District Court, Salt Lake Department The Honorable Keith A.
Kelly No. 119901843
Barnard N. Madsen, Aaron P. Dodd, and Peter Reichman,
Attorneys for Appellant
A. Perry, Attorney for Appellee
Michele M. Christiansen authored this Opinion, in which
Judges Ryan M. Harris and Diana Hagen concurred.
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.
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
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 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
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
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.
AND STANDARD OF REVIEW
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 ...