*1 to a and conversion permits continuation Realty LANE, plan, as the Lane insurance" Robert B. lesser d/b/a "similar Plaintiff, Company, notes, maj. op. at the cost

majority see converting continuing or employee of to the precisely known cannot be health insurance URGITUS, M. Richard Ronald J. actually pur- until, employee unless, Calhoun, and Richard CB particular plan. chases a Ellis, Inc., Defendants. statute, majority as the Understanding the No. 06SA49. continuing health does, the cost to treat benefit, though fringe even as a insurance Colorado, Supreme Court of the increase not to use employee chooses En Banc. purpose, disability for benefit his 23, 2006. Oct. formula carefully worked-out deprives this employees who had gives any significance; being injured a

accepted coverage before not; those who had

meaningless over windfall policy interest public

and emasculates injured workers to

providing an incentive coverage. health While

continue their delay are hardships of transactional

potential virtually any legal proceeding, the

realities of delay in-

majority suggest cannot continuation of by requiring actual

creased increasing benefits coverage, or that

health failure to contin- employee despite his

for the employ- serves the coverage better

ue health merely points to It care needs.

ee's health employees, even this that for some

the fact meaningful incen- may provide a

option not

tive. mind, majority's interpretation my

To disability more than increase

does little by an injured employees, of certain

checks money rate is unrelated

amount recompensed services were which their appro- disability, ignoring

before their while continuity, symme-

priate considerations policy in

try, public the determination respectfully I therefore

legislative intent.

dissent. *3 Joiner,

Frascona, and Green- Goodman stein, Osofsky, Roger B. G. P.C. Matthew Boulder, Colorado, Frascona, Bock, E. Oliver Plaintiff. Attorneys for Silver, Deboskey, L. & P.C. Joe Silver Colorado, Beier, Denver, Attor- D. Martin neys for Defendants. LLP, Lyons Rich-

Rothgerber Johnson & Denver, Clark, Craig Welling R. Colo- ard K. rado, National Attorneys for Amici Curiae REALTORS® and Colorado Association of of REALTORS®. Association Opinion delivered Justice HOBBS the Court. es a over real

This case involves among Colora referral fees tate transaction were brokers who do licensed real estate Metropolitan Com Denver members of- REALTORS® mercial Association ("DMCAR") and dis when the transactions express condi case arose.1 An putes this will membership is that members tion of binding arbitration. such submit separately executed an Each of the brokers membership that includ application form for with arbitration accordance ed consent to local and interconnected requirements of organiza professional REALTOR® national tions. a alleges existence of complaint among licensed agreement fee

referral brokers, parties who are estate Colorado real entered an district court to this case.2 The DMCAR, part joined, registered first is now federally collec- houn 1. "REALTOR®" is Urgitus joined. which National As- membership used tive mark and its constituent sociation of REALTORS® alleged of REALTORS® into the state and local associations entered 2. Whether membership for the Individuals is a factual matter indicate their status. fee referral are called of these associations act, who are members Under Colorado's arbitration. whether a condition determines appears the record that the arbitrator It from REALTORS®. arbitrability fulfilled and precedent has been which Cal- REALTORS®, the Denver Board I. binding pursuant order for to see 1822-207, (2005), tion of Colorado's Lane, Plaintiff Realty Robert Lane d/b/a bringing Act. In Uniform Arbitration ("Lane") Company, is a licensed Colorado original proceeding under C.A.R. the de real estate employing broker and broker at fendant assert brokers no arbitration Realty Company. Lane He served as chief (1) existed because did financial Weberg Enterprises, officer for In- not execute corporated from 1985 until when the other, each closed, company property manager among association does not create a contract Weberg Properties, the real estate arm of organization, members of that if even Weberg's property. John In 2002 John We- arbitrate, there was an it *4 berg regarding solicited Lane's advice ceased to exist when the defendant brokers realtors who Weberg dispos- could assist membership withdrew their from DMCAR.3 ing of portfolio. his real estate alleges Lane We affirm the district court's arbitration and, that he contacted several realtors on order. hold that We district court did July 2002, he entered into a "referral fee (1) not in ordering err arbitration because agreement" Ellis, with CB Richard Incorpo- each of these licensed real estate ("CBRE") brokers had rated for "a referral of 20% on previously consented to arbitration with oth- any going deals forward with John P. We- professional er members of the berg." organization themselves; disputes among should arise complaint The alleges following. each of these brokers were members of the February after the sale of one of We- they when entered into the al- berg's properties, Fairways Shopping Plaza leged referral fee and the dis- Center, paid CBRE approximately Lane arose; putes and their consents to arbi- $52,000 as a referral fee. When a second implied trate constituted an condition of the Weberg property sold in County alleged referral fee enforceable property, Line Urgitus, employ- Ronald Act, under Colorado's Uniform Arbitration CBRE, ing broker of payment refused -2839, (2006). sections 18-22-201 to C.R.S. referral fee. Lane listing learned of a holding reasoning Our and in this case are CBRE for the sale of a Weberg proper- third limited to the cireumstance of an ty, Denver Distribution Center. Lane con- among to the lawsuit in- Calhoun, managing tacted Richard broker at CBRE, implied cludes an regarding the status of his referral condition to arbitrate. We do not by-laws decide or address whether for listings fees the two for which he had association are enforceable received no fee. Calhoun payment. refused against among and individuals absent a con- January 2005,pursuant On pro tractual relationship that would include an cedures the Denver Board implied condition as exists in this case. REALTORS®, Lane Request submitted a

Because the district court Agreement should have and to Arbitrate form to stayed pending pursu- lawsuit arbitration DMCAR. The DMCAR sent a notice of the 18-22-207(7), ant to section rather than dis- request Urgitus and Calhoun it, missing we set 8, 2005, aside the district February on requested court's a re sponse by dismissal, February Urgitus 2005.4 order of and order the lawsuit stayed pending arbitration. respond, Calhoun did not withdrew containing whether a contract bylaws require valid tion with its members to 13-22-206(3), arbitrate. is enforceable. (2006). authority 2. Whether the trial court exceeded its declining certify and abused its discretion in petitioners phrase 3. The their issues as follows: appeal. its decision for 1. agree- Whether, in the absence aof written Only 4. individuals licensed as real estate brokers ment between them to arbitrate, can be compelled they belong eligible apply to arbitrate because are for in the local formerly belonged professional organiza- to a REALTOR® association. Manual, of Practice of May and Standards on membership in DMCAR their pro- of REALTORS® Association National 2005. Two-Membership Duties and vides in "Part July 2005 to collect suit filed In his Enforcement" that: Their him, sought Lane allegedly owed fees fol- membership include the The duties on involved The brokers order. (a) by of Ethics the Code lowing: to abide li action are Colorado this both sides of Association the National filed an brokers. real estate censed (b) REALTORS®; by abide DMCAR, membership with application for regulations; rules and and its of this Board this a member of and was accepted, was (c) disputes arbitration all to submit to which the disputes for when the association by this Manual in Part ten of specified arose. Calhoun ordered court to abide provided, and procedure therein membership with for application filed award.... the arbitrators' a member DMCAR, accepted, and was was Disputes," Ten-Arbitration when "Part of this association turn, obligation partic- arose.5 provides "[t]he ordered arbitration the court which Ar- contemplated ipate in arbitration membership Urgitus application for obligationof REALTORS® ticle includes the following contained signed for DMCAR *5 firms to arbitrate to cause their (principles) provisions: matters by any award." The and be bound approved, I my application is In the event include "entitlement that must be arbitrated membership to of agree as a condition coopera- compensation to commissions and course and ethics complete the orientation of busi- that arise out the tive transactions my DMCAR; on own and to otherwise of REALTORS® relationships between ness myself familiarize thoroughly initiative and their clients REALTORS® and between of the National Ethics with the Code of Article 17 of the Stan- and customers...." REALTORS®, including of Association of the National Association of Practice dards disputes in duty business the to arbitrate provides: of REALTORS® Ethics and the Code accordance with of ... disputes of contractual In the event the the Board and Manual Arbitration of (principals) associ- REALTORS® Constitutions, Bylaws, Rules and and firms, arising out of ated with different DMCAR, As- the Colorado Regulations of REALTORS®, the relationship as their I the National Association. sociation and to shall submit REALTORS® satisfactorily complete a to agree further regula- in accordance with the arbitration non-discriminatory written and reasonable rather than their Board or Boards tions of Code, covering such Constitu- examination litigate the matter. tions, Regulations, and Bylaws, Rules and Obligations," VI-Privileges and "Article my agree that I further duty to arbitrate. 5(a), Bylaws provides of the DMCAR section my evidence initial paying dues shall act of resigns or otherwise "if a member continuing commitment to abide that and terminate, duty to membership to causes Ethics, of Consti- aforementioned Code in effect even to continues submit tutions, Regulations, Bylaws, Rules and terminated, membership lapses or is after arbitrate, time to all as from and to dispute arose while provided that amended. time was a REALTOR®." former member added). application form (Emphasis 8, 2005, notified February DMCAR provi- On contained signed for DMCAR Calhoun request to of Lane's Urgitus and Calhoun Urgitus signed. to those equivalent sions sign a form to relat- ap- and sent them signed arbitrate by reference Incorporated They sign and Ethics, did not ing to the arbitration. of Arbitration plications, Code that National Association 1973; Manual 5. Amici Curiae and Arbitration Ethics pursuant to detailed are conducted arbitrations Colorado Association REALTORS® and panel neutral real estate procedures before 25,000 that REALTOR® inform us REALTORS® Colorado; such arbitra- professionals to conduct trained that the and work in members reside adopted tions. the Code first national form.6 Three months thereafter return A. Standard Review in, they from withdrew Whether organizations. REALTOR® The transac exists is a matter of law we review de alleges tions and for which Lane Pacheco, novo. Allen v. compensation Urgitus is due from (Colo.2003); see also Parker v. Cir. Crea Calhounarose before their terminated Leadership, tive (Colo.App. P.3d membership. 2000) ("'The question arbitrability is one 18-22-2047, Pursuant to section CRS. decide."). for the court determining (2006), the district court ordered whether agreed have to submit "submit the matters described [Lane's] arbitration, question the issue in we follow complaint binding pursuant principles state law governing contract for [DMCAR]," placed the rules of the case Allen, 378; mation. City & Coun stay pending "under the outcome of the arbi- ty Court, Denver v. Dist. tration and until such time as the (Colo.1997). request that the determination of the arbitra- judgment tors to a be reduced of this Court." must .We construe the terms of the Thereafter, the district court amended its a manner that al prior tunc, pro order nune as follows: party lows each to receive the benefit of the (1) the title of the Order read shall "Order bargain, scope of the Granting Compel Plaintiffs Motion to Ar- faithfully must reflect expec reasonable bitration;" and claim com- Allen, Plaintiff's parties. tations of the at 378. P.3d pel granted arbitration is remain- interpret We must the arbitration ing Complaint claims of the are Amended in a manner best effectuates intent dismissed, prejudice. without parties. Id. *6 Urgitus sought of the district certification To scope determine the of an arbi court's appeal, pursuant order to we, must examine agreement, the tration 54(b). C.R.C.P. The district court denied the wording give in order to ascertain and effect required motion for certification and that the to the mutual intent of the as well as "parties cooperate shall in the immediate subject purposes the matter and to be accom scheduling of arbitration." plished by agreement. Marriage the In re Popack, (Colo.App.2000). 998 P.2d IL. parties' by looking We ascertain the intent to

We hold that the district court did not err plain language agree the of the arbitration (1) ordering Allen, 378; because each of ment. 71 P.3d at see also State these licensed real previ- estate brokers had Stein, Farm Mut. Auto. Ins. v.Co. 940 P.2d ously (Colo.1997) to consented arbitration with other (addressing insurance professional members of the organization policies generally). (2) themselves; among

should arise agreement will enforce We as each of these brokers were members of the when entered into the al- ambiguity written unless there is an leged agreement referral fee language; and the dis- courts should rewrite the neither (8) arose; putes agreement and their consents to arbi- nor limit its effect a strained Allen, implied Thus, trate an constituted condition of the construction. P.3d 378. alleged contract, agreement any referral fee agreement enforceable like an arbitration Act, under given according plain Colorado's Uniform Arbitration must effect be to the (2006). -289, ordinary meaning sections 13-22-2201 to C.R.S. of its terms. Id. Urgitus signed, incorporated 6. and Calhoun contend that the form documents in the accompanying request the notice of arbitration original proceeding, plainly impose record of this duty constitutes an admission that to arbi- a of arbitration even if a member does not involving trate REALTOR® members does not sign requested and return the form when to do signs arise unless the member ever, this form. How- - so. application forms and Calhoun Marriage re Po disputes.7 In ambigu ment of determining whether In ("All doubts whether 998 P.2d at 467 disputed pack, exists, must ask whether

ity we to resolved dispute is arbitrable are susceptible on its face reasonably provision arbitration."); Farmers Ins. Exch. also interpretation. Id. We favor more than one to (Colo.App.2001). Taylor, 45 P.3d v. agreement the arbitration evaluate harmony language whole and construe explicitly author- arbitration act Colorado's accepted mean generally plain compel to a cause of action izes intent employed, unless the words ing of the agree- alleges an enforceable party when an alterna parties demonstrates refus- person's and another ment is intended. Id. interpretation tive agreement. pursuant al to arbitrate arbi are found ambiguities If showing an person motion of a On the parties a afford the agreement, we tration alleging anoth- arbitrate and re in favor of arbitration presumption pursuant person's refusal to arbitrate er scope of the arbitra about the solve doubts agreement: Id.; see in favor of arbitration. clause tion (a) appear refusing party If does not Denver, at 1364. County City & motion, the court oppose not or does arbitrate; parties to order the shall Agreements Are Arbitration B. in Colorado Favored (b) refusing party opposes the If the motion, summarily proceed court shall Colorado, a favored arbitration is the issue and order to decide Peterman resolution. method no it finds that there is arbitrate unless Co., 961 P.2d Auto. Ins. Farm Mut. State to arbitrate. enforceable (Colo.1998); v. State see Wales Co., Colo.App. Auto. Ins. Farm Mut. person alleging that the motion of a On (1976). constitu Our initi- proceeding has been an arbitration statutes, sup tion, case law all and our our that there is not ated or threatened but disputes. Colo. agreements to arbitrate port arbitrate, pro- the court shall - XVIII, 8; §§ 18-22-201 Const. art. If the summarily to the issue. ceed decide (2006); Farm Peterman v. State an enforceable finds that there is court Co., at 493. Ins. Mut. Auto. arbitrate, it shall order the *7 parties to arbitrate. XVIII, 3 of the Colorado section Article provides: Constitution (2006). 13-22-207, § C.R.S. duty general assem- of the It shall be provides for a act Colorado's arbitration necessary may laws as be

bly pass to such of duties between arbitrators division by arbi- proper to decide differences court: trators, by agree- appointed mutual to be (1) in a record to agreement An contained controversy who parties any to ment of the any existing or to arbitration sub- submit adjustment. The may choose that mode controversy arising sequent of such arbitrators shall powers and duties valid, agreement enforce- parties to the is prescribed law. be able, except ground on a and irrevocable provision, to this General Pursuant equity or that exists at law Arbi- Assembly's enactment of the Uniform contract. revocation of a -2839, Act, 18-22-201 to tration sections an shall decide whether The court statutory framework for a uniform provides or a contro- agreement to arbitrate exists encourage to the settle- order 4, 2004, parties 13, 2, August all if was made before part Arbitration Act Uniform 7. Title 2004, proceeding so agreement or to the originally the substan- enacted in 1975. In reenacted, agreement to agreed Since the in a record." repealed provisions were tive 4, August prior made arbitrate in this case was causing and elimina- addition, relocation, some subject matter. Sec- to the Act in sections as well and no revisions were made tion of 2004, Act, 2006, 13-22-203(2), (2004), part 2 Uniform Arbitration we cite to provides C.R.S. tion (2006). agreement C.R.S. govern "part 2 an shall versy subject to an if stay arbi- the district court had entered a in- dismissal, stead of a trate. order would not be (internal omitted) ). appealable") quotations (3) An shall decide whether a arbitrator arbitrability precedent condition has C,. Agreement An to Arbitrate fulfilled and whether a contract con- been Exists in this Case taining a valid to arbitrate is law, Under Colorado contractual enforceable. may express implied. conditions be E.g., or party judicial proceeding If a to a chal- Co., Goodson Am. Standard Ins. of, lenges the existence claims that (Colo.2004); Cary v. United Oma subject to, controversy is not Co., ha Ins Life arbitrate, proceeding the arbitration (Colo.20083)(addressing implied contractual may pending continue final resolution of good dealing). faith and fair When court, the issue unless the court contract, interpreting we consider "the otherwise orders. attending facts and cireumstances its execu (2006). 18-22-206, § tion, as to so learn the intentions of the Denver, parties." Eisenhart v. Colo.App. Reyn In v. Dean Howsam Witter 470,478, (1915), 150P. aff'd, olds, Inc., 64 Colo. Supreme United States Court (1918). principles governing restated the basic 170 P. 1179 arbi contractual set tings, tration: we can look the cireumstances sur rounding the contract's formation constru This has Court determined that "arbitra- contract, ing carry in order to out the party tion is a matter of contract contracting parties. Lazy intent of the Dog required cannot be to submit to arbitration Telluray Corp., Ranch v. Ranch any dispute agreed which he has not so to (Colo.1998). 1229,1235 Although long submit." the Court has also recognized and enforced a "liberal federal Furthermore, substance, policy favoring agreements," it objective, main purpose of the contractu exception has made clear that there is al control over the form of the policy: question to this of whether the contract. 17A Am.Jur.2d Contracts particular dispute have submitted a (2006). Accordingly, contractual conditions arbitration, "question i.e. the arbitra- law, may implied by purpose of the bility," judicial is "an issue for determina- contract, parties. or the intent of the Mum clearly tion [uJnless and unmis- Broad., Inc., blow v. Monroe 401 F.8d takably provide otherwise." (5th Cir.2005). implied Conditions are "necessarily fact when those conditions are 537 U.S. 123 S.Ct. 154 L.Ed.2d (2002) (internal omitted). performance inherent in the actual citations Co., Bergman contract." v. Commerce Trust act, Under Colorado's arbitration *8 Kan.App.2d 35 129 P.8d 628 valid, a provision enforceable arbitration di (4th (citing 183 on Williston Contracts 88.11 jurisdiction ques vests trial courts of over all ed.2000)). arbitration, tions that are to be submitted to pending us, the conclusion Hugh of arbitration. In the case before ley Rocky v. Org., Mountain Health Maint. the real alleged estate referral fee Inc., (Colo.1996). Thus, previously 1880 to exist in this case had consented granting stay trial court order a motion disputes arising among to arbitrate them proceedings compel and to arbitration is pro selves while each was a member of the "interlocutory organization. They order" that is not immedi fessional had not re ately appealable. v. See Fonden U.S. Home scinded their consents to arbitrate when (cit Corp., (Colo.App.2008) disputes 603 between them arose. Each was still ing Supreme professional organization United States Court deci a member of the Randolph, guidelines procedures that forth set sion in Corp.-Ala. Green Tree Fin. v. 79, 86, 1 U.S. 121 S.Ct. 148 such arbitration. These undisputed facts and 53 (2000), (specifically L.Ed.2d noting documentary 373 "that extensive evidence pursuant to Colora- in this case duty to arbitrate out this spelling record disagree. arbitration act. We order do's court's for the district the basis were legal con- and for our compelling arbitration XVIII, section 3 of the to Article Pursuant the district upholding case clusion in this Constitution, Assem- the General Colorado The district court order. arbitration court's Arbitration bly's enactment of the Uniform its discretion. did not abuse -289, provides a Act, 18-22-201 sections arbitration statutory framework for uniform objective of purpose and An articulated dis- encourage the of in order to settlement organization is REALTOR® joining the is All as to whether putes. doubts disputes through resolution facilitate the in favor of are to resolved arbitrable be is a condi- duty to arbitrate This arbitration. Marriage Popack, 998 In re and, arbitration. membership agreements tion of their 467; Taylor, v. Ins. Exch. P.2d at Farmers professional relation- consequently, of their 45 P.3d at 761. members ship members. When while agree- into subsequently enter Thus, Assembly intend the General themselves, alleged as the among such ments act would en ed that Colorado's case, in this and have referral fee and contract all forms of contract compass con- previously-executed not rescinded their impliedly include expressly that or conditions arbitration, consents become those sents to law, duty Under Colorado to arbitrate. doing business condition implied may express or im conditions contractual perform- their contractual other and of each Co., v. Am. Standard Ins. plied. Goodson ance. 414; Cary Omaha v. United P.3d Life language of the By plain Co., may look to the at 466. We Ins. they Urgitus and Cal- signed, applications for surrounding the contract's cireumstances binding each consented houn contract, in order to construing the mation in during dispute arise between them should a contracting par carry out the intent of of the DMCAR. were members the time Telluray Ranch Lazy Dog Ranch v. ties. applications con- in the The notice contained the record of Corp., 965 P.2d at 1235. When explicit and cerning duty to arbitrate is this upon called to con we are on the face of the repeated three times documentary evi strue or enforce consists signa- each of their signature page above dence, legal upon may our conclusion we base tures. documentary not de evidence and do findings factual pend upon a trial court's original proceeding in this The record that evidence. Winslow interpretation is both a bene- that arbitration demonstrates Denver, City County v. & Constr. Co. pro- DMCAR REALTOR® fit and M.D.C./Wood, (Colo.1998); Inc. P.2d perform undertake to receive fessionals (Colo.1994) Mortimer, P.2d from, for, Incorporated each other. and with presented to the (stating that "when facts are applications are signed reference by stipulation, or uncontested doe- trial court code, standards, the ethical evidence, appellate court umentary that an na- interconnected local and manual of these conclusions"); see also may its own draw spell clearly and out organizations tional Lukoil, Corp. v. Archangel Diamond reciprocal duty to arbi- unambiguously ("We (Colo.2005) review doe- P.3d applies to all duty to arbitrate trate. This novo."). umentary evidence de compensation that arise concerning *9 DMCAR, which is affili- among members of by the case before As demonstrated REALTOR® ated with the interconnected us, take the agreement to arbitrate can an organizations. to arbi previously-executed consents form of implied condition of that of an trate become primary defense to the existence The of the agreements the members subsequent that agreement in this case is arbitration among organization make them among professional agreement no direct written there is 18-22-206(1) Lane; of Colorado's Section and selves. Urgitus and Lane or Calhoun agreement provides that "[aln act thus, agreement arbitration can be no enforceable there

G81 required in a to submit to ation dispute contained record them to arbitrate with any subsequent controversy client, existing or aris- though they even had not entered into ing is any between other contract or with client valid, enforceable, except and irrevocable on her); disputes King v. Lar ground equity a that exists at law or in for Inc., Realty, 349, 357, App.3d sen 121 Cal. 175 the revocation of a contract." Cal.Rptr. (holding that members of the California Association of Realtors are sophisticated litigants here are busi they bound to arbitrate when have contract persons agreed by to ness who abide set of by bylaws, ed to abide the Association's governance rules and ethical standards that bylaws arbitrate); impose duty those to professional beyond included commitments Dial-A-House, 1026, Bastone v. 100 Misc.2d required by those otherwise Colorado law (1979) (holding 420 N.Y.S.2d 467 that regulations of the Colorado Real realtor, "by membership, virtue of his was advantage Estate Commission. Economic to by duly provisions bound enacted each other as fellow DMCAR REALTORS® bylaws" constitution and of the local board of clearly belonging is a benefit of to the nation realtors); Elbadramany Stanley, v. organizations. al and local Valid contractual (Fla.App.1986) (holding So.2d that agree duties can arise out of a network of provision constitution, "a charter or involving commercially sophisticated ments by-laws association which re bargain who are able alloca quires disputes See, between members be risks, duties, tion eg., and remedies. BRW, binding submitted to arbitration Sons, Inc., constitutes Dufficy Inc. v. & (Colo.2004). between such members to submit clearly As shown arbitration"); disputes future case, Van C. Ar present REALTOR® members are en Assocs., Inc., giris & couraged Co. & to refer real estate transactions Pain/Wetzel Ill. 20 Ill.Dec. 380 N.E.2d other, each to contract with each other for a referrals, (holding fee for such and to avoid a of real course litigation organization estate brokers' dispute contested should a arise constitute con while are tractual members. between members to ar dispute bitrate between said members appeals Our court of has held that relating arising to "matters out of their busi provisions procedures con agents" subject ness as brokers or voluntary membership organiza tained in a arbitration). professionals tion of binding real estate are Here, applications the DMCAR for mem- Jorgensen Realty, on its members. Inc. v. bership Box, signed Urgitus and in- Calhoun (Colo.App.1985). 1257-58 corporate by reference the terms of the Jorgensen We observe case and "Code Ethics of the National Association of professional organization other real estate REALTORS®, including to arbi- like it contracting par cases arise when the disputes trate business accordance with professional agreements attempt ties to the Code Ethics and Arbitration Manual of prior avoid enforcement of their unrescinded Constitutions, Bylaws, the Board and the arbitration consents. Regulations Rules and or the [DMCAR jurisdictions Other are accord with our Board], Denver the Colorado Association and here, holding particularly addressing when the National Association." REALTOR® members and the requires The referenced Code of Ethics duty to arbitrate. The Oklahoma Court of dispute when a arises out of the Appeals applied Jorgensen Civil parties' "relationship as REALTORS®." REALTOR® members who had a real estate disputes sales commission them the event of contractual Smith, Rogers Realty, specific selves. Inc. v. non-contractual defined (Okla.Civ.App.2008). Topol See also in Standard of Practice 17-4 between Realtors, Inc., firms, (principals) ski v. Helena Ass'n associated with different *10 (holding Mont. arising relationship out of their REALTORS®, the REALTORS® shall that terms of in brokers' associ- G82 speciallyconcurs. Justice EID in accor- to dispute arbitration

submit Board of their regulations with the dance COATSdissents. Justice litigate the matter. than rather or Boards EID, concurring. specially Justice REALTORS®, Code of Association National Practice, Article and Standards of Ethics majority that the trial agree I 12.8 in Manual at correctly parties to arbi- ordered the court by dispute, I reach that result their but trate Calhoun, may defeat Urgitus, nor Neither taking route. a different fee dis- transactions the arbitration membership in during their arose putes that required "agree- majority finds the The by withdraw- REALTOR® 18-22-207(1), arbitrate," C.R.S. ment to disputes with membership after the ing from (2006), agreement between in the referral fee language and mean- plain The Lane arose. Urgitus Lane and defendants plaintiff in this documents ing of the REALTOR® According Maj. op. at 682. Calhoun. by incorporated refer- proceeding, original a term majority, implied in that application for member- signed in the ence any dis- obligating to arbitrate disputes arising ships, requires arbitration them-a term pute might arise between members. This disputants were when the membership in a of their that exists virtue only disputes. such lawsuit addresses that creat- voluntary professional association "duty arbitrate" as a "condition ed a fee into the referral If entered Id. at membership agreements...." their complaint, alleged in the which agreement as 680. matter for determination is a factual view, contrast, my in the relevant By 18-22-2068), under section arbitration express to arbitrate" are "agreement[s] (2006), Urgitus and Lane became then Urgitus and DMCAR agreements between arbitrate implied condition to bound (the "Membership and Calhoun and DMCAR under arbitra enforceable Colorado's that is require Urgitus which Agreements"), provision of a arbitration tion act. A valid any dispute over referral to submit Calhoun jurisdiction a trial court contract divests involving members other DMCAR fees questions that are be submitted over all below, explain I Lane is As arbitration. arbitration, of arbitration. pending conclusion Membership beneficiary to the third-party ordering not err The district court did is entitled to Agreements, and as such he in this case.9 arbitration compel agreements in order to those enforce to arbitrate. Urgitus and Calhoun the district court should Because stayed pending lawsuit have fact that both one No 18-22-207(7), rather than pursuant to section Membership into the and Calhoun entered it, court's dismissing aside the district we set agree- In these Agreements with DMCAR. stayed order, and order the lawsuit dismissal ments, committed Urgitus and both Calhoun pending arbitration. disputes" with other to "arbitrate business "in accordance with members

DMCAR and Arbitration Manual Ethics Code of IIL. Constitutions, Bylaws, and Board Regulations" of DMCAR. Id. Rules and court's Accordingly, affirm the district we Ethics, turn, makes clear order, discharge part, our rule in 676. Code to all extends part. our rule absolute and make attorneys fees in this to award 9. We decline Ethics Originally the Code of 8. adopted accepted juris- We cite to we original proceeding amended from time time. because has been Arbitration Code Ethics and the 2005 edition of important public issue we diction to review in effect at the time Manual which was decided, we find previously do not not had complaint was arose and the presentation to have been frivolous. its interpreta- all case filed. This edition includes approved by Standards the Professional tions through Committee 2004.

G83 beneficiary: intended REALTOR® mem- disputes over "entitlement to commissions bers, Lane, compensation cooperative may transactions disputes and such as who have relationships Indeed, contracting parties. out of the business with that arise . . . ." obligation Urgitus between REALTORS® Id. at 676. to arbitrate benefited and well, Calhoun as could seek to recov- dispute Lane's referral fee er referral fees from other REALTOR® precisely type dispute and Calhoun is through members arbitration in the future. contemplated by among REALTORS® only question Membership Agreements. The specifically It is true that Lane was not Urgitus's is whether Lane can enforce and third-party beneficiary named as a of the promises to DMCAR to arbitrate Calhoun's Membership Agreements. Yet "it is not nee- view, my dispute. he can. essary party specifically that the third agreement. referred to in the It is sufficient non-party compel A can arbitration if it if the claimant is a member the limited third-party beneficiary can that it is a show class that was intended to benefit from the agreement. Eagle See Commc'ns, Inc., contract." v. Smith TCI 981 Ridge Condominium Ass'n v. Metro. Build 690, Here, (Colo.App.1999). P.2d 698 ers, Inc., (Colo.App.2004) 98 P.3d 917 "limited class" of beneficiaries was defined ("A nonparty, third-party such as beneficia Membership Agreements ry, may scope fall within the Code Ethics as other members of the may bring an action on REALTOR® with whom the parties."); if that contract is the intent of the Seq, might member have a dispute. business Leadership, Parker v. 15 Ctr. Creative Ass'n, e.g., Collegiate Bloom v. Nat'l Athletic (same); (Colo.App.2000) Ey P.3d 298 (Colo.App.2004)(holding 93 P.3d 623-24 (Colo. Vleet, chner v. Van 870 P.2d that a University student-athlete at the (same). App.1998) This is an unremarkable Colorado could sue under the of the application of the black-letter rule that NCAA, binding which were on member third-party beneficiary may enforce Colorado, schools like because "the NCAA's See, eg., terms of a contract. Jefferson constitution, bylaws, regulations evi County Shorey, Sch. Dist. No. R-1 v. dence a clear intent to benefit student-ath (Colo.1992) (describing P.2d letes"). third-party beneficiary doctrine aas "basic law"); rule of contract E.B. Roberts Constr. Furthermore, Lane's from the benefit Inc., Contractors, Co. Concrete direct, Membership Agreements was not inci (Colo.1985) (applying third-party Membership Agreements specif dental. The doctrine). beneficiary In order to enforce ically contemplate that a benefit of DMCAR third-party the terms of a contract as a right disputes is the to have beneficiary, plaintiff show must the with other members arbitrated rather than contracting parties intended to benefit litigated. Compare Shorey, 826 P.2d at 843 party, third that the claimed benefit (finding procedure resolution merely ais direct and not incidental benefit bargaining agreement directly collective was Roberts, W.B. of the contract. See intended to benefit union members such as (citations omitted). at 865 plaintiff), and Villa Sierra Condominium (Colo. language Membership Agree- Corp., The Ass'n v. Field ("[An clearly ments App.1994) demonstrates the con- a local Calhoun, tracting parties-here, Urgitus, government party designed and another was private upon prop DMCAR-intended benefit other to bestow a direct benefit erty, thereby making REALTOR® members such as Lane. In the of that the owners Agreements, Urgitus pledged property third-party and Calhoun direct beneficiaries disputes agreement."), "arbitrate business accordance with Fourth & Main v.Co. Ethics," Co., Dry with the Code which in turn re- P.2d Joslin Goods quires (Colo.App.1982), disapproved part the arbitration of over refer- inof Roberts, (noting ral fees that arise between E.B. 704 P.2d at n. 7 REALTORS®. purpose provision single usually nothing of this has a that an incidental benefit *12 to limit the arbitration act ously interpreted from an windfall" than a "fortuitous more from agreements, agree- the enforceable express term of not an agreement, flow, consequences to legal party). which these a third designed to benefit ment of a con satisfying the elements agreements that we belief Coats's I share Justice Seq, disputing parties. the tract between indepen- the to "erode hesitant should be Rocky Health eg., Hughley v. Mountain of their own fix the terms parties to denee (Colo. Inc., 1325, Org., P.2d Maint. case, In this Op. at 684. Diss. contracts...." 1996). majority to the Although the refers however, Urgitus and Calhoun I believe Act, see revision of the language of the 2004 own contracts with fix of their did the terms §§ to Act 18-22-2011 Uniform Arbitration benefiting oth- the intention DMCARwith (2006) 229, Arbitration (adopting Unif. C.R.S. parties. Because as third er REALTORS® 18-3, 10-94 §§ T7ULA. Act beneficiary to the third-party Lane is a (2005) ),1 "agreements to ar clearly limits it to he is entitled Membership Agreements, statute, bitrate," meaning to the of the within I provisions. there- enforce their arbitration See, maj. op. at obligations. eg., contractual majority that the trial the agree fore 677-78, (citing Howsam v. Dean Witter arbitration, correctly compelled court Inc., 128 S.Ct. Reynolds, 537 U.S. on that basis. specially concur (2002)).2 154 L.Ed.2d COATS,dissenting. Justice district Although it seems clear the statutorily cognizable a In its search for it intention when ordered court had no such majority conflates agreement, pursuant parties to submit to arbitration impute a term to new two distinct doctrines Metropolitan Denver Com- to the rules of the membership in a parties' of contract from of REALTORS mercial Association Despite voluntary its association. common (DMCAR), majority essentially frames im- new doctrine of of this characterization original proceeding as issue of this today's seope, limited in puted promises as membership in the association nec- whether help but further erode holding cannot essarily implies a condition of all future re- fix the terms of parties to independence members, amount- between ferral contracts ability of volun- contracts and their own within the ing "agreement to an to arbitrate" op- control their internal tary associations to quest In for a meaning of the statute. its by the undue interference erations without the association's arbitra- rationale to elevate imposition Because I consider courts. of a contractual requirement to the level tion to both unwarranted unintended terms others, to the obligation of each member mischief, I likely to work substantial intuitively merges con- majority two different respectfully dissent. theories, quite one of which is tract neither one equal to the task. On the applicable or enacted a version of the Colorado hand, subsequent agree- Act, it treats the referral attaching specific Uniform Arbitration at issue parties of the as the contract agreements between ment legal consequences to implied conditions governing looks to law disputes. their disputing parties to arbitrate other, it for 1975," on the looks support. for And Act of "Uniform Arbitration See -228, (adopt- §§ treating membership in a support in case law 13-22-2011 Unif, Act, as a contract between §§ association 1956 Act ing Arbitration (2005). and its members previ- the association We have 95-768 U.L.A. 13-22-203, (2006), obligation determining wheth- specifies the initial court CRS. 1. Section "agreement is an to arbitrate" er there only agree- apply the new statute will Unif, (2000) § 6 parties. Arbitration Act See August 4, made on or after ments to arbitrate (2005) ("[Wlhether 7 U.L.A. 24 cmt. agree, on the unless the otherwise encompassed [is] agree that the Since the do not record. procedural a court to decide and issues all, they clearly applies have statute such ie., whether arbitrability, prerequisites agreed application 2004 Act. of the not and other notices, laches, limits, time estoppel, precedent obligation arbitrate to an conditions Act, to which 2. Even the revised version to de- the arbitrators met, been are for have cide."); refers, maj. op. assign at 674 n. 2. majority to the continues cf.

G85 however, majority binding of the association as rules and creates new rule of imputed promises, constructively finding on the members. promise subsequent arbitrate contracts former, regard With association, private between members of a *13 imputed majority the to the bylaws the impose duty. of which such a hardly referral contract can be described as performance Sensing perhaps novelty a condition of at all. It is clear of this propo sition, ly separate promise offers, in majority or term its own in reliance on our BRW, holding Sons, Inc., in Dufficy Inc. v. Lord, & right. A. See 13 Richard Williston on 2000) ("A (4th 66, promise (Colo.2004), Contracts 88:5 ed. 73 that "valid con a manifestation of an intention to act ... tractual is duties can arise out of a network of specified way agreements in a ... a condition involving commercially while sophisti event, occur, occur, parties." Maj. op. not certain to which must cated Dufficy 681. In excused, only by unless its nonoceurrence is before we held that the of care owed designing engineer City for a Denver performance a contract under becomes due."). Furthermore, by it implied project project is neither construction inspector, and its parties' the terms of the referral contractually to a sub-contractor obliged to implied by engineer's plans nor extrinsic evidence of the actu followthe specifications, and Instead, majori parties.3 al intent of the was defined project the interrelated con it, law, ty imputes tracts, sepa as a matter of from which therefore also limited the sub promises rate to the association to arbitrate contractor's remedies for economic loss. The proposition with fellow members. transformation of that into a rule imputing private contracts the parties may we have allowed that While voluntary only associations is not unwarrant bound, cireumstances, by under limited cus by anything opinion ed in Dufficy our but industry practice, tom or at the same time dramatically governing pri alters settled law parties only we have held that must not Lee, vate associations. See Scott v. 208 Cal. have known of the custom but must have (1962)(find 12, 824, App.2d Cal.Rptr. 24 826 contracted with it. reference to See Garman ing that association rules failed to create a Conoco, Inc., 652, (Colo.1994); 660 against contract enforceable one member Gill, 294, 297, Fleming v. 60 Colo. 158 P. cf. another); Masonry see also Savoca Co. v. (1915) (refusing specific 88-89 to alter Co., Homes & Son Constr. Ariz. commission on basis of custom Scott); (relying Coyle P.2d on among Denver real estate brokers to divide Co., v. Morrisdale Coal 284 F. commissions). event, any these are mat (S.D.N.Y.1922) ("At common law it is the fact, ultimately subject ters of to the intent of general rule that the members of an unineor- any particular contract. See may porated association not sue at law one of Co., Pittman v. Larson Distrib. their number on a contract between himself (Colo.App.1986). 1884-85 The district them."); Rauhr, McMahon v. 47 N.Y. court no made such factual determinations in (1871) ("A voluntary member of case, aught appears and for ... ... cannot maintain an ac [association] allegations prior about their law, association, tion at behalf of the dealings cursory, or the terms of their e-mail against upon any agreement another member agreement,4 referral there is little reason to association."). made with the promise believe such a was intended. Rath majority's er than specific regard look the terms of the claim of With and, if appropriate, support treating referral from settled law formation, surrounding provisions circumstances its associations as bind- exist, certainly 3. Such extrinsic evidence could kind, REALTOR® association consists of a any but the court district issued its arbitration order stating, two-line email from to Lane fact, law, any findings without conclusions of "Bob, Per our conversation CB Richard Ellis matter, any explanation or for whatsoever. agrees pay Realty a Lane referral fee of 20% any going Weberg. on deals with John P. forward only any agreement 4. written evidence of you." any questions. Please call me with Thank between one that never mentions parties, 68§G "eminently fit for the asso majority penalty are members, priate I believe the

ing on their determine"); import those Van Valken ciation itself similarly misperceives A.M., upon which A.F. Ironically, Liberty Lodge the rule No. 300 & burg v. authorities. Neb.App. Jorgensen 619 NW.2d Re appeals relied the court of Box, (Colo.App. P.2d 1256 alty, Inc. v. with the ("Generally courts will not interfere 1985)-that relationship a volun to settle affairs of an association internal is a con its members tary association regard to or with disputes between members and, organiza by joining such an provided tractual one government, discipline or internal to its rules tion, agrees to submit a member association is government of the obligations and assumes regulations conformity fairly with its administered membership-should have caused incident *14 proper applicable law and no laws and other in interference to decline the district court violated."). rights ty or civil have been finding rather than association matters by jurisdictions noted the six other Of between asso agreement binding contractual rationale, support for its three majority as when faced Jorgensen, members. ciation held, appeals along with our court of merely challenge to a realtor asso- with a member's member-parties that the were Jorgensen, of an arbitration resolution clation's comply with their own association's bound to of Ethics and according to its own Code Smith, 76 Rogers Realty, Inc. v. bylaws. See Manual, appeals of held the court Arbitration King v. Larsen (Okla.Civ.App.2008); P.3d 71 clearly arbitrary and the absence that "[in 349, Inc., rights, Cal.App.3d aof member's 175 Cal. Realty, 121 unreasonable invasion Dial-A-House, (1981); 226 Bastone v. operation Rptr. the internal not review courts will 1026, Inc., 420 N.Y.S.2d 467 100 Misc.2d voluntary organizations." Id. and affairs three, remaining one at 1258. (Sup.Ct.1979). Of bylaws specifically association dealt with explaining model for the contract While statutes, characterizing incorporated state voluntary associa relationship between statutory membership in the association as not been with members has tions and their according to those agreement to arbitrate see, criticism, eg., Zechariah out theoretical statutes, Argiris v. C. & Co. see Van Chafee, Associations The Internal Affairs Ill.App.3d Assocs., Inc., 68 & Pain/Wetzel 998, 1001-07 Profit, Harv. L.Rev. Not 48 for (1978), 616, 20 Ill.Dec 380 N.E.2d 825 (1930); Golding, 679 v. 342 Md. NAACP remaining state stat two construed (1996), long it has been 559-62 A.2d expanded the defini significantly utes that courts, not as a for accepted by the basis beyond agreement tion of an mem against rules one enforcing association Act. in the Uniform Arbitration that included another, but rather as a ber at the behest Realtors, Topolski v. Helena Ass'n See resolu deferring the association's basis (2000)(find Inc., 414 Mont. 308 disputes accord tion of member-to-member under Mon ing arbitrate Jorgensen procedures. See ing to its own statute, had been modified from tana's which 1258; Inc., also P.2d at see Realty, 701 a writ expressly act to include the uniform Ass'n, Athletic 975 High v. Ind. Sch. Crane profes of a Cir.1992) agreement between members (7th (Posner, J., ten F.2d to arbitration organization to submit sional ("Hence will not enforce dissenting) [courts] members); arising El controversies rules, but rights association's] [an created (Fla. Stanley, badramany v. 490 So.2d having rights their ori only political civil or to arbi Dist.App.1986) (finding an elsewhere."); v. Inc. gin Houston Oilers statute, which had been trate under Florida's Tex., F.Supp. County, Harris (S.D.Tex.1997)("The uniform act to include courts from the principal reason modified agreements things as inter-local such operations ought intrude into internal not to parties agree to submit two or more which participants is that of consensual associations concerning water controversies by their own informal agreed to abide have those permits applications). Whatever use disputes."); resolving Lawson mechanism for Hewel, pending P. the issue might 118 Cal. think about courts holdings today, prior concern- (whether us their appro- before have been violated rules substantially ing their different statutes theory special of the concurrence. A third- beneficiary's party right hardly provide persuasive authority for us. to enforce a contract higher cannot than rights rise of the providing a statu difference between contracting party through whom he claims. tory remedy agreements for contractual Lord, See 13 Richard A. Williston on Con- deferring of mem arbitrate to resolution (4th ed.2000). § tracts 87:28 If private ber associations is not merely association constitutes significance. might without While Lane still to, entitlement to be remedy to a be entitled by, bound the association's resolution of in- association, it is far from clear that such a ternal matters and enforcement of its own remedy could include an order to submit to rules, a fellow member can from benefit arbitration. See Denver Metro. Commercial membership contract of another no more REALTORS®, VI, Bylaws, Ass'n of art. than to have the association's rules enforced (2004) ("Any may ... REALTOR® Member upon offending member. If membership fined, reprimanded, placed probation, on in the association does not constitute a statu- suspended, expelled by Board Di tory agreement all, to arbitrate at it cannot ..."); Bylaws. rectors for a violation of these constitute an to arbitrate benefit- REALTORS®, Nat'l Ass'n of Code Ethics ing party. a third *15 (2005) ("Disci § and Arbitration Manual Admittedly, there is evidence in the com- plinary may only action consist of one or ments added to the 2000 revision of the more of": warning, repri written written Uniform Arbitration Act that its drafters in- mand, class, requirement to re-take ethics provisions tended arbitration contained $5,000, fine not to probation, suspen exceed bylaws corporate or other associations to sion, expulsion possibility with of reinstate agreements. be enforceable arbitration See termination.). ment, event, any or ap In it § Unif. Arbitration Act 6 emt. pears from the record before us Lane (2005). U.L.A. Even if Colorado's pursue any by, did not or sanction resolution adoption later applied of the 2000 revision from, association, Urgitus onee and Cal case, however, general assembly houn refused to arbitrate and submitted their comments, adopt chose not to those in stark resignations. Neither did he seek court en contrast in adopting its choice other uni- any forcement of order of the association for See, eg., form acts. Child-Custody Uniform violation of its own rules.5 (UC- Jurisdiction and Enforcement Act CJEA) (2006). view, -4083, §§ 14-18-101 to my membership agreement bylaws of the association amounted I general assembly have little doubt that the promise most to a statutory to enter into could create a obligation to arbi- flowing trate agreements private contractual from with other member- so, associations if it chose to I do but do not disputes joint realtors to arbitrate over their obligation compatible consider such an contracts, clearly real estate which did not existing contract law. By occur in this treating case. the member- ship application itself as a contractual obli- Because I do not believe our current stat- gation comply between members to with the choice, legislative ute indicates such a constitution, bylaws, and rules of the associa- majority, unlike the I do not it consider tion, affording contractual impute provi- role of the courts to remedies mem- members, bers violations other private sions of con- associations individual majority members, stands the rule it tracts respectfully seeks follow on I dis- head, its sent. endangering the deference tradi-

tionally shown to associations of all

kinds. reasons, largely

For the same I can take third-party beneficiary

little comfort Despite resignations arising 5. and Cal- bers while were still members. See houn, purported 5(a). association Bylaws art. VI bind them to arbitrate with other mem-