2014 UT App 291
_________________________________________________________
THE UTAH COURT OF APPEALS
WESTMONT RESIDENTIAL LLC AND TERRY FOOTE,
Plaintiffs and Appellants,
v.
BRAD BUTTARS AND SARAH MILLER,
Defendants and Appellees.
Opinion
No. 20130892-CA
Filed December 11, 2014
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 120900896
Charles A. Schultz, Attorney for Appellants
Brad Buttars and Sarah Miller, Appellees Pro Se
JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGES
GREGORY K. ORME and KATE A. TOOMEY concurred.
DAVIS, Judge:
¶1 Westmont Residential, LLC and Terry Foote (collectively,
Westmont) appeal the trial court’s dismissal of all of Westmont’s
claims against Brad Buttars and Sarah Miller (collectively,
Defendants). We affirm.
BACKGROUND
¶2 Defendants sought an early termination of their one-year
“Uniform Residential Rental Agreement” (the Rental Agreement)
to rent an apartment from Westmont. Westmont required
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Defendants to pay a $1,760 early-termination fee and prepared a
Notice of Intent to Vacate (the Notice) that identified September 29,
2011, as the day Defendants would vacate the unit and conduct a
move-out inspection with a Westmont employee. Defendants
signed the Notice but did not receive a copy of the Notice until
September 30, 2011.
¶3 On September 28, Westmont Residential’s manager, Terry
Foote, entered Defendants’ unit to investigate an odor reported by
another tenant in the same building. The complaining tenant also
reported that he had not seen Defendants for two weeks. Foote
knocked on Defendants’ door, and after no one answered, Foote
entered the unit without attempting to call Defendants. Inside, he
observed that most of Defendants’ belongings had been removed
from the unit and that the unit was “filthy.”
¶4 On September 29, a Westmont employee went to
Defendants’ apartment to conduct the scheduled move-out
inspection. Defendants were not there, and the employee
proceeded to enter the apartment without confirming whether
office personnel were able to contact Defendants. Defendants had
mistaken September 30 as the scheduled move-out and inspection
date.
¶5 On September 30, around 10:30 a.m., Defendants arrived at
the apartment intending to clean the unit and finish removing their
belongings. Instead, they found Westmont employees cleaning the
unit and boxing up Defendants’ property. Westmont refused to let
Defendants enter the unit to retrieve their property and instead
finished packing Defendants’ items, stored the boxes in a carport,
and demanded that Defendants pay a $100 “Packing and
Inventory” fee before Westmont would allow Defendants access to
their belongings. Defendants paid the fee and were allowed to
retrieve their items. Shortly thereafter, on October 19, 2011, Miller
posted a review in an online forum describing Westmont as
“‘crooks’” that “‘will take full advantage of you! Run from them!’”
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¶6 Westmont filed a complaint against Defendants seeking to
recover $2,169 in damages for the costs of cleaning and repairing
the unit, plus $216.90 as a “10% repair and cleaning miscellaneous
supplies charge.” Westmont also brought a claim for defamation
per se against Defendants arising out of the online review.
¶7 After a bench trial, the trial court denied all of Westmont’s
claims for damages, and in its ruling on Westmont’s post-trial
motions, the court noted that Defendants “genuinely believed that
they had another day to complete moving out,” particularly
because they “returned to the unit the next day in an attempt to
finish moving out, and had paid the entire months rent.” Therefore,
the court ruled that Defendants were not responsible for any of
Westmont’s alleged cleaning fees, because “Westmont prematurely
conducted the move-out inspection and began cleaning the
apartment without giving Defendants the opportunity to finalize
their move-out.” The court determined that Defendants were liable
for only $50 of Westmont’s alleged cost of repairs and reduced the
related 10% surcharge to $5. However, the court concluded that
Defendants’ liability for $55 in damages was offset by Westmont’s
impermissible charge of $100 for inventorying and packing
Defendants’ belongings. As a result, Westmont was awarded no
damages. The court also dismissed Westmont’s defamation per se
claim, concluding that Defendants’ “mere use of the word ‘crooks’”
did not justify “application of the defamation per se doctrine” and
that Westmont could not otherwise prove that it was actually
harmed by the online comment.
¶8 Westmont subsequently filed a motion to disqualify the trial
judge, a rule 59 motion to alter or amend the judgment, and a rule
60(b) motion for relief. All three motions were denied. Westmont
now appeals.
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ISSUES AND STANDARDS OF REVIEW
¶9 Westmont raises several issues on appeal. First, it challenges
the trial court’s finding that Defendants had not vacated the
apartment as of September 29. “Because a trial court is in a better
position to judg[e] credibility and resolv[e] evidentiary conflicts, an
appellate court reviews the trial court’s findings of fact for clear
error.” State v. Levin, 2006 UT 50, ¶ 20, 144 P.3d 1096 (alterations in
original) (citation and internal quotation marks omitted).
¶10 Next, Westmont argues that the trial court erred in
determining that Defendants’ online review did not constitute
defamation per se. “Because the existence of defamatory content is
a matter of law, a reviewing court can, and must, conduct a
context-driven assessment of the alleged defamatory statement and
reach an independent conclusion about the statement’s
susceptibility to a defamatory interpretation.” O'Connor v.
Burningham, 2007 UT 58, ¶ 26, 165 P.3d 1214.
¶11 Westmont also challenges the trial court’s denial of its rule
59 and rule 60(b) motions and the trial judge’s failure to recuse
himself before ruling on Westmont’s post-trial motions. Because we
determine that all three of these arguments are inadequately
briefed, we do not reach their merits. See Utah R. App. P. 24(a)(9).
ANALYSIS
I. Challenged Findings
¶12 Westmont first challenges the trial court’s determination
that “because Defendants had not vacated or given up possession
of [their unit] on September 29, 2011,” “Westmont did not have the
right to perform the move-out inspection at the time [it] did, [and]
. . . did not have the right to charge a $100.00 fee for packing and
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inventorying Defendants’ remaining belongings.” Westmont
approaches this issue from two angles. First, it asserts that the
Notice operated as an addendum to the Rental Agreement by
which the expiration date of the Rental Agreement was amended
to September 29, 2011. Thus, “when September 29, 2011, came and
passed, without [Defendants] appearing for the Move-Out
Inspection, they vacated” their unit by operation of the terms of the
amended Rental Agreement.
¶13 Second, Westmont argues that the nature of the items left
behind by Defendants proves that Defendants had vacated the unit
as of September 29, 2011. Westmont characterizes the items as
“trash” and “junk.” We address each argument in turn.
A. The Notice of Intent to Vacate Did Not Modify the Rental
Agreement.
¶14 The Rental Agreement provides, “This form constitutes the
entire agreement made between the parties and may be modified
only in writing signed by both parties.” Westmont’s argument rests
on its assumption that because the Notice was signed by both
Defendants and a representative of Westmont, the Notice
necessarily became an amendment to the Rental Agreement. The
trial court acknowledged that Defendants and a Westmont
representative signed the Notice, that the Notice scheduled the
move-out date and move-out inspection for 2:00 p.m. on September
29, 2011, and that the Rental Agreement could be modified by a
writing signed by both parties. Nonetheless, the court concluded
that the Notice was not a modification of the Rental Agreement.
¶15 “A valid modification of a contract . . . requires a meeting of
the minds of the parties, which must be spelled out, either
expressly or impliedly, with sufficient definiteness.” Richard Barton
Enters., Inc. v. Tsern, 928 P.2d 368, 373 (Utah 1996) (citation and
internal quotation marks omitted); see also Scott v. Majors, 1999 UT
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App 139, ¶ 16, 980 P.2d 214 (explaining that to “alter, or supplant
a contract fairly made,” “[t]he same meeting of the minds is needed
that was necessary to make the contract in the first place”
(emphasis, citation, and internal quotation marks omitted)). The
party claiming that there has been a modification to a
contract—here, Westmont—carries the “burden of proof for
showing the parties’ mutual assent” to the modification. See Harris
v. IES Assocs., Inc., 2003 UT App 112, ¶ 46, 69 P.3d 297.
¶16 In reaching its conclusion, the trial court relied on a
particular provision of the House Rules, a separate document
incorporated by reference into the Rental Agreement. The specific
provision cited by the court—paragraph 10 of part 1—requires
tenants to give up possession of the apartment before Westmont
can perform a move-out inspection. The provision states, “If the
Rental Unit is not officially vacated at the specified time, rent will
be charged until all keys have been surrendered, and a move-out
walkthrough is completed and signed by the resident and by
management or management’s representative.” The trial court
reasoned, “Nothing in this provision indicates that it does not
apply when a tenant does not vacate a unit prior to a scheduled
move-out inspection pursuant to a Notice of Intent to Vacate” and
“nothing in the Notice of Intent to Vacate purports to ‘modify’ this
provision.”
¶17 Westmont argues that the trial court’s reliance on part 1,
paragraph 10 of the House Rules is misplaced. It asserts that this
provision “undeniably” “is not intended to apply to a situation
where a tenant is not present for a scheduled Move-Out-
Inspection, and has not made any effort to reschedule the Move-
Out-Inspection,” and that the court’s interpretation creates an
untenable situation in which “all of Westmont’s apartments would
be empty, and Westmont would still be charging the tenants who
failed to attend the Move-Out[] Inspections rent, while Westmont
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is required to wait ‘until all keys have been surrendered, and a
move-out walkthrough is completed and signed.’”
¶18 We do not agree that the provision is “undeniably”
inapplicable here or that the trial court’s interpretation would
result in the scenario proposed by Westmont. And Westmont does
not otherwise direct us to any evidence or address any related legal
authority to support its position. Rather, it takes a broken-record
approach and simply repeats its conclusory argument that the
Notice amended the Rental Agreement because it comported with
the requirements established in the Rental Agreement’s integration
clause. Westmont’s repetition of its argument does not establish the
argument’s validity. Accordingly, Westmont has failed to show
error in the trial court’s ruling that the Notice did not modify the
Rental Agreement.1
B. Defendants’ Belongings Are Not Trash.
¶19 Next, Westmont argues that the items that remained in
Defendants’ apartment as of September 29 were of the quality and
type that, based on Westmont’s experience in the “industry,” are
often left behind by tenants that have abandoned their unit,
rendering the items “junk” and “trash.” As a result, Westmont
asserts that it was not required to wait until Defendants
“remove[d] all of their trash from” the unit before it could conduct
a move-out inspection or begin repairing and cleaning the
apartment. The trial court acknowledged Westmont’s
1. Westmont’s remaining arguments against the trial court’s
reliance and interpretation of other provisions in the House Rules
are dependent upon Westmont’s conclusion that Defendants had
vacated the unit. Because we affirm the trial court’s rulings to the
contrary, we need not address Westmont’s additional arguments
related to the House Rules.
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characterization of Defendants’ remaining belongings as “junk”
and concluded that regardless of whether Westmont “valued
Defendants’ possessions, the law does.” Cf. Martin v. City of
Indianapolis, 192 F.3d 608, 615 (7th Cir. 1999) (Manion, J., concurring
in part and dissenting in part) (recognizing in the context of public
art that, oftentimes, “one man’s junk is another man’s treasure”).
¶20 The court described the items in the apartment as carrying
“significant importance and expense, especially for a young newly
married couple.” Additionally, the court explained that
Westmont’s “complete disregard for the value of Defendants’
belongings” undermined Westmont’s credibility in “accurately
describ[ing] the state of the [apartment], or the amount of time it
took to clean it.” What’s more, the fact that Westmont took the time
to package Defendants’ belongings into boxes and the fact that
Defendants paid $100 to retrieve those boxes negates Westmont’s
assertion that the items left behind amounted to abandoned
garbage. As a result, Westmont has not convinced us that the trial
court’s rejection of this argument was clearly erroneous.
II. Defamation Per Se
¶21 Westmont next challenges the trial court’s conclusion that
Defendants’ statements in their online review of Westmont did not
constitute defamation per se. The trial court found, “On October 19,
2011, Miller posted a review on YAHOO! LOCAL stating her belief
that Westmont Properties, its management, and employees, were
‘crooks and will take full advantage of you! Run from them!’”
¶22 “Traditionally,” in order to constitute defamation per se, the
challenged statements must “be false and allege criminal conduct
on the part of the plaintiff . . . or conduct which is incongruous with
the exercise of a lawful business, trade, profession, or office.” Jacob
v. Bezzant, 2009 UT 37, ¶ 26, 212 P.3d 535 (citation and internal
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quotation marks omitted). A party does not need to plead special
damages in pursuing a defamation per se claim because damages
are presumed so long as the “injurious character” of the challenged
word is obvious. Western States Title Ins. Co. v. Warnock, 415 P.2d
316, 317 (Utah 1966). To determine if “a statement is capable of
sustaining a defamatory meaning,” the reviewing court “must
carefully examine the context in which the statement was made,
giving the words their most common and accepted meaning.” West
v. Thomson Newspapers, 872 P.2d 999, 1009 (Utah 1994). “‘A word is
not a crystal, transparent and unchanged, it is the skin of a living
thought and may vary greatly in color and content according to the
circumstances and the time in which it is used.’” Id. (quoting Towne
v. Eisner, 245 U.S. 418, 425 (1918)); see also Prince v. Peterson, 538
P.2d 1325, 1327–28 & n.4 (Utah 1975) (noting that “simply making
some general statement about another being a crook, or even using
profanity against [another] in a general way, may not be actionable
. . . depend[ing] on the circumstances”).
¶23 The trial court described Defendants’ post as an “obscure
online review” and stated that Westmont provided no evidence as
to how widely it was accessed, how long it was available on the
web, or how significantly, if at all, it differed from the “several
[other] postings on the internet critical of Westmont’s business
practices.” In light of that context, the court concluded that
Defendants’ “mere use of the word ‘crooks’” did not justify
“application of the defamation per se doctrine.” The court
recognized that the term “crooks” “could merely be a reference to
crooked behavior, not a direct violation of the criminal code,” or
that it “could be a term for a person that has taken advantage of
another,” which “many would agree describes Westmont’s
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conduct.”2 See West, 872 P.2d at 1007–08 (noting that the falsity of
a statement is an element of defamation).
2. For example, in its ruling on Westmont’s post-trial motions, the
trial court pointed out that Westmont attempted to collect fees for
cleaning three windows and window sills in the living room “when
the photographs of the living room . . . show that [only] one
window existed.” Indeed, because the truth of the allegedly
defamatory statements is a total bar to recovery on a claim for
defamation per se, it is also worth noting that this is not the first
time Westmont has been called a crook and pursued questionable
trial tactics, nor is it the first time Westmont has pursued a
defamation per se cause of action. See Westmont Mirador, LLC v.
Miller, 2014 UT App 209, ¶¶ 1 n.1, 5, (noting that former tenants’
online comment describing Westmont as “‘crooks’ and ‘scam
artists’” warranted nominal damages on a claim of defamation per
se purely as a result of the tenants’ default and recognizing that
“nominal damages are appropriate ‘when the insignificant
character of the defamatory matter, or the plaintiff’s bad character,
leads the [factfinder] to believe that no substantial harm has been
done to his reputation, and there is no proof that serious harm has
resulted from the defendant’s attack upon the plaintiff’s character
and reputation’” (alteration in original) (quoting Restatement
(Second) of Torts § 620 cmt. a (1977))); Westmont Mirador LLC v.
Shurtliff, 2014 UT App 184, ¶ 13, 333 P.3d 369 (observing that
Westmont failed in “its primary goal at trial,” which “was to
disprove ‘libelous statements’ that Westmont had forged the
[former tenants’] signatures on [a pet addendum]”); Westmont
Maint. Corp. v. Vance, 2013 UT App 236, ¶¶ 7 n.4, 22, 313 P.3d 1149
(recognizing that the trial court awarded attorney fees as a sanction
against Westmont for filing a defamation claim against an attorney
representing former Westmont tenants and noting the trial court’s
observation that the defamation case was an “‘egregious and
unwarranted use of legal process, a waste of judicial resources, and
an undue imposition upon’” the tenants’ attorney).
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¶24 We agree with the trial court. While we acknowledge that
the term “crooks” can carry a criminal connotation, in the context
of Defendants’ online review, the term is clearly not being used in
this manner. Indeed, given the context here of an online forum
intended for consumers to review local businesses, we are
convinced that “even the most careless reader [would] perceive[]
that the word [‘crooks’] was no more than rhetorical hyperbole.”
See Greenbelt Coop. Publ’g Ass'n v. Bresler, 398 U.S. 6, 14 (1970)
(addressing the term “blackmail”). And rhetorical hyperbole,
including “juvenile name-calling,” Krinsky v. Doe 6, 72 Cal. Rptr. 3d
231, 249 (Cal. Ct. App. 2008), is not defamatory because it cannot
“reasonably [be] interpreted as stating actual facts,” Hustler
Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988); see also Krinsky, 72
Cal. Rptr. 3d at 248–49 (concluding that posts in a heated internet
discussion that referred to one officer of a corporation as a “‘mega
scum bag,’” called other officers “cockroaches,” “‘boobs, losers and
crooks,’” and described another as having “‘fat thighs, a fake
medical degree, . . . and . . . poor feminine hygiene’” were vulgar
but not defamatory because “nothing in [the] post suggested that
the author was imparting knowledge of actual facts to the reader”).
¶25 In other words, “[e]xaggerated language used to express
opinion, such as ‘blackmailer,’ ‘traitor’ or ‘crook,’ does not become
actionable merely because it could be taken out of context as
accusing someone of a crime.” Hodgins v. Times Herald Co., 425
N.W.2d 522, 527 (Mich. Ct. App. 1988) (citing Greenbelt, 398 U.S. at
14). Accordingly, we affirm the trial court’s dismissal of
Westmont’s defamation per se claim.
III. Post-trial Motions and Recusal
¶26 Westmont also challenges the trial court’s denial of its rule
59 motion and its rule 60(b) motion and the trial judge’s failure to
recuse himself before ruling on the post-trial motions. The Utah
Rules of Appellate Procedure require an appellant “to clearly
define the issues and provide accompanying argument and
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authority[ because] a reviewing court is not simply a depository in
which the appealing party may dump the burden of argument and
research.” State v. Honie, 2002 UT 4, ¶ 67, 57 P.3d 977; see also Utah
R. App. P. 24(a)(9). All three of these challenges fail to satisfy our
appellate briefing rules.
¶27 Westmont’s challenge to the trial court’s denial of its post-
trial motions is based entirely on its repetition of its earlier
argument that Defendants had vacated the unit by September 29,
2011, per the terms of the Rental Agreement, as amended by the
Notice. Unsurprisingly, we are not persuaded by this encore
iteration of an argument we have already rejected. Engle v. Isaac,
456 U.S. 107, 146 (1982) (Brennan, J., dissenting) (noting that an
argument that was previously rejected as “offend[ing] common
sense,” “does not become less offensive by sententious repetition”
(internal quotation marks omitted)). Likewise, Westmont’s cursory
challenge to the trial judge’s failure to recuse himself before ruling
on Westmont’s post-trial motions is undeveloped and contains no
citations to relevant legal authority and record material. Because
these arguments do not satisfy our briefing requirements and
accordingly cannot carry Westmont’s burden to show error, we do
not address them further. See Utah R. App. P. 24(a)(9).
CONCLUSION
¶28 The trial court’s findings supporting its conclusion that
Defendants had not vacated their apartment as of September 29,
2011, are not clearly erroneous. Likewise, Defendants’ use of the
term “crooks” in an online review does not constitute defamation
per se. Westmont’s remaining arguments concerning its post-trial
motions and the trial judge’s obligation to recuse himself from
ruling on those motions are inadequately briefed. Accordingly, we
affirm.
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