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Federated Capital Corporation v. Abraham

Court of Appeals of Utah

June 21, 2018

Federated Capital Corporation, Appellant,
v.
Arnella M. Abraham, Appellee.

          Third District Court, Salt Lake Department The Honorable Keith A. Kelly No. 119901843

          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 Federated Capital Corporation (Federated) appeals from the district court's grant of summary judgment in favor of Arnella M. Abraham. Because Federated did not present to the district court the issue it raises on appeal, we conclude that Federated waived the challenge. Accordingly, we affirm and remand for the limited purpose of calculating Abraham's attorney fees incurred on appeal.

         BACKGROUND

         ¶2 In August 2011, Federated, a Michigan corporation, brought suit against Abraham, a Texas resident, alleging that she had breached a credit card contract that required her to make payments in Pennsylvania. Specifically, Federated alleged that Abraham had failed to make credit card payments to Federated's predecessor-in-interest totaling $11, 528.59 and that she consequently owed Federated that amount plus approximately five years of interest at 39.64%. 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). The contract also contained an attorney-fee provision.

         ¶3 Abraham filed an answer, in which she asserted, "As an affirmative defense, the defendant alleges that this action fails because of the statute of limitations." Thereafter, Abraham filed a motion for summary judgment, arguing that the cause of action arose in Pennsylvania and that Utah's borrowing statute[1] required the district court to apply Pennsylvania's four-year statute of limitations for breach of contract instead of Utah's six-year statute of limitations. Thus, according to Abraham, Federated's claim was barred because Federated had not filed suit until August 9, 2011, "a date well [past] the four year limitations period for suit on written contracts under Pennsylvania law." Abraham also requested attorney fees under Utah's reciprocal attorney fee statute. See Utah Code Ann. § 78B-5-826 (LexisNexis 2012).

         ¶4 Federated filed an opposition to Abraham's motion for summary judgment, addressing Abraham's statute-of-limitations defense on the merits. Specifically, Federated argued that its claim was not time-barred, because Utah's six-year statute of limitations applied as a result of the Controlling Law & Jurisdiction Clause. Federated did not argue or suggest to the court that Abraham's answer lacked specificity nor did it raise a challenge to the manner in which Abraham had pleaded her affirmative defense.

         ¶5 The district court agreed with Abraham's interpretation of Utah law and the applicability of Utah's borrowing statute, and it granted summary judgment in her favor. The court also awarded Abraham attorney fees pursuant to the reciprocal attorney fee statute. Federated appeals.

         ISSUE AND STANDARD OF REVIEW

         ¶6 On appeal, Federated contends that the district court erred in granting summary judgment in favor of Abraham. Federated specifically asserts that Abraham failed to properly plead her statute-of-limitations defense, and thereby lost the right to pursue that defense. However, Federated did not raise this objection to the district court. Generally, issues that are not preserved are waived, absent a valid exception. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 ("Issues that are not raised at trial are usually deemed waived."); see also State v. Johnson, 2017 UT 76, ¶ 18, 416 P.3d 443 ("A failure to preserve an issue in the trial court generally precludes a party from arguing that issue in an appellate court, absent a valid exception."). Federated concedes that it did not preserve the issue it raises on appeal, but it seeks review under the plain-error exception to the preservation rule. "To obtain relief ...


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