The Rental Agreement, the Online Review and Defamation Per Se

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.