2014 UT App 291

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### T H E 

### U TA H 

### C O U RT O F 

### A P P E A L S

W E S TMO NT R E S I D E NT I AL LLC AND T E R R Y F O OT E, Plainti ffs and Appellants,

v. B R AD B UTTARSAND S AR AH M I L L E R

, Defendants and Appellees.

Opin i on No. 20130892-CA Filed D ecember 11, 2014

Second Di stric t Co urt, O gden Department The Honorable Ernest W. Jones No. 120900896
Charles A. Schultz, Att or ney for Appellants
Brad Buttar s and Sarah Miller, Appellees P ro Se
J UD G E J AM E S Z. D AVI Sauthore d thi s Opini on, i n whi ch J UD G E S G RE G OR

Y K. O R M Eand K AT E A. T O OM EY concu rr ed.

DAVIS, Judge:

¶1 Westmont R e si denti al, LLC and Terry Foo te (collecti vely , Westmont) appeal the tr ia l co ur t’s di smi ssal of all of Westmont’s clai ms again st Brad Buttar s and Sar ah Mill er (collecti vely , Defendan ts). We affi rm.

BACKGRO UND
¶2 Defendan ts sought a n early ter minati on of their one-year “Uni form Resi denti al Rental Agr eement” (the Rental Agr eement) to rent a n apartment from Westmont. Westmont requiredWestmont v. Butt ars

Defendan ts to pay a $1,760 early -term inati on fee and prepar ed a Notice of Intent to Vacate (the Notice) that i denti fi ed Sept ember 29, 2011, as t he day Defendan ts would v acate the uni t and conduc t a
mo v e-out inspec tion wi th a Westmont employee. Defendant s si gned the Notice but di d no t receive a copy of the Notice unti l Sept ember 30, 2011.

¶3 On Sept ember 28, Westmont Reside nt i al’s manager, Terry Foo te, enter ed Defendan ts’ uni t to investigate an odor repo rt ed by another tenant in t he same b ui lding. The complaining tenant also repo rt ed that he had not seen Defendan ts fo r t wo weeks. Foo te knocked on Defendan ts’ door , and after no one answ er e d , F o ote enter ed the u ni t w i thout attempting to call Defendan ts. Insi de, he observe d that most of Defendan ts’ belongings h ad been remove d from the uni t and that t he uni t was “fi lthy.”

¶4 On Sept ember 29, a Westmont employee went to Defendan ts’ apartment to conduc t the sch eduled mo v e-out inspec tion. Defenda nt s were not there , and the employee p ro ceeded to enter the apartment wi thout confi rmi ng whether offi ce personnel were ab le to contact Defendan ts. Defendan ts had mi staken Sept ember 30 as the sch eduled move-out and inspec tion date.

¶5 On Sept ember 30, aro und 10:30 a.m., Defendan ts arr i ved at the apartment intending to clean the uni t and fini sh remov ing their belongin gs. Instead, they found Westmont employees cleaning the uni t and boxing up Defendan ts’ proper ty. Westmont refused to let Defendan ts enter the uni t to ret rieve their p r oper ty and instead fini shed packing D efendants’ i tems, stor ed the boxe s in a carpor t,
a nd d e manded that Defendan ts pay a $100 “Packing and Invent or y” fee before Westmont would allow Defendan ts acces s to t he ir belongin gs. Defendan ts pai d the fee and were allowed t o ret rieve their i tems. Shor tly there after, on October 19, 2011, Mill er pos t e d a rev i ew in an onli ne forum describing Westmont as “‘croo ks’” that “‘wi ll take full advantag e of you! Run from them!’”

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¶6 Westmont fi led a complaint again st Defendan ts seeking to
recov er $2,169 in damages for the costs o f cleaning and repairing the uni t, plus $216.90 as a “10% repair and cleaning mi scell aneous supp li es charge.” Westmont also brough t a clai m for defamati on per se agains t Defendants ari sing out o f the online rev i ew.
¶7 After a benchtr i al, the tr i al court denied al l of Westmont’s clai ms for damag es, and in i ts ruli ng on Westmont’s post-tr i al motions, the court noted that Defendan ts “genuinely beli eved that they had another d a y to complete moving out,” particu larly be ca us e t hey “ret urned to the uni t the next day in an atte mpt to fini sh moving out, and had pai d the enti re m onths rent.” Therefore , the cour t r ul e d that Defendan ts were not responsi ble for any of Westmont’s alle ge d c l e a nin g fe e s, b e c a u s e “ W e s tm ont premature ly conduc ted the move-out inspec tion and began cleaning the apartment wi thout giving Defendants the oppor tuni ty to finali ze their move-out .” The court deter min e d that Defendan ts were li able for only $50 of Westmont’s alleged cost of repairs and reduced the

re l a t ed 10% surcharge to $5. However , the court conclu ded that Defendan ts’ li abi li ty for $55 in damages was offset by Westmont’s i mpermi ssi

ble charge of $100 for invento ry ing and packing Defendan ts ’ belongin gs. As a result, Westmont was awarded no damages. The court also di smi ssed Westmont’s defamati on per se clai m, conclu ding that Defendan ts’ “mere use of the w or d ‘c ro oks’” di d not justif

y “appli cati on of the defamati on per se doctrine” and that W e stmont could not other wi se prov e that i t was actually harmed by the online c omment.
¶8 Westmont sub sequently fi led a motion to di squali fy the tr i al judge, a rule 59 motion to alter or amend the judgment, and a rule 60(b) motion for relief. All three motions were deni ed. W estmont now appeals.

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ISS UES AND STANDARDS O F REVIEW
¶9 Westmont rais es several i ssu e s on appeal. First, i t challen ges the tr i al court’s fin d ing that Defendan ts had not vacated the apartment as o f S eptember 29. “Becaus e a tr i al court i s in a better posi tion to judg[e ] c re d i b i l i ty and resolv [e] evidenti ary confli cts, an appellate court rev i ews the tr i al court’s findings of fact for cl e ar
err or .” State v. Levin , 2006 UT 50, ¶ 20, 144 P.3d 1096 (alterat i ons in
or i gin al) (c i tation and internal quot ation marks omi tte d).

¶10 Next, Westmont arg ues that the tr i al cour t err ed in deter mining that Defendan ts’ onli ne rev i ew di d not cons t it ut e defamati on per se. “Becaus e the exis tence of defamatory content i s
a matter of law, a rev i ewin g co ur t can, and mus t, conduc t a context -dri ven asses sment of the a l l e ge d d e f a m a to ry s ta te m e nt a nd reach an independent conclu si on about the state me nt’s

sus ceptibi li ty t o a defamatory interpr etat i on.” O'Connor v. Burni ngham , 2007 UT 58, ¶ 26, 165 P.3d 1214.

¶11 Westmont also challenges the trial c ourt ’s deni al of i ts rule 59 and rule 60(b) motions and the tr i al judge’ s fai lure t o r ecus e hi m s e l f b e for e ru ling on Westmont’s post-tr i al motio n s
. B e c a u s e w e deter mine that all three of th e se arg uments are inadequately bri efed, we do n ot reach their merits. See Utah R. App. P. 24(a)( 9).

ANALYS IS
I. Challenged Findings
¶12 Westmont fi rst challen ges the tr i al court’s d e ter minati on that “becau se Defendan ts had not vacated or given up possess i on of [thei r uni t] on Sept ember 29, 2011,” “Westmont di d not have the right to perfor m the move-out inspec tion at the tim e [i t] di d, [and]

. . . di d not have the right to charge a $100.00 fee for packing and

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invento ry ing Defendan ts’ remain ing belongin g s.” Westmont approaches thi s i ssu e from two angles. F irst, i t asserts that the Notice oper ated as an addendum to the Rental Agr eement by whi ch the expi rat i on date o f the Rental Agr eement was amended to Sept ember 29, 2011. Thus, “when Sept ember 29, 2011, came and pass ed, wi thout [Defendants] appearing for the Mov e-Out Inspecti on, they vacated” their uni t by oper ation of the ter ms of the amended Rental Agr eement.
¶13 Second, Westmont arg ues that the nature of the i tems left behind by Defendants prov es that Defendants had vacated the uni t
as of Sept ember 29, 2011. Westmont characterizes the it e ms as “tr ash” and “junk.” We addr ess each argument inturn.

A. The Notice of In t e nt to Vacate Di d Not Modify the Rental Agr eement.
¶14 The Rental Agr eement prov i des, “Thi s form consti tutes the entire ag reement made bet ween the parties an d may be modi fi ed only in wri tin g si gned by both parties.” W e s tm ont’ s a rg ument rests
o n i ts assu mpti on that becau se the Notice was si gned by bo t h Defendan ts and a repr esentative of W estmont, the Notice

necess arily becam e an ame nd ment to the Rental Agr eement. The tr i al court acknowledged tha t De fendants and a Westmont repr esentative si gned the Notice, that t he Notice sch eduled the move-out date and move-out in s p e c ti on for 2 :00 p.m. on Sept ember 29, 2011, and that t he R e nt a l Agr eement could be modi fi ed by a wri tin g si gned by both parties. Noneth e l e ss , the court conclu ded that t he Notic e was n ot a mo di fi cati on of the Re ntal Agr eement.
¶15 “A valid modi fi cati on of a contract

. . . requires a meetin g of the minds of the p a r t ie s, whi ch mus t be spelled out, ei ther expr essly or i mpli edly, wi th suffi ci ent defini teness.” Richard Barto n Enters., Inc. v. Tsern, 928 P.2d 368, 373 (U tah 1996) (ci tation and internal quotat i on marks omi tte d); see also Scott v. Majo rs, 1999 UT

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App 139, ¶ 16, 980 P .2d 214 (explaining that t o “alter , or supp lant

a contract fai rly made,” “[t]he same meetin g of the minds i s needed that was necess ary to mak e t he contract in the fi rst place” (emphas i s, ci tation, and internal quotat i on marks omi tte d)). The party cl a i ming that there has been a modi fi cati on to a contract—her e, Westmont—carr i es the “burde n of proo f for showing the parties’ mutual assen t” to the modi fi cati on. See Harris v. IES Assocs., Inc. , 2003 UT App 112, ¶ 46, 69 P.3d 297.

¶16 In reaching i ts conclu si on, t he tr i al court relied on a particu lar prov i si on of the House Rules, a separate document incorpor ated by refer ence into the Rental Agr eement. The speci fi c prov i si o n ci ted by the court—par agr aph 10 of part 1—requires tenants to give up p o ssessi on of the apartment before Westmont

can perfor m a move-out inspec t io n. The prov i si on states, “If the Rental Unit i s not offi ci ally vacated at the speci fi ed tim e, rentwi ll be charg ed unti l all k eys have been surr ende red, and a move-out walkthro ugh i s completed and si gned by the resi d e nt and by management or management’s repr esentative.” The t r ial court
reas o ne d , “Nothing in thi s prov i si on indi cates that i t does not apply when a tenant does not vacate a uni t prior to a sch eduled move-out inspec tion pursuant to a Notice of Intent to Vacate” and “nothin g in the Notice of Intent to Vacate purpor ts to ‘modi fy’ thi s prov i si on.”
¶17 Westmont arg ues th at the tr i al court’s relianc e on part 1, paragr aph 10 of the House Rules i s mi splac ed. It asserts tha t thi s prov isi on “undeni ably” “i s not intended to apply to a si tuation where a tenant i s not present for a sch edul e d Mov e-OutInspecti on, and has no t made any effort to reschedule the Mov eOut-Inspecti on,” and that the court’s interpr etat i on creates an untenable si tuation in whi ch “all of Westmont’s apartments would be empty, and Westmont w ould sti ll be ch arg ing the tenants who fai led to atte nd the Move-Out [] Inspecti ons rent, whi le Westmont

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i s r e q uired to wai t ‘unti l all key s have been surrendered, and a move-outwalkthro ugh i s compl eted and si gned.’”

¶18 We do not agr ee th a t t he prov i si on i s “undeni ably” inappli cable here or that th e t r i al court’s interpr etat i on would result in the scen ario propo sed by Westmont. And Westmont does not other wi se di rect us to any evidenc e or address any relat ed legal authority to supp or t i ts posi tion. Rath e r , i t take s a brok en-record approach and si mply repeat s i ts conclu sory arg ument that the Notice amended the Rental Agr eement becau se i t comport ed wi th the requirements establi s h e d in the Ren tal Agr eement’s integr ation claus e. Westmont’s repet i tion of i ts arg ument does not e s ta b l i s h the arg ument’ s validi ty. Accordi ngly, Westmont has fai led to show

err or in t he tr i al court’s ruli ng that the Notice d id no t modi fy the Rental Ag reement. 1

B. Defendan ts’ Belongings Are NotTrash.

¶19 Next, Westmont arg ues t hat the i tems that remain ed in Defendan ts’ apartment as of Sept ember 29 were of the quali ty and t ype that, based on Westmont’s exper i ence in the “indus tr y,” a r e often left be hin d by tenants that have abandoned their uni t,
r e nd ering the i tems “junk” and “tr ash.” As a result, Westmont asserts that i t was not required to wai t unti l Defendan ts “remov e[d] all of their tr ash from” the uni t before i t could conduc t
a move-out inspec tion or begi n repairing and cleaning the

a p a r t m e n t

. T h e t r i a l c o u r t a c k n o w l e d g e d W e s t m o n t ’ s

1. Westmont’s remain ing arg uments ag a inst the tr i al court’s relianc e and interpr etat i on of other prov i si ons in the House Rules

are dependent upon We stmont’s conclu si on that Defendan ts had vacated t he uni t. Because we affi rm the t rial c ourt ’s rulings to t he contrar y, we need not address Westmont ’s addit io na l arg uments relat ed to t he House Rules

.

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characterizati on of Defendan ts’ remain ing belo ngings as “junk” and conc l uded that reg ardless of whether Westmont “valued Defendan ts’ possess i ons, the law does.” Cf. Ma r ti n v. City of Ind ianapolis , 192 F.3d 608, 615 (7th Ci r. 1999) (Mani on, J., concu rr ing in part and di ssen tin g in part) (recognizing in the context of publi c art that, oftentimes, “one man’s junk i s another man’s t reasure”).
¶20 The court described the i tems in the apart ment as carr yin g “si gni fi cant i mport ance and expense, especi ally for a young newly married co uple.” Addi tionally, the court explain ed that Westmont’s “complet e di sregar d for the value of Defendan ts’ belongin gs” undermined Westmont ’ s credibi li ty in “accu rat ely describ[ing] t he st a t e of the [apartment], or the amount of tim e i t too k to clean i t.” What’s more, the fact that Westmont too k the tim e to p a ck a ge Defendan ts’ belongin gs into boxes and the fact that Defendan ts pai d $100 to retr i eve those boxes n egat es Westmont’s asserti on t hat the i tems left behind amounted to abandoned garbage. As a result, Westmont has not convin ced us that the tr i al court’s r ejection of thi s argument was c learly e rr oneous.

II. Defamati on Per S e
¶21 W e st mo nt next challen ges the tr i al court’s conclu si on that Defendan ts’ statements in their onli ne rev i ew of Westmont di d not
c on s ti tu te defamati on per se. The tr i al court found, “On October 19, 2011, Mill er posted a rev i ew on YAHOO ! LOCAL statin g her beli ef that Westmont Pro pert i es, i ts management, and employ ees, wer e ‘croo ks and wi ll take full advantag e of yo u! Run from them!’”

¶22 “Tradi tionally,” in or der to c onsti tute defamati on per se, the challen ged s tate ments mus t “b e false and allege crim inal condu ct
on the part of the plainti ff

. . . or conduc t whi ch i s incongruous wi th the exer ci se of a lawfu l bus iness, tr ade, professi on, or offi ce.” Jacob

v. Bezza nt, 2009 U T 3 7, ¶ 26, 212 P.3d 535 (ci tation and internal

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quotat i on marks omitted). A part y does notneed to plead speci al damages in pursuing a defamati on per se c lai m becau se damages

are presumed so long as the “injurious character” of the challen ged

wor d is obvious. Western States Title Ins. Co. v. Warnock , 415 P.2d 316, 317 (Utah 1966). To deter mine i f “a statement i s cap a ble of

sus tain ing a defamatory meaning,” th e rev i ewing court “mus t carefully exami ne the context in whi ch 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 i s not a crystal, tr ansparent a nd unchanged, i t i s t he skin o f a li ving thought and may var y gr eatly in color and content according to the ci rcums tances and the tim e in whi ch i t i s used.’” Id. (quoti ng Towne

v. Eisner, 245 U.S. 418, 425 (1918)) ; see also Princ e v. P e te rson , 538 P.2d 1325, 1327–28 & n.4 (Utah 1975) (notin g that “si mply maki ng
some gener al statement about another being a croo k, or even using profanity again st [another] in a gener al way, may not be acti onable . . . depend[ing] on the ci rcums tances”).
¶23 Th e tr i al court described Defendan ts’ post as an “obscu r e onli ne rev i ew” and stated that Westmont prov i ded no evidenc e as to how wi dely i t was acces sed, how long i t was availab le on the web, or how sig ni fi cantly, i f at all, i t di ffered from the “several [other ] postin gs on the internet cri tic al of Westmont’s bus iness practic es.” In li ght of that context, the court conclu ded that Defendants’ “mere use of the word ‘croo ks’” di d not j us t ify “appli cati on of the defamati on per se doctrin e
. ” The court recog ni zed that the ter m “croo ks” “could merely be a refer ence to
croo ked behavi or, not a di rect violati on of the cri minal code,” or that i t “could be a ter m for a person that has take n ad v a nt a ge of another ,” whi ch “many would agr ee d e sc rib es Westmont’s

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conduc t.” See West, 872 P.2d at 1007–08 (notin g that the falsi ty o f

2 a statement is an element of defamati on).

2. For example, in i ts ruli ng on Westmont’s post-tr i al motions, the tr i al court poin ted out that Westmont atte mpted to collect fees for cleaning three w indows and window si lls in the li ving ro om “when the photo gr aphs of the li ving ro om
. . . show that [only] one window exis ted.” Indeed, becau se the tr ut h o f the allegedly defamatory statements i s a tot al bar to recov ery on a clai m for defamati on per se, i t i s also wort h noting th a t t hi s i s not the fi rst tim e Westmont has been called a croo k and pursued questi onable tr i al tactic s, nor i s i t the fi rst tim e West mo nt has pursued a defamati on per se caus e of acti on. See Westmont Mirado r, L L C v. Miller, 2 0 1 4 UT App 209, ¶¶ 1 n.1, 5, (notin g that former tenants’ onli ne co mm ent describing Westmont as “‘croo ks’ and ‘scam art i sts’” warrante d nominal damages on a clai m of defamati on per
se purely as a r e su l t of the tenants’ default and recog ni zing that “nominal damages are appropr i ate ‘wh e n the insi gni fi cant character of the defamatory matter , or the plainti ff’s bad character, leads t he [fac tfinder] to believe that no sub stanti al harm has been done to hi s reputat i on, and there i s no proo f that seri ous harm has resulted from the defendant’s attack upon the plainti ff’s character and reputat i on’” (alterat i on in o r i gin al) (quoti ng Restatement (S e co nd ) of Tort s § 620 cmt. a (1977)) ); Westmont Mirado r LLC v. Shur tliff , 2014 UT App 184, ¶ 13, 333 P.3d 369 (observing t hat Westmont fai led in “i ts prim ary goal at tr i al,” whi ch “was to di sprov e ‘libelous statements’ that Westmont had forg ed th e [former tenants’] si gnature s on [a pe t a d d endum] ”); Westmont Maint. Corp. v. Vance, 2013 UT App 236, ¶¶ 7 n.4, 22, 313 P.3d 1149 (recognizing that the tr i al court awarded atto rney fees as a sanc tion again st Westmont for fi ling a defamati on clai m again st an atto rney repr esenting former Westmont tenants and noting the tr i al court’s observat i on that the defamati on case was an “‘egr egious and

unw arr anted use of legal process, a waste of judi ci al resources, and an undu e i mposi tion up on’” the t enants’ atto rney).

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¶24 We agr ee wi th the tr i al co ur t. Whi le we acknowledge that the term “croo ks” can c arr y a cri minal connotation, in the c ontex t of Defendan ts’ onli ne rev i ew, the ter m i s clearly not being used in thi s manner. Indeed, give n t he context here of an onli ne forum intended for consu mers to rev i ew local bus iness es, we are convin ced t hat “even th e mo st careless r eader [would] percei ve[] that the word [‘crook s’] was no more than rheto ric al hyperbole.” See Greenbe l t C oo p
. Publ’g Ass'n v. Bresler, 398 U.S. 6, 14 (1970) (addressing the ter m “blackmai l”). And rheto ric al hyperbole, inclu ding “juve ni le name-c alling,” Krin sky v. Doe 6 , 72 Cal. Rptr

. 3d 231, 249 (Cal. Ct. A p p
. 2008), i s not defamatory becau se i t cannot “reasonably [be] interpr eted as statin g actual facts,” Hustler Maga zine, Inc. v. Falwell, 485 U.S. 4 6 , 50 (1988); see also Krin sky , 72 Cal. Rptr . 3d at 248–49 (conclu ding that posts in a heated i nternet di scu ssi on that refer red to one offi cer of a corpor ation as a “‘mega

scu m bag,’” called other offi cers “cockro aches, ” “ ‘b oobs, losers and

croo ks,’” and described another as havin g “‘fat thi ghs, a fake medi cal deg ree,
. . . and .

. . poor fem inin e hy giene’” were vulgar but not defamator y becaus e “nothing in [the] po st suggested that the author was i mparting knowledge of actual facts to the reader ”).
¶25 In other words, “[e]xagger ated language used to expr ess opin i on, such as ‘blackmai ler,’ ‘tr ai tor ’ or ‘croo k,’ does not become acti ona bl e merely becau se i t could be take n out of context as
a cc us ing someone of a cri me.” Hodgins v. Times Herald Co. , 4 2 5 N.W.2d 522, 527 (Mi ch. Ct. App. 1988) (ci tin g Greenbelt, 398 U.S. at 14). Accordingly, we affi rm the tr i al court’s di smi ssal of Westmont’s defamati on per se clai m.

III . Post-trial Motions an d Recus al

¶26 Westmont also challenges the trial c ourt ’s deni al of i ts rule 59 motion and i ts rule 60(b) motion and the tri al judge’ s fai lure to

recuse hi mself before ruli ng on the post-tr i al motions. The Utah Rules of Appellate Procedure require an appellant “to clearly define the i ssu es and prov i de acco mpanying arg ument and

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authority[ becau se] a rev i ewing court i s not si mply a deposi tor y in whi ch the appealing party may dump the burden of arg ument 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 challen ges fai l to sati sfy our appellate briefing rules.

¶27 Westmont’s challen ge to the tr i al court’s deni al of i ts posttr i al motions i s based entirely on i t s r epetiti on of i ts earlier arg ument t hat Defendants h ad vacated the uni t by S eptember 29, 2011, per the ter ms of th e R e nt a l Agr eement, as amended by the Notice. Unsurpri sing l y , we are not persuaded by thi s encore i ter ation of an arg ume nt we have already rej ected. Engle v. Isaa c, 456 U.S. 107, 146 (1982) (Br ennan, J., di ssen tin g) (notin g that an arg ument t ha t was prev i ously rej ected as “offend[ing] common
sens e,” “does not become less offensi ve by sententi ous repet i tion” (internal quotat i on marks om i tt e d ) )

. Li kewi se, Westmont’s cursory challen ge to the tr i al judge’ s fai lure to recuse hi mself before ruli ng
on Westmont’s post-tr i al motions i s undeveloped and contai ns no ci tations to relev ant legal authority and recor d material. Becaus e these arg uments do not sati sfy o ur bri efing requirements and accordingly cannot carry Westmont’s burden to show err or, we do not addr ess them f

urther

. See Utah R. App. P. 24(a)(9)

.

CONCLUS ION

¶28 The tr i al court’s findings supp or tin g i ts conclu si on that Defendan ts had not vaca t e d t he i r apartment as of Sept ember 29, 2011, are not clear ly err oneous. Li kewi se, Defendan ts’ use of the ter m “croo ks” in an onli ne rev i ew does not cons titute defamati on per s e. Westmont’s remaining arguments concerning i ts post-tr i al motions and the tr i al judge ’ s obli gation to recuse hi mself from ruli ng on those motions are inadequately bri efed. Accordi ngly, we affi rm.

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