Brady v. Slater

IN THE UTAH COURT OF APPEALS

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Kevin Brady,

Plaintiff and Appellee,

v.

Walter G. Slater,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020599-CA
 

F I L E D
(September 2, 2004)
 

2004 UT App 292

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Third District, Murray Department

The Honorable Bruce Lubeck

Attorneys: Walter G. Slater, Murray, Appellant Pro Se

James H. Deans, Salt Lake City, for Appellee

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Before Judges Jackson, Orme, and Thorne.

THORNE, Judge:

    Walter C. Slater appeals from the trial court's determination that he was in unlawful detainer of an apartment owned by Kevin Brady. We affirm.

    Utah has recognized retaliatory eviction as a legitimate defense to the filing of an unlawful detainer action. See Building Monitoring Sys., Inc., v. Paxton, 905 P.2d 1215, 1216-19 (Utah 1995). However, "the defense does not jeopardize the landlord's right to evict for any legal reason or for no reason because the tenant must prove that the landlord's primary motivation . . . was retaliatory." Id. at 1218. Moreover, even if the landlord has "engaged in retaliatory action" due to a tenant's complaint, our supreme court has held that "[o]nce repairs have been made, a landlord may serve the tenant with an eviction notice and bring an unlawful detainer action without proffering evidence of his intent." Id. at 1219. However, "the burden is on the landlord to show that he has given the tenant a reasonable opportunity to procure other housing." Id.

    In the instant case, Slater's appeal fails to demonstrate either that he met his burden to "prove that the landlord's primary motivation . . . was retaliatory," or that he was given insufficient time to relocate. Id. The issue of retaliation appears only once in the record, during closing argument, and Slater presented nothing during the trial to support this argument.(1) Slater's failure to produce any evidence that Brady's motivation was retaliatory is fatal to his appeal. In addition, it is undisputed that Slater complained to Brady in late November 2001, and that the problem was repaired during that same month, albeit by Slater. In February 2002, after Slater submitted a reduced rent payment, offset to pay his costs for the plumbing repair, Brady served him with a notice to pay or quit. This was followed by a March 2002 notice to vacate by month end, which the trial court found to be a legitimate and lawful eviction notice. Consequently, four months passed between Slater's complaint to Brady and Slater's receipt of the lawful eviction notice. Although the trial court made no findings concerning the reasonableness of this amount of time, Slater does not argue on appeal that the time period was unreasonable. Instead, his argument rests solely on the claim that the eviction was retaliatory. Even if he were correct in asserting that Brady's motive was retaliatory, the repair had been made and four months had passed before Slater was served with a lawful eviction notice. Consequently, Slater's argument is without merit.

    Accordingly, we affirm.

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William A. Thorne Jr., Judge

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WE CONCUR:

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Norman H. Jackson, Judge

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Gregory K. Orme, Judge

1. We also note that retaliatory eviction is an affirmative defense. See Building Monitoring Sys., Inc., v. Paxton, 905 P.2d 1215, 1218-19 (Utah 1995). As an affirmative defense, Slater was required to raise the argument in a timely fashion. See Utah R. Civ. P. 12(h) ("A party waives all defenses and objections not presented either by motion or by answer or reply."); Pratt v. Board of Educ., 564 P.2d 294, 299 (Utah 1977) ("Since an affirmative defense raises matters outside the scope of plaintiff's prima facie case, any matter which does not tend to controvert the opposing party's prima facie case should be pleaded[.]"). However, as noted above, Slater's trial counsel raised the issue of retaliation for the first and only time during his closing argument.