This opinion is subject to revision before final 

publication in the Pacific Reporter 

2013 UT 36

IN THE

SUPREME COURT OF THE STATE OF UTAH

ZIONS MANAGEMENT SERVICES, 

Appellee,

v. 

JEFFREY S. RECORD, 

Appellant.

No. 20110860 

Filed: June 25, 2013 

Third District, Salt Lake City Dep’t 

The Honorable Todd M. Shaughnessy 

No. 110914393 

Attorneys: 

Michael Patrick O’Brien, Mark D. Tolman, Brock N. Worthen, 

Salt Lake City, for appellee 

Jaqualin Friend Peterson, Elizabeth M. Peck, 

April L. Hollingsworth, Salt Lake City, for appellant 

 CHIEF JUSTICE DURRANT authored the opinion of the Court, 

in which ASSOCIATE CHIEF JUSTICE NEHRING, 

JUSTICE DURHAM, JUSTICE PARRISH, and JUSTICE LEE joined.

 CHIEF JUSTICE DURRANT, opinion of the Court: 

INTRODUCTION 

¶1 Appellant Jeffrey S. Record seeks appellate review of the 

district court’s order compelling him to arbitrate various claims 

that arose out of his employment with Appellee Zions 

Management Services Company (Zions). Mr. Record argues that 

the district court erred in compelling arbitration because the plain 

language of the arbitration clause in his employment contract 

allows him to pursue administrative remedies prior to submitting 

to arbitration. We agree. Accordingly, we vacate the district 

court’s order compelling arbitration and remand for further 

proceedings.
ZIONS MANAGEMENT v. RECORD

Opinion of the Court 

2 

BACKGROUND 

¶2 Mr. Record began working for Zions in February 1996. 

Throughout the course of his employment with Zions, and 

specifically in June 2007, Mr. Record signed various documents 

whereby he acknowledged receipt of the Zions Employee 

Handbook, which stipulated that any disputes arising out of his 

employment with Zions had to be resolved through mandatory, 

binding arbitration (Arbitration Agreement). In relevant part, the 

Arbitration Agreement stated: 

Any legal controversy or claim arising out of your 

employment with [Zions], which is not otherwise 

governed by an arbitration provision, that cannot be 

satisfactorily resolved through negotiation or 

mediation, shall be resolved, upon election by you 

or [Zions], by binding arbitration pursuant to this

arbitration provision and the code of procedures of

the American Arbitration Association (AAA). . . . 

Under this binding arbitration policy, an employee 

still has a right to file a claim with the EEOC, OSHA, 

or any other appropriate federal or state regulatory 

agency regarding a workplace issue. However, 

where permitted by law, binding arbitration, rather

than the court system, is the process used for 

pursuing relief beyond the agency. 

The Arbitration Agreement further stipulated that “[b]ecause 

employment with [Zions] involves interstate commerce, this 

binding arbitration agreement is made pursuant to, and is 

governed by, the Federal Arbitration Act.” 

¶3 At some point during his employment, Mr. Record 

became acquainted with Emilie Tanner, a co-worker at Zions. 

According to Zions, Mr. Record and Ms. Tanner became 

romantically involved, and Zions claims that it received a number 

of complaints from other employees regarding the couple’s 

behavior. Zions informed Mr. Record and Ms. Tanner of these 

complaints and encouraged them to maintain a professional 

demeanor while with each other at work. Unfortunately, neither 

Mr. Record nor Ms. Tanner heeded this counsel, as Zions 

terminated both of them on February 22, 2010, after another 

employee reported seeing them together, partially undressed, in 

the back of a dark, unused file room. 
Cite as: 2013 UT 36 

Opinion of the Court 

3 

¶4 After his termination, Mr. Record filed a “Charge of 

Discrimination” with the Utah Anti-Discrimination and Labor 

Division of the Utah Labor Commission (UALD), wherein he 

alleged that Zions had discriminated against him on the basis of 

his age, religion, gender, and association with a disabled 

individual. Mr. Record also alleged that Zions had retaliated 

against and harassed him in violation of federal and state law. 

UALD issued its Determination and Order on March 29, 2011, 

dismissing Mr. Record’s discrimination claims because the “facts 

in the record, viewed in their entirety, indicate there is no 

reasonable cause to believe that [Mr. Record] was subjected to the 

discriminatory practices alleged.” 

¶5 Pursuant to the “Appeal Rights of the Determination and 

Order,” Mr. Record appealed UALD’s decision to the 

Adjudication Division of the Utah Labor Commission (Labor 

Commission) on April 28, 2011. Zions responded by attempting to 

enforce the Arbitration Agreement in those proceedings by filing 

a motion to compel arbitration. The administrative law judge, 

however, determined that “[t]he Labor Commission lacks 

jurisdiction to enforce an Arbitration agreement between an 

employer and employee.” But the judge also stated that “[i]f the 

respondent files a Court Order requiring the case to be arbitrated 

the Commission would follow the Court Order.” 

¶6 Accordingly, and pursuant to both the Utah and Federal 

Arbitration Acts,1 on June 14, 2011, Zions filed a “Motion to 

Compel Arbitration and Stay Judicial Proceedings” with the 

district court. Specifically, Zions’ motion sought an order 

compelling Mr. Record to arbitrate his discrimination claims and 

an order staying the Labor Commission’s review of UALD’s 

decision. The district court granted Zions’ motion and ordered 

Mr. Record to submit to arbitration. The district court also ordered 

the Labor Commission “to proceed no further in resolving 

[Mr. Record’s] claims.” 

¶7 Pursuant to the district court’s order, Zions attempted to 

dismiss Mr. Record’s administrative proceeding by filing an 

“Order of Dismissal” before the Labor Commission on August 22, 

1 9 U.S.C. § 4 (permitting a party who seeks to enforce an 

arbitration agreement to file a motion to compel arbitration with 

any United States district court); UTAH CODE § 78B-11-106 

(permitting a party who seeks to enforce an arbitration agreement 

to file a motion to compel arbitration with any state district court). 
ZIONS MANAGEMENT v. RECORD

Opinion of the Court 

4 

2011. Despite its prior statement, however, the Labor Commission 

denied Zions’ motion and instead insisted that “[t]he District 

Court does not have jurisdiction to stay the Commission’s 

proceedings for an employment discrimination claim” and 

refused to stay the proceeding. In light of this order, Mr. Record 

likewise refused to comply with the district court’s order and 

instead pressed on with his appeal before the Labor Commission. 

¶8 After failing to secure either Mr. Record’s or the Labor 

Commission’s compliance with the district court’s order, Zions 

returned to the district court and filed a “Motion for Contempt 

Order” on September 12, 2011. In its motion, Zions requested that 

the district court hold Mr. Record in contempt for his willful 

violation of the district court’s order compelling arbitration. A few 

days later, Mr. Record filed his Notice of Appeal from the district 

court’s Order Compelling Arbitration. 

¶9 Despite Mr. Record’s Notice of Appeal, the district court 

granted Zions’ contempt motion on September 30, 2011. The 

district court’s order recognized, however, that Mr. Record’s 

“conduct in refusing to comply with the [district] court’s order is 

based upon the [Labor Commission’s] Order and therefore may 

be legally privileged.” Nevertheless, the district court ordered 

Mr. Record to “take all steps reasonably necessary to stay . . . the 

proceedings before the [Labor Commission].” 

¶10 Then, on October 6, 2011, the Utah Labor Commissioner 

modified the administrative law judge’s decision to deny Zions’ 

Order of Dismissal, holding that “until such time as the Order 

[Compelling Arbitration] is withdrawn, overturned, or 

superseded, the Labor Commission will comply with its terms.” 

The Commissioner then stayed the proceedings related to 

Mr. Record’s claims. Mr. Record amended his notice of appeal on 

October 31, 2011, to include the district court’s contempt order 

and now asks us to review both the Order Compelling Arbitration 

and the Contempt Order. We have jurisdiction pursuant to section 

78A-3-102(3)(j) of the Utah Code. 

STANDARD OF REVIEW

¶11 “This court is the exclusive judge of its own jurisdiction. 

The question of whether an order is final and appealable is a 
Cite as: 2013 UT 36 

Opinion of the Court 

5 

question of law.”2 This case also concerns the district court’s 

interpretation of the parties’ contract, which is a question of law 

that we review for correctness.3

ANALYSIS 

¶12 Before we can consider the merits of the parties’ 

arguments, we must first resolve the procedural question of 

whether we have jurisdiction to hear this appeal. Specifically, we 

must address the question of whether the district court’s Order 

Compelling Arbitration was a “final order” from which 

Mr. Record could properly appeal.4 For the reasons stated below, 

we conclude that the order was a final order and that we may 

therefore address the parties’ arguments. 

¶13 Mr. Record argues that the district court erred in 

compelling arbitration because the plain language of the 

Arbitration Agreement does not mandate arbitration until 

Mr. Record seeks relief “beyond an agency.” We agree with 

Mr. Record because the contractual language is unambiguous and 

does not foreclose the possibility of an employee seeking 

administrative review of an administrative decision prior to 

submitting to arbitration.5 

2 Powell v. Cannon, 2008 UT 19, ¶ 9, 179 P.3d 799 (footnote 

omitted) (internal quotation marks omitted). 

3 Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶ 19, 44 P.3d 663. 

4 See UTAH R. APP. P. 3(a). 

5 Mr. Record also argues that the district court erred when it 

issued the Contempt Order because the order required him to 

“take all steps reasonably necessary to stay the parties’ arbitration 

proceeding pending further order of this court or the Appeals 

Court.” According to Mr. Record, this requirement somehow 

“impacts the ability of [various third parties] to move forward 

with the arbitration of their disputes” and was thus erroneous. 

Mr. Record did not raise this issue in the proceedings before the 

district court, however, and hence may not raise it for the first 

time on appeal unless he alleges plain error or exceptional 

circumstances. State v. Moa, 2012 UT 28, ¶ 24, 282 P.3d 985. He has 

alleged neither. Instead, he attempts to raise this issue as a 

challenge to the district court’s subject matter jurisdiction, 

presumably in an attempt to avoid problems with preservation. 

But because this issue does not implicate the district court’s 
ZIONS MANAGEMENT v. RECORD

Opinion of the Court 

6 

I. UNDER UTAH LAW, THE DISTRICT COURT’S ORDER 

WAS A “FINAL ORDER” BECAUSE IT ENDED THE 

CONTROVERSY BETWEEN THE LITIGANTS 

¶14 We first turn to the issue of whether the district court’s 

Order Compelling Arbitration was an appealable “final order.” 

Zions argues that the Arbitration Agreement is governed by the 

FAA, which allows an immediate appeal only if the district court’s 

order is “a final decision with respect to an arbitration that is 

subject to [the FAA].”6 Relying on this language, Zions urges us to 

immediately dismiss this appeal for lack of jurisdiction because 

the district court’s order does not qualify as a “final decision.” 

Specifically, Zions asserts that the order was not final because it 

“stayed rather than dismissed the case,” and thus did not end the 

controversy between the parties. Mr. Record, in contrast, argues 

that the order was final and that therefore we may properly hear 

this appeal. 

¶15 We agree with Zions that the Arbitration Agreement is 

subject to the FAA, which means that Mr. Record is entitled to 

appeal only if the district court’s order was “final.” We disagree, 

however, with Zions’ assertion that federal procedural law 

governs our analysis of the order’s finality. Instead, we will 

address the finality issue by referring to our own rules and 

principles of law, under which we agree with Mr. Record; the 

district court’s arbitration order constitutes a “final decision,” and 

therefore we have jurisdiction to consider the merits of 

Mr. Record’s appeal.

A. The Arbitration Agreement Clearly States that It Is Governed by 

the FAA, But State Rather Than Federal Procedural Law Applies When 

Determining What Constitutes a “Final Order” 

¶16 Mr. Record admits that he signed several documents 

acknowledging receipt of Zions’ “Employee Handbook,” and the 

Arbitration Agreement contained within the Handbook expressly 

states that it is governed by the FAA: “Because employment with 

[Zions] involves interstate commerce, this binding arbitration 

agreement is made pursuant to, and is governed by, the Federal 

Arbitration Act.” (Emphasis added.) And under Section 16(a)(3) of 

 

subject matter jurisdiction and because it was not preserved 

below, we decline to address it. 

6 9 U.S.C. § 16(a)(3). 
Cite as: 2013 UT 36 

Opinion of the Court 

7 

the FAA, appeals may only be taken from “a final decision with 

respect to an arbitration that is subject to this title.”7 Thus, we 

agree with Zions’ argument that Mr. Record’s appeal was proper 

only if the district court’s order constitutes a “final order.” 

¶17 We disagree, however, with Zions’ assertion that federal 

rather than state law applies to the procedural question of 

whether the order was “final.” The United States Supreme Court 

has recognized the “general and unassailable proposition . . . that 

[s]tates may establish the rules of procedure governing litigation 

in their own courts.”8 But in the same opinion the Court cautioned 

that “where state courts entertain a federally created cause of 

action, the ‘federal right cannot be defeated by the forms of local 

practice.’”9 In other words, if state procedure poses “an obstacle to 

the accomplishment and execution of the full purposes and 

objectives of Congress,” then federal procedural law would 

preempt state law.10 Thus, the question for us becomes whether 

the application of our own procedural rules would pose “an 

obstacle to the accomplishment and execution of the full purposes 

and objectives of Congress” when it enacted the FAA. 

¶18 Fortunately, the Supreme Court has already provided us 

with some guidance in this area. With respect to Congress’s 

purpose in enacting the FAA, the Court has observed that the 

FAA “was designed to overrule the judiciary’s longstanding 

refusal to enforce agreements to arbitrate”11 and to “ensure the 

enforceability, according to their terms, of private agreements to 

arbitrate.”12 And with respect to the application of state 

procedure, the Court has stated that the “FAA contains no express 

pre-emptive provision, [and] does [not] reflect a congressional 

intent to occupy the entire field of arbitration.”13 Furthermore, 

“[t]here is no federal policy favoring arbitration under a certain set 

7 Id.

8 Felder v. Casey, 487 U.S. 131, 138 (1988). 

9 Id. (quoting Brown v. Western Ry. of Ala., 338 U.S. 294, 296 

(1949)). 

10 Id. (internal quotation marks omitted). 

11 Volt Info. Scis., Inc. v. Bd. of Trs. of the Leland Stanford Junior 

Univ., 489 U.S. 468, 474 (1989) (internal quotation marks omitted). 

12 Id. at 476. 

13 Id. at 477. 
ZIONS MANAGEMENT v. RECORD

Opinion of the Court 

8 

of procedural rules.”14 Accordingly, most state courts that have 

considered this question have determined that there is no reason 

why federal procedural law should preempt state law in litigation 

governed by the FAA.15

¶19 We agree with this reasoning. Whether an order is “final” 

for the purposes of appeal is a purely procedural question, and 

given that (a) Congress has not expressly preempted the 

application of local procedural rules in the FAA and (b) the 

application of local procedural rules will not frustrate the 

purposes of the FAA, we conclude that even in litigation 

governed by the FAA, state procedural rules and applicable 

principles of law will apply. Accordingly, we address the issue of 

the finality of the district court’s order under Utah law. 

B. Under Utah Law, the District Court’s Order Constitutes a “Final 

Order” Because No Claims Were Left Pending Before the District Court 

¶20 Zions’ principal argument against the finality of the 

district court’s order is that the order included a stay of 

Mr. Record’s administrative appeal that was pending before the 

Labor Commission, rather than a dismissal. Had the district court 

14 Id. at 476 (emphasis added). 

15 See, e.g., S. Cal. Edison Co. v. Peabody W. Coal Co., 977 P.2d 

769, 773 (Ariz. 1999) (en banc) (“The FAA does not . . . require 

submission to federal procedural law.”); Am. Gen. Fin. Servs. v. 

Jape, 732 S.E.2d 746, 748–50 (Ga. 2012) (same); Collins v. Prudential 

Ins. Co. of Am., 752 So. 2d 825, 828–29 (La. 2000) (same); Wells v. 

Chevy Chase Bank, F.S.B., 768 A.2d 620, 627–29 (Md. 2001) (citing 

cases and stating that most state courts addressing this question 

have determined that their state procedural rules govern unless 

those rules undermine the purposes of the FAA); St. Fleur v. WPI 

Cable Sys./Mutron, 879 N.E.2d 27, 32–33 (Mass. 2008) (deciding that 

the FAA does not preempt state procedural rules); Kremer v. Rural 

Cmty. Ins. Co., 788 N.W.2d 538, 546–47 (Neb. 2010) (same); 

Superpumper, Inc. v. Nerland Oil, Inc., 582 N.W.2d 647, 651 (N.D. 

1998) (same); Moscatiello v. Hilliard, 939 A.2d 325, 329 (Pa. 2007) 

(“The FAA does not preempt the procedural rules governing 

arbitration in state courts, as that is beyond its reach.”); Toler’s 

Cove Homeowners Ass’n, Inc. v. Trident Constr. Co., 586 S.E.2d 581, 

584 (S.C. 2003) (same); In re Palacios, 221 S.W.3d 564, 565 (Tex. 

2006) (per curiam) (same). 
Cite as: 2013 UT 36 

Opinion of the Court 

9 

dismissed the discrimination claims that were pending on appeal 

before the Labor Commission and then ordered arbitration, Zions 

argues, the order would have been “final” and this appeal would 

be proper. Zions also contends that the order lacked finality 

because the district court retains jurisdiction to confirm, vacate, 

modify, or correct the arbitration award once arbitration is 

completed. We are not persuaded by either of these arguments 

because (1) the district court did not have the authority to issue 

the stay of the administrative proceedings, which means that the 

order compelling arbitration completely resolved the controversy 

between the parties, making it a “final” order from which 

Mr. Record could appeal; and (2) the availability of postarbitration remedies before the district court does not affect the 

finality of an order compelling arbitration. 

1. Because the District Court’s Order Staying the Administrative 

Proceedings Was Void, There Was Nothing Left Pending 

Before the District Court, and Therefore Its Order Compelling 

Arbitration Was Final 

¶21 In its argument against the finality of the district court’s 

order, Zions relies primarily upon our decision in Powell v. 

Cannon.

16 In that case, the plaintiff parents sued a delivery doctor, 

a women’s center, and a hospital for negligence.17 The defendants 

moved to stay litigation and compel arbitration pursuant to the 

arbitration agreement that the plaintiffs had signed during their 

first visit with the delivery doctor.18 The district court determined 

that the arbitration agreement was valid, not unconscionable, and 

that the plaintiffs could sign on behalf of the unborn child.19

Accordingly, it granted the motion to stay litigation and 

compelled the plaintiffs to arbitrate their claims.20

¶22 The plaintiffs appealed.21 On appeal, the defendants 

argued that we lacked jurisdiction because the order staying 

litigation and compelling arbitration did not constitute a “final 

16 2008 UT 19, 179 P.3d 799. 

17 Id. ¶ 2. 

18 Id. ¶ 3. 

19 Id. ¶ 6. 

20 Id. 

21 Id. ¶ 7. 
ZIONS MANAGEMENT v. RECORD

Opinion of the Court 

10 

order.”22 We agreed, reasoning that “[a] district court’s order is a 

final judgment only if it ends the controversy between the parties 

by finally disposing of the litigation on the merits as to all claims 

and all parties.”23 In other words, “[i]f any issue remains pending, 

the final judgment rule is not satisfied.”24 We then concluded that 

because the district court’s order stayed litigation of the 

underlying negligence claims pending completion of the 

arbitration, the order was not final: “Until the district court enters 

judgment on the arbitration award, the Powells’ underlying 

claims for medical malpractice remain viable and cognizable. . . . 

Therefore, we hold that an order staying litigation and compelling 

arbitration is not a final order from which an appeal may be 

taken.”25

¶23 Zions argues that Powell is directly applicable here 

because the district court’s order included both a stay and an 

order compelling arbitration. This argument presupposes, 

however, that the district court’s order staying the administrative 

proceedings in the case before us was valid. But this 

presupposition is true only if the district court had subject matter 

jurisdiction over the proceedings below.26 

¶24 As a general rule, Utah courts have “subject matter 

jurisdiction over a legal claim unless adjudicative authority for that 

claim is specifically delegated to an administrative agency.”27 This case 

concerns a discrimination claim over which the Labor 

Commission possesses exclusive jurisdiction: “The procedures 

contained in this section are the exclusive remedy under state law 

for employment discrimination based upon: (a) race; (b) color; 

(c) sex; (d) retaliation; (e) pregnancy, childbirth, or pregnancy22 Id.

23 Id. ¶ 15. 

24 Id. (emphasis added). 

25 Id. ¶¶ 18, 20. 

26 J.M.W., III v. T.I.Z. (In re Adoption of Baby E.Z.), 2011 UT 38, 

¶ 37, 266 P.3d 702, (stating that “[a] decision rendered by a court 

without subject matter jurisdiction is legally void at its 

inception”), cert. denied, 132 S. Ct. 1743 (2012). 

27 Mack v. Utah State Dep’t of Commerce, 2009 UT 47, ¶ 33, 221 

P.3d 194 (emphasis added). 
Cite as: 2013 UT 36 

Opinion of the Court 

11 

related conditions; (f) age; (g) religion; (h) national origin; or 

(i) disability.”28 Therefore, because the Utah Code grants 

“exclusive” jurisdiction over discrimination claims to the Labor 

Commission,29 a district court’s role in the adjudication of such 

claims is governed by the Utah Administrative Procedures Act 

(UAPA),30 which authorizes judicial review of agency action only 

after the parties have exhausted administrative remedies.

31 In 

interpreting this provision of UAPA, we have explicitly stated 

that state courts lack “subject matter jurisdiction to hear the case” 

if the litigant fails to exhaust all the administrative remedies 

available to him,32 which is precisely what happened in this case. 

¶25 Mr. Record initiated administrative proceedings when he 

filed a claim with UALD alleging discrimination. Accordingly, 

under UAPA the district court has no jurisdiction over those 

proceedings until Mr. Record has exhausted his administrative 

remedies, at which point Mr. Record can seek judicial review of 

the agency’s decision.33 Thus, when it was presented with the 

district court’s order that purported to stay Mr. Record’s 

administrative appeal, the Labor Commission correctly reasoned 

that “[t]he District Court does not have jurisdiction to stay the 

Commission’s proceedings for an employment discrimination 

claim.” This is correct because the district court’s jurisdiction over 

those proceedings arises only after all administrative remedies 

have been exhausted. But because Mr. Record was just beginning 

to avail himself of those remedies at the time the district court 

attempted to issue the stay, the district court acted without 

jurisdiction, rendering its order void. 

28 UTAH CODE § 34A-5-107(15) (emphasis added). 

29 See id. §§ 34A-5-104(1), 107(1). 

30 See id. § 63G-4-102(1) (stating that UAPA applies to “every 

agency of the state” and “judicial review” of agency action). 

31 Id. § 63G-4-401(2). 

32 Frito-Lay v. Utah Labor Comm’n, 2009 UT 71, ¶ 30, 222 P.3d 55 

(“The exhaustion of administrative remedies requirement 

mandates that the litigant follow all of the outlined administrative 

review procedures prior to a state court having subject matter 

jurisdiction to hear the case.”). 

33 See UTAH CODE § 63G-4-401 to -405. 
ZIONS MANAGEMENT v. RECORD

Opinion of the Court 

12 

¶26 Accordingly, for the purposes of determining whether we 

have jurisdiction over this appeal, we will ignore the district 

court’s attempt to stay the administrative proceedings. Once the 

stay is removed from the district court’s order, the only issue 

before the district court was whether the Arbitration Agreement 

should be enforced. And once the district court issued its Order 

Compelling Arbitration, there was nothing left for the district 

court to do. Thus, under the reasoning of Powell, the district 

court’s order was a “final decision” because it effectively ended 

the controversy between the parties and left no claims pending 

before the district court. We therefore have jurisdiction to hear 

this appeal. 

2. The Availability of Post-Arbitration Remedies Before the 

District Court Does Not Affect the Finality of an Order 

Compelling Arbitration 

¶27 Zions also argues that the district court’s order was not 

final because “the district court . . . retains jurisdiction, under both 

the FAA and [Utah Arbitration Act], to enter post-arbitration 

judgment and to otherwise confirm, vacate, modify or correct the 

arbitration award.” We disagree. 

¶28 Although we stated in Powell that “the [district] court 

may modify or correct an arbitration award before entering a 

judgment on it,”34 the fact remains that in Powell the district court 

had stayed litigation on the underlying claims for negligence and 

medical malpractice. Thus, while arbitration was proceeding, 

those claims remained live before the district court, and thus the 

district court did, in fact, “retain jurisdiction” over those claims, 

which is why we determined that the district court’s order 

compelling arbitration and staying litigation was not final. 

¶29 But here there were no live claims that remained before 

the district court after it issued its order. As demonstrated above, 

the district court’s attempt to stay the administrative proceedings 

was void for lack of jurisdiction, and even though the district 

court may, pursuant to either the FAA or the Utah Arbitration 

Act, “confirm, vacate, or modify” an arbitration award, this fact 

does not affect the finality of an order compelling arbitration 

where no claims remain before the district court after it issues the 

34 2008 UT 19, ¶ 18. 
Cite as: 2013 UT 36 

Opinion of the Court 

13 

order.35 Therefore, we conclude that the district court’s order was 

final and that we have jurisdiction to hear the merits of this 

appeal. 

II. THE DISTRICT COURT ERRED IN ITS INTERPRETATION 

OF THE PARTIES’ ARBITRATION AGREEMENT, WHICH 

UNAMBIGUOUSLY ALLOWS FOR ADMINISTRATIVE 

APPEALS 

¶30 Mr. Record argues that the district court also erred when 

it determined that he was required to submit his discrimination 

claims to arbitration pursuant to the Arbitration Agreement. He 

points to the language of the Arbitration Agreement, which states 

that “binding arbitration, rather than the court system, is the 

process used for pursuing relief beyond the agency.” (Emphasis 

added.) He then argues that this language is unambiguous, and 

that by pursuing an appeal within the Labor Commission, he has 

not sought relief “beyond the agency” and hence is not required 

to arbitrate. Zions, on the other hand, argues that this language is 

subject to multiple interpretations and urges us, pursuant to both 

state and federal policies favoring arbitration, to affirm the district 

court’s order. Because this language is unambiguous, we agree 

with Mr. Record. 

¶31 The Supreme Court has held that under the FAA 

“[a]rbitration is strictly a matter of consent, and thus is a way to 

resolve those disputes—but only those disputes—that the parties 

have agreed to submit to arbitration.”36 In other words, 

35 We note that the United States Supreme Court has reached 

the same decision. In Green Tree Financial Corp.-Alabama v. 

Randolph, the Court reasoned that because the district court had 

dismissed the underlying claims with prejudice, the district court 

had “nothing more . . . to do but execute the judgment.” 531 U.S. 

79, 86 (2000). The Court then concluded: “where, as here, the 

District Court has ordered the parties to proceed to arbitration, 

and dismissed all the claims before it, that decision is ‘final’ 

within the meaning of § 16(a)(3), and therefore appealable.” Id. at 

89. In reaching this conclusion, the Court also noted that the fact 

that the FAA allows the parties to “bring a separate proceeding in 

a district court to enter judgment on an arbitration award once it 

is made (or to vacate or modify it) . . . does not vitiate the finality of 

the District Court’s [decision].” Id. at 86 (emphasis added). 

36 Granite Rock Co. v. Int’l Bhd. of Teamsters, 130 S. Ct. 2847, 2857 

(2010) (citations and internal quotation marks omitted). 
ZIONS MANAGEMENT v. RECORD

Opinion of the Court 

14 

“arbitration is a matter of contract,”37 the interpretation of which 

is “ordinarily a question of state law, which this Court does not sit 

to review.”38 Nevertheless, the Court has cautioned that when 

“applying general state-law principles of contract interpretation to 

the interpretation of an arbitration agreement within the scope of 

the [FAA], due regard must be given to the federal policy favoring 

arbitration, and ambiguities as to the scope of the arbitration 

clause itself [must be] resolved in favor of arbitration.”39

¶32 It is well established in Utah that “[i]f the language 

within the four corners of the contract is unambiguous, the 

parties’ intentions are determined from the plain meaning of the 

contractual language.”40 Zions has failed to show, however, that 

the language in the Arbitration Agreement is ambiguous. Instead, 

Zions focuses almost exclusively on the parties’ intentions in 

entering the Arbitration Agreement, arguing that failure to 

enforce it would cause “substantial delay, expense, duplication of 

effort, and risk of inconsistent results” as well as “unnecessary 

procedural difficulties.” While this may be true, we “will not 

rewrite an unambiguous contract,”41 nor will we “allow the 

parties to change or rewrite their original agreement.”42 

¶33 Zions admits that the Arbitration Agreement expressly 

allows for an employee to initiate administrative proceedings by 

“filing a claim” before a state or federal agency. Zions also 

acknowledges, of course, that the Arbitration Agreement contains 

the language “where permitted by law, binding arbitration, rather 

than the court system, is the process used for pursuing relief 

beyond the agency.” (Emphasis added.) Because Zions has not 

37 AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 

648 (1986) (internal quotation marks omitted). 

38 Volt Info. Scis., Inc. v. Bd. of Trs. of the Leland Stanford Junior 

Univ., 489 U.S. 468, 474 (1989). 

39 Id. at 475–76 (citation omitted). 

40 Cent. Fla. Invs., Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 12, 40 

P.3d 599. 

41 Provo City Corp. v. Nielson Scott Co., 603 P.2d 803, 806 (Utah 

1979). 

42 Ivory Homes, Ltd. v. Utah State Tax Comm’n, 2011 UT 54, ¶ 12, 

266 P.3d 751. 
Cite as: 2013 UT 36 

Opinion of the Court 

15 

shown how this language is ambiguous, whatever the parties’ 

intentions were prior to entering into this Arbitration Agreement 

is irrelevant because “the parties’ intentions are determined from 

the plain meaning of the contractual language.”43 

¶34 Here, the language clearly states that arbitration is 

required only if Mr. Record attempts to obtain relief from sources 

“beyond the agency.” But Mr. Record has not yet done so. He 

filed a discrimination claim with the Labor Commission, and then 

attempted to appeal UALD’s decision on that claim to the Labor 

Commission. Neither action constitutes an attempt to seek relief 

“beyond the agency,” and therefore the district court erred when 

it issued its order compelling arbitration because, under the plain 

language of the Arbitration Agreement, Mr. Record is not 

required to arbitrate his discrimination claims until he seeks relief 

“beyond the agency.” 

¶35 Zions attempts to avoid this result by arguing that Preston 

v. Ferrer44 requires the parties to submit to arbitration once the 

agency “shifts from its role as investigator to impartial arbiter.” 

Zions has misapplied this case, however, since the language of the 

arbitration agreement at issue in Preston, unlike the agreement 

here, did not expressly allow for administrative remedies. Instead, 

the agreement in Preston simply stated that “any dispute . . . 

relating to the terms of [the contract] or the breach, validity, or 

legality thereof” should be arbitrated “in accordance with the 

rules [of the American Arbitration Association].”45 There was no 

language about administrative remedies, nor any language that 

conditioned arbitration on the petitioner’s decision to seek “relief 

beyond the agency.” Therefore, the reasoning in Preston is 

inapplicable. 

¶36 At oral argument, Zions also attempted to rely on both 

state and federal policies that urge us to resolve “ambiguities as to 

the scope of the arbitration clause itself . . . in favor of 

43 Cent. Fla. Invs., Inc., 2002 UT 3, ¶ 12. 

44 552 U.S. 346 (2008). 

45 Id. at 350 (alterations in original) (internal quotation marks 

omitted). 
ZIONS MANAGEMENT v. RECORD

Opinion of the Court 

16 

arbitration.”46 As noted above, however, Zions failed to 

demonstrate how the language at issue here was ambiguous. 

Furthermore, we wish to reaffirm the position we took in Bybee v. 

Abdulla, wherein we stated that “[w]hile there is a presumption in 

favor of arbitration, that presumption applies only when 

arbitration is a bargained-for remedy of the parties as evidenced 

by direct and specific evidence of a contract to arbitrate.”47 We further 

note that state and federal policies favoring arbitration cannot be 

used to defeat the plain language of the parties’ contract, nor can 

they be used to create ambiguities where there are none. Because 

the language of this contract is unambiguous, we reverse the 

district court’s decision to compel arbitration and remand this 

case to the district court for further proceedings consistent with 

this opinion. 

CONCLUSION

¶37 Under the parties’ Arbitration Agreement, Mr. Record 

was not required to submit his discrimination claims to arbitration 

until he sought relief based on those claims “beyond the agency.” 

Because he has not yet pursued relief beyond the Labor 

Commission, the district court erred when it issued its order 

compelling arbitration. We therefore vacate that order and 

remand this case to the district court for further proceedings 

consistent with this opinion. 

46 Volt, 489 U.S. at 476; see also Bybee v. Abdulla, 2008 UT 35, ¶ 

27, 189 P.3d 40 (stating that we have “no quarrel” with the 

presumption that ambiguities be resolved in favor of arbitration). 

47 2008 UT 35, ¶ 27 (emphasis added) (internal quotation 

marks omitted).