2015 UT App 19

_________________________________________________________

THE UTAH COURT OF APPEALS

FIDELITY NATIONAL TITLE INSURANCE COMPANY,

Plaintiff and Appellant,

v.

KENTON WORTHINGTON,

Defendant and Appellee.

Opinion

No. 20130799-CA

Filed January 29, 2015

Third District Court, Salt Lake Department

The Honorable Tyrone E. Medley

No. 110908756

Bryce D. Panzer, Brett N. Anderson, and Scott R. 

Taylor, Attorneys for Appellant

Michael D. Mayfield and Caroline L. Hermeling,

Attorneys for Appellee

JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGE

MICHELE M. CHRISTIANSEN and SENIOR JUDGE RUSSELL W. BENCH

concurred.

1

PEARCE, Judge:

¶1 A homeowner sought the assistance of his sister and her 

husband in refinancing his house. The three worked with a title 

 

1. The Honorable Russell W. Bench, Senior Judge, sat by special 

assignment as authorized by law. See generally Utah R. Jud. 

Admin. 11-201(6).
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company partly owned by the sister to secure a loan from a 

bank. After the refinancing loan closed, a mechanic’s lien was 

recorded upon the house. The title company’s underwriter paid 

out to the bank to satisfy the lien and then sued the homeowner, 

his sister, his sister’s husband, and the sister’s title company. For 

a variety of reasons, including bankruptcies and the dissolution 

of the title company, the only parties left standing in the 

litigation are the homeowner and the underwriter. The 

underwriter alleged that the homeowner committed fraud and 

participated in his sister’s breach of fiduciary duty. The question 

before us is whether the district court erred in dismissing the 

underwriter’s complaint against the homeowner. Because the 

underwriter did not plead any false representation made by the 

homeowner and did not plead any duty to disclose owed by the 

homeowner, we conclude that the fraud claim against him was 

improperly pleaded and therefore properly dismissed. Because 

the underwriter did not allege that the homeowner took any 

specific action to further his sister’s alleged breach of fiduciary 

duty, we conclude that the district court did not err by 

dismissing the breach of fiduciary duty claim.

BACKGROUND

¶2 Kenton Worthington—the homeowner—purchased a 

half-finished house (the Property) from a construction company

with the understanding that the construction company would 

complete it. To finance the purchase, Worthington granted a first 

trust deed to a lender for $1,100,000 and a second trust deed to 

the construction company for $585,000. Worthington later sought 

to refinance these obligations and obtain additional capital to 

finish construction. To this end, Worthington’s brother-in-law

(Brother-in-Law), a mortgage broker, helped him obtain a 

refinancing loan from a second bank (the Bank). The loan was 

for $2,596,000 and was characterized as a refinance of existing 

obligations rather than as a construction loan. Priority Title

Insurance Agency, a company partly owned by Worthington’s 

sister (Sister), handled the closing of the refinancing loan.
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Priority Title was an agent of its underwriter, Fidelity National 

Title Insurance Company (Fidelity).

¶3 According to Fidelity’s complaint, the refinancing loan’s 

closing was conditioned upon, ‚among other things, obtaining 

assurance that [the Bank] would have a first priority lien on the 

Property, that there would be no other liens of record on the 

title, and that there was no subordinate financing.‛ When the

loan closed, Priority Title disbursed funds to pay off the trust 

deeds held by the first lender and the construction company. 

Both of those entities reconveyed their trust deeds. Priority Title 

also issued a lender’s title-insurance policy in favor of the Bank

in the amount of $2,596,000. The policy provided coverage to the 

Bank against potential mechanic’s liens claiming priority over 

the Bank’s trust deed.

¶4 Worthington and the construction company were unable 

to agree on the balance still owing for construction. Two months 

after the refinancing loan closed, their dispute boiled over into 

litigation. The construction company filed a Notice of Lien 

against the Property, asserting a $600,000 mechanic’s lien.

Because construction on the Property had commenced before the 

initial sale to Worthington, the construction company asserted 

that its lien had priority over the refinancing loan. The Bank was 

joined to the litigation and tendered its claim to Fidelity under 

the title-insurance policy. Fidelity settled that case by paying the 

construction company approximately $490,000.

¶5 Fidelity then filed suit against Worthington, Sister, 

Brother-in-Law, and Priority Title (collectively, the Defendants).

Fidelity’s complaint identified two claims for relief that are 

pertinent to this appeal: (1) one titled ‚Fraud, Intentional 

Misrepresentation, and Civil Conspiracy‛ and (2) one for

‚Breach of Fiduciary Duty.‛ Sister, Brother-in-Law, and Priority 

Title are no longer in the case and are not parties to this appeal.

¶6 Worthington moved to dismiss Fidelity’s claims against 

him, arguing that they were barred by the economic loss 
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doctrine and that the claims should be dismissed for failing to 

state a claim upon which relief could be granted. See Utah R. Civ. 

P. 12(b)(6). In particular, Worthington argued that the fraud

claim failed because Fidelity did not plead ‚the circumstances 

constituting fraud . . . with particularity.‛ See id. R. 9(b). The 

district court agreed with Worthington and dismissed the claims 

against him with prejudice. The court also determined that the 

claims were ‚based solely and inextricably on alleged 

contractual duties‛ and were therefore the type of ‚tort claims 

barred by the economic loss rule, because the claimed duties 

[were] not independent of the contract.‛2 The court further

stated that it could not ‚find that . . . Mr. Worthington owed any 

legal duties to *Fidelity+.‛ The court incorporated by reference 

‚all of the case law authorities and remaining grounds set forth 

in *Worthington’s+ Memoranda in support and reply, which 

serve as the basis of the Court’s decision.‛ Fidelity appeals.

ISSUE AND STANDARD OF REVIEW

¶7 Fidelity argues that the district court erred when it 

dismissed Fidelity’s complaint against Worthington. The court 

dismissed Fidelity’s complaint after it determined that Fidelity 

failed to state claims upon which relief could be granted, see 

Utah R. Civ P. 12(b)(6), and that the economic loss rule barred 

Fidelity’s claims. For the purposes of a rule 12(b)(6) dismissal, 

we accept the complaint’s factual allegations as true. Snow v. 

Chartway Fed. Credit Union, 2013 UT App 175, ¶ 2 n.2, 306 P.3d 

868. As a result, an appeal from a rule 12(b)(6) dismissal presents 

only questions of law, and we review the district court’s ruling

for correctness. Simmons Media Group, LLC v. Waykar, LLC, 2014 

UT App 145, ¶ 8, 335 P.3d 885.

 

2. Because we affirm based upon the pleading deficiencies, we 

do not address the economic loss doctrine arguments.
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ANALYSIS

I. Fraud-Based Claims

¶8 Fidelity’s first claim for relief is a mélange of fraud-based 

causes of action under the title ‚Fraud, Intentional 

Misrepresentation, and Civil Conspiracy.‛ Rule 12(b)(6) of the 

Utah Rules of Civil Procedure permits the dismissal of 

complaints that fail to state claims upon which relief can be 

granted. In the context of fraud-based causes of action, rule 9(b) 

provides that the circumstances constituting fraud must be 

pleaded with particularity in order to state a claim. Utah R. Civ. 

P. 9(b).

¶9 Fidelity pleaded that each of the Defendants knew that a 

mechanic’s lien could be filed against the Property and knew 

that Fidelity would not underwrite an insurance policy for a 

property subject to a possible mechanic’s lien. Fidelity claimed 

that ‚*e+ach of the Defendants failed to disclose, or require the 

disclosure of the [potential lien] to Fidelity for the purpose of 

inducing Fidelity to issue the lender’s policy of title insurance to 

*the Bank+.‛ Fidelity also alleged that ‚Priority Title and *Sister+ 

had a specific duty to disclose to Fidelity all facts and 

information [relevant] to the issuance of the lender’s policy of 

title insurance, and intentionally failed to do so.‛ Although the 

complaint lumped fraud, intentional misrepresentation, and civil 

conspiracy together, we will consider fraud and intentional 

misrepresentation together and civil conspiracy separately.

A. Fraud

¶10 A claim of fraud requires the plaintiff to allege:

(1) that a representation was made (2) concerning a 

presently existing material fact (3) which was false 

and (4) which the representor either (a) knew to be 

false or (b) made recklessly, knowing that there 

was insufficient knowledge upon which to base 
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such a representation, (5) for the purpose of 

inducing the other party to act upon it and (6) that 

the other party, acting reasonably and in ignorance 

of its falsity, (7) did in fact rely upon it (8) and was 

thereby induced to act (9) to that party’s injury and 

damage.

Webster v. JP Morgan Chase Bank, NA, 2012 UT App 321, ¶ 16, 290 

P.3d 930 (citation and internal quotation marks omitted); see also

Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 16, 70 P.3d 35 

(reiterating that, in the context of a motion for summary 

judgment, conclusory allegations of those elements, 

unsupported by relevant surrounding facts, are insufficient).

¶11 Here, Fidelity’s complaint fails to allege the elements of a 

fraud claim with the particularity our rules require. See Utah R. 

Civ. P. 9(b) (‚In all averments of fraud or mistake, the 

circumstances constituting fraud or mistake shall be stated with 

particularity.‛). Rule 9(b)’s specificity requirement modifies the 

general rule that requires only a ‚short and plain‛ statement of 

the claim demonstrating entitlement to relief and a demand for 

judgment identifying the relief sought. See id. R. 8(a). A number 

of reasons have been advanced to justify the more stringent 

pleading requirement. Commentators have explained that rules 

analogous to our rule 9(b) exist to discourage ‚lightly made 

claims charging the commission of acts that involve some degree 

of moral turpitude.‛ See 5A Charles Alan Wright & Arthur R. 

Miller, Federal Practice and Procedure § 1296 (3d ed.). Others have 

suggested that the rule stems from the common law’s historical 

reluctance to reopen transactions. John P. Villano Inc. v. CBS, Inc., 

176 F.R.D. 130, 131 (S.D.N.Y. 1997) (citing William M. Richman, 

Donald E. Lively & Patricia Mell, The Pleading of Fraud: Rhymes 

Without Reason, 60 S. Cal. L. Rev. 959, 960–67 (1987)). The rule 

also serves to deter filing exploratory suits with little 

information in the hopes that discovery will uncover 

information to support the allegations. See Republic Bank & Trust 

Co. v. Bear Stearns & Co., 683 F.3d 239, 255 (6th Cir. 2012) (‚Rule 

9(b) [of the Federal Rules of Civil Procedure] is designed, not 
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only to put defendants on notice of alleged misconduct, but also 

to prevent fishing expeditions . . . .‛ (citation and internal 

quotation marks omitted)); Cornejo v. JPMorgan Chase Bank, No. 

CV 11-4119 CAS(VBKx), 2012 WL 628179, at *4 (C.D. Cal. Feb. 27, 

2012) (‚Plaintiffs’ assertion that they will ‘not know until 

discovery’ the specific misrepresentations made is precisely 

what Rule 9(b) [of the Federal Rules of Civil Procedure] seeks to 

prevent.‛). 

¶12 Here, Fidelity did not identify any false representation 

Worthington made to Fidelity; rather, it asserted only that the 

Defendants as a group had failed to disclose information to 

Fidelity. Our supreme court has explained that a cause of action 

for fraud against multiple defendants must

‚supply . . . information regarding *each defendant’s+ personal 

participation in fraud.‛ Armed Forces Ins. Exch., 2003 UT 14, ¶ 21. 

For this reason, the district court did not err by dismissing the 

fraud claim.

¶13 Even if we could read the group allegations as directed 

solely at Worthington, the complaint avers only that 

Worthington ‚failed to disclose‛ the potential for a mechanic’s 

lien. A defendant’s failure to disclose must implicate the breach 

of a duty to be actionable. See Russell/Packard Dev., Inc. v. Carson, 

2003 UT App 316, ¶ 33, 78 P.3d 616 (noting that, generally, 

silence in the absence of a duty to speak does not of itself 

constitute fraud), aff’d, 2005 UT 14, 108 P.3d 741; see also Gilbert 

Dev. Corp. v. Wardley Corp., 2010 UT App 361, ¶ 21, 246 P.3d 131 

(holding that a fraudulent nondisclosure claim required the 

plaintiff to show that the defendant had a legal duty to 

communicate the information at issue). Fidelity’s complaint does 

not identify what duty Fidelity asserts Worthington owed to

Fidelity that would have required him to disclose that there was 

a possibility (1) that a mechanic’s lien might one day be filed 
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against the Property and (2) that the priority of such a lien might 

predate the Bank’s interest.3

¶14 Because Fidelity’s complaint did not identify any false 

representation Worthington made and did not identify any duty 

Worthington breached by failing to disclose information to 

Fidelity, Fidelity failed to plead fraud with the particularity rule 

9(b) requires.

B. Conspiracy to Commit Fraud

¶15 Fidelity’s first claim for relief also alleged a civil 

conspiracy amongst the Defendants to commit fraud. The 

complaint asserted that the Defendants’ ‚acts and omissions‛ 

‚were undertaken as part of a conspiracy to defraud Fidelity, 

and to intentionally misrepresent the facts and circumstances, in 

order to induce Fidelity to issue a lender’s policy of title 

insurance to *the Bank+.‛ Fidelity claimed that ‚Priority Title and 

[Sister] were part and parcel of the conspiracy to mislead and 

defraud Fidelity‛ and that Worthington knew that neither Sister

nor Priority Title would inform Fidelity or the Bank of the 

potential mechanic’s lien.

¶16 A claim for civil conspiracy must allege the following 

elements: ‚(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.‛ Israel Pagan 

Estate v. Cannon, 746 P.2d 785, 790 (Utah Ct. App. 1987).

 

3. Fidelity did not allege that Worthington withheld information 

from Priority Title; to the contrary, the complaint asserts that the 

possibility of a mechanic’s lien was ‚known to each of the 

Defendants,‛ including Priority Title.
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¶17 Here, Fidelity has not alleged facts to support its

allegations. Specifically, the complaint lacks any facts showing a 

meeting of the minds. Rather, it states conclusorily that, ‚since 

each of the Defendants knew that *Sister+ was *Worthington’s+ 

sister, and that [Brother-in-Law+ was *Worthington’s+ brother-inlaw, each of the Defendants knew that neither [Sister] nor 

[Brother-in-Law+ would inform *Fidelity+‛ of the possibility of a 

mechanic’s lien being filed. Thus, the complaint implied that 

familial relationships alone give rise to an inference of 

conspiracy when a sibling or her spouse is alleged to have

breached a duty to disclose. Fidelity must do more to allege a 

meeting of the minds than simply imply that this element is 

satisfied when the defendants are related by blood or marriage.

¶18 Because Fidelity’s complaint did not assert facts to show 

that Worthington, Sister, Brother-in-Law, and Priority Title 

agreed on a course of fraudulent behavior, Fidelity failed to 

plead civil conspiracy to commit fraud with the particularity 

required by rule 9(b). See Utah R. Civ. P. 9(b); see also Coroles v. 

Sabey, 2003 UT App 339, ¶ 39 & n.23, 79 P.3d 974 (explaining that 

rule 9(b)’s particularity requirement extends to civil conspiracy 

claims predicated on fraud and possibly even to non-fraud civil 

conspiracy claims).

¶19 Because we determine that Fidelity’s complaint did not 

state the fraud and civil conspiracy claims with particularity, we 

hold that the district court correctly dismissed those claims for 

failure to state a claim upon which relief could be granted.

II. Breach of Fiduciary Duty

¶20 Fidelity’s second claim for relief alleged breach of 

fiduciary duty. Specifically, Fidelity argued that Priority Title 

and Sister breached the fiduciary duties they owed to Fidelity as 

insurance agents. With respect to Worthington, Fidelity alleged 

that he knew of that fiduciary relationship, that he knew that the 

refinancing loan could only close if the possibility of a 

mechanic’s lien was concealed from Fidelity, and that he 
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20130799-CA 10 2015 UT App 19

‚actively participated in Priority Title’s and *Sister’s+ 

concealment‛ of that possibility. Fidelity asserted that 

Worthington was therefore ‚jointly and severally liable for the 

breach of fiduciary duty.‛

¶21 The district court’s ruling stated that the court could not

find that Worthington owed any legal duties to Fidelity. It also 

noted that ‚the claim that *Worthington+ aided and abetted a 

fraud and conspiracy are not allegations pled in the Amended 

Complaint.‛ On appeal, Fidelity argues that ‚[a]n independent 

duty exists not to participate in the breach of a fiduciary duty‛ 

and that the allegations in the complaint were ‚sufficient to state 

a claim against [Worthington] for participating in (aiding and 

abetting) the breach of fiduciary duty claim.‛

¶22 We note that the complaint does not expressly plead an 

aiding and abetting cause of action. Rather, the section of the 

complaint Fidelity relies upon is titled ‚Breach of Fiduciary 

Duty.‛ That section does not contain the phrase ‚aiding and 

abetting.‛ On appeal, Fidelity attempts to shoehorn the meaning 

of ‚aiding and abetting‛ into its use of the word ‚participated.‛ 

Even assuming that this is sufficient to plead an aiding and 

abetting cause of action, Fidelity’s complaint fails to state a claim 

upon which relief can be granted.

¶23 The sufficiency of the pleadings within a complaint ‚must 

be determined by the facts pleaded rather than the conclusions 

stated.‛ Franco v. Church of Jesus Christ of Latter-day Saints, 2001 

UT 25, ¶ 26, 21 P.3d 198 (citation and internal quotation marks 

omitted); Foster v. Saunders, 2005 UT App 264U, at para. 3 (per 

curiam). Here, Fidelity’s complaint asserts that Priority Title and 

Sister breached their fiduciary duties to Fidelity. But the 

complaint does not allege any act Worthington performed in 

furtherance of those breaches. Fidelity’s complaint claims only 

that Worthington ‚actively participated‛ in the breach. This 

allegation is purely conclusory rather than factual and is 

therefore insufficient to support a claim for relief. See Chapman v. 

Primary Children’s Hosp., 784 P.2d 1181, 1186 (Utah 1989) (‚We 
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20130799-CA 11 2015 UT App 19

have stressed, and continue to hold, that mere conclusory 

allegations in a pleading, unsupported by a recitation of relevant 

surrounding facts, are insufficient to preclude dismissal or 

summary judgment.‛). Accordingly, dismissal pursuant to rule 

12(b)(6) of the Utah Rules of Civil Procedure was appropriate.

CONCLUSION

¶24 Fidelity’s complaint did not allege fraud or conspiracy to 

commit fraud with the particularity rule 9(b) of the Utah Rules of 

Civil Procedure requires. Fidelity’s complaint also failed to 

allege facts to support a claim that Worthington aided and 

abetted Sister, or Priority Title, in breaching a fiduciary duty

owed to Fidelity. The district court therefore correctly granted

Worthington’s motion to dismiss for failure to state a claim upon 

which relief could be granted. As a result, we need not consider 

whether the district court correctly applied the economic loss 

rule to Fidelity’s fraud and breach of fiduciary duty claims. We 

affirm the district court’s order dismissing the complaint.

¶25 Affirmed.