Lincoln Financial Corp. v. Ferrier
567 P.2d 1102
Utah
1977
Check Treatment

*1 1102 require.1 so Never- justice of interests with

theless, difficulties there are several CORPORATION, LINCOLN FINANCIAL plaintiff. essayed Respondent, position and Plaintiff Warranty Deed is that when primary executed, any reservations duly Dorothy FERRIER, Defendant S. rights and therein, conveys all of Appellant. and property.2 grantor has in the interests that result to circumvent In order 14296. No. of she had the burden the deed

forming Court Utah. Supreme convincing evidence and by clear proving of fact.3 a mutual mistake was that there 28, July 1977. so convince the having failed to Plaintiff court, she has the burden on trial

convincing this court that in error.4 review the though may we

Even

evidence, grounded well proposition is advantaged posi that due to the law

in our court, indulge we considera the trial do not findings to his

ble deference so them unless the evidence

interfere them

clearly preponderates in that a manifest is convinced

this done.5 On the basis has been concerning been said

what has evidence and the burdens of

dispute persuaded that the find we are

proof, should be overturned.

ings (respon- to defendant Costs

Affirmed.

dent). J., MAUGHAN,

ELLETT, WIL- C. HALL, JJ., concur.

KINS VIII, Const., providing Petrofesa v. Denver & Rio Art. “ Sec. Grande Western R. 1. Utah says: equity Co., appeals . . cases the 169 P.2d 808. questions appeal fact; of both law and be on Dunham, Barker v. 9 and see Forrer, Utah, Ingram v. 563 P.2d 181. added.) (Emphasis P.2d 867. 2d 342 Utah appellant in order to 4. That reverse has the 57-1-12, U.C.A.1953, pro- which 2. See Sec. showing prejudice, both error and burden when executed shall a deed vides that such Institution, v. Zion’s Mercantile see Burton 122 conveyance simple in of a in fee have the effect 514; Casualty 249 P.2d Citizen’s Utah Co. named, together premises with all therein Hackett, 767; 2d P.2d privileges appurtenances, there- Appeal and Error § C.J.S. belonging. Any exceptions to such cove- unto briefly deed inserted in such nants following Wiese, land; 5. Wiese v. Utah 2d description and see *2 Vlahos, Vlahos, Knowlton, Pete N. Quinlan, Ogden, appellant. for Brann, Ogden, Richard W. respon- for dent.

CROCKETT, Justice: Plaintiff, Corp., Lincoln Financial sued to Ferrier, defendant, Dorothy for re- evict S. apartment fusing plaintiff’s to vacate an complex in Riverdale after she had been notice and was therefore served unlawful detainer. In her defense counterclaim the defendant asserted alleged plaintiff’s that the actions termi- tenancy and evict her but an her were nate her to obtain suppress attempts effort conditions herself other ten- better ants; thus and that he violated her speech expression, where- freedom her; entitled to he was not evict fore $10,000 for the counterclaimed sum of she damages wrong- for what she refers to as eviction”; “retaliatory and for ful $100,000 damages. punitive of agitating struck her so-called coun- causing tenants and The trial him trouble; and, appearing dispute and that attempt to evict terclaim her reason deprivation for that constituted a had remained she rights of thought she her constitutional and ex- one-half months after two and about Her pression. arguments counsel advances proper notice and was in given been *3 cites authorities to the effect and that detainer, gave judgment against unlawful landlord brings where a an action for evic- rental, amounting for treble her which is shown to arise out of some $1,219.20, attorney’s fees and plus $500 race, unjustifiable consideration such as or appeals, challenging Defendant costs. improper other religion, ground, or that rulings. those against be stated as a fact defense plaintiff’s apart- into Defendant moved “retaliatory referred to as what eviction.” is December, 1974, under a month to ment in aware of the fact We are that in some tenancy agreement. provided It month appear where it is made to jurisdictions, party by giving could terminate that either the basis for the eviction violates a that written notice. De- days other fifteen right constitutional of the ten- superseding timely was served notice on fendant ant, concept this of a defense a thus 1975, 10th, which stated her lease June wrongfully grounded “retaliatory eviction” on June 30. would be terminated She cognizance taken of.2 has been Without premises, plaintiff vacate the and fused to judgment on whatever merit or passing complaint alleging that she was in filed that doctrine have in other -demerit apartment, detainer of the and circumstances, we applica- think it has no requested damages, provided by treble as alleged facts tion to the here. 78-36-10, U.C.A.1953, and attor- Section We are also concerned with the constitu- provided as for in the lease. ney’s fees rights of landlord. Our Utah tional states; aspect appeal of this principal Constitution, I, Article Section 1 the defendant’s contention “All men have the inherent inalienable and improperly struck her asserted defense and acquire, possess pro- ... and right disagreement We no counterclaim. have . . property . .” The tect United Constitution, V, proposition that if the defendant pro- Amendment States arising out of the person had a “No vides that: shall be life, or business as the liberty, property, same transaction or with- deprived complaint, of the it could be assert process out due of law . . .” And XIV, 1, expressly ed herein to the end that all of whatever Amendment Section applicable wherein controversy parties may exists between the makes this to the states simply as “. nor shall expeditiously provides, be settled and it State life, claims, deprive any person liberty, prop- or possible by allowing legitimate all process without due of law . . .” erty, and counterclaims relating defenses thereto enjoyment event the of the “to But we In in one action.1 do not see that as acquire, possess protect property” and supporting defendant’s contentions herein. (All ours.) emphasis herein is guaranteed. support In of her asserted defense and alleges counterclaim defendant question that must be confront (plaintiff’s manager) landlord accused her is: If the ed and answered landlord 13, Review, 1973, 3, U.R.C.P.; Fall, p. 1. That is of Rule see See Utah Law Vol. White, 503; Newman, Hallock, holding also Rule 1. For a case so see Inc. v. 116 N.J. E & E 173, 544; 220, Engler Capital Super. et al. v. District 281 A.2d 785; 445, example good Corp., N.J.Super. Management for a wisdom 112 271 Bonds, 615; Cal.App.3d thereof see case on 20 A.2d Aweeka 650; judgment, 278, Trusdell, Hawaii, Cal.Rptr. wherein from the final defrauded Aluli v. 97 $23,000 1217; purchasers of motel recovered on P.2d S. P. 54 Haw. Growers counterclaim, White, Rodriguez, Lewis v. their Utah 2d 17 Cal.3d 131 Cal. Ass’n v. Rptr. 269 P.2d 865. P.2d 721 proceed terms of his lease and first is that the allegations enforce plaintiff’s express provisions of our statuto- complaint and the under relief clearly demanded property, his what has to reclaim ry plaintiff law that the indicate had cancelled and property rights? He should happened terminated contract and based its cause unimpaired enjoyment accorded action on our unlawful detainer statutes privileges therein. If Chapter all Title U.C.A.1953. Therefore to surrender his contractual compelled he is not then entitled to invoke the cove- being required statutory rights by nants of contract to obtain an attor- to someone other ney’s furnish fee.4 The second is that on the sum- tenant, nothing as a that is he desires mary judgment than there is no foundation in deprivation property. than a of his upon the evidence which to base a finding if a would be anomalous indeed landlord of attorney’s and award fees.5 his property right assert could On the basis of what has been said here- *4 tenant, peaceable however or other de- any in, the award of attorney’s vacated, fees is be, tenant may that to remove from sirable but in all other respects the judgment of but could not do so to one who premises, the trial court is affirmed. The parties to peaceable neither nor desirable. was their own bear costs. the basis Upon of what has been HALL, J., concurs in the result. it is our opinion that the trial said was correct in its analysis court and its MAUGHAN, Justice (concurring). allegations that the of the de conclusion concurring In with Mr. Justice Crockett’s above discussed constituted neither fendant wish opinion, I to observe that under the plaintiff’s complaint to the a defense Procedure, new Rules of a counterclaim nor a counterclaim related thereto eviction arising out of the subject same law; cognizable which is under our and that any action, should be assertible in including properly were thus stricken and disre in unlawful one detainer. See White v. garded. District referred into the main opin- There is reason, ion. the additional under actually given Defendant was twen rules, the new the trial court may make an prior ty days notice to the end of the month adjudication of aspect of a controversy, tenancy properly and her was thus of June another, defer trial if the interests and she was in unlawful detain- terminated require. so that date. it appeared er after Inasmuch as dispute that persisted defendant in WILKINS, J., concurs in the concurring remaining in MAUGHAN, opinion J. 10, 1975, September until damages at the rate assessed of $175 ELLETT, Chief (concurring Justice month, parties agreed which the upon and commenting). result value, rental as the and trebled the dam in the result I concur of the opinion by 78-36-10, permitted by ages Section U.C. Crockett; however, Justice in the fourth A.1953, and entered judgment accordingly.3 opinion of his paragraph he inserted a

Concerning the award of attor filing statement about a counterclaim in an fees, the ney’s situation is different. There unlawful detainer to which I agree. are two difficulties that award. The In stating that it proper was provides Cook, section 3.That Forrester v. (Emphasis added). 292 P. 206. against be rendered shall defend- entry, guilty or ant of the forcible forcible or detainer, Ibid; Swan, for the rent and for three and see Jacobson v. 3 Utah 2d damages times the amount of thus as- P.2d 294. pointing For a lucid discussion sessed.” out trebled, Butler, that it is not the “rent” which is but Butler v. See 23 Utah 2d landlord, “damages” suffered see therein cited. 727 and cases subject-matter where the of the attempt- cases1 which I upon two so, he relied do cross-complaint or arises ed counterclaim discuss. subsequently shall of the terms of the out of a violation correctly was set state of this The law brought, which the action is upon lease years a number of cases two Utah in forth cases.’ been overruled. has ever neither ago and upon where relies two cases to opinion v. Hansen2 The main is Dunbar case The first statement support to file a counter- that “we have no undertook defendant if disagreement proposition of unlawful de- statutory action in a the defendant had a counterclaim holding in that no Court said This tainer. arising out of the same or busi- transaction filed: could be counterclaim complaint matter of the ness as opin- therefore . We are herein it could be asserted hold, that the action of the ion, and so those two cases follows. discussion attempting adjudicate district have, if rights defendants whatever unlaw- Lewis v. White4 was a case of either of plaintiffs, or against any, all, equity at but was a suit in ful detainer forth in them, of the facts set reason of a real estate to enforce the forfeiture counterclaim, nugatory and of no was contract; question there is no about a avail; does not authorize the statute being properly permitted or affirmative such defense upon The other such a case. case relied in an unlawful plaintiffs lief per upon a short curiam5 based the bare part It was error on the action. detainer proce- that the new rules of civil statement *5 the attempt adjudicate to court to of the per- Rule 13 thereof particularly dure against plain- of the defendants The rule is stated mits counterclaims. had, growing out of the tiffs, any if herewith: in this alleged in the counterclaim facts (a) A Compulsory Counterclaims. objections of action, overruling in the any shall pleading state as a counterclaim testimony entertaining any to 'plaintiffs serving claim which at the time of the allegations the of the coun- support of in pleader the pleading against any op- has terclaim. party, if it arises out of the trans- posing or occurrence that is the ques- the same Court decided In 1930this opposing party’s claim and the case of Forrester v. Cook.3 in adjudication the for its does There, quoted from the Dunbar case and it parties of whom the of third presence state, the law of this towit: firmly set jurisdiction. acquire thoroughly to be estab- appears ‘It lished, in other both in this state and plead- (b) Permissive Counterclaim. having substantially similar jurisdictions state as a counterclaim ing may to our unlawful detainer stat- statutes not aris- opposing party an utes, that neither a counterclaim nor the transaction or occurrence ing out of cross-complaint permissible of kind is subject-matter opposing of that is the in unlawful detainer. This an action in claim. party’s discussed the District question was District, Exceeding Opposing Appeal (c) of the First in of Counterclaim Court Black, may or not dimin- Knight case of A counterclaim the recent Claim. recovery sought by many 126 P. where or defeat Cal.App. ish It claim relief ex- party. are cited. There is no distinc- opposing authorities in amount or different in kind ceeding authorities between cases tion in the (1930). White, 3. 77 Utah 292 P. 206 et al. v. District 1. White, (1951); Lewis v. 2 Utah 2d 232 P.2d 785 (1954). Supra at footnote 1. 250 P. 982 Id. pleading The sought requires from statute that the appeal in opposing party. detainer action be filed within days. appeal ten The from the counter- opinion per consisting curiam of one The claim could be filed within month. plus five lines does not discuss the page Could the Court on appeal decide the issue why per- counterclaims cannot be reasons right possession to of before did the coun- in an action for unlawful detainer. mitted so, If why permit terclaim? the counter- main a having statute The in place? claim the first for an action in unlawful detainer providing The counterclaim-creates too many side provide to speedy remedy for the set- difficult, and makes it problems if not im to tling disputes possession of of to possible, obtain a speedy determination realty. It tends thus to avoid breaches of the right of land. That peace possible The bloodshed. speedy right is all that contemplated provides a means speedy statute tri- the statute. The case of White v. District types cannot be in other als Court should be overruled not being as in provides and actions. It suits time harmony provisions of the statute. answer a summons be shortened to Civil Rules of Procedure specifically days instead of the usual twenty.6 three (the in Table III provided that Title 104 provides that when the complaint also is not existing code of civil procedure) then should served the summons it must be filed have no further force except and effect one day within instead of usual ten (the Chapter chapter in code deal- days. provides It further appeal that an ing detainer). with unlawful be judgment must taken from the rendered ten days7 within instead of usual one When a statute or adopted, retained month. Would it contended that Rule 73 interpretation parts of its adopted are the Rules per- of Civil Procedure would along or retained with the statute. The to be taken mit from a procedure rules of only new affect proce- unlawful detainer twenty days? within and not substantive dure If law. the White counterclaims, the rules are applicable If case is permitted stand, District Court *6 would seem that apply should also law seriously substantive is affected in appeals. speedy determination of the realty possession delayed, and that is problems that a counter- Consider contrary purpose to the of the statute. would claim raise. defendant must days within three answer but his counter- therefore, I dissent from idea that a many raise which issues will can be counterclaim filed in action of discovery, depositions, and motions unlawful detainer. That which is said simple on those diverse issues. The issue of strongest is the reason for not per- peaceful who entitled to mitting consideration of defendant’s coun- delayed. can thus be Even the title a house in this unlawful detainer action. terclaim the land is not involved in the unlawful action.8 is not detainer title to try the land.9 The

filing of a in the unlawful action is reminiscent a foxhound

detainer always during rabbits the hunt.

who chases just it. permit don’t

You Nelson, 78-36-8, 9. Williams 237 P. 217 U.C.A.1953. (1925). 78-36-11, U.C.A.1953. Abbott, Welling 173 P.