       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _______________

Filing Date: August 19, 2014

Docket No. 33,126

JASON B. DAMON and MICHELLE T.
DAMON,

       Plaintiffs-Appellees,

v.

STRUCSURE HOME WARRANTY, LLC,

       Defendant-Appellant,

and

BRIAN MCGILL, an individual; JANELLE
MCGILL, an individual; CARRIE TRAUB,
individually and as a licensed associate real
estate broker; JUMP, INC. d/b/a COLDWELL
BANKER LEGACY, a New Mexico corporation;
VISTA DEL NORTE DEVELOPMENT, LLC,
a New Mexico Limited Liability Company; and
STILLBROOKE HOMES, INC., a New Mexico
corporation,

       Defendants.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Nan G. Nash, District Judge

Tal Young, P.C.
Steven Tal Young
Albuquerque, NM

for Appellees

Brownstein Hyatt Farber Schreck, LLP
Eric R. Burris

                                       1
Adam E. Lyons
Albuquerque, NM

for Appellant

                                         OPINION

VANZI, Judge.

{1}     In this case, we address whether a party to a home warranty contract can enforce an
arbitration provision contained in that warranty against a nonparty who nevertheless seeks
to invoke its benefits. Plaintiffs Michelle and Jason Damon sued Defendant StrucSure Home
Warranty, LLC, (StrucSure) and others for structural defects in their home. StrucSure filed
a motion to compel arbitration pursuant to a provision in the home warranty it issued to the
builder and original purchasers of the property. The district court denied the motion on the
basis that Plaintiffs were not parties to the StrucSure warranty and, because they did not
bargain for or acknowledge the arbitration provision, they could not be bound by it. We
reverse. We hold that a nonparty who directly seeks the benefits of a warranty agreement is
equitably estopped from refusing to comply with a reasonable arbitration provision contained
in the same agreement.

BACKGROUND

{2}     StrucSure is a warranty administrator providing express limited warranty protection
for homeowners. The warranty at issue in this case was part of a contract between the builder
(Stillbrooke Homes) and the original purchasers of Plaintiffs’ home. It includes an
enrollment application form signed by a representative of StrucSure, the builder, and the
original owners, as well as a warranty coverage booklet, which describes the terms of the
warranty. The enrollment application form states that, by signing, the parties specifically
acknowledge that they agree with all of the requirements in the warranty coverage booklet.
The warranty coverage booklet provides that:

       [w]ithin the limitations described within these two documents, your Builder
       warrants that your home will be free from qualifying structural defects, and,
       if provided, will be free from defects in workmanship/ materials and the
       delivery portion of systems (piping, wiring, ductwork).

It also contains a binding arbitration agreement, which states, in relevant part:

       Any claims, disagreements, disputes or controversies involving You, Your
       Builder, the Administrator, or the Insurer, or in any combination thereof,
       which involves this Warranty, the Builder, the Home, the construction or sale
       of the Home by the Builder, or the real property upon which the Home is
       constructed, shall be submitted to arbitration. . . . The decisions of the

                                              2
        arbitrator will be final and binding, and may be entered as such in any legal
        proceeding before any court having competent jurisdiction thereof.

A “claim, disagreement, dispute or controversy” is defined as:

        an unresolved complaint or claim made under this Warranty; tort allegations,
        involving misrepresentation, nondisclosure, execution or performance of any
        contract (including this Warranty or this arbitration agreement); negligence,
        allegations regarding the breach of the duty of good faith or fair dealing,
        construction defects or deceptive trade practices.

The stated purpose of the arbitration agreement is to allow any party to the contract “to
achieve a legally binding resolution (through an independent third-party arbitration service)
of any dispute without resorting to costly and time-consuming litigation.” Finally, the
agreement, which states that it is self-activating, provides that issues regarding arbitrability
are governed by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-6 (2012).

{3}     The original owners conveyed the home to Cartus Financial, which sold the home
to Plaintiffs. The warranty documents were not part of Plaintiffs’ purchase documents with
Cartus, and Plaintiffs did not sign either document comprising the warranty. Nevertheless,
they assert that the warranty “induced” them to buy the home. At the same time, they assert
they did not know about the arbitration agreement in the warranty until after they purchased
the home.

{4}     The underlying dispute arose after the home began to exhibit signs of structural
failure. Plaintiffs initially filed a warranty claim with StrucSure but ultimately filed this
lawsuit against multiple defendants, including StrucSure. Plaintiffs’ complaint alleges that
StrucSure “served to insure the structural integrity” of their home by issuing the warranty
and conducting the investigation after Plaintiffs discovered the structural defects and that the
warranty made Plaintiffs expect the home and property were “of a certain quality” and that
the defendants, including StrucSure, would honor the warranty and remedy any structural
issues that arose. Plaintiffs also allege StrucSure was aware of the structural issues with their
home and refused to rectify them. The complaint asserts nine claims: breach of contract,
unjust enrichment, negligent misrepresentation, negligence, professional negligence, breach
of the New Mexico Unfair Practices Act, rescission, breach of warranty, and a claim for
punitive damages, although it is unclear which claims are specifically asserted against
StrucSure.

{5}    StrucSure moved to compel arbitration of Plaintiffs’ claims against it pursuant to the
terms of the arbitration agreement. The district court denied the motion, and StrucSure
timely appealed.

DISCUSSION


                                               3
{6}     This Court reviews de novo both the denial of a motion to compel arbitration and the
applicability and construction of a contractual provision requiring arbitration. Barron v.
Evangelical Lutheran Good Samaritan Soc’y, 2011-NMCA-094, ¶ 13, 150 N.M. 669, 265
P.3d 720. The parties do not dispute that the arbitration agreement in the warranty provision
is subject to the FAA. We discuss the district court’s ruling before turning to the
applicability of equitable estoppel to the facts of this case. We then address Plaintiffs’
alternative arguments as to why the district court’s decision should be affirmed.

{7}      The district court in this case relied on two cases in reaching its decision that
Plaintiffs cannot be bound to arbitrate their claims against StrucSure. Both Clay v. New
Mexico Title Loans, Inc., 2012-NMCA-102, ¶ 14, 288 P.3d 888, and AT&T Technologies,
Inc. v. Communications Workers of America, 475 U.S. 643, 648 (1986), expressly state that
“arbitration is a matter of contract and a party cannot be required to submit to arbitration any
dispute which he has not agreed to submit.” (Internal quotation marks and citation omitted.)
This language was the linchpin of the district court’s ruling. Notwithstanding the holdings
of Clay and AT&T, however, we are unpersuaded that these cases are analogous to the issue
here. We explain.

{8}      In Clay, the plaintiff failed to repay a loan secured by his vehicle from New Mexico
Title Loans. Clay, 2012-NMCA-102, ¶ 2. Two employees of the company hired to enforce
the lender’s security interest tried to repossess the plaintiff’s truck. Id. The plaintiff resisted,
and one of the employees shot him, leaving him unable to walk. Id. After the plaintiff sued
the lender, among others, the lender moved to compel arbitration, invoking a provision in
the lending agreement that committed to arbitration “any claim, dispute or controversy . . .
that in any way arises from or relates to this Agreement or the Motor Vehicle securing this
Agreement.” Id. (alteration and internal quotation marks omitted). The arbitration provision,
however, excluded the lender’s right to enforce its security interest “by using self-help.” Id.
¶ 17 (internal quotation marks omitted). At issue was whether the plaintiff’s claims fell
within the scope of the provision. Id. ¶¶ 14-28. Although we held that the plaintiff’s contract
claim fell within its scope, we held that the plaintiff’s tort claims against the lender were not
subject to the arbitration agreement. We noted that, “[i]n order to fall within the scope of the
arbitration clause, the claims at issue must bear a ‘reasonable relationship’ to the contract
in which the arbitration clause is found.” Id. ¶ 14 (citation omitted). And nothing in the
provision demonstrated that the plaintiff agreed to arbitrate claims such as those arising from
the shooting during the repossession of his truck. Id. ¶ 24. At most, Clay deals with the
subject matter of the claims subject to arbitration, not who is bound to arbitrate.1


        1
        On appeal, Plaintiffs also cite Aiken v. World Fin. Corp. of S.C., 644 S.E.2d 705
(S.C. 2007); Campos v. Homes by Joe Boyden, L.L.C., 2006-NMCA-086, 140 N.M. 122, 140
P.3d 543; and Santa Fe Techs., Inc. v. Argus Networks, Inc., 2002-NMCA-030, 131 N.M.
772, 42 P.3d 122. These cases are discussed in Clay and, like Clay, address the kinds of
claims that are subject to the arbitration clause at issue. See Clay, 2012-NMCA-102, ¶¶ 21-
25. Plaintiffs do not dispute that the claims they asserted against StrucSure fall under the

                                                 4
{9}     AT&T Technologies addresses an even more remote issue: whether a court or an
arbitrator must decide in the first instance whether parties to a collective bargaining
agreement intended to arbitrate their grievances concerning layoffs. 475 U.S. at 644. The
answer to that question has no bearing on the issue in this case. In the course of deciding that
issue, the AT&T Technologies Court noted the general rule that “a party cannot be required
to submit to arbitration any dispute which he has not agreed so to submit.” United
Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960). There are
well recognized exceptions to the general rule, however, and we turn to them now.

{10} The single issue in this case is whether Plaintiffs, as subsequent purchasers of the
home, are bound by the arbitration provision contained in the warranty coverage booklet
originally given to the initial buyers. StrucSure contends that Plaintiffs cannot voluntarily
seek the benefits of the warranty without bearing the burdens of the arbitration agreement
contained in it. StrucSure also asserts that Plaintiffs are bound by all of the warranty’s
provisions, including the arbitration agreement, because they voluntarily enforced their
rights as assignees under the warranty after taking title to the home. Because we hold that
Plaintiffs are equitably estopped from avoiding arbitration in this case, we need not decide
whether they are also assignees under the warranty.

{11} The question of who may be bound by an arbitration provision subject to the FAA
is governed by federal law. Arthur Andersen LLP, 556 U.S. at 630. At least two federal
appellate courts “have recognized five theories for binding nonsignatories to arbitration
agreements: 1) incorporation by reference; 2) assumption; 3) agency; 4) veil-piercing/alter
ego; and 5) estoppel.” Thompson-CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773, 776 (2d
Cir. 1995); see Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d
411, 417 (4th Cir. 2000). We believe the appropriate principle for evaluating whether
Plaintiffs here are bound by the arbitration provision in the warranty is estoppel, commonly
referred to as “equitable estoppel.” In the arbitration context, equitable estoppel “recognizes
that a party may be estopped from asserting that the lack of his signature on a written
contract precludes enforcement of the contract’s arbitration clause when he has consistently
maintained that other provisions of the same contract should be enforced to benefit him.”
Int’l Paper Co., 206 F.3d at 418; see Trinity Health Sys. v. MDX Corp., 180 Ohio App.3d
815, 2009 Ohio 417, 907 N.E.2d 746, at ¶ 25 (observing that a party to a contract may raise
equitable estoppel where the nonparty attempts “to enforce some aspect of the contract” and
noting that relying on one part of the contract may estop the nonparty from avoiding an
arbitration clause in the contract). Consequently, a nonparty “is estopped from refusing to
comply with an arbitration clause when it receives a direct benefit from a contract containing
an arbitration clause.” Int’l Paper Co., 206 F.3d at 418 (internal quotation marks and citation
omitted).

{12}   This Court has twice touched upon the doctrine of equitable estoppel in the



scope of the arbitration agreement and, therefore, these cases are inapposite.

                                               5
arbitration context, but we have never ultimately decided whether New Mexico would apply
the doctrine against a nonparty claimant under facts similar to this case. See Murken v.
Suncor Energy, Inc., 2005-NMCA-102, ¶¶ 6-13, 138 N.M. 179, 117 P.3d 985; Horanburg
v. Felter, 2004-NMCA-121, ¶¶ 17, 18, 136 N.M. 435, 99 P.3d 685. In Horanburg, we
considered whether a nonparty to an arbitration agreement could bind a party to the
agreement to arbitrate—the reverse of the situation in this case. 2004-NMCA-121, ¶ 18.
Although we observed that nonparties to an arbitration agreement generally “are not bound
by the agreement and are not subject to, and cannot compel, arbitration[,]” we recognized
that there are exceptions to this general rule, including an exception for equitable estoppel.
Id. ¶¶ 16-17. However, we concluded that, even assuming New Mexico recognizes equitable
estoppel in the arbitration context, applying it was inappropriate under the facts of the case.
Id. ¶ 18. In Murken, we considered whether a party to an arbitration agreement could bind
a nonparty to arbitrate. Murken, 2005-NMCA-102, ¶¶ 6-13. There, as here, the defendant
was a party to the agreement and sought to enforce the agreement against the plaintiff, who
was not. Id. ¶ 13. This Court noted that “even if New Mexico recognized the doctrine of
equitable estoppel in the arbitration context, its application would not be appropriate in [the]
case” because the nonparty plaintiff was not “alleged to have embraced and directly
benefitted from the agreement[.]” Id. ¶¶ 12, 13.

{13} The facts of this case are markedly different from Murken. Here, Plaintiffs filed a
warranty claim with StrucSure and then later sued StrucSure, claiming the warranty issued
to the builder and original owners induced them to buy their home and that StrucSure failed
to fulfill the duties it owed Plaintiffs under the warranty. Clearly, Plaintiffs’ case against
StrucSure hinges on its asserted rights under the warranty agreement from which they seek
to directly benefit. We recognize that Plaintiffs contend they never signed the arbitration
agreement and that, even though they were aware of the warranty before they purchased the
home, they did not know it included the arbitration agreement until after they purchased the
home. However, unlike the Murken plaintiff, Plaintiffs here voluntarily seek to directly
benefit from the warranty by enforcing some of its terms while simultaneously attempting
to avoid one of its perceived burdens.

{14} Although we have no case on point, we find persuasive decisions from other
jurisdictions that have applied equitable estoppel under a similar set of facts. For example,
in International Paper Co., a buyer who was dissatisfied with an industrial saw sued the
manufacturer based on a contract between the manufacturer and distributor. 206 F.3d at 413.
The manufacturer sought to compel arbitration based on a provision in the manufacturer-
distributor contract to which the buyer was not a party. Id. at 414-15. As in this case, the
buyer argued that it had no knowledge of and could not be bound by the contract containing
the arbitration provision. Id. at 415. The federal district court rejected the buyer’s argument
and reasoned that, because the buyer sought to take advantage of certain commitments made
by the manufacturer to the distributor in the manufacturer-distributor contract, “it was bound
by all commitments in that contract, including the arbitration provision.” Id. The Fourth
Circuit Court of Appeals agreed and, applying principles of equitable estoppel, upheld the
district court’s decision. Id. at 416. The appeals court observed that the manufacturer-

                                               6
distributor contract provided part of the factual foundation for every claim asserted by the
buyer; the complaint alleged that the manufacturer failed to honor the warranties in the
contract, and the buyer sought damages in accordance with that contract. Id. at 418. Thus,
it reasoned, the buyer could not “seek to enforce those contractual rights and avoid the
contract’s requirement that any dispute arising out of the contract be arbitrated.” Id. (internal
quotation marks omitted).

{15} In Ex parte Dyess, 709 So. 2d 447, 448 (Ala. 1997), a customer who was injured
while test driving a car brought suit against the car dealership’s insurer under the uninsured
motorist provision of a policy issued to the dealership. There, as here, the plaintiff sought
a benefit under the policy while attempting to avoid the arbitration clause in the policy. Id.
at 449-50. The Alabama Supreme Court determined that under those circumstances, the
plaintiff could not “pick and choose the portions of the contract that he wants to apply.” Id.
at 451. It concluded that to enforce the uninsured motorist provision and not to enforce the
arbitration clause would be inconsistent with the FAA and with decisions of the United
States Supreme Court. Id.; see also Avila Group, Inc. v. Norma J. of Cal., 426 F. Supp. 537,
542 (S.D.N.Y. 1977) (“To allow [the nonparty] to claim the benefit of the contract and
simultaneously avoid its burdens would both disregard equity and contravene the purposes
underlying enactment of the [FAA].”).

{16} Based on the reasoning of the above cases, we hold that Plaintiffs, having voluntarily
chosen to seek a direct benefit from the warranty by attempting to enforce its terms against
StrucSure, may not now seek to repudiate one of the warranty’s provisions. If Plaintiffs
wished to exempt themselves from the arbitration clause, they could have chosen not to
claim and enforce any of the rights under the warranty. However, once Plaintiffs voluntarily
sought to embrace and invoke the benefits created by the warranty, they could not avoid the
arbitration provision in the warranty.

{17} On appeal, Plaintiffs make several alternative arguments as to why the arbitration
provision should not be imposed upon them. First, Plaintiffs contend that StrucSure did not
prove in the district court that it had a valid arbitration agreement with the original owners
and, therefore, Plaintiffs cannot be bound by a contract to arbitrate. Plaintiffs’ argument is
without merit. StrucSure attached the signed home enrollment application and the arbitration
provision to its motion to compel arbitration, and Plaintiffs never contested their validity.
Moreover, if there was no valid warranty between StrucSure and the original owners,
Plaintiffs, as subsequent owners, would have no basis upon which to state any warranty
claims against StrucSure. See Camino Real Mobile Home Park P’ship v. Wolfe, 1995-
NMSC-013, ¶ 18, 119 N.M. 436, 891 P.2d 1190 (“The party relying on the breach of
warranty must prove the existence of a warranty, the breach thereof, causation, and
damages.”), overruled on other grounds by Sunnyland Farms, Inc. v. Cent. N.M. Elec.
Co-op, Inc., 2013-NMSC-017, 301 P.3d 387.

{18} Plaintiffs also contend that enforcing the arbitration agreement against them would
be unfair and unconscionable and that the agreement is a procedurally unconscionable

                                               7
contract of adhesion. The district court did not rule on either of these arguments, and
Plaintiffs provide no support for their generalized assertions on appeal. We therefore do not
address them here. See Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104.

{19} We conclude that the doctrine of equitable estoppel is appropriate in this case.
Plaintiffs seek to receive a direct benefit from the agreement, and their claims against
StrucSure are therefore also subject to the arbitration provision contained in the warranty
coverage booklet. The district court’s ruling is reversed.

CONCLUSION

{20}   For the reasons set forth above, we reverse.

{21}   IT IS SO ORDERED.

                                              ____________________________________
                                              LINDA M. VANZI, Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
CYNTHIA A. FRY, Judge




                                             8
