2013 UT App 34

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

D OUGLAS B ATES

,

Plaintiff and Appellant,

v.

U TAH A SSOCIATION OF R EALTORS

, C HRISTOPHER K YLER

, M ARK

S TEINEGAL

, C HARLES S MALLEY

, S ALT L AKE B OARD OF R EALTORS

,

N ORTHERN W ASATCH A SSOCIATION OF R EALTORS

, W ASATCH

F RONT R EGIONAL MLS, B RYAN A. K OHLER

, M ICHAEL J.

O STERMILLER

, J ILLINDA B OWERS

, B RADY L ONG

, T HOMAS J OHNSON

, R ANDALL W ALL

, AND S ANDRA H OOVER

,

Defendants and Appellees.

Memorandum Decision

No. 20120067

‐ CA

Filed February 14, 2013

Third District, Salt Lake Department

The Honorable John Paul Kennedy

No. 110901893

Douglas Bates, Appellant Pro Se

Jeffrey J. Hunt, David C. Reymann, and Austin J. Riter, Attorneys for Appellee Jillinda Bowers

Cass C. Butler, Michael D. Stanger, and Benjamin P. Harmon, Attorneys for Appellee Wasatch Front Regional MLS

Ford G. Scalley and Bradley W. Madsen, Attorneys for Appellees

Bryan A. Kohler and Salt Lake Board of Realtors

Matthew M. Boley, Paxton R. Guymon, and

Lauren Parry Johnson, Attorneys for Appellees Brady Long and

Randall Wall

John E. Swallow and Stanford E. Purser, Attorneys for Appellees

Charles Smalley and Mark Steinegal

Kathryn J. Steffey, Daniel J. McDonald, and Kyle C. Fielding, Attorneys for Appellees Christopher Kyler

and Utah Association of RealtorsBates v. Utah Assoc. of Realtors

20120067

‐ CA 2013 UT App 34 2 Clay W. Stucki, Attorney for Appellee Thomas Johnson

Todd D. Weiler, Attorney for Appellees Sandra Hoover,

Northern Wasatch Association of Realtors,

and Michael J. Ostermiller

J UDGE G REGORY K. O RME authored this Memorandum Decision,

in which J UDGES J AMES Z. D AVIS

and S TEPHEN L. R OTH concurred.

ORME, Judge:

¶1 Douglas Bates, without the assistance of legal counsel,

initiated this action against a multitude of Defendants based on

incidents and alleged wrongs that occurred shortly before or just

after his real estate brokerage went out of business. In total, Bates

pleaded nine causes of action in a seventy

‐ four

‐ page amended

complaint that contained more than 400 paragraphs. After a

number of the many Defendants filed motions to dismiss pursuant

to rule 12 of the Utah Rules of Civil Procedure, the district court

dismissed all nine claims. The district court concluded that

pursuant to Jensen v. Sawyers

, 2005 UT 81, 130 P.3d 325, claims one

through four—all defamation or defamation

‐ related claims—are

barred by Utah’s one

‐ year statute of limitations for defamation

actions. The court similarly concluded that claims five through nine

are barred under Jensen because they arose from the same set of

operative facts as the defamation claims. In the alternative, the

district court held that those claims are barred by the Noerr

‐ Pennington doctrine. See generally R.A.V. v. City of St. Paul

, 505 U.S.

377, 420 (1992); Anderson Dev. Co. v. Tobias

, 2005 UT 36, ¶ 26, 116

P.3d 323. Bates does not appeal the dismissal of claims one through

four, but he does appeal the dismissal of claims five through nine.

¶2 In every appeal, the appellant bears the burden of

demonstrating the validity of his arguments and his entitlement to

relief. See State v. Robison

, 2006 UT 65, ¶ 21, 147 P.3d 448 (“It falls

squarely upon an appellant to surmount the filing, briefing, andBates v. Utah Assoc. of Realtors

20120067

‐ CA 2013 UT App 34 3 persuasion burdens associated with an appeal. Much of this has to

do with the presumption of regularity. An appellant must do the

heavy lifting because the law otherwise presumes that all was well

below.”). See also State v. Green

, 2004 UT 76, ¶ 14, 99 P.3d 820

(observing that a “shotgun approach” to briefing is both

unpersuasive and unhelpful); Smith v. Smith

, 1999 UT App 370, ¶ 8,

995 P.2d 14 (noting that an appellant cannot shift the burden of

research to the reviewing court). Bates wholly fails to persuade us

that the district court erred in concluding that claims five through

nine are barred by the applicable statute of limitations.

¶3 As noted, defamation claims in Utah are subject to a one

‐

year statute of limitations. See Jensen

, 2005 UT 81, ¶ 33. This

unusually short limitations period is explained by the fact that

defamation claims regularly collide with free speech interests and

“always reside in the shadow of the First Amendment.” Id. ¶ 50.

The shorter time period in which “those making statements are

exposed to legal challenges

. . . reduc[es] the chilling effect on

speech that may accompany the prospect of defending statements

well beyond their shelf lives.” Id. ¶ 55. To ensure that claims with

defamation underpinnings are not recast and cleverly titled in

order to sidestep the one

‐ year limitations period, our Supreme

Court has stated that “the statute of limitations for defamation

governs claims based on the same operative facts that would

support a defamation action.” Id. ¶ 53.

¶4 Bates fails to persuade us that the trial court erred in

concluding that, because they are based on the same operative facts

as his defamation claims, claims five through nine are similarly

time

‐ barred. Bates’s sole argument is that “there is much conduct

which cannot be related to, or characterized as defamatory

statements.” He does not, however, identify what that conduct is

or where those facts were pleaded. Instead, he references the

entirety of his statement of facts and his 400

‐ paragraph amended

complaint. He apparently relies on incorporations by reference and

conclusory statements couched as facts and, in essence, invites us

to sift through his voluminous complaint and hunt for pleadedBates v. Utah Assoc. of Realtors

20120067

‐ CA 2013 UT App 34 4 facts that establish that his remaining causes of action are

sufficiently distinct from his defamation claims. And because Bates

has not provided any substantive analysis as to why the operative

facts underlying claims five through nine are not fundamentally

the same as those underlying claims one through four—which they

appear to be—we simply have not been persuaded that claims five

through nine are not also subject to the one

‐ year statute of

limitations for defamation actions, as the district court concluded.

¶5 Affirmed.