2021 UT 17
IN THE
SUPREME COURT OF THE STATE OF UTAH
YVONNE MARTIN,
Petitioner,
v.
FRANK O. KRISTENSEN,
Respondent.
No. 20190797
Heard March 10, 2021
Filed May 27, 2021
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable Todd M. Shaughnessy
No. 084902378
Attorneys:
Karthik Nadesan, Salt Lake City, for appellant
R. Stephen Marshall, Kevin M. Paulsen, Salt Lake City, for
appellees
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE PEARCE, JUSTICE PETERSEN,
and JUDGE FONNESBECK joined.
Having recused himself, JUSTICE HIMONAS does not participate
herein; JUDGE ANGELA FONNESBECK sat.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 Yvonne Martin filed for divorce from Petter Kristensen in
2008. The divorce court awarded Yvonne 1 temporary possession
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1 We use first names to avoid confusion. No disrespect to the
parties is intended.
MARTIN v. KRISTENSEN
Opinion of the Court
of the marital home during the pendency of the divorce
proceedings. But the home was owned by Petter’s father, Frank
Kristensen. Frank served Yvonne with a notice to vacate shortly
after Yvonne filed for divorce. When Yvonne refused to vacate,
Frank filed an unlawful detainer action against Yvonne. Yvonne
claimed that the temporary possession order precluded Frank
from seeking the remedies available in an unlawful detainer
action. The district court disagreed, found Yvonne in unlawful
detainer, and entered a judgment that included a substantial
award.
¶2 The court of appeals affirmed. It held that the temporary
possession orders entered in the divorce action did not foreclose
the unlawful detainer remedies available to Frank by statute. We
affirm. We hold that the possession orders in the divorce
proceeding functioned like a temporary possession order in an
unlawful detainer proceeding—they precluded the tenant’s
eviction from the property but did not affect the availability of
statutory remedies for unlawful detainer.
I
¶3 Yvonne Martin and Petter Kristensen married in Summit
County, Utah in 1995. Starting in 1999, they lived together at a
home on Quicksilver Drive in Salt Lake City. Yvonne owned the
home and Petter retained an interest in any proceeds from its
eventual sale.
¶4 Yvonne transferred ownership of the Quicksilver Drive
home to Petter’s father, Frank Kristensen, in 2004. The couple
continued living in the home, however, under a tenancy at will 2—
neither Yvonne nor Petter paid any rent or otherwise
compensated Frank.
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2 See, e.g., Utah Optical Co. v. Keith, 56 P. 155, 158 (1899)
(determining that a tenancy at will existed where there was no
“positive arrangement entered into between the plaintiff and his
lessor, but . . . an implication of law arising from the voluntary
acts and relations of the[] parties”); see also Tenancy, BLACK’S LAW
DICTIONARY (11th ed. 2019) (defining “tenancy at will” as a
“tenancy in which the tenant holds possession with the landlord’s
consent but without fixed terms (as for duration or rent)” and
noting that “[s]uch a tenancy may be terminated by either party
upon fair notice”).
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Opinion of the Court
¶5 Petter left the home in May 2008, when Yvonne received
a protective order against him after she alleged that Petter had
abused her. Yvonne filed for divorce soon thereafter. She then
sought and received another protective order in the divorce
proceeding—an order granting her the use, control, and
possession of the martial home.
¶6 Frank then sought to evict Yvonne in a notice to vacate
served on July 1, 2008. Yvonne did not vacate during the five-day
period provided in the notice to vacate. Instead, on July 3, 2008,
Yvonne filed an amended petition in the divorce proceeding. The
amended petition named Frank as a defendant and asserted,
among other things, that Yvonne had transferred the home to
Frank under duress and that she rightfully owned the home. The
next month, on August 1, 2008, Frank filed an unlawful detainer
action against Yvonne.
¶7 In the divorce proceeding, Yvonne sought an order
granting her possession of the home until the court divided the
marital property. After months of motions and argument, the
divorce court entered an order awarding Yvonne use and
possession of the home pending final resolution of the divorce
proceeding.
¶8 Frank remained an absent party during the pendency of
the above-noted motions in the divorce proceedings. He never
responded despite being named as a party in Yvonne’s amended
complaint. Eventually he defaulted. After the default, Frank
appeared and convinced the divorce court to set aside the default.
On the same day, before arguments on Yvonne’s temporary
possession motion, a commissioner recommended dismissing
Frank from the divorce action.
¶9 The recommendation was never implemented—no order
was ever entered formally dismissing Frank from the divorce
action. But the parties seemingly proceeded as if he had been
dismissed. Frank’s counsel did not appear that day in the
arguments on the motion for temporary possession. And Frank
was not listed as a party to the divorce action in subsequent filings
and orders.
¶10 Not long after this hearing, Yvonne filed a separate action
against Frank seeking to quiet title in the home. Yvonne again
claimed that she had transferred the property to Frank under
duress.
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¶11 Yvonne next sought and received an order that prevented
Petter from evicting her during the pendency of the divorce
proceedings. Frank was incapacitated in Norway at this time, with
Petter acting on Frank’s behalf through a power of attorney.
Yvonne sought to prevent Petter from using the power of attorney
to evict her.
¶12 The divorce court granted Yvonne’s motion in June 2012.
It entered a preliminary injunction preventing Petter from
evicting Yvonne. And, perhaps contemplating that Frank might
evict Yvonne when he regained capacity, the district court
required Petter to “make arrangements for comparable housing
for” Yvonne if she were evicted. The elements of the June 2012
order were reinforced in a subsequent order entered in September
2012. That order again enjoined Petter from interfering with
Yvonne’s possession and declared that Petter would be
responsible for providing comparable housing if Yvonne were
evicted.
¶13 Two years later, after Yvonne had requested several
delays, a trial was held in the unlawful detainer and quiet title
actions—which by then had been consolidated. At trial, a jury
rejected Yvonne’s assertion that she had transferred the property
to Frank under duress. On that basis, the district court concluded
that Frank was the rightful owner of the property and that
Yvonne was guilty of unlawful detainer starting on July 6, 2008—
five days after Frank filed the notice to vacate. See UTAH CODE
§ 78B-6-802(1)(b)(ii) (2008) (providing that “in cases of tenancies at
will,” tenants are guilty of unlawful detainer while they “remain[]
in possession of the premises after the expiration of a notice of not
less than five calendar days”).
¶14 The original four proceedings—for fraudulent transfer,
unlawful detainer, quiet title, and divorce—were then
consolidated. After consolidation, the district court initially
ordered a new trial in the unlawful detainer and quiet title
actions. In so doing, the court declared that “no one may interfere
with Yvonne Martin’s right to stay in the . . . home during the
pendency of the suit.”
¶15 That order was set aside, however, after the case was
transferred to a new judge. Upon transfer, the district court
vacated the order for a new trial and ordered a new trial only on
the damages in the unlawful detainer action. The district court
affirmed the prior determination on the unlawful detainer issue. It
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Opinion of the Court
held that Yvonne was in unlawful detainer and Frank was entitled
to possession of the property.
¶16 Shortly thereafter, on October 12, 2015, Yvonne vacated
the home. Several months later, the court convened a new trial on
damages in the unlawful detainer action. In that proceeding, the
district court found that Yvonne was in unlawful detainer from
July 6, 2008 (five days after the notice of unlawful detainer) to
October 12, 2015 (when she vacated the property). Based on
evidence of fair market rental value for the property, it also
concluded that Frank’s damages were in the amount of
$224,534.10—an amount that in the court’s view was required to
be trebled under Utah Code section 78B-6-811(3).
¶17 The district court acknowledged the sizable nature of the
treble damages award at stake. But it also noted that the unlawful
detainer statute includes a “significant safety valve that is
designed to protect against excessive damages for unlawful
detainer”—in section 78B-6-810, which “allows a person to
request a hearing or trial within 60 days and/or otherwise
provides for expedited proceedings.” In the district court’s view,
“[t]hat should have happened here but it did not.” Instead, there
were “machinations” that resulted in an “unreasonable delay in
the resolution of th[e] case” that took “a relatively manageable
amount of damages to an enormous amount of damages.” And
because “the statute requires” an award of treble damages, the
court held that “the total amount awarded to Frank Kristensen
[was] $673,602.30, plus attorney fees in an amount to be
determined.” The fee amount and other costs were calculated in a
subsequent proceeding, and set at $227,060.96. The resulting final
judgment was for $900,663.26 in Frank’s favor.
¶18 Yvonne challenged that judgment on appeal, asserting
that Frank had no right to seek remedies for unlawful detainer
where her possession was lawful under orders awarding her
temporary possession in the divorce action. The court of appeals
affirmed. See Martin v. Kristensen, 2019 UT App 127, 450 P.3d 66. It
held that the temporary possession orders did not render
Yvonne’s detainer lawful because (1) the divorce court’s orders
were not entered until after Yvonne “had unlawfully remained on
the Property for nearly ten months,” id. ¶ 37; (2) the temporary
orders did not “definitively adjudicate” Frank’s rights, and thus
authorized Yvonne’s lawful possession at most vis-à-vis Petter, id.
¶ 38; and (3) statutory remedies for unlawful detainer are
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available notwithstanding an order of temporary occupancy, id.
¶ 40.
¶19 Yvonne filed a petition for certiorari, which we granted.
“In reviewing the court of appeals’ decision we apply the same
standard of review that it would apply in reviewing the decision
of the district court.” Est. of Faucheaux v. City of Provo, 2019 UT 41,
¶ 9, 449 P.3d 112. The case primarily raises questions of law—as to
the effect of temporary possession orders on the availability of
remedies for unlawful detainer. And we decide those questions de
novo, affording no deference to the lower courts’ analysis. See
Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35, ¶ 41,
308 P.3d 382.
II
¶20 Yvonne does not defend the lawfulness of her possession
of the Quicksilver Drive home during the ten-month period that
preceded the entry of the first order authorizing temporary
possession entered in the divorce action. She thus effectively
concedes the first-stated basis for the court of appeals’ decision—
that she “unlawfully remained” on the property for a period of
almost ten months. Martin v. Kristensen, 2019 UT App 127, ¶ 37,
450 P.3d 66. And she accordingly appears to acknowledge her
liability to Frank for remedies for unlawful detainer during that
period.
¶21 Yvonne does challenge the other two grounds for the
court of appeals’ decision, however. She claims that Frank was a
party to the divorce action, participated in it, and was bound by
orders entered in that case. Alternatively, she contends that the
court in the divorce action had every bit as much authority over
the parties as the court in the unlawful detainer action. And with
that in mind, she asks us to conclude that her possession was
lawful (as authorized by the divorce court) and thus cannot be a
basis for remedies for unlawful detainer.
¶22 We disagree with this last point and affirm the court of
appeals on the third basis for its decision without reaching the
second. 3 Yvonne has a point that the divorce court’s jurisdiction
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3 Frank defends the district court’s determination that Yvonne
failed to preserve the argument that Frank was a party in the
divorce action. He also contends that he was not a party in any
event and should not be deemed to be bound by orders entered in
(continued . . .)
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was no less than that of the unlawful detainer court. At the same
time, however, neither court’s power was any greater than the
other’s. And the remedies available to Frank in unlawful detainer
were governed by the terms and conditions of the unlawful
detainer provisions of the Utah Code.
¶23 The unlawful detainer provisions of the code make clear
that a temporary possession order does not deprive a landlord of
the right to the remedies available upon an eventual
determination of unlawful detainer on final judgment. Such an
order may make the tenant’s possession lawful during the
pendency of the unlawful detainer proceeding. But the full
panoply of statutory remedies remains available to the landlord
upon entry of final judgment.
¶24 A tenant in Yvonne’s position is admittedly in a
precarious position. If the unlawful detainer action is not resolved
expeditiously, the tenant may ultimately be on the hook for an
outsized award of treble damages, as occurred here. But the
statutory framework provides mechanisms for avoidance of that
problem—through provisions for expedited resolution of the
action. See UTAH CODE § 78B-6-810(1). Yvonne did not avail herself
of those provisions. Instead she took several steps that had the
effect of dragging out the process. The large award at issue was
partially a result of those steps—and is not a problem that this
court can erase under the clear provisions of the governing
statute.
¶25 We affirm on these grounds. We describe the basis for
our decision in greater detail below. First, we outline the
governing provisions of the Utah Code. Second, we explain the
basis for our decision that Frank remained entitled to the statutory
remedies for unlawful detainer despite the entry of temporary
possession orders in the divorce action. And third, we address
additional objections raised in Yvonne’s briefing.
the divorce court. And he asks us to conclude that these questions
lie beyond the grounds on which we granted certiorari review.
Yvonne disagrees on all counts. The briefing on these and
related questions leads to a series of questions. We need not and
do not reach them because we uphold the court of appeals on the
third basis of its decision.
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A
¶26 The unlawful detainer provisions of the Utah Code
establish a framework “for quickly and clearly resolving conflicts
over lawful possession of property between landowners and
tenants.” Osguthorpe v. Wolf Mountain Resorts, L.C., 2010 UT 29,
¶ 22, 232 P.3d 999. They do so by defining the terms and
conditions of a tenant’s unlawful detainer, prescribing procedural
mechanisms for disposition of unlawful detainer actions, and
providing remedies available upon a determination of unlawful
detainer.
¶27 “A tenant holding real property for a term less than life”
may be “guilty of an unlawful detainer” in a number of ways set
forth by statute. UTAH CODE § 78B-6-802(1) (2008). 4 Some of the
listed grounds are implicated by remaining “in possession” of
property beyond a specified date. See, e.g., id. § 78B-6-802(1)(a)–(c)
(2008). Others concern the misuse of property, as by engaging in
tortious or otherwise unlawful activity on the premises. See id.
§ 78B-6-802(1)(d)–(f) (2008).
¶28 The statute contemplates an initial “notice” by the
landlord of these or other alleged grounds for unlawful detainer,
see id. § 78B-6-805 (2008), followed by a complaint initiating an
“action” for unlawful detainer, see id. §§ 78B-6-806, -807 (2008). It
also sets forth a timeline and procedures for a response by the
tenant. For some alleged grounds, the code provides that the
tenant may “save the lease from forfeiture” by performing “the
condition or covenant” in question “[w]ithin three calendar days
after the service of the notice.” Id. § 78B-6-802(2) (2008). For others,
the code acknowledges the possibility that “the covenants and
conditions of the lease violated by the lessee cannot afterwards be
performed,” or that “the violation cannot be brought into
compliance.” Id.
¶29 The code expressly contemplates that a tenant may be
granted a right of temporary possession of the property during
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4 During the period when Yvonne was allegedly in unlawful
detainer, the legislature recodified the unlawful detainer statute. It
did not make many (or any relevant) substantive changes.
Compare UTAH CODE § 78B-6-801–811 (2008) with UTAH CODE §
78B-6-801–811 (2021). We thus proceed on the assumption that the
2008 version of the code controls.
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the pendency of the action. See id. § 78B-6-808 (2008) (providing
for the execution of a possession bond by a landlord and a
tenant’s right to “remain in possession if he executes and files a
counter bond”); id. § 78B-6-810(2)(b)(i) (2008) (providing for a
determination of “who has the right of occupancy during the
litigation’s pendency” in an action for nonpayment of rent). But it
also prescribes remedies available to a landlord upon an eventual
determination of unlawful detainer. See id. § 78B-6-811 (2008). And
the statutory scheme makes clear that the landlord’s remedies are
not suspended or affected by an order authorizing a tenant’s
temporary possession.
¶30 If the court finds that the tenant was in unlawful detainer
upon entry of final judgment, “judgment shall be entered against
the defendant for the rent, for three times the amount of the
damages assessed [by the court] . . . and for reasonable attorney
fees.” Id. § 78B-6-811(3) (2008). The award of such remedies is
mandatory. And their availability is unaffected by the entry of a
prior order authorizing the tenant’s temporary possession of the
property. This is clear from the structure of the statute—the fact
that such orders are in effect “during the litigation’s pendency,”
id. § 78B-6-810(2)(b)(i) (2008), and contemplate “further
proceedings” on issues that “remain to be adjudicated between
the parties” at trial, id. § 78B-6-808(6) (2008). 5
¶31 The statutory proceedings are to be expedited on terms
and conditions set forth in the code. In actions “in which the
tenant remains in possession of the property,” the court is to
“expedite” the disposition of all motions and “shall begin the trial
within 60 days after the day on which the complaint is served,
unless the parties agree otherwise.” Id. § 78B-6-810(1) (2008). “In
an action for unlawful detainer where the claim is for
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5 A tenant who is granted a right of temporary occupancy is
thus in a position parallel to that of an applicant for a preliminary
injunction. In both circumstances, the temporary order imposes a
status quo hold on the parties’ legal rights. In both settings,
however, the party seeking that hold is still on the hook for any
damages that accrue if the order is later found to have been
wrongfully entered. See Mountain States Tel. & Tel. Co. v. Atkin,
Wright & Miles, Chartered, 681 P.2d 1258, 1262 (Utah 1984) (noting
the availability of damages “if it is finally determined” that an
applicant was not entitled to a preliminary injunction).
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Opinion of the Court
nonpayment of rent,” the court is also required to “hold an
evidentiary hearing, upon request of either party, within ten days
after the day on which the defendant files the defendant’s
answer” to “determine who has the right of occupancy during the
litigation’s pendency.” Id. § 78B-6-810(2) (2008). The above-noted
possession bond proceeding is also subject to expedited time
constraints. If the landlord files a possession bond, the tenant is
entitled to demand a hearing “within three days of being served
with notice of the filing of plaintiff’s possession bond” and has a
right to “a hearing within three days of the defendant’s demand.”
Id. § 78B-6-808(4)(c) (2008).
B
¶32 Yvonne has a point that her possession of the Quicksilver
Drive home was “lawful” in the sense that her occupancy had
been authorized in orders entered by the divorce court. But that
alone does not tell us that Frank was thereby foreclosed from the
statutory remedies available upon a final judgment in the
unlawful detainer action. The divorce court’s jurisdiction was no
less than that of the unlawful detainer court. But it was likewise
no greater. And the effect of a temporary occupancy order on the
remedies for unlawful detainer is prescribed by the statutory
provisions that govern such proceedings.
¶33 Those provisions make clear that an order of temporary
occupancy has a limited effect. It gives the tenant a temporary
right of occupancy “during the litigation’s pendency.” See id.
§ 78B-6-810(2)(b) (2008). But such a right of occupancy is tentative
and conditional. A temporary order contemplates “further
proceedings” that “remain to be adjudicated between the parties”
at trial, id. § 78B-6-808(6) (2008), including proceedings on the
merits of the landlord’s allegation of unlawful detainer.
¶34 The alleged unlawful detainer at issue here arose under a
tenancy at will—a lease for an indefinite term without
specification as to duration or rent. 6 By statute, unlawful detainer
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6 See Buchanan v. Crites, 150 P.2d 100, 102 (Utah 1944)
(determining that tenant was no longer a tenant at will once “it
could [not] be said that the [tenant] was in possession with the
consent of the [landlord]”); Carteri v. Roberts, 73 P. 818, 819 (Cal.
1903) (defining a “tenant at will” as someone “who enters upon
land by permission of the owner” without a contract); Coinmach
(continued . . .)
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for such a tenancy is established if the tenant “remains in
possession” of property “after the expiration of a notice of not less
than five calendar days.” Id. § 78B-6-802(1)(b)(ii) (2008). Frank
alleged that Yvonne was in unlawful detainer under this
provision from July 6, 2008 (five days after the notice of unlawful
detainer) to October 12, 2015 (when Yvonne eventually vacated
the premises). The district court agreed. In the consolidated trial
on the quiet title and unlawful detainer actions, a jury rejected
Yvonne’s assertion that she had executed a quitclaim deed on the
property under duress, and the district court concluded that
Yvonne had thus been in unlawful detainer since July 2008.
¶35 The court of appeals affirmed that decision and we
likewise affirm. The temporary occupancy orders entered in the
divorce action had no greater effect than a temporary occupancy
order entered in an unlawful detainer proceeding. And the terms
of the unlawful detainer provisions of the code make clear that a
temporary occupancy order does not foreclose the availability of
statutory remedies for unlawful detainer upon entry of final
judgment.
¶36 The temporary possession orders made Yvonne’s
possession lawful in the sense of protecting her from eviction. But
that is no different from a temporary possession order entered in
an unlawful detainer action. And such a temporary order does not
preclude an unlawful detainer action—or foreclose the remedies
available upon final judgment in such action. Such orders simply
preserve the status quo pending disposition of the unlawful
detainer proceeding. Unless and until a final judgment is entered
in such proceeding, the tenant remains on the hook for the
remedies available to the landlord if the landlord succeeds in
securing a final judgment in its favor.
¶37 Yvonne assumed a risk when she remained in possession
of the property during the pendency of the quiet title and
unlawful detainer proceedings. If she had prevailed in persuading
a jury that her quitclaim deed had been entered under duress,
presumably she would have established that she was not in
Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 915 (Tex.
2013) (explaining that “tenants at will remain in possession with
their landlords’ consent, their possession is lawful, but it is for no
fixed term, and the landlords can put them out of possession at
any time”).
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“unlawful detainer” as a tenant who “remain[ed] in possession”
of a landlord’s property. See id. But she failed to succeed on that
claim. And her gamble turned out to be a bad one. As a result of
the extensive time it took to resolve the quiet title and unlawful
detainer issues, Yvonne ended up owing over $900,000 in
damages—an amount that included fair market rental value as
damages (trebled under the statute) as well as costs and attorney
fees.
¶38 Such an award may seem unduly large at this juncture.
But the amount was the inevitable result of delay under a
statutory scheme that calls for treble damages. Much of the delay
was Yvonne’s own doing; at very least, she did not choose to
expedite the proceedings. And the ultimate disposition of
Yvonne’s duress claim left the district court with no options.
¶39 Once title was quieted in Frank’s name, the writing was
on the wall for the unlawful detainer proceeding. Frank’s lawful
title was conclusively established. And that meant that Yvonne
had “remain[ed] in possession” of the premises of Frank’s home
under a tenancy at will “after the expiration of” Frank’s five-day
notice in July 2008. See id. Yvonne could have vacated the home
within five days. She could have sought expedited proceedings on
the unlawful detainer proceedings, as provided by statute. But she
did neither. And the result was a very large award that included
treble damages and attorney fees.
¶40 That award may seem lamentable. But it cannot be
avoided on the ground that Yvonne’s possession of the
Quicksilver Drive home was lawful under temporary possession
orders.
C
¶41 Yvonne advances two sets of challenges to the above
framework for disposition. First, she identifies circumstances that
purportedly would foreclose “continuing damages for unlawful
detainer,” which she cites as grounds for concluding that Frank’s
damages should likewise be foreclosed. Second, she advances
legal and equitable grounds for precluding the accumulation of
treble damages in a case like this one. We reject both sets of
arguments for reasons explained below.
1
¶42 Yvonne contends that “[t]here are any number of events
that should terminate continuing damages for unlawful detainer.”
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And she asks us to analogize this case to the hypothetical
circumstances she identifies. We accept the premises of Yvonne’s
argument. But we find the cited circumstances distinguishable
from the case at hand.
¶43 Yvonne first posits a circumstance in which a tenant at
will under a notice of unlawful detainer “enter[s] into a lease
agreement with the property owner that allowed him to stay in
the property.” The new lease, in her view, could “transform” the
tenant’s “possession to a lawful one” that terminates liability for
unlawful detainer. And “if the term of the new lease started
retroactively,” Yvonne asserts that “unlawful detainer liability
should be eliminated completely.”
¶44 Yvonne also imagines a case in which the landlord
“withdraw[s]” the notice of unlawful detainer and “authorizes the
tenant to remain in possession.” She asserts that such “action
would restore the tenant to lawful possession and should render
the tenant’s initial unlawful detainer liability void ab initio.”
¶45 Yvonne seeks to analogize her case to these hypothetical
circumstances. In this case and in the cited hypotheticals, Yvonne
claims that the tenant has “gained lawful possession.” And in all
of these circumstances, she asserts that it is “both unjust and
nonsensical” to allow the tenant to “continue to accrue” wrongful
detainer damages “so long as he remained in possession.”
¶46 We assume for the sake of argument that unlawful
detainer damages would not accrue in the cited hypotheticals. But
the hypotheticals are easily distinguished. And the distinctions
highlight a core defect in Yvonne’s position.
¶47 In the event of a new, retroactive lease, it can no longer be
said that the tenant “remain[ed] in possession” of the landlord’s
property “after” expiration of the five-day notice. See id. The new
lease reestablishes the tenancy. And its retroactive application
means that there never was an unlawful detainer. That is not the
case here. The temporary possession orders did not reestablish the
tenancy at will. They did not establish (retroactively or otherwise)
that Yvonne was never in unlawful detainer after expiration of the
five-day notice. They simply put a temporary hold on eviction,
subject to the availability of unlawful detainer remedies upon
entry of final judgment in favor of the landlord.
¶48 The landlord’s withdrawal of the notice of unlawful
detainer is similarly distinguishable. An unlawful detainer
plaintiff is certainly entitled to waive the right to assert damages
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Opinion of the Court
for unlawful detainer. Such a waiver is enforceable, and forecloses
the right to seek statutory remedies. That did not happen here.
And Yvonne’s hypotheticals thus provide no basis for a decision
in her favor.
2
¶49 Yvonne next challenges the accrual of treble damages
against her. She contends that the governing statutes do not
clearly provide for “treble damages during a period of court-
authorized possession.” And she advances “public policy and
equity” grounds for foreclosing the accumulation of treble
damages in a case in which the operative possession orders did
not provide “notice” of Yvonne’s “continued liability for treble
damages.”
¶50 We find no basis for these arguments in the operative
terms of the code. By statute, the factfinder is required to “assess
the damages resulting to the plaintiff from . . . unlawful detainer.”
Id. § 78B-6-811(2) (2008). In an action under a tenancy at will, the
plaintiff’s damages are primarily measured by the fair market
rental value of the property. See, e.g., Valley Lane Corp. v. Bowen,
592 P.2d 589, 592 (Utah 1979). Once such damages are calculated,
“[t]he judgment shall be entered against the defendant” for “three
times the amount of the damages” assessed by the court and for a
“reasonable attorney fee[].” UTAH CODE § 78B-6-811(3) (2008). The
entry of judgment is mandatory upon a determination of unlawful
detainer. And the judgment must include an award of treble
damages. The statute leaves no room for a court-made exception.
¶51 These remedies provisions themselves may not speak
directly to the effect of a temporary possession order. But
temporary orders do not affect the eventual availability of any
statutory remedies—for reasons set forth in Parts II.A. & B. above.
And we reject Yvonne’s position on that basis.
¶52 Perhaps it would have been ideal for the temporary
possession orders to specify their limited effect—to make clear
that Yvonne could remain on the hook for the statutory remedies
for unlawful detainer. But hindsight is 20/20 and judges aren’t
always in a position to anticipate the ideal terms of an entered
order. Yvonne was responsible for assessing the effect of the
orders of temporary possession under our law. And we are in no
position to deprive Frank of the remedies available to him by
statute.
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Opinion of the Court
¶53 We reject Yvonne’s invocation of “public policy and
equity” on that same basis. Treble damages, in a sense, may seem
a “severe remedy.” Osguthorpe, 2010 UT 29, ¶ 23 (quoting Sovereen
v. Meadows, 595 P.2d 852, 853 (Utah 1979)) (characterizing them as
such, while noting that they are necessary to hasten a quick
resolution of unlawful detainer actions). But they are the remedy
provided by statute. And our court has no equitable power to
override that remedy on public policy grounds.
III
¶54 A landlord who establishes unlawful detainer is entitled
to the remedies prescribed by statute, including treble damages.
Such remedies are not foreclosed by an order authorizing
temporary possession, whether entered in the unlawful detention
action itself or in a related proceeding.
¶55 This holding may appear to have produced an outsized
judgment in this case. But the size of the judgment here was the
product of the delay in the proceedings, which was initiated at
least in part by the tenant. And we have no authority to override
the statutorily prescribed remedies in any event.
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