Bates v. Utah Assoc. of Realtors

2013 UT App 34
_________________________________________________________

THE UTAH COURT OF APPEALS

DOUGLAS BATES,

Plaintiff and Appellant,

v.

UTAH ASSOCIATION OF REALTORS, CHRISTOPHER KYLER, MARK
STEINEGAL, CHARLES SMALLEY, SALT LAKE BOARD OF REALTORS,
NORTHERN WASATCH ASSOCIATION OF REALTORS, WASATCH
FRONT REGIONAL MLS, BRYAN A. KOHLER, MICHAEL J.
OSTERMILLER, JILLINDA BOWERS, BRADY LONG, THOMAS JOHNSON,
RANDALL WALL, AND SANDRA HOOVER,

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 Realtors
Bates v. Utah Assoc. of Realtors

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

JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES JAMES Z. DAVIS
and STEPHEN L. ROTH 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, and

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Bates v. Utah Assoc. of Realtors

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 pleaded

20120067‐CA 3 2013 UT App 34
Bates v. Utah Assoc. of Realtors

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.

20120067‐CA 4 2013 UT App 34