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March 19, 2026 Get Citation Alerts Download PDF Add Note

Old Republic National Title v. Cap Fund 783

Court of Appeals of Utah

• Citations: 2026 UT App 37

• Docket Number: Case No. 20250117-CA

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (74.1K)

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Combined Opinion

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

1. “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

1. 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.

2. 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

1. 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

1. 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

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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).

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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

1. 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.

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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.

1. 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,

1. 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