Accesslex Institute v. Philpot

2023 UT App 21

THE UTAH COURT OF APPEALS

ACCESSLEX INSTITUTE,
Appellee,
v.
JAY PHILPOT,
Appellant.

Opinion
No. 20210596-CA
Filed March 2, 2023

Fourth District Court, Provo Department
The Honorable M. James Brady
No. 199402342

Jay Philpot, Appellant Pro Se
Spencer B. Lythgoe, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.

HARRIS, Judge:

¶1 Jay Philpot borrowed money, in eight separate loan
installments, from Accesslex Institute (Lender) to finance his law
school education, but Philpot did not completely repay the loans.
Many years later, Lender filed suit to collect the unpaid balance.
Philpot’s chief defense to the lawsuit—which defense he
attempted to raise at several different procedural stages—was
that Lender’s lawsuit was untimely and barred by the applicable
statute of limitations. The trial court rejected each of Philpot’s
requests to dismiss the case on timeliness grounds, and later—
after a bench trial—entered judgment in favor of Lender. Philpot
now appeals the denial of his various requests to dismiss the case
on timeliness grounds. We affirm.
Accesslex Institute v. Philpot

BACKGROUND

¶2 Between 2004 and 2007, when Philpot was a law student in
Michigan, he applied for and received eight student loans from
Lender. For each loan, Philpot signed a separate application in
which he stated, among other things, that his permanent
residence was in Utah. In 2009, Philpot defaulted on all eight
loans, and he made his last payment on August 28, 2012. As of
September 2012, the unpaid balance on the loans was $144,136.85.

¶3 Some six years later, on August 27, 2018, Lender 1 filed suit,
in Utah, against Philpot to collect that balance. In August 2019,
Lender’s lawsuit was dismissed without prejudice, for reasons
unclear from this record. A few weeks later, however, Lender filed
another suit—the instant lawsuit—against Philpot to collect the
student loan balance, apparently relying on Utah’s “savings
statute,” a law that allows a plaintiff one opportunity to refile
“within one year” a suit that is dismissed for reasons other “than
upon the merits.” See Utah Code § 78B-2-111(1).

¶4 In its complaint, Lender asserted eight separate claims, all
for breach of a written contract, against Philpot, and sought
recovery of more than $140,000 in damages. Before answering the
complaint, Philpot—at that point represented by counsel—filed a
motion to dismiss, asserting generally that the complaint was
time-barred and that it did not assert sufficient facts to establish
either that Lender was the real party in interest or that it had

1. The 2018 lawsuit was filed by Lender using the name “Access
Group, Inc.” In the instant lawsuit, filed in 2019, Lender used the
name “Accesslex Institute dba Access Group, Inc.” For purposes
of our analysis, we assume that “Accesslex Institute” was doing
business as “Access Group, Inc.,” and therefore that the entity that
filed the 2019 lawsuit is the same entity that filed the 2018 lawsuit.
Philpot makes no argument to the contrary on appeal.

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Accesslex Institute v. Philpot

suffered a breach of contract. The trial court denied the motion, as
well as a post-ruling motion for reconsideration.

¶5 About a year later, now appearing pro se and without
having taken any discovery, Philpot filed a motion for summary
judgment, again asserting that Lender’s complaint should be
dismissed on timeliness grounds. This time, Philpot made the
specific argument that the applicable statute of limitations should
be supplied not by Utah law but, instead, by the law of another
state pursuant to Utah’s “borrowing statute.” See Utah Code
§ 78B-2-103 (“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
. . . .”). In particular, Philpot argued that the applicable limitation
period should be supplied by the law of Pennsylvania, the state
where Lender had its headquarters, and asserted that
Pennsylvania has a four-year (in contrast to Utah’s six-year)
statute of limitations applicable to claims for breach of a written
contract. After oral argument, the trial court denied Philpot’s
motion, concluding that it did not “have th[e] facts” at its disposal
necessary to determine certain important issues—for instance,
when Philpot’s last payment had been made and where Lender’s
cause of action arose—and that Philpot had therefore not carried
his burden of demonstrating entitlement to summary judgment
on his affirmative defense regarding timeliness.

¶6 The case then proceeded to a bench trial. Only one witness
testified at that trial: Lender’s director of loan recovery and
collections (Witness). Witness testified that Lender’s headquarters
are in Pennsylvania, and that the date of Philpot’s last payment
on the loans was August 28, 2012. Witness also testified that, after
Philpot defaulted on the loans in 2009, Lender retained a “third
party collection agency” (Agency) to “service” payment and
collection on the loans, and that any payments Philpot made after
default, including the payment made in August 2012, were made
to Agency rather than to Lender directly. On cross-examination,

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Accesslex Institute v. Philpot

Philpot asked Witness where Agency was “operating from,” and
Witness testified that Agency has “offices nationwide” in
“various locations” and that he “didn’t know where [Agency was]
headquartered,” but he stated that he “believe[d]” that the office
Agency was “working it out of” was “somewhere in California”
but that he couldn’t “be certain.”

¶7 As part of its case-in-chief, Lender offered into evidence
copies of the loan contracts. Those contracts contain no provision
setting forth the place in which the contracts are to be performed
or to which payments are generally to be sent, but they direct
Philpot to send any payments that need “special handling” to an
address in Delaware. And the contracts contain a choice-of-law
provision that indicates the parties’ contractual agreement that
Lender is “located in Ohio” and that states otherwise as follows:

[Philpot’s] application and Loan Agreement will be
entered into in Ohio. [Lender’s] decision on whether
to lend [Philpot] money will be made in Ohio.
CONSEQUENTLY, THE PROVISIONS OF
[PHILPOT’S] LOAN WILL BE GOVERNED BY
FEDERAL LAWS AND THE LAWS OF THE STATE
OF OHIO WITHOUT REGARD TO CONFLICT OF
LAW RULES.

¶8 At trial, Philpot called no witnesses and presented no
evidence, but he did cross-examine Witness. 2 At the conclusion of
the presentation of evidence, Philpot made an oral motion for a
“directed verdict,” again asserting that Lender’s complaint was
barred on timeliness grounds. At one point during the ensuing

2. Philpot tried, unsuccessfully, to introduce impeachment
evidence during his cross-examination of Witness by asking the
court to look up something on Lender’s website. The court
declined that invitation, explaining to Philpot that courts do not
“go out on the internet to search at the request of the parties.”

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Accesslex Institute v. Philpot

argument on the motion, Philpot attempted to lay blame for any
absence of supporting facts on Lender, asserting that he was
“never given dates” and other information by Lender regarding
the facts relevant to his statute of limitations defense. The court
rejected any such argument, pointing out that Philpot bore the
burden of proof on that affirmative defense and had had “the
opportunity to discover” and “the opportunity to depose” yet had
not done any discovery, and therefore the court stated that it was
“not going to hear arguments now that [Lender] somehow
interfered with [Philpot’s] ability to present [his] case.”

¶9 After hearing argument from the parties on Philpot’s
impromptu motion, the court allowed Philpot to file a written
brief in support of the motion and took the matter under
advisement until briefing was complete. In his brief, Philpot
asserted that the proper statute of limitations was Pennsylvania’s
four-year statute, which was applicable to Lender’s Utah lawsuit
by virtue of Utah’s borrowing statute. In its opposition brief,
Lender asserted that Philpot had not carried his burden of
demonstrating, as a matter of law, that Pennsylvania’s four-year
statute of limitations applied to this case. The court then issued a
written decision denying Philpot’s motion, agreeing with Lender
that Philpot had not carried his burden.

¶10 The court then scheduled a hearing for the purpose of
“provid[ing] the parties an opportunity to present closing
arguments if they choose to do so.” On the appointed day,
Lender’s counsel offered a brief closing argument on the merits,
arguing that the evidence presented at the trial was more or less
undisputed and indicated that Philpot had breached his contracts
and that Lender was entitled to recover the amount it sought as
damages. In response, Philpot did not contest Lender’s merits-
based contentions, but instead made further argument about the
borrowing statute and timeliness, asserting that the applicable
statute of limitations should be supplied by, variously, the laws of
Pennsylvania (where Lender was headquartered), Delaware

20210596-CA 5 2023 UT App 21
Accesslex Institute v. Philpot

(where the contracts required payments necessitating “special
handling” to be sent), California (where Agency was perhaps
based), or Ohio (where the contracts indicated Lender was based).
In rebuttal, Lender’s counsel continued to argue—as it had in its
post-trial memorandum opposing Philpot’s motion—that Philpot
had not carried his burden on his affirmative defense, and in
addition argued that Philpot could not prevail if Delaware,
California, or Ohio supplied the applicable statute of limitations,
because some of those states had statutes of limitations as long
as—or longer than—Utah’s, and because some of those states had
“tolling statutes” that Lender asserted prevented suit from being
filed against Philpot in those jurisdictions as long as Philpot was
absent from those jurisdictions.

¶11 A few weeks later, the trial court issued post-trial findings
and conclusions. The court re-addressed Philpot’s timeliness
defense, and again concluded that Philpot had “not met his
burden to show that [Lender’s] cause of action arose in
Pennsylvania” or any other foreign jurisdiction. Because Philpot
had not met his burden, the court applied Utah’s six-year statute
of limitations for claims based upon a written contract, and
concluded that Lender’s claim was timely: the limitation period
began to run on August 28, 2012, when Philpot made his last
payment on the loans; Lender filed the first lawsuit one day before
that six-year period expired; and the instant lawsuit was timely
filed pursuant to Utah’s savings statute. On the merits, the court
concluded that Philpot had breached the written contracts, and
that Lender was entitled to judgment in its favor in the amount of
$144,136.85, “plus interest, costs and attorney fees as provided by
the parties’ contract.” Later, the court entered judgment in
Lender’s favor in the amount of $144,541.85.

ISSUES AND STANDARDS OF REVIEW

¶12 Philpot now appeals the trial court’s orders denying his
various attempts to obtain dismissal of Lender’s lawsuit on

20210596-CA 6 2023 UT App 21
Accesslex Institute v. Philpot

timeliness grounds. In particular, Philpot appeals (a) the court’s
denial of his motion to dismiss, (b) the denial of his motion for
summary judgment, (c) the denial of his post-evidence motion,
and (d) the court’s ultimate post-trial finding that he had not
carried his burden of proof on his affirmative defense. We review
these various challenges under different standards.

¶13 We review a trial court’s decision on a motion to dismiss
“for correctness, granting no deference to the decision of the [trial]
court.” Lewis v. U.S. Bank Tr. NA, 2020 UT App 55, ¶ 8, 463 P.3d
694 (quotation simplified).

¶14 “We will affirm the denial of a motion for judgment as a
matter of law when a review of the evidence in a light most
favorable to the non-moving party demonstrates that reasonable
minds could disagree with the ground asserted for the motion.”
Pinney v. Carrera, 2019 UT App 12, ¶ 20, 438 P.3d 902 (quotation
simplified), aff’d, 2020 UT 43, 469 P.3d 970; accord Arreguin-Leon v.
Hadco Constr. LLC, 2018 UT App 225, ¶ 29, 438 P.3d 25, aff’d, 2020
UT 59, 472 P.3d 927.

¶15 “On appeal from a bench trial, we review the court’s legal
conclusions for correction of error, and we will not disturb the
court’s findings of fact unless they are clearly erroneous.” Bad Ass
Coffee Co. of Hawaii Inc. v. Royal Aloha Int’l LLC, 2020 UT App 122,
¶ 13, 473 P.3d 624 (quotation simplified); see also Kelly v. Timber
Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 23, 507 P.3d 357
(stating that “following a bench trial, we review a trial court’s
legal conclusions for correctness, according the trial court no
particular deference,” and “we review the court’s findings of fact
for clear error, granting due regard to the opportunity of the trial
court to judge the credibility of the witnesses” (quotation
simplified)).

¶16 And because we determine—as discussed below—that the
trial court’s order denying Philpot’s motion for summary

20210596-CA 7 2023 UT App 21
Accesslex Institute v. Philpot

judgment is not here reviewable, we need not concern ourselves
with the standard by which we would review that order.

ANALYSIS

¶17 The issues Philpot raises share a common theme: that
Lender’s suit was untimely and should have been dismissed on
that basis. An argument like this—a defendant’s claim that a
plaintiff’s case was untimely filed—constitutes an affirmative
defense. See, e.g., Barnard & Burk Group, Inc. v. Labor Comm’n, 2005
UT App 401, ¶ 6, 122 P.3d 700 (“Statute of limitations defenses are
affirmative defenses and are waived unless properly raised.”
(quotation simplified)). “An affirmative defense is a defendant’s
assertion of facts and arguments that, if true, will defeat the
plaintiff’s . . . claim, even if all the allegations in the complaint are
true.” State v. Lynch, 2011 UT App 1, ¶ 16, 246 P.3d 525 (quotation
simplified); see also Prince v. Bear River Mutual Ins. Co., 2002 UT 68,
¶ 31, 56 P.3d 524 (stating that an “affirmative defense is a defense
employed to defeat the plaintiff’s claim by raising matters outside
or extrinsic to the plaintiff’s prima facie case”).

¶18 While a plaintiff bears the burden of proving its own
claims, a defendant—at least in civil cases—bears the burden of
proof with regard to affirmative defenses. See Fritsche v. Deer
Valley Ridge at Silver Lake Ass’n of Unit Owners, 2022 UT App 11,
¶ 40, 504 P.3d 761. Because a statute of limitations defense falls
into the category of “affirmative defenses,” it is the defendant
who bears the burden of proof on that defense. See Christiansen v.
Union Pac. R.R. Co., 2006 UT App 180, ¶ 12, 136 P.3d 1266
(“Because the limitations period operates as an affirmative
defense, the defendant has the initial burden of proving that the
limitations period has run.”). Thus, the trial court correctly
determined that Philpot—and not Lender—bore the burden of
proof with regard to Philpot’s statute of limitations defense.

20210596-CA 8 2023 UT App 21
Accesslex Institute v. Philpot

¶19 The court also correctly determined that, if Utah law
supplies the relevant statute of limitations, then Lender’s lawsuit
was timely filed. 3 Lender’s lawsuit alleges breach of a series of
written contracts and, in Utah, the statute of limitations for “any
contract, obligation, or liability founded upon an instrument in
writing” is six years. See Utah Code § 78B-2-309(1)(b). And under
Utah law, that six-year period starts to run “from the date (a) the
debt arose; (b) a written acknowledgement of the debt or a
promise to pay is made by the debtor; or (c) a payment is made
on the debt by the debtor.” Id. § 78B-2-113(1). The trial court made
an unchallenged finding that Philpot made his last loan payment
on August 28, 2012, and Lender filed its initial suit against Philpot
on August 27, 2018, one day prior to the sixth anniversary of
Philpot’s last payment on the loans. And although that initial suit
was dismissed without prejudice, Lender refiled the case just a
few weeks following the first case’s dismissal, thus complying
with Utah’s savings statute. See id. § 78B-2-111(1).

¶20 There is a presumption, applicable in Utah courts, that
Utah statutes of limitations will apply to lawsuits filed in Utah.
See Financial Bancorp, Inc. v. Pingree & Dahle, Inc., 880 P.2d 14, 16
(Utah Ct. App. 1994) (stating that, “as a general rule, Utah’s
statutes of limitations apply to actions brought in Utah”). Thus,
unless the parties demonstrate otherwise, the applicable statute of
limitations for this case—filed by Lender in Utah—will be
supplied by Utah law. And because Philpot bore the burden of
proof on his statute of limitations defense, the burden was on
Philpot to demonstrate that another state’s law should supply the
statute of limitations applicable to Lender’s claims.

3. Indeed, although Philpot challenges the court’s determination
that Utah law supplies the relevant statute of limitations, he does
not challenge the court’s conclusion that if Utah law supplies the
limitation period, then Lender’s lawsuit is timely.

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Accesslex Institute v. Philpot

¶21 In an attempt to shoulder this burden, Philpot
invokes Utah’s “borrowing statute,” a law that constitutes
“[a]n exception to [the general] rule that the law of the
forum governs limitation periods.” Id. at 17. Under the terms of
that statute, “[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.”
Utah Code § 78B-2-103 (emphasis added). “This statute creates a
two-part test.” Federated Cap. Corp. v. Libby, 2016 UT 41, ¶ 18, 384
P.3d 221. Under the first part, a court must consider whether the
applicable cause of action arose in another jurisdiction. Id.; see also
Financial Bancorp., 880 P.2d at 17 (observing that, “in order to
determine the applicability of” the borrowing statute, “we must
first determine” whether the applicable cause of action arose in a
jurisdiction other than Utah). Under the second part, a court must
consider whether, under the laws of that other jurisdiction, the
cause of action would be barred by the applicable statute of
limitations. See Libby, 2016 UT 41, ¶ 18. And because Philpot bore
the burden of proof on his affirmative defense, he bore the burden
of demonstrating both (a) that Lender’s causes of action arose
somewhere other than Utah, and (b) that Lender’s causes of action
would be barred under the laws of the state where the causes of
action arose.

¶22 “Unless the contract states otherwise, a cause of action
for a breach of contract generally arises where the contract is
to be performed.” Financial Bancorp., 880 P.2d at 17. Both
parties assume, in the context of this case, that the
relevant “performance” on the contracts between Philpot
and Lender was Philpot’s payment. And on the question of
where Philpot’s loan payments were to be made, the evidence
in the record is conflicting, to say the least, and permits at
least five possibilities: Pennsylvania, Delaware, Ohio,
California, and Utah. Indeed, the following facts were established
at trial:

20210596-CA 10 2023 UT App 21
Accesslex Institute v. Philpot

• Lender was headquartered in Pennsylvania;

• The loan contracts were silent on place of payment
other than to say that payments requiring “special
handling” were to be sent to an address in Delaware;

• The contracts specified that they were entered into in
Ohio and that the “provisions of” the loans would be
governed by Ohio law;

• Lender, after Philpot’s 2009 default, had retained
Agency, a third-party “servicer,” to collect Philpot’s
payments, and Philpot had made at least some
payments to Agency;

• Agency was “operating from” “offices nationwide” in
“various locations,” but was perhaps “working [this
case] out of” California; and

• Philpot lived in Utah and the case was filed in Utah.

¶23 Based on the facts presented, the trial court ultimately
determined, in several different procedural contexts, that Philpot
failed to carry his burden of demonstrating that Lender’s causes
of action arose in any particular state outside of Utah, and that
Philpot had therefore not met the first part of the borrowing
statute’s two-part test. Philpot challenges these rulings, and we
proceed to examine each of them, in turn, with this legal
background in mind. For the reasons discussed, we perceive no
error in the trial court’s rulings.

A. The Motion to Dismiss Ruling

¶24 Philpot first contends that the trial court erred by denying
his motion to dismiss, in which he asserted that—even taking the
allegations on the face of the complaint as true—Lender had failed
to allege facts sufficient to establish that its complaint had been

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Accesslex Institute v. Philpot

timely filed, that it was the real party in interest, or that it had
suffered a breach of contract. In reviewing a motion to dismiss, a
court must “accept the factual allegations in the complaint as true
and consider them and all reasonable inferences to be drawn from
them in a light most favorable to the plaintiff.” St. Benedict’s Dev.
Co. v. St. Benedict’s Hosp., 811 P.2d 194, 196 (Utah 1991). “A
complaint does not fail to state a claim unless it appears to a
certainty that the plaintiff would be entitled to no relief under any
state of facts which could be proved in support of the claim.” First
Interstate Fin. LLC v. Savage, 2020 UT App 1, ¶ 10, 458 P.3d 1161
(quotation simplified).

¶25 “In order to properly state a claim for breach of contract, a
party must allege sufficient facts, which we view as true, to satisfy
each element” of the claim. See America West Bank Members, LC v.
State, 2014 UT 49, ¶ 15, 342 P.3d 224 (quotation simplified). “The
elements of a prima facie case for breach of contract are (1) a
contract, (2) performance by the party seeking recovery, (3) breach
of the contract by the other party, and (4) damages.” Id. (quotation
simplified). The trial court correctly concluded that Lender set
forth facts sufficient to meet this standard.

¶26 In its complaint, Lender alleged that it agreed to “provide
a student loan to [Philpot] in exchange for [Philpot] making
payments on the loan.” Lender alleged that “student loan funds
were provided to [Philpot] at his request.” Lender further alleged
that Philpot breached the contracts by “failing to make all
payments when due.” And Lender alleged that it had sustained
damages as a result of Philpot’s breaches. Thus, Lender set forth
facts that, if true, could support a claim for breach of contract.

¶27 It is true that Lender did not set forth facts, in its complaint,
from which one could ascertain whether the complaint was timely
filed. But as already noted, an argument that a complaint is time-
barred constitutes an affirmative defense on which the defendant
bears the burden of proof, and therefore a plaintiff is not

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ordinarily required to set forth, in its complaint, facts necessary to
demonstrate that the complaint was timely filed. Indeed, “a
complaint need not anticipate any of a variety of affirmative
defenses, including the statute of limitations, which a defendant
must elect to raise.” Pierucci v. Pierucci, 2014 UT App 163, ¶ 16, 331
P.3d 7. In certain cases, where a complaint does “include[] all
information, including salient dates,” necessary to determine that
the complaint is time-barred, such an argument may be
considered in the context of a motion to dismiss. See Young Res.
Ltd. P’ship v. Promontory Landfill, LLC, 2018 UT App 99, ¶ 18, 427
P.3d 457 (quotation simplified). But where the complaint does not
set forth information sufficient to ascertain that it is time-barred
on its face, the complaint is not subject to dismissal at the motion
to dismiss stage, and the defendant must raise the timeliness
issue, if at all, in a later stage of the proceedings.

¶28 In this case, nothing on the face of Lender’s complaint
indicated that it was untimely filed, and Lender included all of the
factual allegations necessary to support a claim for breach of
contract. Accordingly, the trial court correctly denied Philpot’s
motion to dismiss the complaint.

B. The Summary Judgment Ruling

¶29 Philpot next challenges the trial court’s denial of his motion
for summary judgment, in which Philpot again asserted that
Lender’s complaint should be dismissed on timeliness grounds.
We are, however, unable to review the trial court’s summary
judgment decision in this case.

¶30 Utah case law is clear that “[a] denial of summary
judgment is reviewable following a trial only if it’s based on a
purely legal question or on undisputed facts.” Arnold v. Grigsby,
2018 UT 14, ¶ 15, 417 P.3d 606. “We do not review on appeal . . .
whether a dispute of material fact existed at the summary
judgment stage of a litigation if the trial court denies summary
judgment.” Kerr v. City of Salt Lake, 2013 UT 75, ¶ 29, 322 P.3d 669;

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see also Peterson v. Hyundai Motor Co., 2021 UT App 128, ¶ 36, 502
P.3d 320 (stating that a denial of a motion for summary judgment
“on the basis that there exists a material factual dispute” cannot
be appealed). The reason for this well-established principle is that
a denial of summary judgment does not preclude the parties’
“opportunity to litigate factual disputes at trial” and “it would
serve no legitimate judicial purpose to reach back and overturn a
verdict on the merits based on a litigant’s failure to adduce
evidence in opposition to summary judgment if the relevant
evidence was presented at trial.” Kerr, 2013 UT 75, ¶ 30 (quotation
simplified). Indeed, “the denial of summary judgment on
evidentiary grounds should not ‘become “a bomb planted within
the litigation at its early stages and exploded on appeal.”’” Id.
(quoting Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 10, 215
P.3d 152, which in turn was quoting Holley v. Northrop Worldwide
Aircraft Services, Inc., 835 F.2d 1375, 1377 (11th Cir. 1988)).

¶31 Although “district courts are not required to specify the
grounds on which they deny a motion for summary judgment,”
Hone v. Advanced Shoring & Underpinning, Inc., 2012 UT App 327,
¶ 9 n.6, 291 P.3d 832 (quotation simplified), the court in this case
explained that it denied the motion because it did not “have th[e]
facts” at its disposal necessary to determine that Philpot was
entitled to summary judgment. The court here thus clearly
indicated that the basis for its ruling was factual rather than legal.
Under these circumstances, we cannot review the merits of the
court’s decision to deny Philpot’s summary judgment motion.

C. The “Directed Verdict” Ruling

¶32 Next, Philpot challenges the trial court’s denial of his
impromptu post-evidence motion, in which he again raised
the issue of the timeliness of Lender’s complaint. After
argument and briefing, the court issued a written decision
denying Philpot’s motion, agreeing with Lender that Philpot had
not carried his burden of demonstrating, as a matter of law, that

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Lender’s complaint was untimely. The court made no error in so
ruling.

¶33 Philpot described his motion as one for “directed verdict.”
But motions for “directed verdict,” by definition, are
contemplated only in jury trials. See Bair v. Axiom Design, LLC,
2001 UT 20, ¶ 10, 20 P.3d 388, overruled on other grounds by A.S. v.
R.S., 2017 UT 77, 416 P.3d 465; see also Grossen v. DeWitt, 1999 UT
App 167, ¶ 7, 982 P.2d 581 (“By its terms, a directed verdict under
Rule 50 of the Utah Rules of Civil Procedure contemplates only a
jury trial.”). “In the context of a bench trial, however, where there
is no jury verdict, the directed verdict’s procedural counterpart is
a motion to dismiss.” Grossen, 1999 UT App 167, ¶ 8. In most
instances, the party making this type of motion is the party that
does not bear the burden of proof, and in that context the motion
to dismiss should be granted “when the trial judge finds that the
claimant has failed to make out a prima facie case or when the trial
judge is not persuaded by the evidence presented by the
claimant.” See Bair, 2001 UT 20, ¶ 12 (quotation simplified)
(referencing rule 41(b) of the Utah Rules of Civil Procedure).

¶34 But in this instance, Philpot was moving for “directed
verdict” on his own affirmative defense, a matter on which he
bore the burden. In that context, the motion looks more like one
for summary judgment: the movant is contending that, even
though it bears the burden of proof, the evidence has come in in
such one-sided fashion that no reasonable factfinder could
possibly rule in favor of the non-movant on the relevant issue, and
that judgment should enter in the movant’s favor as a matter of
law. See Nay v. General Motors Corp., GMC Truck Div., 850 P.2d
1260, 1264 (Utah 1993) (explaining that “both summary judgment
and directed verdicts require that no questions of material fact
exist and that the moving party be entitled to judgment as a matter
of law”); see also Liley v. Cedar Springs Ranch Inc., 2017 UT App 166,
¶ 23, 405 P.3d 817 (“A court may grant a directed verdict motion
if a party has been fully heard on an issue during a jury trial and

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the court finds that a reasonable [factfinder] would not have a
legally sufficient evidentiary basis to find for the party on that
issue.” (quotation simplified)). And as already noted, “we will
affirm the denial of a motion for judgment as a matter of law when
a review of the evidence in a light most favorable to the non-
moving party demonstrates that reasonable minds could disagree
with the ground asserted for the motion.” Pinney v. Carrera, 2019
UT App 12, ¶ 20, 438 P.3d 902 (quotation simplified), aff’d, 2020
UT 43, 469 P.3d 970.

¶35 In the brief he filed in support of his motion, Philpot
invoked Utah’s borrowing statute, and asserted that Lender’s
cause of action arose in Pennsylvania. In this motion, Philpot did
not assert that any other state’s law supplied the statute of
limitations; instead, he focused entirely on Pennsylvania.

¶36 In ruling on Philpot’s motion, the trial court applied the
proper approach in assessing the applicability of Utah’s
borrowing statute—that is, it began by asking whether
Lender’s cause of action arose in a jurisdiction other than Utah.
See Financial Bancorp, Inc. v. Pingree & Dahle, Inc., 880 P.2d 14, 17
(Utah Ct. App. 1994) (stating that, “in order to determine the
applicability of” the borrowing statute, “we must first determine”
whether the applicable cause of action arose in a jurisdiction
other than Utah). Here, the court noted that the only person
who testified at trial was Witness, and that “[a]lthough [Philpot]
cross-examined [Witness],” he did not present any evidence of
his own and he “did not identify or refer to any testimony or
exhibit that establishe[d] where the present cause of action
arose o[r] where the contract is to be performed.” In particular,
the court noted that “[t]here has been no evidence of where
payments were made, or if [Philpot] was instructed to make
payments at any specific location.” In the end, the court ruled that
the meager evidence that was offered—that Lender “does not
transact business in Utah, that its home office is in Pennsylvania
and that [Agency] had offices nationwide”—was simply

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Accesslex Institute v. Philpot

“insufficient to establish where the contract is to be performed.”
Accordingly, the court concluded that Philpot had not carried his
burden of demonstrating, as a matter of law, that Lender’s cause
of action arose in Pennsylvania. We discern no error in this
determination.

¶37 When the evidence presented at trial—such as it is—on the
question of where Lender’s cause of action arose is viewed in the
light most favorable to Lender, it is clear that “reasonable minds
could disagree with the ground asserted for the motion.” See
Pinney, 2019 UT App 12, ¶ 20 (quotation simplified). On this
evidence, a factfinder could reasonably conclude that the
evidence was not strong enough to establish that Lender’s cause
of action arose in Pennsylvania. In particular, a factfinder could
reasonably determine that Philpot had failed to carry his burden
on that point. As the trial court noted, the evidence to which
Philpot pointed failed to definitively establish where payments
were to be made, or actually were made. And there was some
indication that at least three additional states (Delaware,
California, and Ohio) could have potentially been involved.
Under these circumstances, the trial court did not err when it
denied Philpot’s motion for judgment as a matter of law on his
affirmative defense.

D. The Post-Trial Ruling

¶38 Finally, Philpot challenges the trial court’s post-trial
findings and conclusions, in which the court concluded that
Philpot had “not met his burden to show” that Lender’s cause of
action arose in any state other than Utah, and therefore
determined that “[t]he applicable statute of limitations is the Utah
statute of six years.” The conclusion we reached in the preceding
section—that a reasonable factfinder could have concluded that
Philpot had failed to carry his burden of proving where Lender’s
cause of action arose—informs our conclusion in this section too:

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Accesslex Institute v. Philpot

the trial court’s post-trial ruling precisely to that effect, made as a
factfinder, was not erroneous and therefore not subject to reversal.

¶39 After the court denied Philpot’s post-trial motion, it held a
hearing to give the parties an opportunity to present closing
arguments. At that hearing, Philpot did not address Lender’s
merits-based contentions, but instead renewed his argument that
Lender’s claims were untimely, and urged the trial court to find
that Lender’s cause of action arose in a jurisdiction other than
Utah. This time, though, he did not limit his argument just to
Pennsylvania; instead, he asserted that Lender’s cause of action
might have arisen in Pennsylvania, California, Delaware, or Ohio.
But he was, of course, referencing the same evidence that he
referenced during the briefing and argument on his post-trial
motion: the evidence presented at trial.

¶40 After considering that evidence and the parties’ closing
arguments, the court made written findings of fact and
conclusions of law. The court engaged in a legal analysis similar
to the one it had undertaken in connection with the post-trial
motion, but this time it did so as factfinder. It applied Utah’s
borrowing statute, and addressed the issue of whether Lender’s
cause of action arose in a jurisdiction other than Utah. It examined
the very same evidence it examined in connection with the post-
trial motion, and concluded that Philpot had “not met his burden
to show that the cause of action arose in Pennsylvania” or any
other state outside Utah, and therefore Utah’s six-year statute of
limitations should apply.

¶41 We address the post-trial ruling separately from the ruling
on Philpot’s post-trial motion because of the potentially different
standard we must apply. “The appropriate standard of review for
a lower court’s decision is dependent upon the nature of the
issue,” and thus “a key question is whether the trial court’s
decision qualifies as a finding of fact, a conclusion of law, or a
determination of a mixed question of law and fact.” Randolph v.

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Accesslex Institute v. Philpot

State, 2022 UT 34, ¶ 17, 515 P.3d 444 (quotation simplified).
“Findings of fact typically entail the empirical, such as things,
events, actions, or conditions happening, existing, or taking place,
as well as the subjective, such as state of mind,” and a trial court’s
“factual determinations enjoy a high degree of deference and are
overturned only when clearly erroneous.” Id. ¶ 18 (quotation
simplified). A trial court’s conclusions of law, by contrast, are
reviewed non-deferentially. Id. ¶ 19. But “mixed questions of law
and fact fall somewhere in the twilight between deferential review
of findings of fact and searching reconsideration of conclusions of
law.” Id. ¶ 20 (quotation simplified).

¶42 The parties have not provided briefing on the question of
whether a trial court’s determination that a burden of proof has
not been met is a factual finding, a legal conclusion, or a mixed
question of law and fact. But in this case, we need not tarry over
this issue, because regardless of the level of review we apply to
the trial court’s determination, we see no error in it.

¶43 If it is a factual finding, we would review it deferentially,
and would have no trouble concluding that the court’s post-trial
findings are free of any clear error. But even if it is a legal
conclusion or a mixed question that is more law-like than fact-like,
we would nevertheless affirm, on the basis that the court’s
decision is not erroneous. As already noted, at least four states
(other than Utah) were discussed at trial, but no definitive
evidence was introduced indicating that Lender’s cause of action
arose in any one of them. Lender was headquartered in
Pennsylvania, but there was no evidence that it had asked Philpot
to perform the contracts there or that Philpot had actually sent any
payments there. One provision of the contracts referenced at least
some payments potentially going to an address in Delaware, but
there was no evidence that Philpot had actually sent any
payments there. Philpot’s most recent payments had been made
to Agency, not to Lender directly, but the evidence regarding
where those payments had actually been sent was vague. And the

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Accesslex Institute v. Philpot

contracts themselves spoke of Ohio as the place where the
contracts had been entered into, but there was no evidence that
any payments had ever been sent there either.

¶44 Faced with this conflicting and rather spare evidentiary
record, we perceive no error in the court’s determination that
Philpot had failed to carry his burden of proving that Lender’s
cause of action arose in any particular state other than Utah. The
court then correctly built upon that determination by applying the
general rule—applicable whenever the cause of action does not
arise in another state—that Utah’s statute of limitations should
apply. On that basis, the court deemed Lender’s lawsuit timely,
and on this record that ruling was not erroneous.

CONCLUSION

¶45 We perceive no error in any of the trial court’s various
determinations that Philpot had not carried his burden of
demonstrating that Lender’s complaint was untimely.
Accordingly, we reject Philpot’s appellate arguments, and affirm
the trial court’s judgment in favor of Lender.

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