Ortega v. Ridgewood Estates , 379 P.3d 18 ( 2016 )

2016 UT App 131THE UTAH COURT OF APPEALS
JOSE LUIS ORTEGA,
Appellee and Cross-Appellant,
v.
RIDGEWOOD ESTATES LLC, HOUSING FINANCIAL
SERVICES INC., AND FRANZ FISCHER,
Appellants and Cross-appellees.
Opinion
No. 20140876-CA
Filed June 23, 2016
Second District Court, Farmington Department
The Honorable John R. Morris
No. 120700321
M. Darin Hammond, Attorney for Appellants
Gordon A. Madsen and Robert C. Cummings,
Attorneys for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES KATE A. TOOMEY and SENIOR JUDGE PAMELA T.
GREENWOOD concurred. 1
VOROS, Judge:
¶1 Ridgewood Estates LLC, Housing Financial Services Inc.,
and Franz Fischer (collectively, Defendants) appeal from the
district court’s judgment awarding Jose Luis Ortega title to two
mobile homes, attorney fees, and punitive damages. Ortega
cross-appeals, seeking damages for conversion of his mobile
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
Ortega v. Ridgewood Estates
homes and increased punitive damages. We affirm the district
court in all respects.
BACKGROUND
¶2 This dispute arose from Ortega’s purchase of two mobile
homes located in Ridgewood Estates Mobile Home Park.2
¶3 Ortega is in the business of buying and selling mobile
homes. In September 2011, he purchased a mobile home located
at space 62 inside the Park (Home 62). He also obtained a
certificate of title for the mobile home. Ortega notified
Ridgewood of his purchase and, in accordance with Ridgewood
policy, submitted a residency application with Ridgewood.
Ridgewood denied Ortega’s residency application. Although the
parties had not signed a lease or other agreement, Ortega paid,
and Ridgewood accepted, rental payments for the space
occupied by Home 62 until February 2012. But Ortega paid no
late fees or security deposit.
¶4 In December 2011, Ortega purchased a second mobile
home, this one located at space 47 inside the Park (Home 47).
Ortega informed Ridgewood of the purchase. As before,
although Ortega and Ridgewood had not signed a lease or other
agreement, Ortega paid, and Ridgewood accepted, rental
payments on the space occupied by Home 47 until February
2012. And again Ortega paid no late fees or security deposit. He
did, however, pay property taxes on both Home 47 and Home 62
in February 2012. Both homes have remained unoccupied at the
Park since Ortega’s purchases.
¶5 On January 4, 2012, Ridgewood served Ortega with a
Landlord’s Notice of Trespass and a Five-Day Notice to
2. Although they are both run by one company, we refer to the
physical mobile home park as ‚the Park‛ and the management
company that oversees park operations as ‚Ridgewood.‛
20140876-CA 2 2016 UT App 131Ortega v. Ridgewood Estates
Terminate Tenancy at Will for both mobile homes. Ridgewood
served the notice in accordance with Utah’s Unlawful Detainer
statute. See Utah Code Ann. § 78B-6-802 (LexisNexis 2012). The
following month, Ridgewood’s property manager, Staci
Williams, and Ridgewood’s owner, Franz Fischer, notified
Ortega that he would not be permitted to remove the mobile
homes from the Park until he paid all outstanding late fees and
service charges, including those accrued by the homes’ prior
owners. Layton Police also served Ortega with a trespass
warning stating that he would not be allowed on the property.
Despite Ridgewood’s prohibition, Ortega attempted to remove
the homes a few days later. At Fischer’s direction, Ortega was
prevented from moving the homes. A Layton police officer and
Williams told Ortega to leave the property due to the trespass
warning. Ridgewood posted a Five-Day Notice to Terminate
Tenancy at Will on each mobile home at the direction of Fischer.
Ortega did not respond.
¶6 Ridgewood then mailed Ortega a letter claiming title to
both mobile homes. Four days later, Williams applied with the
Utah Division of Motor Vehicles for titles to both mobile homes.
She applied on behalf of Ridgewood’s parent corporation,
Housing Financial Services (HFS), which Fischer owned and
operated. On both applications, Williams asserted that the
homes had been sold contrary to applicable Ridgewood policies,
that the homes were abandoned, and that unpaid rent was due.
The Utah Division of Motor Vehicles issued HFS a Certificate of
Title for Home 47 but took no action on Home 62.
¶7 Ortega sued Defendants and the Utah Division of Motor
Vehicles for quiet title to both homes and requested damages
under slander of title and other theories.3 Ridgewood
counterclaimed for unlawful detainer and unjust enrichment. On
3. The Utah Division of Motor Vehicles was involved only to
determine who held title to each home and is not a party to this
appeal.
20140876-CA 3 2016 UT App 131Ortega v. Ridgewood Estates
cross-motions for summary judgment, the district court
dismissed Ridgewood’s unlawful detainer claim. The district
court reasoned that because Ortega had paid rent for the homes,
he was entitled to receive a 15-day notice to quit under Utah’s
Mobile Home Park Residency Act (Mobile Home Act), see Utah
Code Ann. § 57-16-1 (LexisNexis 2010), rather than the 5-day
notice under Utah’s Unlawful Detainer statute that he actually
received, see Utah Code Ann. § 78B-6-802 (LexisNexis 2012).
¶8 The district court denied the parties’ remaining motions
and bifurcated the case to try liability and damages separately.
Following the liability phase, the court ruled that Ortega owned
the mobile homes, that Ridgewood had converted the mobile
homes, and that Ridgewood had prevented Ortega from
removing the mobile homes. The court found some or all of the
Defendants liable for conversion and slander of title.
¶9 After the damages phase, the district court ruled both that
attorney fees were recoverable as special damages in a slander of
title case and that Ortega’s attorney fees were reasonable. But it
also ruled that lost profits, not lost rental income, represented
the proper measure of damages for Ridgewood’s conversion. No
evidence of lost profits had been presented at trial. Furthermore,
even if lost rental income were used, the district court ruled, the
record lacked credible testimony establishing the amount of lost
rents.
¶10 After both phases of trial, the district court quieted title to
both mobile homes in Ortega, directed the Utah Division of
Motor Vehicles to issue Ortega title to Home 47, and ordered
Ortega to remove both homes from the Park. The court also
awarded Ortega $30,375 in attorney fees as special damages for
slander of title and $1,000 in punitive damages against HFS and
Fischer. And the court awarded Ortega, as the ‚prevailing
party,‛ attorney fees in the amount of $11,100 against
Ridgewood under the Mobile Home Act and the Unlawful
Detainer statute. Both parties appeal.
20140876-CA 4 2016 UT App 131Ortega v. Ridgewood Estates
ANALYSIS
I. Defendants’ Appeal
¶11 Defendants present six issues on appeal. We consider
them in turn, stating the applicable standard of review for each
claim that has been ‚properly preserved, framed and briefed.‛
See Salt Lake County v. Butler, Crockett & Walsh Dev. Corp., 2013
UT App 30, ¶ 32, 297 P.3d 38.
A. Mobile Home Act
¶12 Defendants first contend that the district court erred in
applying the Mobile Home Act instead of the Unlawful Detainer
statute. The latter applies, Defendants argue, because Ortega did
not qualify as a ‚resident‛ under the Mobile Home Act. He did
not qualify, they reason, because he (1) never resided at
Ridgewood and (2) did not have a rental or lease agreement with
Ridgewood. The distinction matters because Defendants served
Ortega with a 5-day notice to quit, which complied with the
Unlawful Detainer statute but not with the Mobile Home Act.
¶13 On summary judgment the district court ruled that
despite having no lease or rental agreement with Ridgewood,
Ortega qualified as a resident under the Mobile Home Act. The
court based this conclusion on the plain language of the Mobile
Home Act and on the fact that after purchasing the mobile
homes, Ortega tendered, and Ridgewood accepted, rental
payments for both homes’ spaces. We review both the grant of
summary judgment and the interpretation of a statute for
correctness. Blackner v. Department of Transp., 2002 UT 44, ¶ 8, 48
P.3d 949.
¶14 ‚Unlawful detainer by an owner resident of a mobile
home is determined under Title 57, Chapter 16, Mobile Home
Park Residency Act.‛ Utah Code Ann. § 78B-6-802(3) (LexisNexis
2012). If a person qualifies as an ‚owner resident‛ under the
Mobile Home Act, the mobile home park is ‚required to comply
with the notice provisions of the [Mobile Home Act], regardless of
20140876-CA 5 2016 UT App 131Ortega v. Ridgewood Estates
the existence of a lease.‛ Brookside Mobile Home Park, Ltd. v. Peebles,
2002 UT 48, ¶ 21, 48 P.3d 968 (emphasis added).4 Defendants do
4. Defendants assert that the emphasized text from the supreme
court’s Brookside opinion lacks precedential value because the
mobile home owner in that case had a lease. See Brookside Mobile
Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 21, 48 P.3d 968.
However, our supreme court has held that ‚lower courts are
obliged to follow . . . any ‘judicial dicta’ that may be announced
by the higher court.‛ State v. Menzies, 889 P.2d 393, 399 n.3 (Utah
1994).
‚Dicta normally comes in two varieties: obiter dicta and
judicial dicta.‛ People v. Williams, 788 N.E.2d 1126, 1136 (Ill. 2003)
(emphasis omitted); see also Marc McAllister, Dicta Redefined, 47
Willamette L. Rev. 161, 167 (2011) (stating that a minority of
courts distinguish between ‚judicial dicta‛ and ‚obiter dicta‛).
Both terms refer to judicial statements that are unnecessary to
the resolution of the case. Obiter dicta ‚refers to a remark or
expression of opinion that a court uttered as an aside,‛ such as a
‚statement made by a court for use in argument, illustration,
analogy or suggestion.‛ Exelon Corp. v. Department of Revenue,
917 N.E.2d 899, 907 (Ill. 2009) (citations and internal quotation
marks omitted). In contrast, judicial dicta refers to ‚an
expression of opinion upon a point in a case argued by counsel
and deliberately passed upon by the court.‛ Id. (citation,
emphasis, and internal quotation marks omitted). An example of
judicial dicta is a statement ‚deliberately made for the guidance
of the bench and bar upon a point of statutory construction not
theretofore considered by the Supreme Court.‛ Ex parte Harrison,
741 S.W.2d 607, 609 (Tex. Ct. App. 1987) (citation and internal
quotation marks omitted). The Utah Supreme Court’s statement
in Menzies that lower courts are obliged to follow ‚judicial dicta‛
from a higher court presupposes the obiter dicta/judicial dicta
distinction and itself appears to be an example of judicial dicta.
As for the case before us, our supreme court’s statement
in Brookside—that a mobile home park must comply with the
notice provisions of the Mobile Home Act if a person qualifies as
(continued…)
20140876-CA 6 2016 UT App 131Ortega v. Ridgewood Estates
not dispute that Ortega qualified as an ‚owner.‛ They question
only whether he qualified as a ‚resident.‛
¶15 The Mobile Home Act defines ‚resident‛ as ‚an
individual who leases or rents space in a mobile home park.‛
Utah Code Ann. § 57-16-3(8) (LexisNexis 2010). The definition
does not require physical occupation of the mobile home.
Defendants acknowledge that Ortega paid rent on homes 47 and
62 but argue that he did not ‚rent*+ space‛ in Ridgewood,
because he ‚refused to pay late fees‛ and did not ‚pay any
security deposit.‛ However, Defendants have not shown that the
term ‚rents space‛ as used in the Mobile Home Act requires
payment of late fees and a security deposit in addition to rent,
nor can we see why it should.
¶16 Moreover, the notices Defendants served on Ortega in
January 2012 do not accuse him of failure to pay rent, late fees,
or security deposits. Rather, they assert that he purchased the
mobile homes without pre-registering as required by section 57-
16-4(4) (now section 57-16-4(5)(b)) of the Mobile Home Act. The
district court concluded that such a violation would not support
an eviction under the Unlawful Detainer statute. See Utah Code
Ann. § 78B-6-802(3) (LexisNexis 2012); id. § 57-16-6(3)(a) (2010).
Defendants do not attempt to explain why this conclusion
constitutes legal error.
¶17 Finally, Defendants assert that their restrictive
endorsement of Ortega’s checks (stating ‚accepting this payment
does not imply residency into the park‛) refutes the conclusion
that Ortega qualified as a resident under the Mobile Home Act.
(…continued)
an owner resident under the Act ‚regardless of the existence of a
lease‛—appears to have been deliberately made for the guidance
of the bench and bar upon a point of statutory construction. See
2002 UT 48, ¶ 21, 48 P.3d 968. We thus conclude that it qualifies
as judicial dicta, and we follow it.
20140876-CA 7 2016 UT App 131Ortega v. Ridgewood Estates
But they offer no legal authority or analysis showing that this
unilateral assertion overrides the provisions of the Mobile Home
Act.
¶18 In sum, the district court correctly ruled that Ortega
qualified as a resident under the Mobile Home Act, which
consequently governed Defendants’ attempts to evict him.
B. Ridgewood’s Right to Remove
¶19 Defendants next contend that the district court erred in
failing to enforce Ridgewood’s right to remove the mobile homes
purchased by Ortega. Defendants rely on section 57-16-
4(5)(b)(iv) of the Mobile Home Act. That section states that a
mobile home park ‚may unconditionally refuse to approve any
purchaser of a mobile home who does not register before
purchasing the mobile home.‛ Id. § 57-16-4(5)(b)(iv). Ortega did
not register with Ridgewood before purchasing the mobile
homes.
¶20 Defendants do not specify which ruling of the district
court this claim challenges on appeal. They also do not identify
where in the record they preserved this claim or where the
district court ruled on the applicability of section 57-16-
4(5)(b)(iv). Seamons v. Brandley, 2011 UT App 434, ¶ 3, 268 P.3d
195 (‚The Utah Rules of Appellate Procedure also require that
the appellant‘s brief provide a citation to the paginated record
demonstrating where the issue was preserved, or demonstrate
that the unpreserved issue meets an exception to
the preservation rule.‛). Accordingly, we reject this claim as
unpreserved. See Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366(‚Generally, in order to preserve an issue for appeal the issue
must be presented to the trial court in such a way that the trial
court has an opportunity to rule on that issue.‛ (citation and
internal quotation marks omitted)).
20140876-CA 8 2016 UT App 131Ortega v. Ridgewood Estates
C. Unjust Enrichment
¶21 Defendants next contend that the district court erred in
denying Ridgewood damages on its claim for unjust enrichment.
This claim is based on the fact that the two mobile homes sat on
spaces 47 and 62 from February 2012 through September 2014,
during which period Ortega paid no rent.
¶22 The district court found all the elements of unjust
enrichment satisfied. But it also ruled that equity required that
Ridgewood’s recovery be cut off on February 17, 2012. On that
date, the court found, Ortega had ‚attempted to prepare the
mobile homes for removal but was prevented from doing so by
Ridgewood Estates,‛ which had a trespass warning served on
him. The court also found that on March 1, 2012, Ridgewood
claimed title to the mobile homes based on the prior owners’
lease term violations.
¶23 Defendants ‚do not challenge [these] factual findings.
Therefore, we are bound by them.‛ See Department of Human
Services ex rel. Parker v. Irizarry, 945 P.2d 676, 684 (Utah 1997).
Indeed, Defendants do not even acknowledge them. ‚Because
[Defendants] fail[] to address the basis of the district court’s
ruling, we reject this challenge.‛ See Golden Meadows Props., LC v.
Strand, 2010 UT App 257, ¶ 17, 241 P.3d 375.
D. Unlawful Detainer
¶24 Defendants next contend that the district court erred in
dismissing their unlawful detainer action rather than granting
their motion to amend their counterclaim. They sought to amend
their complaint based on a new notice to pay rent or quit served
on Ortega well after the complaint was filed.
¶25 This claim is not adequately briefed. An appellant’s brief
must contain ‚the contentions and reasons of the appellant with
respect to the issues presented, . . . with citations to the
authorities, statutes, and parts of the record relied on.‛ Utah R.
App. P. 24(a)(9). To comply with this rule, briefs ‚must contain
20140876-CA 9 2016 UT App 131Ortega v. Ridgewood Estates
reasoned analysis based on relevant legal authority.‛ State v.
Davie, 2011 UT App 380, ¶ 16, 264 P.3d 770 (citation and internal
quotation marks omitted). ‚An issue is inadequately briefed
when the overall analysis of the issue is so lacking as to shift the
burden of research and argument to the reviewing court.‛ Id.(citation and internal quotation marks omitted). And ‚*a+n
inadequately briefed claim is by definition insufficient to
discharge an appellant’s burden to demonstrate trial court
error.‛ Simmons Media Group, LLC v. Waykar, LLC, 2014 UT App
145, ¶ 37, 335 P.3d 885. Here, the Defendants’ brief refers to the
Mobile Home Act, but does not cite, discuss, or analyze any
rules or judicial opinions governing the scope of a district court’s
authority to set aside a dismissal or to grant leave to amend a
complaint. The brief asserts that the district court acted
‚wrongly‛ but identifies no authority for distinguishing between
right and wrong action in this context. Accordingly, this claim
on appeal fails.
E. Slander of Title
¶26 Defendants next contend that the district court’s slander
of title judgment lacks adequate findings of fact. Specifically,
they assert that the court did not identify a false statement,
which is a necessary element of the claim. See Neff v. Neff, 2011
UT 6, ¶ 79, 247 P.3d 380.5
¶27 This claim is unpreserved. To preserve an appellate
challenge to the adequacy of district court findings, an appellant
must first have raised the objection in the district court with
sufficient clarity to alert the district court to the alleged
inadequacy. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 56,
5. ‚A claim for slander of title requires proof of four elements: (1)
publication of a slanderous statement, (2) the statement must be
false, (3) the statement must be made with malice, and (4) the
statement must cause special damages to the plaintiff.‛ Neff v.
Neff, 2011 UT 6, ¶ 79, 247 P.3d 380.
20140876-CA 10 2016 UT App 131Ortega v. Ridgewood Estates
99 P.3d 801. ‚Lest an appellant overlook this requirement on
appeal, the appellate rules require the appellant’s opening brief
to include, with each issue statement, a ‘citation to the record
showing that the issue was preserved in the trial court’ or ‘a
statement of grounds for seeking review of an issue not
preserved in the trial court.’‛ Cook v. Cook, 2013 UT App 57, ¶ 3,
298 P.3d 700 (quoting Utah R. App. P. 24(a)(5)). Defendants’
opening brief does not comply with this requirement. Nor does
the argument section of their brief contain citations to the record
showing that the claim was actually preserved. See Salt Lake City
Corp. v. Jordan River Restoration Network, 2012 UT 84, ¶ 101, 299
P.3d 990 (exercising discretion to address the merits of a claim
despite appellant’s noncompliance with rule 24(a)(5)(A) because
the argument section of the opening brief contained citations
showing that the claim was in fact preserved). Moreover, our
review of the record suggests that this claim was in fact not
preserved; although proposed findings and conclusions were
served on Defendants, they did not object to them.
¶28 In any event, we see no flaw in the court’s findings. HFS
sought to acquire title to the two mobile homes on the ground
that they had been abandoned. The district court found that ‚no
reasonable evidence existed that either mobile home was
abandoned and therefore neither Ridgewood Estates nor [HFS]
had a claim of title to the mobile homes based upon
abandonment.‛ This was so, the court found, because
‚Ridgewood Estates knew of and acknowledged plaintiff’s
purchase of the mobile homes, dealt with plaintiff as an owner in
negotiations concerning the mobile homes, and accepted rental
payments from him through February 2012.‛ The court also
found that Ridgewood had ‚effectively prevented the mobile
homes from being occupied during the relevant time frame
which precludes an abandonment claim.‛ Indeed, the court
found that Ortega ‚attempted to prepare the mobile homes for
removal, but was prevented from doing so by Ridgewood
Estates . . . and was served with a Trespass Warning by the
Layton Police Department.‛ Contrary to Defendants’ contention,
20140876-CA 11 2016 UT App 131Ortega v. Ridgewood Estates
the district court entered ample findings showing that HFS had
falsely claimed the mobile homes had been abandoned.
F. Attorney Fees as Special Damages
¶29 Finally, Defendants contend that the district court erred
as a matter of law in awarding special damages to Ortega in the
amount of his attorney fees for the slander of title judgment. The
district court’s interpretation of case law presents a question of
law, which we review for correctness. Meguerditchian v. Smith,
2012 UT App 176, ¶ 9, 284 P.3d 658.
¶30 The district court ruled that, under prevailing law, Ortega
could recover attorney fees as special damages for slander of
title. On appeal, Defendants acknowledge that in Neff v. Neff the
Utah Supreme Court held that ‚*i+n slander of title cases,
attorney fees may be recovered as special damages if the fees are
reasonably necessary to remedy the disparagement of the
plaintiff’s title.‛ 2011 UT 6, ¶ 79, 247 P.3d 380. Defendants
contend that this should not be the rule. But we are bound by
vertical stare decisis to ‚follow strictly‛ the decisions rendered
by the Utah Supreme Court. See State v. Menzies, 889 P.2d 393,
399 n.3 (Utah 1994). We accordingly decline Defendants’
invitation to overrule Neff.
¶31 Defendants also contend that Ortega did not properly
allocate his attorney fees. This contention is inadequately
briefed. Rule 24(a)(9) of the Utah Rules of Appellate Procedure
mandates that a party’s brief ‚shall contain the contentions and
reasons of the appellant with respect to the issues presented . . .
with citations to the authorities, statutes, and parts of the record
relied on.‛ Utah R. App. P. 24(a)(9) (emphasis added).
Defendants’ discussion of this point contains no citations to the
record. In addition, the discussion is couched in generalized
criticisms—for example, that counsel’s allocation was
‚completed with a biased viewpoint after the fact‛—untethered
to specific record facts. In short, the ‚overall analysis of the issue
is so lacking as to shift the burden of research and argument to
20140876-CA 12 2016 UT App 131Ortega v. Ridgewood Estates
the reviewing court.‛ State v. Davie, 2011 UT App 380, ¶ 16, 264
P.3d 770 (citation and internal quotation marks omitted).
¶32 Finally, Defendants contend that the fees were
unreasonable in comparison to the value of the mobile homes at
issue. Again, the contention lacks adequate briefing. Defendants’
discussion of this point contains no ‚citations to the authorities,
statutes, and parts of the record relied on.‛ Utah R. App. P.
24(a)(9). Thus, we affirm the district court’s award of special
damages in the amount of Ortega’s attorney fees.
II. Ortega’s Cross-Appeal
¶33 Ortega presents three contentions on cross-appeal. We
consider them in turn, stating the applicable standard of review
in connection with each.
A. Conversion Damages
¶34 Ortega, as cross-appellant, first contends that the district
court erred in failing to award him reasonable damages on his
conversion claim.
¶35 The district court ruled that Defendants had tortiously
converted the mobile homes, but it awarded no damages. It
rejected lost rental income as a suitable measure of damages on
the ground that Ortega’s business involved buying and selling
mobile homes, not renting them. Accordingly, the court
reasoned, the appropriate measure of damages was the ‚loss of
any profit that he may have obtained by selling the home or by
renting it to own.‛ Furthermore, the court ruled that even if lost
rental income were the appropriate measure of damages, Ortega
presented no credible testimony establishing a rental amount.
¶36 On appeal, Ortega contends that lost rental income is the
appropriate measure of damages and that he and another
witness presented credible and uncontroverted testimony that
his lost rental income was between $300 and $600 per month for
each unit.
20140876-CA 13 2016 UT App 131Ortega v. Ridgewood Estates
¶37 ‚Whether the district court applied the correct rule for
measuring damages is a question of law that we review for
correctness.‛ Mahana v. Onyx Acceptance Corp., 2004 UT 59, ¶ 25,
96 P.3d 893. ‚Whether the amount awarded by the district court
was supported by the evidence is a determination of fact that
may be reversed on appeal only if clearly erroneous.‛ Id.
¶38 ‚To the extent possible, the fundamental purpose of
compensatory damages is to place the plaintiff in the same
position he would have occupied had the tort not been
committed.‛ Id. ¶ 26. ‚Generally, the measure for damages in a
conversion action is the value of the converted property at the
time of conversion, plus interest.‛ Id. But ‚where the defendant
returns the converted property,‛ ‚damages based on the value of
the plaintiff’s loss of use of the converted property may be
appropriate.‛ Id. ¶ 28.
¶39 Ortega asserts that the Utah Supreme Court held in
Mahana ‚that reasonable rental value is the proper measure of
damage where the item was returned to the plaintiff or where
evidence is lacking of market value.‛ That is not quite accurate.
Mahana involved a converted truck that was later returned. In
determining compensatory damages, the district court ‚settled
on the retail rental value of small cars‛ such as the courtesy
rental cars the plaintiff had been driving during the period of the
conversion. Id. ¶ 32. The defendant argued that this measure of
damages was ‚clearly erroneous‛ and would result in an
‚inequitable windfall for the plaintiff‛ because this rental value
more than doubled the price the plaintiff had originally paid for
the converted truck. Id. ¶¶ 33–34. The supreme court rejected
this claim, seeing ‚no clear error in the fact that the
compensatory award exceed[ed] the purchase price of the
truck.‛ Id. ¶ 34. Thus, the supreme court concluded that the law
permitted the trial court to use the reasonable rental value of a
replacement vehicle as the measure of compensatory damages in
that circumstance, not that the law required it to do so.
¶40 Here, although Ortega seeks to recover the reasonable
rental value of the mobile homes during the period of the
20140876-CA 14 2016 UT App 131Ortega v. Ridgewood Estates
conversion, he acknowledges that he was not in the business of
renting mobile homes and does not assert that, but for the
conversion, he would have rented the mobile homes.
Accordingly, we do not agree that the district court erred in
rejecting Ortega’s claim that awarding him the reasonable rental
value of the mobile homes would have placed him ‚in the same
position he would have occupied had the tort not been
committed.‛ Id. ¶ 26.
B. Punitive Damages
¶41 Ortega next contends that the district court erred in
failing to award him adequate punitive damages. On the slander
of title claim, the district court awarded Ortega special damages
of $30,375 (for attorney fees) and ‚nominal‛ punitive damages of
$1,000 against HFS and Fischer. Ortega complains (1) that no
punitive damages were awarded against Ridgewood because no
compensatory damages were awarded, and (2) that the court
based its determination of damages against HFS and Fischer on
compensatory damages of only ‚a little over $40,000.‛
¶42 A punitive damage award must comply with both
statutory and common law standards. See Smith v. Fairfax Realty,
Inc., 2003 UT 41, ¶¶ 27–30, 82 P.3d 1064 (citing Crookston v. Fire
Ins. Exch., 817 P.2d 789, 801–03 (Utah 1991)). First, under our
punitive damages statute, punitive damages generally may be
awarded only if clear and convincing evidence establishes ‚that
the acts or omissions of the tortfeasor are the result of willful and
malicious or intentionally fraudulent conduct, or conduct that
manifests a knowing and reckless indifference toward, and a
disregard of, the rights of others.‛ Utah Code Ann. § 78B-8-
201(1)(a) (LexisNexis 2012). And in Crookston, our supreme court
identified seven factors that must be considered in awarding
punitive damages under our common law standards:
(i) the relative wealth of the defendant; (ii) the
nature of the alleged misconduct; (iii) the facts and
circumstances surrounding such conduct; (iv) the
20140876-CA 15 2016 UT App 131Ortega v. Ridgewood Estates
effect thereof on the lives of the plaintiff and
others; (v) the probability of future recurrence of
the misconduct; (vi) the relationship of the parties;
and (vii) the amount of actual damages awarded.
817 P.2d at 808.
¶43 In determining the punitive damage award here, the
district court made findings on both the statutory and common
law factors. Under the punitive damages statute, the district
court did not find that HFS and Fischer’s conduct was malicious,
but it did find by clear and convincing evidence that HFS and
Fischer’s conduct was willful and manifested a knowing and
reckless indifference toward and disregard of Ortega’s rights.
The court also entered findings on each of the Crookston factors.
It found little or no evidence of factors (1), (4), or (5). Under
factors (3) and (6), it considered whether Ortega had come to
court with ‚clean hands.‛
¶44 On appeal, Ortega addresses neither the statutory
prerequisites for punitive damages nor the Crookston factors. Nor
does he contend that the district court abused its discretion. He
makes only two arguments. Both present questions of law,
which we review for correctness. Meguerditchian v. Smith, 2012
UT App 176, ¶ 9, 284 P.3d 658.
¶45 First, Ortega argues that the court committed an error of
law in not awarding punitive damages against Ridgewood as
well as HFS and Fischer. He cites a number of findings and
conclusions of the district court that he claims require the
punitive damage award be extended to Ridgewood. Ortega
rightly observes that Ridgewood participated in the conduct
underlying this lawsuit. The court ruled that ‚Ridgewood
Estates, [HFS], and Franz Fischer converted the mobile homes.‛
But it ruled that only ‚*HFS+ and Franz Fischer slandered
plaintiff’s title to the mobile homes.‛ And because the district
court awarded punitive damages only in connection with the
slander of title claim, it reasonably awarded punitive damages
20140876-CA 16 2016 UT App 131Ortega v. Ridgewood Estates
only against those parties—HFS and Fischer—who had
slandered plaintiff’s title.
¶46 Second, Ortega argues that the court committed an error
of law in concluding that Ortega came to court with unclean
hands. He asserts that it ‚appears‛ that the reason the court did
not award more punitive damages ‚was that it felt that plaintiff
did not come before the court with ‘clean hands.’‛ Even
assuming that the court mistakenly concluded that Ortega
lacked clean hands in this dispute, Ortega has not shown on
appeal that the mistake depressed the ultimate punitive damage
award. He has not claimed that the district court abused its
discretion nor has he addressed the statutory standard or the
common law factors for punitive damages, including deterrence
or ability to pay. And these two factors loom large: ‚because the
principal purpose of punitive sanctions is deterrence, the
offender’s ability to pay must be considered.‛ Farmer v. Banco
Popular of N. Am., 791 F.3d 1246, 1259 (10th Cir. 2015). A claim of
error on appeal, like this one, that fails to address the legal
standards governing the determination of punitive damages,
falls short of demonstrating district court error. In short, Ortega
has not demonstrated that, even excluding any consideration of
his relative blame, the facts of this case compel a higher punitive
damage award. Therefore, we affirm the district court’s award of
punitive damages and decline to alter the amount. 6
C. Attorney Fees on Appeal
¶47 Finally, Ortega seeks attorney fees on appeal. Ortega
argues that he is entitled to attorney fees as the prevailing party
in Defendants’ appeal. See Utah Code Ann. §§ 57-16-8
(LexisNexis 2010), 57-16-15(1)(d) (Supp. 2015). Defendants
6. However, we note that where, as here, a plaintiff is ‚not
awarded damages on equitable grounds, the district court err[s]
in denying . . . punitive damages based on unclean hands.‛ Hill
v. Estate of Allred, 2009 UT 28, ¶ 22, 216 P.3d 929.
20140876-CA 17 2016 UT App 131Ortega v. Ridgewood Estates
respond that ‚*a+ttorney’s fees should not be awarded to
[Ortega] in this action because the court determined that
*Ortega+ had unclean hands.‛
¶48 Relying on sections 57-16-8 and 57-16-15(1)(d) of the
Mobile Home Act and sections 78B-6-811(3) and 808(2) of the
Unlawful Detainer statute, the district court awarded Ortega
$11,100 in attorney fees as the prevailing party.7 The portion of
the Mobile Home Act cited by the district court states that in an
eviction proceeding under the Mobile Home Act ‚the court shall
order court costs and attorney fees to the prevailing party,‛ Utah
Code Ann. § 57-16-15(1)(d) (Supp. 2015), and that ‚*u+pon final
termination of the issues between the parties . . . [t]he prevailing
party is also entitled to court costs and reasonable attorney’s
fees.‛ Id. § 57-16-8 (2010).
¶49 Here, Ortega brought his original action to defend against
the Notices to Quit posted by Ridgewood—a type of eviction
proceeding. Although Ridgewood claimed to have proceeded
under the Unlawful Detainer statute, the district court correctly
ruled that the proceeding should have been brought under the
Mobile Home Act because Ortega qualified as a resident. Thus,
the district court ruled that the attorney fee provisions of the
Mobile Home Act were applicable, and Ortega was entitled to
attorney fees as the prevailing party.8
¶50 Although the Mobile Home Act’s fee provisions do not
explicitly cover fees on appeal, Brookside’s analysis of the
7. This award was part of the judgment against Ridgewood and
not related to the attorney fees the district court awarded against
Fischer as special damages in the slander of title judgment.
8. Defendants argue that Ortega should not have been awarded
fees because he should not have prevailed at trial. They do not
argue that, having prevailed, he was not entitled to fees under
the Mobile Home Act.
20140876-CA 18 2016 UT App 131Ortega v. Ridgewood Estates
attorney fee provision of the Mobile Home Act guides us. See
Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶¶ 23–26,
48 P.3d 968. In Brookside, the Utah Supreme Court held that if the
successful party in an eviction action remains successful on
appeal, that party is entitled to attorney fees on appeal under the
Mobile Home Act. Id. ¶ 26 (citing Utah Code Ann. § 57-16-8
(LexisNexis 2000)). Therefore, as the successful party, Ortega is
entitled to reasonable costs and fees in defending against this
eviction proceeding at the district court and court of appeals. See
id.; see also Valcarce v. Fitzgerald, 961 P.2d 305, 319 (Utah 1998)
(plurality opinion) (‚This court has interpreted attorney fee
statutes broadly so as to award attorney fees on appeal where a
statute initially authorizes them.‛). Therefore, we award Ortega
reasonable attorney fees incurred on appeal in connection with
the eviction action. Because Ortega’s cross-appeal did not
directly contest the eviction proceeding itself, we do not award
attorney fees for the cross-appeal. See Brookside, ¶¶ 24–26.
CONCLUSION
¶51 We affirm all the district court’s rulings challenged on
appeal or cross-appeal. We remand for the sole purpose of
determining Ortega’s attorney fees incurred on appeal in
connection with the eviction claim.
20140876-CA 19 2016 UT App 131