Henderson v. Hon. moskowitz/sullivan

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

ANDREW J. HENDERSON,
Petitioner,
v.
THE HONORABLE FRANK W. MOSKOWITZ, JUDGE OF THE SUPERIOR COURT
OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent Judge,

ROB SULLIVAN,
Real Party In Interest.

No. CV-24-0215-PR
Filed November 28, 2025

Appeal from the Superior Court in Maricopa County
The Honorable Frank W. Moskowitz, Judge
No. CV2023-010668
AFFIRMED AND REMANDED

Order of the Court of Appeals, Division One
1 CA-SA 24-0163
Filed August 7, 2024

COUNSEL:

Dennis I. Wilenchik (argued), Brian R. Gifford, Wilenchik & Bartness, P.C.,
Phoenix, Attorneys for Andrew J. Henderson

Amy Wilkins Hoffman (argued), Frost LLP, Phoenix, Attorneys for Rob
Sullivan
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 HENDERSON V. HON. MOSKOWITZ/SULLIVAN
Opinion of the Court

JUSTICE BOLICK authored the Opinion of the Court, in which CHIEF
JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ, and JUSTICES BEENE,
MONTGOMERY, KING, and CRUZ joined.
_______________

JUSTICE BOLICK, Opinion of the Court:

¶1 We must decide whether a non-signatory may enforce a
forum selection clause against a signatory to a contract under the “closely
related party doctrine.” We decline to adopt that doctrine with regard to
forum selection clauses, holding that the provisions of the contract control
and that other established doctrines providing non-signatories with
benefits under a contract are ample.

BACKGROUND

¶2 Nomad Capitalist USA, LLC (“Nomad”) offers consulting
services to people who are interested in becoming “nomad
capitalists”—that is, relocating to foreign jurisdictions, obtaining foreign
citizenship, and planning offshore tax strategies.

¶3 Robert Sullivan contracted with Nomad to “internationalize
[his] finances, freedom, and lifestyle.” Sullivan paid Nomad approximately
$52,500 for consulting services. The contract is governed by Arizona law
and contains a forum selection clause that reads: “Each party further
consents to exclusive jurisdiction and venue in the jurisdiction of Hong
Kong, S.A.R. China.” Henderson—founder and manager of
Nomad—signed the contract on Nomad’s behalf but not in his individual
capacity. The contract was based on Nomad’s standard form contract,
which Nomad and Henderson drafted and tailored for this transaction.

¶4 After the relationship between Sullivan and Nomad went
sideways, Sullivan sued Nomad and Henderson in Arizona for breach of
contract, unjust enrichment, and consumer fraud under Arizona’s
Consumer Fraud Act (the “CFA”). See A.R.S. §§ 44-1521–1534. Nomad and
Henderson both filed motions to dismiss based on the contract’s forum
selection clause.

¶5 The trial court granted Nomad’s motion to dismiss, finding
the forum selection clause applies to Sullivan’s claims against Nomad.
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 HENDERSON V. HON. MOSKOWITZ/SULLIVAN
Opinion of the Court

However, the court denied Henderson’s motion to dismiss, finding the
forum selection clause does not apply to Sullivan’s consumer fraud claim
against Henderson because Henderson was a non-signatory to the contract.
The court explained that “there may be case law supporting the extension
of an arbitration agreement to a non-signatory to the agreement, [but] there
is no Arizona case law extending that principal (sic) of law to a forum
selection clause.” The trial court also dismissed Sullivan’s contract claims
against Henderson, leaving consumer fraud under Arizona’s CFA as the
sole cause of action against Henderson.

¶6 Henderson filed a petition for special action in the court of
appeals seeking to dismiss the consumer fraud claim against him, but the
court declined jurisdiction. Henderson then petitioned this Court for
review, arguing that the forum selection clause applies to Sullivan’s
consumer fraud claim under the “closely related party doctrine” and
“alternative estoppel theory.” Henderson concedes he is not a party to the
contract, but argues he is a “closely related party” so he can enforce the
forum selection clause against Sullivan. Henderson contends the closely
related party doctrine is applicable because the contract was “intended to
benefit [him] and shield him from personal liability or involvement in
litigation.” Additionally, Henderson argues that “all the allegedly
fraudulent statements and/or instances of unjust enrichment were
intimately bound up with the [contract].”

¶7 Sullivan counters that applying the closely related party
doctrine rewrites the contract’s unambiguous language. Sullivan contends
that if Nomad wanted Henderson to be bound by the forum selection
clause, it could have expressly included him—as it did elsewhere when
drafting the agreement, which Nomad and Henderson controlled. Notably,
two contract provisions—the indemnification provision and social media
provision—do exactly that. 1 By contrast, the forum selection clause is
restricted to “[e]ach party” to the contract. Sullivan further argues that

1
The contract’s indemnification provision reads: “You agree to indemnify,
defend, and hold harmless Nomad Capitalist, its employees, officers, and
contractors, or other agent or representative, including Andrew Henderson
personally.” The contract’s social media provision reads: “In an effort to
maintain a professional boundary in the serving of your case, our staff
members (including Andrew Henderson) generally do not accept personal
social media requests.”
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 HENDERSON V. HON. MOSKOWITZ/SULLIVAN
Opinion of the Court

reliance on the closely related party doctrine and alternative estoppel
theory is unnecessary because Arizona has other equitable doctrines—like
third-party beneficiary or alter ego doctrine—that allow a non-signatory to
enforce or be bound by the terms of an agreement.

¶8 We accepted review to decide whether we should adopt the
closely related party doctrine or alternative estoppel theory to allow a
non-signatory to enforce a contract’s forum selection clause, which presents
a matter of statewide importance. 2 We have jurisdiction pursuant to
article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶9 As the construction of a contract and the existence of contract
defenses are questions of law, we decide them de novo. See Sw. Non-Profit
Hous. Corp. v. Nowak, 234 Ariz. 387, 393 ¶ 19 (2014) (stating that
interpretation of a contract is a question of law reviewed de novo); Taylor v.
State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 159 (1993) (noting contract
construction and related defenses are questions of law).

¶10 Given our strong protections and common law tradition of
freedom of contract, we generally strive to enforce agreements between
parties, see Zambrano v. M. & R.C. II, Ltd., 254 Ariz. 53, 58 ¶ 10 (2022), and
we interpret contract language in accord with its “plain and ordinary
meaning,” see Teufel v. Am. Fam. Mut. Ins. Co., 244 Ariz. 383, 385 ¶ 10 (2018).
Applying ordinary contract principles, Sullivan would not be bound by the
forum selection clause concerning his suit against Henderson. Absent some
exception to the usual rule, a non-signatory may not enforce contract
provisions. 3 See Lofts at Fillmore Condo. Ass’n v. Reliance Com. Constr., Inc.,
218 Ariz. 574, 575 ¶ 5 (2008); JTF Aviation Holdings Inc. v. CliftonLarsenAllen

2
The parties appear to agree that the closely related party doctrine and
alternative estoppel theory are the same doctrine with different names, the
first applies in the forum selection clause context and the second in the
arbitration clause context. For that reason, we consider only the closely
related party doctrine.
3 At oral argument, Henderson’s counsel contended that he is a third-party

beneficiary of the contract, which therefore entitled him to enforce the
forum selection provision. We did not grant review on that question, and
the argument was not developed before us.
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 HENDERSON V. HON. MOSKOWITZ/SULLIVAN
Opinion of the Court

LLP, 249 Ariz. 510, 513–14 ¶ 18 (2020) (listing six common law exceptions).
Although Henderson was not a party to the contract, as noted above, he
was included within specific contract provisions, which suggests that his
omission from others (including the forum selection clause) was
intentional. See, e.g., Hancock v. O’Neil, 253 Ariz. 509, 513 ¶ 15 (2022)
(applying the expressio unius est exclusio alterius canon to infer that an
omission reflects deliberate exclusion); Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 107–11 (2012) (explaining that
explicit inclusion of one matter implies exclusion of another under the
“negative-implication” canon). The parties could have expressly
enshrouded Henderson within the forum selection clause with a few
strokes of the keyboard but did not. Claiming protection within that
provision at this point is therefore a tall order.

¶11 Henderson seeks refuge in the closely related party doctrine,
which some courts have recognized to “permit non-signatories to an
agreement to be bound by, and to enforce, forum selection clauses where,
under the circumstances, the non-signatories enjoyed a sufficiently close
nexus to the dispute or to another signatory such that it was foreseeable
that they would be bound.” Firexo, Inc. v. Firexo Group Ltd., 99 F.4th 304,
312 (6th Cir. 2024) (quoting Franlink Inc. v. BACE Servs., Inc., 50 F.4th 432, 439
(5th Cir. 2022)). Henderson commends the third-party doctrine as a
“unique, new tool” to interpret contacts—and that it may be. But in
applying common law, this Court typically constrains itself to public policy
as expressed in statute or common law principles. Cf. 1800 Ocotillo, LLC v.
WLB Grp., Inc., 219 Ariz. 200, 202 ¶ 8 (2008) (declining to adopt a new
contract rule and emphasizing courts apply existing common law and
statutory principles); Quiroz v. ALCOA Inc., 243 Ariz. 560, 563 ¶ 2 (2018)
(noting that Arizona courts generally decline to create new common law
duties absent legislative guidance).

¶12 Arizona has not previously adopted the closely related party
doctrine, and indeed this Court has admonished that “the corporate status
will not be lightly disregarded.” JTF Aviation, 249 Ariz. at 514 ¶ 20 (internal
quotation marks omitted) (quoting Chapman v. Field, 124 Ariz. 100, 102
(1979)). This Court has recognized instances in which a non-signatory may
enforce contract terms, such as “incorporation by reference, assumption,
agency, veil-piercing or alter ego, equitable estoppel, and third-party
beneficiary.” JTF Aviation, 249 Ariz. at 513–14 ¶ 18 (citation omitted); see
also Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 631 (2009) (citation and
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 HENDERSON V. HON. MOSKOWITZ/SULLIVAN
Opinion of the Court

quotations omitted) (explaining that “traditional principles of state law
allow a contract to be enforced by or against nonparties to the contract
through assumption, piercing the corporate veil, alter ego, incorporation by
reference, third-party beneficiary theories, waiver and estoppel”). But we
have declined to adopt the closely related party doctrine in the context of a
limitations period for commencing a suit under a contract. JTF Aviation, 249
Ariz. at 514–15 ¶ 23. We also noted that our court of appeals rejected the
closely related party doctrine in the forum selection clause context based on
“the general rule that only parties to a contract are bound by its terms.” Id.
at 513 ¶ 17 (quoting Sierra Tucson, Inc. v. Bergin, 239 Ariz. 507, 511 ¶ 16
(App. 2016)).

¶13 We recognize that the court of appeals has held that when a
party to a contract sues a non-signatory individual defendant under an alter
ego theory, “that defendant may demand arbitration to the same extent the
corporate entities could do so.” Sun Valley Ranch 308 Ltd. P’ship ex rel.
Englewood Props, Inc. v. Robson, 231 Ariz. 287, 296 ¶ 36 (App. 2012).
However, that case is distinguishable in at least two material ways. First,
by invoking an alter ego theory, the plaintiff essentially invited the
defendant to step into the shoes of the contracting parties. Here, by
contrast, Sullivan is suing Henderson for his individual actions, solely
under a statute’s provisions rather than a contract. Second, Arizona has a
strong policy interest in enforcing arbitration provisions, North Valley
Emergency Specialists, L.L.C. v. Santana, 208 Ariz. 301, 305 ¶ 16 (2004);
Hamblen v. Hatch, 242 Ariz. 483, 491 ¶ 34 (2017) (referring to “the strong
public policy favoring arbitration” as Arizona’s preferred method of
dispute resolution); whereas, as we will discuss in greater detail later, the
state also has a strong interest in enforcing its consumer fraud statutes.
Those interests cut in different directions in the two contexts presented.

¶14 Ultimately, we decline to add another exception by which
non-signatories may enforce contract provisions by adopting the closely
related party doctrine. To the contrary, under Arizona law, third-party
beneficiaries must be explicitly named in the contract to enforce the
contract’s provisions. See Norton v. First Fed. Sav., 128 Ariz. 176, 178 (1981)
(quoting Irwin v. Murphey, 81 Ariz. 148, 154 (1956)); Sherman v. First Am.
Title Ins. Co., 201 Ariz. 564, 567 ¶ 6 (App. 2002). Adopting the doctrine
would thus circumvent that principle. Here, Henderson was not listed as a
beneficiary of the forum selection clause, and he could have been.

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 HENDERSON V. HON. MOSKOWITZ/SULLIVAN
Opinion of the Court

¶15 As the U.S. Court of Appeals for the Fifth Circuit has
observed, federal courts that have adopted the doctrine have applied a
number of factors to determine whether it applies in a particular case:
“common ownership, involvement in the agreement’s negotiations,
signatory status of the party opposing the forum selection clause, the type
of claims and allegations at issue, control by secret principals, the posture
of the case, direct benefits received, and awareness of the agreement and its
relevant terms.” Franlink, 50 F.4th at 440. Added to these factors is the
consideration of whether it is foreseeable that the signatory party will be
bound, id. at 441, a standard that presumably would be difficult to meet
given the multiplicity and uncertainty of the applicable factors. No wonder
the Fifth Circuit remarked that “there is good reason to be dubious” of the
closely related party doctrine, id., and that another federal court found that
the doctrine is “so vague as to be unworkable.” Dos Santos v. Bell Helicopter
Textron, Inc. Dist., 651 F. Supp. 2d 550, 556 (N.D. Tex. 2009).

¶16 The Sixth Circuit recently rejected the doctrine, characterizing
it as “a judicial concoction without underlying authority or justification. It
appeared ipse dixit and continues to exist primarily because no court has
rejected it.” Firexo, 99 F.4th at 326.

¶17 Henderson argues that it is unfair and inefficient to litigate
the same matter in multiple courts at the same time when the contract
contains a forum selection clause and that the closely related party doctrine
is necessary to prevent evasion of inconvenient forum selection clauses.
Again, Henderson could have avoided the issue by having the contract
include him within the forum selection clause, just as the parties did with
other contract provisions that expressly encompass him. Henderson makes
equitable arguments against Sullivan, but allowing Henderson to
essentially clothe himself in contract benefits (including provisions that
mention him but also those that don’t) to escape otherwise applicable
liabilities to signatories would be inequitable.

¶18 Regardless, Henderson has a number of procedural tools at
his disposal to rid himself of unmeritorious claims in state court. See Ariz.
R. Civ. P. 9(b) (special pleading rules for fraud), 12(b)(6) (motion to
dismiss), 11 (sanctions), 56 (summary judgment). Indeed, the trial court has
already dismissed contract claims against the company.

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 HENDERSON V. HON. MOSKOWITZ/SULLIVAN
Opinion of the Court

¶19 This leaves the statutory consumer fraud claims. See Arizona
Consumer Fraud Act, A.R.S. §§ 44-1521–1534. Among other things, the
CFA makes unlawful false promises or representations in connection with
the advertising or sale of merchandise, see § 44-1522(A), which is the
gravamen of Sullivan’s consumer fraud claim against Henderson. See
§ 44-1521(5) (defining “merchandise” to include services); Sellinger v.
Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 576 (1974) (recognizing a
private right of action to enforce the Act). We decline the invitation to adopt
the closely related party doctrine to shield a non-signatory against a
statutory claim independent of the contract. See Morris v. Achen Constr. Co.,
Inc., 155 Ariz. 512, 514 (1987) (“The duty not to commit fraud is obviously
not created by a contractual relationship and exists, as here, even when
there is no contractual relationship between the parties at all.”).4 Arizona
has a strong interest in enforcement of its consumer fraud laws. See State ex
rel. Woods v. Sgrillo, 176 Ariz. 148, 149 (App. 1993) (noting Arizona’s strong
interest in enforcing consumer protection laws); State ex rel. Babbitt v.
Goodyear Tire & Rubber Co., 128 Ariz. 483, 486 (App. 1981) (“In light of the
purpose of the Consumer Fraud Act, which is to protect the public from
deceptive acts . . . .”). Henderson argues that this claim is “superfluous.”
That is hardly a determination we can make at this point. If Henderson is
correct, he may surely seek dismissal and other appropriate relief in the trial
court, leaving any remaining contract claims against the company to be
litigated in Hong Kong.

¶20 For the foregoing reasons, we decline to enforce the forum
selection clause on behalf of Henderson, a non-signatory to the contract.

CONCLUSION

¶21 We affirm the trial court’s ruling and remand for further
proceedings.

4 In Bennett v. Appaloosa Horse Club, the court of appeals held that a fraud

claim could not be litigated apart from a contract claim subject to a forum
clause where the fraud claim arose from the same alleged contract violation.
201 Ariz. 372, 377 ¶ 24 (App. 2001). Although that is a question that the trial
court can consider, here it appears the alleged fraud occurred prior to the
contract formation; and, of course, it is a claim against a non-signatory.
8