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