Federated Capital Corporation v. Nazar

2018 UT App 119
THE UTAH COURT OF APPEALS
F EDERATED C APITAL C ORPORATION ,
Appellant,
v.
R EBECCA NAZAR ,
Appellee.
Opinion
No. 20140569-CA
Filed June 21, 2018
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 M ICHELE M. C HRISTIANSEN authored this Opinion, in
which JUDGES R YAN M. HARRIS and DIANA H AGEN 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

Federated Capital Corporation v. Nazar
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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
1. Utah’s borrowing statute provides,
A 	cause 	of 	action 	which 	arises 	in 	another
jurisdiction, and which is not actionable in the
other jurisdiction by reason of the lapse of time,
may not be pursued in this state, unless the cause
of action is held by a citizen of this state who has
held the cause of action from the time it accrued.
Utah Code Ann. § 78B-2-103 (LexisNexis 2012).

Federated Capital Corporation v. Nazar
20140569-CA 	3 	2018 UT App 119
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
2. 	We 	note 	one 	distinction 	for 	the 	sake 	of 	completeness.
Federated’s 	opposition 	to 	Nazar’s 	motion 	for 	summary
judgment, unlike the one in Deutsch, asserted that an exception
to the borrowing statute for citizens of Utah applied. See generally
Federated Capital Corp. v. Deutsch, 2018 UT App 118, ¶ 5 n.2; Utah
Code Ann. § 78B-2-103 (LexisNexis 2012). Federated does not
raise the application of this exception in its briefing on appeal,
and we therefore do not consider it.

Federated Capital Corporation v. Nazar
20140569-CA 	4 	2018 UT App 119
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. ¶ 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. ¶ 11.
¶7 	In both cases, the answer asserted a statute-of-limitations
defense without identifying the applicable statute. 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, Federated’s briefing of this issue is taken

Federated Capital Corporation v. Nazar
20140569-CA 	5 	2018 UT App 119
verbatim from its briefing of the same issue in Abraham (or vice
versa).
¶8 	We see no distinction between these cases, and Federated
does not assert that a distinction exists. We therefore see no
reason to depart from the conclusion we reached in Abraham—
that Federated waived any objection to the adequacy of the
statute-of-limitations defense raised in the answer by replying to
the 	defense 	on 	its 	merits 	during 	the 	summary 	judgment
proceedings.
II. Preservation
¶9 	Federated next contends that “the parties’ choice of law
and forum is dispositive, that the case arose in Utah, and that the
borrowing statute therefore does not apply.” In Federated Capital
Corp. v. Deutsch, 2018 UT App 118, we concluded that Federated
had not presented this specific legal theory to the district court
and had therefore failed to preserve it for appeal. See id. ¶¶ 9–16.
We reach the same conclusion here.
¶10 	Federated’s legal theory on appeal is that, because the
Controlling Law & Jurisdiction Clause specified that the contract
would be “governed by and interpreted entirely in accordance
with the laws of the State of Utah,” the cause of action for
Nazar’s alleged breach of contract arose in Utah. And if the
cause of action arose in Utah, the borrowing statute would be
inapplicable and Utah’s six-year statute of limitations would
apply.
¶11 	In Deutsch, we examined the record and concluded that
Federated had never presented this legal theory to the district
court. See id. ¶ 16. The record here does not differ in any
significant 	way. 	In 	both 	cases, 	the 	defendants 	moved 	for
summary 	judgment 	on 	Pennsylvania 	statute-of-limitations
grounds, and Federated opposed the summary judgment by
asserting that Utah’s statute of limitations applied because the

Federated Capital Corporation v. Nazar
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parties had agreed to be governed by Utah law. The parties
argued the opposing theories before the district court at a joint
hearing. And, on appeal, Federated’s briefing of this issue is
taken verbatim from its briefing in Deutsch (or vice versa). In
short, no relevant arguments were made in this case that were
not made in Deutsch.
¶12 	Because we see no distinction between the instant case
and Deutsch, and because Federated does not assert that one
exists, we reach the same conclusion—that the legal theory now
argued by Federated was not presented to the district court and
thus is not preserved for appeal. See id. ¶¶ 16, 20.
III. Attorney Fees Incurred on Appeal
¶13 	Nazar 	contends 	that 	she 	should 	be 	awarded 	her
reasonable attorney fees and costs incurred on appeal. “Under
Utah’s reciprocal attorney fee statute, courts may award attorney
fees to the prevailing party of a contract dispute so long as the
contract provided for the award of attorney fees to at least one of
the parties[.]”3 Federated Capital Corp. v. Haner, 2015 UT App 132,
¶ 11, 	351 	P.3d 	816; 	see 	also 	Utah 	Code 	Ann. 	§ 	78B-5-826
(LexisNexis 2012). Here, the contract provided for an award of
attorney 	fees 	to 	Federated, 	and 	the 	district 	court 	awarded
attorney fees to Nazar based on the reciprocal attorney fee
statute. “A party entitled by contract or statute to attorney fees
3. Utah’s reciprocal attorney fee statute provides,
A court may award costs and attorney fees to
either party that prevails in a civil action based
upon any promissory note, written contract, or
other writing executed after April 28, 1986, when
the 	provisions 	of 	the 	promissory 	note, 	written
contract, or other writing allow at least one party to
recover attorney fees.
Utah Code Ann. § 78B-5-826 (LexisNexis 2012).

Federated Capital Corporation v. Nazar
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below and that prevails on appeal is entitled to fees reasonably
incurred on appeal.” Haner, 2015 UT App 132, ¶ 19 (quotation
simplified). Nazar has prevailed on appeal, and we therefore
award Nazar her reasonable attorney fees incurred in connection
with this appeal in an amount to be determined by the district
court on remand.
CONCLUSION
¶14 	Because this case presents identical issues as those raised
in Abraham and Deutsch, because the underlying records do not
differ in any significant way, and because Federated does not
distinguish this case from those, we conclude that our holdings
in those cases control. Federated waived its objection to the lack
of specificity in Nazar’s answer and did not preserve a claim that
the causes of action actually arose in Utah.4
¶15 	Affirmed.
4. In light of the similarities between the cases, we also adopt the
analysis 	and 	reasoning 	of 	our 	other 	conclusions 	stated 	in
Abraham and Deutsch.