Steinberg v. Community Housing Services-Capitol Villa

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2. Where the trial court granted a defendant’s motion to dismiss
and made findings as authorized by rule 41(b) of the Utah Rules of
(continued...)
2014 UT App 102
_________________________________________________________
THE UTAH COURT OF APPEALS
VLADIMIR STEINBERG,
Plaintiff and Appellant,
v.
COMMUNITY HOUSING SERVICES–CAPITOL VILLA, LTD.,
Defendant and Appellee.
Memorandum Decision
No. 20130438-CA
Filed May 8, 2014
Third District Court, Salt Lake Department
The Honorable Keith A. Kelly
No. 110910734
Stephen D. Spencer, Attorney for Appellant
Richard C. Terry and Douglas A. Oviatt, Attorneys
for Appellee
SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR. and MICHELE M.
CHRISTIANSEN concurred.1
BENCH, Senior Judge:
¶1 Vladimir Steinberg (Tenant) appeals from the trial court’s
dismissal of his claims for conversion and violation of the right to
quiet use and enjoyment. We affirm.2

Steinberg v. Community Housing Services
2. (...continued)
Civil Procedure, “we review the evidence in the light most
favorable to the findings.” Petty v. Gindy Mfg. Corp., 404 P.2d 30, 31
(Utah 1965).
20130438-CA 2 2014 UT App 102
¶2 In July 2008, Tenant moved into an apartment owned by
Community Housing Services–Capitol Villa, Ltd. (Landlord). On
March 25, 2011, Tenant delivered to Landlord a signed notice of
intent to vacate (the Notice), indicating his intention to move out of
the apartment no later than April 1. Tenant moved his furniture out
of the apartment prior to April 1. Relying on the Notice, Landlord
began renovating the apartment on April 4.
¶3 In late April, Tenant filed a complaint against Landlord,
alleging that Landlord had violated his right to quiet use and
enjoyment. According to Tenant, the Notice, which he had signed
on March 25, indicated his plan to vacate thirty-five days later and
entitled him to remain in the apartment until the end of April.
Tenant therefore alleged that Landlord’s April 4 entry into his
apartment was an unlawful eviction. In addition, Tenant asserted
a claim for conversion based on his allegations that Landlord
retained control over cash and jewelry that Tenant had left in the
apartment.
¶4 The trial court held a bench trial on February 19, 2013. At the
close of Tenant’s case-in-chief, Landlord moved to dismiss,
pursuant to rule 41(b) of the Utah Rules of Civil Procedure. In
addressing Landlord’s motion, the trial court found that Tenant’s
testimony was not credible and contained numerous
contradictions. The trial court then concluded that Tenant had
failed to present credible evidence in support of his claims and
therefore dismissed Tenant’s case with prejudice. Tenant appeals.
¶5 Rule 41(b) provides, “After the plaintiff, in an action tried by
the court without a jury, has completed the presentation of his
evidence the defendant . . . may move for a dismissal on the

Steinberg v. Community Housing Services
3. Landlord argues that Tenant did not preserve these arguments
for appeal because he did not file an objection to the proposed
findings of fact and conclusions of law. However, Tenant brought
his arguments to the trial court’s attention when he opposed
Landlord’s rule 41(b) motion. See generally 438 Main St. v. Easy Heat,
Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (stating that to preserve an issue,
“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)). Accordingly, we address
the merits of Tenant’s arguments on appeal.
20130438-CA 3 2014 UT App 102
ground that upon the facts and the law the plaintiff has shown no
right to relief.” Utah R. Civ. P. 41(b). “A trial court may grant a
motion for involuntary dismissal under rule 41(b) ‘when the trial
judge finds that the claimant has either failed to make out a prima
facie case or when the trial judge is not persuaded by the evidence
presented by the claimant.’” Richards v. Cook, 2013 UT App 250, ¶ 5,
314 P.3d 1040 (quoting Lemon v. Coates, 735 P.2d 58, 60 (Utah 1987)).
“Because the trial court in this case made findings of fact and
granted the rule 41(b) motion based on its determination that it was
unpersuaded by the evidence, we defer to the court’s decision
insofar as its findings are not clearly erroneous.” See id. (citing
Lemon, 735 P.2d at 60; Petty v. Gindy Mfg. Corp., 404 P.2d 30, 31
(Utah 1965)). “A finding is clearly erroneous only if the finding is
without adequate evidentiary support or induced by an erroneous
view of the law.” Hale v. Big H Constr., Inc., 2012 UT App 283, ¶ 9,
288 P.3d 1046 (citation and internal quotation marks omitted).
“Therefore, we will not disturb a finding unless it is against the
clear weight of the evidence, or if [we] otherwise reach[] a definite
and firm conviction that a mistake has been made.” Id. (alterations
in original) (citation and internal quotation marks omitted). Tenant
challenges the trial court’s involuntary dismissal of his two claims,
arguing that the trial court’s findings of fact are clearly erroneous.3
¶6 First, Tenant challenges the trial court’s dismissal of his
claim for violation of his right to quiet use and enjoyment, arguing

Steinberg v. Community Housing Services
20130438-CA 4 2014 UT App 102
that the trial court clearly erred in finding that Tenant no longer
held a tenancy as of April 1, 2011. The covenant of quiet enjoyment
protects a tenant from actual or constructive eviction by someone
with superior title. See Cook Assocs., Inc. v. Utah Sch. & Institutional
Trust Lands Admin., 2010 UT App 284, ¶ 30, 243 P.3d 888 (“[I]n
Utah, the covenant of quiet enjoyment is synonymous with the
covenant of warranty, both of which protect the grantee of a
property interest from actual or constructive eviction by someone
with superior title.”). Here, Tenant essentially claims that Landlord
actually evicted him by entering the apartment on April 4, 2011.
¶7 A plaintiff complaining of forcible entry or forcible detainer
is required to 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.” Utah Code Ann. § 78B-6-809
(LexisNexis 2012); see also Frisco Joes, Inc. v. Peay, 558 P.2d 1327,
1329–30 (Utah 1977) (“A necessary predicate to [a] cause of action
for forcible entry is that [the plaintiff is] in actual and peaceable
possession of the property. [A plaintiff cannot] be so if there [has]
been abandonment or a surrender of the premises.” (footnote
omitted)); Wangsgard v. Fitzpatrick, 542 P.2d 194, 195 (Utah 1975)
(“Plaintiff, not being in actual possession of the premises or entitled
to the possession, cannot sustain an action for forcible entry; and
for the same reason cannot sustain an action for wrongful
eviction.”). If a tenant has given the landlord a notice of intent to
vacate and has terminated his tenancy, he is no longer in actual
possession of the premises. Cf. Coleman v. Thomas, 2000 UT 53, ¶ 14,
4 P.3d 783 (explaining that “the act of giving notice . . . triggers the
termination of the lease” for a periodic tenancy).
¶8 In this case, the trial court found that Tenant signed and
delivered a written notice of intent to vacate, which indicated his
intent to move out of the apartment no later than April 1, 2011. The
trial court also found that Tenant moved his furniture out of the
apartment prior to April 1. The trial court therefore found that
Tenant terminated his tenancy by delivering the Notice and that
Landlord’s reliance on the Notice was reasonable. The trial court

Steinberg v. Community Housing Services
20130438-CA 5 2014 UT App 102
also determined that Tenant vacated the apartment effective
April 1.
¶9 Tenant argues that the trial court clearly erred in finding
that he no longer held a tenancy as of April 1 because the trial court
failed to consider the evidence to the contrary. Specifically, Tenant
claims that the trial court did not consider his testimony that he
intended to move by the end of April rather than by the beginning
of April, the evidence that Tenant had paid rent for the month of
April, and the evidence that Landlord refunded his deposit, which
was contingent upon Tenant having given a thirty-day notice of his
intent to vacate.
¶10 When “there is conflicting evidence, we defer to the trial
court as the factfinder,” and “[t]he existence of conflicting evidence
does not give rise to clear error as long as evidence supports the
trial court’s decision.” Hale v. Big H Constr., Inc., 2012 UT App 283,
¶ 60, 288 P.3d 1046 (citation and internal quotation marks omitted).
Here, there is evidence in the record to support the trial court’s
findings. In particular, Tenant testified that on March 25, 2011, he
informed Landlord’s apartment manager (Manager) of his intent
to move. The evidence showed that Tenant signed and delivered
the Notice on March 25, in which he allegedly wrote in the portion
of the form reserved for office use only that he was giving a thirty-
five-day notice to vacate. Although Tenant testified that someone
must have altered the Notice by changing the “35” that he wrote to
“05,” he does not dispute that he filled out and signed the top
portion of the form, including the portion indicating April 1 as the
“Date of Move.” Indeed, Tenant testified that on the portion of the
Notice for the date of move, he wrote April 1 because he hoped to
move on that date. Additionally, Tenant’s testimony and other
evidence established that Tenant’s furniture was moved out of the
apartment by March 28. We see no clear error in the trial court’s
findings, and those findings support a determination that Tenant
was not in peaceable possession of the apartment after April 1,
2011.

Steinberg v. Community Housing Services
20130438-CA 6 2014 UT App 102
¶11 Second, Tenant argues that the trial court clearly erred in
finding that he did not support his conversion claim with credible
evidence. Tenant further argues that the trial court failed to
consider any evidence beyond his own testimony. “A conversion
is an act of wilful interference with a chattel, done 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.’” Bonnie & Hyde, Inc. v. Lynch, 2013 UT App
153, ¶ 30, 305 P.3d 196 (alteration in original) (quoting Frisco Joes,
558 P.2d at 1330). Here, the trial court found, “[Tenant’s] claim that
$15,300 in cash and jewelry went missing from an apartment he
had vacated is not credible.” The trial court determined that Tenant
did not leave cash or jewelry in the apartment and therefore
concluded that Landlord did not convert any of Tenant’s property.
¶12 In essence, the trial court concluded that it did not believe
Tenant’s testimony that he had left cash and jewelry in the
apartment. Tenant testified that when he returned to the apartment
on April 4, 2011, everything had been removed, including a jewelry
box belonging to his former wife (Ex-wife). Tenant testified that
when he spoke to Manager, she directed him to the storage area
where certain items had been stored. Tenant also testified that
when he found his wallet on the floor of the storage area, $300 in
cash was missing from it. “[T]rial courts are in the best position to
make determinations about credibility and veracity.” Rawlings v.
Rawlings, 2010 UT 52, ¶ 45, 240 P.3d 754. Because “[a]ssessing the
credibility of a witness is within the trial court’s domain,” Hale,
2012 UT App 283, ¶ 16, we are not convinced that the trial court
clearly erred when it found Tenant’s conversion claim was not
credible.
¶13 Nevertheless, Tenant argues that the trial court clearly erred
in its findings because it did not consider his evidence in support

Steinberg v. Community Housing Services
20130438-CA 7 2014 UT App 102
of his conversion claim. This evidence included Ex-wife’s
testimony, evidence of a civil judgment against him for the value
of the lost jewelry, and his friend’s (Friend) testimony regarding
Tenant’s search for his lost property on April 4, 2011. However,
none of this evidence establishes that Tenant left personal property
in the apartment at the relevant time or that Landlord exercised
control over it. For example, although Ex-wife corroborated the
existence of the jewelry and she testified that she saw her jewelry
in Tenant’s apartment sometime around March 2011, Ex-wife also
testified that she did not know who had the jewelry. She further
indicated that she did not believe Tenant when he insisted that he
did not have the jewelry anymore and that it had been thrown out
of the apartment. Ex-wife explained the evidence of her $10,000
small-claims judgment against Tenant in her favor, stating that she
sued Tenant because she wanted her jewelry back and that the last
she knew, it was in Tenant’s possession. Neither Ex-wife’s
testimony nor the small-claims judgment is evidence that the $300
cash and the jewelry were ever in Landlord’s possession. Similarly,
Friend merely testified that when he went over to the apartment on
April 4, Tenant was upset because he could not find the jewelry
and cash. Because we give “due regard . . . to the opportunity of the
trial court to judge the credibility of the witnesses,” Utah R. Civ. P.
52(a), the trial court’s finding that Landlord did not exercise control
over Tenant’s personal property is not clearly erroneous. We
therefore affirm the dismissal of Tenant’s conversion claim.
¶14 Finally, Landlord requests an award of attorney fees that it
has incurred on appeal. “[T]he general rule is that when a party
who received attorney fees below prevails on appeal, the party is
also entitled to fees reasonably incurred on appeal.” Dennett v.
Ferber, 2013 UT App 209, ¶ 11, 309 P.3d 313 (per curiam) (citation
and internal quotation marks omitted). The trial court awarded
Landlord its reasonable attorney fees incurred in defending the
action under the statutory provisions governing forcible entry and

Steinberg v. Community Housing Services
4. Tenant asks this court to vacate the trial court’s judgment of
dismissal with prejudice but does not otherwise challenge the trial
court’s award of fees. “Because we affirm the trial court’s
dismissal” of Tenant’s claims, “we need not further evaluate the
propriety of the fee award.” See Richards v. Cook, 2013 UT App 250,
¶ 11 n.5, 314 P.3d 1040.
20130438-CA 8 2014 UT App 102
detainer actions. See Utah Code Ann. § 78B-6-811 (LexisNexis4
2012). Landlord has prevailed on appeal and is therefore entitled
to attorney fees reasonably incurred on appeal.
¶15 In sum, the trial court determined that Tenant failed to show
that he is entitled to relief on his claims for conversion and the
violation of his right to quiet use and enjoyment. The trial court’s
findings are supported by the evidence. Accordingly, we affirm the
trial court’s grant of Landlord’s rule 41(b) motion to dismiss.
Because the trial court awarded Landlord attorney fees and
Landlord has also prevailed on appeal, we remand for the trial
court to calculate an award of attorney fees reasonably incurred on
appeal.