First American Title v. Barron

2023 UT App 109

THE UTAH COURT OF APPEALS

FIRST AMERICAN TITLE INSURANCE COMPANY AND KIRSTEN PARKIN,
Appellants,
v.
DANA BARRON, ET AL.,
Appellees. 1

Opinion
No. 20220047-CA
Filed September 21, 2023

Third District Court, Salt Lake Department
The Honorable Keith A. Kelly
No. 210903427

David W. Tufts, J. Tayler Fox, and Douglas W.
Henkin, Attorneys for Appellants
Steven W. Call, Jonathan A. Dibble, Z. Ryan Pahnke,
R. Troy Mollerup, and Carol Ann Funk, Attorneys
for Appellees

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES
GREGORY K. ORME and JOHN D. LUTHY concurred.

TENNEY, Judge:

¶1 First American Title Insurance Company and its employee
Kirsten Parkin (collectively, First American) were sued for

1. In addition to Dana Barron, Appellees include, in the order
listed in the briefing: Victor M. Szurgot, Jr.; Linda J. Szurgot; Keith
E. King; Tytanium 4, LLC; William B. Maloney; Douglas S.
Peterson; Kathleen S. Peterson; Kathleen S. Peterson & Douglas S.
Peterson (“as trustees of The Lowell S. & Kathleen S. Peterson
Intervivos Trust”); Toot, Inc.; MDB Ventures, LLC; JDB Holdings,
LLC; Kent S. Seymour; Kathie Muhler; Noah Rockwell, LLC; and
Eldridge Holdings Too, LLC.
First American Title v. Barron

allegedly participating in a fraudulent real estate scheme. The
district court denied First American’s motion to compel
arbitration. For the reasons set forth below, we reverse that
decision. 2

BACKGROUND

The Purchase Agreements and Title Insurance

¶2 Sometime between early October and early November
2018, Rockwell Debt Free Properties, Inc. (Rockwell) purchased a
“parcel of land and a commercial building” (the Property) located
in Westminster, Colorado, from William and Shirley Newman.
From November 2018 through the beginning of 2019, Rockwell
entered into separate real estate purchase and sale agreements
(PSAs) with 14 different individuals, trustees, and companies
(collectively, Purchasers). Each PSA provided for the purchase of
a “fractional interest[]” in the Property. Purchasers bought
interests of varying percentages in the Property for a combined
total purchase price of $5,484,856.46.

¶3 The PSAs each contained the following arbitration clause:

9. Arbitration. Any dispute between the parties will
be submitted to binding arbitration according to the

2. As discussed more fully in note 6, both parties agree that Parkin
was First American’s agent with respect to the transactions that
are at the heart of this case. We note here that Parkin and First
American were represented by the same counsel below, that they
proceeded with a joint defense below, and that neither side’s brief
on appeal draws a distinction between First American and Parkin
with respect to the issue on which we ultimately decide this case.
Given these dynamics, and for simplicity of usage, we’ll refer to
“First American” throughout this opinion when referring to the
actions and positions taken by First American and Parkin.

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Commercial Rules of the American Arbitration
Association, but need not be filed with that
organization. Except for actions relating to the
payment of money for services rendered, an action
under this Agreement must be filed within 90 days
of the date of closing pursuant to this Agreement.
Arbitration will be conducted in Colorado, before a
single arbitrator. . . . If the amount in controversy
exceeds $25,000, the arbitrator’s decision will
include a statement specifying in reasonable detail
the basis for and computation of the award, if any.

¶4 First American acted as the title insurer and escrow agent
for each of these transactions. Indeed, the PSAs themselves
contained a clause that specifically required Purchasers to use
First American as the escrow agent for the transactions, stating
that the “balance of the purchase price shall be wired, or
otherwise transferred, to First American Title Company within
twenty-four hours of closing.” First American issued final
settlement statements for each transaction, and each final
settlement statement identified the settlement date, the
disbursement date, and the consideration amount.

¶5 The Title Insurance Policy (the Insurance Policy) that First
American issued to each of the Purchasers through endorsements
contained an arbitration clause of its own. It read:

14. ARBITRATION . . .
Either [First American] or the Insured may demand
that the claim or controversy shall be submitted to
arbitration pursuant to the Title Insurance Arbitration
Rules of the American Land Title Association
(“Rules”). . . . All arbitrable matters when the Amount
of Insurance is $2,000,000 or less shall be arbitrated at
the option of either [First American] or the Insured.
All arbitrable matters when the Amount of Insurance

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is in excess of $2,000,000 shall be arbitrated only when
agreed to by both the Company and the Insured.
Arbitration pursuant to this policy and under the
Rules shall be binding upon the parties.

¶6 The Insurance Policy also contained a section titled
“Definition of Terms,” under which “Amount of Insurance” was
defined as “[t]he amount stated in Schedule A, as may be
increased or decreased by endorsement to this policy.” The
“Amount of Insurance” listed in Schedule A of the Insurance
Policy was $3,535,000.

Purchasers’ Complaint and First American’s Motion to Compel
Arbitration

¶7 In June 2021, Purchasers filed a complaint against First
American in Utah state court. 3 Purchasers alleged that First
American actively participated with Rockwell and others in a
fraudulent scheme to misrepresent the value of the Property and
improperly induce Purchasers into signing the PSAs. Purchasers
pleaded 14 claims against First American, including claims for
intentional misrepresentation, fraud, fraud in the inducement,
breach of contract, civil conspiracy, and negligent
misrepresentation.

¶8 In August 2021, First American filed a motion to compel
arbitration. First American argued that the PSAs and the
Insurance Policy were both governed by Colorado law. It also
argued that Colorado law “strongly favors arbitration” and has a
“presumption in favor of arbitration” that should be applied to
these agreements.

3. Purchasers also sued other parties involved in the transactions
and alleged scheme on mostly similar grounds, but those claims
and parties are not before us in this appeal.

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¶9 First American then argued that it was entitled to invoke
the arbitration clauses from the PSAs and the Insurance Policy.
With respect to the PSAs, First American argued that although it
was a non-signatory to those agreements, it was “entitled to
enforce the PSA arbitration clause because Colorado law allows
non-signatories to compel arbitration when, inter alia, (i) the non-
signatory is an agent of a signatory, (ii) the non-signatory is a
third-party beneficiary, or (iii) estoppel applies.” First American
argued that it could invoke the PSAs’ arbitration clause under
each of these doctrines.

¶10 With respect to the Insurance Policy, First American
argued that it could “compel [Purchasers] to individually
arbitrate their claims because the Amount of Insurance at issue
[was] less than $2,000,000 for each [purchaser].” While First
American acknowledged that the “Amount of Insurance” in the
Insurance Policy was identified as $3,535,000, it claimed that the
endorsements issued to each Purchaser amended the Insurance
Policy to only insure Purchasers for a fractional share of that
amount, thus bringing the Amount of Insurance for each
Purchaser below the $2,000,000 threshold.

¶11 Purchasers opposed First American’s motion to compel
arbitration. In Purchasers’ view, Utah law “applie[d] because the
interpretation of a contract is procedural in nature.” But even so,
Purchasers argued that “the law in Colorado [was] the same.”
And in Purchasers’ view, Colorado’s presumption in favor of
arbitration did not apply in these circumstances and ambiguities
in the arbitration clause meant that the clause should actually be
construed against First American. Purchasers also argued that
First American was not a signatory to the PSAs and had not
established that it had any right under any legal doctrine to
enforce the arbitration clause that was contained in the PSAs.
Finally, Purchasers argued that the arbitration clause from the
Insurance Policy was inapplicable because the Amount of

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Insurance “exceed[ed] the $2,000,000 ceiling for compelling
arbitration.”

¶12 After hearing oral arguments, the district court denied First
American’s motion to compel arbitration. With respect to the
initial choice of law question, the district court concluded that
“the analysis [was] the same under Utah and Colorado law, [and]
each would reach the same result.” It thus saw no need to
definitively answer that question.

¶13 Turning to the substantive arguments, the district court
agreed with Purchasers on all fronts. With respect to the PSAs, the
court concluded that First American was not a party to the PSAs
and that First American had not established that it had any right
as a non-party to invoke the PSAs’ arbitration clause. In addition,
the court found it “unpersuasive” that First American would
“seek to cite and rely on the arbitration clause in the PSAs” when
its own contractual agreement with Purchasers—i.e., the
Insurance Policy—“contain[ed] [its] own arbitration terms.” With
respect to the arbitration clause from the Insurance Policy, the
court concluded that the applicable Amount of Insurance
exceeded $2,000,000 and that First American therefore could not
compel Purchasers to arbitrate.

¶14 First American timely appealed.

ISSUE AND STANDARD OF REVIEW

¶15 First American challenges the district court’s denial of its
motion to compel arbitration. “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 (quotation simplified). “Whether a
claim falls under an arbitration clause is a matter of contractual
interpretation, which is reviewed for correctness.” HITORQ, LLC

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v. TCC Veterinary Services, Inc., 2021 UT 69, ¶ 20, 502 P.3d 281
(quotation simplified).

ANALYSIS

¶16 First American argues that it was entitled to compel
arbitration under the arbitration clause from the PSAs as well as
the arbitration clause from the Insurance Policy, and it advances
several arguments on each front. As set forth below, we conclude
that First American can compel arbitration as a third-party
beneficiary of the PSAs. Because of this, we need not address First
American’s other arguments. 4

I. Choice of Law

¶17 We first briefly address the choice of law question that was
raised below and which ultimately informs some of our analysis.
First American argues that Colorado law governs the question of
whether it can invoke the arbitration clause from the PSAs, while
Purchasers suggest that the question should be decided under
Utah law. We agree with First American.

¶18 “When determining which state’s laws apply to a dispute
between two contracting parties, the law of the forum state
governs the choice of law analysis.” Volonte v. Domo, Inc., 2023 UT
App 25, ¶ 73, 528 P.3d 327 (quotation simplified). And when

4. In response to some of First American’s arguments, Purchasers
claim that there was a disconnect between the Amount of
Insurance that was identified in the Insurance Policy and the
“Proposed Policy Amount” that was identified in certain “Title
Commitment” documents associated with these transactions.
From this, Purchasers then argue that the arbitration clause from
the Insurance Policy was unenforceable. Because we conclude
that First American can enforce the arbitration clause from the
PSAs, we need not address this argument.

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“determining which state’s laws will apply to a dispute, Utah
courts first look to whether there was an effective choice of law by
the parties.” Id. ¶ 74 (quotation simplified). If there wasn’t an
effective choice of law by the parties, our courts “apply the most
significant relationship approach as described in the Restatement
(Second) of Conflict of Laws in determining which state’s laws
should apply to a given circumstance.” Id. (quotation simplified).

¶19 There was an effective choice of law by the parties in this
case. “When interpreting a contract, we begin by looking within
the four corners of the contract to determine the parties’
intentions, which are controlling.” Innerlight, Inc. v. Matrix Group,
LLC, 2009 UT 31, ¶ 14, 214 P.3d 854 (quotation simplified). “If the
language within the four corners of the contract is unambiguous,
a court determines the parties’ intentions from the plain meaning
of the contractual language as a matter of law.” Id. (quotation
simplified). Here, each PSA contained an identical provision
stating, “This Agreement will be subject to, and governed by the
laws of the state of Colorado.” And each PSA was signed by both
the respective purchaser and Rockwell’s president. The choice of
law provisions from the PSAs are controlling, and under their
plain terms, Colorado law controls the question before us.

II. Third-Party Beneficiary

¶20 First American argues that it was entitled to enforce the
PSAs’ arbitration clause as a “third-party beneficiary” to those
agreements. We agree.

¶21 Under Colorado law, “[a] person who is not a party to an
agreement containing an arbitration provision generally lacks
standing to compel, and is not subject to, arbitration.” Vallagio at
Inverness Residential Condo. Ass’n v. Metropolitan Homes, Inc., 2015
COA 65, ¶ 51, 412 P.3d 709. But “a non-party, such as a third-party
beneficiary, may fall within the scope of an arbitration agreement
and compel its enforcement if that is the intent of the parties.” Id.
“A third-party beneficiary may enforce a contract only if the

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parties to that contract intended to confer a benefit on the third
party when contracting . . . .” Everett v. Dickinson & Co., Inc., 929
P.2d 10, 12 (Colo. App. 1996). “While the intent to benefit” a non-
signatory “need not be expressly recited in the contract, the intent
must be apparent from the terms of the agreement, the
surrounding circumstances, or both.” Vallagio, 2015 COA 65, ¶ 52
(quotation simplified). In this sense, it “is not enough that some
benefit incidental to the performance of the contract may accrue
to the third party.” Everett, 929 P.2d at 12. Rather, the “critical fact
that determines whether a nonsignatory is a third-party
beneficiary is whether the underlying agreement manifests an
intent to confer specific legal rights upon the nonsignatory.” N.A.
Rugby Union LLC v. United States of America Rugby Football Union,
2019 CO 56, ¶ 34, 442 P.3d 859 (quotation simplified).

¶22 Under these principles, the question before us is whether
the parties to the PSAs manifested an intent to confer a specific
legal right on First American. We conclude that they did. The
PSAs were real estate purchase contracts, and such transactions
ordinarily involve the use of an escrow agent. What’s particularly
noteworthy here is that the PSAs contained a provision under
which “[t]he balance of the purchase price shall be wired, or
otherwise transferred, to First American Title Company within
twenty-four hours of closing.” (Emphasis added.) The PSAs
didn’t just contemplate the use of an escrow agent; rather, they
expressly required the parties to use First American for these
purposes. Because of this, there was nothing “incidental” about
the benefit that was conferred by these agreements on First
American. Rather, the contracts themselves placed First American
in a key role in the transactions.

¶23 In their brief, Purchasers pointed to no controlling
Colorado authority that would hold that First American did not
have third-party beneficiary rights under these circumstances.
Rather, the authority Purchasers relied on simply establishes
Colorado’s baseline approach to the third-party beneficiary rule,

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under which parties must intend to confer a benefit on the third
party when contracting. As just noted, we conclude that these
contracts show that these parties intended to confer a benefit on
First American in these transactions.

¶24 At oral argument, Purchasers pointed to two cases—Peters
v. Keyes Co., 402 F. App’x 448 (11th Cir. 2010) (per curiam), and
Lesieur v. Fryar, 325 S.W.3d 242 (Tex. App. 2010)—both of which
more specifically suggest, in their view, that an escrow agent
would not have third-party beneficiary rights. Putting aside the
problems associated with waiting until oral argument to first
point to the supportive authority that most specifically addresses
the issue at hand, we’re still not convinced.

¶25 These cases are not Colorado cases, so they’re not
mandatory authority in this appeal. Still, like other jurisdictions
in our federal system, Colorado courts could rely on them as
persuasive authority, which is how Purchasers ask us to use them.

¶26 But Colorado’s appellate courts have on some occasions
found Utah cases to be persuasive too. See, e.g., Tremitek, LLC v.
Resilience Code, LLC, 2023 COA 54, ¶ 38, 2023 WL 4055339 (citing
a Utah Court of Appeals opinion as “persuasive” authority);
People v. Sharp, 2019 COA 133, ¶ 36, 459 P.3d 725 (same); People v.
Marshall, 2014 COA 42, ¶ 24, 348 P.3d 462 (explaining that dictum
in a prior Colorado opinion was “persuasive” given that “courts
in other states” had “reached the same conclusion,” and then
citing a Utah Supreme Court case as one example). And on the
question before us in this case, we find the logic of the Utah
Supreme Court’s decision in Orlando Millenia, LC v. United Title
Services of Utah, Inc., 2015 UT 55, 355 P.3d 965, to be persuasive.
Orlando Millenia had an admittedly “complicated” factual
background. Id. ¶ 4. In brief, a lender sued an escrow agent based
on the escrow agent’s actions in conjunction with a real estate
transaction between a buyer (who had received money from the
lender) and a seller. Id. ¶¶ 1, 5–7. On appeal, the Utah Supreme

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Court held that although the lender hadn’t signed either the real
estate contract or the escrow agreement, the lender could still sue
the escrow agent as a third-party beneficiary of the escrow
agreement. Id. ¶¶ 37–40. The court noted that the lender was
“expressly named in the special escrow instructions” and that the
escrow agreement required “specific actions” from the lender
before the escrow agent could “disburse the funds” to the seller.
Id. ¶ 38. Because of this, the court concluded that the lender was
“no mere incidental beneficiary” of the escrow agreement, but
that it was “for all practical purposes a party” to it. Id. ¶ 40.

¶27 Though the circumstances at issue in Orlando Millenia and
this case are similar, we acknowledge that the factual overlap is
not perfect. After all, the Utah Supreme Court in Orlando Millenia
allowed a lender to claim third-party beneficiary rights while
suing an escrow agent, while we’re considering whether an
escrow agent can claim third-party beneficiary rights while
defending itself from a suit by a purchaser. But what matters most
for our purposes are the legal principles. On that front, Orlando
Millenia’s approach to the third-party beneficiary dynamic seems
consistent with the Colorado approach we outlined above, and we
think Orlando Millenia functions as a useful illustration of how
those principles operate in a scenario that resembles this one in
certain key respects. Like the lender in the Orlando Millenia
transaction, First American was “expressly named” in the
contracts in question, and those contracts (i.e., the PSAs) also
required “specific actions” from First American before they could
be completed. Id. ¶ 38. First American was therefore “no mere
incidental beneficiary” to the contracts at issue. Id. ¶ 40.

¶28 We also note that Purchasers’ claims against First
American are all linked in some measure to the underlying real
estate transactions. Those transactions were governed by the
PSAs, Purchasers signed those PSAs, and the PSAs all contained
an arbitration clause. In another recent Utah case that we think the
Colorado courts would find persuasive, this court relied on

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Delaware law when holding that a signatory plaintiff was subject
to a forum selection clause in a suit it filed against certain non-
signatories to a contract. Volonte v. Domo, Inc., 2023 UT App 25,
528 P.3d 327. Of note, the plaintiff had alleged that the non-
signatories had “acted as financial advisors for and assisted in the
preparation and dissemination of” allegedly “false and
misleading” statements from the contract. Id. ¶ 6 (quotation
simplified). Because that contract contained a forum selection
clause, we rejected the plaintiff’s attempt to avoid the forum
selection clause when suing non-signatories for closely related
conduct, holding that a contrary ruling would improperly give
the plaintiff an “end-run around” a provision from a contract to
which the plaintiff was a party. Id. ¶ 87 (quotation simplified). Yet
this same kind of attempted end-run is essentially what
Purchasers are attempting in this case too.

¶29 Even so, we recognize that this presents a somewhat
unique factual and procedural scenario for which no Colorado
case seems directly on point. But if any doubt remains, we’re
convinced that under Colorado law, that doubt would be resolved
in favor of concluding that the arbitration clause applies. The
“preferred method of dispute resolution in Colorado” is
“arbitration.” N.A. Rugby Union LLC, 2019 CO 56, ¶ 19; see also
Herrera v. Santangelo Law Offices, PC, 2022 COA 93, ¶ 11, 520 P.3d
698 (“Colorado law favors the resolution of disputes through
arbitration.” (quotation simplified)); Johnson-Linzy v. Conifer Care
Cmtys. A, LLC, 2020 COA 88, ¶ 16, 469 P.3d 537 (“Colorado’s
preference for the resolution of disputes through arbitration is
embedded in both the Colorado Constitution and the
[Colorado Uniform Arbitration Act].”). In light of this
preference, Colorado courts will “[i]n general . . . resolve
ambiguities in favor of arbitration.” N.A. Rugby Union LLC, 2019
CO 56, ¶ 19; see also Radil v. National Union Fire Ins. Co. of
Pittsburgh, PA, 233 P.3d 688, 692 (Colo. 2010) (“We resolve
ambiguities in favor of arbitration . . . .”); Lane v. Urgitus, 145 P.3d
672, 678 (Colo. 2006) (holding that if “ambiguities are found in the

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arbitration agreement,” Colorado courts apply “a presumption in
favor of arbitration and resolve doubts about the scope of the
arbitration clause in favor of arbitration”). 5

¶30 In short, the parties have pointed to no case in which a
Colorado court considered the question of whether an escrow

5. Purchasers suggest that this preference should not apply here
because of cases holding that ambiguities in an insurance contract
are construed against the insurer (which, in this case, would be
First American). But the Colorado cases that Purchasers rely on
for this proposition are about coverage disputes. See, e.g., Renfandt
v. New York Life Ins. Co., 2018 CO 49, ¶¶ 17–18, 419 P.3d 576;
GEICO Cas. Co. v. Collins, 2016 COA 30M, ¶¶ 18–19, 371 P.3d 729;
Public Service Co. of Colorado v. Wallis & Companies, 986 P.2d 924,
931 (Colo. 1999). And both things can be true—i.e., courts can
construe ambiguities regarding coverage in favor of the insured,
while then construing any ambiguities about the applicability of
an arbitration clause in a covered case in favor of arbitration. In
one case, for example, the Colorado Supreme Court applied both
the “policy against dilution of the uninsured motorist coverage”
and the “policy in favor of encouraging arbitration as an
alternative to litigation” within the same case. Huizar v. Allstate
Ins. Co., 952 P.2d 342, 345–47 (Colo. 1998).
In any event, the Colorado Supreme Court has held that if
these two principles come into conflict, the preference for
arbitration wins out. See Allen v. Pacheco, 71 P.3d 375, 378 n.3 (Colo.
2003) (“Although the court of appeals correctly stated that
ambiguities in an insurance contract generally are construed
against the drafter, the court of appeals failed to recognize this
court’s clear holding in [City & County of Denver v. District Court,
939 P.2d 1353, 1364 (Colo. 1997)], that courts must afford
ambiguities in arbitration agreements a presumption in favor of
arbitration.” (quotation simplified)). So here, if there is somehow
a conflict between the two principles, Colorado’s preference for
arbitration would be the rule that would guide our decision.

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agent can invoke third-party beneficiary rights to enforce an
arbitration clause from a real estate contract. Considering this
question ourselves, we note that the escrow agent was directly
identified and brought into the real estate contracts at issue, the
claims against the escrow agent are largely linked to those real
estate transactions, and the real estate contracts all contain an
arbitration clause. Under settled principles of Colorado law and
backed by persuasive out-of-state authority, we believe that the
escrow agent in these circumstances can qualify as a third-party
beneficiary. 6

6. In their complaint, Purchasers alleged that Kirsten Parkin was
employed by First American and “act[ed]” as its “authorized
agent” at “all relevant times.” In their brief on appeal, Purchasers
“agree[d] with” First American’s position that Parkin is First
American’s “agent.”
As indicated above, the Appellants’ brief was filed on
behalf of both First American and Parkin. At the outset, the brief
made it clear that its arguments applied to both First American
and Parkin, asserting that the company and Parkin were asking
us “together” to reverse the district court’s order denying their
joint motion to compel arbitration. Of note, this joint approach on
appeal included the third-party beneficiary argument. In the
Introduction, the brief argued that the district court had erred by
failing to recognize that “they”—meaning First American and
Parkin—“are third-party beneficiaries of the PSAs.” In the
substantive portion of the brief addressing the third-party
beneficiary issue, the brief repeatedly argued that the
“Appellants”—with the plural form again signifying inclusion of
Parkin—were entitled to relief on that basis.
Though somewhat unclear, Purchasers’ responsive brief
arguably drew a distinction between First American and Parkin
with respect to Parkin’s potential ability to rely on the arbitration
clause from the Insurance Policy. With respect to the third-party
(continued…)

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CONCLUSION

¶31 For the foregoing reasons, we hold that First American can
invoke the arbitration clause from the PSAs. We accordingly
reverse the district court’s denial of First American’s motion to
compel arbitration.

beneficiary issue, however, Purchasers drew no such distinction.
While Purchasers broadly disagreed with the assertion that the
third-party beneficiary rule applied to this case, Purchasers made
no effort to distinguish Parkin on this front—i.e., Purchasers
never argued that even if the PSAs intended to confer a benefit on
First American, there was a meaningful difference with respect to
any intent to confer a benefit on First American’s agents generally
or Parkin more particularly. Given the posture of this case and the
way that it was briefed, we therefore conclude that, like First
American, Parkin is entitled to relief under the third-party
beneficiary rule.

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