*1 Justice, RUSSON, concurring in the
result: I believe our I concur the result. Builders, Vigos v. Mountainland
decision
Inc., P.2d renders it 2000 UT
unnecessary arguments con- to address jurisdiction continuing
cerning the plurality According to our
Commission. Vigos, acquires
opinion the Commission injured worker files
jurisdiction as soon as disability timely com- proper claim retains that
pensation; the Commission disability
jurisdiction modify status be- six-year period contained former
yond ¶32 (Op. 35-1-78. id. at J.). J.) Russon, Stewart, (Op. & 43 himself, Having disqualified Justice herein; participate did not
STEWART FRATTO, Jr., Judge C.
District JOSEPH
sat. UT 30 COMPANY,
MALIBU INVESTMENT Appellee,
Plaintiff and
Kathy SPARKS, Defendant Appellant.
No. 980199.
Supreme of Utah. Court
Jan. *2 Boud, Walker, Troy R. Sandy,
James K. plaintiff. Cline, Crippen, Russell A. Michael Salt City, Lake for defendant.
RUSSON, Justice: ¶ 1 Kathy Sparks appeals Defendant granting decision trial court sum- mary judgment plaintiff in favor of nance. enumerating specific After rules Company violated, Investment on Malibu’s eviction that allegedly the notice ex- plicitly claim under the Utah Park Mobile Home instructed nonpatio to remove Act, Residency deck, denying her own motion furniture from her yard, resod the trim summary judgment overgrown under the state and tree that was neighbor’s onto a *3 housing property, replace federal fair acts. door, a broken back re- windows,
move hard water stains from re- windows, place replace broken BACKGROUND broken shut- ters, remove run-down wooden fence from ¶2 1, 1994, July Kathy Sparks pur- On yard, the back clean paint an air condi- chased a mobile home located at Malibu’s tioner, replace door, a damaged heater water Byde-A-Wyle Haciendas Mobile Home Park replace damaged siding, sweep gutter, out a (the “Park”). day, Sparks That same en- trimmed, keep stop lawn parking a agreement tered into a month-to-month with grass. listing car on the After these numer- the Park space to lease the on which her violations, ous maintenance the notice also agree- mobile home located. The lease provision included a stating: Sparks required by ment to abide the Park’s You are violating Rule 7 # you 3 because regulations, rules and which were attached to people living have more in the home than agreement. signed the lease copy She you registered are says with. This rule regulations, the rules and acknowledging that occupation by no more than one fami- she read and understood them. ly permittion without management from ¶3 lease, signed From the date she her You by [sic]. must cure this removing Sparks resided at the Park with her two evry body except you your [sic] & 1996, daughters. In December one of daughters. Sparks’ daughters gave baby to a boy. birth seven-day The notice further stated if The Park manager was aware that the child Sparks failed to either cure the violations in Sparks’ Sparks resided mobile home with days within seven agree- obtain a written and her daughters. two variance, ment with allowing the Park for a 4 In pursuant March to the lease the Park would proceed- commence eviction agreement permitted adoption which ings against pursuant to the Utah Mobile time, any new rules at adopted the Park new Act, Residency Home Park Ann. Code rules that were scheduled to take effect in (1994 §§ 57-16-1 to Supp.1999). -15.1 & Sparks May 1997. copy received a of the sixty-day The notice listed numerous addi- new regulations, rules and and she acknowl- tional rules violations and also afforded edges that she read and understood them. Sparks opportunity to seek a variance July 5 On the Park served from the rules or a variance from the time Sparks with two notices of rules violations —a period she had to cure the violations.1 seven-day sixty-day notice and a notice— ¶ Sparks neglected admits she to cure all signed by both the manager of the Park. seven-day violations listed no- Sparks Both notices informed that she inwas neglected tice. also a vari- obtain violation of numerous Park rules related to ance from the rules violations listed in the repair and maintenance of her mobile seven-day notice or from the cure space. home and mobile home period. Instead, merely claims that she notice listed telephone message fourteen left a manag- for the Park rules repair violations related to and mainte- er.2 sixty-day 1. The violations listed in the request notice in- formed that she could a variance shed, carport, cluded longer the failure to install a period, in the or a rules cure the lease steps, provided: handrails on the back a bottom track for skirting, painted the home’s and a rear deck with If, time, any at a Lessee believes the Park rails, handrails, awning, carpet, skirting. any obligations has not fulfilled the Park homeowners, have to Lessee or other Lessee message
2. Malibu agrees immediately give denies that left a at the the Park written Regardless, specifying Park office. while both notices in- what Lessee believes the Park 25, 1997, terminating July Malibu Park from the leasehold for Accordingly, complaint in Third District Court filed a Sparks’ failure to abide the rules.” Mrs. the Park seeking to evict The court also denied motion for comply of the lease and failure breach judgment housing fair on her 22, 1997, notice. On October counterclaim, concluding lacked period expired, sixty-day after standing pursue a claim under either fair complaint Sparks’ fail- amended its to include housing Regardless standing, act. sixty-day comply with the notice as ure to Sparks’ arguments court also concluded that grounds for eviction.3 additional under the fair acts “lack[ed] ¶ Sparks against Malibu’s evic- defended legal grant summary factual or basis to did by contending tion action that she judgment.” agreement. In the alterna- breach lease *4 ¶ tive, Sparks alleged that she was excused Sparks appeals grant the trial court’s complying with the two notices because summary in judgment favor of Malibu on (1) (2) unconscionable, the notices were its claim to evict her and its denial of her (3) contract, im- a breach of the breach summary judgment her fair motion for good dealing, faith fair plied covenant of and Sparks housing counterclaim. contends that (4) and a violation of the state and federal granting trial court erred in the Malibu’s housing filed a fair acts. also coun- (1) summary judgment motion for setting terclaim forth discrimination claims issues of fact remain as to whether Malibu’s housing under the fair acts. Malibu moved of its enforcement rules was unconscionable summary judgment for on its eviction claim faith; and bad and Malibu’s fair hous- fact undisputed on the basis of the that ing complete act violations are a defense to admission, Sparks, by to cure her own failed addition, Sparks alleges eviction. In the that many rule violations set forth the denying trial court erred in her motion for seven-day sixty-day and notices. Addition- summary judgment housing on her fair coun- ally, Sparks filed her own motion for sum- because, contends, terclaim she the seven- mary judgment housing fair violations on the day restricting notice and Malibu’s rule mo- alleged in her counterclaim. occupancy home to one bile violated granted summary 10 The trial court Thus, housing the fair acts. issues two judgment in favor of Malibu on its eviction we are whether the trial court cor- review undisputed claim because of the facts rectly concluded that Malibu was to entitled cure violated Park rules failed to claim, summary judgment on its eviction Additionally, them.4 the court concluded correctly whether the trial court concluded housing alleged that the fair violations were did not violate the fair “[A]ny action: no defense to the eviction alleged estop discrimination does acts. indicating require comply sixty-day what that to her to has failed to do and Lessee with to pending believes the Park has to do in order fulfill notice while eviction was under the sev- obligations. these en-day would be notice unconscionable. Howev- Thus, duty Sparks’ under the lease to it was because, er, argument we reach this we do not believed, notify writing Sparks had Park in if below, Sparks’ discuss admitted cure failure to example, any violations of the rules listed all die in the notice violations listed unjusti- sixty-day were or summary judgment dispositive of whether complaint fied. Such a written sought could also have proper on Malibu’s eviction claim. clarify requiring to Malibu's intention in everyone except to remove herself and Sparks' summary judg- 4. The trial court denied daughters her two from the mobile home. ment motion "for all of the reasons set forth in any failed to cure of the violations listed [Malibuj's Reply granted Brief” and Malibu's sixty-day in the to obtain a notice and also failed summary judgment all motion "for reasons variance period rules violations the cure from the or memorand[aj.” [Malibuj's Thus, set we forth sixty-day argues under tire notice. She reply summarize the reasons listed in Malibu's filing that Malibu's eviction action after this support summary judg- of its memorandum sixty- period expired but before the opposition memorandum in to ment motion and day period expired placed her in an untenable judgment motion. position regard sixty-day notice and with (a) comply OF REVIEW failure of a
STANDARD resident to park a mobile home rule: grant the trial or We review court’s (i) maintenance, relating repair, or summary judgment denial of a motion for decks, awnings, skirting, construction of and accord no deference correctness period days sheds for a of 60 after Thomp- trial court’s conclusions of law. See receipt Jess, noncompliance of a notice of 22, 12, P.2d son 1999 UT (Utah park; from the 1999). mobile home party A is entitled to sum- mary judgment only genu- when there is no (ii) relating park rule for moving ine issue of material fact and the period days receipt of seven after party judgment is entitled to as a matter of noncomplianee notice of from the mobile id.; 56(e). law. R. P. Civ. park.... home 57-16-5(l)(a). Thus, Id. long so as the
ANALYSIS park health, rule at issue is “related to the safety, appropriate conduct of residents I. MOBILE HOME PARK and to the upkeep maintenance and of such RESIDENCY ACT park,” 57-16-7(l)(a), park id. owner the trial claims that court by serving enforce the rule a notice that granting summary judgment erred in in fa- 57-16-5(l)(a). complies with section The no- *5 vor of Malibu on its eviction claim under the tice must forth the “set cause for the notice (the Residency Home Park Mobile Act and, cured, if the cause is one which can be “MHPRA”). Sparks argues that the time within which the resident to judgment in favor of Malibu was error be- 57-16-6(2). § cure.” Id. If the resident “substantially complied cause she with all fails to cure a violation listed a notice that proper requests” seven-day listed the no- statutory requirements, park meets these tice. She also claims that issues of fact may owner terminate the lease and com- remain as to whether Malibu’s enforcement proceedings. § mence eviction See id. 57- of its rules was in bad faith. We examine 16-15.1. allegations these under the MHPRA. ¶ us, Sparks 15 In the case before admits to Compliance A she failed cure all of the Substantial violations seven-day listed in the notice within the sev- ¶ purpose 14 The of the MHPRA is en-day period and that she failed to submit a first, provide park twofold: to owners with request written for a variance. The seven- speedy adequate and remedies resi day notice directed that trim her tree dents who tenancy; violate terms of their overhang neighbor’s so that it did not second, protect park and to residents from home, pursuant stating mobile to a Park rule by park actual or constructive eviction own resident ... control the “[e]ach shall (1994). § ers. See Utah Code Ann. 57-16-2 growth preserve ap- of all trees ... to protections park One of the afforded to own pearance space and to fire or avoid ability “pro ers under the MHPRA is the safety other health and hazards.” health, mulgate safety, rules related to the admits that she failed to trim her tree within appropriate and conduct of residents and to period seven-day and she did not upkeep park.” the maintenance and of such allowing obtain a variance her more time to 57-16-7(1)(a) (Supp.1999). Id. The perform this task. provides procedure through MHPRA also park rules, park which a owner enforce addition, 16 In notice di- provided satisfy require that the rules replace damaged rected back 57-16-7(l)(a). ments section The door, replace windows, broken and clean and provides part: pertinent MHPRA paint pursuant her air conditioner to a Park (1) An agreement for the lease of mobile rule that states: “The exterior of the manu- home, space park may home in a mobile accessory home be factured structures and agreement terminated mutual skirting kept or for must be maintained in a well following one or more of glass, causes: fashion. No cracked doors or broken 1048 un- inference evicted her will be allowed.... Visible or create an that Malibu
windows corrosion, rust, sightly fading, blistering, or faith. bad painted is not allowed.” cracking on surfaces rule, every general 19 As a con Sparks admits that she failed to cure these subject implied tract to an covenant of period. within the cure violations good dealing, faith and fair under which both regarding yard main- These rules home parties promise to a contract not to “inten 57-16-7(l)(a) satisfy tenance tionally purposely anything which do will health, safety, they are “related to the destroy injure party’s right ... appropriate conduct of residents and to receive the fruits of a contract.” St. Bene upkeep.” Ann. maintenance Utah Code Hosp., dict’s Dev. Co. v. St. Benedict’s 57-16-7(l)(a) Thus, (Supp.1999). these (Utah 1991). However, 194, 199 P.2d we also justifi- undisputed rules violations constituted interpret have that “we stated will pursuant to the MHPRA.5 cation eviction good implied covenant of faith and fair deal contention that she has ing parties to make a better contract for the “substantially cured” violations in the rules they than made for Nor will themselves. we satisfy notice fails her bur new, construe the covenant ‘to establish inde responding summary judg den in to Malibu’s pendent rights agreed upon by or duties not ” if ment motion. Even we were to assume Moore, parties.’ Brown v. P.2d “substantially that she cured” the violations (Utah 1998) (quoting Brehany them, by curing not all of some but Nordstrom, Inc., (Utah 1991)) 812 P.2d permits park MHPRA owners to demand (other omitted). citations park compliance legitimate strict with all agreement lease between rules, appeals correctly recog the court of permits and Malibu Malibu to terminate the Village, nized in Crescentwood Inc. v. John “unilaterally” lease for failure to follow Park (Utah son, Ct.App.1995). P.2d concluded, rules. As we have Malibu’s evic- *6 proceedings proper tion were under the lease B. Bad Faith Sparks and failed the MHPRA because to Sparks appeal also contends on of Park cure violations rules and failed to precluded summary judgment be proper request submit for a variance. cause Malibu enforced Park rules in bad Moreover, nothing agreement in the lease or faith, implied in violation of the covenant of require MHPRA would Malibu to com- good dealing. Sparks’ faith and fair bad procedures against mence other eviction resi- part faith defense is in on her belief based prior bringing dents of the Park to an action singled that Malibu her out for violations that circumstances, Sparks. evict Under these to widespread throughout were rest of Sparks’ “survey” of the Park is immaterial to defense, support Park. In faith of her bad judgment is whether Malibu entitled to as a Sparks points “survey” to a of the Park that Sparks.6 matter of law on action to its evict 16,1998, February she conducted on in which “many she discovered mobile homes in the II. FAIR HOUSING ACTS Park that were in similar or worse condition Kathy Sparks’ Sparks than trial mobile home.” We now examine whether the “survey” properly contends that her sufficient to court found that did not Malibu it, door, (4) repaired 5. As to the water heater she and ten violations listed in bent notice, fully Sparks removing claims to have rather than hard water stains four, partially cured three and cured and windows, she she washed the windows. She claims allegedly claims that three are invalid. The of invalid be- that three Malibu’s demands were (1) cleaning gutters, cured her violations include (1) require cause the rules did not (2) her to resod deck, (2) removing nonpatio furniture from her yard, permission park had on her lawn, her (3) mowing, watering, trimming and and (3) and her shutters were not broken. respect allegedly partially lawn. With violations, Sparks cured claims that rather reasons, Sparks' arguments 6. For these same fence, removing than paired an old wooden she re- regarding "justified expectations” and uncon- it, (2) replacing siding, rather than bent scionability are without merit. dents, (3) large replacing she fixed rather than (the rule”),10 allegedly which discriminates Housing Act the Federal Fair violate VHP), families, or “Title U.S.CA. “multi-generation” “FFHA” such as (1994),7 Fair and the Utah §§ 3601-3631 Sparks. Specifically, contends that Aim; (the “UFHA”), Utah Code Housing Act “discriminatory is a ac (1994 Supp.1999). -14 §§ 57-2-1 to & of the tion” violation of section summary judgment in Sparks contends 57-21-5(l)(b) FFHA and section of the its eviction claim was favor of Malibu on UFHA, and that the notice and the one- hous- Malibu violated the fair error because “discriminatory family rule are statements” alleges that the trial court ing acts. She also 3604(c) of section of the FFHA violation for sum- denying her own motion erred 57-21-5(2) and Before UFHA. relief mary judgment her counterclaim for addressing allegations either of these and the housing the fair acts. Whether under detail, corresponding statutes we must housing dispositive violated the fair acts is standing determine whether counterclaim. both defense and or under the raise her defense counterclaim counterclaim, 22 In and her defense FFHA and the UFHA. that Malibu discriminated contends under on the of “familial status” basis Housing Standing A. the Fair Acts Under fair acts. “Familial status” discrimi nation, FFHA under both the and the ¶23 The trial court determined that UFHA, generally refers to discrimination standing Sparks lacks to sue under housing against being domi regard to a child FFHA or the UFHA. Malibu contends that parent legal guardian.8 or See ciled with a uphold we should the trial court on this issue 3602(k) (1994); § Utah Code U.S.CA. definition “familial un because the status” 57-21-2(14) (Supp.1999). Sparks §Ann. ar Sparks. der the acts does not include Ac against her gues that Malibu discriminated cording argument, to Malibu’s “familial sta familial status grandchild on the basis of parent tus” refers to a child domiciled with a (in notice) requiring her parent guardian, is not the everyone except remove guardian daughter’s child. her adult daughters,9 by establishing two a rule 3602(k) (1994); 42 U.S.CA. Utah Code occupancy restricting mobile home to one (1994). (the 57-21-2(14) “one-family family per home Ann. To determine mobile (ii) Housing passed process securing legal is in custo- 7. The Federal Fair Act was Rights dy Title VIII of the Civil Act of 1968. who has not attained the individual *7 years; age of 18 or (iii) single a individual. is Specifically, 8. the FFHA defines "familial status" 57-21-2(14) (Supp.1999). § Utah Code Ann. follows: as (k) "Familial status” means one or more indi- explains provision the sev- 9. Malibu that this in (who age have the 18 viduals not attained of by en-day prompted reports notice was that nu- years) being domiciled with unrelated, persons unauthorized were merous (1) parent person having legal a or another living with in her mobile home viola- individuals; custody or or of such individual disputes tion of rules. this Park conten- (2) per- designee parent of such or other prompted tion and claims that the eviction was having custody, per- son such with written Sparks’ grandchild to Malibu’s desire remove person. parent mission of such or other knowledge Malibu concedes from the Park. 3602(k) (1994). pro- § The UFHA 42 U.S.C.A. grandchild Sparks' resided with and de- essentially the same definition: vides premised upon that the notice was nies (14) (a) one or “Familial status” means more Sparks’ grandchild. to of a desire However, rid Park age individuals who have not attained the of 18 dispute to our this is not material years being with: domiciled to the of conclusions as correctness (i) parent person having legal a or another judgment. individuals; custody or of such individual or (ii) parent per- designee of the or other full, one-family rule states in "No custody, permis- Malibu’s having son with the written renting, occupation by subletting, more than or parent person. of the or other sion permitted, except (b) per against one home will be protections The afforded discrimi- approval manage- express apply with written on the of familial status shall nation basis any The does not otherwise define what person ment.” rule to who: (i) family. pregnant; a constitutes
1050 provisions to standing, Allegation we look those B. Discrimination of S604.(b) bring describing may acts those who suit. Sections and 57-21- Under 5(1)(b) grant the FFHA and the Both UFHA standing “aggrieved person[s].” first asserts Malibu took a 3613(a)(1)(A) (1994); § Utah discriminatory U.S.C.A. Code basis of action on the familial 57-21-12(1) status, 3604(b) § (Supp.1999). Ann. The FFHA in violation of section of the person” 57-21-5(l)(b) “aggrieved defines to include FFHA and section of the UFHA, when issued any person who— Section that it notice. states shall be (1) injured by to have claims been a unlawful discriminatory housing practice; or (b) against any person discriminate [t]o (2) person that such will be believes terms, conditions, privileges or injured by discriminatory housing dwelling, sale rental of or in practice that is about to occur. provision of sendees or facilities in connec- 3602(i) (1994). § Similarly, the U.S.C.A. therewith, race, color, tion reli- UFHA the term to defines include sex, status, gion, or national ori- familial any person who: gin. (a) injured by claims to have been 3604(b) (1994) § (emphasis U.S.C.A. add- discriminatory housing practice; or ed). analogous provision, Utah section (b) injured by that he believes will be 57-21-5(l)(b), part: pertinent states in discriminatory housing practice that is discriminatory It housing prac- is a about occur. any following tice do because of a 57-21-2(1) Ann. (Supp.1999). Code race, color, sex, person’s religion, national status, income, origin, source of case, Sparks In the instant asserts familial disability: been, be, injured by that she has or will discriminatory practices Malibu’s based on because, alleges, familial Mali status (b) person discriminate bu’s either the mandated terms, conditions, or privileges grandson
removal
or the eviction of
any dwelling
the sale or rental of
or in
Sparks,
daughters,
grand
her two
and her
providing
facilities or services
connec-
alleged injury
son.
This
is sufficient make
dwelling....
tion
person”
“aggrieved
under
57-21-5(l)(b) (1994) (em-
Utah Code Ann.
Coleman,
Realty Corp.
FFHA.
Havens
added).
phasis
372,
363,
1114,
455 U.S.
102 S.Ct.
71 L.Ed.2d
(1982);
Village
explained
Gladstone Realtors v.
27 Federal
have
courts
91, 103
Bellwood,
plaintiff
441 U.S.
n.
S.Ct.
that a
under
recover
(1979);
3604(b) by
F.Supp.
evicting Sparks,
argued
faith bases for
complain
single allegedly
about a
discrimina
(as
such,
Kormoczy and Justice Durham would
scope
tory transaction. As
of this
require) that
it would have evicted
qualify
involving
case is too narrow to
as one
“multi-genera-
even if her
were not
discriminatory impact.”), aff'd,
18 F.3d
*9
(6th Cir.1994).
opposing summary
tional.” The
single
348
The
act of
burden
eviction,
Sparks
including
purported
judgment then shifted to
to show that
“discrimina-
300,
(9th Cir.1997); Mountain
12. We note that the federal courts
to Title
104 F.3d
304
look
Side,
disparate impact
employment
guid-
VII
for
Malibu would not evicted this Malibu has set forth “multi-generational.” valid, not multiple justifications were To good-faith for entirely eviction Therefore, show that her was based on evicting Sparks. to recover for Sparks “multi-generational” family, her nec- treatment, disparate Sparks must show that justifica- essarily had controvert Malibu’s justifications evicting for Malibu’s her are evicting utterly tions her. for She failed to merely pretext for discrimination. Indeed, regard. meet her burden this she failed has to do so. admits that She openly has admitted that she failed to cure to cure failed all of the violations listed in the agreement numerous of her violations lease seven-day Thus, notice. because has Thus, Sparks failed Malibu. pretext, alleged failed show discrimi- show that Malibu would not taken the have nation Malibu notice is same action her absent the fact of immaterial, Sparks’ allegation and that Mali- result, “multi-generational” family. As a bu violated section and its Utah Code method,” dispute any under the “direct as to counterpart, 57-21-5(l)(b), section fails as a purported discriminatory Malibu’s intent in matter of law. issuing the notice is immaterial judgment. and does preclude summary not Sparks’ Allegation Discriminatory C. through 32 second method 8601(c) Statements Under Sections plaintiff may disparate which a establish 57-21-5(2) and plaintiff requires treatment that a to show 34 alleges also that Mali justification purported defendant’s for an al one-family bu’s rule and legedly discriminatory merely pre action is indicating are statements discrimination on Gamble, text for discrimination. 104 See the basis of familial status violation of 305-06; F.3d at Dep’t see also Texas 3604(c) section the FFHA section 57- Burdine, 248, Community v. 450 U.S. Affairs 21-5(2) However, allega UFHA. these 254-56,101 1089, S.Ct. 67 207 L.Ed.2d are properly tions not before this court. (Title VII); Douglas Corp. McDonnell v. any did not raise claim or defense Green, 792, 802-05, 1817, 411 U.S. 36 S.Ct. 3604(c) 57-21-5(2) under sections before (1973) (Title VII). plaintiff L.Ed.2d 668 aIf the trial court and any right therefore waived produce pretext, then fails to evidence of to raise such a claim in appealing or defense plaintiffs disparate treatment claim fails aas grant the trial court’s judgment. matter of law under either Title VII Title Inc., Sur. Ltd. v. Group, UT See, Gamble, Certified
VIII. e.g., at F.3d 305-06 (Utah 904, 1998); P.2d 906 n. 3 State (finding for defendant under VIII Title be Mut. Clyde, Farm Auto. Ins. v.Co. 920 P.2d justification cause defendant asserted valid (Utah 1996). Thus, Sparks’ argu alleged for plaintiff discrimination and failed 3604(c) ment under section of the FFHA and pretext); Shumway to show evidence v. 57-21-5(2) of the UFHA fails. (notwith UPS, (2d Cir.1997) 118 F.3d discrimination, standing evidence of affirm
ing summary judgment employer in favor of CONCLUSION under employee Title failed to VII ¶ 35 We conclude that trial court cor- justification employer’s show that for dis rectly granted summary judgment in favor of UPS, charge pretextual); Essex v. addition, on its In eviction claim. (7th Cir.1997) (same); F.3d Mur properly Sparks’ summary trial court denied 1417, 1421-22 ray City of Sapulpa, 45 F.3d judgment motion on fair coun- (10th Cir.1995) (same). Thus, if a landlord terclaim. Because we conclude that presents multiple good justifications faith prevail grounds does of her eviction, tenant must show appeal, attorney she is not entitled fees. justifications merely pretext are for dis Otherwise, any crimination. alleged instance
of discrimination is immaterial Chief ten Justice HOWE and Justice ant cannot disparate recover under a treat concur in STEWART Justice RUSSON’s theory. ment opinion.
ZIMMERMAN, Justice, prove discriminatory concurring and chance to that act occurred. dissenting: ¶37 the affirmance of the I dissent from meaning 40 This case centers on the and by summary judgment for the reasons stated significance by of a notice served por- in Durham that Associate Chief Justice Sparks. Malibu on The discussing Sparks’ opinion tion of her following: states the agree claim. I with her that material violating you You Rule 7 # 3 are dispute preclude facts are in that people living have more than the home
judgment and that the defendant landlord you registered says are with. rule This rely upon alleged violations of cannot other occupation by that no more than one fami- unlawful agreement the lease until after the ly permittion manage- [sic] without adjudicated. discrimination claim is by removing ment. You must cure this ¶38 join majority refusing I evry body except you your& [sic] for language consider other issues. The that daughters. upon Durham relies from Kaiserman Justice added.) (Emphasis Town, Associates, Inc. v. Francis 977 P.2d Malibu’s evidence the trial court (Utah 1998), addressing justify those largely supple- rested on the affidavit and sweep our claims was never intended aside Prigmore (“Prig- mental affidavit of Mark requirements preserving and usual error more”), manager of the mobile home raising orderly issues in an fashion. It park property agent. Prigmore and Malibu’s court, that on this like be true occasion admits that when he served courts, appellate reaches out to decide all notice, daugh- he knew “that the Defendant’s presented they that issues are not should living ter her and I knew that the exception, be. But those occasions are the Daughter baby.” Defendant’s had a [sic] not the rule. And we have been careful to presence Malibu thus knew of the child’s keep exception those cases the so that that, Sparks’ home when it served a notice refining process through proper that occurs terms, by required its literal preservation development through claim remove the child. appellate brings the trial and courts issues to briefed, Furthermore, fully developed provided us and with the sworn by deposition thorough testimony benefit of consideration in affidavits and in her appellate judges according in the trial and intermediate that she read this notice to its view, is, my present courts. In situation is literal terms. That she understood this giving require not one that other issues her to remove her warrants notice to either exceptional Durham grandchild addressed Justice from the house or move. states, specifically “Plaintiff re- treatment. affidavit my grandchild my quired that who lives DURHAM, Justice, Associate Chief park home leave the as a condi- [sic] mobile dissenting: my residency tion continued in the only person residing in Park.... The respectfully Kathy I Plaintiff dissent. except my mobile home for me and two Sparks (“Sparks”) genuine issues has raised my grandchild.” daughters is regarding of material fact whether defendant (“Malibu”) Investment discrimi- Co. Sparks’ deposition, During the follow- upon protected nated her based ing colloquy place: took category of “familial status.” The landlord Q: daughter says The notice facially sent a notice to that was stay, correct? child’s can [the mother] discriminatory, requiring her to remove her A: Correct. grandchild they from the unit mobile home Q: you they inferred that because So together. principles resided in basic say baby stay specifi- didn’t could fair and discrimina- federal baby cally go? that the had to disputed require tion law that in a case with fact, Sparks A: given issues of material be Correct. *11 ¶ appears 44 As what communicated after 47 Prigmore to was to contradict him- served, self, seven-day
the
support Sparks,
notice was
the record
when he states in
Prigmore’s
affidavit,
shows crucial
supplemental
inconsistencies.
his
Sparks
“Had Mrs.
supplemental
states:
approached
affidavit
“The Park is
the Park for assistance with
Sparks
attempting
not
to evict Mrs.
because
violation,
comply
more time to
with the rule
living
she has more than one
her
the Park
graciously
every-
would have
done
residence.
at one time had other
She
adult
thing
power
help
(Emphasis
its
to
her.”
[sic],
added.)
family, living
Thus,
other than her
with her
appears
dispute
there
to be a
served.[1]
when the notices were
The Park
regarding
Prigmore
whether
ever communi-
gladly
agreement
would have
entered into an
subjective
Sparks.
cated his
intentions to
permit
grandson
to
to reside
her home
¶48 Malibu, however, contends that
the
Sparks
daughters.
with her two
Mrs.
took
notice,
seven-day
says
it
regarding
whatever
request
permission
no action to
such
grandchild,
the
pres-
was motivated
the
the Park.”
other, unregistered
ence of
Sparks’
adults in
Prigmore’s
It is unclear what
time-
Sparks
deposition
home.
in her
testified
to
is,
discussing serving
frame
but since he is
following:
the
notices,
likely that
it is
what he means is
Q:
anyone
Was there
besides the four
Park
to
willing
was
enter into such
. people mentioned in the home at the
an agreement
Sparks
with
the notice
after
notice,
yourself,
time of the
case, Prigmore
was served.
In that
con-
your
daughters
your
two
grand-
ceding that Malibu did intend the notice to
child?
require
ap-
the child’s removal. Malibu thus
A:
it.
That’s
pears
required
to concede that
the notice
Sparks’ grandchild
removal of
and that
it
49 When asked
temporary
about other
understood and intended it to do so.
home,
guests in
testified that her
grandson’s
longest
father had been the
tem-
Prigmore
swore to a conversation with
home,
porary guest
staying
in her
about two
Sparks shortly after the notice was served in
months,
verbally
and that she had
informed
purpose
which he told her that his
was not to
“Mark” (Prigmore)
presence.
about his
Ac-
removal,
require the child’s
but rather “with
cording
Sparks, Prigmore approved
respect
persons
to the unauthorized
was to
guest,
long
only “temporary”;
as
as it was
he
[Sparks]
force
to remove the numerous other
temporary.
“tempo-
did
define
Another
persons
living
adult
have
who
been
with her.”
visitor,” who,
testified,
rary
probably
Sparks deposition, however,
In the
the facts
home,
sleep
Sparks’
did not even
at her
was
quite
are
differently:
stated
perhaps
mother. She came for
five or seven
Q:
you
When
received this
no-
days
to take
eight-year-old
care of
you
only your
tice and
saw that
two
daughter
hospital.
while
inwas
daughters
stay,
you interpret-
could
testify
any
guests
did not
about
other
it,
you go
ed
did
management
lawyer
or visitors. Malibu’s
did not ask
baby?
ask them
about
guests by
about
during
name
A:
I
phone.
them
called
Like I
Sparks’ deposition. Prigmore
testify
did not
say,
go
I can’t
see them
anything
specific
more
than “unauthorized
office,
they’re in
during
I work
persons”
per-
and “numerous other adult
day. By
get
time I
home from
sons.”
they’re gone.
work
ISo
had called
him to ask about this. Well of
light
course
50 Taken in the
most favorable to
they’re
then,
message
Sparks,
not there.
I left a
So
the evidence is that Malibu
answering
her,
on the
machine and he nev-
knowing
served
notice on
and intend-
replied,
er
my phone
returned
ing
require
grand-
call.
it to
remove her
entirely
1. It
repre-
phrase
merely sloppy
is not
clear that this sentence
"at
time” is
one
drafts-
sents
living
sworn statement that other adults were
manship
attempt
than an
rather
to evade the
at the time the
perjury statute.
assume, however,
notice was served. We
facially
Furthermore,
lent motive does not convert a
dis-
the time the notice
at
child.
served,
living
criminatory policy
policy
into a neutral
with a
person was
no other
*12
discriminatory
“Specifically
notice could have re-
effect.” Id.
with
to whom the
home
discrimination,
attempted
plaintiff
regard
to contact
a
ferred. When
discriminatory
to return her
manager,
prove
he failed
need not
the malice or
the Park
Although
may have been
phone call.
Malibu
animus of a defendant to make out a case of
Sparks re-
willing to waive its demand that
intentional discrimination where the defen-
child,
protected
expressly
the
it never communicated this
dant
treats someone
move
willingness to her.2
in a different manner than oth-
FHA[ ]
(citation
Bangerter,
ers.”
SPARKS’ SECTION
CLAIM
omitted).
¶
plaintiff may
There are two methods a
seven-day
says
52 The
disparate
a
treatment dis
use to establish
alleged
gave
“must” cure the
violation that
3604(b) of
claim under section
crimination
by “removing evry body
rise to the notice
Housing
directly, using
Fair
Act:
either
except
you
your 2 daughters.”
&
[sic]
evidence, or indirect
direct or circumstantial
The notice could not be more clear. The
utilizing
method”
ly,
the “inferential burden
notice constitutes direct or circumstantial ev-
Corp.
Douglas
v.
outlined
McDonnell
jury
idence from which a
could infer that
Green,
792,
1817,
411 U.S.
S.Ct.
intended to
because of
Malibu
evict
(1973).
Kormoczy v. Secre
L.Ed.2d 668
presence
grandchild. Analogizing
tary,
Dep’t
States
Hous. & Urban
United
context,
statutory interpretation
omis-
to the
Cir.1995).
(7th
Dev.,
821,
Di
53 F.3d
823-24
significant and should therefore
sions are
“be
inter
rect evidence is evidence which can be
given
of and
effect.” Kennecott
note
taken
acknowledging
defendant’s
preted as
dis
Anderson,
102,
Copper Corp. v.
30 Utah 2d
criminatory intent.
at 824.
See id.
“Where
(1973).
514 P.2d
The burden now
direct
is used to show that a hous
evidence
“prove by
preponder-
a
to Malibu to
shifts
ing decision
made in violation of the
ance of the evidence that it would have made
[FHA],
shifting analysis
inap-
the burden
impermissible
absent the
same decision
Supreme
Id.
posite.”
As the United States
Kormoczy,
factor.”
be to the notice because both Malibu’s intent 3604(C) SPARKS’ SECTION CLAIM underlying disputed. violations are disagree 56 I also majority’s with the refusal to consider claims and de majority 54 The relies on several admit- 3604(c) fenses under sections the FHA and tedly still uncured maintenance violations 57-21-5(2) of the Housing Utah Fair Act “dispositive” listed notice as *13 (“UFELA”), did not raise summary judgment of whether properly these claims and defenses below. In Kaiser granted my on Malibu’s eviction claim. In Associates, Town, man Inc. v. Francis 977 view, estopped argu- Malibu should be (Utah 1998), P.2d 462 explained this court ing period that the days cure of seven that while the ordinarily prefers court run; thus, Sparks yet is not in violation of an appeal decide arguments based on the Requiring Sparks notice. to cure the presented by litigants, there are times maintenance litigating violations before appropriate beyond when it is go those whether the notice illegal constitutes discrim- arguments. See id. at 464. This court stat place ination would before her a Hobson’s ed, view, “In our argument an overlooked ... choice spending her scarce resources to compel should not an erroneous result. We cure the pos- maintenance violations with the ignore just should not be forced to the law sibility that she would have to anyway move parties pur because the have not raised or if the notice were found to be arguments.” sued obvious Id. Unlike Kai- nondiscriminatory. Sparks has sworn that serman, appeal, this issue was raised on approximately per she makes hour $5.80 sew- further, 3604(c) the section claim involves ing piecework spend she could not exactly the same issues of fact as the section money curing the maintenance violations widely claim. It acknowledged is before she knew the outcome of the lawsuit. rule reviewing “[t]he that a court will If the illegally landlord had not discriminated only address issues in the trial court is not against grandchild, Sparks would have [Tjhere absolute.... are numerous situa been able to cure the maintenance violations. tions which a reviewing court reach Therefore, the illegal landlord’s action is the an issue notwithstanding ... being pre its reason that she inis violation of the notice. sented for the appeal.” first time on 5 Am. (1995). Appellate Jur.2d Review 691 One majority 55 The relies on Crescentwood area in which appropriate it is to make such Johnson, (Utah Village, Inc. v. 909 P.2d 1267 exception is when the matter is of “suffi Ct.App.1995), uphold posi- landlord’s public cient concern.” Certainly, Id. the area tion that legal. eviction is in- discrimination is one of vital con case, however, stant clearly is distinguishable public, cern to the this narrow circum Crescentwood, from Crescentwood. In stance, I exception would make the and con landlord served notice similar to the ones sider defendant’s claim and defense. Sparks, served to the effect that future violations of these 3604(c) rules would result in evic- prohibits making Section tion without a opportunity further publishing notice, statement, to cure. any or or Crescentwood, See id. at 1268. In the tenant concerning advertisement the rental of a violations, cured all of the and later dwelling any preference commit- that indicates or lim- Here, ted new violations. See id. itation based on familial status. See 42 3604(c) (1994). still on round number one that she has Many not U.S.C. cases have had a chance to cure her recognized violations while not held or that the test for determin- also under having the threat of ing to leave her whether violation has occurred is grandchild home stay. whether, because her given cannot interpretation the natural Surely, circumstances, words, under these it ordinary would indicate to the listener, should not be bound the Crescentwood reader or who is neither the most standard. permits It suspicious landlord to both nor the most insensitive of readers
1057
action,
listeners,
discriminatory preference
during
or
time
the course of this
but
problematic.
I believe is
Department
v.
which
limitation. See Jancik
(7th
Dev., 44
553
Hous. & Urban
F.3d
Cir.
60
the notice that
The text of
1995);
Equal,
Housing Opportunities Made
received from Malibu does not address
Inc.,
F.2d
Enquirer,
Inc. v. Cincinnati
specifically
at the
whether it is
aimed
remov-
(6th Cir.1991); Ragin v. New York
grandchild,
complaint,
other
al of her
(2d
Co.,
Cir.1991);
the difficulties discriminatory treat-
criminatory intent or
ment, required to the landlord should be true aims the notice.
state its
CONCLUSION It has been noted: premised alleged violations of the
Cases rights plaintiffs
constitutional or civil
frequently are unsuitable for true with other cases
judgment. As is issues, important public
involving courts summary judgment in *16 grant refuse to it is felt that a fuller
these actions because necessary in able to
record is order be properly involved.
decide the issues Wright, Arthur R. Miller
10B Charles Alan Kane, Mary Kay Federal Practice and
& (1998).
Procedure 2732.2 This is such
case. reasons, respect- foregoing I 69 For the
fully dissent. prior to STEWART acted his Justice
retirement.