This post examines an opinion the Utah Court of Appeals recently issued in a civil case that involves an online posting and a suit for
defamation: Westmont Residential LLC v. Buttars, 340 P.3d 183 (2015).
The parties to the suit are the plaintiffs – Westmont
Residential LLC and Terry Foote – and the defendants – Brad Buttars and Sarah
Miller. Westmont Residential LLC v. Buttars, supra. The court refers to Westmont Residential LLC
and Terry Foote, collectively, as “Westmont.”
Westmont Residential LLC v.
Buttars, supra. It refers to
Buttars and Millers as “Defendants.” Westmont Residential LLC v. Buttars, supra.
The Court of Appeals begins its opinion by explaining how
the case arose:
Defendants sought an early termination
of their one-year `Uniform Residential Rental Agreement’ (the Rental Agreement)
to rent an apartment from Westmont. Westmont required 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.
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.’
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.
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!’”
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.
Westmont Residential
LLC v. Buttars, supra.
As Wikipedia explains, in U.S. law a “Complaint” is
any formal legal document that sets out
the facts and legal reasons . . . that the filing party or parties
(the plaintiff(s)) believes are sufficient to support a claim against the
party or parties against whom the claim is brought (the defendant(s)) that
entitles the plaintiff(s) to a remedy (either money damages or injunctive relief). For example, the Federal Rules of Civil Procedure (FRCP)
that govern civil litigation in United States courts provide that a
civil action is commenced with the filing or service of a pleading called a
complaint. Civil court rules in states that have incorporated the Federal Rules
of Civil Procedure use the same term for the same pleading.
And as another site explains, the cause of action for
defamation per se encompasses
a false statement, either spoken
(`slander’) or written (`libel’) that injures someone's reputation. However,
some types of false statements are considered so damaging that they are deemed
defamatory on their face (`defamation per se’). This is in contrast to
`defamation per quod’ where the false statement is not inherently defamatory
and has to be evaluated in the context of additional facts. Generally, for
defamation per se, the statements are presumed harmful whereas for defamation
per quod the damage must be proven.
Getting back to the Court of Appeals’ opinion, it goes on to
explain that
[a]fter 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.
Westmont Residential
LLC v. Buttars, supra.
After the judge entered the findings and judgment outlined
above, Westmont
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.
Westmont Residential
LLC v. Buttars, supra. The motion to
disqualify the judge would have been filed under the Utah Rules of Civil Procedure’s Rule 63(b)(1)(A), which says that a party to a lawsuit or the party's attorney
may file a motion
to disqualify a judge. The motion shall be accompanied by a certificate that
the motion is filed in good faith and shall be supported by an affidavit
stating facts sufficient to show bias, prejudice or conflict of interest.
The Court of Appeals explains that Westmont raised “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, 144 P.3d 1096 (Utah Supreme Court 2006) . . . (citation and quotation marks omitted).
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, 165 P.3d 1214 (Utah Supreme Court 2007).
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 Rules of Appellate Procedure 24(a)(9).
Westmont Residential
LLC v. Buttars, supra. In other
words, as to Westmont’s third set of objections to the court’s ruling, the
Court of Appeals appears to have found that the brief he filed on appeal did
not articulate his arguments as to why the trial judge erred in enough detail
to warrant the Court of Appeals’ considering the issues.
According to the Court of Appeals, Westmont “approached the
first issue”, i.e., 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 inventorying Defendants'
remaining belongings”, from “two angles.”
Westmont Residential
LLC v. Buttars, supra. The court
goes on to explain that,
[f]irst, 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.
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.
Westmont Residential
LLC v. Buttars, supra.
As to the first issue, the Court of Appeals explained that
the Rental Agreement
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 moveout 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.
`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 Utah Supreme Court 1996). . . . The party
claiming 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., 69 P.3d
297. (Utah Court of Appeals 2003).
Westmont Residential
LLC v. Buttars, supra.
Next, it explained that, “[i]n 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.’
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 is required
to wait “until all keys have been surrendered, and a move-out walkthrough is
completed and signed.”’
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.
Westmont Residential
LLC v. Buttars, supra.
The Court of Appeals then took up the second issue, noting
that Westmont agued 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 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 (U.S. Court of Appeals for the 7th Circuit 1999) (Manion, J.)
(recognizing in the context of public art that, oftentimes, `one man's junk is
another man's treasure’).
The court described the items in the
apartment as carrying `significant importance and expense, especially for a
young newly married couple.’ Additionally, [it] 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.
Westmont Residential
LLC v. Buttars, supra.
And, finally, the court took up Westmont’s challenging “the
trial court's conclusion that Defendants' statements in their online review of
Westmont did not constitute defamation per se.”
Westmont Residential LLC v.
Buttars, supra. It explained that
the trial judge
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!”’
Westmont Residential
LLC v. Buttars, supra.
The Court of Appeals then explained that “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, or office.’ Jacob v. Bezzant, 212 P.3d 535
(Utah Supreme Court 2009). .). . . .
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 (Utah Supreme Court 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.”’ West v. Thomson Newspapers, supra (quoting Townev. Eisner, 245 U.S. 418 (1918)); see also Prince v. Peterson, 538
P.2d 1325 (Utah Supreme Court 1975) (`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’).
Westmont Residential
LLC v. Buttars, supra.
The court went on to point out that the trial court
described the 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 conduct.’ See West v. Thomson Newspapers, supra (noting
that the falsity of a statement is an element of defamation).
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. Publishing Association v.
Bresler, 398 U.S. 6 (1970) (addressing the term `blackmail’). And rhetorical
hyperbole, including `juvenile name-calling), Krinsky v. Doe 6, 159
Cal.App.4th 1154, 72 Cal.Rptr.3d 231 (California Court of Appeals 2008), is not
defamatory because it cannot `reasonably [be] interpreted as stating actual
facts,’ Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988); see
also Krinsky v. Doe 6, supra (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).
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., 169 Mich.
App. 245, 425 N.W.2d 522 (Michigan Court of Appeals 1988). . . .
Accordingly, we affirm the trial
court's dismissal of Westmont's defamation per se claim.
Westmont Residential
LLC v. Buttars, supra.
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