005) (construing
identical deadline in New Mexico’s arbitration act and concluding
that a finding of implicit waiver based on prior conduct “would be
contrary to this provision”).
¶ 28 While the General Assembly could have required a party who
believes no agreement to arbitrate exists to raise their objection
earlier in the arbitration proceeding or in a prehearing motion to the
court, it struck the balance differently by requiring only a
prehearing objection to the arbitrator. We can’t second-guess that
legislative choice. See Rudnicki v. Bianco, 2023 COA 103, ¶ 52,
aff’d, 2025 CO 49; Swieckowski v. City of Fort Collins, 934 P.2d
1380, 1387 (Colo. 1997).
¶ 29 Accordingly, Wright didn’t waive his objection to the alleged
absence of an arbitration agreement, so we must reverse the district
court’s order denying Wright’s motion to vacate the arbitration
15 award.4 We don’t disturb the court’s order as it pertains to the
other Wright plaintiffs.
¶ 30 With all that said, the existence of a contract is a question of
fact. Compton v. Lemon Ranches, Ltd., 972 P.2d 1078, 1080 (Colo.
App. 1999). Because the district court denied Wright’s motion to
vacate based on its determination that Wright had waived his
objection, it didn’t make findings resolving whether an agreement to
arbitrate existed between Wright and each of the Goldstein
defendants (Goldstein, Page 1 Solutions, and Altru-Media). See
§ 13-22-223(1)(e). Thus, we remand the case for the court to make
findings on this question under section 13-22-223(1)(e) and to fully
resolve Wright’s motion to vacate without relying on waiver.
III. Arbitral Jurisdiction Over Goldstein and Page 1 Solutions
¶ 31 The Wright plaintiffs contend that the arbitrator lacked
jurisdiction over Goldstein and Page 1 Solutions because neither
4 The Goldstein defendants argue in the alternative that Wright
assumed the obligation to arbitrate. But the district court and the arbitrator grounded their decisions in waiver only and didn’t separately address whether Wright assumed the obligation to arbitrate. Because we are a “court of review, not first look,” Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 41, aff’d, 2021 CO 56, we decline to address this issue in the first instance.
16 signed the MOU containing the arbitration clause. We aren’t
persuaded.
¶ 32 In their arbitration counterclaims, the Wright plaintiffs
objected to the arbitrator’s exercise of jurisdiction over Page 1
Solutions because it wasn’t a party to the MOU’s arbitration
provision. They similarly argued in their prearbitration briefing that
the arbitrator lacked jurisdiction over Goldstein in his individual
capacity because he also wasn’t a party to the arbitration clause.
¶ 33 In rejecting these arguments, the arbitrator determined that
she had arbitral jurisdiction over Goldstein and Page 1 Solutions
because both had consented to be bound by demanding arbitration.
She also explained that the Wright plaintiffs had asserted claims
against Goldstein and Page 1 Solutions in the arbitration.
¶ 34 The Wright plaintiffs reraised essentially the same argument
before the district court in their motion to vacate the award, arguing
that the arbitrator exceeded her authority by exercising jurisdiction
over nonsignatories to the MOU. Like the arbitrator, the district
court determined that Goldstein and Page 1 Solutions were proper
17 parties to arbitration because they had assumed the obligation to
arbitrate.
¶ 35 We review de novo whether an arbitrator exceeded their
powers. Herrera, ¶ 15.
¶ 36 In general, only a party to an arbitration agreement can
compel arbitration under that contract and only as to another
signatory. Santich v. VCG Holding Corp., 2019 CO 67, ¶ 6 (citing
N.A. Rugby Union LLC v. U.S. Rugby Football Union, 2019 CO 56,
¶ 20). But limited exceptions to this rule allow a nonsignatory to
compel a signatory to arbitrate. Id. One such exception occurs
when the nonsignatory has assumed the obligation to arbitrate. Id.
The fundamental question in determining whether a nonsignatory
has assumed the obligation to arbitrate is whether they have
manifested a clear intention to arbitrate the dispute. See Herrera,
¶ 21.
¶ 37 We start with the claims between Damages Inc., a signatory to
the MOU, and the nonsignatories Goldstein and Page 1 Solutions.
With respect to those claims, we agree with the district court that
18 Goldstein and Page 1 Solutions assumed the obligation to arbitrate.
As the court explained, both Goldstein and Page 1 Solutions were
active and voluntary participants in the arbitration. They listed
themselves as claimants in the arbitration, and neither sought to
resolve any claims outside of arbitration. On appeal, too, Goldstein
and Page 1 Solutions maintain that they assumed the obligation to
arbitrate through their conduct. Based on this conduct, we
conclude that both Goldstein and Page 1 Solutions manifested a
clear intent to arbitrate their disputes with Damages Inc.
¶ 38 We don’t address this contention, however, as to the claims
between Wright in his individual capacity and Goldstein or Page 1
Solutions. The district court hasn’t yet made findings determining
whether Wright was a party to the MOU’s arbitration clause or
otherwise subject to arbitration, so we can’t tell whether Goldstein’s
and Page 1 Solutions’ assumptions of the obligation to arbitrate
extended to the claims involving Wright.
¶ 39 We also need not address this contention as to the claims
between AJFA and Goldstein or Page 1 Solutions. The arbitrator
noted that both sides attempted to assert claims in the arbitration
on behalf of AJFA. In the end, the arbitrator treated only Wright
19 and Damages Inc. as respondents in the arbitration and didn’t
resolve any claims asserted by AJFA.
IV. Arbitrability
¶ 40 The Wright plaintiffs next contend that the district court erred
by allowing the arbitrator to determine the arbitrability of all claims.
We disagree.
A. Standard of Review and Applicable Law
¶ 41 We review de novo whether the parties have agreed to arbitrate
the question of arbitrability. Taubman Cherry Creek Shopping Ctr.,
LLC v. Neiman-Marcus Grp., Inc., 251 P.3d 1091, 1093 (Colo. App.
2010).
¶ 42 Under the CRUAA, the district court presumptively determines
whether a particular controversy is subject to an arbitration
agreement. § 13-22-206(2), C.R.S. 2025; Taubman, 251 P.3d at
1093-94. But arbitration, including the question of who decides
arbitrability, is a matter of contract between the parties. See
Taubman, 251 P.3d at 1094. Consequently, the parties may
contract to have an arbitrator, not the court, determine threshold
arbitrability questions provided that clear and unmistakable
evidence shows that the parties intended that result. See id.;
20 Galbraith v. Clark, 122 P.3d 1061, 1063-64 (Colo. App. 2005) (citing
First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943-44 (1995)).
¶ 43 For example, when parties explicitly incorporate into their
arbitration agreement rules that empower the arbitrator to
determine issues of arbitrability, that incorporation constitutes
clear and unmistakable evidence of the parties’ intent to delegate
those issues to the arbitrator. See Johnson-Linzy v. Conifer Care
Cmtys. A, LLC, 2020 COA 88, ¶ 17; Ahluwalia, 226 P.3d at
1098-99.
B. Analysis
¶ 44 The MOU’s arbitration clause requires that disputes be
“submitted to the American Arbitration Association (‘AAA’) for
binding arbitration in accordance with the Commercial Arbitration
Rules of the AAA.” Rule R-7(a) of those rules provides that “[t]he
arbitrator shall have the power to rule on his or her own
jurisdiction, including any objections with respect to the existence,
scope, or validity of the arbitration agreement or to the arbitrability
of any claim or counterclaim.” AAA, Commercial Arbitration Rules
and Mediation Procedures, R-7(a) (Sep. 1, 2022),
https://perma.cc/S644-4E6P.
21 ¶ 45 Because the MOU explicitly incorporated this AAA rule, those
who agreed to the MOU delegated the question of arbitrability to the
arbitrator. See Johnson-Linzy, ¶ 17; Ahluwalia, 226 P.3d at
¶ 46 We aren’t convinced otherwise by the Wright plaintiffs’ reliance
on Coinbase, Inc. v. Suski, 602 U.S. 143 (2024).5 In Coinbase, the
Supreme Court held that when parties have signed two contracts
that conflict over whether disputes should be sent to arbitration,
the court must decide in the first instance which contract governs.
Id. at 150. In the present case, though, the district court found no
conflict between the operating agreement and the MOU. The court
explained that both sides had (1) “accounted” for the operating
agreement when creating the MOU; (2) intended to use each
agreement “in parallel” with the other; and (3) agreed that neither
agreement superseded the other. We agree with the court’s
interpretation harmonizing the two agreements. With no conflict
between the two, Coinbase doesn’t affect our analysis.
5 While cases construing the Federal Arbitration Act may inform our
interpretation of the CRUAA, Digit. Landscape Inc. v. Media Kings LLC, 2018 COA 142, ¶ 27, they don’t bind us.
22 ¶ 47 Accordingly, the district court didn’t err by determining that
the parties to the MOU had delegated arbitrability questions to the
arbitrator.
V. Findings Involving Nonparties
¶ 48 The Wright plaintiffs also appear to contend that the arbitrator
exceeded her authority under section 13-22-223(1)(d) by making
findings about nonparties who testified at the arbitration hearing.
But they don’t cite any authority suggesting an arbitrator is
foreclosed from making findings involving nonparty witnesses, nor
are we aware of any. See C.A.R. 28(a)(7)(B) (appellant’s opening
brief must contain, among other things, “citations to the
authorities . . . on which the appellant relies”). Because we don’t
consider undeveloped or unsupported arguments, we decline to
address this contention. Woodbridge Condo. Ass’n v. Lo Viento
Blanco, LLC, 2020 COA 34, ¶ 41 n.12, aff’d, 2021 CO 56.
VI. Appellate Attorney Fees
¶ 49 Damages Inc. requests its appellate attorney fees under the
MOU’s prevailing party clause and section 13-22-225(3), C.R.S.
23 2025.6 The Goldstein defendants make a competing request. Both
sides’ requests are contingent on prevailing on appeal.
¶ 50 The MOU’s arbitration provision contains a prevailing party
clause, stating that “[t]he prevailing party in any dispute shall be
entitled to recover its costs, including reasonable attorneys’ fees,
together with prejudgment interest.”
¶ 51 Damages Inc. hasn’t prevailed on any of its appellate
contentions, so we deny its request for appellate attorney fees.
¶ 52 But because we reverse in part and remand for further
proceedings on Wright’s motion to vacate the arbitration award, it
remains to be seen whether any of the Goldstein defendants are
prevailing parties under the MOU. We therefore deny, as
premature, the Goldstein defendants’ request for appellate attorney
fees. See Bedard v. Martin, 100 P.3d 584, 593-94 (Colo. App. 2004).
After the district court resolves Wright’s motion to vacate and any
other necessary issues on remand, it may determine whether any of
6 The Wright plaintiffs made a general request for appellate attorney
fees in their opening brief but clarified in their reply brief that the request is limited to Damages Inc., the MOU’s signatory.
24 the Goldstein defendants are entitled to their appellate attorney fees
as prevailing parties. See id.
VII. Disposition
¶ 53 We reverse the portion of the district court’s judgment denying
Wright’s motion to vacate the arbitration award. We remand the
case for the district court to (1) make findings under section
13-22-223(1)(e) regarding whether an agreement to arbitrate existed
between Wright in his individual capacity and the Goldstein
defendants; (2) resolve Wright’s motion to vacate without relying on
waiver; (3) determine whether any of the Goldstein defendants are
entitled to their reasonable appellate attorney fees; and (4) conduct
any other proceedings necessary to fully resolve the parties’ claims.
In all other respects, we affirm the judgment.
JUDGE PAWAR and JUDGE MEIRINK concur.