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Ute-Cal Land Development v. Intermountain Stock Exchange

LEXSEE 628 p2d 1278

UTE-CAL LAND DEVELOPMENT, a Utah corporation, Plaintiff and
Appellant, v. INTERMOUNTAIN STOCK EXCHANGE, Defendant and
Respondent; INTERMOUNTAIN STOCK EXCHANGE, Third-Party
Plaintiff and Respondent, v. Peter BUFFO, Third-Party
Defendant and Appellant

No. 17063

Supreme Court of Utah

628 P.2d 1278; 1981 Utah LEXIS 769

April 10, 1981, Filed

COUNSEL:
[**1]

Robert M. McRae, Salt Lake City, Utah.

Loni F. Deland, Salt Lake City, Utah for Plaintiff.

Gordon Strachan, Salt Lake City, Utah for Defendant.

JUDGES:
Gordon R. Hall, Justice, wrote the opinion. Richard J. Maughan, Chief
Justice, I. Daniel Stewart, Justice, Richard C. Howe, Justice, and Dallin H.
Oaks, Justice, concurring.

OPINIONBY:
HALL

OPINION:

[*1279] Peter Buffo and Ute-Cal Land Development (a corporation of which
Buffo was president, hereinafter referred to collectively as "Buffo") n1 appeal
a judgment of unlawful detainer.

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n1 The trial court found them to be jointly and severally liable, hence the
collective reference.

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As found by the trial court, the facts are essentially as follows. n2 On
August 1, 1976, Intermountain Stock Exchange (hereinafter "ISE") leased a
portion of a building it owned to a corporation known as "Investestate."
Investestate operated a business known as the "Exchange Club" on the premises.
The lease was to expire on July 31, 1978, but could be renewed (for a total of
ten additional [**2] years) upon written notice given at least six months prior
to expiration. The lease also provided that it was assignable, but only with
the express written consent of ISE.

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628 P.2d 1278, *1279; 1981 Utah LEXIS 769, **2

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n2 The trial court's findings will not be disturbed unless they are clearly
against the weight of the evidence or it manifestly appears that the court has
misapplied the law to the established facts. Elton v. Utah State Retirement
Board, 28 Utah 2d 368, 503 P.2d 137 (1972).

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On October 13, 1977, ISE terminated the lease agreement due to Investestate's
failure to pay rent; nevertheless, Investestate was allowed to occupy the
premises as a month-to-month tenant until it abandoned the premises on May 8,
1978. n3

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n3 At the time of its abandonment, Investestate owed over $ 2,000 in past
rent, which was ultimately reduced to judgment in November, 1978.

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In early June, [**3] 1978, Buffo took possession of the premises abandoned
by Investestate without the consent or knowledge of ISE. Thereafter, Buffo
contacted Reo Cutler, president of ISE, to inform him that Buffo had taken over
the Exchange Club from Investestate and that he wanted to negotiate a lease
agreement with ISE for the premises. Correspondence and proposed leases were
exchanged but never agreed upon.

No rent was paid on the premises in June or July, 1978. A check for two
months' rent was sent on August 3, 1978, but was subsequently dishonored by the
bank for insufficient funds. ISE then decided to discontinue further
negotiations on a written lease agreement but did allow Buffo to retain
possession as a month-to-month tenant. During the next several months, Buffo
repeatedly defaulted on the rental payments and was served with a "Notice to
Quit or Pay Rent" on three different occasions.

In August, 1979, ISE sold the building to "Exchange Associates." After Buffo
had refused to accept the terms of a lease proposed by Exchange Associates, on
December 12, 1979, Buffo was served with a "Notice to Quit."

On December 31, 1979, Buffo filed a declaratory judgment action whereby he
sought to [**4] establish the existence of an agreement with ISE that he had
"the right of first refusal to purchase said building or in the alternative for
a peaceful right to occupy the leased premises for at least twelve years." On
January 17, 1980, ISE and Exchange Associates filed an answer and counterclaim
wherein it asserted, inter alia, a claim of unlawful detainer. The lower court
granted accelerated consideration of the unlawful detainer action. Following a
nonjury trial, the court made the following minute entry:

On the issue of unlawful detainer, the Court finds from a preponderance or
greater weight of the evidence as follows:

1. The Investestate lease was terminated and not effectively assigned to or
assumed by the plaintiff.

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628 P.2d 1278, *1279; 1981 Utah LEXIS 769, **4

2. No written lease existed between the parties and the facts do not support
any recognized exception to requirement of a written lease.

3. That plaintiff occupied the premises under a month to month tenancy.

4. The notice requirements of the unlawful detainer statute have been
satisfied.

5. The defendant is entitled to possession of the premises and to damages for
hold over tenancy as prayed.

[*1280] The court directed counsel for ISE [**5] to prepare formal
findings, conclusions and judgment consistent with the foregoing. These formal
documents were signed and filed on April 3, 1980. On April 14, 1980, Buffo
filed with the court an "Objection to Judgment" and a "Verified Motion." The
Objection to Judgment alleged as follows:

1. Defendants and third party plaintiffs have purported to enter a Judgment
in this matter in the sum of $ 13,688 with interest thereon at the rate of 8
percent.

2. Said Judgment has not been served upon opposing counsel which omission is
a violation of Rule 2.9, Rules of Practice in the District Court.

3. Said Judgment is inconsistent with decision of the Court in that:

(a) There was no evidence presented at trial sufficient to justify the award
of $ 2,456 for rent due for April, October and December, 1979;

(b) There was no award of interest;

(c) The Judgment ostensibly included rent (trebled) for April, 1980 when the
only reason for the holdover past March was the Writ of Attachment, served March
28, 1980, which prevented plaintiff and third party defendant from moving out.

The Verified Motion moved the court:

1. To fix an amount of an appeal bond in accordance with [**6] whatever
amount the Court deems is a just and proper amount of judgment.

2. To order a delivery of the permises [sic] back to plaintiff and third
party defendant during the pendency of this appeal from and after the posting of
bond herein.

3. For an order finding opposing counsel in contempt for their willful
failure to comply with the Rules of Practice which failure has caused
considerable expense and inconvenience to plaintiff and plaintiff's counsel.

The motion and objection to judgment came before the court for hearing on
April 23, 1980. Following argument by counsel, the court "orders said motion to
be and the same is hereby denied," thereby apparently affirming the previously
entered formal judgment. Buffo thereafter filed his notice of appeal on May 5,
1980.

The first question we are called upon to address is the timeliness of this
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628 P.2d 1278, *1280; 1981 Utah LEXIS 769, **6

appeal. n4 Rule 73(a), U.R.C.P., provides that an appeal is to be taken within
one month of the entry of judgment, "unless a shorter time is provided by law."
U.C.A., 1953, 78-36-11 specifically provides that in unlawful detainer actions,
either party may, within ten days, appeal from the judgment rendered. This
Court has consistently [**7] held that a party has ten days, and not one month,
in which to appeal from a judgment for unlawful detainer. n5

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n4 Following the filing of Buffo's notice of appeal, ISE filed a motion to
dismiss the appeal pursuant to Rule 73B, U.R.C.P. We deferred ruling on the
motion until now.

n5 Coombs v. Johnson, 26 Utah 2d 8, 484 P.2d 155 (1971); Madsen v. Chournos,
102 Utah 247, 129 P.2d 986 (1942); Brandley v. Lewis, 97 Utah 217, 92 P.2d 338
(1939); Hunsaker v. Harris, 37 Utah 226, 109 P. 1 (1910).

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The notice of appeal was filed on May 5, 1980, which is clearly more than ten
days after the entry of the original judgment on April 3, 1980. However, on
April 14, n6 Buffo filed his objection to judgment and claimed that the formal
findings, conclusions and judgment were inconsistent with the court's decision.
On April 23, 1980, the court ruled on the motion and the appeal period again
commenced to run. n7

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n6 The ten-day period would normally have run on April 13, but because that
date fell on a Sunday, the filing on Monday, April 14 was timely. See infra.
[**8]

n7 We view the motion in the instant case to be one which would allow
correction of alleged inconsistencies between the court's ruling from the bench
and the formal judgment. See Rule 59(e), U.R.C.P. It is to be distinguished
from the "Motion to Reconsider" filed in the case of Peay v. Peay, Utah, 607
P.2d 841 (1980), which essentially asked the court to rethink its decision.

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The tenth day after April 23 fell on Saturday, May 3. In earlier days,
county offices were open on Saturdays and the only [*1281] days excluded when
computing time limits were holidays. n8 In 1957, the Legislature authorized
county commissioners to opt to close county offices on Saturdays. n9 Said
statute provided further that:

Any act authorized, required or permitted to be performed at or by, or with
respect to, any such county municipal office on a Saturday when the county
municipal office is closed, may be so performed on the next succeeding business
day and no liability or loss of rights of any kind shall result from such delay.

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n8 U.C.A., 1953, 68-3-7. Note that Sundays are considered to be holidays
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628 P.2d 1278, *1281; 1981 Utah LEXIS 769, **9

pursuant to U.C.A., 1953, 63-13-2. [**9]

n9 U.C.A., 1953, 17-16-9.

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In Transwestern General Agency v. Morgan, n10 this Court held that where the
deadline for filing an appeal expired on a Saturday, the notice of appeal which
was filed the following Monday was timely filed because of the foregoing
provision. This is also consistent with our Rule of Civil Procedure which
provides as follows:

In computing any period of time prescribed or allowed by these rules, by the
local rules of any district court, by order of court, or by any applicable
statute, the day of the act, event, or default from which the designated period
of time begins to run shall not be included. The last day of the period so
computed shall be included, unless it is a Saturday, a Sunday, or a legal
holiday, in which event the period runs until the end of the next day which is
not a Saturday, a Sunday, or a legal holiday . . . . n11

The filing of Buffo's notice of appeal on Monday, May 5, 1980, is therefore
deemed to have been timely.

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10 Utah, 526 P.2d 1186 (1974). [**10]

n11 Rule 6(a), U.R.C.P.

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Buffo's specific contentions on appeal are that 1) Buffo was not a
month-to-month tenant; 2) the notice to quit was invalid; and 3) the damages
were improperly determined.

The first contention is clearly a challenge to factual findings which are
supported by substantial evidence. n12 The lease with Investestate was
terminated six months before the purported assignment to Buffo. Even assuming,
arguendo, that the Investestate lease was not terminated, ISE had to expressly
consent in writing to any assignment thereof. There is nothing in the record
which even claims that consent was given. No lease was ever signed by the
parties and, based upon the evidence adduced at trial, the court concluded that
there was no oral contract between the parties. Since no contract was agreed
upon, we need not address the question of whether the contract had to be in
writing as required by the statute of frauds. n13

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n12 See supra, footnote 2.

n13 U.C.A., 1953, 25-5-3.

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[**11]

PAGE 6
628 P.2d 1278, *1281; 1981 Utah LEXIS 769, **11

Buffo's second contention challenges both the form of the notice to quit and
its service.

The challenge as to form is that the notice did not give Buffo the
alternative of performing, rather than to vacate. Although Buffo contends
otherwise, the trial court held him to be a month-to-month tenant. As such,
the applicable statute n14 provides, in pertinent part, as follows:

A tenant of real property, for a term less than life, is guilty of an
unlawful detainer:

* * *

(2) When, having leased real property for an indefinite time with monthly or
other periodic rent reserved, he continues in possession thereof in person or by
subtenant after the end of any such month or period, in cases where the landlord
or the successor in estate of his landlord if any there is, fifteen days or more
prior to the end of such month or period, shall have served notice requiring him
to quit [*1282] the premises at the expiration of such month or period; . . .
. [Emphasis added.]

A notice to a month-to-month tenant to quit the premises therefore need not
contain the alternative of paying rent.

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n14 U.C.A., 1953, 78-36-3.

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[**12]

Buffo contends that the actual service of the notice, as well as the form,
was defective. U.C.A., 1953, 78-36-6 provides as follows:

The notices required by the preceding sections may be served, either:

(1) By delivering a copy to the tenant personally; or,

(2) If he is absent from his place of residence, or from his usual place of
business, by leaving a copy with some person of suitable age and discretion at
either place and sending a copy thereof through the mail addressed to the tenant
at his place of residence or place of business; or,

(3) If such place of residence or business cannot be ascertained or a person
of suitable age or discretion cannot be found there, then by affixing a copy in
a conspicuous place on the leased property and also delivering a copy to a
person there residing, if such person can be found, and also sending a copy
through the mail addressed to the tenant at the place where the leased property
is situated. Service upon a subtenant may be made in the same manner.

Contrary to the assertions of Buffo, the general provisions of Rule 4, U.R.C.P.,
relating to service do not modify the above-quoted statute which specifically
applies to service [**13] in unlawful detainer actions. n15

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628 P.2d 1278, *1282; 1981 Utah LEXIS 769, **13

n15 That the specific provision controls over the general provision, see,
e.g., Millett v. Clark Clinic Corp., Utah, 609 P.2d 934 (1980).

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In Buffo's answer to ISE's counterclaim, he admits service, and although he
sought to avoid that admission at trial, the court specifically found that a
notice to quit was served upon Ute-Cal and Buffo on December 12, 1979.
Irrespective of the admission, the evidence supports the finding of service.
The notice was personally served on one Kay Halliday, who testified on direct
examination that when Buffo is out of town she answers his telephone both in the
Exchange Club and in his office. A copy of the notice was posted on the door of
the premises. A copy was mailed to Buffo, as well as to his legal counsel. On
the facts presented, we are convinced that the service was made in accordance
with the provisions of the statute.

Buffo's final contention of error challenges the court's determination of
damages. U.C.A., 1953, 78-36-10 provides [**14] that "judgment shall be
rendered against the defendant guilty of . . . . unlawful detainer, for the rent
and for three times the amount of damages thus assessed."

In interpreting the predecessor of our present statute, in the case of
Forrester v. Cook n16 the Court held that in an unlawful detainer action "the
statute makes it mandatory upon the court to render judgment for three times the
amount of damages thus assessed." Buffo refers to an unpublished opinion n17
wherein we affirmed a trial court's decision which awarded back rent to the
lessor in an unlawful detainer action. The issue of treble damages was not
presented as an issue and our affirmance of the trial court in that case should
not be read as contrary to the holding in Forrester. The unpublished opinion
specifically states that it "does not add significantly to existing law." In the
instant case, ISE specifically sought treble damages under the statute. Having
found the facts as it did, the trial court was justified in awarding treble
damages.

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n16 77 Utah 137, 292 P. 206 (1930).

n17 Price Construction Co., Inc. v. Foutz, No. 16688, filed May 30, 1980.

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[**15]

Buffo also contends that by reason of a writ of attachment served on him on
March 31, 1980, he was prohibited from vacating the premises and hence should
not be held liable for damages after that date. This contention must also fail.
In light of Buffo's refusal to vacate from when the notice to quit was first
served up until the time the writ of attachment was served, Buffo cannot now
successfully claim that he [*1283] was prohibited from vacating. The primary
intent of the writ of attachment was not to restrain Buffo, but to protect ISE.

The findings and judgment of the lower court are hereby affirmed. Costs to
ISE.

PAGE 8
628 P.2d 1278, *1283; 1981 Utah LEXIS 769, **15

WE CONCUR: Richard J. Maughan, Chief Justice, I. Daniel Stewart, Justice,
Richard C. Howe, Justice, Dallin H. Oaks, Justice.

   

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