Bonnie & Hyde, Inc. v. Lynch , 737 Utah Adv. Rep. 5 ( 2013 )

2013 UT App 153_________________________________________________________
THE UTAH COURT OF APPEALS
BONNIE & HYDE, INC.,
Plaintiff and Appellee,
v.
TOM LYNCH,
Defendant and Appellant.
Opinion
No. 20120367‐CA
Filed June 20, 2013
Second District, Ogden Department
The Honorable Scott M. Hadley
No. 080902079
Jennifer Neeley and Robert L. Neeley, Attorneys
for Appellant
Joseph E. Minnock and John T. Anderson,
Attorneys for Appellee
JUDGE CAROLYN B. MCHUGH authored this Opinion, in which
JUDGES JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN
concurred.
McHUGH, Judge:
¶1 Tom Lynch (Tenant) appeals from the trial court’s
determination that he abandoned property that he had leased from
Bonnie & Hyde, Inc. (BHI). Tenant also challenges the trial court’s
conclusions that BHI did not wrongfully convert or attach his
personal property. We affirm, in part, and reverse and remand,
in part.
Bonnie & Hyde v. Lynch
BACKGROUND1
¶2 BHI, a company operated by Jeff Hyde, owns a building and
real property in Huntsville, Utah. BHI leased the premises to a
restaurant owner until 2005, when Tenant bought the prior owner’s
restaurant and assumed the lease. Tenant upgraded the restaurant
by supplying his own personal property including new equipment
and silverware. Thereafter, Tenant fell behind on his lease
payments to BHI. In June 2007, BHI and Tenant executed a new
lease agreement that lowered the amount of rent due on the first
day of each month. If the rent was not paid by the fifth day of the
month, the new lease imposed a late fee. Tenant was also
responsible for paying the property taxes. In addition, Tenant
agreed to keep the restaurant open every day from 10:00 a.m. to
8:00 p.m., except for certain holidays. Subsequently, the restaurant
was rarely closed during these business hours. When Tenant was
late on his rental payment, he typically contacted Hyde and they
worked out a solution together.
¶3 In November 2007, Hyde sent Tenant an invoice for the 2007
property taxes, but Tenant did not pay the bill. Hyde called Tenant
several times to discuss the matter, but Tenant did not return his
calls. This behavior was unusual based on the prior conduct of the
parties. Tenant also failed to pay the January 2008 rent by the first
of the month. On January 6, 2008, BHI sent another 2007 property
tax invoice to Tenant, and the following day, BHI sent a Three Day
Notice to Pay or Vacate to the address specified in the lease as well
as to the restaurant’s address. Tenant denied receiving this notice.
On January 9, 2008, Hyde called Tenant and left a message about
the delinquent amounts. Tenant returned this call and indicated
1. “On appeal from a bench trial, we view the evidence in a
light most favorable to the trial court’s findings, and therefore
recite the facts consistent with that standard.” Alvey Dev. Corp. v.
Mackelprang, 2002 UT App 220, ¶ 2, 51 P.3d 45 (citation and internal
quotation marks omitted).
20120367‐CA 2 2013 UT App 153Bonnie & Hyde v. Lynch
that the check was in the mail.2 Three days later, Hyde left a
message for Tenant stating that he had not received the check.
¶4 Tenant was last on the premises on January 13, 2008, and
two of Tenant’s employees operated the restaurant the following
day. Although the employees believed that they also tried to open
the restaurant on January 15 or 16, 2008, their time sheets for
another employer indicate that they were both working elsewhere
at those times.
¶5 In the mid‐afternoon of January 15, 2008, the power
company disconnected the power to the restaurant for
nonpayment. That afternoon, Hyde tried to reach Tenant on his
mobile number and at the restaurant, but no one answered. That
evening, Hyde went to the premises and discovered that the
restaurant was closed and locked and that the parking lot and
walks were covered with snow. When Hyde tried to enter the
restaurant through the front door, he discovered that the locks had
been changed. He found one door that still had a lock that could be
opened with his key, but his access to that door was impeded by
uncleared snow. Hyde entered the restaurant and became
concerned that the lack of electricity might cause the water heater
to freeze and burst. He found food that had not been properly
stored, causing the restaurant to reek, and he noticed that
equipment had been left in the “on” position, which he believed
created a fire hazard in the event the power came on while no one
was present. Upon inquiry, Hyde learned that the power could not
be restored until the following day. He called Tenant twice that
evening and left messages regarding the power outage, but Tenant
did not respond.
¶6 Based on Tenant’s failure to communicate with Hyde and
the condition of the restaurant, Hyde believed that Tenant had
abandoned the premises. Hyde then brought propane heaters to
2. Tenant admitted at trial that he never sent the check.
20120367‐CA 3 2013 UT App 153Bonnie & Hyde v. Lynch
the restaurant to prevent the pipes from bursting and made
arrangements to have the locks to the building changed so that he
could enter through the front door—access he needed to bring in
the items required to mitigate the damage to the restaurant. Except
for a few early morning hours, Hyde stayed at the premises until
around four in the afternoon on January 16, 2008 without
encountering Tenant or any of the restaurant’s employees. When
Hyde left, he posted a sign on the building that advised visitors to
call BHI.
¶7 Tenant returned to the premises later that evening and
discovered that he had been locked out of the restaurant.
Nevertheless, Tenant did not contact BHI. Hyde returned the
following day, and again no one came to open the restaurant. On
January 18, 2008, Tenant left two messages for Hyde indicating that
he was having a cash flow problem but that he hoped to obtain
capital contributions from investors. When Tenant eventually
spoke to Hyde that evening, he did not ask for a key or request to
take possession of the premises or his personal property.
¶8 Three days later, Hyde and Tenant met at the restaurant.
During this meeting, Tenant stated that he was “done with the
business” and that he was struggling financially. According to
Hyde, Tenant offered to sell the personal property to BHI and
when Hyde declined, Tenant offered to leave his personal property
in place to make the restaurant more appealing to a potential
tenant. Tenant also indicated that he did not have the financial
ability to move and store his larger items of personal property.
Although Hyde helped Tenant move some of his smaller items of
personal property at that time, Tenant did not request the rest of
his personal property for over a year.
¶9 On January 22, 2008, Hyde posted a sign on the premises
advertising that it was available for lease. Tenant assisted with
cleaning the premises and with the search for a new tenant. As a
20120367‐CA 4 2013 UT App 153Bonnie & Hyde v. Lynch
result of Tenant and Hyde’s efforts, a potential tenant inspected the
restaurant the following month.
¶10 In mid‐March 2008, Tenant removed three patio sets, a
grill, and several propane tanks from the restaurant. Believing
these items to be BHI’s property, Hyde alerted the police, who
warned Tenant to stay away from the premises. Despite this
admonishment, Tenant later saw people in the building and went
inside to take pictures. He was subsequently prosecuted for
trespassing.
¶11 In late March 2008, BHI filed a complaint for breach of
contract and sought a lessor’s lien and a writ of attachment on the
personal property. Tenant counterclaimed for forcible detainer,
forcible entry, willful exclusion, wrongful eviction, wrongful
attachment, economic interference, conversion, deprivation of due
process, and breach of contract. Subsequently, Tenant’s counsel
sent a letter to BHI’s counsel requesting the release of personal
property, claiming that there were defects in the attachment
proceedings. In 2010, Tenant and his wife filed for bankruptcy and
BHI’s affirmative claims became part of that proceeding. As a
result, when this matter was tried to the bench, only Tenant’s
counterclaims were at issue.
¶12 After trial, the court ruled in favor of BHI on all of the
counterclaims. First, the trial court concluded that several of
Tenant’s claims failed because he had abandoned the property.
Second, the trial court determined that Tenant could not recover on
his personal property claims because he left the property at the
restaurant by agreement and the personal property was later
attached. Third, while noting that Tenant did not comply with rule
26(a)(1) of the Utah Rules of Civil Procedure requiring the
disclosure of his damages evidence, the court determined that even
if the evidence were considered, it did not show that Tenant had
suffered damages. Tenant filed a timely appeal of the trial court’s
decision.
20120367‐CA 5 2013 UT App 153Bonnie & Hyde v. Lynch
ISSUES AND STANDARDS OF REVIEW
¶13 Tenant first challenges the trial court’s conclusion that he
abandoned the leased premises. The Utah Code defines the
circumstances under which abandonment will be presumed. See
Utah Code Ann. § 78B‐6‐815 (LexisNexis 2012).3 “We review the
district court’s application of the statute to the facts of the case for
abuse of discretion.” Aris Vision Inst., Inc. v. Wasatch Prop. Mgmt.,
Inc. (Aris I), 2005 UT App 326, ¶ 15, 121 P.3d 24, aff’d, 2006 UT 45,
143 P.3d 278. We will reverse a trial court’s findings of fact only
when such findings are clearly erroneous. Dean v. Park, 2012 UT
App 349, ¶ 31, 293 P.3d 388. “Common‐law abandonment depends
on the intent of the party accused of the act.” Aris I, 2005 UT App
326, ¶ 15. “The determination of intent is a question of fact, which
will only be reversed if the district court’s finding is clearly
erroneous.” Id.
¶14 Second, Tenant contends that the trial court should
have determined that BHI was liable for forcible entry, unlawful
detainer, and wrongful eviction. See generally Utah Code
Ann. § 78B‐6‐801 (LexisNexis 2012). These issues present mixed
questions of law and fact. Aris I, 2005 UT App 326, ¶ 16. “Matters
of statutory construction are questions of law that are reviewed for
correctness.” Id. (citation and internal quotation marks omitted).
“Questions of fact are reviewed under the clearly erroneous
standard, with deference given to the trial court.” Id. (citation and
internal quotation marks omitted). “The trial court’s application of
law to the facts is reviewed for abuse of discretion.” Id. (citation
and internal quotation marks omitted).
¶15 Third, Tenant argues that the trial court erred in failing to
determine that BHI wrongfully attached and converted his
3. Because the relevant statutes have not been substantively altered
since this action was filed, we cite the current version of the Utah
Code as a convenience to the reader.
20120367‐CA 6 2013 UT App 153Bonnie & Hyde v. Lynch
personal property. The authority to grant a writ of attachment is
governed by the Utah Rules of Civil Procedure. See Utah R. Civ. P.
64; id. R. 64A; id. R. 64C. “A district court’s interpretation of a rule
of civil procedure presents a question of law that is reviewed for
correctness.” Aequitas Enters., LLC v. Interstate Inv. Grp., LLC, 2011
UT 82, ¶ 7, 267 P.3d 923. Likewise, “[w]hether the facts establish
the elements of conversion is a question of law, which we review
for correctness.” Lawrence v. Intermountain, Inc., 2010 UT App 313,
¶ 10, 243 P.3d 508 (citations omitted).
¶16 Finally, Tenant asserts that the trial court erred by not
awarding general, specific, treble, and punitive damages. “We
review for an abuse of discretion the trial court’s determination
that [Tenant] failed to introduce sufficient evidence to establish
damages, and we will not overturn the trial court’s decision unless
there was no reasonable basis for the decision.” See Richards v.
Brown, 2009 UT App 315, ¶ 12, 222 P.3d 69, aff’d, 2012 UT 14, 274
P.3d 911. Whether damages should be trebled under Utah Code
section 78B‐6‐811 is an issue of statutory construction, which we
review for correctness. See Aris Vision Inst., Inc. v. Wasatch Prop.
Mgmt., Inc. (Aris II), 2006 UT 45, ¶ 7, 143 P.3d 278.
ANALYSIS
I. The Factual Findings Are Not Clearly Erroneous.
¶17 Tenant first challenges the trial court’s factual findings
supporting the conclusion that he had abandoned the premises.
Accordingly, we must determine whether the findings were clearly
erroneous. See Utah R. Civ. P. 52(a) (“Findings of fact, whether
based on oral or documentary evidence, shall not be set aside
unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the
witnesses.”). A trial court’s factual findings are clearly erroneous
“only if they are in conflict with the clear weight of the evidence,
20120367‐CA 7 2013 UT App 153Bonnie & Hyde v. Lynch
or if this court has a definite and firm conviction that a mistake has
been made.” Gardner v. Gardner, 2012 UT App 374, ¶ 16, 294 P.3d
600 (citation and internal quotation marks omitted).
“Consequently, as an appellate court, we give great deference to
the trial court and do[] not lightly disturb . . . [its] factual findings.”
Henshaw v. Henshaw, 2012 UT App 56, ¶ 10, 271 P.3d 837(alterations and omission in original) (citation and internal
quotation marks omitted).4
4. BHI contends that Tenant did not meet his marshaling
obligation. See Utah R. App. P. 24(a)(9) (providing that when
challenging a trial court’s factual findings, the appellant “must first
marshal all record evidence that supports the challenged
finding[s]”). However, BHI’s briefing of this point is deficient. As
our supreme court recently noted, “Rule 24(b) makes the
requirements of rule 24(a) applicable to the brief of the appellee.”
Broderick v. Apartment Mgmt. Consultants, LLC, 2012 UT 17, ¶ 10, 279
P.3d 391; see also Utah R. App. P. 24(b). Accordingly, BHI’s
argument must likewise “contain the contentions and reasons of
[BHI] . . . with citations to the authorities, statutes, and parts of the
record relied on.” See Utah R. App. P. 24(a)(9). BHI’s argument
cites rule 24 and case law setting forth the appellant’s duty to
marshal, but it fails to point us to any specific material facts that
Tenant did not set forth in his opening brief. This approach
improperly dumps on this court the burden of comparing the
record evidence to the facts marshaled by Tenant to determine
whether anything of significance has been omitted. See Allen v.
Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (“An appellate court is not a
depository in which [a party] may dump the burden of argument
and research. A petitioner must plead his claims with sufficient
specificity for this court to make a ruling on the merits.” (alteration
in original) (citation and internal quotation marks omitted)). We
exercise our discretion to consider Tenant’s challenge to the factual
findings. See Martinez v. Media‐Paymaster Plus/Church of Jesus Christ
of Latter‐day Saints, 2007 UT 42, ¶ 20, 164 P.3d 384 (holding that the
(continued...)
20120367‐CA 8 2013 UT App 153Bonnie & Hyde v. Lynch
¶18 Specifically, Tenant challenges findings of fact 19, 30, 33, 34,
and 40. Finding 19 states,
The court heard from [two of Tenant’s employees]
who testified they went to the restaurant on January
15th or 16th to open the business. Although the court
does not believe these witnesses were lying, the court
concludes they must be mistaken as to the day they
went because time sheets from the Ogden Eccles
Convention Center reflect that they were working
there at the times they testified they tried to open the
restaurant.
Although Tenant disagrees with this finding, there is evidence in
the record to support it. BHI offered the time sheets from the
Ogden Eccles Convention Center (the Center), which placed the
two employees at that business at the times they testified they tried
to open the restaurant. The Center’s director of food and beverage
explained that it would be very difficult to falsify the time sheets
because the Center uses a code and hand swipe system. The trial
court heard the conflicting testimony on this point and found the
director’s testimony more credible than that of the employees. We
defer to the trial court’s advantaged position to weigh that
conflicting evidence. See Hale v. Big H Constr., Inc., 2012 UT App
283, ¶ 60, 288 P.3d 1046 (“[W]hen, as here, there is conflicting
evidence, we defer to the trial court as the factfinder. The existence
of conflicting evidence does not give rise to clear error as long as
evidence supports the trial court’s decision.” (citation and internal
quotation marks omitted)).
4. (...continued)
reviewing court retains discretion to consider whether the record
supports the factual findings despite a party’s failure to marshal
the evidence).
20120367‐CA 9 2013 UT App 153Bonnie & Hyde v. Lynch
¶19 Tenant next challenges the trial court’s assessment in
Finding 30, that the conversation between Tenant and Hyde on the
evening of January 18 was not “particularly meaningful other than
that [Tenant] did not request a key or to take possession of the
property. [Tenant] also mentioned that he had tried to find a buyer
but that attempt fell through.” In addition, he challenges Finding
34, which states that Tenant “did not ask to be allowed to resume
possession.” According to Tenant, these findings are inconsistent
with Finding 29, which indicates that Tenant left a voicemail
message for Hyde on January 18, explaining that Tenant’s
employees “went [to the restaurant] yesterday trying to get the
place open, read the sign and came back down,” that Tenant was
“having a little cash flow problem,” and that he has “a couple of
people that [he] thought wanted to invest enough money . . . but
it’s kind of tough with the door locked.” We see nothing
inconsistent in the court’s findings.
¶20 Finding 29 and Finding 30 address different
communications on the same day. The trial court accurately relates
the content of the voicemail message in Finding 29 and then
accurately describes in Finding 30 the conversation between Hyde
and Tenant when they communicated by telephone later that
evening. The trial court’s assessment that nothing meaningful was
discussed is limited to the evening telephone conversation and
correctly indicates that during that conversation, Tenant did not
ask for a key or for possession of the premises. Tenant admits that
fact in his reply brief to this court, stating, “[I]t is true that [Tenant]
never specifically asked for a key for the new locks.” Although
Tenant further asserts that he “did in fact ask to re‐take the
premises,” Tenant relies on his own testimony and his
interpretation of the prior voicemail message. The trial court had
the discretion not to believe Tenant. See id. ¶ 16 (“Assessing the
credibility of a witness is within the trial court’s domain.”). Indeed,
Tenant admitted at trial that he had lied to Hyde about putting a
check in the mail and that he was “saying what he had to to try and
stay alive.” Furthermore, despite Tenant’s reference to his hope
20120367‐CA 10 2013 UT App 153Bonnie & Hyde v. Lynch
that he might secure additional capital and his statement that the
locked door made it more difficult to find investors, the voicemail
message does not include an express request for a key or
possession of the premises.
¶21 Tenant also challenges Finding 33, which indicates that “no
request was made to possess the remaining property for over one
year.” Tenant states, “It is undisputed [that he] offered to leave his
property on the premises to help BHI find another tenant after BHI
had locked [him] out of the restaurant and exercised dominion
over [his] property.” Notwithstanding that sequence of events,
Finding 33 is not clearly erroneous. Once again, the recorded
communications do not evidence a request for Tenant’s personal
property. In addition, Hyde testified that Tenant did not have the
financial means to store the property he left in the restaurant and
therefore he asked that it be left in place. According to Hyde,
Tenant first requested the property be returned over a year later.
The trial court is in the best position to assess the credibility of the
witnesses and we decline to disturb its reliance on Hyde’s
testimony to support its finding on this point. See id.
¶22 Finally, Tenant challenges Finding 40, which states “In
August 2009, [an appraiser], who testified at trial, valued the
remaining property in BHI’s possession at a little more than
$1,500.00.” Tenant contends that this finding is clearly erroneous
because the appraiser testified as to the dealer value, rather than
the full market value, of the property. Our review of the record
indicates that the trial court’s finding regarding the value of the
equipment is supported by the evidence. The appraiser testified to
two values for each of the items of personal property at issue. The
first value represents the “average value of what [the appraiser
would] buy [the] equipment for,” and the second value is “what
[the appraiser] would sell it for in a reconditioned state.” He
testified that after buying the items of equipment, he would “go
through them at that point to refurbish them, clean them,” and then
resell them at the higher price. Thus, the appraiser estimated $1,520
20120367‐CA 11 2013 UT App 153Bonnie & Hyde v. Lynch
as the price he would pay Tenant for the personal property. He
then testified that after he had cleaned and refurbished the items,
they could be sold for $9,300. Based on that testimony, the relevant
price is the $1,520 that Tenant would have received for the
property, not the amount the appraiser might have sold it for after
he refurbished it. In fact, Tenant admits as much in his reply brief,
stating, “[the appraiser] testified the $1520 value is the dealer’s
value he would pay to take the items, clean up, refurbish, then sell
at a profit.”
¶23 The trial court’s findings are not against the clear weight of
the evidence and are therefore not clearly erroneous. As a result,
we consider Tenant’s alternative challenge to the trial court’s legal
conclusion that he abandoned the leased premises in light of those
findings.
II. The Trial Court Did Not Exceed Its Discretion in Applying the
Facts to the Statutory Presumption of Abandonment.
¶24 The Utah Code provides that abandonment is presumed if
[t]he tenant has not notified the owner that he or she
will be absent from the premises, and the tenant fails
to pay rent within [fifteen] days after the due date,
and there is no reasonable evidence other than the
presence of the tenant’s personal property that the
tenant is occupying the premises.[5]
5. Abandonment is also statutorily presumed if
[t]he tenant has not notified the owner that he or she
will be absent from the premises, and the tenant fails
to pay rent when due and the tenant’s personal
property has been removed from the dwelling unit
and there is no reasonable evidence that the tenant is
occupying the premises.
Utah Code Ann. § 78B‐6‐815(2) (LexisNexis 2012). Because this
(continued...)
20120367‐CA 12 2013 UT App 153Bonnie & Hyde v. Lynch
Utah Code Ann. § 78B‐6‐815(1) (LexisNexis 2012). Accordingly,
Tenant is presumed to have abandoned the premises if (a) he did
not notify BHI that he would be absent from the premises, (b) he
failed to pay rent within fifteen days, and (c) there is no reasonable
evidence other than the presence of his personal property that
Tenant is occupying the premises. See id. Where the statutory
factors are established, the intent to abandon is presumed. See id.
Here, the trial court determined that these factors were met.
¶25 There is evidence in the record to support each element
necessary to create a statutory presumption of abandonment. First,
Tenant did not notify BHI that he would be absent from the
premises. Second, Tenant failed to pay rent within fifteen days;
indeed, there is no evidence that he ever tendered a check for the
January 2008 rent. Finally, by January 16, 2008, there was no
reasonable evidence other than the presence of Tenant’s personal
property that he was occupying the premises. Instead, the
restaurant was empty and closed during business hours, the power
to the building had been turned off, the parking lot and walkways
had not been cleared of snow, and food had been left out to spoil
and foul the premises. Under these circumstances, we cannot
conclude that the trial court exceeded its discretion in applying the
law to the facts of this case. See id.
¶26 Nevertheless, Tenant claims that this court’s decision in
Aris I, 2005 UT App 326, 121 P.3d 24, aff’d, 2006 UT 45, 143 P.3d 278,
supports his position that he did not abandon the premises. In
Aris I, the tenant owned and operated a laser eye surgery center on
leased premises, and contracted with doctors to perform surgeries
there. Id. ¶ 2. Due to a downturn in business, the tenant failed to
tender rent and notified third parties that it intended to terminate
the business and to file for bankruptcy. Id. ¶¶ 3–4. During this time,
the doctors continued to perform surgeries on the premises and the
5. (...continued)
subsection is not relevant under the present facts, we do not
consider it further.
20120367‐CA 13 2013 UT App 153Bonnie & Hyde v. Lynch
tenant began negotiating with them to assume the lease. Id. ¶ 3.
Under those facts, the trial court determined that the statutory
presumption of abandonment did not arise and that the landlord
had not established abandonment by common law. Id. ¶¶ 13–14.
On appeal, this court affirmed, explaining that the ongoing
negotiations and operations provided “‘reasonable evidence other
than the presence of [the tenant’s] personal property’ that [the
tenant] was still using the premises.” Id. ¶ 19 (quoting Utah Code
Ann. § 78‐36‐12.3(3) (2002) (current version at id. § 78B‐6‐815(1)
(LexisNexis 2012))). We held in Aris I that the trial court did not
exceed its discretion in ruling that there was no statutory
presumption of abandonment. Id. We then concluded that the trial
court’s finding that the tenant did not intend to abandon the
premises was not clearly erroneous and that, therefore,
abandonment had not been proved under the common law. Id.
¶¶ 20–21.
¶27 Here, both the trial court’s decision and the facts relevant to
abandonment are different. First, the question in this appeal is
whether the trial court exceeded its discretion in applying the
statutory factors of abandonment to the facts of this case. In
contrast, the Aris I court was faced with the question of whether the
trial court exceeded its discretion in reaching the opposite
conclusion. See id. ¶ 15 (“First, [the landlord] argue[s] that the
district court erred in ruling that [the tenant] did not abandon the
premises.”). Next, the facts in Aris I established that the premises
were in use by the doctors who continued to perform surgeries and
that the tenant repeatedly tendered the past‐due rent. Id. ¶¶ 5–7,
19. The evidence in this case established that the restaurant was
closed and not in a condition to serve customers, and that Tenant
had made no attempt to pay the past‐due rent or to work with BHI,
contrary to his usual practices. Despite Hyde’s presence at the
restaurant for most of two full business days, no one arrived to
operate it. As a result, our decision in Aris I does not convince us
that the trial court exceeded its discretion in determining that a
statutory presumption of abandonment arose here.
20120367‐CA 14 2013 UT App 153Bonnie & Hyde v. Lynch
¶28 Tenant further argues that abandonment can be found only
in situations in which the tenant has an intent to abandon the
premises. Intent is an element of common law abandonment. Id.
¶ 20 (defining common law abandonment as “when a tenant
voluntarily relinquishes or vacates the leased premises with the
intention to terminate contractual rights to . . . possession and
control of the premises” and the “requisite intent can be shown by
words or conduct” (omission in original) (citation and internal
quotation marks omitted)). Because Tenant is presumed to have
abandoned the premises under Utah law, his intent is relevant only
to rebut that statutory presumption.6
¶29 Unlike the previous times when Tenant was late with his
rent payment, he did not work with BHI to solve the issue.
Moreover, Tenant did not pay the property tax bill even though he
received the invoice two months earlier, and he did not
communicate with BHI about the delinquency. Additionally,
Tenant did not respond to Hyde’s phone calls informing him of the
power outage and the concerns about the water lines, and the
restaurant was not open or ready for business during normal
business hours. When Tenant and Hyde met on January 21, 2008,
Tenant said he was “done with the business,” and he actively
participated in trying to find someone to take over the lease.7 Based
on this evidence, the trial court’s finding that the presumption of
6. The common law requirements were relevant in Aris I, 2005 UT
App 326, 121 P.3d 24, aff’d, 2006 UT 45, 143 P.3d 278, because, in the
absence of a statutory presumption, the common law had not been
displaced. See id. ¶ 20.
7. Although these events occurred after BHI had changed the locks,
it has some relevance in establishing Tenant’s state of mind at the
relevant time. Cf. American Fork City v. Rothe, 2000 UT App 277, ¶ 7,
12 P.3d 108 (“[C]onduct before and after the offense are circumstances
from which one’s participation in the criminal intent may be
inferred.” (emphases added) (citation and internal quotation marks
omitted)).
20120367‐CA 15 2013 UT App 153Bonnie & Hyde v. Lynch
abandonment had not been rebutted by evidence of a contrary
intent is not clearly erroneous. See id. ¶ 15 (“The determination of
intent is a question of fact, which will only be reversed if the
district court’s finding is clearly erroneous.”). Accordingly, the trial
court did not exceed its discretion in concluding that Tenant had
abandoned the premises.8
III. BHI Converted Tenant’s Property When It Refused to Return
It After the Attachment Expired By Its Own Terms.
¶30 Tenant next argues that the trial court erred in ruling against
him on his claims for wrongful conversion and attachment. “A
conversion is an act of wilful interference with a chattel, done
8. Because we affirm the trial court’s decision on abandonment, we
also affirm its ruling in favor of BHI on forcible entry, unlawful
detainer, and wrongful eviction. See Utah Code Ann. § 78B‐6‐814
(LexisNexis 2012) (providing that “an owner . . . shall not be
prevented from . . . retaking the premises and attempting to rent
them at a fair rental value when the tenant has abandoned the
premises”); id. § 78B‐6‐809(1) (providing that a plaintiff asserting
forcible entry or forcible detainer shall show that “he was
peaceably in the actual possession at the time of the forcible entry,
or was entitled to the possession at the time of the forcible
detainer”); see also Frisco Joes, Inc. v. Peay, 558 P.2d 1327, 1329–30
(Utah 1977) (“A necessary predicate to the[] cause of action for
forcible entry is that [the tenants] were in actual and peaceable
possession of the property. [The tenants] could not be so if there
had been abandonment or a surrender of the premises.” (footnote
citation omitted)); Aris I, 2005 UT App 326, ¶ 22 (“Both [the forcible
entry and detainer] statutes and the tort action derived from them
require that unless a tenant plainly abandons the premises, a landlord
must resort to judicial process if he wishes to be rid of a tenant in
peaceable possession.” (alteration in original) (emphasis added)
(citation and internal quotation marks omitted)). Accordingly, we
affirm the trial court’s decision not to award damages for those
claims.
20120367‐CA 16 2013 UT App 153Bonnie & Hyde v. Lynch
without lawful justification by which the person entitled thereto is
deprived of its use and possession.” Fibro Trust, Inc. v. Brahman
Fin., Inc., 1999 UT 13, ¶ 20, 974 P.2d 288 (citation and internal
quotation marks omitted). A basic requirement of conversion is
“[t]hat there be a wrongful exercise of control over personal
property in violation of the rights of its owner.” Frisco Joes, Inc. v.
Peay, 558 P.2d 1327, 1330 (Utah 1977).
¶31 Here, the trial court found that “the property was originally
left in the restaurant by agreement and then was attached.” In
particular, the trial court found that Tenant left the personal
property on the premises because he could not afford to move it or
to store it and because he hoped the property would assist in
attracting a new tenant, thereby relieving him of his continuing
obligations under the lease. The trial court also found that Tenant
“was allowed to remove some personal property, in one instance
with [Hyde’s] assistance, and no request was made to possess the
remaining equipment for over one year.” It further determined that
“[t]his showed that [Hyde] was not barring Tenant from removing
the property.” Accordingly, the trial court concluded that BHI did
not wrongfully convert Tenant’s personal property.
¶32 Tenant contends that these findings are not supported by the
evidence. However, Hyde testified that Tenant “wanted to clean
[the personal property] in order to stage the restaurant and get it
rerented to mitigate his damages.” Tenant corroborated that
testimony, stating,
I never told [Hyde he] could keep the property. I said
if we had to rent the property, you know, it is in
place. There’s no way I’m moving it in January.
[Hyde’s] already stated there’s a hundred feet of
snow there. At that point without any money to store
it, you know, it’s one of those things where I didn’t
know where I stood legally. I owed him money.
20120367‐CA 17 2013 UT App 153Bonnie & Hyde v. Lynch
While Tenant blames his decision on the weather and his economic
circumstances, the fair inference from his testimony is that he
agreed to leave the personal property in place and that he did not
have the financial resources to store it elsewhere.
¶33 Nevertheless, Tenant argues in his reply brief before this
court that he “offered to leave his property on the premises to help
BHI find another tenant after BHI had locked [him] out of the
restaurant and exercised dominion over [his] property.” However,
Hyde testified that he could open only a side door that was blocked
by several feet of snow and that he changed the locks so that he
could enter the building using the front door. Tenant admits that
he had the locks changed sometime after he entered into the lease
but claimed that he gave a key to Hyde. The trial court found Hyde
more credible than Tenant, stating, “If [Hyde] hadn’t changed the
locks, he would be leaving [the restaurant] the way he found it
with locks that he can’t get in and out of.” The trial court also
found that Tenant never asked for a key to the new locks after
Hyde changed them. Furthermore, BHI allowed Tenant to remove
some of his personal property upon request, and Hyde helped
Tenant remove it from the premises. Under these circumstances,
the trial court’s finding that Tenant agreed to leave his personal
property on the premises is not precluded by the fact that BHI
changed the locks. Cf. English v. Standard Optical Co., 814 P.2d 613,
618 (Utah Ct. App. 1991) (upholding judgment in favor of the
landlord for past‐due rent even though the landlord changed the
locks after the tenant failed to pay rent and damaged the premises);
see also 49 Am. Jur. 2d Landlord and Tenant § 213 (2006) (“Where a
tenant abandons the premises prior to the end of a lease term and
the landlord changes the locks, this gives rise to the inference that
the landlord accepted the surrender of the premises, although a
mere surrender of the keys to the premises may not give rise to the
inference of acceptance of surrender of the premises.”).
Accordingly, we reject Tenant’s challenge to the trial court’s factual
findings regarding the initial agreement to leave the personal
property on the premises.
20120367‐CA 18 2013 UT App 153Bonnie & Hyde v. Lynch
¶34 With respect to wrongful attachment, Tenant argues that he
was not given notice or an opportunity to be heard before the writ
was granted. Tenant therefore contends that “the writ . . . expired
because there was never a hearing” and that “[n]o one bothered to
determine whether any of the property seized pursuant to the
attachment included exempt property.”9 The trial court
acknowledged that “both [Tenant] and the Court made mistakes in
the attachment proceedings.” However, the trial court overlooked
these deficiencies on the ground that Tenant “should have asked
for the writ to be set aside, which was not done until trial.”10
¶35 The issuance of prejudgment writs of attachment is
governed by rules 64, 64A, and 64C of the Utah Rules of Civil
Procedure. See Utah R. Civ. P. 64; id. R. 64A; id. R. 64C. Although
rule 64 provides that “[a]t any time before notice of sale of the
property or before the property is delivered to the plaintiff, the
defendant may file a motion to discharge the writ on the ground
that the writ was wrongfully obtained,” such a motion was not
necessary here. See id. R. 64(f)(1). Rule 64A provides that
[i]f a writ is issued without notice to the defendant
and an opportunity to be heard, . . . the writ and the
order authorizing the writ shall . . . expire [ten] days
after issuance unless the court establishes an earlier
expiration date, the defendant consents that the order
and writ be extended or the court extends the order
and writ after hearing.
9. Tenant claims that the personal property included Tenant’s
professional equipment and tools and that these items are exempt
from attachment.
10. Although Tenant did not move to discharge the writ, he denied
all the paragraphs in the complaint relating to the lessor’s lien and
the writ of attachment in his answer. In addition, Tenant raised
wrongful attachment as a counterclaim in his verified counterclaim
and in his first and second amended answer and counterclaim.
20120367‐CA 19 2013 UT App 153Bonnie & Hyde v. Lynch
Id. R. 64A(i)(5). The writ of attachment here was issued on April 3,
2008, and it was never extended by the court after hearing or by
Tenant’s consent. As a result, it expired ten days after it was issued
by the court. Cf. Bank of Ephraim v. Davis, 581 P.2d 1001, 1006 (Utah
1978) (“[F]ailure to file an inventory and return in compliance with
mandatory statutory requirements renders the attachment
proceeding void.”); Freeway Park Bldg., Inc. v. Western States
Wholesale Supply, 451 P.2d 778, 784 (Utah 1969) (determining that
an affidavit filed by the landlord did not comply with statutory
requirements and therefore the “trial court properly held that the
attachment was void”).
¶36 In February 2009, almost a year after the writ of attachment
had expired by its terms, Tenant asked BHI to return his personal
property. BHI refused to release the property, instructing Tenant
to seek redress from the trial court. However, the plain language of
rule 64A obviates any obligation for Tenant to challenge the writ,
instead providing that it “shall . . . expire [in ten] days” unless
extended by consent or an order of the court after hearing. See Utah
R. Civ. P. 64A(i)(5). At the time of the February 2009 request for its
return, BHI was holding Tenant’s personal property only by
agreement. Tenant withdrew his agreement in February 2009, yet
BHI refused to return the personal property. We agree with Tenant
that the failure to return the personal property was wrongful.11
11. We also agree with Tenant that BHI was not entitled to a
landlord’s lien. The Utah Code provides that “lessors shall have a
lien for rent due upon all nonexempt property of the lessee brought
or kept upon the leased premises so long as the lessee shall occupy
said premises and for [thirty] days thereafter.” Utah Code Ann.
§ 38‐3‐1 (LexisNexis 2010). Accordingly, the procedures to establish
a lessor’s lien “must be undertaken within thirty days of the time
lessee vacates the premises.” Webb v. Ninow, 883 P.2d 1365, 1368 n.1
(Utah Ct. App. 1994). Here, Tenant had abandoned the premises by
January 16, 2008, but BHI did not file this action for breach of
contract and lessor’s lien until more than thirty days later in March
(continued...)
20120367‐CA 20 2013 UT App 153Bonnie & Hyde v. Lynch
¶37 The trial court provisionally determined the value of the
personal property at a little more than $1,500. However, it also
found that BHI had filed a notice of claim in the bankruptcy
proceeding “for more than $65,000.00.” At trial, counsel stipulated
that, in the event that Tenant prevailed on his counterclaims, the
trial court could not offset any damages due to Tenant against the
amount due to BHI because that issue should be left to the
bankruptcy court. As a result, we remand to the trial court to enter
judgment in favor of Tenant for the value of the personal property
and stay enforcement thereof pending further proceedings in the
bankruptcy court. See generally Ralph Brubaker, Article III’s Bleak
House (Part II): The Constitutional Limits of Bankruptcy Judges’ Core
Jurisdiction, 31 No. 9 Bankruptcy Law Letter 1 (Sept. 2011) (“If the
district court concludes that [the landlord] does owe [the d]ebtor
money, in view of [the landlord’s] asserted right of setoff, the
district court could obviously rule on that issue in order to
determine the dollar amount of any judgment against [the
landlord]. Alternatively, though, the district court might well
remand the offset issue back to the bankruptcy judge . . . .”).
CONCLUSION
¶38 Tenant has not shown that the findings of fact are clearly
erroneous, and the trial court did not exceed its discretion in ruling
that under the present facts, Tenant abandoned the premises.
11. (...continued)
2008. Therefore, BHI was not entitled to a landlord’s lien on the
personal property. See Citizens Bank v. Elks Bldg., NV, 663 P.2d 56,
58 (Utah 1983) (“[B]y the express terms of the statute, the lessor’s
statutory lien terminates thirty‐one days after the lessee has quit
the premises.” (citing Utah Code Ann. § 38‐3‐1 (1974) (current
version at id. (LexisNexis 2010)))); Eason v. Wheelock, 120 P.2d 319,
320 (Utah 1941) (holding that a landlord’s lien was valid because it
was exercised within thirty days and admonishing that “[a]ny act
after that date would be one of withholding the property”).
20120367‐CA 21 2013 UT App 153Bonnie & Hyde v. Lynch
Accordingly, the trial court properly dismissed Tenant’s claims for
forcible entry, unlawful detainer, and wrongful eviction. The trial
court erred in denying Tenant’s wrongful conversion and
attachment claims because the writ of attachment had expired by
the time Tenant withdrew his consent to BHI’s possession of the
personal property. We therefore remand to the trial court for entry
of judgment in favor of Tenant for the value of that personal
property, which the trial court found was approximately $1,500,
with the understanding that this amount will be offset against any
amounts deemed owing to BHI in the bankruptcy proceedings.
20120367‐CA 22 2013 UT App 153