PCVI v. Premsrirut: Court Reverses Venue Dismissal Based on Forum Selection Clause

Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

April 16, 2026 Get Citation Alerts Download PDF Add Note

PCVI v. Premsrirut and Brown Brown

Court of Appeals of Utah

• Citations: 2026 UT App 56

• Docket Number: Case No. 20241227-CA

• Opinion

• Authorities (28)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.9K)

• PDF

Combined Opinion

2026 UT App 56

THE UTAH COURT OF APPEALS

PCVI LLC, 1000 EAST HOLMSTEAD RANCH LLC,
HOLMSTEAD RANCH RESORT, LLC, AND UTAH TH LLC,
Appellants,
v.
PUOY K. PREMSRIRUT, PUOY K. PREMSRIRUT ESQ. INC.,
AND BROWN BROWN & PREMSRIRUT,
Appellees.

Opinion
No. 20241227‐CA
Filed April 16, 2026

Fifth District Court, St. George Department
The Honorable Eric Gentry
No. 220500527

Alex B. Leeman, Alan S. Mouritsen,
Vivian Lee Thoreen, and Lydia Lee Lockett,
Attorneys for Appellants
Michael F. Skolnick, Matthew S. Thomas, and
Joseph P. Garin, Attorneys for Appellees

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

TENNEY, Judge:

¶1 In July 2020, entrepreneur Anthony Hsieh signed a
power of attorney (the Power of Attorney) that authorized
Connie Yeh to act on his behalf. A few weeks later, Hsieh signed
a document that designated Yeh as the authorized agent for
PCVI, LLC (PCVI), which was a company that Hsieh had recently
formed.

¶2 In August 2020, Yeh signed a retainer agreement (the
Agreement) with the Nevada law firm Brown Brown
& Premsrirut (the Firm), whereby the Firm was retained to
represent PCVI, Hsieh, and “their respective affiliates.” The
PCVI v. Premsrirut

Agreement contained two forum selection clauses that required
the parties to litigate any future disputes in Nevada. Puoy
Premsrirut was one of the attorneys from the Firm. Acting as the
attorney for Hsieh, Premsrirut soon purchased a resort in
southern Utah and formed several entities to facilitate that
transaction.

¶3 Hsieh struggled with substance abuse throughout 2020,
and he died in November of that year. After his death, PCVI and
three related entities filed a legal malpractice action in Utah
against the Firm and Premsrirut. The defendants later filed a
motion to dismiss for improper venue, citing the forum selection
clauses from the Agreement. Over the plaintiffs’ opposition, the
district court granted that motion. The plaintiffs now appeal. For
the reasons set forth below, we reverse one aspect of the dismissal
order, affirm several others, and remand for further proceedings
consistent with this opinion. 1
0F0F

1. As will be discussed below, some of the issues on appeal relate to PCVI and the three entities together, while some of the issues only relate to the three entities. Moving forward, we’ll refer to the plaintiffs collectively as “the Plaintiffs,” and where warranted, we’ll refer to the three entities as “the Non‐Signatory Plaintiffs.” As will be discussed, the defendants include both the Firm and Premsrirut. We’ll refer to them collectively as “the Defendants.”

20241227‐CA 2 2026 UT App 56
PCVI v. Premsrirut

BACKGROUND 2 1F1F

Underlying Facts

¶4 Hsieh was a successful entrepreneur and businessman.
Among other things, he was the former CEO of Zappos, which is
a leading online retailer. Although Hsieh was a Nevada resident
and spent much of his professional career there, he owned a
home in Park City and lived there during the events relevant to
this appeal.

¶5 On July 18, 2020, Hsieh executed the Power of Attorney,
and this document gave Yeh authority to make a large number of
specified decisions on Hsieh’s behalf. These included various
financial decisions, as well as decisions regarding the “Operation
of Entit[ies] or Business[es]” and “Legal Affairs, Claims and
Litigation.” 3
2F2 F

¶6 On July 21, Yeh formed PCVI on behalf of Hsieh. PCVI’s
organizing document said that its purpose was the
“[m]anagement of businesses.” Hsieh was listed as the sole
member of the organization. On August 5, Hsieh signed another

1. This appeal is from the district court’s decision to grant a
   motion to dismiss for improper venue. In reviewing such a
   motion, “we view the facts and construe the complaint in the light
   most favorable to the plaintiff and indulge all reasonable
   inferences” in the plaintiff’s favor. Prows v. Pinpoint Retail Sys.,
   Inc., 868 P.2d 809, 810 (Utah 1993) (quotation simplified).

2. To provide some context for this, we note that according to
   some documents filed in this case, Yeh was Hsieh’s cousin, was a
   Wharton Business School graduate, and had been one of Hsieh’s
   financial advisors for many years.

20241227‐CA 3 2026 UT App 56
PCVI v. Premsrirut

document (the Consent) designating Yeh as the “authorized
agent” of PCVI.

¶7 On August 12, Yeh signed the Agreement—which, as
indicated above, was with the Firm. The Agreement stated that
Premsrirut would “be the attorney primarily responsible” for the
retained work. The Agreement said that the Firm and Premsrirut
were being retained to “represent Tony Hsieh (in his individual
capacity), PCVI, LLC, (the ‘Company’) . . . and their respective
affiliates, as well as such other entities or persons as mutually
agreed by the parties,” and it then specified that “the Company
and the foregoing collectively” would be “referred to” in the
Agreement “as the ‘Client.’” The Agreement said that the Firm
and Premsrirut would provide “legal services,” which included
the “provision of real estate,” “corporate and contractual legal
services,” and oversight of “all legal affairs of Client as directed.”
In exchange for these services, the Firm would receive an annual
retainer of over $2 million.

¶8 The Agreement contained two forum selection clauses
that are central to the issues raised on appeal. The first forum
selection clause was included under a heading titled “GENERAL
PROVISIONS,” and we’ll refer to it as the General Clause. This
clause stated,

This Agreement will be governed by and construed
in accordance with the laws of the United States and
the State of Nevada applied to agreements entered
into and to be performed entirely within Nevada
between Nevada residents. Firm and Company
further agree that for purposes of venue and
jurisdiction, that any disputes, issues, enforcement
and/or all other matters concerning the Agreement
will be determined in Clark County, State of
Nevada, United States of America. The parties
expressly waive any other jurisdiction to which they

20241227‐CA 4 2026 UT App 56
PCVI v. Premsrirut

might be entitled as a result of their present or future
domicile or for any other reason.

¶9 The second forum selection clause was included under a
heading titled “CLIENT DUTIES AND RESPONSIBILITIES,”
and we’ll refer to it as the Litigation Clause. This clause stated,
“Any litigation or other proceeding brought in connection with
or as a result of the Firm’s representation of the Client must be
commenced and maintained only in a court of proper jurisdiction
and venue in the State of Nevada.”

¶10 In September, Premsrirut formed Tony Utah, LLC—later
renamed Utah TH, LLC—with Hsieh listed as the sole
“member[]/manager[].” In October, Premsrirut formed 1000 East
Holmstead Ranch, LLC, with Utah TH, LLC listed as the sole
“member[]/manager[].”

¶11 In late October, Premsrirut directed and oversaw 1000
East Holmstead Ranch, LLC’s acquisition of the Holmstead
Ranch—a “dude ranch resort” in southern Utah—for $25 million.
In conjunction with this purchase, Hsieh acquired 100% of the
membership interest of Holmstead Ranch Resort, LLC, an
organization that had been formed by the former owner of the
ranch. The purchase agreement was signed by Yeh as the
manager of 1000 East Holmstead Ranch, LLC on October 21, and
the purchase of the Holmstead Ranch closed on October 30. 4 3F3F

¶12 Hsieh died in November 2020. Hsieh’s father, Richard
Hsieh, was the sole administrator of Hsieh’s estate.

1. The three entities we’ve referred to in this paragraph—(1) Utah TH, LLC; (2) 1000 East Holmstead Ranch, LLC; and (3) Holmstead Ranch Resort, LLC—are the entities we’ve referred to collectively as the Non‐Signatory Plaintiffs.

20241227‐CA 5 2026 UT App 56
PCVI v. Premsrirut

The Amended Complaint

¶13 The Plaintiffs filed suit against the Defendants in August
2022. The complaint was filed in Washington County, Utah, and
it asserted that venue was proper there because “the transactions
and representations at issue in this lawsuit occurred, at least in
part, there” and because “the real estate at issue is located there.”

¶14 In an amended complaint that was filed in March 2023, the
Plaintiffs asserted claims (1) alleging legal malpractice and
(2) asking for formation of a constructive trust regarding
ownership of the Holmstead Ranch. In support of the legal
malpractice claim, the Plaintiffs asserted that the Defendants had
provided negligent legal assistance relating to the purchase of the
Holmstead Ranch (including by, among other things, failing to
perform due diligence on the project), thereby causing the ranch
to be overvalued by around $7 million. The constructive trust
claim piggybacked off the legal malpractice claim. There, the
Plaintiffs asserted that the Defendants’ legal malpractice had
resulted in the “Plaintiffs” now “possess[ing] and bear[ing] the
liabilities of owning the Holmstead Ranch.” The Plaintiffs asked
the court to enter orders under which Hsieh’s estate would hold
title to the Holmstead Ranch “in constructive trust for” the Firm,
with the Firm being “ordered to take possession of the property
and return the acquisition price” to the estate. 5
4F4F

1. It’s not entirely clear to us from the pleadings or the appellate briefing why the Plaintiffs believe that the Defendants committed malpractice against PCVI or how PCVI has been damaged. As indicated, the documents presented to the district court show that (1) Hsieh (not PCVI) was the sole “member/manager” of Utah TH, LLC; (2) Utah TH, LLC was the sole “member/manager” of 1000 East Holmstead Ranch, LLC; and (3) 1000 East Holmstead Ranch, (continued…)

20241227‐CA 6 2026 UT App 56
PCVI v. Premsrirut

¶15 In the amended complaint, the Plaintiffs also alleged that
Hsieh lacked the capacity to agree to the Power of Attorney or,
later, the Agreement. In doing so, the Plaintiffs presented a series
of allegations that began with events from the late fall of 2019.
According to the Plaintiffs, “[b]etween November 2019 and
February 2020, [Hsieh] was under the influence of Ketamine and
consequently suffered from disorganized delusional thinking
and delusions of grandeur, resulting in erratic, nonsensical, and
destructive behavior.” The Plaintiffs alleged that during this
period, Hsieh became “convinced that all humans were living in
a simulation created by artificial intelligence,” and they further
alleged that he believed he could “‘bio hack’ his body to eliminate
the need to urinate or sleep, and that his use of Ketamine would
enable him to grow an additional two inches.”

¶16 The Plaintiffs then alleged that Hsieh’s substance abuse
problems caused him to check into a rehabilitation facility in
February 2020, where “members of the treatment staff were
immediately concerned about [Hsieh’s] psychiatric state”
because he was “manic [and] exhibited delusions of grandeur
and substance‐induced psychosis.” The Plaintiffs alleged that
Hsieh checked himself out of the facility after only 14 days, and
they further alleged that “his medical providers expressed
concern that his disorganized thinking and delusions would
continue if he resumed his substance abuse.”

¶17 The Plaintiffs alleged that following Hsieh’s February stay
at the rehabilitation center, Hsieh “continued abusing
hallucinogenic and dissociative substances, including nitrous
oxide.” They alleged that this abuse “fundamentally destroyed

LLC purchased the Holmstead Ranch. Regardless, the issues
before us only concern the enforceability of the forum selection
clauses, and the parties have not yet litigated questions of liability
or damages at all, let alone relating to PCVI in particular.

20241227‐CA 7 2026 UT App 56
PCVI v. Premsrirut

[Hsieh’s] ability to exercise reasonable diligence and judgment”
and that his problems (both mentally and with respect to
substances) “rendered him vulnerable to those seeking to take
advantage of him.”

¶18 The Plaintiffs then alleged that in “June 2020,” Hsieh’s
“erratic behaviors and delusional thinking” reached a “fever
pitch” during a bus trip that he took to Montana with friends,
wherein Hsieh experienced “multiple psychotic episodes” that
“culminated in [his] hospitalization” upon his return to his home
in Park City, Utah. The Plaintiffs alleged that law enforcement
officers who transported Hsieh to the hospital told medical
providers that Hsieh’s house was “completely trashed” and that
Hsieh was “doing a lot of damage to it internally.” The Plaintiffs
alleged that the “interior of [Hsieh’s] house contained broken
glass, dog feces, rotten food, and melted wax from the candles
[Hsieh] used to replace electricity at his house,” and they alleged
that Hsieh’s burning candles “caused fire alarms to regularly
sound in the middle of the night.” They alleged that records from
his ensuing hospitalization “state[d] that [Hsieh] had a very
altered mental status.”

¶19 The Plaintiffs alleged that after this hospitalization,
Hsieh’s abuse of nitrous oxide became more extreme, and they
alleged that in July, Hsieh “was consuming nitrous oxide
continuously every single day.” They alleged that in the middle
of that month, Hsieh’s “longtime general counsel departed,
describing [Hsieh’s] situation as an approaching freight train she
could not stop but which she did not want to enable.”

¶20 The Plaintiffs then specifically alleged that it was “against
this backdrop” that Hsieh had executed the Power of Attorney
naming Yeh as his “attorney‐in‐fact.” 6 The Plaintiffs alleged that
5F5F

1. As noted above, Hsieh signed that document on July 18, 2020.

20241227‐CA 8 2026 UT App 56
PCVI v. Premsrirut

due to his deteriorating mental health and substance abuse
problems, Hsieh “was unable to recognize that he was being
exploited or appreciate the consequences of many of his actions,”
and they further alleged that he was “incapable of exercising
appropriate judgment when it came to his physical safety, mental
health, and financial well‐being.” In paragraph 48 of the
amended complaint, the Plaintiffs specifically asserted that Hsieh
“did not have the ability to understand the nature or
consequences of his actions at the time [the Agreement] was
signed, or at the time that Yeh purportedly obtained the alleged
authority to act on [Hsieh’s] behalf.”

The Defendants’ Motion to Dismiss for Improper Venue

¶21 In February 2024, the Defendants filed a motion to dismiss
for improper venue pursuant to rule 12(b)(3) of the Utah Rules of
Civil Procedure. At the outset of this motion, the Defendants
acknowledged (while “strongly deny[ing]”) the various
allegations from the amended complaint, but they then asserted
that, pursuant to the two forum selection clauses in the
Agreement, the Plaintiffs were required to litigate this case in
Nevada. At the close of their motion, the Defendants made the
following request:

[I]f this Court is disinclined to grant outright
dismissal of the [amended complaint] based on
improper forum, the Court should stay the case as
to all issues except those pertaining to enforceability
of the [Agreement’s] forum selection provisions,
permit related discovery and then conduct an
evidentiary hearing to determine whether the
[Agreement’s] forum selection provisions must be
enforced.

20241227‐CA 9 2026 UT App 56
PCVI v. Premsrirut

¶22 The Plaintiffs responded by filing a written opposition to
the motion to dismiss, wherein they raised several arguments
that are relevant to this appeal.

¶23 Incapacity. First, the Plaintiffs argued that the forum
selection clauses were not enforceable against any of the Plaintiffs
because the Agreement was “obtained through unconscionable
means.” This was so, according to the Plaintiffs, because Hsieh
was incapacitated when “the Power of Attorney . . . was signed.” 7 6F6F

In support of their opposition, the Plaintiffs attached several
thousand pages of transcripts and documents as an “[o]ffer of
[p]roof.” These pages included text messages, emails, police
reports, medical records, financial records, and expert opinions,
as well as portions of depositions that had been taken of Hsieh’s
friends and colleagues in other related cases. 8
7F7F

1. The Plaintiffs further asserted that Hsieh was incapacitated on
   the day that the Agreement was signed and at the time the
   Holmstead Ranch was acquired. But as indicated above, Yeh
   signed the Agreement for Hsieh and PCVI, so the subsequent
   legal arguments focused largely on whether Hsieh was
   incapacitated when he signed the Power of Attorney on July 18.
   As the district court later put it in its ruling, based on the
   arguments presented to it, “only one date matters: July 18, 2020,
   the day . . . Hsieh executed” the Power of Attorney.

2. The district court had not yet issued any discovery orders in
   this case at the time that either the motion to dismiss or the
   Plaintiffs’ opposition was filed. Indeed, as explained below, the
   court has never issued such orders. That said, there had already
   been litigation in other cases involving many of these same
   parties, and it seems that the deposition transcripts we’ll discuss
   here came from those cases.

20241227‐CA 10 2026 UT App 56
PCVI v. Premsrirut

¶24 The opposition memorandum and the documents that
were filed with the offer of proof provided extensive details
about the final months of Hsieh’s life. Since these details drive
much of our analysis below, we recount just some of the many
allegations here:

 The Plaintiffs cited prior testimony from various friends
who had visited Hsieh in May and June of 2020, wherein
these friends described Hsieh’s manic and delusional
behavior during those months. This testimony included
assertions that Hsieh had lost considerable weight, that he
refused to wear a shirt or shoes, that he told friends he
“didn’t have to urinate anymore and his body recycled his
urine,” and that he believed he could “solve and cure
COVID.”

 These friends also provided more details about the
Montana bus trip that had been referenced in the amended
complaint, noting that this trip had occurred on June 27 and
28. The friends said that Hsieh left for the trip wearing only
underwear. They described Hsieh as “high energy, ranting,
manic,” and “frothing at the mouth” during the trip. At one
point, certain friends found Hsieh in the shower of the bus
spreading feces on himself to “reabsorb the minerals in
[his] body.” At another point, Hsieh apparently believed
there was an active shooter on the bus, which caused him
to begin physically destroying the bus. The friends also
said that Hsieh offered to pay everyone on the bus $1
million to enter a suicide pact with him based on his belief
that he could light the bus on fire and that it wouldn’t
matter because they were living in an “illusion” like in “the
Matrix.” The friends said that Hsieh left the trip early and
that once he was back in Park City, he flooded his home by
turning on all the water.

20241227‐CA 11 2026 UT App 56
PCVI v. Premsrirut

 The Plaintiffs attached documents showing that on June 30,
which was after Hsieh had returned home from the trip,
some of Hsieh’s friends contacted police and asked them to
conduct a welfare check. Documents showed that
responding officers took Hsieh to an emergency room
because “they did not feel like he was safe at home taking
care of himself [in] his altered state.” While at the hospital,
Hsieh reported that “he could stop his heart at will and
could do it with his mind.” In the medical records from that
visit, the treating emergency room physician reported that
Hsieh was “agitated and hallucinatory” as a result of the
“illicit substances he abused.” Documents showed that
Hsieh was discharged the same day with no specified
follow‐up care.

 The Plaintiffs attached documents showing that after
Hsieh’s release from the hospital, he had a Zoom call with
one particular friend (Friend One) in early July 2020 in
which Hsieh introduced Friend One to a “$100 million
opportunity.” Friend One testified that the business plan
was “not reasonable or rational,” describing it as
“gibberish.”

 The Plaintiffs attached deposition transcripts showing that
another friend and sometime business partner of Hsieh’s
(Friend Two) was with Hsieh on a fishing trip on July 17.
Friend Two testified that while the two were fishing with
some others, Hsieh made the group return to the dock
twice because he was “in the midst of a marriage proposal”
to an assistant, but in Friend Two’s eyes, this assistant
appeared to be “embarrassed” and “just trying to deal with
the situation at hand.” Friend Two said that once they were
on the boat, Hsieh “had a hard time sitting still” and was
“fidgety.” Without any apparent reason for doing so, Hsieh
tried to create a “hang glider”—pulling out everything he
could find on the boat until Friend Two told him to stop, at

20241227‐CA 12 2026 UT App 56
PCVI v. Premsrirut

which point Hsieh became irritated. Friend Two said he
“had never seen that behavior from [Hsieh] prior to 2020.”
Friend Two further said that Hsieh was “very on edge and
high strung,” and Friend Two recalled “wondering if
[Hsieh had] taken something that day.” Friend Two
thought that, at that time, Hsieh was not “in a good place
to be doing multimillion dollar deals.”

 The Plaintiffs attached deposition transcripts showing that
Friend One was concerned about Hsieh after the
aforementioned Zoom call, so Friend One traveled to Park
City to check on him. Friend One arrived in Park City on
July 18 (which, again, was the day on which Hsieh signed
the Power of Attorney), but Friend One did not see Hsieh
until the next morning. Upon arriving in Park City, Friend
One checked with Hsieh’s assistants to try and arrange a
meeting with Hsieh, but they informed him that Hsieh was
“out of his mind” and that Friend One shouldn’t “worry
about it, because tomorrow he won’t remember seeing you
anyway.” When Friend One met with Hsieh the next day,
Hsieh was “uncharacteristically angry,” “really
aggressive,” and “ranting.” Friend One also said Hsieh was
“[e]maciated” and “dirty.”

 Friend One said that he saw “hundreds” of “little shots of
nitrous oxide” in Hsieh’s bedroom. At one point during
this trip, Friend One and Hsieh went to Main Street in Park
City, and while they were there, Hsieh wore no shoes and
carried a backpack with a “mechanism that allowed him to
do” nitrous oxide shots. Friend One said Hsieh used
nitrous oxide “nonstop.”

 The attached documents showed that Hsieh’s nitrous oxide
abuse continued through late July and early August 2020.
Friends said that during this time, Hsieh only met with
people in a canoe in the middle of a pond, and they further

20241227‐CA 13 2026 UT App 56
PCVI v. Premsrirut

showed that while on the canoe, Hsieh had “a bucket of
nitrous cannisters” and a “contraption” that allowed him
to “constantly” use them. They said that Hsieh only wore
underwear at this point and was “covered in wax,” as if he
had been “melting wax on his body.”

 The Plaintiffs’ documents showed that Hsieh’s parents
hired an interventionist who went to Hsieh’s house on
August 4, “based on collective concern over [Hsieh’s]
welfare and information that a considerable amount of
drugs had been delivered to [Hsieh’s] home on August 2,
2020.” A friend recalled that the interventionist was turned
away by Premsrirut, who was at Hsieh’s home that day
meeting with him.

 On August 5, Dr. Michael Kagen was hired to provide a
medical assessment of Hsieh. Dr. Kagen reported seeing
“hundreds of canisters” of nitrous oxide around Hsieh’s
home, and he later opined that Hsieh was “likely high on
some kind of drug and likely incapacitated and not
competent to make decisions at that time.”

 The Plaintiffs’ documents showed that Hsieh’s condition
continued to deteriorate in the ensuing weeks and months.
Documents showed that while Premsrirut was working on
acquiring the Holmstead Ranch, she wrote to Hsieh’s
financial team saying that she would like to “halt” new
business until she was confident about Hsieh’s “condition
and capacity.”

 Documents showed that on October 24, Hsieh suffered a
psychotic break, destroyed his home, and passed out. On
October 29, Hsieh was taken to the emergency room after
he stated that he didn’t “know what’s real and what’s not”
and suggested that he thought he was living in a
simulation.

20241227‐CA 14 2026 UT App 56
PCVI v. Premsrirut

 Hsieh died on November 27, after he was found
unresponsive in a house fire.

 Finally, the Plaintiffs attached a report from Dr. Carolina
Klein. Dr. Klein said in her report that she was a licensed
physician and psychiatrist who was certified by the
American Board of Preventive Medicine in Addiction
Psychiatry and had treated patients with severe mental
illness in multiple settings. After reviewing Hsieh’s
medical and mental health history, various legal
documents, deposition transcripts, video recordings of
Hsieh, and the law surrounding legal capacity, Dr. Klein
stated that in her opinion, “to a reasonable degree of
medical certainty,” the “current evidence shows sufficient
and in fact ample merit for a finding of impaired mental
capacity to make contractual and financial decisions due
to a mental disease or defect, and that this mental disease
or defect rendered [Hsieh] a highly vulnerable individual
to undue influence.” Dr. Klein opined that Hsieh’s
medical history “showed evidence of both psychosis and
mania.” She also opined that Hsieh “lacked contractual
and financial capacity” because of these conditions and
that there was “no evidence to support that . . . Hsieh
regained contractual or financial capacity at any time from
June 2020 until the time of his death in November of 2020.”
(Emphasis added.)

¶25 Unfair and Unreasonable. Separate from their arguments
about Hsieh’s alleged incapacity, the Plaintiffs also argued that it
would be unfair and unreasonable to enforce the forum selection
clauses. This was so, according to the Plaintiffs, because the
alleged legal malpractice had occurred in Utah and involved the
acquisition of Utah property, so requiring the suit to occur in
Nevada would run contrary to Utah’s interest in resolving
matters involving the practice of law. The Plaintiffs further
argued that, consistent with the third argument we’ll discuss

20241227‐CA 15 2026 UT App 56
PCVI v. Premsrirut

shortly, the forum selection clauses could only be enforced
against PCVI, so the clauses would not dispose of the Non‐
Signatory Plaintiffs’ claims, and the Plaintiffs also alleged that
their constructive trust claim could only be brought in Utah. For
these reasons, the Plaintiffs argued that it would be unfair and
unreasonable to enforce these clauses against them.

¶26 Non‐Parties. Finally, the Non‐Signatory Plaintiffs
asserted that the forum selection clauses were not binding on
them because they were not parties to the Agreement. In their
view, “the plain language” of the Agreement was
“unambiguous” in that the forum selection clauses did “not
apply to anyone other than PCVI.” In support of this assertion,
the Non‐Signatory Plaintiffs pointed out that they “did not even
exist at the time the . . . Agreement was entered into.”

The Defendants’ Reply

¶27 The Defendants filed a written reply to the Plaintiffs’
opposition. There, the Defendants did not introduce any new
facts regarding the incapacity issue. Instead, they asserted that
the Plaintiffs’ arguments about Hsieh’s alleged incapacity were
“conclusory” and “unsupported.” The Defendants further
argued that the “arguments and evidence offered by [the]
Plaintiffs, while admittedly broad‐ranging and sensational,
fail[ed] to establish that [Hsieh] was incapacitated on July 18,
2020, the day he executed the [Power of Attorney],” and they
claimed that without such evidence, the Power of Attorney was
“valid.” From this, they argued that “Yeh had the authority to act
on [Hsieh’s] behalf, including with respect to” signing the
Agreement.

The District Court’s Order

¶28 In October 2024, the district court issued a written decision
granting the Defendants’ motion to dismiss.

20241227‐CA 16 2026 UT App 56
PCVI v. Premsrirut

¶29 The court first addressed the question of whether Hsieh
had capacity to sign the Power of Attorney. The court observed
that the “validity” of the Agreement “depend[ed] on the . . .
validity” of the Power of Attorney, and it then observed that the
“validity” of the Power of Attorney “depend[ed] on whether
[Hsieh] had the requisite mental capacity to designate [Yeh] as
his” attorney‐in‐fact when he signed that document on July 18,
2020.

¶30 In the court’s view, the task before it was to determine
“whether [the] Plaintiffs ha[d] provided sufficient evidence to
show that [Hsieh] lacked capacity at the time he executed the
[Power of Attorney].” Turning to the evidence that had been
presented by the Plaintiffs in their opposition, the court
expressed its view that there was “surprisingly little evidence of
[Hsieh’s] capacity or lack thereof on July 18, 2020.” While
acknowledging that there was some evidence of Hsieh’s “drug
abuse,” the court opined that Hsieh “could have been sober when
signing the [P]ower of [A]ttorney, indicating that any
impairment in his ability to receive and evaluate information was
minimal, if not absent, at the time . . . he executed” the Power of
Attorney. The court thus concluded that the “Plaintiffs’ evidence
as to [Hsieh’s] alleged incapacity on July 18, 2020 [was]
circumstantial, vague, and deficient.”

¶31 The court acknowledged that the Plaintiffs had provided
“opinions from medical professionals,” which was an apparent
reference to the reports from doctors Kagen and Klein. But the
court concluded that these opinions also did not support the
conclusion that Hsieh was incapacitated on July 18. This was so,
in the court’s view, because “those medical professionals were
not qualified as experts, and, to the court’s knowledge, did not
have expertise in the relevant medical areas to opine on [Hsieh’s]
incapacity.” The court further observed that Dr. Kagen had not

20241227‐CA 17 2026 UT App 56
PCVI v. Premsrirut

“visit[ed] with [Hsieh] until August—weeks after the [Power of
Attorney] was executed.”

¶32 Given all this, the court concluded that the Plaintiffs had
not carried their burden of “show[ing] that [Hsieh] did not have
the proper capacity on July 18.”

¶33 The court next addressed the question of whether it would
be “unfair or unreasonable” to enforce the forum selection
clauses against the Plaintiffs. Here, the court opined that because
“Clark County, Nevada is nearly adjacent to Washington
County, Utah,” which was where this case had been filed, the
“burden of litigating in Clark County as opposed to Washington
County is minimal.” The court also observed that the Power of
Attorney and the Agreement “were negotiated and signed in
Nevada.” As a result, even though the Holmstead Ranch is
located in Utah, the court concluded that it would not be unfair
or unreasonable to enforce the provisions requiring litigation to
occur in Nevada.

¶34 Finally, the court concluded that each of the Plaintiffs was
bound by one of the forum selection clauses. The court pointed
out that, on its face, the General Clause was binding on the
“Company,” which the Agreement defined as “PCVI, LLC.” The
court accordingly concluded that the General Clause was binding
on PCVI but not on the Non‐Signatory Plaintiffs. Turning to the
Litigation Clause, the court pointed out that this clause was
binding on “the Client,” which the Agreement defined as PCVI,
Hsieh, “and their respective affiliates.” In the court’s view, the
Non‐Signatory Plaintiffs each qualified as “affiliates” of Hsieh
and PCVI and were therefore bound by this clause.

¶35 Because the court had now held that the forum selection
clauses were enforceable generally, and because it had also held
that each of the Plaintiffs was bound by at least one of them, the

20241227‐CA 18 2026 UT App 56
PCVI v. Premsrirut

court granted the Defendants’ motion to dismiss the case for
improper venue.

ISSUES AND STANDARDS OF REVIEW

¶36 On appeal, the Plaintiffs raise two challenges to the court’s
conclusion that the forum selection clauses were enforceable.
First, they argue that they sufficiently pled and proved that Hsieh
was incapacitated when he signed the Power of Attorney, and
that the forum selection clauses were unenforceable as a result.
Second, they argue that it would be unfair and unreasonable to
enforce these clauses given the relative interests of Utah and
Nevada. “A district court’s decision to enforce a forum selection
clause is reviewed for abuse of discretion.” Jacobsen Constr. Co. v.
Teton Builders, 2005 UT 4, ¶ 9, 106 P.3d 719. A district court
“abuses its discretion in enforcing a forum selection clause when
the clause is so unreasonable that its enforcement would be
against both logic and the facts on the record.” Id. (quotation
simplified).

¶37 The Plaintiffs also challenge the court’s conclusion that the
Non‐Signatory Plaintiffs were bound by the Litigation Clause.
Appellate courts “review a district court’s interpretation of a
contract for correctness.” Sunstone Realty Partners X LLC v. Bodell
Constr. Co., 2024 UT 9, ¶ 8, 545 P.3d 260 (quotation simplified).

ANALYSIS

I. Hsieh’s Incapacity

¶38 The Plaintiffs first argue that it would be unfair or
unreasonable to enforce the forum selection clauses from the
Agreement because Hsieh lacked capacity to sign the Power of

20241227‐CA 19 2026 UT App 56
PCVI v. Premsrirut

Attorney, which was the document that gave Yeh authority to
bind both Hsieh and PCVI to the terms of the Agreement.

¶39 The litigation below and the briefing on appeal have
collectively suggested that there is some confusion about how
and when a motion such as this one should be litigated. We
accordingly first set forth our understanding of the state of the
law in this area. From there, we apply that law to this case.

A. State of the Law

¶40 After a plaintiff has filed a complaint, rule 12(b)(3) of the
Utah Rules of Civil Procedure allows a defendant to file a motion
to dismiss for “improper venue.” If a defendant files such a
motion, and if the resultant litigation is based on the pleadings
alone, a district court should “view the facts and construe the
complaint in the light most favorable to the plaintiff and indulge
all reasonable inferences in his [or her] favor.” Prows v. Pinpoint
Retail Sys., Inc., 868 P.2d 809, 810 (Utah 1993) (quotation
simplified); accord Energy Claims Ltd. v. Catalyst Inv. Group Ltd.,
2014 UT 13, ¶ 46, 325 P.3d 70; Coombs v. Juice Works Dev. Inc., 2003
UT App 388, n.2, 81 P.3d 769.

¶41 If a defendant intends to argue that the “factual allegations
in a plaintiff’s complaint are not true,” however, then this
“factual attack[]” would likely “require the introduction of
materials outside the pleadings.” Salt Lake County v. State, 2020
UT 27, ¶ 32, 466 P.3d 158. In some (if not most) cases, proper
factual development on these issues would involve allowing the
parties to conduct discovery. In Coombs, for example, the district
court heard oral argument on the defendant’s motion to dismiss,
after which it decided to “allow[] limited discovery” on the issues
relating to enforcement of a forum selection clause. 2003 UT App
388, ¶ 4. Following discovery, the defendant renewed the motion
to dismiss, after which the court granted the motion based on its

20241227‐CA 20 2026 UT App 56
PCVI v. Premsrirut

conclusion that the plaintiffs “had not met their burden of
establishing that the forum selection clause should not be
enforced.” Id.

¶42 The litigation in Salt Lake Tribune Publishing Co. v. Memmott
proceeded similarly. 2001 UT 83, 40 P.3d 575. There, one of the
defendants filed a motion to change venue based on a statutory
venue provision that turned on the place at which the contractual
obligation was to be performed. See id. ¶¶ 9–10. After the
defendant filed this motion, the district court “allowed limited
discovery related to [that] motion, including depositions,” after
which the court “conducted a hearing” and decided the motion.
Id. ¶ 9.

¶43 In many cases, a motion to dismiss for improper venue is
based on a forum selection clause. These cases have resulted in a
line of appellate decisions that has produced a few rules that are
applicable here. Our supreme court’s decision in Energy Claims is
one of the principal cases in this area. There, the supreme court
“accepted the general principle that forum selection clauses are
enforceable and can limit a court’s jurisdiction.” 2014 UT 13, ¶ 47.
But the supreme court also held that, in some circumstances, the
“parties’ agreement as to the place of the action” will not be
enforced. Id. (quotation simplified). In the supreme court’s view,
a plaintiff can defeat a motion to dismiss that’s based on a forum
selection clause if the plaintiff can show that “enforcement of the
clause” would be “unfair or unreasonable, or that (1) the choice‐
of‐forum provision was obtained by fraud, duress, the abuse of
economic power, or other unconscionable means; or (2) the courts
of the chosen state would be closed to the suit or would not
handle it effectively or fairly.” Id. (quotation simplified).

¶44 The supreme court held that in opposing a motion on such
grounds, the plaintiff bears the burden of proof. See id. And the
court also held that the plaintiff can make the requisite showing

20241227‐CA 21 2026 UT App 56
PCVI v. Premsrirut

by pointing to some infirmity with the contract as a whole, as
opposed to being required to make a showing that is specific to
the forum selection clause itself. See id. ¶¶ 49–52.

¶45 The supreme court also held that if a plaintiff intends to
assert that a forum selection clause is “unenforceable due to
fraud, the plaintiff must then satisfy rule 9(b) of the Utah Rules
of Civil Procedure,” under which “the circumstances constituting
fraud” must be “stated with particularity in the complaint.” 9 Id.
8F8F

¶ 54 (quotation simplified). According to the supreme court,
while the rule speaks of “fraud,” this requirement extends to an
allegation that a forum selection clause was “obtained through
improper means,” was the product of “overreaching generally,”
or was obtained through “unconscionable means.” Id. ¶ 49 n.70
(quotation simplified); accord Bad Ass Coffee Co. of Haw., Inc. v.
Royal Aloha Int’l, LLC, 2015 UT App 303, ¶ 12 n.6, 365 P.3d 161.
Moreover, to satisfy the particularity requirement, the court held
that the plaintiff’s complaint must include a “sufficiently clear
and specific description of the facts” underlying the plaintiff’s
assertions as to why the forum selection clause should be deemed
unenforceable. Energy Claims, 2014 UT 13, ¶ 54. 10
9F9F

1. The Utah Rules of Civil Procedure were amended in 2016 after
   Energy Claims Ltd. v. Catalyst Investment Group Ltd., 2014 UT 13,
   325 P.3d 70, was issued. The rule 9(b) referenced in Energy Claims
   is located in rule 9(c) of the current rules.

2. If a situation arises in which a plaintiff somehow did not
   contemplate that a forum selection clause would be invoked, it
   seems that one means for satisfying the pleading‐with‐
   particularity requirement would be for the plaintiff to file an
   amended complaint in which the plaintiff now sets forth
   allegations regarding the alleged infirmity. Something similar
   (continued…)

20241227‐CA 22 2026 UT App 56
PCVI v. Premsrirut

¶46 But this all leads to a potential problem. As noted, forum
selection clauses can be enforceable, and the “parties’ agreement
as to the place of the action will be given effect” unless the
plaintiffs have shown that it should not. Id. ¶ 47 (quotation
simplified). In this sense, when there is a valid forum selection
clause, the defendant should be able to enjoy the agreed‐upon
benefit of not having to litigate the case in some other forum. In
Energy Claims, however, our supreme court recognized that since
it had now held that a plaintiff can attack the enforceability of a
forum selection clause by making arguments about the formation
of the broader contract, this holding could lead to a situation in
which issues surrounding the enforceability of the forum
selection clause are tied up with litigation about the overall
contract. See id. ¶ 55. In a sense, this might subvert the apparent
purpose of the forum selection clause, which is to allow the party
to contractually control where litigation occurs.

seems to have occurred in Prows. There, after the plaintiff sued a
defendant in Utah, the defendant filed a motion to dismiss for
improper venue, citing a forum selection clause. See 868 P.2d at
810. In response, the plaintiff filed an amended complaint that
added additional defendants and allegations, and the plaintiff’s
opposition to the motion to dismiss for improper venue then
turned, in part, on the presence of the additional defendants and
on the plaintiff’s new allegations. See id. at 812–13.
In Bad Ass Coffee Co. of Hawaii, Inc. v. Royal Aloha
International, LLC, the appeal turned on whether the plaintiff had
sufficiently pleaded fraud in the complaint. 2015 UT App 303, 365
P.3d 161. On appeal, we concluded that the district court had used
the wrong legal standard when ruling on the motion to dismiss,
so we remanded with instructions for the court to assess that
motion under the correct standard. Id. ¶ 12. We then suggested
that in doing so, the district court should, “if appropriate, give
[the plaintiff] an opportunity to amend its complaint.” Id.

20241227‐CA 23 2026 UT App 56
PCVI v. Premsrirut

¶47 Even so, however, the supreme court held that “this may
nevertheless be necessary.” Id. But in recognition of the
defendant’s interests, the supreme court pointed to two things
that, in its view, can help prevent plaintiffs from “freely
dodg[ing] forum selection clauses.” Id. ¶ 53. First, as indicated,
the supreme court reiterated that a plaintiff must “plead fraud”
or the other circumstances that would render the clause
unenforceable “with particularity.” Id. The supreme court thus
contemplated that this requirement alone can help curb potential
excesses. And second, the supreme court recognized that when a
district court orders discovery on issues relating to the
enforceability of a forum selection clause, the district court
retains “the discretion to hold an evidentiary hearing on the
allegations of fraud or overreaching before deciding whether to
enforce the challenged forum selection clause.” Id. ¶ 55. In this
sense, the supreme court contemplated that the district court’s
discretion over discovery would allow it to decide the forum
selection issues early on, thereby potentially sparing a defendant
from having to litigate the full case until those issues are resolved.

¶48 Pulling all of these principles together, we thus clarify that
when a defendant files a motion to dismiss based on improper
venue, the district court’s ruling on the motion can essentially
take one of two forms. First, if the ruling is based on the pleadings
alone, the court should view the facts and allegations in the light
most favorable to the plaintiff and then determine whether the
pleadings alone establish that venue is or is not proper. Second,
if the motion to dismiss challenges the facts set forth in the
complaint, or, in our view, if the plaintiff’s opposition raises
additional factual issues relating to enforceability of the clause,
the district court then “has the discretion to hold an evidentiary
hearing” to make relevant factual findings “before deciding

20241227‐CA 24 2026 UT App 56
PCVI v. Premsrirut

whether to enforce the challenged forum selection clause.” Bad
Ass Coffee Co., 2015 UT App 303, ¶ 10 (quotation simplified). 11
10F10F

¶49 But with respect to a ruling that moves beyond the
pleadings, we now offer an additional point of clarification:
namely, it seems to us that in such a circumstance, the plaintiff
would no longer be entitled to have the facts viewed in the light
most favorable to its position. Again, Energy Claims stressed that
the “party opposing enforcement of the clause bears the burden
of proving” that there is some reason not to enforce the clause.
2014 UT 13, ¶ 47 (quotation simplified); see also id. ¶ 47 n.67
(holding that if a forum selection clause would otherwise apply,
the plaintiffs are “barred from bringing suit” elsewhere “unless
they can prove one of the listed” reasons under which a clause is
unenforceable). Notions of “proof” of course contemplate
resolution of factual questions. And as illustrated by this case,
many of the kinds of arguments raised by plaintiffs in opposition
to motions to enforce a forum selection clause will indeed turn
on factual questions.

1. While the cases cited above have spoken of the district court’s discretion as to the “evidentiary hearing,” we think it clear enough that this discretion would extend to discovery on the enforceability issues more generally. In other words, to forestall the potential problems identified in Energy Claims, a district court would have discretion as to how and when discovery should be conducted on the enforceability issues as opposed to discovery on the broader case. In many cases, we would expect that the district court will choose to order expeditious and, insofar as it’s possible, limited discovery that’s confined to the forum selection issues, thereby allowing those issues to be decided first before forcing the defendants to litigate the entire case in a forum outside the one that was agreed to in the forum selection clause.

20241227‐CA 25 2026 UT App 56
PCVI v. Premsrirut

¶50 But if a district court chooses to take evidence and then
decide contested factual questions, it would subvert the purposes
and effect of the plaintiff’s burden to hold that the plaintiff is
somehow still entitled to have the facts automatically viewed in
its favor. In this sense, we now clarify that once the motion has
moved past the plaintiff’s pleadings and has now been subjected
to factual development, the question is no longer whether the
plaintiff has alleged enough to survive a motion to dismiss.
Rather, the question then becomes whether the plaintiff has
proven enough to then persuade the court that the clause should
not be enforced.

B. This Case

¶51 Against this backdrop, we now consider the ruling at
issue. As noted, the Plaintiffs argued that the forum selection
clauses were unenforceable due to Hsieh’s incapacity to sign the
Power of Attorney.

¶52 Under our caselaw, “parties are generally presumed to be
competent to enter into a contract.” Wittingham, LLC v. TNE Ltd.
P’ship, 2020 UT 49, ¶ 58, 469 P.3d 1035.

This presumption can be rebutted only if the party
asserting incompetence can show, by clear and
convincing evidence, that an individual’s mental
facilities were so deficient or impaired that there
was not sufficient power to comprehend the subject
of the contract, its nature and its probable
consequences, and to act with discretion in relation
thereto, or with relation to the ordinary affairs of
life.

Id. (quotation simplified). An individual’s capacity to contract is
“measured at the time of the execution of the contract,” id.
(quotation simplified), and “[l]ess weight is given to remote

20241227‐CA 26 2026 UT App 56
PCVI v. Premsrirut

transactions and conversations,” Anderson v. Thomas, 159 P.2d 142,
144 (Utah 1945). Thus, to prevail on an incapacity claim, “a party
typically must submit testimony from witnesses who observed
the individual at or near the time of the transaction.” Wittingham,
2020 UT 49, ¶ 58. In one of Utah’s earliest cases regarding this
issue, our supreme court noted that “[n]o general or hard and fast
rule which shall govern or control in all cases can be promulgated,
but every case must, to a very large extent, be determined upon
the facts and circumstances present in that case.” Hatch v. Hatch,
148 P. 433, 438 (Utah 1914). 12
1F1F

1. Utah has adopted the Uniform Power of Attorney Act, which comprises Utah Code sections 75A‐2‐101 through 75A‐2‐403. Under one provision of this act, A principal may sign a power of attorney, or direct another individual in the principal’s conscious presence to sign the principal’s name on the power of attorney, if . . . the principal has sufficient mental capacity at the time that the power of attorney is executed to understand that the principal is appointing an agent to handle the principal’s financial affairs. Utah Code § 75A‐2‐105(1)(a). “Incapacity” is defined in that act, in relevant part, as “the inability of an individual to manage property or business affairs because the individual . . . has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance.” Id. § 75A‐2‐102(8)(a). The key phrase from the statute seems to be its reference to the person’s ability to “receive and evaluate information.” Id. We don’t regard this as supplanting or even being meaningfully different from the general capacity standard set forth above, which, as noted, turns on the person’s ability “to comprehend the (continued…)

20241227‐CA 27 2026 UT App 56
PCVI v. Premsrirut

¶53 As an initial matter, we note that the parties in this appeal
have each made various arguments about the pleadings. Of
particular note, they’ve disputed whether the Plaintiffs pleaded
incapacity with sufficient particularity.

¶54 But the district court’s ruling wasn’t based on the
pleadings. Rather, at the outset of the ruling, the court explained
that it thought its task was to determine “whether [the] Plaintiffs
ha[d] provided sufficient evidence to show that [Hsieh] lacked
capacity at the time he executed” the Power of Attorney.
(Emphasis added.) And the court then went on to evaluate the
quality and sufficiency of the evidence submitted by the
Plaintiffs, and almost all (if not all) of that evidence would clearly
qualify as “extra‐pleading material.” Salt Lake County, 2020 UT
27, ¶ 32. Thus, we don’t understand the district court to have
ruled on the Defendants’ motion based on the pleadings. Rather,
we understand the court to have concluded that, as a factual
matter, the Plaintiffs had not satisfied their burden of proof. 13
12F12F

subject of the contract, its nature and its probable consequences,
and to act with discretion in relation thereto, or with relation to
the ordinary affairs of life.” Wittingham, LLC v. TNE Ltd. P’ship,
2020 UT 49, ¶ 58, 469 P.3d 1035 (quotation simplified). To the
extent that there is any conceptual daylight between the two
standards, the parties in this appeal have not pointed us to it.

1. If the parties were somehow correct about the nature of the ruling, we would have no difficulty concluding that the Plaintiffs pleaded enough, in their amended complaint, to show Hsieh’s incapacity. Again, at that stage, the court would be required to accept their allegations as true. See Prows, 868 P.2d at 810. And in paragraph 48 of the amended complaint, the Plaintiffs specifically asserted that Hsieh “did not have the ability to understand the (continued…)

20241227‐CA 28 2026 UT App 56
PCVI v. Premsrirut

¶55 But in reviewing that ruling now, we note several things:
(1) the district court did not issue any discovery orders allowing
the parties to conduct discovery on the incapacity claim; (2) after
the Plaintiffs proffered a host of factual assertions in their
opposition, the Defendants did not dispute the Plaintiffs’
assertions of fact in their reply memorandum, instead arguing,
for purposes of this motion, that the Defendants should still
prevail because the Plaintiffs had not offered the right kind of
proof; and (3) in its ruling, the district court did not purport to
resolve any factual disputes against the Plaintiffs. Rather,
consistent with the approach taken by the Defendants, the district
court seems to have accepted the Plaintiffs’ factual proffers as true,
and the court then concluded that the Plaintiffs’ proffers—even
if true—were not sufficient to prove that Hsieh was incapacitated
when he signed the Power of Attorney.

nature or consequences of his actions . . . at the time that Yeh
purportedly obtained the alleged authority to act on [Hsieh’s]
behalf.”
To the extent that the motion to dismiss was based on an
alleged failure to plead this with particularity, we would likewise
have no difficulty rejecting the Defendants’ position. Again, the
Plaintiffs were required to provide a “sufficiently clear and
specific description of the facts” underlying their assertions as to
why the forum selection clauses were unenforceable. Energy
Claims, 2014 UT 13, ¶ 54. As detailed above, the Plaintiffs
included, in their amended complaint, a host of allegations setting
forth their view of Hsieh being incapacitated in the months and
even days leading up to him signing the Power of Attorney,
including specific allegations about both his drug use and his
psychotic behavior. On this front, they did more than enough to
explain, with particularity, the basis for their assertion in
paragraph 48 that Hsieh was incapacitated.

20241227‐CA 29 2026 UT App 56
PCVI v. Premsrirut

¶56 Against that framing, and on the state of the Plaintiffs’
uncontested factual proffer, we conclude that, contrary to the
view of the district court, the Plaintiffs did sufficiently establish
that on the day that Hsieh signed the Power of Attorney, his
“mental facilities were so deficient or impaired that there was not
sufficient power to comprehend the subject of the contract, its
nature and its probable consequences, and to act with discretion
in relation thereto, or with relation to the ordinary affairs of life.”
Wittingham, 2020 UT 49, ¶ 58 (quotation simplified).

¶57 We recounted the Plaintiffs’ various proffers at some
length in the Background above, and we need not repeat all of
those proffers here. But in short, the Plaintiffs proffered specific
evidence showing that in the months, weeks, and even days
leading up to Hsieh signing the Power of Attorney, Hsieh was
beset by sustained and ongoing delusional thinking that clearly
impaired his mental faculties. The Plaintiffs proffered evidence
showing that some (if not many) of his problems were
attributable to his ongoing drug abuse. The Plaintiffs proffered
evidence showing that neither his delusional thinking nor his
drug abuse had abated at the time he signed the Power of
Attorney. And they proffered evidence showing that these
problems then continued in the weeks and months after he
signed the Power of Attorney and up through his death. And
none of these facts were substantively contested by the
Defendants.

¶58 Despite all this, the district court pointed to what it saw as
two problems with the Plaintiffs’ evidence.

¶59 The first had to do with timing. The court expressed its
opinion that there was “surprisingly little evidence of [Hsieh’s]
capacity or lack thereof on July 18, 2020.” In the court’s view,
even with the evidence of Hsieh’s “drug abuse,” Hsieh “could
have been sober when signing the [P]ower of [A]ttorney.”

20241227‐CA 30 2026 UT App 56
PCVI v. Premsrirut

¶60 As a conceptual matter, we disagree with the court’s
apparent conclusion that a party must provide proof that was
taken on the exact day in question. The supreme court has held
that “a party typically must submit testimony from witnesses
who observed the individual at or near the time of the transaction.”
Id. ¶ 58 (emphasis added). And this makes sense. As with any
other fact question, a factfinder in such cases can draw reasonable
inferences. As a result, if a plaintiff has produced proof showing
that the person in question was incapacitated on days or even
over periods that were reasonably near the day in question, a
factfinder could, depending on the circumstances, draw the
inference that this evidence showed that the person was
incapacitated on the day in question as well.

¶61 The lynchpin to such a determination, of course, is how
close the proof is to the day that matters—and, under the
circumstances, whether it’s close enough to support the
requested inference. In some past cases, for example, our
supreme court was unpersuaded by proof about an individual’s
incapacity because it was too far removed. See, e.g., Peterson v.
Coca‐Cola USA, 2002 UT 42, ¶ 18, 48 P.3d 941 (concluding that
evidence of the person’s incompetence four years after the
transaction was not sufficient to prove incapacity at the time of
signing); Walker v. United States Gen., Inc., 916 P.2d 903, 907 (Utah
1996) (rejecting the argument that an individual remained
incapacitated as a result of impairment based on evidence taken
when he was “very young”).

¶62 But this is a far cry from the proof that was presented here.
Again, the Plaintiffs’ proffered evidence wasn’t about just a few
sporadic incidents that occurred in the distant past or distant
future. Rather, their proffered evidence showed that Hsieh had
sustained problems with delusional thinking and drugs over the
course of several months before he signed the Power of Attorney,
that these problems were severe enough to result in multiple

20241227‐CA 31 2026 UT App 56
PCVI v. Premsrirut

hospitalizations, and, of note, that they were persistent and
ongoing.

¶63 And most importantly, the Plaintiffs did present evidence
showing that these problems were present in the very weeks and
days before and after Hsieh signed the Power of Attorney. As
noted, they proffered evidence showing that in an encounter just
a few weeks earlier, Hsieh proposed a business plan to Friend
One that was “not reasonable or rational.” The Plaintiffs
proffered evidence showing that in an encounter between Friend
Two and Hsieh on the day before he signed the Power of
Attorney, Hsieh’s behavior was so erratic that Friend Two
wondered if Hsieh “[had] taken something that day” and
thought that Hsieh was not “in a good place to be doing
multimillion dollar deals.” They proffered evidence showing that
on the same day that Hsieh signed the Power of Attorney, Friend
One was told by Hsieh’s assistants that Hsieh was “out of his
mind,” and they presented evidence showing that when Friend
One met with Hsieh the next day, Hsieh was “ranting,”
“[e]maciated,” “dirty,” and continuously taking nitrous oxide.
As noted, other evidence showed that Hsieh’s use of substances
was part of the cause of his delusional thinking.

¶64 Beyond all that, the Plaintiffs produced a report from Dr.
Kagen in which he said that on August 5 (approximately three
weeks after Hsieh signed the Power of Attorney), he saw
“hundreds of canisters” of nitrous oxide around Hsieh’s home,
and in which he then opined that Hsieh was “likely high on some
kind of drug and likely incapacitated and not competent to make
decisions at that time.” And they also produced a report from Dr.
Klein, wherein she opined that there was “no evidence to support
that . . . Hsieh regained contractual or financial capacity at any time
from June 2020 until the time of his death in November of 2020.”
(Emphases added.)

20241227‐CA 32 2026 UT App 56
PCVI v. Premsrirut

¶65 Thus, contrary to the conclusions of the district court,
there was evidence of things that occurred on dates that were on
or reasonably near July 18 that showed that Hsieh was
experiencing delusions and other mental problems that would
plainly interfere with his decision‐making capacity. We thus
disagree with the court’s conclusion that there was any material
infirmity with respect to the temporal proximity of the Plaintiffs’
evidence as related to the day Hsieh signed the Power of
Attorney.

¶66 Second, we also disagree with the district court’s decision
to discount the reports produced by the Plaintiffs’ medical
witnesses. As noted, the court thought this evidence was not
persuasive because “those medical professionals were not
qualified as experts, and, to the court’s knowledge, did not have
expertise in the relevant medical areas to opine on [Hsieh’s]
incapacity.”

¶67 But the Defendants did not file a motion asking the court
to hold that the Plaintiffs’ two medical witnesses were not
sufficiently qualified pursuant to rule 702 of the Utah Rules of
Evidence, nor did the court issue a general discovery order that
would have allowed factual exploration of those qualifications.
As a result, neither party has yet had the opportunity to weigh in
on such issues, so it seems that the court’s ruling about the
alleged lack of qualifications of the medical witnesses was, at a
minimum, premature. 14 13F13F

1. It is also worth noting that Dr. Klein indicated in her report that she was a licensed physician and psychiatrist who was certified by the American Board of Preventive Medicine in Addiction Psychiatry and had treated patients with severe mental illness in multiple settings. On their face, and at least prior to any (continued…)

20241227‐CA 33 2026 UT App 56
PCVI v. Premsrirut

¶68 We also disagree with the court’s concerns about the fact
that neither of the two medical witnesses personally examined
Hsieh on July 18. Again, Dr. Kagen personally examined him just
a few weeks later, and we think those observations were
sufficiently close in time to have some relevance. With respect to
Dr. Klein, we note that under rule 703 of the Utah Rules of
Evidence, “[a]n expert may base an opinion on facts or data in the
case that the expert has been made aware of or personally
observed.” (Emphasis added.) “As a general principle, medical
experts often rely on data provided by specialists from other
fields, treating providers, or data obtained from imaging scans or
diagnostic tests.” Smith v. Volkswagen SouthTowne, Inc., 2022 UT
29, ¶ 133, 513 P.3d 729 (quotation simplified). And it is thus well‐
established that an expert “may base his [or her] opinion on
reports, writings or observations not in evidence which were
made or compiled by others, so long as they are of a type
reasonably relied upon by experts in that particular field.” State
v. Clayton, 646 P.2d 723, 726 (Utah 1982). Here, even though Dr.
Klein did not evaluate Hsieh on the day that he signed the Power
of Attorney, this doesn’t mean that she could not opine on
Hsieh’s mental state based on observations from people who
interacted with him during the relevant timeframe. As discussed,
this is precisely what she did.

¶69 But in any event, even if there were an evidentiary
problem with respect to either of the two medical reports, we still
would not see this as a basis for granting the motion to dismiss.
The district court pointed to no authority, and we’re aware of
none, holding that a party must produce a competent diagnosis
from a medical expert to support an incapacity ruling. To the
contrary, our supreme court in Wittingham held that “[e]xpert

discovery calling them into question, these assertions indicate that
Dr. Klein does have the qualifications and expertise necessary to
offer the opinions she offered.

20241227‐CA 34 2026 UT App 56
PCVI v. Premsrirut

testimony is not required in a competency proceeding. In fact, lay
witness testimony may be more beneficial because it is more
likely to provide direct evidence of an individual’s mental state
during the relevant time period—when the individual entered
into the contract.” 2020 UT 49, ¶ 65. And the supreme court
further held that “a district court can rely solely on lay witness
testimony when determining competency.” Id.

¶70 This isn’t to say that testimony from medical experts can’t
be admissible or wouldn’t be helpful. But it is to say that it’s not
required. And for the reasons set forth above, we think the
extensive evidence from people who interacted with Hsieh in the
relevant period was more than enough to show that Hsieh was
incapacitated on July 18.

¶71 As a final matter, we note that in their arguments on
appeal, the Defendants point to a passage from the Plaintiffs’
opposition to the motion to dismiss in which the Plaintiffs
suggested that the district court need not hold an evidentiary
hearing. From this, the Defendants argue that the Plaintiffs
waived the right to request an evidentiary hearing regarding the
factual questions related to Hsieh’s incapacity.

¶72 But having reviewed the filing in question, we don’t
regard the Plaintiffs’ statement as being as definitive as the
Defendants suggest. In the passage in question, the Plaintiffs
pointed out that the district court retained discretion as to
whether to hold an evidentiary hearing, and they then asserted
that in light of the evidence they had produced, such a hearing
would be “unnecessary at this juncture.” Having considered the
matter here, it seems to us that the Plaintiffs’ statements were
about the timing and nature of discovery, but those statements,
while perhaps inartful, were not anything that would constitute
a binding waiver of the right to oppose the Defendants’ motion
to dismiss, which is what’s ultimately at issue in this appeal.

20241227‐CA 35 2026 UT App 56
PCVI v. Premsrirut

¶73 In short, we conclude that in the amended complaint, the
Plaintiffs sufficiently alleged that Hsieh was incapacitated on the
day he signed the Power of Attorney. And we further conclude
that on the state of the evidence before the district court, the
Plaintiffs did carry their burden of proving that Hsieh lacked
capacity to sign that document. Because of this, we conclude that
the court exceeded its discretion in granting the motion to
dismiss. Simply put, on the record before it, the court should
have instead concluded that the Plaintiffs’ opposition was
sufficient to deny the motion.

¶74 But this doesn’t end the matter. As noted above, the
Defendants also included in their original motion to dismiss a
request for discovery and an evidentiary hearing if the court were
“disinclined to grant outright dismissal” of the amended
complaint. While the district court was “inclined” to grant their
request for outright dismissal (and indeed did), we’ve now
reversed that decision. We therefore regard the Defendants’
earlier request for discovery as now being revived and thus
pending before the district court. We accordingly remand this
case to the district court with instructions for it to consider the
Defendants’ request and issue such discovery orders on the
incapacity issue as it deems appropriate.

II. Unfair or Unreasonable

¶75 In their opposition memorandum, the Plaintiffs also
argued that it would be “unfair or unreasonable” to enforce the
forum selection clauses against them. The district court ruled

20241227‐CA 36 2026 UT App 56
PCVI v. Premsrirut

against the Plaintiffs on this front. The Plaintiffs challenge this
ruling on appeal. But here, we agree with the district court. 15
14F14F

¶76 As noted, Energy Claims held that to prevail on such an
argument, the plaintiff “bears the burden of proving that
enforcing the clause is unfair or unreasonable.” 2014 UT 13, ¶ 47
(quotation simplified). Here, the Plaintiffs advance four
arguments as to why, in their view, it would be unfair or
unreasonable to enforce the forum selection clauses against them.

¶77 First, the Plaintiffs suggest that it would be unfair to force
them to litigate in Nevada because the alleged legal malpractice
involved “multiple transactions in Utah[] for Utah clients” and
caused “significant damage” to those “Utah clients.” In this
sense, we understand this to be something of an overarching
unfairness argument based on the strength of the Utah ties to the
claims.

¶78 But as the Defendants point out, there were ample other
connections between this case, the parties, and Nevada. As
discussed, the Firm itself is based in Nevada, and that is where

1. Given our decision to reverse on the incapacity issue, we could in theory choose not to address either this issue or the issue we address in Part III. But as indicated, the Defendants now have a pending request for discovery and further proceedings on the incapacity issue. In the meantime, these rationales could in theory provide an alternate path for denying the motion to dismiss the amended complaint. Insofar as the parties have already litigated them, the district court has already ruled on them, and the parties have fully briefed their arguments about them in this appeal, we think it appropriate to address them now. See State v. Ogden, 2018 UT 8, ¶ 49, 416 P.3d 1132 (“Although it is unnecessary to our decision, we retain the authority to reach issues when we believe our analysis could prove helpful on remand.”).

20241227‐CA 37 2026 UT App 56
PCVI v. Premsrirut

Premsrirut is licensed to practice. Hsieh spent much of his
professional career in Nevada (indeed, he had recently moved
the headquarters of Zappos to Nevada), and while Hsieh
apparently spent much of his time in Park City, he was a Nevada
resident at the time of his death. Moreover, the probate
proceedings for Hsieh’s estate have proceeded in Nevada, and
Hsieh’s estate has filed several other related suits in Nevada
courts. In light of all this, the Plaintiffs have not persuaded us that
the Utah ties to this case are so disproportionate to the Nevada
ties that the forum selection clauses can or should be rendered
unenforceable as a result.

¶79 Second, the Plaintiffs argue that this case can only be
litigated in Utah because it’s up to Utah courts to “control the
practice of law in this state.” But the Firm in general and
Premsrirut in particular are not being called to task for the
unauthorized practice of law. Rather, they’re being sued for legal
malpractice.

¶80 At the time that the Agreement was negotiated, there was
no private cause of action against an attorney for the
unauthorized practice of law in Utah. See Utah Code § 78A‐9‐
103(2) (2013) (stating that the “prohibition against the practice of
law . . . shall be enforced by any civil action or proceeding
instituted by the Board of Commissioners of the Utah State Bar”).
By contrast, legal malpractice was (and still is) a cause of action
that’s brought by the private client. See, e.g., Thomas v. Hillyard,
2019 UT 29, 445 P.3d 521; Morgan v. Intermountain Health Care,
Inc., 2011 UT App 253, 263 P.3d 405. This recently changed,
however, with the passage of a bill in Utah that allows a client to
bring a suit “if the client sustains damages or other harm as a
result of” an attorney “engaging in the unauthorized practice of
law.” Utah Code § 78A‐9‐103(5)(a) (effective May 6, 2026).

20241227‐CA 38 2026 UT App 56
PCVI v. Premsrirut

¶81 While we do see some potential conceptual overlap
between these two causes of action, we also see some key
differences. A cause of action for the unauthorized practice of law
is concerned with the licensing status of the attorney in question.
See id. § 78A‐9‐103(2). A cause of action for legal malpractice,
however, turns, in relevant part, on whether the attorney
breached the attorney’s “duty to act with reasonable diligence
toward” the client, thus focusing on whether the attorney acted
with “such skill, prudence, and diligence as lawyers of ordinary
skill and capacity commonly possess and exercise in the
performance of the tasks which they undertake.” Nielsen v.
LeBaron, 2023 UT App 29, ¶ 17, 527 P.3d 1133 (quotation
simplified). It’s not clear to us that Utah’s interest in regulating
the practice of law in Utah (i.e., in ensuring that all attorneys are
properly licensed) is so pronounced that it would be unfair or
unreasonable to enforce a forum selection clause that would
dictate that a legal malpractice claim must be litigated elsewhere.
And in their briefing, the Plaintiffs have provided us with no
authority that says so.

¶82 Moreover, we note that the district court ruled on the
enforceability of a forum selection clause, but it did not purport
to settle any issues relating to the choice of law. Thus, the only
thing before us is where the case will be litigated, not which state’s
substantive law would govern. As a result, even if it’s true that
Utah has more of an interest in the practice of law within Utah
than Nevada does, to prevail on this motion, the Plaintiffs would
need to demonstrate that it would be unfair or unreasonable to
enforce the clause requiring those claims to be litigated in
Nevada courts (which, in theory, could apply Utah law to those
claims). All things considered, the Plaintiffs simply have not
carried their burden on this point.

¶83 Third, the Plaintiffs point out that under Utah Code
section 78B‐3a‐202(1)(b), a Utah plaintiff who brings an action

20241227‐CA 39 2026 UT App 56
PCVI v. Premsrirut

“for the determination, in any form, of the right or interest in . . .
real property” must do so “in the county in which the real
property, or some part of the real property, is situated.” In their
view, because their constructive trust claim implicates ownership
over property located in Utah, “Utah law requires” this claim “to
be brought in Washington County,” thereby “preempt[ing] the
Agreement’s forum‐selection clauses to the contrary.”

¶84 But in Prows, our supreme court held that the “unfair or
unreasonable” analysis turns, in large part, on whether enforcing
the forum selection clause would “for all practical purposes . . .
deprive[]” the plaintiff “of his day in court.” 868 P.2d at 812
(emphasis added, quotation otherwise simplified). On the basis
of what’s been presented to us, it’s not clear that enforcing the
forum selection clauses would, as a practical matter, deprive the
Plaintiffs of their day in court. It seems that the answer to this
question would turn on a series of related subsidiary questions:
(1) whether the particular kind of constructive trust claim that the
Plaintiffs have made (which, as we’ve explained, was something
of a hybrid legal malpractice/property claim) is indeed covered
by Utah Code section 78B‐3a‐202(1)(b); (2) if the answer to that
question is yes, whether the parties could nevertheless agree,
through a freely negotiated forum selection clause, to have a
claim affecting the interests in a Utah property litigated in
Nevada’s courts (while still applying Utah law); (3) if they could
not, whether Nevada courts also have jurisdiction over that kind
of suit, or, at least, a kind of suit that for practical purposes would
give them similar relief; and finally (4) if the Nevada courts don’t
have jurisdiction over such a claim, whether the end result would
be so unfair or unreasonable that Utah courts should not enforce
the forum selection clause at all.

¶85 These are complicated questions, but the Plaintiffs’
briefing on them is cursory. The relevant portion of their brief is
just a single paragraph. Other than a bare citation to section 78B‐

20241227‐CA 40 2026 UT App 56
PCVI v. Premsrirut

3a‐202(1), they cite no other legal authority in this portion of their
brief. And they provide no detailed legal analysis explaining how
the alleged jurisdictional problems created by section 78B‐3a‐202
would intersect with the “unfair or unreasonable” test in a
manner that would render the forum selection clauses
unenforceable. We’re not going to do the work for the Plaintiffs
on this front. While we’re cognizant of the reality that a claim
involving Utah property would likely belong in a Utah court, the
Plaintiffs have simply not carried their burden of persuading us
that, under these circumstances, their decision to file this
constructive trust claim is a reason to make the forum selection
clauses unenforceable.

¶86 Finally, the Plaintiffs argue that it would be unfair or
unreasonable to allow a Nevada attorney who allegedly engaged
in legal malpractice in Utah but didn’t have a Utah license to “run
to her hometown judges when that unauthorized practice turns
into litigation.” At its core, this argument essentially suggests
that, as a matter of law, Nevada judges would be so
institutionally biased in favor of a Nevada attorney that they
cannot be trusted to adjudicate the case. The Plaintiffs cite no
authority for this rather startling proposition, and we see none.
And even if it were somehow true, it would in theory cut both
ways—i.e., the Defendants could plausibly claim that it would be
unfair to allow the Plaintiffs (which include several Utah‐based
LLCs) to run to their “hometown judges” in Utah. Without
anything more, we reject the suggestion that we can or should
cast blanket aspersions on the judiciary of an entire state, thereby
rendering a forum selection clause unenforceable as a result.

¶87 For all these reasons, we see no basis for overturning the
district court’s rejection of the Plaintiffs’ claim that it would be
unfair or unreasonable to enforce the forum selection clauses.

20241227‐CA 41 2026 UT App 56
PCVI v. Premsrirut

III. Applicability to the Non‐Signatory Plaintiffs

¶88 Finally, the Non‐Signatory Plaintiffs challenge the district
court’s determination that, as a matter of contract interpretation,
they are bound by the Litigation Clause. On this, we again agree
with the district court. 16
15F15F

¶89 “When interpreting a contract, a court first looks to the
contract’s four corners to determine the parties’ intentions, which
are controlling.” Pearce v. Purple Innovation, Inc., 2025 UT App 45,
¶ 22, 568 P.3d 649 (quotation simplified), cert. denied, 574 P.3d 524
(Utah 2025). “If the language within the four corners of the
contract is unambiguous, the parties’ intentions are determined
from the plain meaning of the contractual language, and the
contract may be interpreted as a matter of law.” Id. (quotation
simplified).

¶90 As indicated, the Litigation Clause said that “[a]ny
litigation . . . brought in connection with or as a result of the
Firm’s representation of the Client” must be brought in Nevada.
(Emphasis added.) Elsewhere in the Agreement, “the Client” was
defined as including “Hsieh (in his individual capacity), PCVI,
LLC, . . . and their respective affiliates, as well as such other
entities or persons as mutually agreed by the parties.”

¶91 The initial question on this issue, then, is what the term
“affiliates” means. “In interpreting contracts, . . . ordinary
meaning is often . . . determined through standard, non‐legal
dictionaries.” South Ridge Homeowners’ Ass’n v. Brown, 2010 UT

16. The district court also held that, as a matter of plain language,
PCVI was bound by the General Clause. PCVI does not challenge
that conclusion in this appeal. Instead, this issue is centered on the
Non‐Signatory Plaintiffs’ arguments about whether the Litigation
Clause is binding on them.

20241227‐CA 42 2026 UT App 56
PCVI v. Premsrirut

App 23, ¶ 1, 226 P.3d 758 (quotation simplified). Merriam‐
Webster defines “affiliate” as “an affiliated person or
organization,” 17 and it defines “affiliated” as “closely associated
16F16F

with another typically in a dependent or subordinate position.” 1817F17F

In some circumstances, plain or ordinary meaning may also be
derived from the applicable legal context. See State v. Rasabout,
2015 UT 72, ¶ 10, 356 P.3d 1258; Armenta v. Unified Fire Auth., 2025
UT 26, ¶ 26, 573 P.3d 1283. Under the Utah Revised Business
Corporation Act, the term “affiliate” is defined as “a person that
directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with,
the person specified.” Utah Code § 16‐10a‐102(2). Thus, we think
it reasonable to conclude that the term “affiliate” here referred to
an entity that was subordinate to or under the control of Hsieh or
PCVI.

¶92 There is no dispute that this was so with respect to each of
the Non‐Signatory Plaintiffs.

 Hsieh was listed as the sole member/manager on the
certificate of organization of Tony Utah, LLC, which was
later renamed as Utah TH, LLC.

 Utah TH, LLC, was listed as the sole member/manager on
the certificate of organization of 1000 East Holmstead
Ranch, LLC.

 In conjunction with the purchase of the ranch, 1000 East
Holmstead Ranch, LLC acquired 100% of the membership
interest of Holmstead Ranch Resort, LLC, an organization

1. Affiliate, Merriam‐Webster, https://www.merriam‐
   webster.com/dictionary/affiliate [https://perma.cc/M4VN‐BVPK].

2. Affiliated, Merriam‐Webster, https://www.merriam‐
   webster.com/dictionary/affiliated [https://perma.cc/3RE2‐KPX5].

20241227‐CA 43 2026 UT App 56
PCVI v. Premsrirut

that had previously been formed by the former owner of
the ranch. The purchase and sale agreement of the ranch
was signed by Yeh on behalf of 1000 East Holmstead
Ranch, LLC.

¶93 Despite all this, the Non‐Signatory Plaintiffs assert that the
term “affiliates” should be interpreted as only referring to entities
that were affiliates of Hsieh or PCVI at the time of the Agreement.
But nothing in the Agreement actually said that. Instead, the
relevant language defined “the Client” as including the
“respective affiliates” of Hsieh or PCVI without any such
qualification. The parties could have written such a term into the
Agreement if they wanted to. But they didn’t. Given this silence,
we’re hesitant to do so for them. See, e.g., Bakowski v. Mountain
States Steel, Inc., 2002 UT 62, ¶ 19, 52 P.3d 1179 (“We will not make
a better contract for the parties than they have made for
themselves.”).

¶94 We note that in the course of arguing this issue on appeal,
the parties have pointed to competing lines of cases from other
jurisdictions that concern this precise issue—whether clauses in
contracts referring to “affiliates” can bind affiliates that were not
created or were not yet affiliates at the time the contract was
formed.

¶95 The Plaintiffs, for example, argue that to “bind non‐parties
to a contract,” parties “must have the authority to do so and must
state their intention to do so clearly,” and they cite Arcadia
Biosciences, Inc. v. Vilmorin & Cie, 356 F. Supp. 3d 379, 390–93
(S.D.N.Y. 2019), to support this proposition. Consistent with this
principle, they point to cases that required a contract to include
“express, forward‐looking language” before a court would hold
that the contract was binding on an affiliate that didn’t exist or
was not yet an affiliate at the time the contract was formed. See,
e.g., Revitch v. DIRECTV, LLC, 977 F.3d 713, 718 (9th Cir. 2020)

20241227‐CA 44 2026 UT App 56
PCVI v. Premsrirut

(holding that without “forward‐looking language,” the
agreement at issue did not cover entities that became affiliated
with the party “years after the contract was signed in an
unrelated corporate acquisition”); VKK Corp. v. National Football
League, 244 F.3d 114, 130 (2d Cir. 2001) (holding that an
agreement did not bind future members when the agreement’s
reference to “affiliates” was “stated in the present tense” and the
agreement’s definition of “affiliate” did not indicate “the
inclusion of future rather than present members”).

¶96 The Defendants, however, contend that such cases are
distinguishable because either (1) they involved affiliates who
had nothing to do with the business of the signatory party or
(2) the agreements at issue included “contractual language that
temporally limit[ed] who [was] bound.” By contrast, the
Defendants argue that because the Agreement here covered
“legal services” on things like the “provision of real estate,” and
because this was “by its very nature, prospective,” it would be
reasonable to conclude that it did contemplate that future
affiliates would be bound. And they also point out that there was
no limiting language in the Agreement.

¶97 Reviewing the relevant authorities, we note that in Arcadia
Biosciences, the court surveyed the caselaw in this area and
concluded that such caselaw held that “defendants could enforce
a forum selection clause against a non‐signatory plaintiff who
was closely related to the disputes arising out of the
agreement[].” 356 F. Supp. 3d at 394 (quotation simplified). The
court noted that “a non‐signatory was determined to be closely
related, in turn, if it was foreseeable that it would be bound to a
forum selection clause.” Id. (quotation simplified). We conclude
that this is a reasonable statement of the law, and we endorse it
here.

20241227‐CA 45 2026 UT App 56
PCVI v. Premsrirut

¶98 Applied to this case, we agree that the Non‐Signatory
Plaintiffs are bound by the clause in question. As explained, the
Agreement expressly contemplated that the Firm’s legal services
would include the acquisition of real estate, and it’s undisputed
that the Non‐Signatory Plaintiffs were either created or acquired
for that very purpose. Moreover, the amended complaint asserts
legal malpractice claims against the Defendants, but the
Defendants’ alleged legal duties are derived from the Agreement.
As a result, it seems clear enough to us that the Non‐Signatory
Plaintiffs were benefitting from legal services that traced back to
the Agreement, and that same Agreement includes the forum
selection clauses at issue. From all this, we conclude that the Non‐
Signatory Plaintiffs are closely related to the dispute at hand and
that it was accordingly foreseeable that they would be bound by
the Agreement. We thus agree with the district court’s rejection
of this alternate rationale for opposing the motion to dismiss.

CONCLUSION

¶99 We reverse the district court’s conclusion that the Plaintiffs
had not shown that Hsieh was incapacitated at the time he signed
the Power of Attorney, and we remand that issue for further
proceedings consistent with both this decision and the
Defendants’ request for discovery. But to the extent that the other
issues raised by the Plaintiffs are still pending, we reject those
arguments.

20241227‐CA 46 2026 UT App 56