Freight Tec Management v. Chemex

2021 UT App 92THE UTAH COURT OF APPEALS
FREIGHT TEC MANAGEMENT GROUP INC.,
Appellee,
v.
CHEMEX INC.,
Appellant.
Opinion
No. 20200096-CA
Filed August 26, 2021
Second District Court, Farmington Department
The Honorable David J. Williams
No. 170700611
Brennan H. Moss, Attorney for Appellant
Stevan R. Baxter and Chase B. Ames,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGE RYAN M. HARRIS and SENIOR JUDGE KATE APPLEBY
concurred.1
ORME, Judge:
¶1 Freight Tec Management Group, Inc. (Freight Tec) sued
Chemex, Inc. for breach of contract after Chemex refused to pay
for Freight Tec’s services in arranging interstate transportation of
two freight loads on Chemex’s behalf. Chemex counterclaimed,
asserting that a prior load Freight Tec had arranged to transport
never arrived at its intended destination. Days before the close of
fact discovery, Freight Tec moved for summary judgment on its
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
Freight Tec v. Chemex
claim and on Chemex’s counterclaim. Chemex filed two motions
for an extension of time to respond. The district court denied
both motions for extension and later granted summary judgment
in Freight Tec’s favor on all claims. The court further held that
Freight Tec was contractually entitled to recover the attorney
fees and costs it incurred in pursuing its breach of contract claim
against Chemex and in defending against Chemex’s
counterclaim.
¶2 Chemex appeals, arguing that the court exceeded its
discretion in denying its motions for extensions of time. It
further contends that the court erred in concluding, on summary
judgment, that federal law preempted four of its five claims and
in later awarding Freight Tec the attorney fees it incurred in
defending against Chemex’s counterclaim. We hold that the
court acted within its discretion when it denied Chemex’s
motions for extension. And because Chemex failed to respond to
the summary judgment motion below, we hold that it failed to
preserve its challenges to the court’s grant of summary judgment
on appeal. Lastly, we affirm the court’s award of attorney fees
and award Freight Tec attorney fees incurred on appeal.
BACKGROUND2
¶3 Freight Tec is an interstate property broker operating
under the authority of the Federal Motor Carrier Safety
Administration. “[I]t arranges for one or more qualified motor
carriers to physically pick up, transport, and deliver” freight for
2. “In reviewing a district court’s grant of summary judgment,
we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party and recite the
facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,
328 P.3d 880 (quotation simplified).
20200096-CA 2 2021 UT App 92Freight Tec v. Chemex
its shipping customers. In 2013, Chemex, which is in the business
of “wholesale plastics,” signed and submitted a credit
application so that Freight Tec could perform brokerage services
for Chemex on credit. Freight Tec approved the credit
application and began brokering freight for Chemex.
¶4 In the credit application, Chemex agreed
that any and all claims for loss or damage to cargo
or theft of cargo and any claims for delay in
delivery of freight will be directed to and asserted
directly against the carriers arranged by Freight
Tec. No such claims will be asserted against Freight
Tec, and Freight Tec, who is acting in all respects
pertaining hereto as an interstate property broker,
will not be liable for any such claims.
The credit application also stated that in addition to agreeing to
the provisions contained within its four corners, “Applicant
agrees and accepts each of the Terms and Conditions found on
the Freight Tec website,” followed by the website’s internet
address. Those Terms and Conditions similarly stated that
Freight Tec, “being a broker, has no liability to any person or
entity for any loss of or damage to any such freight and that
[Freight Tec] has no liability to any person or entity for any delay
in delivery of such freight,” and that the applicant agrees “to
look solely to any carrier arranged by [Freight Tec] to transport
any subject freight for recovery of any loss of or damage to such
freight or delay in delivery of such freight.” Nevertheless, the
Terms and Conditions stated that Freight Tec “may, at [its] sole
option, assist [Applicant] or others in pursuing claims for loss of
or damage to freight or delay in delivery of freight with the
carrier.”
20200096-CA 3 2021 UT App 92Freight Tec v. Chemex
¶5 Concerning payment and any attorney fees and court
costs incurred in collecting on amounts owed, the credit
application provided,
Any such charges not paid to Freight Tec within
thirty (30) days from the date of an invoice shall
accrue interest at the rate of 1.5% per month. It is
further agreed that the Applicant shall pay any
collection expenses, including, but not limited to,
attorneys fees and court costs, that may become
necessary to effect collection from Applicant . . . .
The Terms and Conditions likewise provided for an interest rate
of 1.5% per month on unpaid invoices and stated that the
applicant will be responsible “for any and all costs incurred by
[Freight Tec] in collecting the amounts owing, including, but not
limited to, reasonable attorney fees.”
¶6 On July 6, 2016, Chemex requested that Freight Tec
arrange transportation of a load from Houston, Texas, to Winter
Haven, Florida (the Winter Haven load). That same day, Freight
Tec entered a broker-carrier agreement with USA Logistics, Inc.,
in which USA Logistics agreed to transport one or more loads,
arranged by Freight Tec. Freight Tec then engaged USA Logistics
to transport the Winter Haven load to its intended destination.
USA Logistics’ records indicated that the Winter Haven load
arrived in Winter Haven, Florida, on July 8, 2016, around 8:30
a.m., but it did not have a customer-signed proof of delivery
form. On July 20, Freight Tec invoiced Chemex in the amount of
$1,900 for its brokerage services on the Winter Haven load. In
August, Chemex paid that invoice and also separately paid USA
Logistics for freight charges.
¶7 A few months later, Freight Tec arranged transportation
of two additional loads on Chemex’s behalf: the first from Troy,
North Carolina, to Jacksonville, Florida (the Jacksonville load),
20200096-CA 4 2021 UT App 92Freight Tec v. Chemex
and the second from Oyster Creek, Texas, to Birmingham,
Alabama (the Birmingham load). Both shipments arrived on
time and in good condition. In November, Freight Tec submitted
a $1,000 invoice to Chemex for its brokerage services on the
Jacksonville load and a $1,150 invoice for its services on the
Birmingham load. Chemex refused to pay either invoice. Instead,
in December, Chemex demanded $19,180.02 from Freight Tec,
claiming that the Winter Haven load had never been delivered.
¶8 Based on Chemex’s representations and the lack of a
customer-signed proof of delivery form, Freight Tec exercised its
option under the Terms and Conditions to sue USA Logistics for
the allegedly undelivered Winter Haven load. In March 2018,
after USA Logistics provided proof to Freight Tec’s satisfaction
that the Winter Haven load had indeed been delivered, Freight
Tec dismissed USA Logistics from the suit and amended its
complaint to name Chemex as a defendant, alleging breach of
contract relating to Chemex’s refusal to pay for the Jacksonville
load and the Birmingham load.3 Chemex counterclaimed,
alleging breach of contract, negligence, negligent
misrepresentation, conversion, and breach of fiduciary duty
against Freight Tec.
¶9 On August 3, 2018, Chemex served Freight Tec with
discovery requests, to which Freight Tec responded on
September 7. On November 28, Freight Tec moved for summary
judgment on its breach of contract claim against Chemex and on
3. Freight Tec also named the consignees of the Jacksonville load
and the Birmingham load as defendants in its amended
complaint. One consignee never appeared, resulting in entry of
default judgment against it, and the district court granted
Freight Tec’s later motion to dismiss its claims against the other
consignee, with prejudice.
20200096-CA 5 2021 UT App 92Freight Tec v. Chemex
Chemex’s counterclaim. Fact discovery closed approximately
one week later, on December 3.
¶10 On December 12, the day its opposition to Freight Tec’s
motion for summary judgment was due, Chemex’s counsel
emailed Freight Tec’s counsel requesting an extension until
December 21. Chemex did not mention Freight Tec’s discovery
responses in its request. Freight Tec agreed to the extension. On
December 19, two days before its summary judgment response
was now due, Chemex sent a letter to Freight Tec stating that
while preparing its opposition to the summary judgment
motion, “it became apparent that [it was] unable to provide a
complete response due to [alleged] deficiencies in” Freight Tec’s
discovery responses. Freight Tec responded the next day,
offering to meet and confer via telephone but stating that “all
admissions and denials stand as stated and all documents
responsive to [Chemex’s] requests have been produced.”
¶11 On the day Chemex’s summary judgment response was
due, it asked the district court for an extension of time pursuant
to rule 6(b)(1)(A) of the Utah Rules of Civil Procedure (the First
Motion), alleging that Freight Tec “refused to provide important
information and documents to Chemex that directly relate to its
claims in this case.” On April 1, 2019, following argument, the
court denied the First Motion on the grounds that Chemex had
not demonstrated good cause and that Chemex had failed to
avail itself of the proper procedural avenue for such situations
under rule 56(d) of the Utah Rules of Civil Procedure.
¶12 Almost two weeks later, Chemex filed another motion for
an extension (the Second Motion), this time under rule 6(b)(1)(B)
of the Utah Rules of Civil Procedure. The court denied the
Second Motion, noting that because Chemex had failed to
demonstrate good cause in the First Motion, it also “failed to
show entitlement to relief under Rule 6(b)(1)(B).” Furthermore,
the court determined that Chemex was not entitled to an
20200096-CA 6 2021 UT App 92Freight Tec v. Chemex
extension under rule 6(b)(1)(B) because it had also failed to show
excusable neglect.
¶13 Given its denial of both motions for extension, the court
stated that “any opposition to [Freight Tec’s] Motion for
Summary Judgment will not be considered.”4 But, the court
continued, “This ruling does not result in the automatic grant of
summary judgment, . . . and the Court will consider the
arguments raised in the Motion for Summary Judgment.” See
Pepperwood Homeowners Ass’n v. Mitchell, 2015 UT App 137, ¶ 6,
351 P.3d 844 (“[S]ummary judgment may not be entered against
the nonmoving party merely by virtue of a failure to oppose; the
rules of civil procedure allow entry of summary judgment
against a defaulted party only ‘if appropriate.’”) (quoting Utah
R. Civ. P. 56(e)).
¶14 The court granted summary judgment in Freight Tec’s
favor on all claims. On Freight Tec’s claim for breach of contract,
the court held that “[b]ased on the undisputed material facts,
Chemex breached the contract in failing to pay Freight Tec all
4. After the district court denied both motions for extension but
before it entered summary judgment in Freight Tec’s favor,
Chemex asked the court to take judicial notice that, according to
“Internet Archive, a non-profit digital library that regularly
archives internet webpages,” the Terms and Conditions to which
Chemex allegedly agreed did not appear on Freight Tec’s
website until 2015—approximately two years after it signed and
submitted the credit application. The court declined to take the
requested judicial notice because “Freight Tec ha[d] provided
the Court evidence that the URL for the Terms and Conditions
existed as far back as 2013” and because, “on its website, Internet
Archive does not guarantee the accuracy or authenticity of the
information” it provides.
20200096-CA 7 2021 UT App 92Freight Tec v. Chemex
amounts owed under the [credit application] for Freight Tec’s
services related to the [Jacksonville load].”5 Accordingly, the
court ordered Chemex to pay $1,000 plus interest as well as
attorney fees and costs.
¶15 Turning next to Chemex’s counterclaim, the court held
that the Federal Aviation Administration Authorization Act (the
FAAAA) expressly preempted Chemex’s claims for negligence,
negligent misrepresentation, and breach of fiduciary duty
“because these claims relate to and affect a broker’s ‘price, route,
or service . . . with respect to the transportation of property.’” See
49 U.S.C. § 14501(c)(1). The court further held that another
federal statute, known as the Carmack Amendment, see id.
§ 14706, impliedly preempted Chemex’s claim for conversion
because it “provides the exclusive remedy for cargo claims” and
“covers claims against interstate freight brokers like Freight
Tec.” On Chemex’s remaining claim for breach of contract, the
court held that “[b]ased on the explicit terms of the [credit
application and the Terms and Conditions], Chemex cannot hold
Freight Tec liable for any claims related to the loss or damage of
cargo and all such claims must be directed at [USA Logistics].”
Lastly, based on the credit application, which “Chemex admitted
that it agreed to . . . in its pleadings,” the court granted Freight
Tec “all attorney fees and costs incurred” in defending against
Chemex’s counterclaim.
¶16 During the subsequent hearing to calculate the attorney
fees award, Chemex did not challenge the reasonableness of the
amount Freight Tech was requesting. Instead, it argued that
under the credit application, Freight Tec was contractually
limited to recovering attorney fees and costs incurred only in
5. It does not appear that the district court addressed Chemex’s
failure to pay the $1,150 invoice on the Birmingham load, but
this issue is not before us on appeal.
20200096-CA 8 2021 UT App 92Freight Tec v. Chemex
pursuing its breach of contract claim against Chemex and that
Freight Tec was not entitled to fees associated with defending
against Chemex’s counterclaim. The court rejected this
argument, ruling that Freight Tec was entitled to recover fees
and costs associated with defending against the counterclaim
because the parties’ claims were “inextricably intertwined.” The
court stated that although “Chemex’s counterclaims rested on
several legal theories[,] . . . all were asserted to defend against or
counter Freight Tec’s breach of contract claim and all involved a
common core of facts.” Accordingly, the court awarded Freight
Tec $21,728 in attorney fees and $658.39 in court costs.
¶17 Chemex appeals.
ISSUES AND STANDARDS OF REVIEW
¶18 Chemex raises several issues on appeal. We first address
Chemex’s claim that the district court exceeded its discretion
when it denied Chemex’s motions for extensions of time.
Because the decision to grant or deny a motion for extension is
discretionary, see Williams v. Department of Corr., 2016 UT App
156, ¶ 28, 380 P.3d 340, we will not reverse the court’s decision
“absent an erroneous conclusion of law or where there is no
evidentiary basis for the court’s ruling,” Dahl v. Dahl, 2015 UT
79, ¶ 63, 459 P.3d 276 (quotation simplified). See R4 Constructors
LLC v. InBalance Yoga Corp., 2020 UT App 169, ¶ 7, 480 P.3d 1075(“We review a court’s decision on extending . . . time . . . for an
abuse of discretion, reversing only if there is no reasonable basis
for the district court’s decision.”) (quotation simplified).
¶19 Chemex also challenges the grant of summary judgment
to Freight Tec, arguing that the court erred in holding that
federal law preempted Chemex’s claims and that “Chemex was
bound by the Terms and Conditions presented by Freight Tec.”
Ordinarily, “we review a district court’s grant of summary
20200096-CA 9 2021 UT App 92Freight Tec v. Chemex
judgment for correctness and afford no deference to the court’s
legal conclusions.” Jones v. Farmers Ins. Exch., 2012 UT 52, ¶ 6,
286 P.3d 301 (quotation simplified). But we conclude that the
court did not exceed its discretion in denying Chemex’s motions
for extensions of time, see infra section I.B, and Freight Tec’s
motion for summary judgment stood unchallenged below.
Accordingly, as discussed in more detail in section II.A, Chemex
did not preserve its challenge to the district court’s summary
judgment ruling and cannot use this appeal to make the
arguments it might have made in a memorandum it never filed
in the district court.
¶20 Lastly, Chemex challenges the court’s award of attorney
fees to Freight Tec. “Whether attorney fees are recoverable in an
action is a question of law, which we review for correctness.”
UDAK Props. LLC v. Canyon Creek Com. Center LLC, 2021 UT App
16, ¶ 10, 482 P.3d 841 (quotation simplified). Likewise, “whether
the [court’s] findings are sufficient to support the award is a
question of law reviewed for correctness.” Foote v. Clark, 962 P.2d
52, 55 (Utah 1998). But the “[c]alculation of reasonable attorney
fees is in the sound discretion of the trial court and will not be
overturned in the absence of a showing of a clear abuse of
discretion.” Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah
1988) (internal citations omitted).
ANALYSIS
I. Motions for Extension of Time
A. Jurisdiction
¶21 Before reaching the merits of Chemex’s arguments, we
must first address whether its notice of appeal conferred
jurisdiction on this court to review the district court’s orders
denying Chemex’s two motions for extension. See Hayes v.
20200096-CA 10 2021 UT App 92Freight Tec v. Chemex
Intermountain GeoEnvironmental Services Inc., 2018 UT App 223,
¶ 2, 437 P.3d 650 (“The initial inquiry of any court should always
be to determine whether the requested action is within its
jurisdiction.”) (quotation simplified); McClellan v. State, 2012 UT
App 316, ¶ 5, 290 P.3d 326 (“Whether we have subject matter
jurisdiction is a threshold issue, which can be raised at any time
and must be addressed before the merits of other claims.”).
Freight Tec argues that this court lacks jurisdiction to address
this issue because Chemex failed to specifically identify the
court’s orders denying the motions for extension in its notice of
appeal.
¶22 Rule 3(d) of the Utah Rules of Appellate Procedure
mandates that the notice of appeal include, in relevant part, “the
judgment, order, or part thereof being appealed.” Utah R. App.
P. 3(d)(2). See Pulham v. Kirsling, 2019 UT 18, ¶ 23, 443 P.3d 1217(“The object of a notice of appeal is to advise the opposite party
that an appeal has been taken from a specific judgment in a
particular case.”) (quotation simplified). Our Supreme Court has
“held that rule 3(d)’s requirement is jurisdictional.” Pulham, 2019
UT 18, ¶ 23 (quotation simplified). But “the language of rule 3(d)
does not require a party appealing from an entire final judgment
to specify each interlocutory order of which the appellant seeks
review.” Wilson v. Sanders, 2019 UT App 126, ¶ 28, 447 P.3d 1240(quotation simplified). Rather, “where the intermediate order of
the court constitutes one link in the chain of rulings leading to [a
final judgment], [the appellant] is entitled to challenge it based
on a notice of appeal identifying the final order.” North Fork
Special Service Dist. v. Bennion, 2013 UT App 1, ¶ 18, 297 P.3d 624(quotation simplified). See Wilson, 2019 UT App 126, ¶ 28
(“When an appeal is taken from a final judgment, there is no
requirement that the notice designate intermediate orders which
are to be raised as issues on appeal.”) (quotation simplified).
¶23 Here, Chemex stated in its notice of appeal that it was
appealing the district court’s order denying Chemex’s statement
20200096-CA 11 2021 UT App 92Freight Tec v. Chemex
of discovery issues, the summary judgment order, the final
judgment, and “all other interim rulings, orders, and minute
entries.” Thus, although Chemex’s notice of appeal did not
specifically name the court’s orders denying Chemex’s two
motions for extension, these orders were clearly a “link in the
chain of rulings” culminating in written final judgment. See
North Fork, 2013 UT App 1, ¶ 18 (quotation simplified). Indeed,
the court specifically stated that, given its denial of Chemex’s
motions for extension, it would not consider any opposition to
Freight Tec’s summary judgment motion—which motion it
subsequently granted and based on which it entered final
judgment against Chemex. Accordingly, we have jurisdiction to
review the court’s order denying Chemex’s motions for
extension and proceed to address the merits of its challenges.6
6. Freight Tec argues that “Utah courts have moved away from
the liberal application of Rule 3(d).” In support of this assertion,
Freight Tec cites Pulham v. Kirsling, 2019 UT 18, 443 P.3d 1217,
and Wilson v. Sanders, 2019 UT App 126, 447 P.3d 1240. But these
cases involved exceptions to the general rule that “when an
appeal is taken from a final judgment, there is no requirement
that the notice designate intermediate orders which are to be
raised as issues on appeal.” See Wilson, 2019 UT App 126, ¶ 28
(quotation simplified). Specifically, in Pulham, our Supreme
Court held that as the appellant identified only a portion of the
final order instead of listing the order as a whole, the appellant
could not raise issues unrelated to the identified portions of the
order because doing so would “disregard the plain language of
the notice of appeal and would run contrary to our
long-held conviction that the notice of appeal must provide the
opposing party with notice of what is being appealed.” 2019 UT
18, ¶¶ 24–31. And in Wilson, this court held that because the
district court denied the relevant motion more than one week
after entry of final judgment, the motion was not subsumed in
(continued…)
20200096-CA 12 2021 UT App 92Freight Tec v. Chemex
B. Merits
¶24 Chemex filed two motions for extension: the First Motion
was brought under rule 6(b)(1)(A) of the Utah Rules of Civil
Procedure and the Second Motion was brought under rule
6(b)(1)(B). We address the district court’s denial of each motion
and conclude that the court did not exceed its broad discretion in
either instance.
¶25 Rule 6(b)(1) provides,
When an act may or must be done within a
specified time, the court may, for good cause,
extend the time:
(…continued)
the final judgment and therefore had to be specifically identified
in the notice of appeal to confer appellate jurisdiction. 2019 UT
App 126, ¶ 29. Neither of these exceptions applies to the case
before us.
Freight Tec also cites State of Utah v. Watson Pharmaceuticals
Inc., 2019 UT App 31, 440 P.3d 727, in support of its contention
that rule 3(d) is now more restrictively applied. But Watson
Pharmaceuticals is inapposite because it did not address this
jurisdictional issue. It merely noted, in a footnote, that the
appellant did not appeal the district court’s denial of its motion
for leave to amend its complaint—filed three months after the
district court dismissed the case with prejudice—because the
appellant’s notice of appeal had not identified the order and,
indeed, the appellant twice confirmed during oral argument that
it was not appealing that denial. See id. ¶¶ 9, 22 n.8.
20200096-CA 13 2021 UT App 92Freight Tec v. Chemex
(A) with or without motion or notice if the
court acts, or if a request is made, before the
original time or its extension expires; or
(B) on motion made after the time has
expired if the party failed to act because of
excusable neglect.
¶26 As relevant to both parts of rule 6(b)(1), good cause
“pertains to special circumstances that are essentially beyond a
party’s control.”7 Reisbeck v. HCA Health Services of Utah, Inc.,
7. In defining “good cause” and “excusable neglect,” we look to
the analogous context of rule 4(e) of the Utah Rules of Appellate
Procedure. Compare Utah R. App. P. 4(e) (providing that prior to
the expiration of the deadline to file a notice of appeal, “[t]he
trial court, upon a showing of good cause, may extend the time
for filing a notice of appeal upon motion,” and that within 30
days after the deadline to file a notice of appeal, “[t]he trial
court, upon a showing of good cause or excusable neglect, may
extend the time for filing a notice of appeal upon motion”), with
Utah R. Civ. P. 6(b)(1) (providing that “the court may, for good
cause, extend” a deadline if done prior to the expiration of the
deadline and, if done after expiration of the deadline, “the court
may [do so] for good cause” and upon a showing of “excusable
neglect”). Cf. Jones v. Layton/Okland, 2009 UT 39, ¶ 18, 214 P.3d
859 (applying the standard for excusable neglect as articulated
under rule 4(e) of the Utah Rules of Appellate Procedure to rule
60(b) of the Utah Rules of Civil Procedure). We likewise turn to
interpretations of the similarly worded rule 6(b)(1) of the Federal
Rules of Civil Procedure for guidance. See Supernova Media, Inc.
v. Pia Anderson Dorius Reynard & Moss, LLC, 2013 UT 7, ¶ 40 n.8,
297 P.3d 599 (“Interpretations of the Federal Rules of Civil
Procedure are persuasive where, as here, the Utah Rules of Civil
(continued…)
20200096-CA 14 2021 UT App 92Freight Tec v. Chemex
2000 UT 48, ¶ 13, 2 P.3d 447 (emphasis omitted). It “comes into
play in situations in which there is no fault—excusable or
otherwise.” Utah Republican Party v. Herbert, 678 F. App’x 697,
700 (10th Cir. 2017) (quotation simplified). Accordingly, “it
requires the moving party to show the deadline cannot be met
despite the movant’s diligent efforts.” Id. at 701 (quotation
simplified).
¶27 As relevant to rule 6(b)(1)(B), excusable neglect “is an
admittedly neglectful delay that is nevertheless excused by
special circumstances.” Reisbeck, 2000 UT 48, ¶ 13 (emphasis
omitted). Our Supreme Court has identified four factors that are
relevant to the excusable neglect inquiry: “(i) the danger of
prejudice to the nonmoving party, (ii) the length of the delay and
its potential impact on judicial proceedings, (iii) the reason for
the delay, including whether it was within the reasonable
control of the movant, and (iv) whether the movant acted in
good faith.” West v. Grand County, 942 P.2d 337, 340–41 (Utah
1997) (quotation simplified). See Stoddard v. Smith, 2001 UT 47,
¶¶ 24–25, 27 P.3d 546. But our Supreme Court has emphasized
that the excusable neglect determination is so fact intensive and
“so varied and complex that no rule adequately addressing the
relevance of all these facts can be spelled out.” West, 942 P.2d at
340 (quotation simplified). See Jones v. Layton/Okland, 2009 UT 39,
¶ 18, 214 P.3d 859 (“[T]here is no specific legal test for excusable
neglect.”). At its core, “excusable neglect requires some evidence
of diligence in order to justify relief.” Jones, 2009 UT 39, ¶ 20.
Thus, “where a party or party’s attorney was concededly
neglectful, the court must determine whether that neglect
should, on balance, be excused.” Reisbeck, 2000 UT 48, ¶ 15. This
“inquiry is fundamentally equitable in nature and entails broad
(…continued)
Procedure are substantially similar to the federal
rules.”) (quotation simplified).
20200096-CA 15 2021 UT App 92Freight Tec v. Chemex
discretion.” Id. But “[a] district court must exercise its broad
discretion in furtherance of the ultimate goal of the excusable
neglect inquiry: determining whether the moving party has been
sufficiently diligent that the consequences of its neglect may be
equitably excused.” Jones, 2009 UT 39, ¶ 20.
¶28 In the First Motion, Chemex argued that good cause
existed because Freight Tec “refused to provide important
information and documents to Chemex that directly relate to the
claims in this case.” After “reviewing the timeline of the case,”
the district court concluded that good cause did not exist.
Specifically, Chemex asserted that it did not discover the
deficiencies in Freight Tec’s responses to its discovery requests
until it began preparing its opposition to Freight Tec’s motion
for summary judgment. But the court noted that Freight Tec
served its responses to Chemex three months prior to the close of
fact discovery and Freight Tec moved for summary judgment
“just days before that deadline.” The court also found it relevant
that when Chemex first requested an extension from Freight
Tec—nine days after the close of fact discovery and the day
Chemex’s response to the summary judgment motion was due—
Chemex did not raise any issues concerning Freight Tec’s
discovery responses. Indeed, Chemex did not raise those issues
for another week. Accordingly, the court stated that “it appears
that Chemex did not even analyze [Freight Tec’s] discovery
responses until more than three months after they were served
and approximately two weeks after the close of fact discovery.”
And because “Chemex has never offered an explanation
regarding the delay in analyzing and raising the discovery
issues,” the court held that it could not make a finding of good
cause and denied the First Motion.
¶29 In ruling on the Second Motion, filed eleven days after the
court’s denial of the First Motion, the court noted that because
Chemex had not demonstrated good cause in the First Motion, it
also “failed to show entitlement to relief under Rule 6(b)(1)(B).”
20200096-CA 16 2021 UT App 92Freight Tec v. Chemex
In any event, the court additionally determined that Chemex had
not established excusable neglect. Focusing on the third factor
relevant to the excusable neglect inquiry, that is, the reason for
the delay, see West, 942 P.2d at 340–41, the court reiterated that
“Chemex has never provided an explanation for its delay in
reviewing and analyzing [Freight Tec’s] discovery responses.”
Although Chemex attributed its delay in filing the Second
Motion to waiting for the court to rule on the First Motion, the
court noted “that had Chemex raised the discovery issues in a
timely manner or had Chemex responded to the Motion for
Summary Judgment pursuant to Rule 56(d), these issues could
have been resolved in the ordinary course in the case.” And
because Chemex “failed to provide any explanation justifying its
delays in this case,” the court declined to analyze the remaining
relevant factors, stating that “[e]ven if those factors weighed in
favor of Chemex, they would not outweigh the fact that Chemex
has not provided any justification for its delay.”
¶30 Chemex argues that the district court abused its discretion
in denying the First Motion because Chemex, “in good faith, . . .
sought an extension to address discovery deficiencies it felt were
necessary to oppose Freight Tec’s motion for summary
judgment.” Quoting Rachel v. Troutt, 820 F.3d 390, 394 (10th Cir.
2016), Chemex argues that “[g]ood cause ‘should be liberally
construed to advance the goal of trying each case on the merits.’”
Chemex asserts that it satisfied this liberal standard because it
did not have the opportunity to “evaluate the matter as a whole”
and discover the deficiencies in Freight Tec’s responses until it
began preparing to oppose Freight Tec’s summary judgment
motion.8
8. Chemex additionally argues that “to the extent the district
court relied on counsel’s alleged carelessness to deny the motion,
such a consideration alone constitutes an abuse of discretion.” In
(continued…)
20200096-CA 17 2021 UT App 92Freight Tec v. Chemex
¶31 But Chemex does not grapple with the crux of the district
court’s reasoning for why Chemex failed to show good cause.
(…continued)
support, Chemex cites GNB, Inc. v. Tropex, Inc., No. 87-1637, 1988
WL 60618 (4th Cir. June 3, 1988) (per curiam). In that case, the
defendants failed to timely oppose a motion for summary
judgment. Id. at *1. In denying the defendants’ motion for an
extension, the district court found that their counsel was
inexcusably negligent but made no finding as to whether the
defendants themselves were negligent. Id. at *2. The Fourth
Circuit Court of Appeals reversed, in part because of the lack of
findings that the “defendants, and not their counsel, were
responsible for the failure to file the opposition to the summary
judgment motion.” Id.As an initial matter, GNB is inapplicable to the denial of the
First Motion because the defendants in GNB filed their motion
for extension after the deadline to oppose the summary judgment
motion had expired, thus—as demonstrated by the court’s
discussion of negligence—necessarily implicating the federal
equivalent of Utah rule 6(b)(1)(B) in effect at that time and not
the federal equivalent of rule 6(b)(1)(A), which deals with good
cause. And in any event, in Utah a court does not necessarily
abuse its discretion by denying a motion for extension in cases
where the fault for the delay rested solely with a party’s
attorney. Instead, “where a party or a party’s attorney was
concededly neglectful, the court must determine whether that
neglect should, on balance, be excused.” Reisbeck v. HCA Health
Services of Utah, Inc., 2000 UT 48, ¶ 15, 2 P.3d 447 (emphasis
added). See generally Menzies v. Galetka, 2006 UT 81, ¶ 76, 150
P.3d 480 (“Under the American representative system of
litigation, a party voluntarily chooses her attorney and therefore
is generally bound by the acts or omissions of his or her
attorney.”).
20200096-CA 18 2021 UT App 92Freight Tec v. Chemex
The court noted that the First Motion—filed the day Chemex’s
opposition to Freight Tec’s summary judgment motion was
due—did not mention the deficient discovery responses. Indeed,
Chemex did not make that argument for another seven days.
Based on this, the court noted that it appeared Chemex had not
analyzed the discovery responses “until more than three months
after they were served and approximately two weeks after the
close of fact discovery.” The court noted that “Chemex has never
offered an explanation regarding the delay in analyzing and
raising the discovery issues,” without which the court could not
make a determination of good cause.
¶32 We agree with the court that Chemex’s explanation that it
did not have an opportunity to closely examine Freight Tec’s
responses until it began to prepare its response to the summary
judgment motion does not sufficiently address the court’s stated
point of concern, because it seems that Chemex had not
reviewed the discovery responses by the date its response to
summary judgment was originally due, that is, when it
requested an extension of time from Freight Tec. Even applying
a liberal standard, in light of this absence of sufficient
explanation for the cause of Chemex’s delay in reviewing the
discovery responses as part of its preparation to oppose
summary judgment, the court did not exceed its discretion in
concluding that Chemex had not shown good cause for an
extension and in denying the First Motion on that basis. See Utah
Republican Party v. Herbert, 678 F. App’x 697, 700 (10th Cir. 2017)
(stating that although “Rule 6(b)(1) should be liberally construed
to advance the goal of trying each case on the merits[,] . . . an
enlargement of the time period is by no means a matter of
right”) (quotation simplified).
¶33 Regarding the Second Motion, Chemex argues that “the
district court abused its discretion because it narrowly
interpreted excusable neglect to arise only if circumstances out
of Chemex’s control delayed its opposition to Freight Tec’s
20200096-CA 19 2021 UT App 92Freight Tec v. Chemex
summary judgment motion.” Chemex contends that the court
improperly “focused on Chemex’s delayed analysis of Freight
Tec’s discovery responses from months before” instead of
evaluating the “minimal” eleven-day delay between the court’s
denial of the First Motion and Chemex’s filing of the Second
Motion. Because we conclude the court did not exceed its
discretion in finding that Chemex had not shown good cause, we
do not reach this challenge to the court’s excusable neglect
determination.
¶34 By its plain terms, rule 6(b)(1)(B) requires a moving party
to demonstrate good cause and excusable neglect. See Utah R.
Civ. P. 6(b)(1) (“When an act may or must be done within a
specified time, the court may, for good cause, extend the time . . .
on motion made after the time has expired if the party failed to
act because of excusable neglect.”) (emphasis added). Although
interrelated,9 the two standards are distinct. Accordingly,
irrespective of whether Chemex was able to establish excusable
neglect, the district court acted within its discretion when it
denied the Second Motion because Chemex had not established
the requisite good cause.10
9. For example, depending on the facts of a case, each standard
may implicate a showing of diligence and of circumstances
beyond the moving party’s control. See supra ¶¶ 26–27.
10. Chemex also argues that “the court abused its discretion
when it took umbrage [at] Chemex seeking relief under Rule 6(b)
rather than Rule 56(d).” See Utah R. Civ. P. 56(d) (“If a
nonmoving party shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its
opposition [to summary judgment], the court may: (1) defer
considering the motion or deny it without prejudice; (2) allow
time to obtain affidavits or declarations or to take discovery; or
(continued…)
20200096-CA 20 2021 UT App 92Freight Tec v. Chemex
II. Summary Judgment
A. Preservation
¶35 Chemex contends that the district court erred in
concluding that federal law preempted Chemex’s counterclaim
against Freight Tec. But because Chemex did not properly
oppose Freight Tec’s motion for summary judgment, it has not
preserved this argument for appeal.
¶36 “Our appellate system has developed along the
adversarial model, which is founded on the premise that parties
are in the best position to select and argue the issues most
advantageous to themselves, while allowing an impartial
tribunal to determine the merits of those arguments.” State v.
Johnson, 2017 UT 76, ¶ 8, 416 P.3d 443. Under this system,
“parties, not the courts, have the duty to identify legal issues and
bring arguments to adjudicate their respective rights and
obligations. It is through fulfilling this duty in a district court
that parties also fulfill their duty to preserve arguments for
appeal.” True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 23, 427
P.3d 338 (quotation simplified). In other words, “an issue is
preserved for appeal when it has been presented to the district
(…continued)
(3) issue any other appropriate order.”). It argues that because a
motion brought under rule 56(d) “is not among those specifically
excluded from Rule 6(b), the court had authority to extend the
time for [Chemex] to file its summary judgment opposition.” See
Utah R. Civ. P. 6(b)(2) (“A court must not extend the time to act
under Rules 50(b) and (d), 52(b), 59(b), (d) and (e), and 60(c).”).
Because we have already determined that the district court did
not abuse its discretion in denying the First Motion and the
Second Motion for lack of good cause, we need not address this
argument further.
20200096-CA 21 2021 UT App 92Freight Tec v. Chemex
court in such a way that the court has an opportunity to rule on
it.” Johnson, 2017 UT 76, ¶ 15 (quotation simplified). An appellate
court will ordinarily not reach the merits of an unpreserved
argument absent a valid exception to the preservation rule. See
id.
¶37 Here, Chemex did not preserve its challenges to the
summary judgment rulings because it did not oppose Freight
Tec’s motion for summary judgment and, therefore, did not
“bring arguments to adjudicate [its] respective rights and
obligations.” See True, 2018 UT App 86, ¶ 23 (quotation
simplified). See also Tronson v. Eagar, 2019 UT App 212, ¶ 18, 457
P.3d 407 (“[A] nonmovant who fails to oppose a summary
judgment motion has thereby failed to preserve any objection to
the district court’s entry of summary judgment against it, and . . .
on appeal, any challenge to the district court’s entry of an
unopposed summary judgment motion would be reviewed only
for plain error.”); Stevens v. Wall, 2011 UT App 372, ¶ 4, 264 P.3d
568 (per curiam) (holding that because the appellant “failed to
oppose the summary judgment motion in the trial court” and
therefore “did not raise any challenge to the motion below[,] . . .
he ha[d] waived the challenge to the summary judgment on
appeal”).
¶38 Chemex argues that the issue is preserved because,
“regardless of Chemex’s inability to oppose the motion” for
summary judgment, the district court “had the opportunity to
rule on preemption” when it granted summary judgment to
Freight Tec. But, our Supreme Court has clarified, to present a
district court with an opportunity to rule on an issue for
preservation purposes, “the issue must be specifically raised by
the party asserting error, in a timely manner, and must be
supported by evidence and relevant legal authority.” Johnson,
2017 UT 76, ¶ 15 (quotation simplified). Because Chemex did not
succeed in submitting its opposition to the summary judgment
motion, it did not raise legal grounds to deny summary
20200096-CA 22 2021 UT App 92Freight Tec v. Chemex
judgment, much less introduce legal authority in support of
those arguments. Accordingly, Chemex’s challenges to the
district court’s preemption rulings are unpreserved and, absent a
valid exception to our preservation rule, Chemex may not
substitute its appellate brief for the memorandum in opposition
to summary judgment that it was precluded from submitting to
the district court.
B. Plain Error
¶39 Chemex argues that even if it did not preserve its
preemption arguments in the district court, the plain error
exception to the preservation rule applies.11 “Under plain error
review, we will reverse only if (i) an error exists, (ii) the error
should have been obvious to the trial court, and (iii) the error is
harmful.” Cook Martin Poulson PC v. Smith, 2020 UT App 57, ¶ 19,
464 P.3d 541 (quotation simplified). Without addressing the first
and third prongs of the plain error inquiry, we conclude that
Chemex’s argument fails because any alleged error in the court’s
preemption analysis was far from “obvious.”
¶40 Concerning its claim for conversion, Chemex argues that
“[a]lthough there is no controlling [Utah] law on the issue, it
should have been apparent to the district court that the Carmack
11. “Our supreme court has taken pains to point out that it has
not endorsed the ongoing viability of plain error review in civil
cases, nor has it repudiated it. In the meantime, until our
supreme court answers this question, Utah appellate courts have
sometimes applied plain error review in civil cases in which
neither party challenges its application, and we do so here
without opining on the propriety of such review.” Tronson v.
Eagar, 2019 UT App 212, ¶ 18 n.7, 457 P.3d 407 (quotation
simplified).
20200096-CA 23 2021 UT App 92Freight Tec v. Chemex
Amendment[12] does not apply to brokers, like Freight Tec.”
Chemex cites several federal district court cases in support of
this contention. See, e.g., ASARCO LLC v. England Logistics Inc., 71
F. Supp. 3d 990, 994–95 (D. Ariz. 2014); Huntington Operating
Corp. v. Sybonney Express, Inc., Civil Action No. H-08-781, 2009
WL 2423860, at *3 (S.D. Tex. Aug. 3, 2009); Chubb Group of Ins.
Cos. v. H.A. Transp. Sys., Inc., 243 F. Supp. 2d 1064, 1068–69 (C.D.
Cal. 2002). But the district court cited other federal district court
cases in support of its conclusion “that the Carmack Amendment
covers claims against interstate freight brokers like Freight Tec.”
See, e.g., Ameriswiss Tech., LLC v. Midway Line of Ill., Inc., 888 F.
Supp. 2d 197, 205 (D.N.H. 2012); York v. Day Transfer Co., 525 F.
Supp. 2d 289, 301 (D.R.I. 2007). Thus, there is a split of authority
among federal courts as to whether the Carmack Amendment
applies to brokers.
¶41 “An error is obvious if the law on the area was sufficiently
clear or plainly settled.” State v. Larsen, 2005 UT App 201, ¶ 5,
113 P.3d 998 (quotation simplified). Here, based on the divided
federal authority, it is not “plainly settled” whether the Carmack
Amendment applies to brokers. Therefore, any error in the
court’s analysis was far from obvious, and the plain error
exception to the preservation rule does not apply to this
argument.
¶42 Regarding its claims for negligence, negligent
misrepresentation, and breach of fiduciary duty, Chemex argues
that the district court’s conclusion that the FAAAA preempted
these tort claims was obvious error because “the FAAAA scope
12. “In actions seeking damages for the loss of property shipped
in interstate commerce by a common carrier under a receipt or
bill of lading, the Carmack Amendment is the shipper’s sole
remedy.” Morris v. Covan World Wide Moving, Inc., 144 F.3d 377,
382 (5th Cir. 1998). See 49 U.S.C. § 14706(a)(1).
20200096-CA 24 2021 UT App 92Freight Tec v. Chemex
and purpose was to curb state laws relating to carrier prices,
routes, and services,”13 and here “it is undisputed that
[Chemex’s] causes of action are centered on issues surrounding
interstate travel and . . . are no more than tenuously related to
any carrier prices, rout[e]s, or services.” But like the question of
whether the Carmack Amendment applies to brokers, federal
authority is split on whether tort claims sufficiently relate to the
price, route, or service of a carrier.
¶43 The court cited several federal court cases in support of its
holding that Chemex’s tort claims for negligence, negligent
misrepresentation, and breach of fiduciary duty relate to and
affect the “price, route, or service . . . with respect to the
transportation of property,” 49 U.S.C. § 14501(c)(1), and are
therefore preempted by the FAAAA, see, e.g., Belnick, Inc. v TBB
Global Logistics, Inc., 106 F. Supp. 3d 551, 559–62 (M.D. Pa. 2015);
Ameriswiss Tech., 888 F. Supp. 2d at 205–08; Chatelaine, Inc. v.
Twin Modal, Inc., 737 F. Supp. 2d 638, 641–43 (N.D. Tex 2010).
Freight Tec has also cited additional authority supporting this
conclusion. See, e.g., Delta Stone Prods. v. Xpertfreight, 304 F. Supp.
3d 1119, 1123 (D. Utah 2018); Yellow Transp., Inc. v. DM Transp.
Mgmt. Services, Inc., No. CIV.A.2:06CV1517-LDD, 2006 WL
2871745, at *3 (E.D. Pa. July 13, 2006). Chemex asserts that “many
district courts of equal authority have held that negligence
13. The relevant provision of the FAAAA provides,
[A] State, political subdivision of a State, or
political authority of 2 or more States may not
enact or enforce a law, regulation, or other
provision having the force and effect of law related
to a price, route, or service of any motor carrier . . .
or any motor private carrier, broker, or freight
forwarder with respect to the transportation of
property.
49 U.S.C. § 14501(c)(1).
20200096-CA 25 2021 UT App 92Freight Tec v. Chemex
claims are not preempted by the FAAAA because holding a
broker to a minimum standard of care does not intrude or
contradict the Congressional intent animating the FAAAA,”
and Chemex provides several examples in support of this
assertion. See, e.g., Nyswaner v. C.H. Robinson Worldwide Inc., 353
F. Supp. 3d 892, 895 (D. Ariz. 2019); Complete Coach Works v.
Landstar Ranger, Inc., No. CV-10-1383-DSF(OPx), 2011 WL
9206170, at *1–2 (C.D. Cal. Apr. 13, 2011).
¶44 Again, this split in authority renders the question of
whether the FAAAA preempts these state tort claims far from
“plainly settled,” and therefore any alleged error in the court’s
analysis was not obvious. See Larsen, 2005 UT App 201, ¶ 5
(quotation simplified). Accordingly, the plain error exception to
the preservation rule does not apply to this argument.
C. Judicial Notice
¶45 Chemex also argues that the court erred in granting
summary judgment on Freight Tec’s breach of contract claim
because there “is a question of material fact whether the terms
and conditions presented by Freight Tec were available at the
time Chemex signed” the credit application. Chemex asserts that
“Freight Tec’s claim for breach of contract is dependent upon
whether Chemex agreed to the [Terms and Conditions]” that the
credit application—which Chemex signed in 2013—incorporated
by reference and for which it provided a website address.
Freight Tec included a copy of the Terms and Conditions in its
motion for summary judgment, but Chemex contends that
Freight Tec “fail[ed] to establish that the terms and conditions
were available to [Chemex] at the time it signed the credit
application” because the Terms and Conditions the court relied
on were allegedly copyrighted in 2014 and, according to Internet
Archive, did not appear on Freight Tec’s website until 2015.
Although Chemex acknowledges that “Freight Tec’s facts were
undisputed due to the Court’s denial of Chemex’s motion[s] for
20200096-CA 26 2021 UT App 92Freight Tec v. Chemex
extension,” it argues that the court should have taken judicial
notice that the Terms and Conditions Freight Tec presented were
copyrighted and appeared on the website after Chemex signed
and submitted the credit application. See supra note 4.
¶46 Even assuming, without deciding, that the court erred in
declining to take judicial notice of those facts, we conclude that
the error was harmless because Freight Tec would have
nonetheless prevailed on summary judgment. Although Chemex
disputes the authenticity of the Terms and Conditions that
Freight Tec included in its motion for summary judgment,
Chemex’s answer admitted that it signed the credit application.
It further admitted “that it entered into an agreement with
[Freight Tec] to ship, or arrange[] for shipment [of], certain loads
for Chemex.” Given that Chemex does not contest that it entered
into a contract with Freight Tec and that it was uncontested on
summary judgment that Chemex did not compensate Freight
Tec for arranging for the shipment of the Jacksonville load, it is
unclear how Chemex would have withstood summary judgment
even if the court had disregarded the Terms and Conditions. See
America West Bank Members, LC v. Utah, 2014 UT 49, ¶ 15, 342
P.3d 224 (“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.”) (quotation simplified). Indeed, both the credit
application and the Terms and Conditions provided for an
interest rate of 1.5% per month for any unpaid invoices and
stated that Freight Tec would be entitled to collection expenses,
including attorney fees and costs. See supra ¶ 5. Furthermore, to
the extent that Chemex challenges the court’s grant of summary
judgment to Freight Tec on Chemex’s claim for breach of
contract, the credit application likewise contained a provision in
which Chemex agreed to pursue any claims for late delivery or
non-delivery of a load against the motor carrier and not Freight
Tec. See supra ¶ 4.
20200096-CA 27 2021 UT App 92Freight Tec v. Chemex
III. Attorney Fees
¶47 Lastly, Chemex challenges the district court’s award to
Freight Tec of attorney fees and costs incurred in defending
against Chemex’s non-contractual claims.14
¶48 First, Chemex argues that the court erred in concluding
that its claims were “inextricably intertwined” with Freight Tec’s
claim for breach of contract. Quoting Foote v. Clark, 962 P.2d 52(Utah 1998), Chemex asserts that “‘[t]he language of the contract
does not permit assessing fees’ against Chemex for Freight Tec’s
successful defense of Chemex’s noncontractual claims brought
concerning the [Winter Haven load].” See id. at 56.
¶49 “If provided for by contract, attorney fees are awarded in
accordance with the terms of that contract.” Rapoport v. Four
Lakes Village Homeowners Ass’n, Inc., 2013 UT App 78, ¶ 22, 300
P.3d 327 (quotation simplified). Furthermore, “when a plaintiff
brings multiple claims involving a common core of facts and
related legal theories, and prevails on at least some of its claims,
it is entitled to compensation for all attorney fees reasonably
incurred in the litigation.” Golden Meadows Props., LC v. Strand,
2010 UT App 257, ¶ 35, 241 P.3d 375 (quotation simplified). This
rule has been “repeatedly extended . . . to award attorney fees
for counterclaims when the counterclaim was based on related
legal theories involving a common core of facts.” Id. (quotation
simplified). See Dejavue, Inc. v. U.S. Energy Corp., 1999 UT App
355, ¶ 21, 993 P.2d 222 (affirming the district court’s award of
attorney fees to a party for successfully defending against a
breach of contract claim and for prevailing on its tort
counterclaims that were “based on related legal theories
14. Chemex does not challenge the district court’s award of
attorney fees to Freight Tec for fees incurred in defending
against Chemex’s counterclaim for breach of contract.
20200096-CA 28 2021 UT App 92Freight Tec v. Chemex
involving a common core of facts” applicable also to the breach
of contract claim).
¶50 The relevant provision under the credit application, with
our emphasis, is as follows:
It is . . . agreed that the Applicant shall pay any
collection expenses, including, but not limited to,
attorneys fees and court costs, that may become
necessary to effect collection from [Chemex.]
In concluding that Chemex’s tort claims and Freight Tec’s breach
of contract claim were “inextricably intertwined,” the district
court stated that although “Chemex’s counterclaims rested on
several legal theories[,] . . . all were asserted to defend against or
counter Freight Tec’s breach of contract claim and all involved
the same common core of facts.” We agree.
¶51 Chemex’s answer and counterclaim support the court’s
conclusions. In bringing its counterclaim against Freight Tec,
Chemex acknowledged that its counterclaim and Freight Tec’s
breach of contract claim involved a common core of facts when it
stated, “This Counterclaim arises out of the same averments, and
transactions and occurrences as [Freight Tec’s] Complaint.” And
in its answer, referring to the alleged non-delivery of the Winter
Haven load—which formed the basis for its counterclaim—
Chemex asserted, as an affirmative defense, that “[t]he damages,
if any, which were allegedly sustained by [Freight Tec] as a
result of the acts complained of in the Complaint were caused in
whole or in part or were contributed to by reason of the acts,
omissions, negligence, and/or intentional misconduct of [Freight
Tec].” Thus, to succeed on its breach of contract claim against
Chemex, Freight Tec necessarily needed to defend against
Chemex’s claims that were based in tort. Accordingly, Freight
Tec’s defense against the counterclaim became “necessary to
20200096-CA 29 2021 UT App 92Freight Tec v. Chemex
effect collection from [Chemex]” and was therefore permitted
under the plain terms of the credit application.
¶52 Next, Chemex argues that “[b]ecause the district court did
not require Freight Tec to allocate its fees by [compensable and
noncompensable] claim, there is insufficient evidence to support
the award, and it cannot stand.” See Jensen v. Sawyers, 2005 UT
81, ¶ 132, 130 P.3d 325 (stating that failure to allocate fees
between successful claims, unsuccessful claims, and claims to
which there is no entitlement to attorney fees “makes it difficult,
if not impossible, for the trial court to award the moving party
fees because there is insufficient evidence to support the
award”). Because we conclude that Freight Tec was entitled to
recover attorney fees and costs both in bringing its breach of
contract claim and in defending against Chemex’s counterclaim,
such an allocation is unnecessary as all claims fall under the
same category of compensability. See KB Squared LLC v. Memorial
Bldg. LLC, 2019 UT App 61, ¶¶ 33–34, 442 P.3d 1168.
¶53 Finally, again quoting Foote v. Clark, 962 P.2d 52, 56 (Utah
1998), Chemex argues that the court’s award is supported by
insufficient findings of fact because “the Court did not consider
any of the Cottonwood Mall factors in assessing the
reasonableness of the fee award nor did it set forth any other
‘steps of its evaluation.’” See Cottonwood Mall Co. v. Sine, 830 P.2d
266, 269 (Utah 1992) (listing “several factors that should be
assessed in determining the reasonableness of attorney fees”). In
determining the reasonableness of the requested fees, the court
stated that it reviewed the invoices for attorney fees attached to
the affidavit submitted by counsel for Freight Tec and found that
“[t]hey were specific enough to allow the Court to look at what
was done in each case” and it concluded that they were “good
evidence of the fees that were incurred and why.” Accordingly,
because the court’s award of fees was supported by affidavit,
and because Chemex did not challenge the reasonableness of
any itemized fee or cost Freight Tec presented to the court when
20200096-CA 30 2021 UT App 92Freight Tec v. Chemex
given the opportunity, the court did not abuse its discretion in
ordering Chemex to pay $21,728 in attorney fees and $658.39 in
court costs. Cf. Poulsen v. Frear, 946 P.2d 738, 743 (Utah Ct. App.
1997) (“[F]ees cannot be awarded unless supported by an
affidavit and unless appellant has a chance to challenge the
reasonableness of the fees[.]”).
IV. Fees on Appeal
¶54 Freight Tec seeks an award of attorney fees incurred on
appeal. “When a party who received attorney fees below
prevails on appeal, the party is also entitled to fees reasonably
incurred on appeal.” Telegraph Tower LLC v. Century Mortgage
LLC, 2016 UT App 102, ¶ 52, 376 P.3d 333 (quotation simplified).
Accordingly, Freight Tec is entitled to its attorney fees
reasonably incurred on appeal, and we remand to the district
court to calculate the amount of the award.
CONCLUSION
¶55 The district court acted within its discretion when it
denied Chemex’s two motions for an extension to file its
opposition to Freight Tec’s motion for summary judgment.
Because Chemex did not effectively oppose Freight Tec’s motion
in the district court, its challenges to the court’s grant of
summary judgment are unpreserved, and we review them only
for plain error. And we conclude that the district court did not
plainly err. We also determine that any error in the district
court’s failing to take judicial notice was harmless. Finally, we
affirm the court’s award of attorney fees to Freight Tec. We
additionally authorize an award of attorney fees to Freight Tec
for attorney fees incurred on appeal and remand to the district
court to determine an appropriate amount for such fees.
¶56 Affirmed.
20200096-CA 31 2021 UT App 92