Bonnie & Hyde v. Lynch , 305 P.3d 196 ( 2013 )


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    2013 UT App 153
    _________________________________________________________
    THE UTAH COURT OF APPEALS
    BONNIE & HYDE, INC.,
    Plaintiff and Appellee,
    v.
    TOM LYNCH,
    Defendant and Appellant.
    Opinion
    No. 20120367‐CA
    Filed June 20, 2013
    Second District, Ogden Department
    The Honorable Scott M. Hadley
    No. 080902079
    Jennifer Neeley and Robert L. Neeley, Attorneys
    for Appellant
    Joseph E. Minnock and John T. Anderson,
    Attorneys for Appellee
    JUDGE CAROLYN B. MCHUGH authored this Opinion, in which
    JUDGES JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN
    concurred.
    McHUGH, Judge:
    ¶1     Tom Lynch (Tenant) appeals from the trial court’s
    determination that he abandoned property that he had leased from
    Bonnie & Hyde, Inc. (BHI). Tenant also challenges the trial court’s
    conclusions that BHI did not wrongfully convert or attach his
    personal property. We affirm, in part, and reverse and remand,
    in part.
    Bonnie & Hyde v. Lynch
    BACKGROUND1
    ¶2     BHI, a company operated by Jeff Hyde, owns a building and
    real property in Huntsville, Utah. BHI leased the premises to a
    restaurant owner until 2005, when Tenant bought the prior owner’s
    restaurant and assumed the lease. Tenant upgraded the restaurant
    by supplying his own personal property including new equipment
    and silverware. Thereafter, Tenant fell behind on his lease
    payments to BHI. In June 2007, BHI and Tenant executed a new
    lease agreement that lowered the amount of rent due on the first
    day of each month. If the rent was not paid by the fifth day of the
    month, the new lease imposed a late fee. Tenant was also
    responsible for paying the property taxes. In addition, Tenant
    agreed to keep the restaurant open every day from 10:00 a.m. to
    8:00 p.m., except for certain holidays. Subsequently, the restaurant
    was rarely closed during these business hours. When Tenant was
    late on his rental payment, he typically contacted Hyde and they
    worked out a solution together.
    ¶3      In November 2007, Hyde sent Tenant an invoice for the 2007
    property taxes, but Tenant did not pay the bill. Hyde called Tenant
    several times to discuss the matter, but Tenant did not return his
    calls. This behavior was unusual based on the prior conduct of the
    parties. Tenant also failed to pay the January 2008 rent by the first
    of the month. On January 6, 2008, BHI sent another 2007 property
    tax invoice to Tenant, and the following day, BHI sent a Three Day
    Notice to Pay or Vacate to the address specified in the lease as well
    as to the restaurant’s address. Tenant denied receiving this notice.
    On January 9, 2008, Hyde called Tenant and left a message about
    the delinquent amounts. Tenant returned this call and indicated
    1. “On appeal from a bench trial, we view the evidence in a
    light most favorable to the trial court’s findings, and therefore
    recite the facts consistent with that standard.” Alvey Dev. Corp. v.
    Mackelprang, 
    2002 UT App 220
    , ¶ 2, 
    51 P.3d 45
     (citation and internal
    quotation marks omitted).
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    that the check was in the mail.2 Three days later, Hyde left a
    message for Tenant stating that he had not received the check.
    ¶4     Tenant was last on the premises on January 13, 2008, and
    two of Tenant’s employees operated the restaurant the following
    day. Although the employees believed that they also tried to open
    the restaurant on January 15 or 16, 2008, their time sheets for
    another employer indicate that they were both working elsewhere
    at those times.
    ¶5     In the mid‐afternoon of January 15, 2008, the power
    company disconnected the power to the restaurant for
    nonpayment. That afternoon, Hyde tried to reach Tenant on his
    mobile number and at the restaurant, but no one answered. That
    evening, Hyde went to the premises and discovered that the
    restaurant was closed and locked and that the parking lot and
    walks were covered with snow. When Hyde tried to enter the
    restaurant through the front door, he discovered that the locks had
    been changed. He found one door that still had a lock that could be
    opened with his key, but his access to that door was impeded by
    uncleared snow. Hyde entered the restaurant and became
    concerned that the lack of electricity might cause the water heater
    to freeze and burst. He found food that had not been properly
    stored, causing the restaurant to reek, and he noticed that
    equipment had been left in the “on” position, which he believed
    created a fire hazard in the event the power came on while no one
    was present. Upon inquiry, Hyde learned that the power could not
    be restored until the following day. He called Tenant twice that
    evening and left messages regarding the power outage, but Tenant
    did not respond.
    ¶6    Based on Tenant’s failure to communicate with Hyde and
    the condition of the restaurant, Hyde believed that Tenant had
    abandoned the premises. Hyde then brought propane heaters to
    2. Tenant admitted at trial that he never sent the check.
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    the restaurant to prevent the pipes from bursting and made
    arrangements to have the locks to the building changed so that he
    could enter through the front door—access he needed to bring in
    the items required to mitigate the damage to the restaurant. Except
    for a few early morning hours, Hyde stayed at the premises until
    around four in the afternoon on January 16, 2008 without
    encountering Tenant or any of the restaurant’s employees. When
    Hyde left, he posted a sign on the building that advised visitors to
    call BHI.
    ¶7     Tenant returned to the premises later that evening and
    discovered that he had been locked out of the restaurant.
    Nevertheless, Tenant did not contact BHI. Hyde returned the
    following day, and again no one came to open the restaurant. On
    January 18, 2008, Tenant left two messages for Hyde indicating that
    he was having a cash flow problem but that he hoped to obtain
    capital contributions from investors. When Tenant eventually
    spoke to Hyde that evening, he did not ask for a key or request to
    take possession of the premises or his personal property.
    ¶8      Three days later, Hyde and Tenant met at the restaurant.
    During this meeting, Tenant stated that he was “done with the
    business” and that he was struggling financially. According to
    Hyde, Tenant offered to sell the personal property to BHI and
    when Hyde declined, Tenant offered to leave his personal property
    in place to make the restaurant more appealing to a potential
    tenant. Tenant also indicated that he did not have the financial
    ability to move and store his larger items of personal property.
    Although Hyde helped Tenant move some of his smaller items of
    personal property at that time, Tenant did not request the rest of
    his personal property for over a year.
    ¶9     On January 22, 2008, Hyde posted a sign on the premises
    advertising that it was available for lease. Tenant assisted with
    cleaning the premises and with the search for a new tenant. As a
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    result of Tenant and Hyde’s efforts, a potential tenant inspected the
    restaurant the following month.
    ¶10 In mid‐March 2008, Tenant removed three patio sets, a
    grill, and several propane tanks from the restaurant. Believing
    these items to be BHI’s property, Hyde alerted the police, who
    warned Tenant to stay away from the premises. Despite this
    admonishment, Tenant later saw people in the building and went
    inside to take pictures. He was subsequently prosecuted for
    trespassing.
    ¶11     In late March 2008, BHI filed a complaint for breach of
    contract and sought a lessor’s lien and a writ of attachment on the
    personal property. Tenant counterclaimed for forcible detainer,
    forcible entry, willful exclusion, wrongful eviction, wrongful
    attachment, economic interference, conversion, deprivation of due
    process, and breach of contract. Subsequently, Tenant’s counsel
    sent a letter to BHI’s counsel requesting the release of personal
    property, claiming that there were defects in the attachment
    proceedings. In 2010, Tenant and his wife filed for bankruptcy and
    BHI’s affirmative claims became part of that proceeding. As a
    result, when this matter was tried to the bench, only Tenant’s
    counterclaims were at issue.
    ¶12 After trial, the court ruled in favor of BHI on all of the
    counterclaims. First, the trial court concluded that several of
    Tenant’s claims failed because he had abandoned the property.
    Second, the trial court determined that Tenant could not recover on
    his personal property claims because he left the property at the
    restaurant by agreement and the personal property was later
    attached. Third, while noting that Tenant did not comply with rule
    26(a)(1) of the Utah Rules of Civil Procedure requiring the
    disclosure of his damages evidence, the court determined that even
    if the evidence were considered, it did not show that Tenant had
    suffered damages. Tenant filed a timely appeal of the trial court’s
    decision.
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    ISSUES AND STANDARDS OF REVIEW
    ¶13 Tenant first challenges the trial court’s conclusion that he
    abandoned the leased premises. The Utah Code defines the
    circumstances under which abandonment will be presumed. See
    Utah Code Ann. § 78B‐6‐815 (LexisNexis 2012).3 “We review the
    district court’s application of the statute to the facts of the case for
    abuse of discretion.” Aris Vision Inst., Inc. v. Wasatch Prop. Mgmt.,
    Inc. (Aris I), 
    2005 UT App 326
    , ¶ 15, 
    121 P.3d 24
    , aff’d, 
    2006 UT 45
    ,
    
    143 P.3d 278
    . We will reverse a trial court’s findings of fact only
    when such findings are clearly erroneous. Dean v. Park, 
    2012 UT App 349
    , ¶ 31, 
    293 P.3d 388
    . “Common‐law abandonment depends
    on the intent of the party accused of the act.” Aris I, 
    2005 UT App 326
    , ¶ 15. “The determination of intent is a question of fact, which
    will only be reversed if the district court’s finding is clearly
    erroneous.” 
    Id. ¶14
     Second, Tenant contends that the trial court should
    have determined that BHI was liable for forcible entry, unlawful
    detainer, and wrongful eviction. See generally Utah Code
    Ann. § 78B‐6‐801 (LexisNexis 2012). These issues present mixed
    questions of law and fact. Aris I, 
    2005 UT App 326
    , ¶ 16. “Matters
    of statutory construction are questions of law that are reviewed for
    correctness.” 
    Id.
     (citation and internal quotation marks omitted).
    “Questions of fact are reviewed under the clearly erroneous
    standard, with deference given to the trial court.” 
    Id.
     (citation and
    internal quotation marks omitted). “The trial court’s application of
    law to the facts is reviewed for abuse of discretion.” 
    Id.
     (citation
    and internal quotation marks omitted).
    ¶15 Third, Tenant argues that the trial court erred in failing to
    determine that BHI wrongfully attached and converted his
    3. Because the relevant statutes have not been substantively altered
    since this action was filed, we cite the current version of the Utah
    Code as a convenience to the reader.
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    personal property. The authority to grant a writ of attachment is
    governed by the Utah Rules of Civil Procedure. See Utah R. Civ. P.
    64; 
    id.
     R. 64A; 
    id.
     R. 64C. “A district court’s interpretation of a rule
    of civil procedure presents a question of law that is reviewed for
    correctness.” Aequitas Enters., LLC v. Interstate Inv. Grp., LLC, 
    2011 UT 82
    , ¶ 7, 
    267 P.3d 923
    . Likewise, “[w]hether the facts establish
    the elements of conversion is a question of law, which we review
    for correctness.” Lawrence v. Intermountain, Inc., 
    2010 UT App 313
    ,
    ¶ 10, 
    243 P.3d 508
     (citations omitted).
    ¶16 Finally, Tenant asserts that the trial court erred by not
    awarding general, specific, treble, and punitive damages. “We
    review for an abuse of discretion the trial court’s determination
    that [Tenant] failed to introduce sufficient evidence to establish
    damages, and we will not overturn the trial court’s decision unless
    there was no reasonable basis for the decision.” See Richards v.
    Brown, 
    2009 UT App 315
    , ¶ 12, 
    222 P.3d 69
    , aff’d, 
    2012 UT 14
    , 
    274 P.3d 911
    . Whether damages should be trebled under Utah Code
    section 78B‐6‐811 is an issue of statutory construction, which we
    review for correctness. See Aris Vision Inst., Inc. v. Wasatch Prop.
    Mgmt., Inc. (Aris II), 
    2006 UT 45
    , ¶ 7, 
    143 P.3d 278
    .
    ANALYSIS
    I. The Factual Findings Are Not Clearly Erroneous.
    ¶17 Tenant first challenges the trial court’s factual findings
    supporting the conclusion that he had abandoned the premises.
    Accordingly, we must determine whether the findings were clearly
    erroneous. See Utah R. Civ. P. 52(a) (“Findings of fact, whether
    based on oral or documentary evidence, shall not be set aside
    unless clearly erroneous, and due regard shall be given to the
    opportunity of the trial court to judge the credibility of the
    witnesses.”). A trial court’s factual findings are clearly erroneous
    “only if they are in conflict with the clear weight of the evidence,
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    or if this court has a definite and firm conviction that a mistake has
    been made.” Gardner v. Gardner, 
    2012 UT App 374
    , ¶ 16, 
    294 P.3d 600
     (citation and internal quotation marks omitted).
    “Consequently, as an appellate court, we give great deference to
    the trial court and do[] not lightly disturb . . . [its] factual findings.”
    Henshaw v. Henshaw, 
    2012 UT App 56
    , ¶ 10, 
    271 P.3d 837
    (alterations and omission in original) (citation and internal
    quotation marks omitted).4
    4. BHI contends that Tenant did not meet his marshaling
    obligation. See Utah R. App. P. 24(a)(9) (providing that when
    challenging a trial court’s factual findings, the appellant “must first
    marshal all record evidence that supports the challenged
    finding[s]”). However, BHI’s briefing of this point is deficient. As
    our supreme court recently noted, “Rule 24(b) makes the
    requirements of rule 24(a) applicable to the brief of the appellee.”
    Broderick v. Apartment Mgmt. Consultants, LLC, 
    2012 UT 17
    , ¶ 10, 
    279 P.3d 391
    ; see also Utah R. App. P. 24(b). Accordingly, BHI’s
    argument must likewise “contain the contentions and reasons of
    [BHI] . . . with citations to the authorities, statutes, and parts of the
    record relied on.” See Utah R. App. P. 24(a)(9). BHI’s argument
    cites rule 24 and case law setting forth the appellant’s duty to
    marshal, but it fails to point us to any specific material facts that
    Tenant did not set forth in his opening brief. This approach
    improperly dumps on this court the burden of comparing the
    record evidence to the facts marshaled by Tenant to determine
    whether anything of significance has been omitted. See Allen v.
    Friel, 
    2008 UT 56
    , ¶ 9, 
    194 P.3d 903
     (“An appellate court is not a
    depository in which [a party] may dump the burden of argument
    and research. A petitioner must plead his claims with sufficient
    specificity for this court to make a ruling on the merits.” (alteration
    in original) (citation and internal quotation marks omitted)). We
    exercise our discretion to consider Tenant’s challenge to the factual
    findings. See Martinez v. Media‐Paymaster Plus/Church of Jesus Christ
    of Latter‐day Saints, 
    2007 UT 42
    , ¶ 20, 
    164 P.3d 384
     (holding that the
    (continued...)
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    ¶18 Specifically, Tenant challenges findings of fact 19, 30, 33, 34,
    and 40. Finding 19 states,
    The court heard from [two of Tenant’s employees]
    who testified they went to the restaurant on January
    15th or 16th to open the business. Although the court
    does not believe these witnesses were lying, the court
    concludes they must be mistaken as to the day they
    went because time sheets from the Ogden Eccles
    Convention Center reflect that they were working
    there at the times they testified they tried to open the
    restaurant.
    Although Tenant disagrees with this finding, there is evidence in
    the record to support it. BHI offered the time sheets from the
    Ogden Eccles Convention Center (the Center), which placed the
    two employees at that business at the times they testified they tried
    to open the restaurant. The Center’s director of food and beverage
    explained that it would be very difficult to falsify the time sheets
    because the Center uses a code and hand swipe system. The trial
    court heard the conflicting testimony on this point and found the
    director’s testimony more credible than that of the employees. We
    defer to the trial court’s advantaged position to weigh that
    conflicting evidence. See Hale v. Big H Constr., Inc., 
    2012 UT App 283
    , ¶ 60, 
    288 P.3d 1046
     (“[W]hen, as here, there is conflicting
    evidence, we defer to the trial court as the factfinder. The existence
    of conflicting evidence does not give rise to clear error as long as
    evidence supports the trial court’s decision.” (citation and internal
    quotation marks omitted)).
    4. (...continued)
    reviewing court retains discretion to consider whether the record
    supports the factual findings despite a party’s failure to marshal
    the evidence).
    20120367‐CA                       9                
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    Bonnie & Hyde v. Lynch
    ¶19 Tenant next challenges the trial court’s assessment in
    Finding 30, that the conversation between Tenant and Hyde on the
    evening of January 18 was not “particularly meaningful other than
    that [Tenant] did not request a key or to take possession of the
    property. [Tenant] also mentioned that he had tried to find a buyer
    but that attempt fell through.” In addition, he challenges Finding
    34, which states that Tenant “did not ask to be allowed to resume
    possession.” According to Tenant, these findings are inconsistent
    with Finding 29, which indicates that Tenant left a voicemail
    message for Hyde on January 18, explaining that Tenant’s
    employees “went [to the restaurant] yesterday trying to get the
    place open, read the sign and came back down,” that Tenant was
    “having a little cash flow problem,” and that he has “a couple of
    people that [he] thought wanted to invest enough money . . . but
    it’s kind of tough with the door locked.” We see nothing
    inconsistent in the court’s findings.
    ¶20 Finding 29 and Finding 30 address different
    communications on the same day. The trial court accurately relates
    the content of the voicemail message in Finding 29 and then
    accurately describes in Finding 30 the conversation between Hyde
    and Tenant when they communicated by telephone later that
    evening. The trial court’s assessment that nothing meaningful was
    discussed is limited to the evening telephone conversation and
    correctly indicates that during that conversation, Tenant did not
    ask for a key or for possession of the premises. Tenant admits that
    fact in his reply brief to this court, stating, “[I]t is true that [Tenant]
    never specifically asked for a key for the new locks.” Although
    Tenant further asserts that he “did in fact ask to re‐take the
    premises,” Tenant relies on his own testimony and his
    interpretation of the prior voicemail message. The trial court had
    the discretion not to believe Tenant. See 
    id. ¶ 16
     (“Assessing the
    credibility of a witness is within the trial court’s domain.”). Indeed,
    Tenant admitted at trial that he had lied to Hyde about putting a
    check in the mail and that he was “saying what he had to to try and
    stay alive.” Furthermore, despite Tenant’s reference to his hope
    20120367‐CA                         10                 
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    that he might secure additional capital and his statement that the
    locked door made it more difficult to find investors, the voicemail
    message does not include an express request for a key or
    possession of the premises.
    ¶21 Tenant also challenges Finding 33, which indicates that “no
    request was made to possess the remaining property for over one
    year.” Tenant states, “It is undisputed [that he] offered to leave his
    property on the premises to help BHI find another tenant after BHI
    had locked [him] out of the restaurant and exercised dominion
    over [his] property.” Notwithstanding that sequence of events,
    Finding 33 is not clearly erroneous. Once again, the recorded
    communications do not evidence a request for Tenant’s personal
    property. In addition, Hyde testified that Tenant did not have the
    financial means to store the property he left in the restaurant and
    therefore he asked that it be left in place. According to Hyde,
    Tenant first requested the property be returned over a year later.
    The trial court is in the best position to assess the credibility of the
    witnesses and we decline to disturb its reliance on Hyde’s
    testimony to support its finding on this point. See 
    id. ¶22
     Finally, Tenant challenges Finding 40, which states “In
    August 2009, [an appraiser], who testified at trial, valued the
    remaining property in BHI’s possession at a little more than
    $1,500.00.” Tenant contends that this finding is clearly erroneous
    because the appraiser testified as to the dealer value, rather than
    the full market value, of the property. Our review of the record
    indicates that the trial court’s finding regarding the value of the
    equipment is supported by the evidence. The appraiser testified to
    two values for each of the items of personal property at issue. The
    first value represents the “average value of what [the appraiser
    would] buy [the] equipment for,” and the second value is “what
    [the appraiser] would sell it for in a reconditioned state.” He
    testified that after buying the items of equipment, he would “go
    through them at that point to refurbish them, clean them,” and then
    resell them at the higher price. Thus, the appraiser estimated $1,520
    20120367‐CA                       11                
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    as the price he would pay Tenant for the personal property. He
    then testified that after he had cleaned and refurbished the items,
    they could be sold for $9,300. Based on that testimony, the relevant
    price is the $1,520 that Tenant would have received for the
    property, not the amount the appraiser might have sold it for after
    he refurbished it. In fact, Tenant admits as much in his reply brief,
    stating, “[the appraiser] testified the $1520 value is the dealer’s
    value he would pay to take the items, clean up, refurbish, then sell
    at a profit.”
    ¶23 The trial court’s findings are not against the clear weight of
    the evidence and are therefore not clearly erroneous. As a result,
    we consider Tenant’s alternative challenge to the trial court’s legal
    conclusion that he abandoned the leased premises in light of those
    findings.
    II. The Trial Court Did Not Exceed Its Discretion in Applying the
    Facts to the Statutory Presumption of Abandonment.
    ¶24    The Utah Code provides that abandonment is presumed if
    [t]he tenant has not notified the owner that he or she
    will be absent from the premises, and the tenant fails
    to pay rent within [fifteen] days after the due date,
    and there is no reasonable evidence other than the
    presence of the tenant’s personal property that the
    tenant is occupying the premises.[5]
    5. Abandonment is also statutorily presumed if
    [t]he tenant has not notified the owner that he or she
    will be absent from the premises, and the tenant fails
    to pay rent when due and the tenant’s personal
    property has been removed from the dwelling unit
    and there is no reasonable evidence that the tenant is
    occupying the premises.
    Utah Code Ann. § 78B‐6‐815(2) (LexisNexis 2012). Because this
    (continued...)
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    Utah Code Ann. § 78B‐6‐815(1) (LexisNexis 2012). Accordingly,
    Tenant is presumed to have abandoned the premises if (a) he did
    not notify BHI that he would be absent from the premises, (b) he
    failed to pay rent within fifteen days, and (c) there is no reasonable
    evidence other than the presence of his personal property that
    Tenant is occupying the premises. See id. Where the statutory
    factors are established, the intent to abandon is presumed. See id.
    Here, the trial court determined that these factors were met.
    ¶25 There is evidence in the record to support each element
    necessary to create a statutory presumption of abandonment. First,
    Tenant did not notify BHI that he would be absent from the
    premises. Second, Tenant failed to pay rent within fifteen days;
    indeed, there is no evidence that he ever tendered a check for the
    January 2008 rent. Finally, by January 16, 2008, there was no
    reasonable evidence other than the presence of Tenant’s personal
    property that he was occupying the premises. Instead, the
    restaurant was empty and closed during business hours, the power
    to the building had been turned off, the parking lot and walkways
    had not been cleared of snow, and food had been left out to spoil
    and foul the premises. Under these circumstances, we cannot
    conclude that the trial court exceeded its discretion in applying the
    law to the facts of this case. See id.
    ¶26 Nevertheless, Tenant claims that this court’s decision in
    Aris I, 
    2005 UT App 326
    , 
    121 P.3d 24
    , aff’d, 
    2006 UT 45
    , 
    143 P.3d 278
    ,
    supports his position that he did not abandon the premises. In
    Aris I, the tenant owned and operated a laser eye surgery center on
    leased premises, and contracted with doctors to perform surgeries
    there. 
    Id. ¶ 2
    . Due to a downturn in business, the tenant failed to
    tender rent and notified third parties that it intended to terminate
    the business and to file for bankruptcy. 
    Id. ¶¶ 3
    –4. During this time,
    the doctors continued to perform surgeries on the premises and the
    5. (...continued)
    subsection is not relevant under the present facts, we do not
    consider it further.
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    Bonnie & Hyde v. Lynch
    tenant began negotiating with them to assume the lease. 
    Id. ¶ 3
    .
    Under those facts, the trial court determined that the statutory
    presumption of abandonment did not arise and that the landlord
    had not established abandonment by common law. 
    Id. ¶¶ 13
    –14.
    On appeal, this court affirmed, explaining that the ongoing
    negotiations and operations provided “‘reasonable evidence other
    than the presence of [the tenant’s] personal property’ that [the
    tenant] was still using the premises.” 
    Id. ¶ 19
     (quoting Utah Code
    Ann. § 78‐36‐12.3(3) (2002) (current version at id. § 78B‐6‐815(1)
    (LexisNexis 2012))). We held in Aris I that the trial court did not
    exceed its discretion in ruling that there was no statutory
    presumption of abandonment. Id. We then concluded that the trial
    court’s finding that the tenant did not intend to abandon the
    premises was not clearly erroneous and that, therefore,
    abandonment had not been proved under the common law. Id.
    ¶¶ 20–21.
    ¶27 Here, both the trial court’s decision and the facts relevant to
    abandonment are different. First, the question in this appeal is
    whether the trial court exceeded its discretion in applying the
    statutory factors of abandonment to the facts of this case. In
    contrast, the Aris I court was faced with the question of whether the
    trial court exceeded its discretion in reaching the opposite
    conclusion. See id. ¶ 15 (“First, [the landlord] argue[s] that the
    district court erred in ruling that [the tenant] did not abandon the
    premises.”). Next, the facts in Aris I established that the premises
    were in use by the doctors who continued to perform surgeries and
    that the tenant repeatedly tendered the past‐due rent. Id. ¶¶ 5–7,
    19. The evidence in this case established that the restaurant was
    closed and not in a condition to serve customers, and that Tenant
    had made no attempt to pay the past‐due rent or to work with BHI,
    contrary to his usual practices. Despite Hyde’s presence at the
    restaurant for most of two full business days, no one arrived to
    operate it. As a result, our decision in Aris I does not convince us
    that the trial court exceeded its discretion in determining that a
    statutory presumption of abandonment arose here.
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    ¶28 Tenant further argues that abandonment can be found only
    in situations in which the tenant has an intent to abandon the
    premises. Intent is an element of common law abandonment. 
    Id. ¶ 20
     (defining common law abandonment as “when a tenant
    voluntarily relinquishes or vacates the leased premises with the
    intention to terminate contractual rights to . . . possession and
    control of the premises” and the “requisite intent can be shown by
    words or conduct” (omission in original) (citation and internal
    quotation marks omitted)). Because Tenant is presumed to have
    abandoned the premises under Utah law, his intent is relevant only
    to rebut that statutory presumption.6
    ¶29 Unlike the previous times when Tenant was late with his
    rent payment, he did not work with BHI to solve the issue.
    Moreover, Tenant did not pay the property tax bill even though he
    received the invoice two months earlier, and he did not
    communicate with BHI about the delinquency. Additionally,
    Tenant did not respond to Hyde’s phone calls informing him of the
    power outage and the concerns about the water lines, and the
    restaurant was not open or ready for business during normal
    business hours. When Tenant and Hyde met on January 21, 2008,
    Tenant said he was “done with the business,” and he actively
    participated in trying to find someone to take over the lease.7 Based
    on this evidence, the trial court’s finding that the presumption of
    6. The common law requirements were relevant in Aris I, 
    2005 UT App 326
    , 
    121 P.3d 24
    , aff’d, 
    2006 UT 45
    , 
    143 P.3d 278
    , because, in the
    absence of a statutory presumption, the common law had not been
    displaced. See 
    id. ¶ 20
    .
    7. Although these events occurred after BHI had changed the locks,
    it has some relevance in establishing Tenant’s state of mind at the
    relevant time. Cf. American Fork City v. Rothe, 
    2000 UT App 277
    , ¶ 7,
    
    12 P.3d 108
     (“[C]onduct before and after the offense are circumstances
    from which one’s participation in the criminal intent may be
    inferred.” (emphases added) (citation and internal quotation marks
    omitted)).
    20120367‐CA                      15                
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    Bonnie & Hyde v. Lynch
    abandonment had not been rebutted by evidence of a contrary
    intent is not clearly erroneous. See 
    id. ¶ 15
     (“The determination of
    intent is a question of fact, which will only be reversed if the
    district court’s finding is clearly erroneous.”). Accordingly, the trial
    court did not exceed its discretion in concluding that Tenant had
    abandoned the premises.8
    III. BHI Converted Tenant’s Property When It Refused to Return
    It After the Attachment Expired By Its Own Terms.
    ¶30 Tenant next argues that the trial court erred in ruling against
    him on his claims for wrongful conversion and attachment. “A
    conversion is an act of wilful interference with a chattel, done
    8. Because we affirm the trial court’s decision on abandonment, we
    also affirm its ruling in favor of BHI on forcible entry, unlawful
    detainer, and wrongful eviction. See Utah Code Ann. § 78B‐6‐814
    (LexisNexis 2012) (providing that “an owner . . . shall not be
    prevented from . . . retaking the premises and attempting to rent
    them at a fair rental value when the tenant has abandoned the
    premises”); id. § 78B‐6‐809(1) (providing that a plaintiff asserting
    forcible entry or forcible detainer shall show that “he was
    peaceably in the actual possession at the time of the forcible entry,
    or was entitled to the possession at the time of the forcible
    detainer”); see also Frisco Joes, Inc. v. Peay, 
    558 P.2d 1327
    , 1329–30
    (Utah 1977) (“A necessary predicate to the[] cause of action for
    forcible entry is that [the tenants] were in actual and peaceable
    possession of the property. [The tenants] could not be so if there
    had been abandonment or a surrender of the premises.” (footnote
    citation omitted)); Aris I, 
    2005 UT App 326
    , ¶ 22 (“Both [the forcible
    entry and detainer] statutes and the tort action derived from them
    require that unless a tenant plainly abandons the premises, a landlord
    must resort to judicial process if he wishes to be rid of a tenant in
    peaceable possession.” (alteration in original) (emphasis added)
    (citation and internal quotation marks omitted)). Accordingly, we
    affirm the trial court’s decision not to award damages for those
    claims.
    20120367‐CA                       16                
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    Bonnie & Hyde v. Lynch
    without lawful justification by which the person entitled thereto is
    deprived of its use and possession.” Fibro Trust, Inc. v. Brahman
    Fin., Inc., 
    1999 UT 13
    , ¶ 20, 
    974 P.2d 288
     (citation and internal
    quotation marks omitted). A basic requirement of conversion is
    “[t]hat there be a wrongful exercise of control over personal
    property in violation of the rights of its owner.” Frisco Joes, Inc. v.
    Peay, 
    558 P.2d 1327
    , 1330 (Utah 1977).
    ¶31 Here, the trial court found that “the property was originally
    left in the restaurant by agreement and then was attached.” In
    particular, the trial court found that Tenant left the personal
    property on the premises because he could not afford to move it or
    to store it and because he hoped the property would assist in
    attracting a new tenant, thereby relieving him of his continuing
    obligations under the lease. The trial court also found that Tenant
    “was allowed to remove some personal property, in one instance
    with [Hyde’s] assistance, and no request was made to possess the
    remaining equipment for over one year.” It further determined that
    “[t]his showed that [Hyde] was not barring Tenant from removing
    the property.” Accordingly, the trial court concluded that BHI did
    not wrongfully convert Tenant’s personal property.
    ¶32 Tenant contends that these findings are not supported by the
    evidence. However, Hyde testified that Tenant “wanted to clean
    [the personal property] in order to stage the restaurant and get it
    rerented to mitigate his damages.” Tenant corroborated that
    testimony, stating,
    I never told [Hyde he] could keep the property. I said
    if we had to rent the property, you know, it is in
    place. There’s no way I’m moving it in January.
    [Hyde’s] already stated there’s a hundred feet of
    snow there. At that point without any money to store
    it, you know, it’s one of those things where I didn’t
    know where I stood legally. I owed him money.
    20120367‐CA                       17                
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    Bonnie & Hyde v. Lynch
    While Tenant blames his decision on the weather and his economic
    circumstances, the fair inference from his testimony is that he
    agreed to leave the personal property in place and that he did not
    have the financial resources to store it elsewhere.
    ¶33 Nevertheless, Tenant argues in his reply brief before this
    court that he “offered to leave his property on the premises to help
    BHI find another tenant after BHI had locked [him] out of the
    restaurant and exercised dominion over [his] property.” However,
    Hyde testified that he could open only a side door that was blocked
    by several feet of snow and that he changed the locks so that he
    could enter the building using the front door. Tenant admits that
    he had the locks changed sometime after he entered into the lease
    but claimed that he gave a key to Hyde. The trial court found Hyde
    more credible than Tenant, stating, “If [Hyde] hadn’t changed the
    locks, he would be leaving [the restaurant] the way he found it
    with locks that he can’t get in and out of.” The trial court also
    found that Tenant never asked for a key to the new locks after
    Hyde changed them. Furthermore, BHI allowed Tenant to remove
    some of his personal property upon request, and Hyde helped
    Tenant remove it from the premises. Under these circumstances,
    the trial court’s finding that Tenant agreed to leave his personal
    property on the premises is not precluded by the fact that BHI
    changed the locks. Cf. English v. Standard Optical Co., 
    814 P.2d 613
    ,
    618 (Utah Ct. App. 1991) (upholding judgment in favor of the
    landlord for past‐due rent even though the landlord changed the
    locks after the tenant failed to pay rent and damaged the premises);
    see also 49 Am. Jur. 2d Landlord and Tenant § 213 (2006) (“Where a
    tenant abandons the premises prior to the end of a lease term and
    the landlord changes the locks, this gives rise to the inference that
    the landlord accepted the surrender of the premises, although a
    mere surrender of the keys to the premises may not give rise to the
    inference of acceptance of surrender of the premises.”).
    Accordingly, we reject Tenant’s challenge to the trial court’s factual
    findings regarding the initial agreement to leave the personal
    property on the premises.
    20120367‐CA                      18                
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    Bonnie & Hyde v. Lynch
    ¶34 With respect to wrongful attachment, Tenant argues that he
    was not given notice or an opportunity to be heard before the writ
    was granted. Tenant therefore contends that “the writ . . . expired
    because there was never a hearing” and that “[n]o one bothered to
    determine whether any of the property seized pursuant to the
    attachment included exempt property.”9 The trial court
    acknowledged that “both [Tenant] and the Court made mistakes in
    the attachment proceedings.” However, the trial court overlooked
    these deficiencies on the ground that Tenant “should have asked
    for the writ to be set aside, which was not done until trial.”10
    ¶35 The issuance of prejudgment writs of attachment is
    governed by rules 64, 64A, and 64C of the Utah Rules of Civil
    Procedure. See Utah R. Civ. P. 64; 
    id.
     R. 64A; 
    id.
     R. 64C. Although
    rule 64 provides that “[a]t any time before notice of sale of the
    property or before the property is delivered to the plaintiff, the
    defendant may file a motion to discharge the writ on the ground
    that the writ was wrongfully obtained,” such a motion was not
    necessary here. See 
    id.
     R. 64(f)(1). Rule 64A provides that
    [i]f a writ is issued without notice to the defendant
    and an opportunity to be heard, . . . the writ and the
    order authorizing the writ shall . . . expire [ten] days
    after issuance unless the court establishes an earlier
    expiration date, the defendant consents that the order
    and writ be extended or the court extends the order
    and writ after hearing.
    9. Tenant claims that the personal property included Tenant’s
    professional equipment and tools and that these items are exempt
    from attachment.
    10. Although Tenant did not move to discharge the writ, he denied
    all the paragraphs in the complaint relating to the lessor’s lien and
    the writ of attachment in his answer. In addition, Tenant raised
    wrongful attachment as a counterclaim in his verified counterclaim
    and in his first and second amended answer and counterclaim.
    20120367‐CA                      19                
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    Bonnie & Hyde v. Lynch
    
    Id.
     R. 64A(i)(5). The writ of attachment here was issued on April 3,
    2008, and it was never extended by the court after hearing or by
    Tenant’s consent. As a result, it expired ten days after it was issued
    by the court. Cf. Bank of Ephraim v. Davis, 
    581 P.2d 1001
    , 1006 (Utah
    1978) (“[F]ailure to file an inventory and return in compliance with
    mandatory statutory requirements renders the attachment
    proceeding void.”); Freeway Park Bldg., Inc. v. Western States
    Wholesale Supply, 
    451 P.2d 778
    , 784 (Utah 1969) (determining that
    an affidavit filed by the landlord did not comply with statutory
    requirements and therefore the “trial court properly held that the
    attachment was void”).
    ¶36 In February 2009, almost a year after the writ of attachment
    had expired by its terms, Tenant asked BHI to return his personal
    property. BHI refused to release the property, instructing Tenant
    to seek redress from the trial court. However, the plain language of
    rule 64A obviates any obligation for Tenant to challenge the writ,
    instead providing that it “shall . . . expire [in ten] days” unless
    extended by consent or an order of the court after hearing. See Utah
    R. Civ. P. 64A(i)(5). At the time of the February 2009 request for its
    return, BHI was holding Tenant’s personal property only by
    agreement. Tenant withdrew his agreement in February 2009, yet
    BHI refused to return the personal property. We agree with Tenant
    that the failure to return the personal property was wrongful.11
    11. We also agree with Tenant that BHI was not entitled to a
    landlord’s lien. The Utah Code provides that “lessors shall have a
    lien for rent due upon all nonexempt property of the lessee brought
    or kept upon the leased premises so long as the lessee shall occupy
    said premises and for [thirty] days thereafter.” Utah Code Ann.
    § 38‐3‐1 (LexisNexis 2010). Accordingly, the procedures to establish
    a lessor’s lien “must be undertaken within thirty days of the time
    lessee vacates the premises.” Webb v. Ninow, 
    883 P.2d 1365
    , 1368 n.1
    (Utah Ct. App. 1994). Here, Tenant had abandoned the premises by
    January 16, 2008, but BHI did not file this action for breach of
    contract and lessor’s lien until more than thirty days later in March
    (continued...)
    20120367‐CA                      20                
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    Bonnie & Hyde v. Lynch
    ¶37 The trial court provisionally determined the value of the
    personal property at a little more than $1,500. However, it also
    found that BHI had filed a notice of claim in the bankruptcy
    proceeding “for more than $65,000.00.” At trial, counsel stipulated
    that, in the event that Tenant prevailed on his counterclaims, the
    trial court could not offset any damages due to Tenant against the
    amount due to BHI because that issue should be left to the
    bankruptcy court. As a result, we remand to the trial court to enter
    judgment in favor of Tenant for the value of the personal property
    and stay enforcement thereof pending further proceedings in the
    bankruptcy court. See generally Ralph Brubaker, Article III’s Bleak
    House (Part II): The Constitutional Limits of Bankruptcy Judges’ Core
    Jurisdiction, 31 No. 9 Bankruptcy Law Letter 1 (Sept. 2011) (“If the
    district court concludes that [the landlord] does owe [the d]ebtor
    money, in view of [the landlord’s] asserted right of setoff, the
    district court could obviously rule on that issue in order to
    determine the dollar amount of any judgment against [the
    landlord]. Alternatively, though, the district court might well
    remand the offset issue back to the bankruptcy judge . . . .”).
    CONCLUSION
    ¶38 Tenant has not shown that the findings of fact are clearly
    erroneous, and the trial court did not exceed its discretion in ruling
    that under the present facts, Tenant abandoned the premises.
    11. (...continued)
    2008. Therefore, BHI was not entitled to a landlord’s lien on the
    personal property. See Citizens Bank v. Elks Bldg., NV, 
    663 P.2d 56
    ,
    58 (Utah 1983) (“[B]y the express terms of the statute, the lessor’s
    statutory lien terminates thirty‐one days after the lessee has quit
    the premises.” (citing Utah Code Ann. § 38‐3‐1 (1974) (current
    version at id. (LexisNexis 2010)))); Eason v. Wheelock, 
    120 P.2d 319
    ,
    320 (Utah 1941) (holding that a landlord’s lien was valid because it
    was exercised within thirty days and admonishing that “[a]ny act
    after that date would be one of withholding the property”).
    20120367‐CA                      21                
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    Bonnie & Hyde v. Lynch
    Accordingly, the trial court properly dismissed Tenant’s claims for
    forcible entry, unlawful detainer, and wrongful eviction. The trial
    court erred in denying Tenant’s wrongful conversion and
    attachment claims because the writ of attachment had expired by
    the time Tenant withdrew his consent to BHI’s possession of the
    personal property. We therefore remand to the trial court for entry
    of judgment in favor of Tenant for the value of that personal
    property, which the trial court found was approximately $1,500,
    with the understanding that this amount will be offset against any
    amounts deemed owing to BHI in the bankruptcy proceedings.
    20120367‐CA                     22               
    2013 UT App 153