Hitorq v. TCC Veterinary Services

2020 UT App 123
THE UTAH C OURT OF APPEALS
HITORQ LLC AND LISA P ASQUARELLO,
Appellants,
v.
TCC VETERINARY SERVICES INC., T YLER S. STIENS, A RTZ VETMED
SERVICES PLLC, AND J OHN A RTZ,
Appellees.
Opinion
No. 20180971-CA
Filed August 20, 2020
Third District Court, Silver Summit Department
The Honorable Kara L. Pettit
The Honorable Kent R. Holmberg
No. 160500473
Stephen K. Christiansen and Sam Meziani, Attorneys
for Appellants
Joseph E. Wrona, Jared C. Bowman, and Steven
Drew Parkinson, Attorneys for Appellees
J UDGE J ILL M. P OHLMAN authored this Opinion, in which J UDGES
G REGORY K. ORME and R YAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 	HITORQ 	LLC 	and 	Lisa 	Pasquarello 	(collectively,
Plaintiffs) appeal the district court’s order compelling them to
arbitrate their claims against Tyler S. Stiens, TCC Veterinary
Services 	Inc., 	John 	Artz, 	and 	Artz 	Vetmed 	Services 	PLLC
(collectively, Defendants). They also appeal the district court’s
refusal to stay the arbitration proceedings. We affirm.

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BACKGROUND
¶2 	Pasquarello, Artz, and Stiens are all veterinarians who
practiced 	veterinary 	medicine 	together 	in 	Park 	City, 	Utah.
Beginning in 2011, they practiced at the Silver Creek Animal
Clinic (the Clinic), which was a limited liability company that
operated in a building owned by the Silver Creek Animal Clinic
Real Estate LLC (the Real Estate Company), another limited
liability 	company. 	Each 	veterinarian 	owns 	an 	individual
corporate entity, each of which, in turn, has an interest in both
the 	Clinic 	and 	the 	Real 	Estate 	Company 	(collectively, 	the
Companies). Specifically, Pasquarello is the sole member of
HITORQ LLC (HITORQ), which has a 25% membership interest
in the Companies. Artz is the sole member of Artz Vetmed
Services PLLC (Vetmed), which also has a 25% membership
interest in the Companies. And Stiens is the sole owner of TCC
Veterinary Services Inc. (TCC), which has a 50% membership
interest in the Companies.
¶3 	In September 2015, Artz agreed to purchase HITORQ’s
membership interest in the Companies for a cash payment and
the assumption of remaining debt. The closing date for the sale
was 	scheduled 	for 	November 	14, 	2015—not 	long 	before
Pasquarello’s 	planned 	move 	out 	of 	state—and 	Pasquarello
intended to continue working at the Clinic until the sale closed.
But the sale did not close, and Pasquarello alleged that Artz and
Stiens refused to allow her to work at the Clinic after November
13, 2015. It is undisputed that in June 2016, Artz and Stiens voted
to expel HITORQ from its membership in the Companies on the
basis that Pasquarello had failed to be reasonably productive in
the practice of veterinary medicine with the Clinic.
¶4 	In November 2016, Plaintiffs filed suit against Defendants.
Notably, Plaintiffs attached the Clinic’s operating agreement (the
Operating Agreement) to the complaint. The complaint alleged
ten causes of action, but we describe and discuss only the three
that are relevant to this appeal.

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¶5 	Plaintiffs’ first cause of action was for breach of contract
against Artz and Vetmed (the Contract Claim). As part of the
Contract Claim, Plaintiffs alleged that the Operating Agreement
required 	that 	memberships 	in 	the 	Clinic 	and 	the 	Real
Estate 	Company 	be 	sold 	together.1 	Plaintiffs 	alleged 	that
the 	terms 	of 	Artz’s 	agreement 	to 	purchase 	HITORQ’s
membership interest in the Companies included his promises to,
among 	other 	things, 	pay 	a 	sum 	to 	Pasquarello, 	assume
HITORQ’s debt related to its purchase of the membership in
the 	Real 	Estate 	Company, 	“pay 	HITORQ 	its 	share 	of 	the
profits and losses as well as the accounts receivable through
the closing date, [and] continue thereafter to pay HITORQ
its share of accounts receivable until they were paid in full.”
Also 	as 	part 	of 	the 	Contract 	Claim, 	Plaintiffs 	alleged 	that
Artz 	prepared 	a 	written 	agreement 	that 	did 	not 	comport
with 	the 	purchase 	agreement 	in 	that 	it 	failed 	to
include provisions for, among other things, “the sale of the
Real 	Estate 	membership” 	and 	“the 	payment 	of 	accounts
receivable.”
¶6 	According to Plaintiffs, Artz and Vetmed breached the
purchase agreement in a number of ways, including “[f]ailing to
purchase the membership interests,” failing to make the cash
payment, 	failing 	to 	“pay 	HITORQ 	profits 	and 	accounts
receivable 	by 	November 	14, 	2015,” 	and 	“[p]reventing
Pasquarello from working after November 13, 2015.”
1. The Operating Agreement states, “In the case of any voluntary
or mandatory buy-out of a Member’s interest in the [Clinic], the
Members agree that the purchasing Members shall also acquire
the selling Member’s ownership interest in [the Real Estate
Company] on the same terms and conditions as set forth herein.
In addition, the selling Member shall pay directly or by setoff all
fees 	and 	reasonable 	expenses 	incurred 	by 	the 	[Clinic] 	or
Members to effectuate the transfer(s).”

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¶7 	In their second cause of action, Plaintiffs sought damages
from Artz and Vetmed for breaching the “duty of good faith
and 	fair 	dealing” 	(the 	Good 	Faith 	Claim). 	As 	part 	of 	the
Good Faith Claim, Plaintiffs alleged that under the Operating
Agreement, 	the 	Clinic’s 	members 	were 	paid 	monthly
distributions (Clinic Debt Payments), which they used to “pay
their 	respective 	debts 	for 	the 	purchase 	of 	their 	Clinic
membership interests,” and that since December 2015, Artz and
Vetmed took Plaintiffs’ Clinic Debt Payments for their own use,
which 	left 	Plaintiffs 	unable 	to 	meet 	their 	own 	financial
obligations. Also, as part of the Good Faith Claim, Plaintiffs
alleged that Artz did not obtain the financing for the sale
despite 	telling 	Pasquarello 	that 	he 	had 	obtained 	sufficient
financing, 	and 	that 	Artz 	demanded 	modifications 	to 	the
purchase agreement well into 2016, saying there were other
“large 	subjects 	to 	address 	before 	moving 	deeper 	into 	the
contract.” According to Plaintiffs, Artz and Vetmed breached the
duty of good faith and fair dealing by, among other things,
“[w]rongfully taking HITORQ’s Clinic Debt Payments while
failing to close” the sale, making false representations about
financing, failing to meet the obligations under the purchase
agreement, 	demanding 	modifications 	to 	the 	purchase
agreement, and voting to expel HITORQ as a member of the
Clinic.
¶8 	The eighth cause of action sought dissolution of the
Companies 	(the 	Dissolution 	Claim). 	As 	part 	of 	that 	claim,
Plaintiffs alleged that Defendants denied them “the rights and
benefits in both entities, changed the character, profits and losses
of 	the 	Clinic[,] 	and 	devalued 	. 	. 	. 	Plaintiffs’ 	membership.”
Plaintiffs further alleged that Defendants acted “in a manner that
is illegal, oppressive, and directly harmful to Plaintiffs” and that
therefore good cause existed for judicial supervision of the
winding up of the Companies.
¶9 	TCC and Vetmed, both members of the Clinic, filed a
notice of their election to purchase HITORQ’s interest in the

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Clinic in lieu of the Clinic’s dissolution. In the notice, TCC and
Vetmed reserved their right under the Operating Agreement to
mediate and arbitrate.
¶10 	Defendants moved to compel arbitration in accordance
with the arbitration provision of the Operating Agreement. That
provision states,
Any Member involved in a dispute regarding the
enforcement or interpretation of this Agreement
may 	elect 	to 	have 	such 	dispute 	referred 	to
non-binding mediation or binding arbitration. In
the alternative, all Members involved in such a
dispute may elect to have their dispute heard by a
court of competent jurisdiction in the State of Utah.
According to Defendants, this provision was triggered because
HITORQ, Vetmed, and TCC were all members of the Clinic and
thus “agreed to put any disputes ‘regarding the enforcement or
interpretation of this Agreement’ to an arbitrator.” Defendants
pointed out that the Contract Claim “ma[de] reference to” the
Operating Agreement’s term that “the real estate membership
[must] be sold with the clinic membership” and alleged breach
based on the proposed written agreement’s failure to contain a
term for the sale of the real estate membership; that the Good
Faith 	Claim 	referred 	to 	the 	Operating 	Agreement’s 	terms
regarding the Clinic Debt Payments and alleged breach based on
Defendants’ failure to deliver those payments to Plaintiffs and
Defendants’ vote to expel Plaintiffs from the Clinic; and the
Dissolution Claim asked for judicial dissolution, which is “a
remedy from within the Clinic Operating Agreement.”2 Hence,
2. Defendants cited the Operating Agreement’s provision stating
that the Clinic “will be dissolved and its affairs must be wound
up only upon the written consent of the Members, when the
(continued…)

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Defendants asserted that all Plaintiffs’ claims “deal with the
enforcement 	or 	interpretation 	of 	the 	Clinic’s 	Operating
Agreement” and “are subject to this arbitration provision.”
¶11 	Plaintiffs 	opposed 	Defendants’ 	motion 	to 	compel
arbitration, arguing that because their causes of action did “not
seek to enforce a provision of the Operating Agreement and
[did] not require an interpretation” of it, they were not subject to
its 	arbitration 	provision. 	Concerning 	the 	Contract 	Claim,
Plaintiffs argued that the claim was based on Defendants’ breach
of the purchase agreement, not the Operating Agreement, and
that the complaint’s references to the Operating Agreement were
“only to explain why it may have been important to . . . sell both
[the 	Clinic 	and 	Real 	Estate 	Company] 	memberships
simultaneously.” Similarly, Plaintiffs maintained that the Good
Faith Claim did not allege a breach of the Operating Agreement
and asserted that the “fact that the Operating Agreement may or
may not have given the parties the authority to make [Clinic
Debt 	Payments] 	has 	no 	bearing 	upon 	whether 	[Artz 	and
Vetmed’s] breach of the contract to purchase and the resulting
fallout 	support 	a 	covenant 	of 	good 	faith.” 	And 	as 	for 	the
Dissolution Claim, Plaintiffs asserted that instead of being based
on 	Defendants’ 	breach 	of 	the 	Operating 	Agreement, 	the
Dissolution Claim was based on the fact that Defendants “have
acted and are acting in an oppressive manner that has [been] and
is directly harmful to [Plaintiffs], or are acting in a fraudulent
manner.” Thus, Plaintiffs asserted, “statutory grounds” existed
for dissolution and “judicial dissolution has nothing to do with
the interpretation or enforcement of an operating agreement.”
(…continued)
[Clinic] has no existing Members or upon entry of a decree of
judicial dissolution.”

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¶12 	Defendants responded that although the Contract Claim
alleged a violation of the purchase agreement, “the key areas of
dispute” still fell within the arbitration provision. For example,
although Plaintiffs alleged that the failure to sell both the Clinic
and Real Estate Company memberships was “a violation of the
purchase agreement,” it was the Operating Agreement that
required 	those 	memberships 	to 	be 	sold 	together. 	Likewise,
Defendants highlighted that while Plaintiffs alleged that the
failure to pay profits and accounts receivable was “a violation of
the purchase agreement,” the Operating Agreement “governs
profits and distributions.” Regarding the Good Faith Claim,
Defendants 	maintained 	that 	determining 	whether 	“Plaintiffs
were entitled to receive the Clinic Debt Payments or any other
distributions has to be answered by interpreting the Operating
Agreement.” As to the Dissolution Claim, Defendants asserted
that “[w]hether [they] acted as [Plaintiffs] alleged”—denying
Plaintiffs the “rights and benefits” in the Companies, changing
the profits and losses of the Clinic, and devaluing Plaintiffs’
membership—“requires 	an 	interpretation 	of 	the 	Operating
Agreement because [it] addresses those issues.”
¶13 	The district court heard oral argument on Defendants’
motion to compel arbitration. In its ruling, the court first noted
that it was undisputed that an agreement to arbitrate was in the
Operating Agreement, to which HITORQ, Vetmed, and TCC
were members. The court also observed that it was required “to
liberally interpret the arbitration clause and construe it in favor
of arbitration.” Applying the scope of that arbitration clause to
the claims in Plaintiffs’ complaint, the court ruled that “there is a
dispute involving the enforcement and interpretation of the
Operating 	Agreement” 	and 	that 	the 	three 	claims 	at 	issue
therefore “are subject to the arbitration provision.”3
3. With respect to the other claims in Plaintiffs’ complaint, the
district court ruled that only one claim (fraud) was not subject to
(continued…)

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¶14 	Specifically, the Contract Claim and the Good Faith Claim
involve a dispute over enforcement or interpretation of the
Operating Agreement in reference to “whether or not the real
estate 	membership 	is 	supposed 	to 	be 	sold 	together”—even
though “there’s a dispute as to whether or not that’s even
implicated or whether that is in the complaint.” The court also
determined 	that 	those 	claims 	involve 	enforcement 	or
interpretation 	of 	the 	Operating 	Agreement’s 	provisions
regarding “if the selling member is to pay the expenses related to
the sale and transfer of her interest” and regarding if the Clinic
would pay profits and accounts receivable. In so ruling, the
court noted that it was not necessarily agreeing with Defendants’
interpretation of the complaint. As for the Dissolution Claim, the
court 	determined 	that 	the 	premise 	that 	Defendants 	denied
Plaintiffs 	“the 	right 	and 	benefits 	of 	membership 	under 	the
Operating Agreement” was “dependent on . . . [the] enforcement
or interpretation of the [Operating Agreement] to get to whether
or not there should be dissolution.” As a result, the court
concluded that the Dissolution Claim “is a claim in dispute
regarding 	enforcement 	or 	interpretation” 	of 	the 	Operating
Agreement 	and 	“is 	subject 	to 	the 	arbitration 	[provision].”
Thereafter, the court appointed an arbitrator.
¶15 	In 	September 	2017, 	as 	the 	arbitration 	process 	was
ongoing, Plaintiffs filed a motion in district court to stay the
arbitration proceedings. In the motion, Plaintiffs asserted that
Defendants’ election to purchase, supra ¶ 9, was irrevocable and
meant that Defendants were statutorily required to purchase
HITORQ’s membership interest in the Clinic. Plaintiffs asked the
court to stay the arbitration proceedings, determine the fair
market value of HITORQ’s membership interest, and enter an
(…continued)
the arbitration provision. That claim is not at issue on appeal.
Supra ¶ 4.

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20180971-CA 	9 	2020 UT App 123
order directing the purchase. See generally Utah Code Ann.
§ 48-3a-702(7)–(9) (LexisNexis 2015) (explaining that after an
election to purchase has been filed and “upon application of any
party, the district court shall stay the proceedings . . . and
determine the fair market value of the applicant member’s
interest in the limited liability company as of the day before the
date on which the petition” to dissolve was filed).
¶16 	Defendants 	opposed 	the 	motion. 	They 	argued 	that
once the district court issued the order compelling arbitration, all
issues 	“related 	to 	or 	arising 	out 	of” 	the 	Dissolution
Claim became subject to arbitration. Defendants also contended
that 	Plaintiffs 	had 	already 	raised 	and 	lost 	the 	statutory
election issue before the arbitrator and that the motion to stay
was an attempt to “relitigate” the issue. Plaintiffs disputed that
they had received an unfavorable ruling on the issue from
the arbitrator.
¶17 	In response, Plaintiffs insisted that the district court did
not order the election-to-purchase issue into arbitration. They
also argued that the statutory remedy was “outside the scope of
the Operating Agreement.”
¶18 	After 	a 	hearing, 	the 	district 	court 	denied 	Plaintiffs’
motion. It explained that the notice of election to purchase was
filed in response to the Dissolution Claim and that because it
had compelled that cause of action into arbitration, “anything
related” 	to 	the 	Dissolution 	Claim, 	including 	the
election-to-purchase issue, was also compelled into arbitration.
In 	this 	respect, 	the 	court 	declined 	to 	“carve 	out” 	the
election-to-purchase issue from its order compelling arbitration,
reasoning 	that 	such 	a 	result 	would 	lead 	to 	“two 	courts
adjudicating the Dissolution Claim.”
¶19 	The parties proceeded through the arbitration process,
which 	resulted 	in 	the 	arbitrator 	issuing 	a 	decision. 	In 	his
decision, the arbitrator granted judgment in favor of Defendants

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20180971-CA 	10 	2020 UT App 123
on the Contract Claim and the Good Faith Claim. With respect to
the Dissolution Claim, the arbitrator decided that “dissolution
[was] not a viable remedy.” Yet the arbitrator decided that in
lieu of dissolution, Plaintiffs would sell their interest in the
Companies to Artz, both Artz and Stiens, or, alternatively, a
third party. The arbitrator also weighed evidence and valued
Plaintiffs’ interest in the Companies.
¶20 	Plaintiffs thereafter moved the district court to vacate
the 	arbitration 	award 	on 	the 	ground 	that 	the 	arbitrator
“exceeded his authority in deciding issues beyond the scope
of the parties’ arbitration agreement.” In essence, Plaintiffs’
motion to vacate raised the same arguments they had made in
moving to stay the arbitration proceedings and in opposing
Defendants’ motion to compel arbitration. After a hearing, the
court 	again 	rejected 	Plaintiffs’ 	arguments 	and 	denied 	their
motion to vacate the arbitration award.
¶21 	Finally, 	Defendants 	moved 	to 	confirm 	the 	arbitration
award. The district court granted the motion and confirmed the
arbitrator’s decision. Plaintiffs appeal.
ISSUES AND STANDARDS OF REVIEW
¶22 	Plaintiffs 	raise 	two 	issues 	on 	appeal. 	First, 	they
contend that the district court erred in granting Defendants’
motion 	to 	compel 	arbitration 	of 	the 	Contract 	Claim, 	the
Good Faith Claim, and the Dissolution Claim. “Whether a trial
court correctly decided a motion to compel arbitration is a
question of law which we review for correctness, according no
deference to the district judge.” MacDonald Redhawk Invs. v.
Ridges at Redhawk, LLC, 2006 UT App 491, ¶ 2, 153 P.3d 787
(cleaned up).
¶23 	Second, 	Plaintiffs 	contend 	that 	the 	district 	court
“incorrectly 	refused 	to 	stay 	the 	[arbitration] 	proceedings

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and determine the market value of the [Clinic] . . . when
the Dissolution Claim arose by statute and not by contract.”
The 	resolution 	of 	this 	issue 	likewise 	turns 	on 	whether 	the
district court correctly compelled arbitration of the Dissolution
Claim. 	We 	therefore 	review 	the 	district 	court’s 	denial 	of
Plaintiffs’ 	motion 	to 	stay 	the 	arbitration 	proceedings
for correctness. See id. To the extent that the resolution of
this 	issue 	involves 	a 	question 	of 	statutory 	interpretation,
we 	review 	the 	district 	court’s 	interpretation 	of 	a 	statute
for correctness. Graham v. Albertson’s LLC, 2020 UT 15, ¶ 9, 462
P.3d 367.
ANALYSIS
I. Motion to Compel Arbitration
¶24 	Plaintiffs 	contend 	that 	the 	district 	court 	erred 	in
compelling the parties to arbitrate the claims at issue on appeal.
They 	assert 	that 	the 	plain 	language 	of 	the 	Operating
Agreement’s 	arbitration 	provision 	“applies 	only 	to 	those
disputes that involve the ‘interpretation’ of language in the
Operating Agreement or the ‘enforcement’ of a term of the
Operating Agreement.” According to Plaintiffs, the Contract
Claim, the Good Faith Claim, and the Dissolution Claim “are
based on legal grounds that are independent of” the Operating
Agreement 	because 	they 	“do 	not 	seek 	the 	‘enforcement 	or
interpretation’ of the Operating Agreement.” Thus, Plaintiffs
assert, those claims are not subject to arbitration.
¶25 	We 	begin 	by 	setting 	forth 	the 	principles 	that 	guide
whether these disputes are arbitrable. We then address each
claim in turn.

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A. 	Guiding Principles
¶26 	“In the event of a disagreement about whether there is
an applicable agreement to arbitrate a dispute,” Mariposa Express,
Inc. v. United Shipping Sols., LLC, 2013 UT App 28, ¶ 16, 295 P.3d
1173 	(cleaned 	up), 	the 	Utah 	Uniform 	Arbitration 	Act
provides that “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 	2018). 	See 	generally 	id.
§§ 78B-11-101 	to 	-131 	(the 	Utah 	Uniform 	Arbitration 	Act).
The parties agree that there is an enforceable agreement to
arbitrate. The sole question we must decide is whether the
claims at issue fall within the scope of that agreement. Resolving
this question depends on, first, the breadth of the arbitration
provision and, second, the nature of the claims. See CardioNet,
Inc. v. Cigna Health Corp., 751 F.3d 165, 172 (3d Cir. 2014).
¶27 	When 	interpreting 	agreements, 	Utah 	courts 	bear 	in
mind “our policy of encouraging arbitration.” Central Fla. Invs.,
Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 16, 40 P.3d 599. Indeed, “it is
the policy of the law in Utah to interpret contracts in favor
of 	arbitration, 	in 	keeping 	with 	our 	policy 	of 	encouraging
extrajudicial 	resolution 	of 	disputes 	when 	the 	parties 	have
agreed 	not 	to 	litigate.” 	Id. 	(cleaned 	up); 	see 	also 	id. 	¶ 	24
(reiterating “the strong policy of the law in Utah in favor of
arbitration”).
¶28 	However, even with that policy in mind, the “intentions
of the parties are controlling.” Id. ¶ 12. And “we first look to the
four corners of the agreement to determine the intentions of the
parties.” Id. (cleaned up). “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.” Id.; see also Zions Mgmt. Services v. Record, 2013 UT 36, ¶ 36,
305 P.3d 1062 (“State and federal policies favoring arbitration

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cannot be used to defeat the plain language of the parties’
contract, nor can they be used to create ambiguities where there
are none.” (cleaned up)).
¶29 	The Operating Agreement’s arbitration provision states,
“Any 	Member 	involved 	in 	a 	dispute 	regarding 	the
enforcement 	or 	interpretation 	of 	this 	Agreement 	may 	elect
to have such dispute referred to . . . binding arbitration.”
Under 	this 	provision’s 	plain 	language, 	only 	those 	disputes
“regarding 	the 	enforcement 	or 	interpretation” 	of 	the
Operating Agreement are subject to arbitration. “Enforcement”
is the “act or process of compelling compliance with a law,
mandate, 	command, 	decree, 	or 	agreement.” 	Enforcement,
Black’s 	Law 	Dictionary 	(11th 	ed. 	2019); 	see 	also
Enforcement, Cambridge Dictionary, https://dictionary.cambridge
.org/us/dictionary/english/enforcement [https://perma.cc/3TYQ-
T8H3] (defining “enforcement” as “the process of making people
obey a law or rule, or making a particular situation happen or
be accepted”); Enforce, Merriam-Webster, https://www.merriam-
webster.com/dictionary/enforcement 	[https://perma.cc/CG7X-
E5XV] (stating that “enforce” means “to cause to take effect or to
be fulfilled”). And “interpretation” is the “ascertainment of a
text’s meaning,” especially the “determination of how a text
most fittingly applies to particular facts.” Interpretation, Black’s
Law Dictionary (11th ed. 2019); see also Interpretation, Macmillan
Dictionary, https://www.macmillandictionary.com/us/dictionary
/american/interpretation [https://perma.cc/HG32-B3B4] (defining
“interpretation” 	as 	“an 	explanation 	of 	the 	meaning 	or
importance of something”).
¶30 	When it comes to examining the nature of claims to
determine whether they fall within the scope of an arbitration
provision, we again bear in mind Utah’s strong policy favoring
arbitration. See Central Fla. Invs., 2002 UT 3, ¶¶ 16, 24; Mariposa
Express, 2013 UT App 28, ¶ 17. Under that policy, when an
arbitration 	agreement 	exists, 	“we 	encourage 	arbitration 	by
liberal interpretation of the arbitration provisions themselves.”

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Edwards v. Carey, 2017 UT App 73, ¶ 13, 397 P.3d 797 (cleaned
up). 	Given 	this 	approach 	to 	deciding 	the 	breadth 	of 	an
arbitration 	provision, 	we 	similarly 	deem 	it 	appropriate 	to
liberally interpret the nature of the claims at issue.
¶31 	Utah law on the subject of how to examine the nature of
claims in this context is sparse. We therefore “look to the law of
other states and to federal case law for guidance on these
issues.” Buzas Baseball, Inc. v. Salt Lake Trappers, Inc., 925 P.2d 941,
947 n.5 (Utah 1996) (explaining that where “Utah law on [an
arbitration] issue is sparse,” and where the relevant “provisions
of 	the 	Utah 	Arbitration 	Act 	are 	nearly 	identical 	to 	those
contained in the Federal Arbitration Act,” we “look to the law of
other states and to federal case law for guidance on” the issue).
In this regard, the analysis of CardioNet, Inc. v. Cigna Health Corp.,
751 F.3d 165 (3d Cir. 2014), is helpful to the issue at hand.
¶32 	In CardioNet, the United States Court of Appeals for the
Third Circuit explained that to assess “whether a particular
dispute falls within the scope of an arbitration clause, we focus
on the factual underpinnings of the claim rather than the legal
theory alleged in the complaint.” Id. at 173 (cleaned up). This
approach prevents “a creative and artful pleader from drafting
around an otherwise-applicable arbitration clause.” Id. (cleaned
up). In other words, “the arbitrability of a given dispute depends
not 	on 	the 	particular 	cause 	of 	action 	pleaded, 	but 	on 	the
relationship 	of 	the 	arbitration 	clause 	at 	issue 	to 	the 	facts
underpinning a plaintiff’s claims.” Id. at 176.
¶33 	For instance, if an arbitration clause in an agreement is
“limited in scope to disputes regarding the performance or
interpretation of the Agreement,” id. at 174 (cleaned up), and if
certain 	claims 	depend 	on 	a 	document 	distinct 	from 	that
agreement, the claims will fall outside the arbitration clause
when 	“the 	resolution 	of 	[the] 	claims 	does 	not 	require
construction of, or even reference to, any provision” in the
agreement, id. at 175–76 (cleaned up). Similarly, the claims will

HITORQ v. TCC Veterinary Services
20180971-CA 	15 	2020 UT App 123
fall 	outside 	the 	scope 	of 	the 	arbitration 	clause 	when
“interpreting the Agreement is not required, or even useful, in
resolving” the claims. Id. at 176–77.
¶34 	We now apply these principles to Plaintiffs’ claims.
B. 	Plaintiffs’ Claims
1. 	The Contract Claim
¶35 	Plaintiffs argue that the Contract Claim “sought to enforce
an oral contract” in which Artz agreed to purchase HITORQ’s
interest in the Clinic. Without addressing the nature of the
Contract Claim itself, Plaintiffs generally assert that the action to
enforce the oral purchase agreement is “not an action to ‘enforce’
or ‘interpret’ the Operating Agreement” given that they are
“separate contracts.” And because the purchase agreement lacks
an arbitration clause, Plaintiffs maintain that the Contract Claim
was not subject to arbitration.
¶36 	Defendants respond that the Contract Claim “required
the interpretation and enforcement of the Operating Agreement”
because 	Plaintiffs 	alleged 	that 	the 	Operating 	Agreement
“imposed certain requirements on the sale and purchase of LLC
membership interests that governed the members’ conduct in
shaping and performing any buyout of interest.” Defendants
point to the complaint, which, in Defendants’ view, alleged that
“it was somehow a violation of the purchase agreement to not
sell the [Real Estate Company] shares with the [Clinic] shares as
required by” the Operating Agreement. They also point to the
complaint’s 	allegation 	that 	Artz 	and 	Vetmed 	breached 	the
purchase agreement “by not paying the ‘profits and accounts
receivable’ that were owed to Pasquarello,” emphasizing that
Pasquarello’s “right to profits and receivables arose out of the
Operating Agreement.”

HITORQ v. TCC Veterinary Services
20180971-CA 	16 	2020 UT App 123
¶37 	Applying the principles discussed above, we conclude
that the district court did not err in ordering the Contract Claim
into 	arbitration. 	On 	the 	face 	of 	the 	complaint, 	Plaintiffs’
allegations about the purchase agreement involved a dispute
about 	the 	enforcement 	or 	interpretation 	of 	the 	Operating
Agreement. The facts underpinning Plaintiffs’ claim regarding
breach of the purchase agreement included Artz and Vetmed’s
alleged failure to “pay HITORQ its share of the profits and losses
as well as the accounts receivable through the closing date, [and]
continue 	thereafter 	to 	pay 	HITORQ 	its 	share 	of 	accounts
receivable until they were paid in full.” The underlying facts also
included 	Artz 	and 	Vetmed 	preventing 	Pasquarello 	from
working after November 13, 2015. These allegations called into
question 	whether 	Plaintiffs’ 	membership 	rights 	under 	the
Operating Agreement had been respected, including whether
Plaintiffs 	had 	been 	properly 	paid 	under 	the 	Operating
Agreement and whether Pasquarello was entitled to work at the
Clinic under the terms of the Operating Agreement. In addition,
the Contract Claim involved Artz’s failure to draft a written
agreement 	with 	provisions 	for, 	among 	other 	things, 	“the
payment of accounts receivable” and “the sale of the Real Estate
membership.” These missing provisions of the written purchase
agreement implicated corresponding provisions of the Operating
Agreement.
¶38 	Because 	many 	of 	the 	factual 	underpinnings 	of 	the
Contract Claim referenced the Operating Agreement, resolving
the Contract Claim could require ascertaining or explaining the
meaning 	of 	the 	Operating 	Agreement’s 	provisions. 	See
Interpretation, Black’s Law Dictionary (11th ed. 2019). In other
words, resolving allegations surrounding the Contract Claim
could require “construction of” and “reference to” provisions of
the Operating Agreement. See CardioNet, 751 F.3d at 175–76. As a
result, the fact that the purchase agreement did not itself include
an arbitration provision does not necessarily mean that the
Contract Claim did not fall within the Operating Agreement’s
arbitration provision.

HITORQ v. TCC Veterinary Services
20180971-CA 	17 	2020 UT App 123
¶39 	Moreover, it is significant that the Contract Claim sought
damages from Vetmed, a party to the Operating Agreement but
not alleged to be a party to the purchase agreement. By naming
Vetmed as a party to a cause of action that alleged violations of
the 	Operating 	Agreement, 	Plaintiffs 	apparently 	sought 	to
compel Vetmed’s compliance with the Operating Agreement. See
Enforcement, 	Black’s 	Law 	Dictionary 	(11th 	ed. 	2019). 	Thus,
resolving the Contract Claim, as against Vetmed in particular,
also would require enforcement of the Operating Agreement.
¶40 	We 	acknowledge 	that 	whether 	the 	Contract 	Claim
involved a dispute regarding the enforcement or interpretation
of the Operating Agreement, thus falling within its arbitration
provision, is a close call. But we construe the nature of the
Contract Claim broadly, given our strong policy in favor of
arbitration. See Central Fla. Invs., 2002 UT 3, ¶¶ 16, 24; Edwards,
2017 UT App 73, ¶ 13. And because Plaintiffs have not shown
that their allegations fell outside the scope of the arbitration
provision, they have not established error in the district court’s
decision. See Nelson v. Liberty Acquisitions Servicing LLC, 2016 UT
App 92, ¶ 20, 374 P.3d 27 (“On appeal, the burden is upon the
appellant to convince us that the trial court committed error.”
(cleaned up)). We therefore affirm the district court’s decision
that the Contract Claim was arbitrable.
2. 	The Good Faith Claim
¶41 	Plaintiffs assert that the Good Faith Claim is not subject to
arbitration for the same reasons as the Contract Claim. See supra
¶ 35. They do little to distinguish the two claims.
¶42 	On 	the 	other 	hand, 	Defendants 	address 	the 	claims
separately. They point out that the Good Faith Claim as stated in
the 	complaint 	asserted 	“an 	entitlement” 	to 	the 	Clinic 	Debt
Payments and that resolving whether Pasquarello was “entitled
to any salary or distribution” after she stopped working at the
Clinic “requires an interpretation” of the Operating Agreement’s

HITORQ v. TCC Veterinary Services
20180971-CA 	18 	2020 UT App 123
provision 	“that 	a 	member 	‘shall 	not 	receive 	salary 	and
disbursements’ for missed workdays.” Additionally, Defendants
point 	out 	that 	the 	Good 	Faith 	Claim 	alleged 	that 	“it 	was
somehow a breach for Artz to vote to expel Pasquarello from
[the 	Clinic].” 	According 	to 	Defendants, 	this 	too 	“required
interpretation of the Operating Agreement because the grounds
for expulsion and the procedure for expulsion are set forth” in
the Operating Agreement.
¶43 	Applying 	the 	guiding 	principles 	set 	forth 	above, 	we
similarly conclude that the district court did not err in ordering
the Good Faith Claim into arbitration. Like the Contract Claim,
which also primarily rested on the purchase agreement, the
Good 	Faith 	Claim 	referenced 	provisions 	of 	the 	Operating
Agreement. See CardioNet, 751 F.3d at 175–76. Indeed, the Good
Faith 	Claim 	relied 	on 	allegations 	that 	Artz 	and 	Vetmed
wrongfully deprived Plaintiffs of the Clinic Debt Payments.
Because, as the complaint acknowledged, Plaintiffs’ entitlement
to 	the 	Clinic 	Debt 	Payments 	arose 	from 	the 	Operating
Agreement, 	this 	aspect 	of 	the 	Good 	Faith 	Claim 	involved
enforcing 	and 	ascertaining 	the 	meaning 	of 	the 	Operating
Agreement’s provisions regarding the Clinic Debt Payments. See
Enforcement, 	Black’s 	Law 	Dictionary 	(11th 	ed. 	2019);
Interpretation, Black’s Law Dictionary (11th ed. 2019).
¶44 	The Good Faith Claim also relied on and sought damages
for Artz and Vetmed’s expulsion of HITORQ as a member of the
Clinic. Liberally construing the nature of the Good Faith Claim,
see Edwards, 2017 UT App 73, ¶ 13, we agree with Defendants
that 	because 	the 	procedure 	and 	grounds 	for 	expulsion 	are
governed by the Operating Agreement, this aspect of the claim
also involved a dispute over enforcement or interpretation of the
Operating Agreement. Additionally, the fact that the Good Faith
Claim was raised against Vetmed, a party to the Operating
Agreement 	but 	not 	alleged 	to 	be 	a 	party 	to 	the 	purchase
agreement, further suggested that resolving the claim would
involve enforcement of the Operating Agreement.

HITORQ v. TCC Veterinary Services
20180971-CA 	19 	2020 UT App 123
¶45 	Like the Contract Claim, whether the Good Faith Claim
involved a dispute over the enforcement or interpretation of the
Operating Agreement is a close question. But again, Plaintiffs
have not sufficiently addressed the nature of the claim and have
not done enough to show error in the district court’s decision.
See Nelson, 2016 UT App 92, ¶ 20. Accordingly, we affirm the
district court’s decision that the Good Faith Claim was subject to
the arbitration provision.
3. 	Dissolution Claim
¶46 	Plaintiffs assert that “the right to dissolve a Utah limited
liability company is based exclusively on statutory grounds.”
According to Plaintiffs, the Dissolution Claim “is based upon
and 	seeks 	to 	enforce 	the 	[Utah 	Revised 	Uniform 	Limited
Liability Company Act], not any provision of the Operating
Agreement.” Put differently, the Dissolution Claim “seeks a
specific remedy authorized by . . . statute” and “does not seek to
enforce any specific term of the Operating Agreement.”
¶47 	Defendants 	counter 	that 	Plaintiffs 	grounded 	the
Dissolution Claim “in a very specific allegation that Artz and
Stiens had violated [their] membership rights that were set forth
in 	the 	[Clinic’s] 	Operating 	Agreement.” 	Defendants 	further
assert 	that 	because 	Plaintiffs 	“specifically 	grounded” 	the
Dissolution Claim 	in 	purported violations of 	the 	Operating
Agreement, 	Plaintiffs’ 	“alleged 	right 	to 	dissolution 	was
contingent upon a finding that the [Operating Agreement] was
being violated.” According to Defendants, the Dissolution Claim
asserted 	that 	“dissolution 	was 	necessary 	because 	Artz 	was
withholding salary and/or distributions” from Plaintiffs, and
that 	because 	the 	Operating 	Agreement 	provides 	that
“distributions 	are 	supposed 	to 	stop 	once 	a 	member 	stops”
working, it “was therefore necessary to interpret the Operating
Agreement to resolve” the Dissolution Claim.

HITORQ v. TCC Veterinary Services
20180971-CA 	20 	2020 UT App 123
¶48 	Because 	Plaintiffs 	insist 	that 	the 	Dissolution 	Claim
presented purely a statutory issue, we begin by laying out the
statute. It provides, in relevant part,
A limited liability company is dissolved, and its
activities and affairs must be wound up, upon the
occurrence of any of the following:
(1) an event or circumstance that the operating
agreement states causes dissolution; [or] . . .
(5) on application by a member, the entry by the
district court of an order dissolving the limited
liability 	company 	on 	the 	grounds 	that 	the
managers 	or 	those 	members 	in 	control 	of 	the
limited liability company:
(a) have acted, are acting, or will act in a
manner that is illegal or fraudulent; or
(b) have acted, are acting, or will act in a
manner that is oppressive and was, is, or
will be directly harmful to the applicant . . . .
Utah Code Ann. § 48-3a-701 (LexisNexis 2015).
¶49 	Here, 	the 	Dissolution 	Claim 	alleged 	that 	good 	cause
existed 	for 	judicial 	supervision 	of 	the 	winding 	up 	of 	the
Companies. In making this claim, Plaintiffs seemed to invoke
section 48-3a-701(5)(b), alleging that Defendants acted “in a
manner 	that 	is 	illegal, 	oppressive, 	and 	directly 	harmful 	to
Plaintiffs.” Plaintiffs supported this ground for dissolution by
alleging that Defendants denied them “the rights and benefits in
both [Companies], changed the character, profits and losses of
the Clinic[,] and devalued . . . Plaintiffs’ membership.”

HITORQ v. TCC Veterinary Services
20180971-CA 	21 	2020 UT App 123
¶50 	Given these allegations as stated in the complaint, and the
related factual underpinnings, we conclude that the Dissolution
Claim 	involved 	“a 	dispute 	regarding 	the 	enforcement 	or
interpretation of this Agreement.” Plaintiffs tied the claim to
whether 	Defendants’ 	conduct 	was 	“illegal, 	oppressive, 	and
directly harmful to Plaintiffs,” and the specific conduct at issue
included whether Defendants denied Plaintiffs “the rights and
benefits of membership” in both Companies and denied them
the “profits and losses of the Clinic.” In fact, Plaintiffs agreed
before the district court that the basis for the Dissolution Claim
was that Plaintiffs, as members, were “not being granted the
distributions and the right[s] that [they were] entitled to under
the Operating Agreement.” Deciding whether Plaintiffs were
being granted distributions and receiving all to which they were
entitled under the Operating Agreement inherently involves
enforcing the Operating Agreement because it amounts to a
process of “compelling compliance with [the] . . . agreement.”
See Enforcement, Black’s Law Dictionary (11th ed. 2019). As
alleged, 	the 	claim 	also 	involved 	an 	interpretation 	of 	the
Operating Agreement’s provisions, which establish and define
Plaintiffs’ rights. Thus, because the factual underpinnings of the
Dissolution Claim—that Plaintiffs were being denied their rights
under the Operating Agreement—constituted a dispute over the
enforcement and the interpretation of the Operating Agreement,
the claim was subject to arbitration. See CardioNet, 751 F.3d at 173
(focusing on “the factual underpinnings of the claim” to decide
“whether 	a 	particular 	dispute 	falls 	within 	the 	scope 	of 	an
arbitration clause” (cleaned up)).
¶51 	In summary, we conclude that Plaintiffs have not shown
error in the district court’s decisions regarding the Contract
Claim and the Good Faith Claim, and we conclude that the
Dissolution 	Claim 	involved 	”a 	dispute 	regarding 	the
enforcement or interpretation of [the Operating Agreement].”
Consequently, Plaintiffs’ claims are all subject to the Operating
Agreement’s 	arbitration 	provision. 	We 	therefore 	affirm 	the

HITORQ v. TCC Veterinary Services
20180971-CA 	22 	2020 UT App 123
district 	court’s 	grant 	of 	Defendants’ 	motion 	to 	compel 	the
arbitration of these claims.4
II. Motion to Stay the Arbitration Proceedings
¶52 	Plaintiffs next contend that the district court erred in
denying their request to stay the arbitration proceedings to value
their interest in the Companies. Specifically, Plaintiffs assert that
“the valuation proceeding,” which was triggered by the filing of
the 	notice 	of 	election 	to 	purchase, 	was 	not 	subject 	to 	the
arbitration provision. In Plaintiffs’ view, when they sought a
stay and asked the district court to determine the fair market
value of the Clinic, the court was required to grant the “stay to
allow a prompt fair market valuation of the member’s interest.”
Defendants counter that “[o]nce the [Dissolution Claim] was
ordered into arbitration, all decisions related to dissolution or
remedies in lieu of dissolution needed to be made by the
Arbitrator 	and 	not 	by 	the 	district 	court.” 	We 	agree 	with
Defendants.
¶53 	Utah Code section 48-3a-702 provides that in a proceeding
to dissolve a company under Utah Code section 48-3a-701(5),
“the limited liability company may elect, or if it fails to elect, one
or more members may elect to purchase the interest in the
4. Plaintiffs also contend that the district court incorrectly denied
their motion to vacate the arbitration award and incorrectly
confirmed the arbitration award. In particular, Plaintiffs assert
“the 	arbitrator 	exceeded 	his 	authority 	by 	deciding 	the
dissolution and oral contract claims” because the claims “do not
concern the ‘enforcement or interpretation’” of the Operating
Agreement. This contention is thus tethered to Plaintiffs’ first
contention that the claims are not arbitrable. Indeed, Plaintiffs
tell us that the “sole focus for this Court is the arbitrability of
claims.” Because we reject Plaintiffs’ first contention, it follows
that this contention is likewise unavailing.

HITORQ v. TCC Veterinary Services
20180971-CA 	23 	2020 UT App 123
limited liability company owned by the applicant member [i.e.,
the member seeking dissolution,] at the fair market value of the
interest.” Utah Code Ann. § 48-3a-702(1) (LexisNexis 2015).
Thus, in lieu of dissolution, the limited liability company or its
members instead may elect to purchase the interest of the
applicant member. See id.; see also id. § 48-3a-702(13) (stating that
after a court orders the purchase of the applicant member’s
interest, the court “shall dismiss the petition to dissolve the
limited liability company under Subsection 48-3a-701(5)”).
¶54 	In this case, after Plaintiffs filed the Dissolution Claim and
thereby 	initiated 	dissolution 	proceedings 	under 	section
48-3a-701(5), two members of the Clinic—TCC and Vetmed—
invoked section 48-3a-702(1), filing notice of their election to
purchase HITORQ’s interest in the Clinic in lieu of the Clinic’s
dissolution. 	The 	election 	to 	purchase 	cannot 	be 	viewed 	in
isolation. Rather, the election to purchase filed under section
48-3a-702(1) flows from, and is intertwined with, the dissolution
proceeding 	initiated 	under 	section 	48-3a-701(5). 	Although
Plaintiffs essentially view “the valuation proceeding” as distinct
from the Dissolution Claim, the election to purchase was filed in
response to, and as part of, the dissolution proceeding. See id.
§ 48-3a-702(1). Instead of commencing a separate “valuation
proceeding,” Artz and Vetmed’s election to purchase presented
an issue about the possible remedies for Plaintiffs’ claim that the
Companies should be dissolved. And once the Dissolution Claim
was 	before 	the 	arbitrator, 	the 	arbitrator 	was 	authorized 	to
address 	and 	resolve 	the 	election-to-purchase 	issue. 	See 	id.
§ 78B-11-122(3) (2018) (explaining that other than awards of
punitive damages and attorney fees, “an arbitrator may order
any remedies as the arbitrator considers just and appropriate
under the circumstances of the arbitration proceeding”). Hence,
the 	arbitrator, 	not 	the 	court, 	was 	called 	on 	to 	resolve 	the
election-to-purchase issue, and we agree with the district court
that when the Dissolution Claim was sent to arbitration, the
election-to-purchase issue was also compelled into arbitration.

HITORQ v. TCC Veterinary Services
20180971-CA 	24 	2020 UT App 123
¶55 	Because we have already determined that the district
court correctly ordered the Dissolution Claim into arbitration,
supra ¶¶ 48–50, we reject Plaintiffs’ position that “the valuation
proceeding” was not subject to the arbitration provision. We
thus affirm the court’s refusal to stay the arbitration proceedings.
III. Attorney Fees on Appeal
¶56 	Defendants request that we award them the attorney fees
that they have incurred in defending this appeal. In so doing,
they rely on Buzas Baseball, Inc. v. Salt Lake Trappers, Inc., 925 P.2d
941 (Utah 1996), a case that rests on a statute that since has been
revised. See id. at 952–54 (citing Utah Code Ann. § 78-31a-16
(Michie 1992)). The current version of that statute authorizes this
court to award reasonable attorney fees on an appeal from an
order confirming an arbitration award. See Utah Code Ann.
§ 78B-11-126(3) 	(LexisNexis 	2018) 	(“On 	application 	of 	a
prevailing party to a contested judicial proceeding under [the
sections governing confirmation, vacatur, and modification of an
arbitrator’s award], the court may add reasonable attorney fees
and other reasonable expenses of litigation incurred in [such a]
proceeding . . . .”); see also Duke v. Graham, 2007 UT 31, ¶ 30, 158
P.3d 540 (indicating that “[b]ecause an appeal is a contested
judicial proceeding after an arbitration award is made,” this
statute “also authorizes courts to award fees for appeals relating
to the validity of an arbitration award”).
¶57 	The award of attorney fees under Utah Code section
78B-11-126(3) “is not automatic”; rather, the decision falls within
the discretion of the court. Duke, 2007 UT 31, ¶ 31. Our supreme
court has instructed that in exercising this discretion, courts
should 	take 	into 	consideration 	the 	competing 	policies
underlying the statute. Id. ¶¶ 31–32. On the one hand is the
“policy 	of 	finality,” 	which 	“favor[s] 	the 	enforceability 	of
arbitration 	awards 	and 	discourage[s] 	relitigation 	of 	valid
awards.” Id. ¶ 31 (cleaned up). On the other hand, courts “must
balance the need not to unduly burden parties with the threat of

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20180971-CA 	25 	2020 UT App 123
fees when they have legitimate concerns about the legal validity
of an award.” Id. For example, an “appeal that has little legal
support would likely merit an award of fees to discourage
unnecessary delays and costs in enforcing an award, while a
close case would not.” Id. ¶ 32.
¶58 	Defendants 	have 	the 	burden 	to 	show 	why 	they 	are
entitled to attorney fees on appeal. See Utah R. App. P. 24(a)(9)
(“A party seeking attorney fees for work performed on appeal
must state the request explicitly and set forth the legal basis for
an award.”). But aside from citing Buzas Baseball and tersely
stating that they are entitled to such an award, they have done
little to support their request. Critically, Defendants have not
addressed the relevant policies and have not articulated why an
award 	of 	attorney 	fees 	on 	appeal 	is 	warranted 	under 	the
circumstances of this case, one in which we have determined
that two of Plaintiffs’ arguments are close calls. Without more,
and given that the award of attorney fees in this context is “not
automatic,” we decline to grant Defendants’ request. See Duke,
2007 UT 31, ¶ 31.
CONCLUSION
¶59 	The district court did not err in ordering the parties to
arbitrate the Contract Claim, the Good Faith Claim, and the
Dissolution Claim. Similarly, the district court did not err in
declining to stay the arbitration proceedings. Accordingly, we
affirm.