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

2

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

_____________________________________________________________

1 Mr. Libby was sued as a sole proprietor who is doing business 

as Critterbox.

2 Ms. Chapa was sued as a sole proprietor who is doing business 

as Delena Management, Inc.

3 Mr. 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)
Cite as: 2016 UT 41

Opinion of the Court

3

¶ 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.
FEDERATED v. LIBBY

Opinion of the Court

4

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: 

_____________________________________________________________

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.
Cite as: 2016 UT 41

Opinion of the Court

5

(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 

_____________________________________________________________

11 UTAH CODE § 78B-2-103.
FEDERATED v. LIBBY

Opinion of the Court

6

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.
Cite as: 2016 UT 41

Opinion of the Court

7

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 

_____________________________________________________________

16 See 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.

18 Morris v. Sykes, 624 P.2d 681, 684 n.3 (Utah 1981) (emphasis 

added).

19 Neither 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.
FEDERATED v. LIBBY

Opinion of the Court

8

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 fouryear statute of limitations as a Utah statute of limitations for 

_____________________________________________________________

21 Trzecki v. Gruenewald, 532 S.W.2d 209, 211 (Mo. 1976) (emphasis 

added) (citation omitted).
Cite as: 2016 UT 41

Opinion of the Court

9

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 

_____________________________________________________________

22 UTAH CODE § 78B-2-103.
FEDERATED v. LIBBY

Opinion of the Court

10

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

_____________________________________________________________

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 nonjurisdictional 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)
Cite as: 2016 UT 41

Opinion of the Court

11

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.
FEDERATED v. LIBBY

Opinion of the Court

12

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, 

_____________________________________________________________

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‖). 

27 Hill 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).
Cite as: 2016 UT 41

Opinion of the Court

13

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 

_____________________________________________________________

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‖).

31 Cf. 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.‖
FEDERATED v. LIBBY

A.C.J. Lee, concurring

14

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. 

_____________________________________________________________

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.
Cite as: 2016 UT __

A.C.J. Lee, concurring

15

¶ 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). 
FEDERATED v. LIBBY

A.C.J. Lee, concurring

16

¶ 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).