Newport Pacific Capital Co. v. Waste

878 P.2d 136, 18 Brief Times Rptr. 1055, 1994 Colo. App. LEXIS 176, 1994 WL 265132
Colorado Court of Appeals·Decided June 16, 1994·No. 93CA0635·Published·Cited by 18 cases

Opinion

Opinion by

Judge ROY.

This is an unlawful detainer action commenced by the plaintiff, Newport Pacific Capital Company, Inc., against the defendant, Michael Waste, alleging violation of mobile home park rules. Waste appeals from an adverse judgment of the trial court finding that a rule prohibiting the rental of mobile home units or the subleasing of mobile home spaces was not unreasonable under § 38—12—203(1)(c), C.R.S. (1993 Cum.Supp.) and awarding Newport its attorney fees and costs. We remand for additional proceedings on the amount of attorney fees awarded to Newport.

Newport, a management company, operates a mobile home park near Vail, Colorado, known as “The Aspens.” On July 21, 1992, pursuant to § 38-12-203(1)(e), Newport issued a rule that prohibited rental of mobile home units and the subleasing of spaces effective on October 1, 1992.

Newport did not enforce the rule against owners who had pre-existing subleases or who entered into new subleases before its effective date. Waste, however, re-rented his mobile home units after October 1, 1992. Newport served a notice to quit upon Waste on November 24, 1992, for failure to comply with the rule prohibiting rentals and then commenced this action.

Waste challenged the rule prohibiting rentals on the basis that it was prima facie unreasonable under § 38—12—203(1)(c). The trial court concluded that the rule was not “economically unreasonable” and entered judgment for Newport for possession of Waste’s lot spaces and attorney fees and costs.

I.

Waste first contends the trial court erred in concluding that the rule promulgated by Newport was reasonable. We disagree.

Section 38—12—203(1)(c) establishes reasons for terminating a tenancy in a mobile home park and provides, in pertinent part, as follows:

Failure of the home owner to comply with written rules and regulations of the mobile home park either established by the management in the rental agreement at the inception of the tenancy, ... or amended subsequently thereto without the consent of the home owner on sixty days’ written notice if the amended rules and regulations are reasonable.... For purposes of this paragraph (c), when the mobile home is owned by a person other than the owner of the mobile home park, the mobile home is a separate unit of ownership, and regulations which are adopted subsequent to the unit location in the park without the consent of the home owner and which place restrictions or requirements on that separate unit are prima facie unreasonable.

This section creates a rebuttable presumption that a rule adopted subsequent to the inception of the tenancy without the consent of the home owner is unreasonable and the mobile home park owner or manager has the burden of overcoming that presumption.

*139 Section 38-12-214(1), C.R.S. (1982 Repl. Vol. 16A) provides that rules and regulations issued by a mobile home park owner are enforceable against a resident only if:

(a) Their purpose is to promote the convenience, safety, or welfare of the home owners, protect and preserve the premises from abusive use, or make a fair distribution of services and facilities held out for the home owners generally;
(b) They are reasonably related to the ■purpose for which they are adopted;
(c) They are not retaliatory or discriminatory in nature;
(d) They are sufficiently explicit in prohibition, direction, or limitation of the home owner’s conduct to fairly inform him of what he must or must not do to comply.

The court found and concluded that:

Plaintiffs amendments to its rules and regulations are in fact reasonable and based upon a reasonable classification and, specifically, that they do not violate C.R.S. 38-12-203(1)(c) and C.R.S. 38-12-214 and are not discriminatory. To the contrary, the Court specifically finds that the' purpose of the rule was to promote the convenience, safety and welfare of the homeowners in the park.

The court also concluded that the rule was not economically unreasonable.

Waste, in essence, argues that the court’s factual findings do not, as a matter of law, support its conclusion that the rule promulgated by Newport is reasonable. However, because Waste did not designate the transcript of the trial or the exhibits as part of the appellate record, we must presume that the evidence supports the findings of fact, and, absent a misapplication of the law, we may not disturb those findings. Teets v. Richardson, 131 Colo. 592, 284 P.2d 233 (1955); White v. Jackson, 41 Colo.App. 433, 586 P.2d 243 (1978).

In determining that the rule was reasonable, the court took into consideration not only the evidence presented but also the requirements of § 38-12-214. Therefore, based on the arguments presented, we are unable to conclude that the trial court erred as a matter of law in finding that the rule was reasonable.

II.

Waste next contends that the rule promulgated by Newport is unreasonable because it violates due process and constitutes a denial of equal protection of the law. Waste argues that the trial court’s action in upholding the rule was an unreasonable governmental interference with the use and enjoyment of his property. We conclude that Waste’s argument is misconceived.

Due process and equal protection of the law apply to prevent the deprivation of “rights” by the state, but not, as here, to limit private conduct abridging individual rights. See National Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 109 S.Ct. 454, 102 L.Ed.2d 469 (1988).

To the extent that Waste asserts that § 38-12-203(1)(c) is unconstitutional as applied, we conclude from the limited record on appeal that he failed properly to raise this argument in the trial court, and thus, we are precluded from addressing it on appeal. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721, fn. 5 (Colo.1992); Bush v. Roche Constructors, Inc., 817 P.2d 608 (Colo.App.1991).

We also reject Waste’s contention that the issue was raised in the trial briefs of both parties by the assertion that the nde places an “unreasonable restraint on alienation.” That assertion did not, and could not be expected to, put the trial court on notice that he was challenging the constitutionality of the statute as applied.

III.

Lastly, Waste contends that the trial court’s award of attorney fees and costs is excessive and should be reduced. We remand for additional proceedings.

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Newport Pacific Capital Co. v. Waste, 878 P.2d 136, 18 Brief Times Rptr. 1055, 1994 Colo. App. LEXIS 176, 1994 WL 265132 (Colo. Ct. App. 1994).

878 P.2d 136 (Newport Pacific Capital Co. v. Waste) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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