Lead Opinion
This wаs an action to collect rentals past due on a lease and for an attachment of property to secure such rentals. The defendants counterclaimed for wrongful attachment and wrongful eviction and asked for general and punitive damages. Hereafter the plaintiff (respondent) will be referred to as the landlord, and the defendants (appellants) will be referred to as tenants.
This case was taken from the jury by the trial judge, who found for the landlord except that on the issue.of wrongful attachment he found for the tenants but awarded nominal damages only.
The tenants appeal and assign two grounds of error: (1) In failing to find a wrongful eviction, and (2) in refusing to allow the jury to determine the question of damages, both general and punitive.
Before discussing the points raised by this appeal, we should note the following facts:
The lease was in writing and was for two years’ duration with rents payable monthly, the first and last months’ rental being paid at the time of the signing of the lease.
The rental payments were duly made for IS months. A check given by the tenants for the rental due July IS, 1966, would not clear the bank because of insuffiсient funds. No further payments were ever made by the defendants.
On September 26, 1966, the plaintiff commenced this action by filing a complaint and securing a writ of attachment for the property of the defendants upon the leased premises.
The lease covered approximately 4,000 square feet of a warehouse building, including S00 square feet of office space. The attorney for the landlord accompanied the officer еxecuting the writ of attachment and directed him to attach some $15,000 worth of inventory and to remove the employee of the tenants from the office and change the locks on all doors.
On October 6, 1966, a notice to pay the rent due or quit the rented property was served upon the defendants. Five days later no rent having been paid, the landlord purported to amend its complaint to state a claim in unlawful detainer.
The proрriety of attempting to mix other causes of action with one for unlawful de-tainer has not been raised in this case.
We will examine the various assignments of error.
WRONGFUL EVICTION
The lease contained a provision to the effect that if rent was unpaid for a period of IS days, the landlord could elect to re-enter and take possession without notice or legal process.
At early common law this power of the landlord was sanctioned, but since eviction often led to a breach of the peace, a statute of forcible entry
The law as it presently exists in England permits a landlord to use reasonable force .to expel an occupant from a wrongful possession without the landlord being liable for tort.
In the absence of a statute to the contrary, the weight of authority in the United States also is that the parties may agree in a lease that the landlord may re-enter with or without force for specific conditions broken; and when the-specified condition -has been broken; if the landlord can re-enter and take possession without causing a breach of the peace, he may do so, .and the tenant will have no cause for action. See annotation in
• However, in states with a forcible entry statute such as Utah 'has, such а provision in a lease has -been 'held to be void as against public policy. Jordan v. Talbot,
Our forcible entry and detainer statute (Sec. 78-36-3, U.C.A.1953) provides a speedy and adequate , remedy against a tenant who wrongfully is in possession of land. It says that “every person” who does certain things is guilty,of forcible entry, etc. There is no exception in the statute for one who may by contract be authorized to enter, or for an owner, who as a mattеr of law may have a right to the possession. Everyone is guilty of a forcible entry who commits the acts specified. All that an occu-■pan-t needs to show in order to be protected against self-help eviction is to show that he was in peaceful possession of the land within five days prior to the unlawful entry. If this is shown by a tenant in possession, the one entitled thereto must secure his rights under the statute; and if he takes 'the law into his own hands and turns a tenant in peaceable possession out by means of 'force, fraud, intimidation, stealth, or by any kind of violence, he makes himself liable to-that tenant for damages.
In the case of Peterson v. Platt,
*271 Our previous decisions construing our forcible entry and detainer statute places a duty on a person whether entitled to the real property in question or not, to not use force or stealth or fraud in obtaining possession of such realty. Such forcible entry and detainer statute creates a right in a person who is in actual peaceable possession of such real property to a cause of actiоn against a person who, in his absence, and without legal process, by force, stealth or fraud, takes the possession of such property from him. Such being the law, the judgment is affirmed. * * *
In the case of King v. Firm,
* * • * However, even if the notice of “termination of lease” served on King was an unequivocal act evidencing the landlord’s election to terminate the lease, it does not follow that without King’s consent and during his absence they could rightfully entеr and dispossess him. Utah has enacted Forcible Entry and Detainer Statutes and a landlord may not without the express consent of a tenant repossess his property without resorting to remedies provided in those statutes. ’* * *
******
* * * There is no question under Utah cases that a violation of the duty set by the statute gives rise to an action for damages, not in an action under the Forcible Entry and Detainer Statute but as a separate tort. * * *
Appellant King could have brought action under the Forcible Entry Statute to regain possession of the property and damages incidental to his ouster; but he did not choose that remedy. The statute places a duty upon any person, whether entitled to possession or not, not to use force or stealth or fraud in gaining possession of realty. Correspondingly, it creates a right in the person in actual peaceable possession not to have his pos*272 session disturbed other than by legal process. Therefore, regardless of his lack of entitlement to the property, King had a cause of action for the invasion of that right. * * *
Hargrave v. Leigh,
* * * It was plain from the facts and circumstances proved that the at..tachment proceedings were resorted to in the absence of the plaintiff as a means of evicting her from the apartment. * * *
The fact that the defendant Forbes procured and actively participated in the wrongful eviction was expressly proved, and the circumstances of the transaction, together with the plain purpose and object of the proceeding, were such that the court was fully justified in implying that the conduct of Forbes was malicious. ‡ ‡
Even if the attachment in the instant case had beеn lawful, the eviction of the tenants was not. It was up to the officer attaching the personal property to keep it safe; and while it may be proper to lock attached property in a warehouse where because of bulk it cannot be moved, this does not say that a tenant can be denied access to his office space simply to accommodate the sheriff. We hold that there was an unlawful eviction of the tenants in this case and that plaintiff is liable for such damages as it caused, including a possible punitive measure.
JURY TO ASSESS DAMAGES
The trial judge did not believe the tenant had sustained any damages by reason of the wrongful attachment.
There was evidence to the effect that the tenants had made a profit during the five months immediately preceding the attachment amounting to approximately $15,000. The records were not complete, and a certified public accountant doing the best he could with what he had calculated the gross sales for the five-month period to be $136,-000 and the net profit as stated above.
The fact that a business has not been in operation long enough to have a history of profit or loss should not deprive one of the right to convince a jury, if he can do so, that he would have made a prof
Where no books are kept in a simple business enterprise, an estimate of profits may be given by one who is experienced in the business. Graham Hotel Company v. Garrett,
In this case concrete data was given in evidence; and while the records were not sufficient to give the exact prior earnings, we think they were sufficient to enable the jury to infer the amount of damages, if any, which were occasioned by reаson of the wrongful attachment and eviction, and thus to give a just verdict in the case. See McCormick on Damages, Hornbook Series, Sec. 229.
There was also testimony that as soon as the salesmen for the tenants learned that there would be no material for jobs,
If the jury should conclude that the landlord acted maliciously in attaching some $15,000 worth of merchandise to secure a $348 payment and in connection therewith wrongfully evicted the tenаnts, they should be permitted to assess the damages, and the landlord is in a poor position to insist that the damages he caused must be proved to a mathematical certainty. Certainly the evidence was such as to sustain a finding that a going business was completely disrupted, if the jury chose to so find.
The trial judge found that the actions of the landlord were not malicious, unlawful, or without probable cause, and concluded that punitive damages would not lie, although he awarded nominal damages for the wrongful attachment.
The statutes of some states specifically make want of probable cause an element of a cause of action for wrongful attachment. Utah has no such statute, and we think one who wrongfully attaches property should respond for the mischief which he causes. We further think the court erred in not permitting the jury to determine whether or not the actions of the landlord wеre a mere subterfuge to dispossess the tenants and thus be unlawful and malicious under the evidence given in this case.
By Sec. 38-3-1, U.C.A.1953, the landlord had a lien for rent due upon all nonexempt property of the tenants brought or kept upon the leased' premises and for 30 days thereafter. The landlord may have the personal property of tenants subject to the lien attached without any other grounds for attachment being stated. Sec. 38-3-3, U.C.A.1953. However, bеfore the lessor may cause such a writ of attachment to issue, he must file a complaint and an affidavit duly sworn to, setting forth the amount of the rent due, a brief description of the leased premises, and must further state under oath that such writ of attachment is not sued out for the purpose of vexing or harassing the lessee. Sec. 38-3-4, U.C.A.1953.
The affidavit filed by the landlord did not comply with this last provision of the statute, and the trial court properly held that the attachment was void.
ARE THE TENANTS ESTOPPED TO ASSERT WRONGFUL ATTACHMENT?
The landlord cites many cases holding that when a bond is given to secure the release of attached property, the defendant and his bondsmen are estopped to deny that the attachment was lawful when they are sued upon the bond. This is especially proper where the property is released at the instance of the owner and thereafter he suffers a judgment to be taken against him. Neither he nor his bondsmen should be heard to say that the attachmеnt was wrongfully issued and, therefore, they need not respond on their solemn obligation to produce the property or to pay the judgment. If a defendant and his bondsmen desire to contest the validity of the attachment, they should do so without giving a forthcoming bond or a bond to pay the judgment. The cases cited are not authority for the proposition that a defendant may not put up a bond to get his property back without losing his cause of aсtion for wrongful attachment when his liability on the bond is not called in question. There is no merit to this contention.
WERE NOMINAL DAMAGES ERRONEOUSLY ASSESSED?
The question of nominal damages has been sufficiently discussed above. In addition to what has been said.we also think the jury should be permitted to determine whether the landlord acted maliciously in evicting the tenants so as to justify the imposition of punitive damages and, if so, the amount thereof.
" The judgment of the trial court is reversed and the case is remandеd for a new trial. The appellants are awarded their costs.
In view of statements contained in the dissenting opinions, it is appropriate to make the following observations:
This action was begun for rent due. The counterclaim was filed for wrongful eviction. Thereafter in an effort to cure the wrongful eviction the plaintiff tried to bring in a question of unlawful detainer. The appellants have never sought anything except damages for the tort inflicted upon them and this opinion deals only with the questions presented to us by way of the assignments of error.
Notes
. 5 Rieli.2d, c. 2.
. Turner v. Meymott, 130 Eng.Rep. 64 (1823) ; Pollen v. Brewer, 141 Eng. Rep. 860 (1859).
. Newton v. Harland, 133 Eng.Rep. 490.
. Hemmings v. Stoke Poges Golf Club, 1 K.B. 720 (1920).
. See footnote 3.
. The business oí the defendants was selling and installing home-improvement jobs.
Dissenting Opinion
(dissenting):
Defendants’ basic point on appeal is that they were not served with a notice to quit until the sixth of October, 1966, and that plaintiff commenced its action September 26, 1966; therefore, defendants were wrongfully evicted for plaintiff’s failure to comply with Section 78-36-3(3), U.C.A.1953. Defendants’ аrgument is without merit, since plaintiff’s action in September was to enforce an alternative remedy, namely, the enforcement of a landlord’s lien by a writ of attachment.
To further clarify this matter, the landlord pursued two remedies in sequence. First, plaintiff filed a complaint for rentals due, for a writ of attachment and restitution. Ah affidavit was filed contemporаneously with the complaint, and a writ of attachment was granted by the court. A praecipe was issueci to the sheriff instructing him to attach all personal property located on the premises, to change the locks, to remove all persons located therein, and to take possession thereof. Subsequently, defendants furnished an undertaking, and on October 6, 1966, the attachment was dissolved, and the defendants’ bond was substituted therefor. On Octоber 6, 1966, plaintiff served a three-day notice to pay rent or terminate the tenancy, and on the lith of October, plaintiff amended its complaint to include an unlawful detainer action.
Defendants have elected not to appeal in regard to their counterclaim for wrongful attachment for which the trial court awarded them damages. Their sole claim of error involves an alleged wrongful eviction-which they attribute to plaintiff’s failure
See Sections 38-3-1 and 38-3-35 U.C.A. 1953.
Dissenting Opinion
(dissenting) :
I dissent since I think the main opinion seems to be deciding issues foreign to and not raised on this appeal.
Western urges wrongful eviction because of failure to give timely notice pursuant to the unlawful detainer statute.
The trial court is called to determine whether plaintiff’s use of the writ of attachment to close the premises and deprive the defendants from access thereto was improper; whether plaintiff wrongfully evicted the defendants from the premises pursuant to the unlawful de-tainer statute; and if improper conduct is found on the part of the plaintiff, to determine what damages, if any, resulted to defendants from plaintiff’s action.
The trial court found there was a wrongful attachment, and gave damages therefor, and Western does not complain about such award on appeal. Western’s grounds for appeal are only that Freeway violated the unlazvful detainer statute by failing to give proper notice thereunder, and a question as to damages.
Nonetheless, the main opinion decides the issues under the provisions of the forcible entry statute,
Without commenting on the merits under the particular facts of this case, possibly it could be argued the forcible entry was an issue on this appeal, — but Western was not constrained to urge it. Hence this issue is not before us.
True, the main opinion has decided the wrongful attachment issue, raised not by appellant, but by respondent, in its favor, based on insufficiency of the affidavit sup
This court often has refused to consider issues not raised save for the first time on appeal,
. 78-36-3(3), Utah Code Annotated 1953.
. 78-36-1, 78-36-2, Utah Code Annotated 1953.
.78-36-9, Utah Code Annotated 1953.
. In re Estate of Ekker,
. Porcupine Reservoir Co. v. Lloyd W. Keller Corp.,