Federated Capital v. Libby

This opinion is subject to revision before final
publication in the Pacific Reporter
2016 UT 41
IN THE
SUPREME COURT OF THE STATE OF UTAH
FEDERATED CAPITAL CORP. DBA
FEDERATED FINANCIAL CORP. OF AMERICA,
Appellant,
v.
CONOR LIBBY DBA CRITTERBOX,
Appellee,
FEDERATED CAPITAL CORP.,
Appellant,
v.
ELENA CHAPA DBA
DELENA MANAGEMENT, INC.,
Appellee.
No(s). 20140208, 20140249
Filed September 6, 2016
On Direct Appeal
Third District, Salt Lake
The Honorable Judge Kate A. Toomey
No(s). 129914062, 129911232
Attorneys:
Michael D. Zimmerman, Linda M. Jones, Beth E. Kennedy,
Salt Lake City, for appellant
Lester A. Perry, James N. Taylor, Salt Lake City, for appellees
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
JUSTICE DURHAM, and JUSTICE PEARCE joined.
ASSOCIATE CHIEF JUSTICE LEE filed a concurring opinion, in which
Justice Himonas joined.
FEDERATED v. LIBBY
Opinion of the Court
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 In 2005, Appellees signed credit card agreements with
Federated Capital Corporation‘s predecessor-in-interest, Advanta
Bank Corporation. The agreements included a forum selection clause
and choice of law provision, ensuring that Utah procedural and
substantive law would govern any dispute under the contract. The
agreements required Appellees to render payment to the address
specified on their periodic billing statements. Each billing statement
identified an address in Philadelphia, Pennsylvania, as the place of
payment. In 2006, Appellees defaulted. And in 2012, Federated
brought suit against Appellees in separate proceedings. The district
court in each proceeding granted summary judgment, concluding
that Utah‘s borrowing statute adopted Pennsylvania‘s four-year
statute of limitations, which barred Federated‘s causes of action.
Federated appealed the district court‘s decision in each case, and we
consolidated the two appeals. Each appeal presents the same issue:
whether an enforceable forum selection clause precludes the
application of Utah‘s borrowing statute.
Background
¶ 2 In 2005, Connor Libby,1 a California resident, and Elena
Chapa,2 a Texas resident (collectively, Appellees), signed identical
credit card agreements (collectively, the Agreement) with Federated
Capital Corporation of America‘s predecessor-in-interest, Advanta
Bank Corporation, a Utah corporation with its principal place of
business in Pennsylvania.3 The Agreement contains a paragraph
titled ―CONTROLLING LAW AND JURISDICTION.‖ That
paragraph includes a choice of law provision that adopts Utah
substantive law to govern the Agreement. The paragraph also
includes a forum selection clause that requires the parties to bring
suit only ―IN THE STATE AND FEDERAL COURTS IN UTAH.‖4
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1 Mr. Libby was sued as a sole proprietor who is doing business
as Critterbox.
2Ms. Chapa was sued as a sole proprietor who is doing business
as Delena Management, Inc.
3Mr. Libby signed the credit card agreement in November 2005.
Ms. Chapa signed an identical agreement in April 2005.
4 The entire provision reads as follows:
(Continued)
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Opinion of the Court
¶ 3 The Agreement allowed Appellees to purchase goods and
services, receive cash advances, and write checks. In return,
Appellees were required to make monthly payments on all debts ―at
the location and in the manner specified on [their] periodic billing
statement[s].‖ The Agreement also noted that ―[p]ayments tendered
to and accepted by us or our agent at a location other than the
address stated on your periodic billing statement are not effective
until received by us at the address specified.‖ Each monthly billing
statement required Appellees to send their payments to an address
in Philadelphia, Pennsylvania, though, in fact, Appellees sent each
payment by electronic fund transfer to Advanta‘s Utah address.
¶ 4 In 2006, Appellees defaulted on their payments. Ms. Chapa
made no payments after August 2, 2006, and owed $21,104.11.
Mr. Libby made no payments after October 31, 2006, and owed
$22,747.30. In 2007, Advanta assigned its interest in Appellees‘
accounts to Federated, a Michigan corporation licensed in Utah.
Nearly six years later, Federated filed separate claims in separate
31. CONTROLLING LAW AND JURISDICTION: This
Agreement shall be governed solely by and interpreted
entirely in accordance with the laws of the State of
Utah, except as (and to the degree that) such laws are
superseded by the banking or other laws of the United
States, regardless of where you reside or where the
Business is located. We process the Account
application, make the decision to open the Account,
and advance credit for you from our Utah offices. You
agree that all terms, conditions, and other provisions
relating to the method of determining the balance upon
which the interest rate or finance charges are applied,
and all other terms of this Agreement, are material to
the determination of the interest rate. YOU CONSENT
TO PERSONAL JURISDICTION IN THE STATE AND
FEDERAL COURTS IN UTAH AND AGREE THAT
ANY LAWSUIT PERTAINING TO THE ACCOUNT
MUST BE BROUGHT ONLY IN SUCH COURTS IN
UTAH, REGARDLESS OF WHO FILES THE SUIT,
AND MAY BE MAINTAINED ONLY IN THOSE
COURTS UNLESS AND UNTIL ANY PARTY ELECTS
ARBITRATION PURSUANT TO THE ARBITRATION
PROVISION IN THIS AGREEMENT.
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FEDERATED v. LIBBY
Opinion of the Court
proceedings against Ms. Chapa and Mr. Libby on August 2, 2012,
and October 4, 2012, respectively.
¶ 5 Appellees individually moved for summary judgment, both
arguing that Utah‘s borrowing statute required the court to apply
Pennsylvania‘s four-year statute of limitations governing contract
disputes, thereby barring Federated‘s claims. The district court
agreed and granted summary judgment in favor of Appellees.
Thereafter, Federated moved for a new trial in each case, and the
district court denied both motions, awarding Appellees attorney fees
under the reciprocal attorney fees statute.5 This sum included
additional fees resulting from Federated‘s motion for a new trial in
each case.
¶ 6 Federated now appeals the district court‘s grant of summary
judgment, arguing that the Agreement‘s forum selection clause
makes the borrowing statute inapplicable to its claims. The cases
were consolidated for appeal, and we retained the cases on appeal to
consider the effect of the Agreement‘s forum selection clause on
Utah‘s borrowing statute.6
Standard of Review
¶ 7 Federated appeals the district court‘s grant of summary
judgment. Summary judgment is appropriate when the evidence
―shows that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.‖7
―Because a summary judgment challenge presents only legal issues,
we review the grant of summary judgment for correctness.‖8 In
addition, this court reviews for correctness ―questions of statutory
interpretation‖9 and ―[t]he district court‘s application of a statute of
limitations.‖10 Here, there are two legal questions before this court:
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5 UTAH CODE § 78B-5-826.
6 The court elected to retain jurisdiction over each case in an
April 21, 2014 order. Additionally, the court consolidated the two
cases in a May 30, 2014 order.
7 UTAH R. CIV. P. 56(a).
8 Aurora Credit Servs., Inc. v. Liberty W. Dev., Inc., 970 P.2d 1273,
1277 (Utah 1998).
9 Turner v. Staker & Parson Cos., 2012 UT 30, ¶ 7, 284 P.3d 600
(citation omitted).
10 Davis v. Provo City Corp., 2008 UT 59, ¶ 9, 193 P.3d 86.
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Opinion of the Court
(1) whether a forum selection clause that fails to explicitly identify
any of Utah‘s statutes of limitations implicitly requires application of
Utah‘s statute of limitations for written contracts, thereby excluding
application of the borrowing statute; and (2) whether Utah‘s
borrowing statute operates to apply a foreign jurisdiction‘s statute of
limitations when the parties could not have brought suit in that
jurisdiction because of an enforceable forum selection clause.
Jurisdiction over this matter is proper pursuant to Utah Code section
78A-3-102(3)(j).
Analysis
¶ 8 Federated raises essentially two arguments on appeal. First,
it claims that the district court erred when it relied on the borrowing
statute to apply Pennsylvania‘s four-year statute of limitations
because the Agreement‘s forum selection clause required the court to
apply Utah procedural law only, including Utah‘s six-year statute of
limitations for written contracts. Second, it asserts that the borrowing
statute applies only where a cause of action that arises in another
jurisdiction is ―not actionable by reason of the lapse of time,‖ and is
thus inapplicable here since it was the forum selection clause that
rendered Federated‘s claims not actionable in Pennsylvania. The
first argument focuses on whether the forum selection clause wholly
excludes the borrowing statute, whereas the second argument
focuses on whether the statute, by its plain language, even applies to
this dispute. We reject both arguments.
¶ 9 Utah‘s borrowing statute requires a court to apply the
limitation period of a foreign jurisdiction when a party‘s ―cause of
action arises in [that] jurisdiction‖ and is ―not actionable‖ there ―by
reason of the lapse of time.‖11 Federated‘s first argument fails
because the Agreement requires that it be governed by all of Utah‘s
laws, both procedural and substantive. Because those laws include
the borrowing statute, the forum selection clause does not preclude
the borrowing statute from applying to Federated‘s claims.
¶ 10 Federated‘s second argument also fails. As a preliminary
matter, Federated did not challenge on appeal the district court‘s
conclusion that its breach of contract causes of action arose in
Pennsylvania. We therefore accept, for purposes of this appeal, the
district court‘s decision on this point. Further, contrary to
Federated‘s contention, the borrowing statute merely requires that a
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11 UTAH CODE § 78B-2-103.
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FEDERATED v. LIBBY
Opinion of the Court
cause of action be ―not actionable‖ in a foreign jurisdiction ―by
reason of the lapse of time,‖ even if it is ―not actionable‖ by some
other independent reason.12 That condition is met here. Thus, we
uphold the district court‘s decision to apply the borrowing statute to
adopt Pennsylvania‘s four-year statute of limitations and bar
Federated‘s claims against Appellees. In addition, we also award
Appellees attorney fees as the prevailing party under Utah‘s
reciprocal fee statute. We address each of these arguments and issues
in order.
I. The Agreement Selects All of Utah‘s Substantive and Procedural
Laws, Which Include the Borrowing Statute
¶ 11 Federated argues that when the parties signed the forum
selection clause, they agreed to be bound by Utah procedural law,
and ―they necessarily agree[d]‖ that Utah‘s six-year statute of
limitations for written contracts13 would govern any dispute
between them. Accordingly, Federated avers that ―the district court
disregarded the forum selection clause and applied Utah‘s
borrowing statute to look to the statute of limitations of a foreign
jurisdiction,‖14 even though the forum selection clause ―renders the
procedural laws of any other state inapplicable.‖ As a result,
Federated claims that the district court ―denied [Federated] the
benefit of its bargain.‖
¶ 12 This argument misconstrues the importance of the forum
selection clause in the context of the broader Agreement and the
relationship between the Agreement and the borrowing statute. The
Agreement contained both a forum selection clause and a choice of
law provision. Between these two contractual provisions, the
Agreement ensured that the entirety of Utah law would govern a
dispute between the parties. Because the borrowing statute is a Utah
law, the Agreement requires that the statute apply when ―[a] cause
of action . . . ar[ose] in [a foreign] jurisdiction.‖15 Consequently, the
forum selection clause does not prevent the borrowing statute from
_____________________________________________________________
12 Id.
13 See Id. § 78B-2-309(2).
14 The district court applied Pennsylvania‘s four-year statute of
limitations applicable to written contracts. See 42 PA. CONS. STAT.
§ 5525(a)(8).
15 UTAH CODE § 78B-2-103.
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Opinion of the Court
applying in this case to adopt Pennsylvania‘s four-year statute of
limitations.
¶ 13 Because a forum selection clause controls where its
signatories may bring suit,16 it binds them to the procedural laws of
the selected forum.17 After all, ―[m]atters of procedure in a contract
action are . . . governed by the law of the forum.‖18 A choice of law
provision, in contrast, selects the substantive law that will govern a
contract dispute. In this case, the Agreement contains both a forum
selection clause and a choice of law provision. The forum selection
clause requires Federated and Appellees to sue ―IN THE STATE
AND FEDERAL COURTS IN UTAH.‖19 The choice of law provision
provides, in relevant part, that the ―Agreement shall be governed
solely by and interpreted entirely in accordance with the laws of the
State of Utah.‖ Failing to identify a single substantive or procedural
law for inclusion or exclusion, these contractual provisions require a
court to apply the entirety of Utah‘s laws, procedural and
substantive. Because the Agreement provided for application of
Utah law and did not expressly exclude the borrowing statute, that
borrowing statute is one of the Utah laws that the parties agreed
would apply to Federated‘s breach of contract claim.
¶ 14 Unlike other statutes of limitations, the borrowing statute
does not impose a specific time limit on a cause of action. Instead, it
prevents a litigant from ―pursu[ing an action] in this state,‖ when
that action would be barred by a shorter limitations period in the
jurisdiction where it arose.20 As the Missouri Supreme Court
_____________________________________________________________
16See Innerlight, Inc. v. Matrix Grp., LLC, 2009 UT 31, ¶¶ 3, 16, 214
P.3d 854.
17 See Trillium USA, Inc. v. Bd. of Cty. Comm’rs, 2001 UT 101, ¶ 15,
37 P.3d 1093.
18Morris v. Sykes, 624 P.2d 681, 684 n.3 (Utah 1981) (emphasis
added).
19Neither party identifies any ambiguities in the forum selection
clause.
20 UTAH CODE § 78B-2-103. The borrowing statute does not
supplant applicable Utah statutes of limitations, but merely applies a
shorter limitations period from a foreign jurisdiction. If the foreign
jurisdiction provides for a longer limitations period, a shorter Utah
statute of limitations would apply to bar a ―cause of action which
arises in another jurisdiction.‖ Id.
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FEDERATED v. LIBBY
Opinion of the Court
persuasively noted, ―[t]he effect of the borrowing statute[] is not to
extend the procedural law of one state into another, but the
borrowing state adopts and makes as its own . . . the statute of the
other.‖21 Thus, when a court relies on Utah‘s borrowing statute, it
does not merely apply a statute of limitations from another
jurisdiction, but borrows or adopts that statute, making that statute a
Utah statute of limitations for purposes of a particular dispute.
¶ 15 In this case, Federated incorrectly argues that it was
―denied . . . the benefit of its bargain‖ when the district court relied
on the borrowing statute to apply Pennsylvania‘s procedural laws,
claiming that the forum selection clause made ―the procedural laws
of any other state inapplicable.‖ This argument overlooks the fact
that the borrowing statute did not merely apply Pennsylvania‘s
shorter statute of limitations, but borrowed that law, making the
four-year period a Utah statute of limitations for purposes of the
dispute between Federated and Appellees. The forum selection
clause straightforwardly requires the Agreement to be governed by
all of Utah‘s laws. The borrowing statute is such a law. The district
court did not deny Federated its bargain, but gave the company
precisely what it bargained for.
¶ 16 In fact, on appeal Federated essentially asks this court to
give it a better deal than it bargained for. As noted previously, the
Agreement selected Utah procedural and substantive law to govern
the dispute. This places Federated and Appellees in the same
position as parties to an oral contract suing in a Utah court under
Utah law. And when parties to an oral contract sue in a Utah court
under Utah law, nothing precludes the district court from applying
the borrowing statute. We will not conclude that the borrowing
statute does not apply here when there is no principled basis to
distinguish parties like Federated and Appellees from other parties
who are governed by the same law in the same forum.
¶ 17 In summary, the Agreement selects Utah procedural and
substantive laws to govern a dispute between the parties. Because
the borrowing statute is a Utah law that adopts a shorter foreign
limitations period, treating it as a Utah limitations period for
purposes of a particular dispute, the forum selection clause does not
preclude the borrowing statute from adopting Pennsylvania‘s four-
year statute of limitations as a Utah statute of limitations for
_____________________________________________________________
Trzecki v. Gruenewald, 532 S.W.2d 209, 211 (Mo. 1976) (emphasis
21
added) (citation omitted).
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Opinion of the Court
purposes of this case. Thus, having concluded that the borrowing
statute was part of the law selected by the parties in their contract,
we turn now to the issue of whether the district court properly
interpreted and applied that statute to bar Federated‘s claims.
II. The Borrowing Statute Bars Federated‘s Breach of Contract
Causes of Action
¶ 18 As shown above, the forum selection clause requires that we
consider how the borrowing statute applies in this case. Utah‘s
borrowing statute reads as follows:
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.22
This statute creates a two-part test. The first part asks whether ―[a]
cause of action . . . ar[ose] in another jurisdiction.‖ The second part
asks whether that cause of action ―is not actionable in the other
jurisdiction by reason of the lapse of time.‖ If both of these elements
are satisfied, a Utah court will adopt that foreign jurisdiction‘s time
limitations, unless the plaintiff can satisfy an exception specified in
the statute—an exception not relevant in this case.
¶ 19 Because Federated does not challenge the correctness of the
district court‘s conclusion as to the first part of this statutory test, we
accept the district court‘s decision on this matter that Federated‘s
breach of contract causes of action against Appellees arose in
Pennsylvania. Further, as to the second part of the test, we conclude
that the borrowing statute applies because Federated‘s claims were
―not actionable . . . by reason of the lapse of time,‖ regardless of
whether those claims were also barred by the forum selection clause.
A. On Appeal, Federated Did Not Argue Whether Its Causes of Action
Arose in Pennsylvania or Utah, Claiming that the Question Was Irrelevant
Because of the Forum Selection Clause
¶ 20 The first element of the borrowing statute looks to whether
―[a] cause of action . . . ar[ose] in another jurisdiction.‖ In its
opposition to summary judgment in each case before the district
court, Federated assumed that its causes of action arose at the place
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22 UTAH CODE § 78B-2-103.
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FEDERATED v. LIBBY
Opinion of the Court
of performance under the Agreement. Yet, Federated reasoned that
because Appellees made each monthly payment electronically to
Advanta in Utah, its causes of action for Appellees‘ defaults under
the Agreement arose in Utah. In both cases, the district court rejected
this argument, noting that Appellees‘ ―performance under the
contract would be deemed effective only when the payments
reached Pennsylvania.‖
¶ 21 On appeal, Federated abandoned its argument that the
claims arose in Utah. Instead, it averred that the district court
improperly ―focused its analysis on where the claims purportedly
‗arose,‘ never recognizing that the question was irrelevant because
the parties agreed in advance to Utah as the forum state for their
claims.‖ Further, in its reply brief, Federated argued that ―the parties
included the forum selection clause to make clear that ‗place of
performance‘ would not govern procedure.‖
¶ 22 Ultimately, at no point on appeal did Federated challenge
the district court‘s conclusion as to where its causes of action arose.
Instead, it simply argued that the forum selection clause made the
borrowing statute analysis of where its causes of action arose
irrelevant. Because Federated did not raise any argument on appeal
about where its causes of action arose, we are not called upon to
review the correctness of the district court‘s conclusion that under
the Agreement Federated‘s breach of contract causes of action
against Appellees arose in Pennsylvania.23 Accordingly, we accept,
for purposes of this appeal, the district court‘s conclusion that
Federated‘s causes of action arose in Pennsylvania and turn to the
second part of the borrowing statute.24
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23 Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d 903 (―In general, if a
defendant has not raised an issue on appeal, [an appellate court]
may not consider the issue sua sponte.‖ (alteration in original)
(citation omitted)). Joseph v. Salt Lake City Civil Serv. Comm’n, 2002 UT
App 254, ¶ 8, 53 P.3d 11 (noting that if a party fails to raise a non-
jurisdictional issue on appeal, a court may not decide the issue sua
sponte).
24 We briefly note that the parties dispute whether the district
court properly interpreted Fin. Bancorp, Inc. v. Pingree & Dahle, Inc.,
880 P.2d 14 (Utah Ct. App. 1994). The district court relied on that
case for the proposition that ―[u]nless the contract states otherwise, a
cause of action for a breach of contract generally arises where the
contract is to be performed.‖ Id. at 17. The district court relied on this
(Continued)
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Opinion of the Court
B. The Borrowing Statute Applies Because Federated’s Causes of Action
Were “Not Actionable by Reason of” Pennsylvania’s Four-Year
Statute of Limitations
¶ 23 After determining that a cause of action arises in another
jurisdiction, Utah‘s borrowing statute requires a court to determine
whether the cause of action ―is not actionable in the other
jurisdiction by reason of the lapse of time.‖25 Federated claims that
[t]he Borrowing Statute applies in limited
circumstances, namely, when a claim arises in another
jurisdiction but cannot be maintained—or ―is not
actionable‖—there ―by reason of the lapse of time.‖ . . .
[Here], Federated‘s claims are not barred in another
jurisdiction ―by reason of the lapse of time.‖ Rather,
they are barred in every jurisdiction except Utah by
reason of the Agreement‘s forum selection clause.
Under a plain language analysis, the district court
erred when it applied the statute and ruled that
Federated‘s claims are time-barred.
In other words, Federated interprets the borrowing statute as
applying when a cause of action is ―not actionable [solely] by reason
of the lapse of time.‖
¶ 24 We do not read the statute in this manner. The statute
unambiguously applies whenever a cause of action is ―not
actionable . . . by reason of the lapse of time,‖ regardless of whether
some independent reason also renders a cause of action ―not
actionable.‖ Even if a defendant had multiple alternative defenses,
one of which is a statute of limitations, we would not conclude that
the claim is no longer ―not actionable‖ by reason of the lapse of time
just because it is also ―not actionable‖ for other reasons. In other
words, an alternative basis for dismissal does not eliminate the
proposition to conclude that the place of performance for payment
under the Agreement was Pennsylvania. Federated argues that
“Pingree is inapplicable‖ ―because the contract there did not contain
a forum selection clause and did not specify the forum state for the
plaintiff‘s action.‖ Because Pingree is relevant to a determination of
where Federated‘s breach of contract causes of action arose—an
issue Federated has not raised on appeal—we do not address it.
25 UTAH CODE § 78B-2-103.
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FEDERATED v. LIBBY
Opinion of the Court
conclusion that a cause of action is not actionable by reason of the
lapse of time.
¶ 25 Federated resists this interpretation of the statute, however,
due to the primary policy behind borrowing statutes. Specifically,
Federated rightly notes that borrowing statutes serve to discourage
forum shopping.26 From this Federated concludes that because the
forum selection clause did not permit the parties to shop for a more
favorable forum in this case, ―the policy reasons for borrowing
statutes support a determination that Utah‘s Borrowing Statute is
inapplicable here.‖ Though forum shopping concerns are not present
here, this fact does not permit us to create an exception not provided
for in the statute.
¶ 26 Generally, the judiciary cannot rewrite a statute it deems
―susceptible of improvement.‖27 Accordingly, when the legislature
fails to supply an exception to a statute‘s application, we will not
rewrite the statute to include one.28 ―[I]t is not [the court‘s]
prerogative to rewrite [the statutory language] or to question the
wisdom, social desirability, or public policy underlying it.‖29 The
Utah Legislature drafted the borrowing statute with a single
exception. That exception renders the borrowing statute inapplicable
where a cause of action, which arose in a foreign jurisdiction,
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26 See Patch v. Playboy Enters., 652 F.2d 754, 756 (8th Cir. 1981)
(noting that borrowing statutes ―prevent[] a plaintiff from gaining
more time to bring an action merely by suing in a forum other than
where the cause of action accrued‖); Miller v. Stauffer Chem. Co., 581
P.2d 345, 348 (Idaho 1978) (noting that borrowing statutes
―discourage forum shopping by requiring the trial court to ‗borrow‘
the statute of limitations of [another] jurisdiction‖).
27Hill v. Nakai, 2013 UT 46, ¶ 26, 311 P.3d 1016 (quoting Badaracco
v. Comm’r, 464 U.S. 386, 398 (1984)).
28 See Amy v. City of Watertown, 130 U.S. 320, 327 (1889) (refusing
to include an exception for a party that eludes service of process,
even though the exception‘s absence appeared to be a legislative
oversight); see also Texas & P. Ry. Co. v. Interstate Commerce Comm’n,
162 U.S. 197, 208 (1896) (―To hold otherwise would be for the
commission to create exceptions to the operation of the statute not
found in the statute, and no other power but congress can create
such exception in the exercise of legislative authority.‖).
29 Salt Lake Child & Family Therapy Clinic, Inc. v. Frederick, 890 P.2d
1017, 1021 (Utah 1995).
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Opinion of the Court
accrued in favor of a resident of this state and has been held by that
resident since the time of its accrual.30 Since the legislature did not
exclude cases, such as this one, where the ability to forum shop is not
present, it would be improper for us to rewrite the statute to include
one now. The statute calls for uniform application absent one narrow
statutory exception.31 Because Federated as a Michigan corporation
cannot satisfy that exception, we must apply the borrowing statute
to bar its causes of action against Appellees.
¶ 27 Each of Federated‘s arguments fail. The borrowing statute
applies. The breach of contract causes of action were rendered ―not
actionable‖ in this case ―by reason of‖ Pennsylvania‘s four-year
statute of limitations. Thus, we hold that the district court rightly
applied Utah‘s borrowing statute in this case and affirm that court‘s
grant of summary judgment in favor of Appellees. Consonant with
this disposition, we also conclude that Appellees should receive their
attorney fees.
III. Appellees Should Receive Their Attorney Fees
¶ 28 Utah‘s reciprocal fee statute permits a court to award
attorney fees to the prevailing party in civil litigation based upon a
contract when the contract provides attorney fees to at least one
party.32 In this case, the Agreement provided attorney fees to
Federated.33 Relying on the reciprocal fee statute, the district court
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30 UTAH CODE § 78B-2-103 (noting that a foreign cause of action
barred by reason of the lapse of time n ―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‖).
31Cf. Ins. Co. of N. Am. v. ABB Power Generation, Inc., 690 N.E.2d
1249, 1252 (N.Y. 1997) (noting that New York‘s borrowing statute
serves the important purpose of ―add[ing] clarity to the law and . . .
provid[ing] the certainty of uniform application to litigants,‖ and
concluding that it must apply even when the parties could not forum
shop).
32 UTAH CODE § 78B-5-826.
33 Paragraph 5 of the parties‘ Agreement provides: ―To the extent
not prohibited by applicable law, you agree to pay all collection
costs, including (but not limited to) attorneys fees of 25% of any
amount we bring a legal claim to collect.‖
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FEDERATED v. LIBBY
A.C.J. Lee, concurring
awarded attorney fees to Appellees in both proceedings below.34 The
awards in each proceeding included those fees incurred to litigate
Federated‘s motion for a new trial.35 Because Appellees prevail on
appeal, we remand this case to the district court for an award of
attorney fees, litigation expenses, and court costs incurred on appeal.
Conclusion
¶ 29 The borrowing statute applies to Federated‘s causes of
action. Because its causes of action arose in Pennsylvania, and that
jurisdiction‘s four-year statute of limitations applicable to contracts
rendered the causes of action ―not actionable,‖ we apply the
borrowing statute to adopt that statute of limitations and bar
Federated‘s claims. Consistent with this disposition of the case, we
award attorney fees to Appellees as the prevailing party and remand
for the district court to determine the appropriate fee award.
ASSOCIATE CHIEF JUSTICE LEE, concurring:
¶ 30 I agree with and thus concur in the majority opinion in full.
Specifically, I agree that Federated Capital‘s cause of action is subject
to a four-year Pennsylvania statute of limitations under our Utah
borrowing statute, Utah Code section 78B-2-103. And I concur in the
court‘s conclusion that Federated‘s claim is time-barred because it
was not filed within the four-year limitations period under
Pennsylvania law.
¶ 31 The majority rightly rejects the two challenges to this
holding advanced by Federated Capital—that the forum-selection
clause in the parties‘ credit agreement dictated the application of the
six-year limitations period under Utah law, and that the same clause
foreclosed the conclusion that the cause of action is ―not actionable
by reason of the lapse of time.‖ I concur in the court‘s analysis on
these issues.
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34 In the Connor Libby litigation, the district court awarded
$11,920.34. In the Elena Chapa litigation, the district court awarded
$9,247.76.
35 In total, the district court required Federated to pay attorney
fees in excess of $38,000. In the Connor Libby litigation, the district
court awarded an augmented attorney fees award of $11,788.40,
totaling $23,709.04. In the Elena Chapa litigation, the district court
awarded total augmented attorney fees of $14,292.12.
14
Cite as: 2016 UT __
A.C.J. Lee, concurring
¶ 32 I write separately, however, to emphasize the limited nature
of the court‘s decision in this case. I note, in particular, that the
court‘s decision follows from a key concession made by Federated
Capital in the course of this litigation—that its ―cause of action
ar[o]se[] in another jurisdiction‖ (Pennsylvania). See supra ¶ 17. And
I would emphasize that this concession takes a threshold question—
of the applicability of the borrowing statute in a case like this one—
off the table.
¶ 33 This is an important question that a court should take up in
a future case, and that should not be deemed to be foreclosed by our
decision today. It is by no means a foregone conclusion that a claim
asserted under a credit agreement like Federated Capital‘s should be
deemed to trigger the borrowing statute. The agreement in question
contains not just a forum-selection clause but also a choice-of-law
clause. See supra ¶ 1. And because the choice-of-law clause dictates
the application of Utah law, it is at least arguable that Federated‘s
claim arises not in Pennsylvania but in Utah.
¶ 34 The borrowing statute‘s ―arises in‖ formulation, after all, is
at least arguably a reference to a choice-of-law principle.36 And the
choice-of-law determination in a case like this one is dictated not by
the common-law inquiry into place of performance or most
significant relationship, but by the choice-of-law clause itself (which
all agree is enforceable).37 In light of the choice-of-law clause, there
can be no question that Utah law controls the disposition of this case.
See supra ¶ 11 (acknowledging that both substantive and procedural
law of Utah controls in this case). And for that reason it is at least
arguable that Federated‘s claim ―arises in‖ Utah and not in ―another
jurisdiction.‖
_____________________________________________________________
36 See Emp’rs Ins. of Wausau v. Ehlco Liquidating Trust, 723 N.E.2d
687, 693 (Ill. App. Ct. 1999) (noting that ―borrowing statutes are
choice of law rules‖ governed by choice of law tests); Bates v. Cook,
Inc., 509 So. 2d 1112, 1114 (Fla. 1987) (asserting that the argument
that a borrowing statute should employ a test distinct from general
conflict-of-law rules has been ―universally assailed‖); Myers v. Cessna
Aircraft Corp., 553 P.2d 355, 366–67 (Or. 1976) (applying choice-of-law
rules to determine where a cause of action arises).
37 See Jacobsen Constr. Co. v. Teton Builders, 2005 UT 4, ¶ 12, 106
P.3d 719 (applying a choice-of-law clause rather than common law
tests).
15
FEDERATED v. LIBBY
A.C.J. Lee, concurring
¶ 35 This question came up at oral argument in this case. And
Federated expressly waived any reliance on the notion that its claim
arises in Utah.38 For that reason I concur in the majority‘s analysis,
which is premised on Federated‘s waiver of any argument that its
claim arises outside of Pennsylvania. Federated‘s waiver is a binding
one. And it forecloses our ability to assess the question I highlight
here.
¶ 36 This issue should be decided in a future case. When the
argument is squarely raised, our courts should decide whether the
borrowing statute‘s ―arises in‖ formulation is a reference to
applicable choice-of-law rules or is dictated simply by the
longstanding ―place of performance‖ test.
¶ 37 I see arguments going both ways on this question. Our
precedent, after all, long ago interpreted the borrowing statute as
incorporating the place of performance test. See Lawson v. Tripp, 95 P.
520, 522–23 (Utah 1908). And it is certainly possible to view the
statute as retaining that test going forward. Presumably that was
Federated Capital‘s view, and why it conceded that its claim arose in
Pennsylvania. But it also seems possible to interpret the statute as
embracing whatever evolving standard our law has adopted for
choosing the governing law. If so, a claim arising under a contract
with an enforceable choice-of-law clause would arise in the state
whose law governs its disposition.
¶ 38 That is a question for another day, however. The majority is
right to decline to reach it here given Federated Capital‘s concession.
I write separately only to highlight what I see as an important issue,
and to state my view that our decision today should not be deemed
to foreclose further analysis of this underlying question in a future
case.
_____________________________________________________________
38 Recording of Oral Argument at 6:35-7:20, Federated Capital v.
Libby, 2016 UT __, __ P.3d __, available at https://perma.cc/XLC8-
26N4 (conceding that Federated was not challenging the district
court‘s use of the place of performance test to determine where the
cause of action arose).
16