Wright v. Goldstein

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.

A. Additional Background

¶ 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.

B. Standard of Review and Applicable Law

¶ 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.

C. Analysis

¶ 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

1098-99.

¶ 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.

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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.

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