*2 ORME, Before GREENWOOD and WILKINS, JJ.
OPINION WILKINS, Judge: Washington Bertha appeals the lower grant court’s decision to Apart- Woodhaven ments part as a of its judgment against her. We affirm.
BACKGROUND brought Woodhaven against this action Washington damages pursuant for to their lease Washington after vacated apartment six months before the lease Paragraph term ended. 26 of the lease agreement, appeared immediately line, above signature provided that Washington premises vacated the before the expired, she would be assessed a “ter- equal mination fee to one and one-half apartment rent” if months[’] was re-let expired.1 before the lease Because Woodha- Washington’s ven re-let apartment only fif- days it, teen after she vacated appeals finding the lower court’s that liquidated damages fee was enforceable and the court’s that contracting conclusion fee was not an unconscionable act under the (UCS- Utah Consumer Sales Practices Act PA).2 Washington argues law Utah prohibits receiving landlords from damages awards.
STANDARD OP REVIEW given We have deference to the fact, trial court’s findings of see Reliance Ins. Dep’t Transp., Co. v. Utah but we have reviewed for Mittelstadt, Bruce Plenk and Eric Salt correctness the trial court’s conclusions that City, Appellant. Lake liquidated damages were not unconscio- provision 1. appeal, The lease reads in party disputes whole: 2. On neither the trial premises pri- 26. Should vacate court's Resident determination that the contested lease terms, expiration or to the Resident will is a clause or that responsible be held for the term of the lease. applies. Consequently, the UCSPA we do not prior In the event that the re-rents address these conclusions. lease, expiration to the Resident will be equal assessed a termination fee to one and monthsf] one-half rent. the effort and resources liqui- proportion out of receive landlords nable early apartment. The required to re-let the of a a tenant’s breach dated 13-11-5(2) (1992); agreed par- § termination assessment Ann. Code lease. Utah light Pena, of the then- was reasonable ties State v. generally see expenses expected anticipated to be caused *3 early Washington’s possible termination. ANALYSIS by Washington’s harm caused breach The
I. accurately when was also difficult to estimate contracted, part of parties so the second the liquidated damages hold the We that validity of legal test determine the the with Washington’s lease Woodhaven clause met liquidated damages is also a Because it was under Utah law. is valid Ins., P.2d at The See Reliance 1368-70. if the harm caused forecast of reasonable year. parties’ one lease was for Neither early, and harm was Washington vacated the Washington nor could know Woodhaven the the to estimate when parties for difficult they agreement the entered into lease when signed, liquidated agreement was lease dur- housing the market would be like what See Reli damages is enforceable. Particularly, they coming year. ing the Transp., 858 Dep’t v. Ins. Co. Utah ance long it take not know how would could 1993) (Utah (adopting Re Washington’s apartment to re-let Woodhaven (1932)). § 339 of Contracts statement lease if vacated before the ended. she correlation must exist A reasonable actually damages Therefore, the Woodhaven legal between prongs of the since both for con provided and in the incurred those met, liquidated damages provi- are the test Any disparity between the dam tract. Id. First, liquidated damages valid. the sion is provided incurred and those ages Woodhaven forecast, a at the time clause was reasonable liquidated damages provision “must for in the into, lease was entered the the and ‘shock the ‘grossly excessive’ must be Washington incur if termi- would Woodhaven before declare of this court we conscience’ Second, early. lease the harm was nated her (citing damages void.” the parties accurately estimate difficult (Utah Kingdon, Allen signed. agreement the lease was when 1986)); Sign Young Elec. Co. v. United see “ (Utah West, Inc., 162, 164 Standard Furthermore, ‘[u]nder the basic 1988) (noting “are that contract, stipula principles of a freedom if dam enforceable the amount con liquidated damages for breach of tion to ” disproportionate to the ages agreed to is not Allen, 723 generally enforceable.’ tract possible compensatory Rasmussen, (quoting P.2d at 397 Warner penalty”). a a The constitute forfeiture or 1985) (citations omit found, agree, the and we that trial Woodhaven, ted)). that It is reasonable not shock liquidated damages provision “does comprised apartments, should of 378 being oppressive.” unfair or conscience as the accounting its costs of allowed to minimize be addition, re-letting apartments that have vacated been In the record indicates early requiring keep than exact expenses costs rather incurs extra Woodhaven accounting costs early. For records of individualized a tenant terminates a lease when agree by tenant of a perform addition- for each breach a example, Woodhaven must ensuring Using liquidation clause also bene such as that ment. al administrative work done, timely they know what cost will cleaning repairs are fits tenants because the vacancy, upon early vacancy. If actual advertising showing the assessed the be tenants, evaluating only allowed of dam apartment prospective costs were measure tenants, required pay be prospective ages, some tenants would the credit worthiness liquidated damages assess preparing paperwork prospective more than found, if the was unable to re-let As the trial court an assess- ment landlord tenants. de- for several months of one and one-half months’ rent is vacated ment significant potentially expensive spite ef- for a Utah landlord a breach of lease contrary. forts to the situation.
II.
CONCLUSION
legal
We
affirm the trial
court’s
con-
liquidated damages
para-
The
provision of
paragraph
clusion that
was not unconscio- graph
relationship
26 bore a reasonable
despite Washington’s argument
nable
parties anticipated
Woodha-
meaningful
regarding
lacked a
choice
she
ven would incur
terminated
liquidated damages clause.
“Unconsciona-
early,
her lease
and the harm was difficult to
ble,”
court,
according
supreme
to our
“is a
accurately
at
estimate
the time the lease
precise
Rather,
term that defies
definition.
addition,
signed.
*4
court must assess the circumstances of each
damages were not unconscionable under the
particular
light
purpose
case in
of the twofold
UCSPA,
they
and
are allowed under Utah
doctrine, prevention
oppression
of the
of
and
law.
attorney
We affirm. Costs and
fees
surprise.”
unfair
Management
Resource
are awarded to Woodhaven.
Co.,
v.Co. Weston Ranch & Livestock
706
1028,
P.2d
1041
GREENWOOD, J., concurs.
oppression,
here claims
ORME, Presiding Judge (dissenting):
surprise
rather than unfair
the
as
basis for
case,
I dissent.
In this
the landlord re-
finding paragraph
to26
be unconscionable.
ceived,
part
as
judgment,
of its
the amount of
However,
is
still the law in Utah that
by
paid
rent
that was owed but not
the
parties
length
contract at arms
without
right up
tenant
to the time the
the
courts
intervention
the
to rescue one
addition,
was relet.
trial
the
court stood
side or the other from the
result
ready to award additional
damages
actual
to
bargain.
permitted
at
Id.
1040. Parties are
compensate
property damage
caused
enter
appear
to
into contracts that later
to be
tenant,
the
damage
but found no such
was
unfair or
“Although
unreasonable.
Also,
proven by
pro-
the landlord.
the lease
parties
enforcing
courts will not be
to
fla
portion
money paid by
vides that a
the
unjust agreements,
grantly
it is not for the
refundable,
tenant in
is not
advance
rath-
but
paternalistic
courts to assume the
role of
er is earmarked for redecoration.
declaring
one
freely
who has
him
bound
perform
bargain
need
self
because the
is
If
contractually
the tenant remains
liable
not favorable.” Bekins Bar V Ranch v.
unpaid
for actual
up
rent
to the time of
(Utah
Huth,
1983).
455,
P.2d
664
459
reletting,
necessary
repair
costs
the
to
any property damage, and for at least some
Having
considered
the surround
redecoration,
damage
sought
what kind of
is
case,
circumstances in this
the “trial
to be
covered
over
additional
$500
did not find
court
this contract to be uncon
liquidated damages? The trial court theo-
scionable,
upon
and there
no
is
basis
which
a
expenses,
rized that
landlord incurs other
law,
say,
can
a
we
as matter of
that he erred
running
signs
like
posting
ads and
to adver-
Swan,
in his conclusion.” Jacobson v.
3 Utah
vacancy,
spent
tise the
and that time must be
59,
(1954).
67,
294,
2d
P.2d
showing
prospective
the unit to
tenants
However,
processing
applications.
III.
employee
landlord’s
purpose
testified
real
Washington’s argument
provision
that Utah
to
law
induce the tenant to
prohibits
collecting liquidated
obligations
landlords from
honor the lease
and the landlord’s
damages
no
attorney freely
awards has
merit. The trial
referred to it as a
correctly
“penalize
concluded that Reid v. Mutu
keeping
the tenant for not
Co.,
al
Significantly,
Omaha Insurance
There a curred, liquidated pro- compared or even if to some modest can invalidate courts unjust expense results. One imputed such attributable administra- work visions unit, liqui- process who would avoid a an way “party is tive efforts show vacant proves dam- damages provision” “no fill in a on a application, dated few blanks or that there no rea- ages were suffered form. compensatory relationship between sonable case, on facts of At least the $531 Young Sign damages.” Elec. exactly what landlord’s counsel “fee” Inc., West, v. United Standard Co. Accordingly, I penalty. it —a would called 1988). (Utah See Allen appealed judgment from delete amend 1986) (Utah
Kingdon, 723 penalty leave the landlord recover $10,800 (holding dispropor- “excessive and damages. only its actual compared actual loss tionate” when refusing to enforce $3746 Sign
damages provision); Young Elec. Co. 1977)
Vetas, (stating penalty, are considered unenforceable, “if the
and therefore they stipulated are so excessive that
thus *5 relationship to actual no reasonable
bear
damages”). case, I must concede that instant tenant’s meet her burden effort BISCHEL, Appellant, Plaintiff and Caren respect was unfocused. Nonethe- somewhat less, testimony, import landlord’s cross-examination, on this was Heather J. MERRITT and Salt Lake designed compli- to induce termination fee County, al., et Defendants (or words, penalize in non- ance counsel’s Appellees. really designed to compliance) that was not range correspond any particular proba- No. 940559-CA. Although land- expenditure. ble relet Appeals Court of of Utah. testimony average an lord’s was that it took (three days to re-rent an six 30, 1995. Nov. clean), days if it it was conceded that was left significant gap occupancy there was no appreciable expended effort was
here importantly,
to find new tenant. More gap was no the rents received
there
landlord, i.e., judgment includ- the landlord’s unpaid owing but
ed the amount of rents up to
unpaid right the tenant the time
occupancy by new tenant. say that no prepared
I am in a could clause residential case, provision in upheld. The
ever be
however, enforced where simply cannot be dam-
the landlord sustained no demonstrable rent, beyond unpaid prop-
age above and
erty damage, expense and redecoration
already is entitled recover. The sum disproportionate”1 is “excessive and
$531 1986). Kingdon,
1. Allen v.