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 odorreported 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 entiremonths rent.” Therefore,

the court ruled that Defendants were not responsible for any of

Westmont’s allegedcleaning 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 determinedthat 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 theword‘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 issuesonappeal. 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 allegeddefamatorystatement 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

himselfbefore 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 inspectionfor 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 orimpliedly, 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-OutInspection, and has not made any effort to reschedule the MoveOut-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 establishedintheRental Agreement’s integration

clause. Westmont’s repetition of its argument does not establishthe

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.” See West, 872 P.2d at 1007–08 (noting that the falsity of

2

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, orthe 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 posttrial 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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