Nonsignatory Agents Barred from Enforcing “Parties-Only” Arbitration Clauses
Commentary on Fucci v. First American Title Insurance Company (10th Cir. 2025)

1. Introduction

Fucci v. First American Title Insurance Co., No. 24-4051 (10th Cir. July 22, 2025) addresses whether an escrow agent and its employee—neither of whom signed a purchase agreement—can compel arbitration based on an arbitration clause that applies only to “disputes between the parties.” The underlying dispute arises from dozens of failed tenant-in-common (TIC) real-estate projects in Florida and Ohio promoted by Rockwell Debt Free Properties, Inc. When the projects collapsed, more than fifty investors (the “Plaintiffs”) sued both Rockwell and the escrow professionals at First American Title Insurance Company (“First American”) in federal district court in Utah, alleging fiduciary breaches, fraud and related torts.

First American, which had been designated escrow agent in the written Purchase and Sale Agreements (PSAs) but never executed those documents, moved to compel arbitration relying on the PSAs’ identical arbitration clauses. The district court denied the motion. On appeal, the Tenth Circuit affirmed and, in doing so, crystallised a clear principle: a nonsignatory agent cannot compel arbitration under a “parties-only” clause, and any arguable agency-based right evaporates once the principal waives the clause. The decision harmonises Florida and Ohio contract law with federal arbitration doctrine and consolidates a line of recent Tenth Circuit cases (notably DiTucci) on nonsignatory enforcement.

2. Summary of the Judgment

• No Contractual Party Status. The court held that First American and its employee were not “parties” to the PSAs because they were not signatories, were not listed in the “by and between” language, and made no promises under the agreements.
• No Third-Party Beneficiary Rights. Under both Florida and Ohio law a third-party must be intended—not merely incidental—to benefit. The PSAs’ reference to First American as “escrow agent” was deemed incidental; the agreements’ primary purpose was the purchase of property interests.
• Agency Theory Defeated by Principal’s Waiver. Assuming arguendo that First American was Rockwell’s agent, any authority to invoke arbitration ended when Rockwell’s bankruptcy trustee expressly waived the clause. Agency power terminates upon such revocation.
• Equitable Estoppel Rejected. Even when available, equitable estoppel cannot enlarge the substantive scope of an arbitration clause; here the clause covered only “dispute[s] between the parties,” excluding claims against nonsignatories.
• Outcome. The order denying the renewed motion to compel arbitration was affirmed.

3. Analysis

3.1 Precedents Cited

The panel leaned heavily on federal arbitration jurisprudence and state-law contract principles:

• Arthur Andersen LLP v. Carlisle, 556 U.S. 624 (2009) – confirmed that state contract law governs who may enforce an arbitration agreement.
• Hill v. Ricoh Americas Corp., 603 F.3d 766 (10th Cir. 2010) – restated the axiom that no one can be forced to arbitrate absent agreement.
• Brayman v. KeyPoint Gov’t Solutions, 83 F.4th 823 (10th Cir. 2023) – addressed who is bound by an arbitration clause.
• DiTucci v. First American Title Ins. Co., 2023 WL 382923 (10th Cir. 2023) – earlier, similar case where First American failed to compel arbitration. Fucci builds on that reasoning.
• State authorities: Jackson v. Shakespeare Found., 108 So.3d 587 (Fla. 2013); Taylor v. Ernst & Young, 958 N.E.2d 1203 (Ohio 2011); Morgan Stanley DW Inc. v. Halliday, 873 So.2d 400 (Fla. 4th DCA 2004); West v. Household Life Ins., 867 N.E.2d 868 (Ohio Ct. App. 2007), among others.

Collectively these cases informed the panel’s methodology: apply state law to determine contractual intent, evaluate equitable doctrines narrowly, and preserve the sanctity of party autonomy in arbitration.

3.2 Legal Reasoning

1. Textualism & Plain Meaning. The opinion starts with the PSA language: “Any dispute between the parties will be submitted to binding arbitration.” Because the PSAs define no other “party,” the promise to arbitrate is limited to Rockwell (seller) and each investor (buyer). First American never assented to arbitrate nor received any promise in its favor.
2. Third-Party Beneficiary Doctrine. Both Florida and Ohio require “primary & direct” intent. Naming First American as escrow was, in function, logistical rather than promissory. The court distinguished First American Title v. Barron (Utah Ct. App. 2023) (applying Colorado law) as wrongly conflating incidental operational benefit with intended contractual benefit.
3. Agency and Waiver.
   • Agency confers only derivative rights; an agent cannot exercise greater rights than its principal.
   • Rockwell’s bankruptcy trustee expressly waived arbitration “on behalf of … all agents.” Under Restatement (Third) of Agency §§3.07 & 3.10, actual authority terminates upon revocation.
   • Timing objection rejected: the waiver post-dated First American’s initial motion but pre-dated any court order; therefore, the agent’s authority lapsed before adjudication.
4. Equitable Estoppel Limits. Even when estoppel lets a nonsignatory “step into the shoes” of a signatory, it cannot expand the scope of arbitration. Because the clause is expressly limited to disputes “between the parties,” claims against outsiders remain in court. Florida cases (Fla. Roads Trucking; Beck Auto) and Ohio authority (Miller v. Cardinal Care) reinforce this boundary.

3.3 Impact of the Judgment

Regional and National Significance

• Tenth Circuit Uniformity. Coupled with DiTucci, the decision cements a circuit-level rule: narrow, party-only arbitration clauses are virtually non-enforceable by nonsignatories—even agents—unless the clause itself signals broader intent.
• Drafting Lessons for Transactional Lawyers. Escrow or title firms who desire arbitration must negotiate either (a) a separate escrow agreement with its own arbitration clause, or (b) expanded language in the primary contract (e.g., “including any agents or affiliates”).
• Bankruptcy Practice. The ruling clarifies that a bankruptcy trustee’s express waiver of arbitration, without §363 sale procedures, is effective to bind agents and foreclose arbitration.
• Limiting Equitable Estoppel. Courts will not use estoppel to rewrite or enlarge arbitration promises. This may curb forum-shopping by sophisticated entities attempting to piggy-back on contractual clauses they never signed.

4. Complex Concepts Simplified

• Nonsignatory. A person or entity that did not sign a contract but sometimes tries to enforce (or is forced to comply with) its terms.
• Third-Party Beneficiary. Someone the contracting parties intended—not just incidentally expected—to benefit. Only “intended” beneficiaries can sue (or be sued) on the contract.
• Equitable Estoppel (in arbitration). A fairness doctrine that can prevent a signatory from avoiding arbitration when it sues a nonsignatory for matters intertwined with the contract. Courts apply it cautiously and will not enlarge the contractual clause.
• Waiver of Arbitration. A party can relinquish (waive) its contractual right to arbitrate by words or conduct inconsistent with the right. In bankruptcy, a trustee can waive on behalf of the debtor’s estate.
• Agency Authority. An agent’s power is derivative—it springs from, and ends with, the principal’s instructions or revocation.

5. Conclusion

Fucci v. First American reinforces a vital tenet of arbitration law: consent is paramount. Where the clause is limited to “the parties,” nonsignatories—no matter how intimately involved—cannot compel arbitration. Agency status does not supply independent contractual rights, and any such derivative authority dissolves once the principal relinquishes its own right. Equitable estoppel is no backdoor: it cannot convert a narrow arbitration commitment into a broad one.

For practitioners, the decision is a drafting wake-up call and a litigation roadmap: clear language is king, waiver is powerful, and courts will police the edges of consent with rigor. As the Tenth Circuit continues to rule on nonsignatory enforcement, Fucci will likely serve as the go-to authority for disputes involving escrow agents, title insurers, and other peripheral actors seeking refuge in arbitration clauses they never signed.