Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Federated Capital Corp. v. Shaw

Court of Appeals of Utah

June 21, 2018

Federated Capital Corporation, Appellant,
v.
James N. Shaw, Appellee.

          Third District Court, Salt Lake Department The Honorable Denise P. Lindberg No. 139910356

          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 Two of the three 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 issue raised on appeal, and we consequently deemed the issue unpreserved. In the instant case, the same appellant, Federated Capital Corporation (Federated), raises the same two claims. Because the filings and factual background of this case are functionally identical to Abraham and Deutsch, we reach the same conclusions on Federated's first two contentions.

         ¶2 Federated also raises one additional claim regarding appellee James N. Shaw's place of performance under a credit card contract. However, because Federated has failed to address the basis for the district court's ruling as to this claim, Federated has failed to persuade us that the district court's ruling on that claim was incorrect. We affirm and remand for the limited purpose of calculating Shaw's attorney fees incurred on appeal.

         BACKGROUND

         ¶3 Federated, a Michigan corporation, brought suit against Shaw, a Texas resident, alleging that he had breached a credit card contract that required him to make payments in Pennsylvania. Specifically, Federated alleged that Shaw had failed to make credit card payments to Federated's predecessor-in-interest totaling $25, 901.76 and that he consequently owed Federated that amount plus approximately five years of interest at 34.99%. 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). Shaw filed an answer, asserting that a statute of limitations barred the suit. Shaw 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]

         ¶4 Notably, many of the pleadings, documents, and exhibits filed in the district court in this case were functionally identical to those filed in Abraham and Deutsch. Indeed, the defendants were all represented by the same counsel, and most of the claims and arguments raised by the parties were worded identically. The defendants' answers all raised the same defenses. And the defendants' motions for summary judgment were also essentially the same.

         ¶5 The district court held a telephonic hearing regarding Shaw's summary judgment motion. The court agreed with Shaw's arguments and, as relevant here, granted Shaw's motion. Federated appeals, contending (1) that the district court erred by failing to sua sponte recognize that Shaw's answer did not adequately plead a statute-of-limitations defense; (2) that the district court erred by applying Utah's borrowing statute so as to import Pennsylvania's statute of limitations and by not applying Utah's six-year statute of limitations for actions founded on contracts; and (3) alternatively, that the parties modified their original contract and "chose Utah as the place of Shaw's performance" such that his "failure to pay in Utah constitutes a breach of contract 'arising' in Utah subject to 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 virtually 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, with one additional issue presented regarding Shaw's place of performance under the credit card contract. Neither party contends that the first two issues in the instant case differ in any significant way from the issues presented individually in Abraham and Deutsch.

         ANALYSIS

         I. Waiver

         ¶6 Federated first contends that, "[b]y not specifying the statute of limitations by section and reference number," Shaw failed to properly plead his statute-of-limitations defense and thereby lost the right to pursue the defense. The relevant portion of Shaw's answer stated, "As an affirmative defense, the defendant alleges that the plaintiff's claims are barred by the statute of limitations." Shaw also asserted elsewhere in his answer, "As an affirmative defense, the defendant alleges that the claims of the plaintiff are barred by the statute of limitations, which may be the four year limitations period of the Pennsylvania statute for written contracts." Shaw then filed a motion for summary judgment, which included citations to the pertinent statutes of limitations. Federated responded to that motion on its merits, without objecting to the adequacy of the answer.

         ¶7 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 Shaw, 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. ¶ 10. We concluded that, by doing so, Federated had waived any objection predicated on rule 9(i) of the Utah Rules of Civil Procedure.[2] Id. ¶ 11.

         ¶8 In both cases, the answer asserted a statute-of-limitations defense without identifying the applicable statute by section number. In both cases, the defendant filed a motion for summary judgment that did identify the applicable statute. And in both cases, Federated responded to the motion for summary judgment without objecting to the defense's lack of specificity as pleaded in the answer. On appeal, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.