Mountain View Colonial Apartments v. Isais

2017 UT App 104

THE UTAH COURT OF APPEALS

MOUNTAIN VIEW COLONIAL APARTMENTS,
Appellee,
v.
REBECCA ISAIS,
Appellant.

Opinion
No. 20160184-CA
Filed June 29, 2017

First District Court, Brigham City Department
The Honorable Brandon J. Maynard
No. 150100111

Zachary C. Myers, Attorney for Appellant
Charles A. Schultz, Attorney for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN and DAVID N. MORTENSEN
concurred.

VOROS, Judge:

¶1 Rebecca Isais (Tenant) appeals from the district court’s
order evicting her from an apartment she leased from Mountain
View Colonial Apartments (Landlord). We reverse the district
court’s eviction order.

BACKGROUND

¶2 Tenant entered a rental agreement with Landlord that
included a “Crime and Drug-Free Housing Agreement”
prohibiting “drug related criminal activity.” On August 4, 2015,
police officers searched Tenant’s apartment after reports of a
marijuana odor. Landlord then taped a “Notice of Infraction” to
Tenant’s door alleging violations of the rental agreement,
Mountain View Colonial Apartments v. Isais

including “use of marijuana by [Tenant] and/or guest.” Landlord
filed a complaint and served Tenant with a three-day summons. 1
Tenant filed a pro se answer asserting, among other things, that
she had received no notice to quit the premises. Landlord then
filed a motion for immediate eviction and a request for an
expedited hearing.

¶3 On October 2, 2015, the court held an expedited eviction
hearing. Tenant testified that police had detected marijuana
residue on some “old mason jars” found in the search of her
apartment on August 4. She was unaware of the residue before
the police alerted her to it and was never charged. Based on this
testimony, the court found that Tenant “did admit to illegal
activity on the premises” and that “there was illegal activity that
took place on August 4th as it relates to drug possession and/or
drug use.” Landlord’s apartment manager testified that she
posted the “Notice of Infraction” “[o]n the inside door of the side
entrance” to Tenant’s apartment. The court found that “notice of
eviction . . . was provided.” The court granted the eviction order,
giving Tenant three days to quit the premises.

¶4 Tenant filed a motion to amend her answer and a motion
to alter or amend the judgment or grant a new trial under rule 59
of the Utah Rules of Civil Procedure. The court denied both
motions, concluding that the eviction order “was not an error of
law.” Although the district court did not specifically address the
notice to quit in its memorandum decision on Tenant’s rule 59
motion, the court reiterated its earlier ruling that “[Landlord]
provided [Tenant] proper eviction notices.” Tenant appeals the
eviction order.

1. Tenant claimed that she had not been served with a summons;
however, the district court found that she had.

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ISSUE AND STANDARD OF REVIEW

¶5 Tenant contends that the district court “abused its
discretion by ordering the eviction of [Tenant] without proof
that a proper notice to quit was served.” We read this claim on
appeal as a challenge to the legal sufficiency of the notice that,
the parties agree, Landlord served on Tenant.

¶6 Tenant contends that the notice, whose content is
undisputed, did not comply with statutory requirements. The
claim on appeal thus involves the application of the law to a
given set of facts. Our supreme court has stated, “On mixed
questions—involving application of a legal standard to a set of
facts unique to a particular case—our review is sometimes
deferential and sometimes not.” Supernova Media, Inc. v. Pia
Anderson Dorius Reynard & Moss, LLC, 2013 UT 7, ¶ 13, 297 P.3d
599 (citation and internal quotation marks omitted). The degree
of deference we afford depends on the following factors:

(1) the degree of variety and complexity in the facts
to which the legal rule is to be applied; (2) the
degree to which a trial court's application of the
legal rule relies on facts observed by the trial judge,
such as a witness’s appearance and demeanor,
relevant to the application of the law that cannot be
adequately reflected in the record available to
appellate courts; and (3) other policy reasons that
weigh for or against granting discretion to trial
courts[.]

Id. (citation and internal quotation marks omitted). Where, as
here, “the facts are not at issue” and the question is “the legal
effect of a given set of facts”—a single document, in fact—the
question before the reviewing court is “law-like” and thus
reviewed under a non-deferential standard. See Murray v. Utah
Labor Comm’n, 2013 UT 38, ¶¶ 39–40, 308 P.3d 461 (internal
quotation marks omitted).

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ANALYSIS

I. Appellate Jurisdiction

¶7 As a preliminary matter, Landlord contends that “[t]his
court lacks subject matter jurisdiction of [Tenant’s] appeal.”
Landlord argues that “[b]ecause [Tenant] did not file her motion
to alter or amend until after she filed her notice of appeal, the
motion is invalid, and the district court had no jurisdiction to
consider it or rule on it.” Landlord argues that Tenant’s “second
notice of appeal, filed on March 7, 2016, was filed more than
thirty days after the district court issued its judgment on October
5, 2015, and that notice of appeal is untimely.” Tenant responds
that, “[w]hen a Rule 59 motion is filed, jurisdiction stays with the
district court until the district court disposes of the motion.”
Tenant also argues that a “notice of appeal is not deemed to be
filed until after the district court rules on a Rule 59 motion.”

¶8 The “initial inquiry of any court should always be to
determine whether the requested action is within its
jurisdiction.” Allred v. Allred, 835 P.2d 974, 977 (Utah Ct. App.
1992) (citation and internal quotation marks omitted). “We
independently determine whether the appeal is proper when
reviewing a jurisdictional issue.” Id.

¶9 Rule 4(b) of the Utah Rules of Appellate Procedure
provides in part that if a party timely files a rule 59 motion, “the
time for all parties to appeal from the judgment runs from the
entry of the dispositive order.” See Utah R. App. P. 4(b)(1)(D).
Thus, “[a] notice of appeal filed after announcement or entry of
judgment, but before entry of an order disposing of [the rule 59
motion], shall be treated as filed after entry of the order and on
the day thereof, except that such a notice of appeal is effective to
appeal only from the underlying judgment.” See id. R. 4(b)(2). In
other words, “[a] timely motion filed pursuant to Rule 59 tolls
the time for appeal pending resolution of the motion.” Allred, 835
P.2d at 977 (citing Utah R. App. P. 4(b)).

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¶10 Generally, the deadline for filing a notice of appeal is 30
days. Utah R. App. P. 4(a). However, in an unlawful detainer
action, the deadline to file a notice of appeal is 10 days. Utah
Code Ann. § 78B-6-813(1) (LexisNexis 2012).2

¶11 Here, Tenant filed her first notice of appeal on October 5,
2015, the same day that the district court ordered eviction.
Tenant filed a timely rule 59 motion 10 days later. Her initial
notice of appeal was later dismissed on procedural grounds. The
district court issued its memorandum decision and order on the
rule 59 motion on February 26, 2016. The time to appeal ran from
the date the district court entered the order disposing of Tenant’s
rule 59 motion. See Utah R. App. P. 4(b)(1)(D). Rule 59 thus
tolled the time to appeal the underlying judgment until the
district court resolved her motion. See id. R. 4(b)(2); Allred, 835
P.2d at 977. Tenant filed a second notice of appeal on March 7,
2016, within the 10-day window.3 Because Tenant filed her
second notice of appeal within 10 days of the district court’s
order disposing of the rule 59 motion, her appeal is timely, and
this court has jurisdiction. See Utah Code Ann. § 78B-6-813(1).

II. Nature of the Action

¶12 Tenant’s contentions on appeal rely on provisions of the
unlawful detainer statute. See Utah Code Ann. §§ 78B-6-807, -810
(LexisNexis 2012). Landlord responds that Tenant “falsely claims

2. The parties dispute whether this action is an unlawful detainer
action. In part II of this opinion, we conclude that it is.

3. Because the last day of the 10-day period to file an appeal fell
on a Sunday, the period extended to Monday, March 7, 2016. See
Utah R. App. P. 22(a) (providing that in computing time to file
an appeal, “[t]he last day of the period shall be included, unless
it is a Saturday, a Sunday, or a legal holiday, in which event the
period extends until the end of the next day that is not a
Saturday, a Sunday, or a legal holiday”).

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that this case is an ‘unlawful detainer’ case.” Landlord asserts
that Tenant “was evicted for nuisance violations under [Utah
Code section] 78B-6-1107 and [Utah Code section] 78B-6-1108,
for possessing, using, and allowing others, at the apartment she
was renting from [Landlord], to possess and use unlawful
drugs.” Thus, as a threshold matter, we must decide whether
Landlord acted to evict Tenant under the unlawful detainer
statute or under the nuisance statute.4

¶13 “Utah’s unlawful detainer statute provides landowners
with a summary remedy to recover possession of their property
from their tenants who may be in violation of a lease provision.”
Osguthorpe v. Wolf Mountain Resorts, LC, 2010 UT 29, ¶ 22, 232
P.3d 999 (citation and internal quotation marks omitted). “The
unlawful detainer statute is a summary proceeding” that
“provides a severe remedy” and “must be strictly complied with
before the cause of action may be maintained.” Sovereen v.
Meadows, 595 P.2d 852, 853 (Utah 1979). “To be guilty of
unlawful detainer, a party must be a tenant in possession of real
property and must have violated a term of the lease, committed
waste, remained on the property beyond the legal term of the
lease, or engaged in any such acts enumerated in Utah Code
sections 78B-6-802(1)(a)–(h)[.]” Osguthorpe, 2010 UT 29, ¶ 21. In
an unlawful detainer action, a landlord may serve a tenant with
a three-day summons and request an expedited evidentiary
hearing at which the court may immediately order eviction. See
Utah Code Ann. §§ 78B-6-807, -810. In sum, the unlawful
detainer statute constitutes “a mechanism for quickly and clearly
resolving conflicts over lawful possession of property between
landowners and tenants.” See Osguthorpe, 2010 UT 29, ¶ 22.

4. We use “unlawful detainer statute” to refer generally to Part 8
of Chapter 6 of Title 78B of the Utah Code, “Forcible Entry and
Detainer.” We use “nuisance statute” to refer generally to Part 11
of Chapter 6 of Title 78B of the Utah Code, “Nuisance,”
including, in particular, sections 1107 through 1109 dealing with
abatement by eviction.

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¶14 The nuisance statute allows any citizen residing in the
county where a nuisance is located to “maintain an action in a
court of competent jurisdiction to abate the nuisance and obtain
an order for the automatic eviction of the tenant.” Utah Code
Ann. § 78B-6-1108(1) (LexisNexis 2012). “A nuisance is anything
which is injurious to health, indecent, offensive to the senses, or
an obstruction to the free use of property, so as to interfere with
the comfortable enjoyment of life or property.” Id. § 78B-6-
1101(1). To obtain an order of abatement by eviction, the
applicant must show and the district court must find four
elements by a preponderance of evidence:

(1) the applicant will suffer irreparable harm
unless the order of abatement by eviction
issues;

(2) the threatened injury to the applicant
outweighs whatever damage the proposed
order of abatement by eviction may cause the
party so ordered;

(3) the order of abatement by eviction, if issued,
would not be adverse to the public interest; and

(4) there is a substantial likelihood that the
applicant will prevail on the merits of the
underlying claim, or the case presents serious
issues on the merits which should be the subject
of further litigation.

Id. § 78B-6-1109.

¶15 We agree with Tenant that Landlord brought an unlawful
detainer action. The complaint mentions neither “unlawful
detainer” nor “nuisance.” It states three causes of action—
eviction, breach of contract, and breach of the covenant of good
faith and fair dealing. All three causes of action cite the unlawful
detainer statute; the second and third also cite the nuisance

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statute. The complaint alleges none of the four statutory grounds
required for abatement by eviction. See id. Instead, the complaint
alleges facts that could support an unlawful detainer: a nuisance
on the premises, commission of a crime, and breach of the lease.
See id. § 78B-6-802(f)–(h).

¶16 After filing the complaint, Landlord filed a “Motion for
Order Immediately Evicting the Defendant” requesting “an
order of immediate eviction of the defendant as provided in
[section] 78B-6-811,” the unlawful detainer statute. The
accompanying memorandum asserted that, “pursuant to the
provisions of [section] 78B-6-811”—again, the unlawful detainer
statute—Landlord was “entitled to an order immediately
evicting the defendant from the apartment.” Neither Landlord’s
motion nor its memorandum cited the nuisance statute,
mentioned abatement by eviction, or alleged any of the statutory
grounds to support an abatement by eviction.

¶17 At the eviction hearing, Landlord cited neither the
unlawful detainer statute nor the nuisance statute. Instead, it
described the proceeding as “[b]asically, . . . a case of an eviction
for . . . the use of drugs in the apartment in violation of the drug
free contract.” The district court entered an order for immediate
eviction. The order did not identify the unlawful detainer
statute, the nuisance statute, or any other legal basis for the
eviction, nor did it refer to any of the statutory factors that must
be shown to justify an order of abatement by eviction.

¶18 Tenant moved for a new trial or to amend the judgment
under rule 59 of the Utah Rules of Civil Procedure. At the
hearing on her motion, Tenant argued that the unlawful detainer
statute could not support an eviction: “because you have no
notice, there is no unlawful detainer, and you can’t get the
remedies provided under the unlawful detainer statute because
you have to strictly comply with the unlawful detainer statute.”
Landlord responded that it did not need to strictly comply with
the unlawful detainer statute because “[t]his is not an unlawful
detainer case . . . . It’s a case of abatement of a nuisance under

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78B-6-1107.” Tenant countered that the court could not order
eviction under the nuisance statute because Landlord had made
no attempt to show the four statutory requirements for an
abatement by eviction. The court denied Tenant’s motion in a
memorandum decision stating that it had granted a nuisance
abatement by eviction under section 78B-6-1108. The
memorandum decision did not refer to the four factual showings
required by the nuisance statute. See Utah Code Ann. § 78B-6-
1109 (LexisNexis 2012).

¶19 Because Landlord relied predominantly on the unlawful
detainer statute in its complaint, relied solely on the unlawful
detainer statute in requesting an immediate eviction hearing,
and made no attempt to prove any of the statutory prerequisites
for abatement of a nuisance by eviction, we cannot agree with
Landlord that Tenant “falsely claims” the proceeding is one for
unlawful detainer. On the contrary, on balance we agree with
Tenant on this point.5

¶20 The court’s rulings do not clear up the muddle. Its order
of eviction is silent on the matter, and its later memorandum
decision bolsters more than undermines our conclusion. That
memorandum pays lip service to the nuisance statute but
ignores the statutory requirements for an abatement by eviction.

5. In 18 pages of argument, counsel for Landlord accuses Tenant
of asserting falsehoods over 25 times. Yet, as we have concluded,
Tenant’s claims were accurate. Thus, each of those 25 accusations
of making false claims was itself false. See Utah R. Jud. Admin.
14-301(3) (“Lawyers shall not, without an adequate factual basis,
attribute to other counsel or the court improper motives,
purpose, or conduct. Lawyers should avoid hostile, demeaning,
or humiliating words in written and oral communications with
adversaries. Neither written submissions nor oral presentations
should disparage the integrity, intelligence, morals, ethics, or
personal behavior of an adversary unless such matters are
directly relevant under controlling substantive law.”).

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We thus proceed to Tenant’s contention that Landlord failed to
comply with the unlawful detainer statute.6

III. Notice to Quit

¶21 Tenant contends that Landlord’s “failure to prove a notice
to quit was served is fatal to its claim of unlawful detainer.”
Tenant argues that the “notice that [Landlord] claims was taped
to [Tenant’s] door is facially invalid,” because “[t]he notice of
infraction did not state that [Tenant] must quit the premises, nor
[did] it state [the] number of days within which she must leave.”
Landlord responds that Tenant’s “assertion that she was not
properly served with a notice to quit is not supported by the
facts.”7

¶22 The unlawful detainer statute provides specific
requirements for the notice to quit that a landlord must serve on
a tenant prior to eviction. See Utah Code Ann. § 78B-6-802
(LexisNexis 2012). Where the tenant “continues in
possession . . . after a neglect or failure to perform any condition
or covenant of the lease or agreement under which the property
is held,” the landlord must provide a “notice in writing”
requiring “in the alternative the performance of the conditions or

6. We have concluded that this action is one for unlawful
detainer in part because the district court did not require
Landlord to prove, and Landlord made no attempt to prove, the
four statutory requirements for an abatement by eviction. Thus,
even if we agreed with Landlord that this action was one for
abatement of a nuisance by eviction, these facts would compel
the conclusion that the district court plainly erred in ordering an
eviction in derogation of the clear text of the nuisance statute.

7. Although Landlord argues that Tenant has failed to marshal
the evidence supporting the district court’s factual findings on
the notice to quit, we are adjudicating Tenant’s challenge to the
legal sufficiency of the notice to quit.

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covenant or the surrender of the property,” i.e., that the tenant
quit the premises, within “three calendar days after service.” See
id. § 78B-6-802(h). This notice to quit must be “served upon the
tenant and upon any subtenant in actual occupation of the
premises.” Id. These notice requirements apply where, as alleged
here, the tenant “suffers, permits, or maintains on or about the
premises any nuisance,” “commits a criminal act on the
premises,” or “fail[s] to perform any condition or covenant of the
lease.” See id. § 78B-6-802(f)–(h).

¶23 In sum, “[t]he statutory procedure for an unlawful
detainer claim mandates a three-day window for a tenant,
served with notice, to either quit the premises or ‘save the lease
from forfeiture.’” Osguthorpe v. Wolf Mountain Resorts, LC, 2010
UT 29, ¶ 22, 232 P.3d 999 (quoting Utah Code Ann. § 78B-6-
802(2) (LexisNexis 2008)). The requirements for service of the
notice to quit “must be strictly complied with in order to enforce
the obligations imposed by [the statute].” Id. (alteration in
original) (citation and internal quotation marks omitted). “Until
the tenancy is terminated by proper notice to quit there is no
unlawful detainer. The notice to quit is necessary to give rise to
the cause of action.” Sovereen v. Meadows, 595 P.2d 852, 854 (Utah
1979) (citation and internal quotation marks omitted). Therefore,
“[w]hen it appears that the tenancy has not been terminated by
proper notice, the court should dismiss the suit on the grounds
that there is no cause of action.” Id. (citation and internal
quotation marks omitted).

¶24 Here, the only “notice to quit” before the district court
was the “Notice of Infraction” posted on Tenant’s door on
August 4. This “Notice of Infraction” did not comply with the
requirements for a notice to quit under the unlawful detainer
statute. See Utah Code Ann. § 78B-6-802(h) (LexisNexis 2012). It
contained no alternative demand that Tenant perform the
conditions and covenants of the lease or surrender the property.
See id. And it did not demand that Tenant comply within three
days of service of the notice. See id. On the contrary, it stated that
“three notices of infraction shall be just cause for cancellation of

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the residential lease and eviction of the resident.” (Emphasis
added.) Far from informing Tenant that she was required to quit
the premises, this notice informed her that she was not required
to quit the premises—at least not yet.

¶25 Therefore, “because the statute was not strictly complied
with, [Tenant] was not in unlawful detainer and [Landlord] was
not entitled to maintain the unlawful detainer action against
her.” See Sovereen, 595 P.2d at 854. Where, as here, “the tenancy
[was] not terminated by proper notice, the court should [have]
dismiss[ed] the suit on the grounds that there [was] no cause of
action.” See id. (citation and internal quotation marks omitted).

¶26 We therefore conclude that the district court erred in
ruling that a proper notice to quit was served and in ordering
eviction based on unlawful detainer. Accordingly, we reverse
the eviction order.8

CONCLUSION

¶27 For the foregoing reasons, the eviction order of the district
court is reversed.

8. Tenant also contends that the “notice was not given in
compliance with federal regulations” and that the summons did
not comply with legal requirements. “Because we have resolved
the unlawful detainer issue on other grounds, we need not reach
[those] argument[s].” Cf. Koerber v. Mismash, 2015 UT App 237,
¶ 30 n.6, 359 P.3d 701 (declining to reach the notice-to-quit issue
after resolving the unlawful detainer claim on the summons
issue).

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