Willow Creek Assoc. v. HY Barr Inc. , 2021 UT App 116 ( 2021 )

2021 UT App 116THE UTAH COURT OF APPEALS
WILLOW CREEK ASSOCIATES OF GRANTSVILLE LLC,
Appellant,
v.
HY BARR INCORPORATED AND HYRUM BARLOW,
Appellees.
Opinion
No. 20200260-CA
Filed November 4, 2021
Third District Court, Tooele Department
The Honorable Matthew Bates
No. 190300674
Rick N. Haderlie and Christopher W. Eckels,
Attorneys for Appellant
Adam C. Dunn and Michael C. Dunn, Attorneys
for Appellees
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
TENNEY, Judge:
¶1 Willow Creek Associates hired Hy Barr Incorporated to
remodel some apartments. The parties’ contract included a
mandatory arbitration agreement that required them to arbitrate
all claims “arising out of or related to” the contract.
¶2 After Willow Creek and Hy Barr had a falling out over
some payments to subcontractors, Willow Creek made a claim
against Hy Barr and Hyrum Barlow (Hy Barr’s president) and
submitted that claim to arbitration. But when Willow Creek later
made other claims against Hy Barr and Barlow, it did so through
a lawsuit. The district court dismissed those claims for failure to
Willow Creek Assoc. v. Hy Barr Inc.
first submit them to arbitration as required by the contract.
Willow Creek now appeals that dismissal. We affirm.
BACKGROUND1
The Contract
¶3 Willow Creek owns an apartment complex. Hy Barr is a
corporation that specializes in apartment renovations, and
Hyrum Barlow is the president and owner of Hy Barr.
¶4 In 2017, Willow Creek and Hy Barr entered into a contract
under which Hy Barr would remodel Willow Creek’s apartment
complex (the Project). Willow Creek and Hy Barr agreed that
this contract “represent[ed] the entire and integrated agreement
between the parties.”
¶5 The contract identified Willow Creek as the “Owner” and
Hy Barr as the “Contractor.” It defined “Contractor” to include
“the Contractor’s authorized representative.” And Hyrum
Barlow was identified in the contract as the “Contractor’s
representative.”
¶6 The contract also set forth the process by which the
parties were required to resolve their “claims and disputes.” It
defined “claim” as “a demand or assertion by one of the parties
seeking, as a matter of right, payment of money, or other relief
1. “On appeal from a motion to dismiss, we review the facts only
as they are alleged in the complaint. We accept the factual
allegations as true and draw all reasonable inferences from those
facts in a light most favorable to the plaintiff.” Haynes v.
Department of Public Safety, 2020 UT App 19, n.2, 460 P.3d 565(quotation simplified).
20200260-CA 2 2021 UT App 116Willow Creek Assoc. v. Hy Barr Inc.
with respect to the terms of the Contract.” “Claim” “also
include[d] other disputes and matters in question between the
Owner and the Contractor arising out of or relating to the
Contract.” (Emphasis added.) 2
¶7 Under the contract, a claim by Willow Creek or Hy Barr
had to “be initiated by written notice to the other party and to
the Initial Decision Maker.” The contract identified the Initial
Decision Maker as the “Architect,” an architectural firm
associated with the Project. Within ten days of receiving a claim,
the Initial Decision Maker was required to approve or reject the
claim. The Initial Decision Maker was also empowered to inform
the parties that it was “unable to resolve the Claim” if the Initial
Decision Maker thought it would be “inappropriate” to do so.
¶8 A decision by the Initial Decision Maker was “final and
binding on the parties but [could be] subject to mediation.”
Claims that were “subject to, but not resolved by, mediation
[were] subject to arbitration.” Within thirty days of an initial
decision, the contract allowed a party to demand that the other
party request mediation. If that demand was made and the party
who received the demand did not then request mediation, “both
parties waive[d] their right to mediate or pursue binding dispute
resolution proceedings with respect to the initial decision.”3
2. As noted, this provision required the parties to arbitrate claims
that were “arising out of or relating to” the contract. For stylistic
clarity, this opinion will sometimes refer to claims that “arose
out of or related to” the contract without noting the alteration in
tense.
3. As evidenced by our discussion below, this dispute-resolution
process later proved critical in the ensuing litigation. Although
this process called for three steps—submission to the Initial
(continued…)
20200260-CA 3 2021 UT App 116Willow Creek Assoc. v. Hy Barr Inc.
The Initial Decision
¶9 In the contract, the parties agreed that Willow Creek
would transfer money to Hy Barr, which Hy Barr would then
use to pay subcontractors.
¶10 In 2019, a subcontractor filed suit against Willow Creek
and Hy Barr after it did not receive payment for materials that it
furnished to Hy Barr for the Project.4 In response to the
subcontractor’s suit, Willow Creek sent a letter to the Initial
Decision Maker and to Barlow. This letter demanded that
“Contractor Hy Barr, Inc.” pay $648,734.78 to Willow Creek so
that Willow Creek could pay the subcontractors.5 The Initial
Decision Maker later agreed that “the Contractor, Hy Barr, Inc.”
needed to pay Willow Creek $648,734.78 (hereinafter “the Initial
Decision”).
The Cross-claim
¶11 After the Initial Decision, Willow Creek timely demanded
that Barlow and Hy Barr request mediation. When neither did,
(…continued)
Decision Maker, followed by mediation, followed by
arbitration—we will sometimes refer to it globally as an
“arbitration agreement,” though we will at other times refer to
the individual steps individually when doing so is more
appropriate for a particular portion of our analysis.
4. Various organizations associated with the Project were also
included as defendants. The district court later dismissed the
claims against those parties.
5. This amount included, among others, costs to pay
subcontractors, liquidated damages, and interest.
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Willow Creek filed a cross-claim in district court against them in
the action brought by the subcontractor.
¶12 In this cross-claim, Willow Creek raised twelve causes of
action. All twelve were made against Barlow personally and
against Hy Barr. The first cause of action, titled “Confirmation of
Initial Decision” (the Initial Decision Claim), was based on the
claim that Willow Creek had previously submitted to the Initial
Decision Maker. In that cause of action, Willow Creek alleged
that it was entitled to a court order “confirming the Initial
Decision and entering judgment in the amount of $648,734.78
against Contractor.” Unlike the Initial Decision Claim, however,
the additional eleven causes of action had not been submitted to
the Initial Decision Maker.6
The Motion to Dismiss
¶13 Barlow and Hy Barr filed a joint motion to dismiss Willow
Creek’s cross-claim. With respect to the first cause of action—the
Initial Decision Claim—Hy Barr agreed that Willow Creek
“should be awarded a judgment against Hy Barr, Inc. as outlined
by the” Initial Decision. By contrast, Barlow argued that this
cause of action did not apply to him personally because “the
Initial Decision Maker determined that only Hy Barr, Inc. owed
money to” Willow Creek. (Emphasis in original.)
6. These additional causes of action were entitled: “Breach of
Contract,” “Bad Faith Breach of Contract,” “Accounts Stated,”
“Negligence,” “Intentional Misrepresentation,” “Negligent
Misrepresentation,” “Unjust Enrichment,” “Violation of U.C.A.
§ 76-10-1603,” “U.C.A. § 25-6-202 to Void Fraudulent
Conveyance,” “Alter Ego,” and “Declaratory Relief per U.C.A.
78B-6-401, et seq.”
20200260-CA 5 2021 UT App 116Willow Creek Assoc. v. Hy Barr Inc.
¶14 With respect to the remaining eleven causes of action, Hy
Barr and Barlow jointly asked the court to dismiss them because
Willow Creek had not first submitted them to the Initial Decision
Maker as required by the contract.
¶15 In response to this motion to dismiss, Willow Creek
argued that its cross-claim raised “claims that [were] not within
and [were] completely outside of the contract.” Willow Creek
further argued that the Initial Decision Maker “was to only
approve or reject the initial contract issue. It was not to make
comprehensive legal determinations under legal causes of
action.”
¶16 The district court held a hearing on the motion to dismiss.
There, Hy Barr and Barlow argued that all claims other than the
Initial Decision Claim against Hy Barr should be dismissed
because Willow Creek had not submitted them to the Initial
Decision Maker. Echoing this, the court asked Willow Creek
why it had not taken its claims to the Initial Decision Maker—
i.e., why it should “allow [Willow Creek] to bring claims in this
court outside of that process?” Willow Creek responded that its
letter to the Initial Decision Maker had put Hy Barr and Barlow
on “notice” that Willow Creek would be pursuing other legal
claims.
¶17 The district court granted the motion to dismiss with
regard to some of the claims because it was convinced that they
“should have been submitted to” the Initial Decision Maker.7 But
the court asked for supplemental briefing on whether the
7. Specifically, the court dismissed Willow Creek’s claims for
breach of contract, “Bad Faith Breach of Contract,” “Accounts
Stated,” negligence, intentional misrepresentation, negligent
misrepresentation, unjust enrichment, “Violation of U.C.A. § 76-
10-1603,” and “Declaratory Relief per U.C.A. 78B-6-401.”
20200260-CA 6 2021 UT App 116Willow Creek Assoc. v. Hy Barr Inc.
fraudulent-conveyance and alter-ego claims qualified as “other
dispute[s] or matter[s] in question between the parties that
arise[] out of or [are] related to the contract.” The court also
asked for supplemental briefing “on the extent to which Hyrum
Barlow [could] be held responsible for his own tortious
conduct.”
¶18 In their supplemental briefing, Hy Barr and Barlow
argued that the phrase “arising out of or relating to” should be
interpreted broadly and that the phrase covered the fraudulent-
conveyance and alter-ego claims. Barlow further argued that
because he was included in the definition of “Contractor,” claims
against him personally were required to be submitted to the
Initial Decision Maker.
¶19 Willow Creek responded that because Hy Barr and
Barlow did not seek mediation or arbitration after the Initial
Decision, Willow Creek could bring any claims so long as those
claims were brought within “the time period specified by
applicable law.” Because Hy Barr had agreed that Willow Creek
should be awarded a judgment against Hy Barr—but not
Barlow—based on the Initial Decision, Willow Creek also asked
for entry of judgment on the Initial Decision Claim against Hy
Barr.
¶20 At a subsequent hearing, the court concluded that the
claims against Barlow were “subject to the dispute resolution
terms of the contract.” This was because Barlow—the
“authorized representative” of Hy Barr—was a “Contractor”
under the contract. The court also concluded that the phrase
“arising out of or relating to the contract” was “very broad
language” that “includes, essentially, all of the claims” brought
by Willow Creek. The court accordingly dismissed all claims
against Hy Barr and Barlow that Willow Creek had not
previously submitted to the Initial Decision Maker. The court
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later entered a final judgment against Hy Barr for $648,734.78
based on the Initial Decision.8
Willow Creek’s Rule 60 Motion
¶21 After the district court’s decision, Willow Creek sent
another letter to the Initial Decision Maker asking it to now
consider all of the claims that had been dismissed by the district
court. In response, Hy Barr sent a letter to the Initial Decision
Maker requesting assurances that the Initial Decision did not
apply against Barlow. Hy Barr also asked the Initial Decision
Maker to determine that Willow Creek did not timely request a
decision on the claims it brought in its letter.
¶22 Before the Initial Decision Maker responded to these
letters, Willow Creek filed a notice of appeal challenging the
district court’s ruling on Hy Barr and Barlow’s motion to
dismiss.
¶23 After Willow Creek filed its notice of appeal, the Initial
Decision Maker responded to the letters from Willow Creek and
Hy Barr. The Initial Decision Maker declined to issue any
decision for two reasons. First, the Initial Decision Maker noted
that its “contract obligations [had] expired, including any
obligations to serve as Initial Decision Maker.” Second, the
Initial Decision Maker expressed its view that it was “not
qualified to decide the five legal issues” raised in Willow Creek’s
letter, “and in fairness cannot respond to” Hy Barr and Barlow’s
“requests either.”
¶24 Willow Creek then filed a rule 60 motion in the district
court asking for relief from the court’s earlier order dismissing
8. Neither party appealed the district court’s conclusion that the
Initial Decision applied only against Hy Barr.
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its claims. See Utah R. Civ. P. 60 (allowing parties to file for
“[r]elief from judgment or order”). Willow Creek argued that the
Initial Decision Maker’s refusal to decide Willow Creek’s claims
qualified as “newly discovered evidence” that justified relief.
Willow Creek also argued for the first time that it was entitled to
relief because arbitration agreements are “unenforceable where a
plaintiff has been defrauded.”
¶25 The district court denied Willow Creek’s motion in
January 2021. Willow Creek did not file a new or amended
notice of appeal after the denial of that motion.
ISSUE AND STANDARD OF REVIEW
¶26 On appeal, Willow Creek argues that the district court
erred in dismissing its claims against Hy Barr and Barlow. A
district court’s “grant or denial of a motion to dismiss is a
question of law” that we review for correctness. South Jordan City
v. Summerhays, 2017 UT App 18, ¶ 5, 392 P.3d 855 (quotation
simplified). We do “not defer in any degree” to the district
court’s “determination of law.” Id. (quotation simplified).
ANALYSIS
¶27 In its brief, Willow Creek acknowledges that it “does not
dispute” that the contract included an arbitration agreement.
Rather, Willow Creek contends that its claims “against Hy Barr
and Mr. Barlow are outside the contract and therefore not subject
to” the arbitration agreement. In the alternative, Willow Creek
argues that it was “inconsistent with substantial justice” to
require Willow Creek to take its claims to an Initial Decision
Maker who “declined to address the claims.” Willow Creek
further argues that an arbitration agreement is “unenforceable”
when a plaintiff alleges fraud.
20200260-CA 9 2021 UT App 116Willow Creek Assoc. v. Hy Barr Inc.
¶28 First, we reject Willow Creek’s argument that its claims
were “outside the contract.” Because Willow Creek’s claims
“arose out of or related to” the contract, Willow Creek needed to
submit them to the Initial Decision Maker. And because Willow
Creek did not do so, the district court correctly dismissed those
claims.
¶29 Second, we cannot consider Willow Creek’s arguments
regarding the Initial Decision Maker’s refusal to hear the claims
or the applicability of arbitration agreements to fraud claims.
Willow Creek’s claim in this regard arose after the notice of
appeal was filed, but it never filed a new or amended notice of
appeal. As a result, we do not have appellate jurisdiction to
consider these arguments.
I. Willow Creek’s Claims “Arose Out of or Related to” the
Contract9
¶30 As noted, Willow Creek and Hy Barr agreed in their
contract that all claims “arising out of or relating to the
Contract” must be presented to the Initial Decision Maker. After
Willow Creek later filed twelve claims against Hy Barr and
Barlow in district court, the court concluded that all of the claims
“arose out of or related to” the contract and dismissed the claims
that Willow Creek had not first submitted to the Initial Decision
Maker.
¶31 On appeal, Willow Creek maintains that its claims “arise
outside the scope of the contract and are therefore not subject to”
the arbitration agreement. We hold that the phrase “arising out
of or relating to” should be interpreted broadly and that Willow
9. Willow Creek makes similar arguments about this language
with respect to its claims against Hy Barr and Barlow. Our
resolution applies to both.
20200260-CA 10 2021 UT App 116Willow Creek Assoc. v. Hy Barr Inc.
Creek’s claims “arose out of or related to” the contract. As such,
Willow Creek should have first submitted them to the Initial
Decision Maker. Because it did not, the district court correctly
dismissed them.
¶32 If parties have “an agreement to arbitrate” and one party
refuses to arbitrate, “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.” Utah Code Ann.
§ 78B-11-108(1)(b) (LexisNexis 2017).
¶33 This directive reflects Utah’s “strong public policy in
favor of arbitration.” Chandler v. Blue Cross Blue Shield of Utah,
833 P.2d 356, 358 (Utah 1992). Utah courts have repeatedly
recognized that it “is the policy of the law in Utah to interpret
contracts in favor of arbitration.” Central Fla. Invs., Inc. v.
Parkwest Assocs., 2002 UT 3, ¶ 16, 40 P.3d 599 (quotation
simplified); see also Reed v. Davis County School Dist., 892 P.2d
1063, 1065 (Utah 1995) (stating that it “is the policy of the law in
Utah to interpret contracts in favor of arbitration”); Docutel
Olivetti Corp. v. Dick Brady Sys., Inc., 731 P.2d 475, 479 (Utah
1986) (noting Utah’s “policy of encouraging extrajudicial
resolution of disputes when the parties have agreed not to
litigate”).
¶34 Before enforcing an arbitration agreement, we must
resolve two questions.
¶35 First, we must decide if there is an “enforceable
agreement to arbitrate.” Utah Code Ann. § 78B-11-108(1)(b).
When doing so, we remain cognizant of Utah’s “strong public
policy in favor of arbitration.” Chandler, 833 P.2d at 358. But,
ultimately, “the intentions of the parties are controlling.” Central
Fla. Invs., 2002 UT 3, ¶ 12. “[W]e first look to the plain language
within the four corners of the agreement to determine the
intentions of the parties.” Id. And “[i]f the language within the
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four corners of the contract is unambiguous, the parties’
intentions are determined from the plain meaning of the
contractual language, and the contract may be interpreted as a
matter of law.” Id.
¶36 Second, we must determine “which claims the parties
intended to be subject to arbitration.” Peterson & Simpson v. IHC
Health Services, Inc., 2009 UT 54, ¶ 18, 217 P.3d 716. On this
question too, we recognize a preference for arbitration—i.e., “we
encourage arbitration by liberal interpretation of the arbitration
provisions themselves.” Cade v. Zions First Nat’l Bank, 956 P.2d
1073, 1077 (Utah Ct. App. 1998) (quotation simplified).
¶37 Here, we readily conclude that there was an enforceable
arbitration agreement. Indeed, Willow Creek has conceded as
much, stating that it “does not dispute that the parties’
agreement contains an agreed upon [dispute-resolution]
process.”
¶38 We also conclude that this arbitration agreement applied
to claims against Barlow in his personal capacity. Under the
contract, “claims” “include[d] other disputes and matters in
question between the Owner and Contractor.” The contract
primarily defined the term “Contractor” as “Hy Barr, Inc.,” but it
also stipulated that the term “Contractor” included “the
Contractor’s authorized representative.” The contract then
identified “Hyrum Barlow” as the “Contractor’s representative.”
¶39 In its brief, Willow Creek notably “does not dispute” that
Barlow qualified as a Contractor. Thus, because it stands
undisputed that Barlow was a “Contractor” under this contract,
Willow Creek was contractually required to first raise any claims
it had against him to the Initial Decision Maker.
¶40 Because Willow Creek concedes that there was an
enforceable arbitration agreement, and because that agreement
20200260-CA 12 2021 UT App 116Willow Creek Assoc. v. Hy Barr Inc.
applied to the claims made against both Hy Barr and Barlow, the
remaining question is whether Willow Creek’s claims fell within
the scope of that agreement. We conclude that they did.
¶41 “When we interpret a contract,” we start with its plain
language. Brady v. Park, 2019 UT 16, ¶ 53, 445 P.3d 395. “If the
language within the four corners of the contract is unambiguous,
the parties’ intentions are determined from the plain meaning of
the contractual language, and the contract may be interpreted as
a matter of law.” Central Fla. Invs., 2002 UT 3, ¶ 12. And in
“many cases, we need look no further than the plain language of
the contract, because that language may unambiguously tell us
what the parties intended.” Ocean 18 LLC v. Overage Refund
Specialists LLC (In re Excess Proceeds from Foreclosure of 1107
Snowberry St.), 2020 UT App 54, ¶ 22, 474 P.3d 481.
¶42 Our analysis is guided by “the ordinary and usual
meaning of the words.” South Ridge Homeowners’ Ass’n v. Brown,
2010 UT App 23, ¶ 1, 226 P.3d 758 (quotation simplified); see also
Pugh v. Stockdale & Co., 570 P.2d 1027, 1029 (Utah 1977); Berman
v. Berman, 749 P.2d 1271, 1273 (Utah Ct. App. 1988). And when
assessing such meaning, we often look to “standard, non-legal
dictionaries.” Warburton v. Virginia Beach Fed. Sav. & Loan Ass’n,
899 P.2d 779, 782 (Utah Ct. App. 1995).
¶43 Here, we start—and ultimately end—with the plain
language of the arbitration agreement. Willow Creek and Hy
Barr agreed that claims between them would go first to an Initial
Decision Maker. They further agreed that “claims” included
disputes “arising out of or relating to” the contract.
¶44 “Arising out of” means to “spring up, come into
existence or notice.” Oxford English Dictionary online,
“arise” (definition 18a). And the verb “arise” describes
something that “originate[s] from a source.” Arise, Merriam-
Webster online, (definition 1b), https://www.merriam-
20200260-CA 13 2021 UT App 116Willow Creek Assoc. v. Hy Barr Inc.
webster.com/dictionary/arise [https://perma.cc/REE5-9ES2].
“Arise” also means to “stem” or “result” from something. Arise,
Black’s Law Dictionary (11th ed. 2019).
¶45 The phrase “related to” more generally describes
things that have “some connection with” each other. Oxford
English Dictionary online, “relate” (definition 6a). Put
differently, “relate to” is used “to connect (something) with
(something else).” Relate to, Merriam-Webster online, (definition
1), https://www.merriam-webster.com/dictionary/relate%20to
[https://perma.cc/GY9V-GK4V]. Something is “related” when it
is “[c]onnected in some way” or has a “relationship to or with”
the other thing. Related, Black’s Law Dictionary (11th ed. 2019).
¶46 When used together, the phrase “relating to” broadens
the reach of “arising out of.” See Coregis Ins. v. American Health
Found., Inc., 241 F.3d 123, 128–29 (2d Cir. 2001) (explaining that
“‘related to’ is typically defined more broadly” than “arising out
of”). In this sense, a claim “need only have some logical or causal
connection to the agreement to be related to it.” In re Remicade
(Direct Purchaser) Antitrust Litig., 938 F.3d 515, 524 (3d Cir. 2019)
(quotation simplified).
¶47 Given these principles, courts have commonly given
broad interpretations to provisions like the one at issue here. The
United States Supreme Court, for example, held that an
arbitration agreement that covered claims “arising out of or
relating to” a contract was “easily broad enough to encompass”
fraudulent-inducement claims. Prima Paint Corp. v. Flood
& Conklin Mfg. Co., 388 U.S. 395, 406 (1967). And the Eighth
Circuit held that an arbitration agreement that applied to claims
“arising out of or relating to” an agreement was “the broadest
language the parties could reasonably use to subject their
disputes to [arbitration], including collateral disputes that relate
to the agreement containing the clause.” Fleet Tire Service of N.
Little Rock v. Oliver Rubber Co., 118 F.3d 619, 620–21 (8th Cir.
20200260-CA 14 2021 UT App 116Willow Creek Assoc. v. Hy Barr Inc.
1997). Other courts have held similarly. See, e.g., JLM Indus., Inc.
v. Stolt-Nielsen SA, 387 F.3d 163, 172 (2d Cir. 2004); Polyflow,
L.L.C. v. Specialty RTP, L.L.C, 993 F.3d 295, 303–04 (5th Cir. 2021);
Gore v. Alltel Commc’ns, LLC, 666 F.3d 1027, 1034 (7th Cir. 2012);
Newmont U.S.A. Ltd. v. Insurance Co. of N. Am., 615 F.3d 1268,
1274–75, 1275 n.5 (10th Cir. 2010).
¶48 Applied here, “arising out of or relating to” is broad
enough to cover Willow Creek’s claims. Willow Creek’s cross-
claim included general allegations, several of which alleged that
Hy Barr and Barlow “failed” to do certain things “as required by
the Contract.” Willow Creek alleged, for example, that Hy Barr
and Barlow “failed to pay subcontractors and suppliers,” “failed
to provide bonds,” and failed to “complete the Project”—all “as
required by contract.” Willow Creek’s generalized reference to
the fact that such claims stemmed from the “contract”
demonstrates that those claims were subject to the contract’s
arbitration agreement.
¶49 So too with the more specific language included in the
claims themselves. For example, Willow Creek complained of
Hy Barr and Barlow’s failures to “pay subcontractors” and
“perform their work in competent, workmanlike manners.” But
in the contract, the parties agreed that the Contractor would pay
subcontractors: “The Contractor shall pay each Subcontractor no
later than seven days after receipt of payment from [Willow
Creek].” The parties also agreed that the Contractor would
“require each Subcontractor to make payments to Sub-
subcontractors in a similar manner.” And as explained above,
“Contractor” included both Hy Barr and Barlow. The claims
against Hy Barr and Barlow were therefore directly linked to
specific contractual provisions.
¶50 Willow Creek also complained of Hy Barr and Barlow’s
failure to “perform their work in competent, workmanlike
manners.” But in the contract, the parties detailed the necessary
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renovations and agreed that the “Contractor” “shall be solely
responsible for, and have control over, construction means,
methods, techniques, sequences and procedures and for
coordinating all portions of the Work under the Contract.” The
contract also stated that the “Contractor” would ensure that the
“materials and equipment” would be “of good quality” and that
the work would be “free from defects.” And the contract further
required the “Contractor” to comply with “laws, statutes,
ordinances, codes, rules and regulations.” Because the contract
explained what work Hy Barr and Barlow were required to do
and how they were required to do it, Willow Creek’s claims that
Hy Barr and Barlow “failed to perform their work in competent,
workmanlike manners” originate from the contract.
¶51 In short, Willow Creek’s claims either directly stemmed
from the contract or at least had “some logical or causal
connection” to it. In re Remicade (Direct Purchaser) Antitrust Litig.,
938 F.3d at 524. Given the broad interpretation that we give to
the arbitration provision, we readily conclude that these claims
“arose out of or related to” the contract. As a result, Willow
Creek was required to submit them to the Initial Decision Maker.
Because it failed to do so, the district court correctly dismissed
those claims.10
10. Willow Creek also argues that the arbitration agreement
should be deemed unenforceable because it is “unfair” to make
Willow Creek submit claims to someone who lacks “legal
expertise.” But to properly preserve an issue for appeal, an
“issue must be specifically raised” to the district court and
“supported by evidence and relevant legal authority.” Donjuan v.
McDermott, 2011 UT 72, ¶ 20, 266 P.3d 839. While Willow Creek
made passing reference to this argument below, it did not
support this reference with developed argument that was based
on “relevant legal authority.” Id. This argument is accordingly
(continued…)
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II. This Court Lacks Appellate Jurisdiction to Consider the
Arguments Willow Creek Raised in Its Rule 60 Motion
¶52 Willow Creek next argues that, even if its claims were
required to go to the Initial Decision Maker, this court should
still consider those claims because not doing so would be
“unfairly prejudicial to Willow Creek’s ability to obtain
substantial justice.” In Willow Creek’s view, this is so because
the Initial Decision Maker “declined to address the claims” and
(…continued)
unpreserved. And because Willow Creek does not assert in its
appellate brief that this argument is subject to a preservation
exception, it fails. See State v. Johnson, 2017 UT 76, ¶¶ 14–17, 416
P.3d 443.
In any event, the parties anticipated that the Initial
Decision Maker might not be able to resolve all potential claims.
This is presumably why they included a provision in the
contract that allowed the Initial Decision Maker to “advise the
parties” that it was “unable to resolve [a] Claim” if “it would be
inappropriate for the Initial Decision Maker” to do so. But even
with this recognition, the parties still also agreed that all claims
“arising out of or relating to” the contract must first go to the
Initial Decision Maker—which is the very thing that would
allow the Initial Decision Maker to decide, for example, that it
would be unable to resolve any particular claim.
While Willow Creek now apparently regards this agreed-
upon sequencing to be imprudent, this is not a basis for us to
undo the contract. See Ted R. Brown & Assocs., Inc. v. Carnes Corp.,
753 P.2d 964, 970 (Utah Ct. App. 1988) (“[A] court may not make
a better contract for the parties than they have made for
themselves . . . .”). As a result, these claims were subject to the
arbitration agreement. And for the reasons explained above,
Willow Creek’s failure to first submit them to arbitration was
grounds for the district court to dismiss them.
20200260-CA 17 2021 UT App 116Willow Creek Assoc. v. Hy Barr Inc.
because arbitration agreements (allegedly) cannot apply to fraud
claims. We cannot address these arguments, however, because
Willow Creek raised them for the first time below after the notice
of appeal was filed and yet never filed an amended notice of
appeal. Moreover, Willow Creek has not presented us with any
reason to review them as unpreserved grounds for overturning
the district court’s ruling.
¶53 In the briefing and arguments on the motion to dismiss,
Willow Creek argued that its claims were “completely outside
the contract,” that the arbitration agreement could not “replace[]
the legislature’s statutes of limitations,” and that the Initial
Decision had given Hy Barr and Barlow “timely notice of Willow
Creek’s claims.” But Willow Creek never argued that the Initial
Decision Maker had refused to consider its claims or that
arbitration agreements cannot apply to fraud claims. Instead, it
raised those arguments for the first time in a rule 60 motion,
which was after it had filed a notice of appeal from the earlier
order dismissing its claims.11
¶54 Rule 60 allows a court to “relieve a party” from an order
under certain circumstances. Utah R. Civ. P. 60(b). But when a
party files a notice of appeal before the court enters an order
disposing of a rule 60 motion, the notice of appeal “is effective to
appeal only from the underlying judgment.” Utah R. App. P.
4(b)(2). If the party wants the appellate court to also consider the
district court’s disposition of the rule 60 motion, the “party must
file a notice of appeal or an amended notice of appeal within the
11. Indeed, Willow Creek could not have challenged the Initial
Decision Maker’s refusal to hear these claims in its notice of
appeal, because the Initial Decision Maker had not made that
decision yet. This is likely why Willow Creek argued that the
Initial Decision Maker’s decision was “newly discovered
evidence” that justified relief from the district court’s order.
20200260-CA 18 2021 UT App 116Willow Creek Assoc. v. Hy Barr Inc.
prescribed time.” Id. If there is no new or amended notice of
appeal filed after the denial of the rule 60 motion, “an appellate
court lacks jurisdiction to consider issues raised” in the rule 60
motion. Li-Huang Pon v. Brewer, 2020 UT App 99, ¶ 7, 468 P.3d
581; see also Dole v. Dole, 2018 UT App 195, ¶ 40, 437 P.3d 464(noting that a party’s failure to amend a notice of appeal after
entry of judgment on a post-trial motion deprives a court of
“jurisdiction to consider” its “arguments related to [a] post-trial
motion”).
¶55 Again, Willow Creek did not raise these issues until its
rule 60 motion, which was filed and ruled on after the notice of
appeal, but Willow Creek did not file an amended notice of
appeal after that ruling. As a result, we “lack jurisdiction to
consider” those arguments now. See Dole, 2018 UT App 195,
¶ 40.12
12. In theory, Willow Creek could have argued that the district
court committed plain error by not recognizing, in its initial
dismissal of the claims, that fraud claims are not subject to
arbitration agreements. But Willow Creek did not make that
plain error argument in its brief, so it is not before us now. See
State v. Peterson, 881 P.2d 965, 968 (Utah Ct. App. 1994) (refusing
to consider an issue raised “for the first time on appeal” when
the party did not argue plain error).
In any event, plain error occurs only when the error
“should have been obvious to the district court,” and to establish
obviousness, the party “must show that the law governing the
error was clear at the time the alleged error was made.” Veracity
Networks LLC v. MCG S. LLC, 2019 UT App 53, ¶ 27, 440 P.3d 906(quotation simplified). This was not so here. Willow Creek
points to Energy Claims Ltd. v. Catalyst Inv. Group Ltd., 2014 UT
13, 325 P.3d 70. But in that case, the supreme court held that a
“forum selection clause [is] unenforceable” when a party claims
(continued…)
20200260-CA 19 2021 UT App 116Willow Creek Assoc. v. Hy Barr Inc.
CONCLUSION
¶56 Willow Creek’s claims against Hy Barr and Barlow “arose
out of or related to” the contract. Willow Creek was therefore
contractually obligated to take those claims to the Initial
Decision Maker. Because it did not, the district court correctly
dismissed those claims. Moreover, because Willow Creek’s
additional arguments about the enforceability of the arbitration
agreement are outside of this court’s appellate jurisdiction, we
cannot consider them. We accordingly affirm.
(…continued)
that “the contract was entered into fraudulently.” Id. ¶¶ 51–52
(emphasis added). Here, however, Willow Creek does not claim
that its contract with Hy Barr was “entered into fraudulently.”
Rather, it complains only of fraud that it believes occurred
during the parties’ subsequent business dealings. Willow Creek
points to no authority that obviously establishes that parties
cannot agree to arbitrate any claims of fraud that arise from their
subsequent business dealings.
20200260-CA 20 2021 UT App 116