Old Republic National Title v. Cap Fund 783

2026 UT App 37

THE UTAH COURT OF APPEALS

OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY,

Appellee,

v.

CAP FUND 783 LLC AND MATT BAKER,

Appellants.

Opinion

No. 20250117-CA

Filed March 19, 2026

Fourth District Court, Provo Department

The Honorable Derek P. Pullan

No. 200401089

Kennedy D. Nate, Austin C. Nate, and

Stephen R. Arroyo, Attorneys for Appellants

Peter C. Schofield, Justin W. Starr, and

Joseph V. Osmond, Attorneys for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which

JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS

concurred.

OLIVER, Judge:

¶1 Matt Baker entered into a series of real estate transactions

on behalf of Cap Fund 783 LLC (Cap Fund). Old Republic

National Title Insurance Company (Old Republic) acted as the

escrow agent in these transactions. When Old Republic went to

distribute the escrowed funds it had collected, confusion arose

about whether Matt 1 or his brother Shane Baker was entitled to

the funds owed to Cap Fund. Old Republic then interpleaded the

1. Because Matt Baker and Shane Baker share a surname, we refer

to them in this opinion by their given names, with no disrespect

intended by the apparent informality.

Old Republic v. Cap Fund 783

funds with the district court. Matt filed counterclaims against Old

Republic, alleging it mishandled the escrowed funds in numerous

ways. Old Republic moved for summary judgment on all of

Matt’s counterclaims, asserting it was immune from suit because

the claims arose from its decision to interplead the funds and

arguing Matt could not prove two of his counterclaims as a matter

of law. The district court agreed, dismissed all of Matt’s

counterclaims, and awarded attorney fees to Old Republic on

both equitable and statutory grounds.

¶2 On appeal, Matt argues that (1) interpleader immunity

does not apply to his counterclaims because they are based on

actions and harms separate from Old Republic’s decision to

interplead the funds and (2) he produced evidence in support of

his counterclaims. He also challenges the award of attorney fees

to Old Republic. We reverse the grant of summary judgment

based on interpleader immunity and we therefore vacate the

equitable award of attorney fees for defending those claims. We

also reverse the grant of summary judgment on Matt’s tortious

interference claim, but we affirm the grant of summary judgment

on his civil conspiracy claim. And we reverse the statutory award

of attorney fees.

BACKGROUND 2

The Real Estate Transaction

¶3 Matt, purporting to act on behalf of Cap Fund, entered into

an agreement with a seller (Seller) to purchase real property in

Utah County for $373,000 (the Contract). The Contract was

2. “In reviewing the district court’s grant of summary judgment,

we review the facts in the light most favorable to [Matt], as the

nonmoving party. We present contrary facts only when necessary

to understand the issues raised on appeal.” Musser v. Town of

Apple Valley, 2025 UT App 197, n.1, 582 P.3d 1284 (cleaned up).

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Old Republic v. Cap Fund 783

between Seller and Cap Fund. Matt signed the Contract on behalf

of Cap Fund, an entity he created for purposes of this transaction. 3

Matt—acting in his personal capacity, without mention of Cap

Fund—then entered into an additional agreement to sell the same

property to another buyer (Buyer) for a higher price (the

Addendum). Matt and Buyer were the only parties to the

Addendum. Then Matt—again purporting to act on behalf of Cap

Fund—signed a document assigning Cap Fund’s interest in the

Contract to Buyer (the Assignment). Cap Fund, Seller, and Buyer

were the parties to the Assignment. Through this new

arrangement, Buyer would pay Seller the $373,000 directly and

then pay Matt an assignment fee of $767,000 (the Assignment Fee).

¶4 Old Republic served as the escrow agent to manage this

transaction. Old Republic closed the transaction and escrowed

$708,800 as the Assignment Fee owed to Cap Fund. 4

¶5 After closing, Matt requested Old Republic wire the

Assignment Fee to his personal bank account. However, Cap

Fund corporate documents listed Shane as the company’s

registered agent and manager. While speaking to an Old Republic

employee about why it could not honor his request to wire the

3. After appellants filed their opening brief, the district court

declared Shane to be the sole manager and member of Cap Fund.

Neither party raised the issue of whether the attorneys

representing Cap Fund in this appeal remain authorized to do so

following this ruling by the district court. We therefore identify

the issue as one to be addressed by the district court on remand,

as necessary.

4. The $708,800 reflects deductions from the $767,000 Assignment

Fee of a $50,000 deposit of earnest money and $8,200 for an

engineering study. The parties dispute whether it was proper for

Old Republic to deduct these amounts. We offer no opinion on the

matter as the question is not before us.

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Old Republic v. Cap Fund 783

funds to his personal bank account, Matt repeatedly asserted that

Shane had assigned Cap Fund’s interest in the Contract to him.

After this conversation, Matt sent an email to Old Republic

indicating that Shane would send wire instructions for Cap Fund.

The next day, he sent a follow-up email indicating that Old

Republic should have received the wire instructions for Cap Fund

in an email from Shane. But no such email had arrived. Following

these confusing exchanges, Old Republic contacted Shane, who,

upon learning of the existence of the funds, claimed ownership of

them. Matt then changed Cap Fund’s corporate documents to

remove Shane as the listed manager and registered agent and list

himself instead. 5

The Litigation

¶6 Because of the confusion over the proper ownership of the

Assignment Fee, Old Republic interpleaded the funds it had

collected, depositing the full escrowed amount of $708,800 with

the district court. Matt then counterclaimed against Old Republic.

Matt originally asserted three counterclaims: breach of fiduciary

duties, breach of implied contract, and negligence (the Original

Claims). The Original Claims asserted misdoings only regarding

Old Republic’s disbursement of the escrowed funds. After an

initial amended counterclaim, Matt filed a second amended

counterclaim, which included two additional claims: tortious

interference and civil conspiracy (the Additional Claims). The

second amended counterclaim also amended the Original Claims

to include allegations that Old Republic did not collect the correct

5. In connection with this transaction, Matt was later convicted by

a federal jury on “two counts of wire fraud (one for the phone call

with Old Republic and one for changing Cap Fund’s registration

information online).” United States v. Baker, 155 F.4th 1188, 1193

(10th Cir. 2025).

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Old Republic v. Cap Fund 783

amount of funds and to claim damages beyond the amount of the

escrowed funds.

¶7 Old Republic moved for summary judgment on all five of

Matt’s claims, asserting interpleader immunity as to the Original

Claims and arguing Matt could not establish the elements of the

Additional Claims as a matter of law. The district court granted

the motion as to the Original Claims because, in the court’s view,

those claims were limited to allegations regarding the manner in

which Old Republic had disbursed the funds and there was “no

record evidence that Old Republic engaged in actionable conduct

independent of its decision to interplead the funds” that could

constitute the basis for bringing such claims. The district court

also granted the motion as to the Additional Claims. On the civil

conspiracy claim, the court concluded that “there [wa]s no record

evidence that Old Republic conspired with Shane” and that “to

infer conspiracy from this record [wa]s a leap of speculation that

is not permitted.” 6 And on the tortious interference claim, the

court concluded that Old Republic owed Matt no duty and,

therefore, the tortious interference claim failed “[t]o the extent [it]

rest[ed] on a breach of fiduciary duty as the improper means.”

¶8 The court later awarded attorney fees to Old Republic.

Under its “equitable authority to award fees to an interpleader,”

the court awarded fees incurred in defense of the Original Claims.

The court concluded that the Original Claims were barred by

interpleader immunity because Matt did not complain of Old

Republic’s behavior until it refused to pay him directly. The court

also awarded fees for the defense of the Additional Claims under

Utah Code section 78B-5-825 (the Bad Faith Statute). The court

found that both of the Additional Claims “were without merit in

that they had no credible basis in fact” and that “Matt . . . did not

6. The court further noted that “Old Republic owed no fiduciary

duty to [Matt], and without this underlying tort, the civil

conspiracy claim would fail as a matter of law.”

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Old Republic v. Cap Fund 783

have an honest belief in either the propriety of his civil conspiracy

claim or tortious interference claim.”

ISSUES AND STANDARDS OF REVIEW

¶9 Matt raises several arguments challenging the district

court’s grant of summary judgment. “We review summary

judgments for correctness, giving no deference to the [district]

court’s decision . . . .” Bahr v. Imus, 2011 UT 19, ¶ 16, 250 P.3d 56.

¶10 Next, Matt challenges the award of attorney fees by the

district court. We review an award of attorney fees under the

court’s equitable authority for an abuse of discretion. See Anderton

v. Boren, 2017 UT App 232, ¶ 14, 414 P.3d 508. We review fees

awarded under the Bad Faith Statute “as a mixed question of law

and fact.” McFarland v. McFarland, 2024 UT App 31, ¶ 12, 547 P.3d

204 (cleaned up). “A finding of bad faith is a question of fact and

is reviewed by this court under the clearly erroneous standard,

but a without merit determination is a question of law that we

review for correctness.” Id. (cleaned up).

ANALYSIS

I. Summary Judgment

¶11 Matt’s challenge to the grant of summary judgment comes

in two parts. First, he argues interpleader immunity does not

apply to the Original Claims. Second, he argues the court erred in

concluding the Additional Claims failed as a matter of law. We

address each argument in turn.

A. The Original Claims

¶12 Old Republic moved for summary judgment on the

Original Claims on the ground that it was immune from suit as an

20250117-CA 6 2026 UT App 37

Old Republic v. Cap Fund 783

interpleader of funds. The district court agreed because there was

“no record evidence that Old Republic engaged in actionable

conduct independent of its decision to interplead the funds.” This

dismissal was grounded in the common-law principle of

interpleader immunity. See Horton’s Ex’r v. Baptist Church & Soc’y

in Chester, 34 Vt. 309, 314 (1861) (“It follows hence, that when the

contesting parties are brought before the court, the [interpleader]

may then lay off, . . . being sure, that, so far as he is concerned, he

will enjoy immunity in the conflict, and safety in the result.”). “An

action in interpleader is a proceeding in equity in which a person

who has possession of money . . . which may be owned or claimed

by others seeks to rid himself of risk of liability . . . by disclaiming

his interest and submitting the matter of ownership for

adjudication by the court.” Terry’s Sales, Inc. v. Vander Veur, 618

P.2d 29, 31 (Utah 1980); see also Utah R. Civ. P. 22 (“Persons having

claims against the plaintiff may be joined as defendants and

required to interplead when their claims are such that the plaintiff

is or may be exposed to double or multiple liability.”).

¶13 Matt contends on appeal that his counterclaims were not

subject to dismissal under interpleader immunity asserting that

his counterclaims were based on more than Old Republic’s

decision to interplead the funds, including that it “miscalculated

the funds” it was supposed to collect at closing and that Old

Republic, by its own actions, created the dispute over ownership

of the Assignment Fee. Although Old Republic defended the

propriety of the district court’s grant of summary judgment on

interpleader immunity in its briefing, at oral argument Old

Republic conceded that interpleader immunity did not bar the

Original Claims to the extent that Matt’s second amended

counterclaim alleged wrongdoing by Old Republic beyond

merely interpleading the funds (i.e., causing the dispute by

contacting Shane about the Assignment Fee) and alleged damages

in addition to the amount of the interpleaded funds (i.e., under-

collecting the funds at closing).

20250117-CA 7 2026 UT App 37

Old Republic v. Cap Fund 783

¶14 Based on Old Republic’s concession, the district court’s

grant of summary judgment on the Original Claims was improper

because it was granted solely on interpleader immunity. 7

Accordingly, we reverse the grant of summary judgment on the

Original Claims, and we remand to the district court for further

proceedings on those claims.

B. The Additional Claims

¶15 Old Republic moved for summary judgment on the

Additional Claims on their respective merits, arguing Matt could

not establish the required elements for either claim. The district

court agreed and granted summary judgment to Old Republic.

We reverse the grant of summary judgment on the tortious

interference claim, and we affirm the grant of summary judgment

on the civil conspiracy claim.

1. Tortious Interference

¶16 “To recover damages for tortious interference a plaintiff

must prove (1) that the defendant intentionally interfered with the

plaintiff’s existing or potential economic relations, (2) for an

improper purpose or by improper means, (3) causing injury to the

plaintiff.” Musselman v. Keele, 2024 UT App 143, ¶ 21, 559 P.3d 64

(cleaned up). In its motion for summary judgment, Old Republic

argued that Matt had not put forth sufficient evidence to prove

the “improper means” element of this claim. In response, Matt

asserted that violation of fiduciary duties and “standards

established for title companies” could constitute improper means

under Utah case law. The district court determined that “Old

Republic owed no fiduciary duty to [Matt]” and dismissed Matt’s

7. The district court was correct in concluding that, to the extent

the Original Claims allege wrongdoing related to disbursement of

the funds, those claims are barred by interpleader immunity. But

as amended, the Original Claims are broader than that, and to that

extent, interpleader immunity is not a basis for dismissal.

20250117-CA 8 2026 UT App 37

Old Republic v. Cap Fund 783

tortious interference claim “[t]o the extent [it] rest[ed] on a breach

of fiduciary duty as the improper means.”

¶17 On appeal, Matt asserts the district court’s decision was

erroneous because Old Republic owed him a duty as an escrow

agent for a financial transaction he was a party to. We agree with

Matt that Old Republic owed him a duty. An escrow agent owes

a duty to all parties “who are identified as intended beneficiaries”

of a transaction. Orlando Millenia, LC v. United Title Servs. of Utah,

Inc., 2015 UT 55, ¶ 32, 355 P.3d 965. And under the Addendum,

Matt was a party to the transaction in his individual capacity.

Thus, Old Republic owed a duty to Matt, and the district court

therefore erred in concluding that Matt could not prove the

required “improper means” because Old Republic owed him no

duty. Accordingly, we reverse the grant of summary judgment on

the tortious interference claim and remand to the district court for

further proceedings on that claim.

2. Civil Conspiracy

¶18 To prove the tort of civil conspiracy, a plaintiff must show

“clear and convincing evidence” of “(1) a combination of two or

more persons, (2) an object to be accomplished, (3) a meeting of

the minds on the object or course of action, (4) one or more

unlawful, overt acts, and (5) damages as a proximate result

thereof.” Pyper v. Reil, 2018 UT App 200, ¶ 16, 437 P.3d 493

(cleaned up). Old Republic moved for summary judgment on

Matt’s civil conspiracy claim asserting, “there [wa]s no evidence”

that Old Republic “conspired with anyone.” In response, Matt

argued that Old Republic conspired with Shane to deprive Matt

of the Assignment Fee because Shane had no knowledge of the

transaction until Old Republic contacted him. The district court

determined that “there [wa]s no record evidence that Old

Republic conspired with Shane” and that “to infer conspiracy

from this record [wa]s a leap of speculation that is not permitted.”

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Old Republic v. Cap Fund 783

¶19 On appeal, Matt does not present any argument

challenging the district court’s ruling on his civil conspiracy

claim. His only argument regarding his civil conspiracy claim was

made in the context of the award of attorney fees. It is an

appellant’s “burden of persuasion on appeal . . . to tell us where

and how the district court went wrong,” specifically by

“address[ing] the reasoning and basis of the district court’s ruling

and . . . explain[ing] why that court got it wrong.” Lavender v. FCOI

Pres., LLC, 2025 UT App 47, ¶¶ 100, 106, 569 P.3d 1037 (cleaned

up), cert. denied, 570 P.3d 660 (Utah 2025). Matt failed to do so, and

thus we need not address this issue on its merits. See Allen v. Friel,

2008 UT 56, ¶ 7, 194 P.3d 903 (holding that where “an appellant

fails to allege specific errors of the lower court, the appellate court

will not seek out errors in the lower court’s decision”).

Accordingly, we affirm the district court’s grant of summary

judgment on Matt’s civil conspiracy claim.

II. Attorney Fees

¶20 The district court awarded attorney fees to Old Republic in

two parts. For the Original Claims, the court awarded fees under

its equitable authority. And for the Additional Claims, the court

awarded fees under the Bad Faith Statute. Because we reverse the

district court’s grant of summary judgment on the Original

Claims, we vacate the associated award of attorney fees. But

because we affirm the district court’s grant of summary judgment

on the civil conspiracy claim, we review Matt’s challenge to the

attorney fees awarded under the Bad Faith Statute.

¶21 Matt challenges the award of attorney fees under the Bad

Faith Statute on two grounds. He first asserts the district court

erred because it based its award on a determination that the

Additional Claims were without merit and not brought in good

faith when the Bad Faith Statute required the court to find that

“the action” was without merit and not brought in good faith.

Second, Matt argues the district court erred in finding that the

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Old Republic v. Cap Fund 783

Additional Claims were without merit. Because we agree with

Matt on his first argument, we do not reach his second argument.

¶22 Here, the court found the Additional Claims were

“without merit in that they had no credible basis in fact” and Matt

“did not have an honest belief in either the propriety of his civil

conspiracy claim or tortious interference claim.” But under the

Bad Faith Statute, the court must determine “that the action . . .

was without merit and not brought or asserted in good faith”

before awarding attorney fees. Utah Code § 78B-5-825(1)

(emphasis added). The court’s decision failed to address whether

Matt’s action as a whole was brought in bad faith and was without

merit; it based its award only on the Additional Claims. Although

we would normally remand the matter for additional factual

findings on whether the action was without merit and not brought

in good faith, such findings would be premature where we have

reversed the grant of summary judgment on the Original Claims.

¶23 Accordingly, we reverse the award of attorney fees under

the Bad Faith Statute on the Additional Claims. The district court

remains free, however, to consider an award of attorney fees to

Old Republic under the Bad Faith Statute if, at the conclusion of

the entire litigation, Old Republic is considered a prevailing party

in the action. 8

CONCLUSION

¶24 We reverse the grant of summary judgment on Matt’s

Original Claims and vacate the equitable award of attorney fees

for the defense of those claims. We reverse the grant of summary

judgment on Matt’s claim for tortious interference, affirm the

grant of summary judgment on Matt’s claim for civil conspiracy,

8. Old Republic also requests attorney fees for this appeal. We

decline to award such fees.

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Old Republic v. Cap Fund 783

and reverse the award of statutory attorney fees on those claims.

Accordingly, we remand the matter for further proceedings.

20250117-CA 12 2026 UT App 37