Mueller v. Allen

• Decision Date: 03 November 2005
• Docket Number: No. 20040208-CA.,20040208-CA.
• Citation: 2005 UT App 477,128 P.3d 18
• Parties: Elizabeth Ruth MUELLER aka Elizabeth Muller fka Elizabeth Ruth M. Allen, Plaintiff and Appellee, v. David G. ALLEN, Susan S. Allen, Randy N. McCandless, and Halene McCandless, Defendants and Appellants.
• Court: Utah Court of Appeals

128 P.3d 18

2005 UT App 477

Elizabeth Ruth MUELLER aka Elizabeth Muller fka Elizabeth Ruth M. Allen, Plaintiff and Appellee, v. David G. ALLEN, Susan S. Allen, Randy N. McCandless, and Halene McCandless, Defendants and Appellants.

No. 20040208-CA.

Court of Appeals of Utah.

November 3, 2005.

COPYRIGHT MATERIAL OMITTED

Mary C. Corporon, Corporon Williams & Bradford, Salt Lake City, for Appellants.

Gary A. Weston, Nielsen & Senior PC, Salt Lake City, for Appellee.

Before Judges DAVIS, GREENWOOD, and ORME.

OPINION

ORME, Judge:

¶ 1 This appeal stems from a divorce between David Allen and Elizabeth Mueller and concerns the post-divorce use and disposition of David and Elizabeth's property in Riverton, Utah. Susan Allen, David's mother, was joined as a defendant because she was a real estate agent that dealt with the property. A jury found that David and Susan Allen, by renting it to the McCandless family, trespassed upon Elizabeth's right to occupy, possess, and use the property. The Allens now appeal portions of the jury's verdict. We affirm in part and reverse in part.

BACKGROUND

¶ 2 While most of the pertinent facts are not in dispute, "`[o]n appeal from a jury verdict, we view the evidence and all reasonable inferences in a light most favorable to that verdict and recite the facts accordingly.'" State v. Allen, 2005 UT 11,¶ 2, 108 P.3d 730 (citation omitted).

¶ 3 David Allen and Elizabeth Mueller were married in November of 1998. Approximately one year after they were married, they purchased a "fixer-upper" in Riverton, Utah, taking title as co-owners and each holding a one-half undivided interest in the home. During their marriage, they placed a first and second mortgage on the home and paid the monthly mortgage payments from a common bank account. They separated in August of 2001. Elizabeth remained in the home until the parties divorced in January of 2002. Until that time, Elizabeth and David had duly made their mortgage payments, but when Elizabeth moved out of the home in January of 2002, they stopped making payments. They also stopped making utility payments, and Elizabeth and her father "winterized" the home. The divorce court entered its decree in January 2002, which, among other things, ordered Elizabeth and David to sell their home "as soon as reasonably practicable" and divide the proceeds "equally."

¶ 4 Approximately nine months before David and Elizabeth divorced, the couple had put their home up for sale. They retained David's mother, Susan Allen, a real estate agent, to sell their home. They signed a listing agreement securing Susan's services from April through September of 2001. No buyer was procured during that time and a second listing agreement was signed that expired March 22, 2002. Both listing agreements provided that the home was not available to rent.

¶ 5 Up until March 2002, prospective buyers had come by to look at the home, but not a single offer to purchase the home had been made. In early March of 2002, Susan showed the home to the McCandlesses, who, after inspecting the property, decided to purchase the home at a price that reflected its current state of repair—or more accurately, disrepair. The purchase was conditioned upon the McCandlesses' ability to secure a loan for the entire purchase price. When Elizabeth signed the earnest money agreement for the potential sale of the home to the McCandlesses, she expressed concern to Susan about the property, about her credit, and about the property going into foreclosure because she and David had not made a mortgage payment since December 2001. Elizabeth inquired about putting renters into the property if the McCandlesses' application for a loan was denied. Susan advised against renting the property at that time.

¶ 6 The McCandlesses' loan application was in fact denied, and they did not then purchase the home. On April 5, 2002, however, David and the McCandlesses signed a residential rental agreement by which the McCandlesses rented the property for $1400 per month, provided that they could secure a loan with which to purchase the property within thirty days. Susan, who had prepared the residential rental agreement, faxed it to Elizabeth. Elizabeth did not sign the agreement, later testifying that she believed that putting renters into the property would hinder the sale of the home. Nonetheless, the McCandlesses moved into the home that same day, and David collected $1400 from them to cover April's rent. David subsequently applied $550 of April's rent to the mortgage lender to forestall commencement of foreclosure proceedings, but failed to allocate to Elizabeth her fair share of the remaining $850.

¶ 7 That same night, Elizabeth visited the property to ask the McCandlesses about their understanding of the rental agreement. On arriving at the property, Elizabeth approached Mr. McCandless and informed him that she had not consented to the rental agreement and therefore had not signed it. She did not, however, ask him to vacate the property. Over the course of the next few months, she visited the property several more times and at no time during those visits did she ask the McCandlesses to vacate.

¶ 8 On April 26, 2002, Elizabeth was presented with another earnest money agreement signed by the McCandlesses, which conditioned their purchase obligation upon bank approval of their loan application. Elizabeth signed this contract, later testifying that her "ultimate goal ... was to sell the property and save [her and David's] credit." A few weeks later, the McCandlesses learned their loan application was again denied, leaving them without the means to purchase the property.

¶ 9 Although the McCandlesses continued to occupy the property beyond April of 2002, Elizabeth and David did not collect any rent from them during the next four months. During this entire time, Elizabeth did not ask the McCandlesses to vacate the property, nor did she indicate that she wanted to use or occupy the property. It was not until August 2002 that she made written demand on the McCandlesses to vacate the property and to account for all rent that had been paid to David. Elizabeth, through her attorney, also sent a letter to Susan and David requesting that they advise Elizabeth whether any rent had been collected and, if none had been, that they evict the McCandlesses. Neither David nor Susan responded to the letter.

¶ 10 On August 23, Elizabeth served the McCandlesses with a written notice to pay the delinquent rent or quit their possession of the property. The McCandlesses continued to remain in possession. In September of 2002, David collected $2800 in rent from the McCandlesses—the first rent collected since April. In the meanwhile, the McCandlesses had not signed another earnest money agreement or rental agreement, nor had Elizabeth attempted to find a realtor to relist the property for sale.

¶ 11 On September 26, Elizabeth filed this action against David, Susan, and the McCandlesses alleging, among other things, that the Allens had trespassed upon her right to occupy, use, and possess the property by renting the property to the McCandlesses and that the Allens had tortiously interfered with her economic relations.

¶ 12 In November 2002, David collected another $1400 in rent from the McCandlesses. David later testified that he did not pay any portion of the rent he collected in September and November to Elizabeth. The McCandlesses finally obtained a loan and purchased the property in December of 2002 pursuant to an earnest money agreement prepared by David. To effectuate the sale, Elizabeth executed and delivered a quit claim deed to David.

¶ 13 In February 2003, David and Susan Allen filed a motion for partial summary judgment, arguing that the divorce court had continuing and exclusive jurisdiction over Elizabeth's claims against them. In May, the trial court ruled that the divorce court did not have exclusive jurisdiction over the matter. The Allens renewed their motion for partial summary judgment, which the court again denied. The case was then tried before a jury in January of 2004.

¶ 14 The jury found that both David and Susan intentionally interfered with Elizabeth's economic relations regarding the home, and awarded $8100 in compensatory damages against David and $0 in compensatory damages against Susan for the tortious interference. The jury also found that David and Susan had trespassed against Elizabeth's right to possession of the home by causing the McCandlesses to move into the home. On the trespass issue, the jury awarded compensatory damages against David and Susan Allen jointly and severally for $10,000. The jury further found that the McCandlesses had trespassed upon Elizabeth's right to occupy the home and that they had become unlawful detainees of the home. The jury awarded compensatory damages in the amount of $8,550, jointly and severally, against the McCandlesses. The special verdict of the jury on punitive damages awarded punitive damages of $5,000 against David and $30,000 against Susan.

¶ 15 The Allens now appeal. The McCandlesses did not appeal the jury's verdict against them.

ISSUES AND STANDARDS OF REVIEW

¶ 16 The Allens argue that this matter never should have been brought as a separate lawsuit because Elizabeth's claims should have been raised in the prior divorce action. Because they were not, the Allens contend the claims should be barred by res judicata and collateral estoppel. They argue that the trial court also erred in ruling that the divorce court did not have exclusive jurisdiction over Elizabeth's claims. Because "summary judgment involve[s] questions of law," we review it "for correctness and accord the district court's decision no deference." Houghton v. Department of Health, 2002 UT 101,¶ 7, 57 P.3d 1067.

¶ 17 The Allens also argue that the trial court improperly instructed the jury on trespass. They contend that they were unable to commit trespass as a matter of law and, therefore, that...