2014 UT App 209
_________________________________________________________
THE UTAH COURT OF APPEALS
WESTMONT MIRADOR, LLC AND TERRY FOOTE,
Plaintiffs and Appellants,
v.
JOSHUA MILLER AND BRAD NELSON ,
Defendants and Appellees.
Memorandum Decision
No. 20130985-CA
Filed September 5, 2014
Second District Court, Ogden Department
The Honorable Scott M. Hadley
No. 120900895
Charles A. Schultz, Attorney for Appellants
Joshua Miller and Brad Nelson, Appellees Pro se
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES JAMES Z. DAVIS and JOHN A. PEARCE concurred.
ORME, Judge:
¶1 Westmont Mirador, LLC and Terry Foote (collectively,
Westmont) challenge the district court’s award of only nominal
damages to Westmont after the court determined, in the context of
entering default judgment against defendants Joshua Miller and
Brad Nelson, that certain online comments made by Miller and
Nelson about Westmont constituted defamation per se.1 We affirm.
1. As noted by the district court, “the only reason there may be
defamation is not because of the evidence but because of the
default.” Specifically, the allegations of the complaint stood
unrefuted because Defendants did not answer the complaint in
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Westmont Mirador v. Miller
¶2 In order to constitute defamation per se, the words used
must fit within one of a handful of well-established categories. See
Baum v. Gillman, 667 P.2d 41, 43 (Utah 1983). At issue in this case
are words that “charge . . . conduct that is incompatible with the
exercise of a lawful business.” Id. Ordinarily, to establish a claim for
defamation, a plaintiff must demonstrate, inter alia, that “the
statements resulted in damages.” DeBry v. Godbe, 1999 UT 111, ¶ 8,
992 P.2d 979. However, when defamatory words are actionable per
se “the law presumes conclusively that damage has followed, and
the plaintiff need neither allege nor prove it.” Nichols v. Daily
Reporter Co., 83 P. 573, 574 (Utah 1905) (citation and internal
quotation marks omitted).
¶3 The district court concluded that Miller’s and Nelson’s
online comments about Westmont, as alleged in Westmont’s
complaint, constituted defamation per se and awarded Westmont
one dollar as nominal damages. It declined to award compensatory
or punitive damages. Westmont argues that because damages are
presumed in cases of defamation per se, the district court was
required to award Westmont damages sufficient to discourage
future defamation. “Whether the district court applied the correct
rule for measuring damages is a question of law,” and we review
its decision for correctness. Mahana v. Onyx Acceptance Corp., 2004
UT 59, ¶ 25, 96 P.3d 893.
¶4 Westmont has failed to support its argument “with citations
to the authorities, statutes, and parts of the record relied on.” See
Utah R. App. P. 24(a)(9). “Implicitly, rule 24(a)(9) requires not just
bald citation to authority but development of that authority and
reasoned analysis based on that authority.” State v. Thomas, 961
P.2d 299, 305 (Utah 1998). Westmont’s brief “identifies no rule of
law that the district court allegedly violated” in awarding only
1. (...continued)
timely fashion. In pertinent part, the complaint alleged that Miller
and Nelson referred to Westmont as “crooks” and “scam artists.”
20130985-CA 2 2014 UT App 209
Westmont Mirador v. Miller
nominal damages and does not go beyond “bald citation” to cases
generally discussing the doctrine of defamation per se. See Simmons
Media Group, LLC v. Waykar, LLC, 2014 UT App 145, ¶¶ 37–38. “An
inadequately briefed claim is by definition insufficient to discharge
an appellant’s burden to demonstrate trial court error,” id. ¶ 37,
and we therefore conclude that Westmont “has failed to carry its
burden of persuasion on appeal,” see id. ¶¶ 37, 40.
¶5 Additionally, Westmont’s primary argument flies wide of
the mark. In a case of defamation per se, presumed damage does
not mean that the court or a jury must award substantial monetary
damages. Rather, it is a procedural mechanism that relieves a
plaintiff of its burden of proving damages as an element of its
prima facie case. See Nichols, 83 P. at 574 (noting that in cases of
defamation per se, “the plaintiff need neither allege nor prove”
harm) (citation and internal quotation marks omitted). Thus, even
when the district court presumes harm in cases involving
defamation per se, the court is not required to presume any
particular amount of damages beyond nominal damages. See
Restatement (Second) of Torts § 620 (1977) (“One who is liable for
a slander actionable per se . . . is liable for at least nominal
damages.”). For example, 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.” Id. § 620 cmt. a.
¶6 Affirmed.
20130985-CA 3 2014 UT App 209