2017 UT App 104

THE UTAH COURT OF APPEALS

MOUNTAIN VIEW COLONIAL APARTMENTS,

Appellee,

v.

REBECCA ISAIS,

Appellant.

Opinion

No. 20160184-CA

Filed June 29, 2017

First District Court, Brigham City Department

The Honorable Brandon J. Maynard

No. 150100111

Zachary C. Myers, Attorney for Appellant

Charles A. Schultz, Attorney for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN and DAVID N. MORTENSEN

concurred.

VOROS, Judge:

¶1 Rebecca Isais (Tenant) appeals from the district court’s 

order evicting her from an apartment she leased from Mountain 

View Colonial Apartments (Landlord). We reverse the district 

court’s eviction order.

BACKGROUND

¶2 Tenant entered a rental agreement with Landlord that 

included a “Crime and Drug-Free Housing Agreement” 

prohibiting “drug related criminal activity.” On August 4, 2015, 

police officers searched Tenant’s apartment after reports of a 

marijuana odor. Landlord then taped a “Notice of Infraction” to 

Tenant’s door alleging violations of the rental agreement,
Mountain View Colonial Apartments v. Isais

20160184-CA 2 2017 UT App 104

including “use of marijuana by [Tenant] and/or guest.” Landlord 

filed a complaint and served Tenant with a three-day summons.

1

Tenant filed a pro se answer asserting, among other things, that 

she had received no notice to quit the premises. Landlord then 

filed a motion for immediate eviction and a request for an 

expedited hearing. 

¶3 On October 2, 2015, the court held an expedited eviction 

hearing. Tenant testified that police had detected marijuana

residue on some “old mason jars” found in the search of her 

apartment on August 4. She was unaware of the residue before 

the police alerted her to it and was never charged. Based on this 

testimony, the court found that Tenant “did admit to illegal 

activity on the premises” and that “there was illegal activity that 

took place on August 4th as it relates to drug possession and/or 

drug use.” Landlord’s apartment manager testified that she 

posted the “Notice of Infraction” “[o]n the inside door of the side 

entrance” to Tenant’s apartment. The court found that “notice of 

eviction . . . was provided.” The court granted the eviction order, 

giving Tenant three days to quit the premises.

¶4 Tenant filed a motion to amend her answer and a motion 

to alter or amend the judgment or grant a new trial under rule 59 

of the Utah Rules of Civil Procedure. The court denied both 

motions, concluding that the eviction order “was not an error of 

law.” Although the district court did not specifically address the 

notice to quit in its memorandum decision on Tenant’s rule 59 

motion, the court reiterated its earlier ruling that “[Landlord] 

provided [Tenant] proper eviction notices.” Tenant appeals the 

eviction order.

 

1. Tenant claimed that she had not been served with a summons; 

however, the district court found that she had.
Mountain View Colonial Apartments v. Isais

20160184-CA 3 2017 UT App 104

ISSUE AND STANDARD OF REVIEW

¶5 Tenant contends that the district court “abused its 

discretion by ordering the eviction of [Tenant] without proof 

that a proper notice to quit was served.” We read this claim on 

appeal as a challenge to the legal sufficiency of the notice that, 

the parties agree, Landlord served on Tenant.

¶6 Tenant contends that the notice, whose content is

undisputed, did not comply with statutory requirements. The 

claim on appeal thus involves the application of the law to a

given set of facts. Our supreme court has stated, “On mixed 

questions—involving application of a legal standard to a set of

facts unique to a particular case—our review is sometimes 

deferential and sometimes not.” Supernova Media, Inc. v. Pia 

Anderson Dorius Reynard & Moss, LLC, 2013 UT 7, ¶ 13, 297 P.3d 

599 (citation and internal quotation marks omitted). The degree 

of deference we afford depends on the following factors:

(1) the degree of variety and complexity in the facts

to which the legal rule is to be applied; (2) the 

degree to which a trial court's application of the 

legal rule relies on facts observed by the trial judge,

such as a witness’s appearance and demeanor, 

relevant to the application of the law that cannot be 

adequately reflected in the record available to 

appellate courts; and (3) other policy reasons that 

weigh for or against granting discretion to trial 

courts[.]

Id. (citation and internal quotation marks omitted). Where, as 

here, “the facts are not at issue” and the question is “the legal 

effect of a given set of facts”—a single document, in fact—the 

question before the reviewing court is “law-like” and thus 

reviewed under a non-deferential standard. See Murray v. Utah 

Labor Comm’n, 2013 UT 38, ¶¶ 39–40, 308 P.3d 461 (internal 

quotation marks omitted).
Mountain View Colonial Apartments v. Isais

20160184-CA 4 2017 UT App 104

ANALYSIS

I. Appellate Jurisdiction

¶7 As a preliminary matter, Landlord contends that “[t]his 

court lacks subject matter jurisdiction of [Tenant’s] appeal.” 

Landlord argues that “[b]ecause [Tenant] did not file her motion 

to alter or amend until after she filed her notice of appeal, the 

motion is invalid, and the district court had no jurisdiction to 

consider it or rule on it.” Landlord argues that Tenant’s “second 

notice of appeal, filed on March 7, 2016, was filed more than 

thirty days after the district court issued its judgment on October 

5, 2015, and that notice of appeal is untimely.” Tenant responds 

that, “[w]hen a Rule 59 motion is filed, jurisdiction stays with the 

district court until the district court disposes of the motion.” 

Tenant also argues that a “notice of appeal is not deemed to be 

filed until after the district court rules on a Rule 59 motion.” 

¶8 The “initial inquiry of any court should always be to 

determine whether the requested action is within its 

jurisdiction.” Allred v. Allred, 835 P.2d 974, 977 (Utah Ct. App. 

1992) (citation and internal quotation marks omitted). “We 

independently determine whether the appeal is proper when 

reviewing a jurisdictional issue.” Id.

¶9 Rule 4(b) of the Utah Rules of Appellate Procedure 

provides in part that if a party timely files a rule 59 motion, “the 

time for all parties to appeal from the judgment runs from the 

entry of the dispositive order.” See Utah R. App. P. 4(b)(1)(D). 

Thus, “[a] notice of appeal filed after announcement or entry of 

judgment, but before entry of an order disposing of [the rule 59 

motion], shall be treated as filed after entry of the order and on 

the day thereof, except that such a notice of appeal is effective to 

appeal only from the underlying judgment.” See id. R. 4(b)(2). In 

other words, “[a] timely motion filed pursuant to Rule 59 tolls 

the time for appeal pending resolution of the motion.” Allred, 835 

P.2d at 977 (citing Utah R. App. P. 4(b)).
Mountain View Colonial Apartments v. Isais

20160184-CA 5 2017 UT App 104

¶10 Generally, the deadline for filing a notice of appeal is 30 

days. Utah R. App. P. 4(a). However, in an unlawful detainer 

action, the deadline to file a notice of appeal is 10 days. Utah 

Code Ann. § 78B-6-813(1) (LexisNexis 2012).2

¶11 Here, Tenant filed her first notice of appeal on October 5, 

2015, the same day that the district court ordered eviction.

Tenant filed a timely rule 59 motion 10 days later. Her initial 

notice of appeal was later dismissed on procedural grounds. The 

district court issued its memorandum decision and order on the 

rule 59 motion on February 26, 2016. The time to appeal ran from 

the date the district court entered the order disposing of Tenant’s 

rule 59 motion. See Utah R. App. P. 4(b)(1)(D). Rule 59 thus 

tolled the time to appeal the underlying judgment until the 

district court resolved her motion. See id. R. 4(b)(2); Allred, 835 

P.2d at 977. Tenant filed a second notice of appeal on March 7, 

2016, within the 10-day window.3 Because Tenant filed her 

second notice of appeal within 10 days of the district court’s 

order disposing of the rule 59 motion, her appeal is timely, and 

this court has jurisdiction. See Utah Code Ann. § 78B-6-813(1).

II. Nature of the Action

¶12 Tenant’s contentions on appeal rely on provisions of the 

unlawful detainer statute. See Utah Code Ann. §§ 78B-6-807, -810 

(LexisNexis 2012). Landlord responds that Tenant “falsely claims 

 

2. The parties dispute whether this action is an unlawful detainer 

action. In part II of this opinion, we conclude that it is.

3. Because the last day of the 10-day period to file an appeal fell 

on a Sunday, the period extended to Monday, March 7, 2016. See 

Utah R. App. P. 22(a) (providing that in computing time to file 

an appeal, “[t]he last day of the period shall be included, unless 

it is a Saturday, a Sunday, or a legal holiday, in which event the 

period extends until the end of the next day that is not a 

Saturday, a Sunday, or a legal holiday”).
Mountain View Colonial Apartments v. Isais

20160184-CA 6 2017 UT App 104

that this case is an ‘unlawful detainer’ case.” Landlord asserts 

that Tenant “was evicted for nuisance violations under [Utah 

Code section] 78B-6-1107 and [Utah Code section] 78B-6-1108, 

for possessing, using, and allowing others, at the apartment she 

was renting from [Landlord], to possess and use unlawful 

drugs.” Thus, as a threshold matter, we must decide whether 

Landlord acted to evict Tenant under the unlawful detainer 

statute or under the nuisance statute.

4

¶13 “Utah’s unlawful detainer statute provides landowners 

with a summary remedy to recover possession of their property 

from their tenants who may be in violation of a lease provision.” 

Osguthorpe v. Wolf Mountain Resorts, LC, 2010 UT 29, ¶ 22, 232 

P.3d 999 (citation and internal quotation marks omitted). “The 

unlawful detainer statute is a summary proceeding” that 

“provides a severe remedy” and “must be strictly complied with 

before the cause of action may be maintained.” Sovereen v. 

Meadows, 595 P.2d 852, 853 (Utah 1979). “To be guilty of 

unlawful detainer, a party must be a tenant in possession of real 

property and must have violated a term of the lease, committed 

waste, remained on the property beyond the legal term of the 

lease, or engaged in any such acts enumerated in Utah Code 

sections 78B-6-802(1)(a)–(h)[.]” Osguthorpe, 2010 UT 29, ¶ 21. In 

an unlawful detainer action, a landlord may serve a tenant with 

a three-day summons and request an expedited evidentiary 

hearing at which the court may immediately order eviction. See 

Utah Code Ann. §§ 78B-6-807, -810. In sum, the unlawful 

detainer statute constitutes “a mechanism for quickly and clearly 

resolving conflicts over lawful possession of property between 

landowners and tenants.” See Osguthorpe, 2010 UT 29, ¶ 22.

 

4. We use “unlawful detainer statute” to refer generally to Part 8 

of Chapter 6 of Title 78B of the Utah Code, “Forcible Entry and 

Detainer.” We use “nuisance statute” to refer generally to Part 11 

of Chapter 6 of Title 78B of the Utah Code, “Nuisance,” 

including, in particular, sections 1107 through 1109 dealing with 

abatement by eviction.
Mountain View Colonial Apartments v. Isais

20160184-CA 7 2017 UT App 104

¶14 The nuisance statute allows any citizen residing in the

county where a nuisance is located to “maintain an action in a 

court of competent jurisdiction to abate the nuisance and obtain 

an order for the automatic eviction of the tenant.” Utah Code 

Ann. § 78B-6-1108(1) (LexisNexis 2012). “A nuisance is anything 

which is injurious to health, indecent, offensive to the senses, or 

an obstruction to the free use of property, so as to interfere with 

the comfortable enjoyment of life or property.” Id. § 78B-6-

1101(1). To obtain an order of abatement by eviction, the 

applicant must show and the district court must find four 

elements by a preponderance of evidence:

(1) the applicant will suffer irreparable harm 

unless the order of abatement by eviction 

issues;

(2) the threatened injury to the applicant 

outweighs whatever damage the proposed 

order of abatement by eviction may cause the 

party so ordered;

(3) the order of abatement by eviction, if issued, 

would not be adverse to the public interest; and

(4) there is a substantial likelihood that the 

applicant will prevail on the merits of the 

underlying claim, or the case presents serious 

issues on the merits which should be the subject 

of further litigation.

Id. § 78B-6-1109. 

¶15 We agree with Tenant that Landlord brought an unlawful

detainer action. The complaint mentions neither “unlawful 

detainer” nor “nuisance.” It states three causes of action—

eviction, breach of contract, and breach of the covenant of good 

faith and fair dealing. All three causes of action cite the unlawful 

detainer statute; the second and third also cite the nuisance 
Mountain View Colonial Apartments v. Isais

20160184-CA 8 2017 UT App 104

statute. The complaint alleges none of the four statutory grounds 

required for abatement by eviction. See id. Instead, the complaint 

alleges facts that could support an unlawful detainer: a nuisance 

on the premises, commission of a crime, and breach of the lease. 

See id. § 78B-6-802(f)–(h).

¶16 After filing the complaint, Landlord filed a “Motion for 

Order Immediately Evicting the Defendant” requesting “an

order of immediate eviction of the defendant as provided in 

[section] 78B-6-811,” the unlawful detainer statute. The 

accompanying memorandum asserted that, “pursuant to the 

provisions of [section] 78B-6-811”—again, the unlawful detainer 

statute—Landlord was “entitled to an order immediately 

evicting the defendant from the apartment.” Neither Landlord’s

motion nor its memorandum cited the nuisance statute, 

mentioned abatement by eviction, or alleged any of the statutory 

grounds to support an abatement by eviction.

¶17 At the eviction hearing, Landlord cited neither the 

unlawful detainer statute nor the nuisance statute. Instead, it

described the proceeding as “[b]asically, . . . a case of an eviction 

for . . . the use of drugs in the apartment in violation of the drug 

free contract.” The district court entered an order for immediate 

eviction. The order did not identify the unlawful detainer 

statute, the nuisance statute, or any other legal basis for the 

eviction, nor did it refer to any of the statutory factors that must 

be shown to justify an order of abatement by eviction. 

¶18 Tenant moved for a new trial or to amend the judgment 

under rule 59 of the Utah Rules of Civil Procedure. At the 

hearing on her motion, Tenant argued that the unlawful detainer 

statute could not support an eviction: “because you have no 

notice, there is no unlawful detainer, and you can’t get the 

remedies provided under the unlawful detainer statute because 

you have to strictly comply with the unlawful detainer statute.” 

Landlord responded that it did not need to strictly comply with 

the unlawful detainer statute because “[t]his is not an unlawful 

detainer case . . . . It’s a case of abatement of a nuisance under 
Mountain View Colonial Apartments v. Isais

20160184-CA 9 2017 UT App 104

78B-6-1107.” Tenant countered that the court could not order 

eviction under the nuisance statute because Landlord had made 

no attempt to show the four statutory requirements for an 

abatement by eviction. The court denied Tenant’s motion in a 

memorandum decision stating that it had granted a nuisance 

abatement by eviction under section 78B-6-1108. The 

memorandum decision did not refer to the four factual showings 

required by the nuisance statute. See Utah Code Ann. § 78B-6-

1109 (LexisNexis 2012).

¶19 Because Landlord relied predominantly on the unlawful 

detainer statute in its complaint, relied solely on the unlawful 

detainer statute in requesting an immediate eviction hearing, 

and made no attempt to prove any of the statutory prerequisites 

for abatement of a nuisance by eviction, we cannot agree with 

Landlord that Tenant “falsely claims” the proceeding is one for 

unlawful detainer. On the contrary, on balance we agree with 

Tenant on this point.5

¶20 The court’s rulings do not clear up the muddle. Its order 

of eviction is silent on the matter, and its later memorandum 

decision bolsters more than undermines our conclusion. That 

memorandum pays lip service to the nuisance statute but

ignores the statutory requirements for an abatement by eviction.

 

5. In 18 pages of argument, counsel for Landlord accuses Tenant 

of asserting falsehoods over 25 times. Yet, as we have concluded, 

Tenant’s claims were accurate. Thus, each of those 25 accusations 

of making false claims was itself false. See Utah R. Jud. Admin. 

14-301(3) (“Lawyers shall not, without an adequate factual basis, 

attribute to other counsel or the court improper motives, 

purpose, or conduct. Lawyers should avoid hostile, demeaning, 

or humiliating words in written and oral communications with 

adversaries. Neither written submissions nor oral presentations 

should disparage the integrity, intelligence, morals, ethics, or 

personal behavior of an adversary unless such matters are 

directly relevant under controlling substantive law.”).
Mountain View Colonial Apartments v. Isais

20160184-CA 10 2017 UT App 104

We thus proceed to Tenant’s contention that Landlord failed to 

comply with the unlawful detainer statute.6

III. Notice to Quit

¶21 Tenant contends that Landlord’s “failure to prove a notice 

to quit was served is fatal to its claim of unlawful detainer.” 

Tenant argues that the “notice that [Landlord] claims was taped 

to [Tenant’s] door is facially invalid,” because “[t]he notice of 

infraction did not state that [Tenant] must quit the premises, nor 

[did] it state [the] number of days within which she must leave.” 

Landlord responds that Tenant’s “assertion that she was not 

properly served with a notice to quit is not supported by the 

facts.”7

¶22 The unlawful detainer statute provides specific 

requirements for the notice to quit that a landlord must serve on 

a tenant prior to eviction. See Utah Code Ann. § 78B-6-802 

(LexisNexis 2012). Where the tenant “continues in 

possession . . . after a neglect or failure to perform any condition 

or covenant of the lease or agreement under which the property 

is held,” the landlord must provide a “notice in writing” 

requiring “in the alternative the performance of the conditions or 

 

6. We have concluded that this action is one for unlawful 

detainer in part because the district court did not require 

Landlord to prove, and Landlord made no attempt to prove, the 

four statutory requirements for an abatement by eviction. Thus, 

even if we agreed with Landlord that this action was one for 

abatement of a nuisance by eviction, these facts would compel 

the conclusion that the district court plainly erred in ordering an 

eviction in derogation of the clear text of the nuisance statute.

7. Although Landlord argues that Tenant has failed to marshal 

the evidence supporting the district court’s factual findings on 

the notice to quit, we are adjudicating Tenant’s challenge to the 

legal sufficiency of the notice to quit. 
Mountain View Colonial Apartments v. Isais

20160184-CA 11 2017 UT App 104

covenant or the surrender of the property,” i.e., that the tenant 

quit the premises, within “three calendar days after service.” See 

id. § 78B-6-802(h). This notice to quit must be “served upon the 

tenant and upon any subtenant in actual occupation of the 

premises.” Id. These notice requirements apply where, as alleged 

here, the tenant “suffers, permits, or maintains on or about the 

premises any nuisance,” “commits a criminal act on the 

premises,” or “fail[s] to perform any condition or covenant of the 

lease.” See id. § 78B-6-802(f)–(h).

¶23 In sum, “[t]he statutory procedure for an unlawful 

detainer claim mandates a three-day window for a tenant, 

served with notice, to either quit the premises or ‘save the lease 

from forfeiture.’” Osguthorpe v. Wolf Mountain Resorts, LC, 2010 

UT 29, ¶ 22, 232 P.3d 999 (quoting Utah Code Ann. § 78B-6-

802(2) (LexisNexis 2008)). The requirements for service of the 

notice to quit “must be strictly complied with in order to enforce 

the obligations imposed by [the statute].” Id. (alteration in 

original) (citation and internal quotation marks omitted). “Until 

the tenancy is terminated by proper notice to quit there is no 

unlawful detainer. The notice to quit is necessary to give rise to 

the cause of action.” Sovereen v. Meadows, 595 P.2d 852, 854 (Utah 

1979) (citation and internal quotation marks omitted). Therefore, 

“[w]hen it appears that the tenancy has not been terminated by 

proper notice, the court should dismiss the suit on the grounds 

that there is no cause of action.” Id. (citation and internal 

quotation marks omitted).

¶24 Here, the only “notice to quit” before the district court 

was the “Notice of Infraction” posted on Tenant’s door on 

August 4. This “Notice of Infraction” did not comply with the 

requirements for a notice to quit under the unlawful detainer 

statute. See Utah Code Ann. § 78B-6-802(h) (LexisNexis 2012). It 

contained no alternative demand that Tenant perform the 

conditions and covenants of the lease or surrender the property.

See id. And it did not demand that Tenant comply within three 

days of service of the notice. See id. On the contrary, it stated that 

“three notices of infraction shall be just cause for cancellation of 
Mountain View Colonial Apartments v. Isais

20160184-CA 12 2017 UT App 104

the residential lease and eviction of the resident.” (Emphasis 

added.) Far from informing Tenant that she was required to quit 

the premises, this notice informed her that she was not required 

to quit the premises—at least not yet.

¶25 Therefore, “because the statute was not strictly complied 

with, [Tenant] was not in unlawful detainer and [Landlord] was 

not entitled to maintain the unlawful detainer action against 

her.” See Sovereen, 595 P.2d at 854. Where, as here, “the tenancy 

[was] not terminated by proper notice, the court should [have] 

dismiss[ed] the suit on the grounds that there [was] no cause of 

action.” See id. (citation and internal quotation marks omitted). 

¶26 We therefore conclude that the district court erred in 

ruling that a proper notice to quit was served and in ordering 

eviction based on unlawful detainer. Accordingly, we reverse 

the eviction order.8

CONCLUSION

¶27 For the foregoing reasons, the eviction order of the district 

court is reversed.

 

8. Tenant also contends that the “notice was not given in 

compliance with federal regulations” and that the summons did 

not comply with legal requirements. “Because we have resolved 

the unlawful detainer issue on other grounds, we need not reach 

[those] argument[s].” Cf. Koerber v. Mismash, 2015 UT App 237, 

¶ 30 n.6, 359 P.3d 701 (declining to reach the notice-to-quit issue 

after resolving the unlawful detainer claim on the summons 

issue).