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Show PAGE THI FOUR FRIDAY, MARCH 9, 1973 DAILY RECORD T In The Supreme Court Of The State Of Utah E. A. Russell and Martell . Russell, Plaintiffs and Respondents, Park City Utah Corporation, a corporation, et al. Defendants and Appellant. CROCKETT. Leas; equip - Chilian Electric 11350 8 . 500 W. Sandy to IMA Leas; equip 192 FILED February 28, 357- 191 - Joya Porter, 4660 Woodduck Lane SLC to PA No. 12879 v. Financing Statements 1973 - Lynn G. Hagen Painting & Decorating, 1244 $. 3770 8 SLC to F A Leas ; equip 193 L. M. Cummings, Clerk 194 - I & I Equipment 150 E. 7th 8. SLC to Justice: Plaintiffs Russells, lessors of approximately 2,000 acres of land used as a skiing resort located near Park City, Utah, sued their lessee, .(fefendant Park City Utah Corporation, seeking termination of their lease for nonpayment of rent, and for liquidated damages. Upon the basis of the plead ings,- depositions and documentary evidence the trial court granted plaintiffs1 motion for summary judgment. Defendant lessee appeals. Inc. F 'A Leas; equip F'-'- Leas; equip - Plaintiffs and defendant's predecessor in interest entered into a tenyear lease with option to purchase on March 31, 1967. Lessee was required to pay rental of $2. 50 per acre per year ($4, 855. 20) for the use of land to be developed as a skiing area. This annual rental payment is due November 1st of each year (the middle of the lease year). The lease contains the usual provisions for forfeiture for failure to keep its covenants. But Paragraph VIII states: No default of Lessee in any of the provisions hereof shall constitute a basis for forfeiture of this lease unless &e same shall continue for more than forty-fiv- e (45) days (Defendant's brief acknowledges that the notice was in fact received, but contends that it was sometime after April 1st. ) Without burdening this decision with the detail as to this dispute of fact, we observe: that even though there is a photocopy of a receipt for certified mail signed Park City Utah Corporation, by one "La la Gallegos" on March 12, 1971, we do not regard the evidence as necessarily compelling a finding that the defendant corporation received the notice on that date. The second and more important obstacle to plaintiffs' position is that the notice does not comport with the covenant in Paragraph VIII of the lease quoted above which provides for 45 days' written notice of default and such "further time as is reasonably necessary to cure the same. " The notice treated the 45-drequirement as absolute. And it made no allowance for any "further reasonable time" which the covenant allowed in which to remedy the default. What constitutes a "reasonable time" is a question of fact to be determined from all of the attendant circumstances. What has been said above concerning this notice and the service thereof should be considered in light of the general rule that one who seeks to invoke a forfeiture must strictly comply with the prerequisites thereof because forfeitures are not favored in the law. It should be obvious that there is a disputed material issue upon Which the defendant is entitled to a trial. ay - Central Ave. E. R. A. H. S. 13th E. Leas; equip 1955 P 3. is Holtcoff, S- - ManagSLC to 166 - ohnny Quong, 54 W. 2nd to Hobard ifg. Co; equip 2J4 - Ralph A. Brlnghurst, 1215 W. 400 N. SLC To Val Bk Tr; equip hhg 487-071- RECEPTIONIST: Plush opening in old line firm, must be sharp and personable to meet and greet in business office. $400 mo. up. Call Pat Rogers Snelling A Snelling. SECRETARY: $600 mo., excel career oppty., sophisticated, attractive person, boss pays parking, insurance, etc., call Ruth Hayes Snelling A Snelling. DOCS EC: Group of Docs need organized, exp., sharp and pretty secretary to help them. Type, $510 call Donna Snelling A Snelling. HOI SECRETARY WANTS WORK Experienced legal see. avail, for temp. work on short notice. $3J0hr., min. Refs, avail any time. Round Trip Plus these charter firsts r. 466-631- 9 DC-1- 0 Uh 2d 124, 427 P.2d 390; Barron Procedure, Sec. 1231. Jet Service Operated by TIA Movies Stereo Wide Body Comfort Smoking & Sections More Arm & Leg Room Sait Lake's First DC-1-0 Charter in-fli- To reach OFFICE BUSINESSMANS the the ATTORNEYS OFFICE use THE DAILY RECORD Dl&TY Help has arrived for your BUILDING, OFFICE HOME OR APARTMENT e e e e e Low Cost Maintenance A Janitorial Service Service No job too big or small . Reliable, professional service 20 years experience We ore bonded and Insured against liability 24-H- r. lallMaSaa HVmMTVI COMPANY, INC. SnSloif SeHleheCHy 1SS Sooth WAUSRBANKARO Corp- - Fenny Ann 1663 $475.00 mo. Super job for bookkeeper with experience in general ledger work. 1 Call Sue Hart Snelling A Snelling. A - W. & Northvood Ave. Beemlller, SLC to Nationwide Fin. Co; Non-smoki- ng subject to possible increase of no more than 20 percent ($334.80) based on total number of seats sold and includes $51 service charge. (Regulations require the charter to be canceled if the pro rata charter prices increases by more than 20 percent over the minimum.) Reservations must be received no later than 95 days prior to departure. Exclusive agent for United Charters, This fare Inc. MURDOCK TRAVEL 14 8. Main 8L Salt Laka City, Utah 14101 (801) 521-7IS0 Please send me your Charter Brochure. KLEEN-EM-U- P R2d 2,Si to Centu5y SLC 322-311- 3 LeGr,nd John,on W Fn. SLC Co; hhg CREDIT YOUR ACCOUNT with Ellett, Justice p.; S. 17th S. EMPLOYMENT OFFERED M henna Say ySaysewosh ! Anac0nd Federal Practice li to - Sally Schuller, 2305 221 235 - Harry Ml far Clevenger v. Potlatch Forests, Inc., 85 Idaho 193, 377 F. 2d 794 (1963) .h 220 - Dayle C. & Betty Waah- bum, 7736 Sandra Way, Mdvla to Century Fin. Co;, fura CLASSIFIED AD VFVD 3x ioop.nm: il6. uuh ,M' 218 - Ralph C. & Jamie ciuemel, 4491 W. 4715 S. Kras to Century Fin. Co; hhg 214 - Edvard B. & Phylls Welch, 4393 W. 5615 S. Krns to Century Fin Co; hhg Callister, Jr. , Chief Justice Henriod, Justice, concurs in the result. 2. SLC - Health Services R. L. Tuckett, Justice 1. yo Leas; equip occurred. WE CONCUR: SLC Bether Trucking Co Ray W. In view of the conclusion just stated that there should be a trial, we deem it appropriate to note the existence of other issues raised by defendant which may demand attention, depending on how the primary issues we have discussed are resolved. We do so without suggesting how the facts may be found, and without giving any extensive consideration to those issues in this decision. One of these relates to the controversy which may or may not become pertinent concerning plaintiffs' entitlement to the "liquidated damages" provided for in the lease. The other is the defendant's contention that the option to purchase the property contained in the agreement is severable and could be exercised independent of any forfeiture that may or may not have The fundamental and controlling rule in this case is that summary judgment should be granted only when it clearly appears that there are no issues of material fact in dispute which if resolved in favor of the adverse party would entitle him to prevail. Applying that rule to what we have said herein it is our opinion that there should be a plenary trial and resolution of ,all of the issues tendered by the parties to fills lawsuit. It is remanded for .'that purpose. Costs to defendant (appellant). 217 - Ralph C. & Jamie Bluemel, 4491 W. 4715 S. Krns to Century Fin. Co; hhg 232 Union, Box 2458, FMA Leas; equip FMA Two difficulties exist with respect to plaintiffs' contention. The first is that the burden was upon the plaintiffs, who are relying on the notice to invoke the forfeiture, to prove service of the notice on die defendant, but the defendant has denied receiving the notice on that date. IMA 200 - American Postal Workers ement, Defendant, Park City Utah, failed to make the annual rent payment to equip 202 of $4,855.20 on November 1, 1970. Subsequent to certain communications not material here, on March 11, 1971, the plaintiffs assert that their attorney mailed a letter to the defendant stating that the rent was past due and that unless payment with interest was received "on or before 45 days from the receipt of this notice, lessors shall consider this lease terminated and cancelled. " The position taken by the plaintiffs is that die mailed notice must have been received by the defendant on die next day, March 12th; and that consequently, on exactly 45 days thereafter, that is, on April 27, 1971, the forfeiture of the lease became an accomplished fact and entitled plaintiffs to possession of the property. Lauderman, SLC 199 - Kelsch Creatl e Arts, 74 Virginia SLC to FMA Leas; FMA necessary to cure fee same. Lessee shall quit and surrender the premises to Lessors . . . Emphasis added. & E. S. Temple, Leas; equip 201 165 after written notice to Lessee specifying of what the default consists, and in the event Lessee fails to correct said default within such further time as is reasonably - Suamerhays 216 - Fred D. & Linda Delley, 4831 W. 4865 S. Krns to Century Fin. Co; hhg 219 - Wendell & Lorna Terry, 2521 Eastbourne Dr. SLC to Century Fin. Co; camper 195 - Quasar Computer Corp 63 W . Truman Ave. SLC to 197 136 215 - Sheldon G. & Ho Rolfe, 5385 S. 4420 W. Erne to Centum Fin. Co; furn accsma coy . |