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Federated Capital Corp. v. Nazar

Court of Appeals of Utah

June 21, 2018

Federated Capital Corporation, Appellant,
v.
Rebecca Nazar, Appellee.

          Third District Court, Salt Lake Department The Honorable Keith A. Kelly No. 129909968

          Barnard N. Madsen, Aaron P. Dodd, and Peter Reichman, Attorneys for Appellant.

          Lester A. Perry, Attorney for Appellee.

          Judge Michele M. Christiansen authored this Opinion, in which Judges Ryan M. Harris and Diana Hagen concurred.

          CHRISTIANSEN, JUDGE.

         ¶1 The contentions presented in this case are identical to those we address in two factually similar cases also issued today. In Federated Capital Corp. v. Abraham, 2018 UT App 117, we concluded that the appellant waived any objection to the adequacy with which the appellee pleaded a statute-of-limitations defense. And in Federated Capital Corp. v. Deutsch, 2018 UT App 118, we concluded that the appellant had not presented to the district court the legal theory raised on appeal, and we consequently deemed it unpreserved. In the instant case, the same appellant, Federated Capital Corporation (Federated), raises the same claims. Because the filings were functionally the same and the district court hearing was held jointly, the factual background of this case is identical to Abraham and Deutsch. As a result, we reach the same conclusions and therefore affirm. We remand for the limited purpose of calculating appellee Rebecca Nazar's attorney fees incurred on appeal.

         BACKGROUND

         ¶2 Federated, a Michigan corporation, brought suit against Nazar, a Texas resident, alleging that she had breached a credit card contract that required her to make payments in Pennsylvania. Specifically, Federated alleged that Nazar had failed to make credit card payments to Federated's predecessor-in-interest totaling $2, 860.15 and that she consequently owed Federated that amount plus approximately five years of interest at 29.34%. A provision of the contract specified that Utah law applied, that Utah courts were the proper forum, and that the parties consented to Utah courts' jurisdiction (the Controlling Law & Jurisdiction Clause). Nazar filed an answer, asserting that a statute of limitations barred the suit. Nazar then moved for summary judgment, arguing that because the place of performance was Pennsylvania and that state's four-year statute of limitations had already run, Utah's borrowing statute barred the suit. See generally 42 Pa. Cons. Stat. § 5525(a)(8) (2002); Utah Code Ann. § 78B-2-103 (LexisNexis 2012).[1]

         ¶3 Notably, many of the pleadings, documents, and exhibits in this case were functionally identical to those in Abraham and Deutsch. The defendants were all represented by the same counsel, and most of the claims and arguments raised by the parties have identical wording between cases. The defendants' answers all raised the same defenses. And the defendants' motions for summary judgment were also essentially the same.

         ¶4 The district court held a joint hearing regarding the summary judgment motions in the three cases. The court agreed with the defendants' arguments and, as relevant here, granted Nazar's motion. On appeal, Federated first contends that the district court erred by failing to sua sponte recognize that Nazar's answer did not adequately plead a statute-of-limitations defense. Federated also contends that the court erred by applying Utah's borrowing statute so as to import Pennsylvania's statute of limitations and that the district court should have instead applied Utah's six-year statute of limitations for actions founded on contracts. See generally Utah Code Ann. § 78B-2-309 (LexisNexis 2012). Federated's briefing of the first contention is identical to the briefing it presented in Abraham. And its briefing of the second contention is identical to the briefing it presented in Deutsch. It therefore appears that this case combines the contentions raised in Abraham and Deutsch into a single case. Neither party contends that the issues presented together in the instant case differ in any significant way from the issues presented individually in Abraham and Deutsch.[2]

         ANALYSIS

         I. Waiver

         ¶5 Federated first contends that, "[b]y not specifying the statute of limitations by section and reference number," Nazar failed to properly plead her statute-of-limitations defense and thereby lost the right to pursue that defense. The relevant portion of Nazar's answer stated only, "As an affirmative defense, the defendant alleges that the plaintiff's claims are barred by the statute of limitations." Nazar then filed a motion for summary judgment, which included citations to the pertinent statutes of limitations of both states. Federated responded to that motion on its merits, without objecting to the adequacy of the answer.

         ¶6 We rejected Federated's identical claim in Abraham. There, the defendant's answer stated, "As an affirmative defense, the defendant alleges that this action fails because of the statute of limitations." Federated Capital Corp. v. Abraham, 2018 UT App 117, ¶ 3. Like Nazar, the defendant went on to file a motion for summary judgment that identified the applicable statutes of limitations, and Federated responded to that summary judgment motion on its merits. Id. ¶¶ 3-4. Federated did so without objecting to the adequacy of the defendant's answer. Id. ...


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