Dishinger v. Potter

• Decision Date: 28 June 2001
• Docket Number: No. 20000081-CA.,20000081-CA.
• Citation: 2001 UT App 209,47 P.3d 76
• Parties: James DISHINGER and Nancy Dishinger dba TCBY Yogurt, Plaintiffs, Appellants, and Cross-appellees, v. Jana POTTER dba Silver Queen Hotel, Defendant, Appellee, and Cross-appellant.
• Court: Utah Court of Appeals

47 P.3d 76

2001 UT App 209

James DISHINGER and Nancy Dishinger dba TCBY Yogurt, Plaintiffs, Appellants, and Cross-appellees, v. Jana POTTER dba Silver Queen Hotel, Defendant, Appellee, and Cross-appellant.

No. 20000081-CA.

Court of Appeals of Utah.

June 28, 2001.

Rehearing Denied July 16, 2001.

Dwayne A. Vance and David B. Thompson, Park City, for Appellants.

Robert M. Felton, Salt Lake City, for Appellee.

Before Judges BILLINGS, ORME, and THORNE.

OPINION

BILLINGS, Judge:

¶ 1 Plaintiffs James and Nancy Dishinger dba TCBY Yogurt (the Dishingers) appeal the trial court's judgment finding them in unlawful detainer. Defendant Jana Potter dba Silver Queen Hotel (Potter) cross-appeals the trial court's refusal to instruct the jury on the meaning of "prevailing rate" and its failure to award her administrative, late, and attorney fees. We reverse and remand.

BACKGROUND

¶ 2 In May of 1990, Erik Ziskend entered into a commercial lease with Potter for premises located on Main Street in Park City, Utah. On May 31, 1994, Ziskend assigned the lease to the Dishingers. Potter consented to the assignment. The Dishingers operated a frozen yogurt shop on the premises.

¶ 3 The lease provided for continuous three year options after expiration of the initial three year lease term. Under the terms of the lease, the Dishingers, as tenants, were required to notify Potter in writing of their desire to exercise the option 120 days prior to the expiration of the current lease term. The lease specified that the rental rate for an option period would be "adjusted upward, but not less than the current Minimum Monthly Rent being paid, to the then prevailing rental rate of similar buildings in the Main Street area of Park City, Utah."¹

¶ 4 On February 1, 1996, the Dishingers notified Potter in writing of their desire to exercise the lease renewal option. Thereafter, the following correspondence took place. On April 4, 1996, Potter advised the Dishingers that the prevailing rental rate of similar buildings on Main Street in Park City was $30 per square foot and thus, pursuant to the lease, $30 per square foot ($2,425.00/month) would constitute the new base monthly rent. The Dishingers responded that, based on the appraisal they had performed, the prevailing rental rate of similar buildings was $19 per square foot ($1,535.83/month).

¶ 5 At the commencement of the July 1, 1996 renewal period, without an agreement as to what would constitute the base monthly rent, the Dishingers began paying rent in an amount reflecting their appraisal of $19 per square foot. They sent Potter a check for $1,976.92, clearly noting it was for "New Base Rent." On July 8, 1996, Potter sent the Dishingers a notice of default on the grounds that the Dishingers were $889.17 delinquent in their July rental payment. On July 13, 1996, Potter served the Dishingers with a notice to pay the remaining rent or quit. On July 15, 1996, Potter negotiated the Dishinger's July 1 rent check. On the first of every month, from July 1996 through June 1997, the Dishingers sent Potter a check for $2,137.11² reflecting $19 per square foot in base monthly rent. Potter negotiated each of those checks.

¶ 6 On August 8, 1996, the Dishingers filed a declaratory judgment action asking the trial court to interpret the lease provision regarding the monthly rental rate. Potter counter-claimed for breach of lease and unlawful detainer.

¶ 7 After a jury trial, the jury returned a special verdict answering a number of factual questions. In the special verdict the jury found there was a legitimate dispute as to the "then prevailing rental rate," that the Dishingers tendered payment to Potter in full satisfaction of the disputed amount based on their appraisal of $19, and that Potter accepted the rent payments after the July 13 notice to quit. The jury also found the "then prevailing rental rate" to be $25 per square foot, and as such, Potter was entitled to recover the balance of base rent, totaling $8,730.

¶ 8 The Dishingers filed a motion for entry of judgment based on the special verdict, arguing that the jury's special verdict established an accord and satisfaction, which fixed the base rental rate at $19 per square foot, and thus, they were current in monthly payments and Potter's unlawful detainer claim should be dismissed. The Dishingers also argued that a determination that they were in unlawful detainer of the premises was precluded because Potter accepted rental payments after serving the notice to quit, thus waiving forfeiture of the lease.

¶ 9 The trial court, first Judge Brian, then Judge Hilder in an amended judgment, entered judgment for Potter. The trial court concluded that, based on the findings of the jury in its special verdict, it was "clear" that while Potter accepted payments after the notice to quit, the amount received "did not represent a full payment of base rent," and thus did not constitute an accord and satisfaction. Thus, the trial court concluded the Dishingers were in unlawful detainer and entered judgment in favor of Potter for $8,730, which was trebled to $26,190 pursuant to Utah Code Ann. § 78-36-10 (1996). This appeal followed.

¶ 10 On appeal, the Dishingers argue the trial court was precluded from determining they were in unlawful detainer because the jury's special verdict established an accord and satisfaction as a matter of law. Alternatively, the Dishingers argue that Potter affirmed the lease by accepting rent payments, thereby waiving forfeiture of the lease, and thus precluding a finding of unlawful detainer. ¶ 11 Potter cross-appeals, arguing the trial court should have instructed the jury that the "then prevailing rental rate" meant market rate. Potter also argues the trial court erred by failing to award her administrative fees, late fees, and attorney fees as required by the lease.

ANALYSIS

I. Preliminary Issues

¶ 12 In addition to the claims raised in her cross-appeal, Potter asserts that the Dishingers failed to preserve their claims below, failed to provide a transcript of the proceedings and marshal the evidence, and cannot rely on the jury's special verdict because it was merely advisory. Before addressing the main substantive issues on appeal, we first address these threshold arguments.

A. Preservation of Claims

¶ 13 Potter first argues the Dishingers failed to preserve their claim of accord and satisfaction in accordance with Rule 24(a)(5)(A) of the Utah Rules of Appellate Procedure. Rule 24(a)(5)(A) provides that "[t]he brief of the appellant shall contain ... citation to the record showing that the issue was preserved in the trial court." Utah R.App. P. 24(a)(5)(A). The Dishingers reference several places in the record to show that the issue of accord and satisfaction was preserved in the trial court.³ Thus, Potter's argument that the Dishingers did not preserve the issue of accord and satisfaction is without merit.⁴

B. Marshaling the Evidence

¶ 14 Potter next argues the Dishingers needed to provide a transcript of the proceedings to allow meaningful review of the evidence, and have also failed to marshal the evidence. A transcript of the proceedings is not required because the Dishingers are relying on the jury's special verdict on appeal, not the evidence presented at trial. See, e.g., Pugh v. North Am. Warranty Servs., Inc., 2000 UT App 121, ¶ 11, 1 P.3d 570

. Moreover, the marshaling requirement applies only when challenging findings of fact. See Moon v. Moon, 1999 UT App 12, ¶ 24, 973 P.2d 431. Clearly, the Dishingers are not challenging findings of fact. Rather, they are challenging the trial court's application of the law to the jury's special verdict findings and thus the Dishingers do not have the burden of marshaling the evidence.

C. Advisory Jury Verdict

¶ 15 Relying on Peirce v. Peirce, 2000 UT 7, 994 P.2d 193, Potter next argues that the jury's special verdict was merely advisory, and therefore the trial court was not bound by the jury's findings in the special verdict. Potter's reliance on Peirce is misplaced. In Peirce, the issue before the court was "whether the jury served in an advisory capacity or whether [the] case was tried by a jury as a matter of right." Id. at ¶ 12. However, the plaintiff in Peirce was seeking an equitable remedy. See id. "When a jury is used in an equity case, it acts in an advisory capacity," id. (quoting Romrell v. Zions First Nat'l Bank, 611 P.2d 392, 394 (Utah 1980) (quotation and citation omitted)), "`unless both parties have clearly consented to accept a jury verdict.'" Id. at ¶ 13 (quoting Romrell, 611 P.2d at 394); see also Utah R. Civ. P. 39(c). Because the parties did not clearly consent to accept a jury verdict, and the record indicated that the trial court treated the jury as advisory, the court held that the jury served only in an advisory capacity and thus afforded no deference to its findings. See id. at ¶ 15.

¶ 16 In the instant case, we are not dealing with an action in equity. Both the Dishingers and Potter pursued legal claims, the Dishingers specifically demanded a jury trial on those claims, and at no time did the trial court inform the parties or the jury that the jury was merely advisory. Cf. Goldberg v. Jay Timmons & Assocs., 896 P.2d 1241, 1244 (Utah Ct.App.1995)

(stating, "if the trial court had intended . . . to use an advisory jury, it should have notified the parties before the trial began"). Where, as here, the case is tried to a jury as a matter of right, Rule 49(a) of the Utah Rules of Civil Procedure permits the trial court to "require a jury to return only a special verdict in the form of a special written finding upon each issue of fact." Utah R. Civ. P. 49(a). "The [trial] court then applies the law to the facts as found and renders a verdict." Brigham v. Moon Lake Elec. Ass'n, 24 Utah 2d 292, 298, 470 P.2d 393, 397 (1970) (Ellett, J., further opinion) (commenting on Rule 49(a)).

¶ 17 As Justice Ellett explained in Brigham:

The

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