Win-Win v. Dutson, 483 P.3d 64

In Feb 2015 Win-Win Investments (lessee) signed a written lease with Bernhard and Azora Dutson (lessors) that included a $350,000 purchase option; Win-Win never deposited the $1,000 earnest-money required by the Lease.
Win-Win subleased the Property to Foundation for Family Life of Utah; Lease had an initial one-year term renewable annually; Win-Win renewed in Jan 2016 but failed to timely renew thereafter and the Lease expired by March 2017.
After the Dutsons sent a notice to vacate, Win-Win sued alleging wrongful termination and failure to recognize its purchase option; the Dutsons counterclaimed for breach of the Lease for failure to maintain the premises and sought declaratory relief denying the option.
At bench trial the court dismissed Win-Win’s claims (option not timely exercised) and left the Dutsons’ counterclaim; after the Dutsons presented their damage case, Win-Win’s owner testified for the first time that Win-Win had assigned the Lease to Foundation.
Win-Win argued post-trial that assignment barred liability, relying on a broad affirmative-defense clause in its answer and seeking to amend pleadings under Utah R. Civ. P. 15(b); the district court held assignment was not pleaded, denied amendment (no implied consent), and awarded $146,065.05 in damages plus fees.
The Court of Appeals affirmed: assignment was not pleaded; assignment was not tried by implied consent; sufficient evidence supported damages; appellees entitled to appellate attorney fees.

Issue	Win-Win's Argument	Dutsons' Argument	Held
Was assignment pleaded as an affirmative defense under Utah R. Civ. P. 8(c)?	The answer’s catch‑all defenses (including “release”) encompassed assignment.	Win‑Win never used the term “assignment” or similar language to give fair notice.	Court: Not pleaded; “release” language insufficient to give notice.
Was the unpleaded assignment defense tried by implied consent (Utah R. Civ. P. 15(b)(1)) so pleadings must be deemed amended?	No contemporaneous objection to Mr. White’s testimony amounted to implied consent; mandatory amendment required.	Assignment was first raised at trial’s end, inconsistent with prior disclosures and trial position; Dutsons lacked notice/opportunity to defend.	Court: No implied consent; discretionary denial of amendment was appropriate.
Was the district court’s damages award supported by sufficient evidence?	Damages were speculative; witnesses could not fix when damage occurred; insufficient proof Win‑Win caused damage.	Photographs, unrebutted expert repair-costs, and testimonial history supported that damage occurred during Win‑Win’s possession or were items Win‑Win agreed to repair.	Court: Award supported by record; not against clear weight of evidence.
Are Dutsons entitled to attorney fees on appeal under the Lease?	(No separate argument preserved)	Lease’s attorney‑fee provision entitles prevailing party to appellate fees.	Court: Yes; remanded to calculate reasonable appellate fees.

Hart v. Salt Lake County Comm'n, 945 P.2d 125 (clarifies standards of review for findings of fact and conclusions of law)
Mack v. Utah State Dep't of Commerce, 221 P.3d 194 (defenses not raised in responsive pleading are waived)
Fishbaugh v. Utah Power & Light, 969 P.2d 403 (pleadings must give fair notice to opposing party)
Pilot v. Hill, 437 P.3d 362 (district court has broad discretion in determining whether issue was tried by implied consent under Rule 15(b))
Berg v. Berg, 278 P.3d 1071 (when an unpleaded issue is tried by consent it must be treated as pleaded)
Estate of Allred, 216 P.3d 929 (distinguishes mandatory and discretionary aspects of Rule 15(b))
Guss v. Cheryl, Inc., 240 P.3d 1142 (implied consent may be found where opposing party actively defends unpleaded issue)
Koehler v. Allen, 466 P.3d 738 (standard for sufficiency of evidence in bench trials)
Telegraph Tower LLC v. Century Mortg. LLC, 376 P.3d 333 (prevailing party awarded appellate attorney fees when entitled below)