Westmont Maintenance v. Vance , 313 P.3d 1149 ( 2013 )

2013 UT App 236_________________________________________________________
THE UTAH COURT OF APPEALS
WESTMONT MAINTENANCE CORPORATION AND WESTMONT
MIRADOR, LLC,
Plaintiffs and Appellants,
v.
DWAYNE A. VANCE,
Defendant and Appellee.
Opinion
No. 20120369‐CA
Filed October 3, 2013
Second District, Ogden Department
The Honorable Ernest W. Jones
No. 110904573
Charles A. Schultz, Attorney for Appellants
Dwayne A. Vance, Appellee Pro Se
JUDGE WILLIAM A. THORNE JR.1 authored this Opinion, in which
JUDGES GREGORY K. ORME and STEPHEN L. ROTH concurred.
THORNE, Judge:
¶1 Westmont Maintenance Corporation and Westmont
Mirador, LLC (collectively Westmont2) appeal from the district
1. Judge William A. Thorne Jr. participated in and voted on this
case as a regular member of the Utah Court of Appeals. He retired
from the court before this decision issued.
2. The parties have taken great care in their briefs to retain the
distinction between Westmont Maintenance Corporation and
Westmont Mirador, LLC. However, for purposes of this opinion,
(continued...)
Westmont Maintenance v. Vance
court’s order dismissing their defamation complaint against
attorney Dwayne A. Vance and imposing sanctions against
Westmont in the amount of $2,600 to be paid to Vance to
compensate him for the time he spent defending the case on his
own behalf. We affirm.
BACKGROUND
¶2 In 2010, Matthew and Whitney Shurtliff retained Vance to
represent them in a dispute they were having with their residential
landlord, Westmont. The Shurtliffs had entered into a lease
agreement with Westmont that was to expire on August 31, 2010.
However, Westmont alleged that they had signed a second lease
agreement extending the lease term through November 30, 2010.
Westmont had a copy of the second lease that purported to bear the
Shurtliffs’ signatures, but the Shurtliffs denied ever having signed
a second lease agreement.
¶3 On August 16, 2010, Vance sent a letter to Westmont in
which he expressed his position that Westmont had forged the
Shurtliffs’ signatures on the second lease in order to defraud them
and extort additional money from them. Vance copied the letter to
Westmont’s three individual principals and to the Shurtliffs. Vance
sent Westmont a second letter on August 30—also copied to the
principals and the Shurtliffs—in which he referred to Westmont’s
“forgery” of the second lease. On September 1, after becoming
aware that Westmont was represented by attorney Charles Schultz,
Vance sent Schultz a letter containing two more references to the
second lease agreement as “forged” and expressing Vance’s belief
that the parties would not be able to resolve their differences
without litigation. Vance copied this final letter to the Shurtliffs but
not to Westmont’s principals.
2. (...continued)
we treat them as a single entity because the distinction is not
relevant to our analysis.
20120369‐CA 2 2013 UT App 236Westmont Maintenance v. Vance
¶4 On January 24, 2011, the Shurtliffs filed a small claims action
against Westmont seeking the return of their security deposit. On
March 15, Westmont filed an action in the district court against the
Shurtliffs over the lease dispute. The Shurtliffs agreed to litigate the
matter in district court and voluntarily dismissed their small claims
action. While the case between Westmont and the Shurtliffs was
pending, Westmont initiated the present case against Vance by
filing a separate complaint in the district court on July 1, 2011.
Westmont’s complaint alleged that Vance’s letters accusing it of
committing forgery and defrauding and extorting the Shurtliffs
were defamatory.
¶5 Vance represented himself against Westmont’s defamation
suit. He promptly moved to dismiss the complaint, asserting
various legal defenses to the claim of defamation. The district court
granted Vance’s motion at an October 19, 2011 hearing, agreeing
with Vance that his letters were protected by the judicial
proceeding privilege, that there had been no publication of his
statements to any third parties, and that the subject
communications did not constitute defamation.
¶6 The district court also awarded Vance his own attorney fees
at the hearing despite Vance’s self‐representation and his not
having asked for such fees in his motion to dismiss. The district
court provided the following explanation for this decision:
[W]hen I first started to read the briefs, my original
response or reaction was you got to be kidding me.
We’re now suing an attorney because he comes in
and tries to defend people on a landlord/tenant
lawsuit? . . . [I]t almost appears to me as if your client
has said, Hey, these people want to go to trial, we’re
going—we’re going to up the ante. We’re going to
turn the screws. We’re going to sue the lawyer. And
I’m thinking, for what? I mean, all he’s trying to do
is represent his clients. And I just—I’m just—I’m just
amazed that this has gone to this point that we’re
20120369‐CA 3 2013 UT App 236Westmont Maintenance v. Vance
suing the attorney who represents these folks on $150
small claims landlord/tenant case. I just think we’ve
gotten way over the top on this case.
. . . I just think this case is just—to me it’s
unbelievable that we would sue Mr. Vance who’s
simply trying to defend some tenants on a
landlord/tenant dispute. So having said that, I’m
going to grant attorney’s fees.
Westmont did not raise any objection to the attorney fee award at
the hearing.
¶7 Vance prepared a proposed order of dismissal and an
attorney fee affidavit. Westmont filed objections to both.3 The
objection to the proposed dismissal order challenged paragraphs
5 and 6 pertaining to the attorney fee award,4 arguing that the
district court had not made the statements contained in those
paragraphs at the dismissal hearing. Westmont’s objection stated,
The Court did not make any reference to [Utah Code
section] 78A‐2‐201 when making its ruling on
[Vance’s] motion to dismiss. The Court did not state
under what authority it was awarding [Vance]
attorney’s fees. Additionally, [Utah Code section]
78A‐2‐201 does not provide any provision
authorizing a court to award attorney’s fees.
Attorney’s fees may only be awarded if there is a
3. The objection to Vance’s attorney fee affidavit challenged only
the amount of Vance’s claimed fees and raised no objection to the
basis for the fee award.
4. Paragraph 5 of the proposed order characterized Westmont’s suit
as an “egregious and unwarranted use of legal process, a waste of
judicial resources, and an undue imposition upon . . . Vance,” and
paragraph 6 contained the resulting award of attorney fees.
20120369‐CA 4 2013 UT App 236Westmont Maintenance v. Vance
contract provision awarding them or if there is a
statute awarding them.
Vance responded that the language of paragraph 5 was
substantially similar to the district court’s actual oral ruling and
that paragraph 6’s reference to Utah Code section 78A‐2‐201 was
justified because the attorney fee award was clearly a sanction
against Westmont under the district court’s inherent or statutory
powers. See generally Utah Code Ann. § 78A‐2‐201 (LexisNexis
2012) (enumerating certain powers possessed by every court).
¶8 The district court signed Vance’s proposed dismissal order
as submitted. The dismissal order invoked the district court’s
inherent power to sanction parties to control the proceedings
before it, as well as its statutory powers under Utah Code section
78A‐2‐201, and ordered Westmont “to compensate attorney
Dwayne A. Vance for the time he has spent representing himself
herein, at his customary hourly billing rate.” The district court
wrote in $2,600 as the amount awarded to Vance, a reduction from
the claimed $4,212 in fees that Vance had submitted to the court.
¶9 Westmont filed a motion to alter or amend the dismissal
order, arguing that Utah law prohibits attorneys from recovering
their own attorney fees for representing themselves pro se.
Westmont’s motion made no argument that the district court’s
award of sanctions was in error due to lack of notice and a hearing.
The district court denied Westmont’s motion, ruling that the bar
against the recovery of fees by pro se attorneys did not apply
because the court had not awarded Vance his attorney fees as the
prevailing party in the litigation but rather as a sanction against
Westmont for “filing their frivolous claim and wasting the time of
both the Court and [Vance].” The district court explained that it
had simply used Vance’s hours and billing rate “as the basis for
setting an appropriate amount for the sanction.” Westmont now
appeals, challenging both the district court’s dismissal of its
defamation claim and its award of attorney fees to Vance.
20120369‐CA 5 2013 UT App 236Westmont Maintenance v. Vance
ISSUES AND STANDARDS OF REVIEW
¶10 Westmont argues that the district court erred in granting
Vance’s motion to dismiss. We review a district court’s ruling on
a motion to dismiss for correctness. Webster v. JP Morgan Chase
Bank, NA, 2012 UT App 321, ¶ 2, 290 P.3d 930. In particular, we
review for correctness the district court’s determination that the
judicial proceedings privilege applies to Vance’s letters. See DeBry
v. Godbe, 1999 UT 111, ¶ 7, 992 P.2d 979.
¶11 Westmont also challenges the district court’s award of
sanctions against it to compensate Vance for the value of his own
attorney time spent defending himself in this matter. We review a
district court’s imposition of sanctions under an abuse of discretion
standard. See Chen v. Stewart, 2005 UT 68, ¶ 44, 123 P.3d 416.
ANALYSIS
I. Dismissal of Westmont’s Defamation Complaint
¶12 Westmont first argues that the district court erred in
granting Vance’s motion to dismiss Westmont’s defamation
complaint. Specifically, Westmont argues that the district court
erred in making its underlying determinations that Vance’s letters
were protected by the judicial proceedings privilege, that the letters
had not been published to third parties, and that the letters did not
contain defamatory statements. We need only address the
applicability of the judicial proceedings privilege because our
resolution of that issue in Vance’s favor is determinative.
¶13 The judicial proceedings privilege is an absolute privilege
protecting attorneys and others involved in litigation against suits
arising from statements made related to the litigation. See Price v.
Armour, 949 P.2d 1251, 1256 (Utah 1997) (“The general rule is that
judges, jurors, witnesses, litigants, and counsel in judicial
proceedings have an absolute privilege against defamation.”
20120369‐CA 6 2013 UT App 236Westmont Maintenance v. Vance
(citation and internal quotation marks omitted)). “To establish the
judicial proceeding privilege, the statements must be (1) made
during or in the course of a judicial proceeding; (2) have some
reference to the subject matter of the proceeding; and (3) be made
by someone acting in the capacity of judge, juror, witness, litigant,
or counsel.” Krouse v. Bower, 2001 UT 28, ¶ 8, 20 P.3d 895 (citation
and internal quotation marks omitted). Westmont’s specific
arguments against the application of the privilege in this case focus
on the first and second prongs of this test.
¶14 Westmont first argues that the district court erred in
concluding that Vance’s letters were made during or in the course
of a judicial proceeding. Westmont does not dispute “that a
statement may qualify as made during or in the course of a judicial
proceeding if the communication is preliminary to a proposed
judicial proceeding.” Id. ¶ 9. However, Westmont attempts to
distinguish Vance’s statements on the grounds that the Shurtliffs’
small claims action against Westmont did not and—according to
Westmont—could not directly allege forgery, fraud, or extortion;
that the Shurtliffs did not make any criminal complaint against
Westmont pertaining to charges of forgery, fraud, or extortion; that
the Shurtliffs did not know that Westmont would bring an action
against them; and that the Shurtliffs never formally alleged forgery,
fraud, or extortion against Westmont in the district court.
¶15 We are not persuaded that any of these factors, alone or in
combination, warrant a conclusion other than that reached by the
district court. “[T]he publication of defamatory matter by an
attorney is protected not only when made in the institution of
proceeding or in the conduct of litigation before a judicial tribunal,
but in conferences and in communications preliminary thereto.” Id.
(emphasis added) (citation and internal quotation marks omitted).
It is clear that Vance’s statements regarding the contested second
lease pertained to an existing legal dispute between the Shurtliffs
and Westmont that ultimately ripened into formal litigation.
Vance’s final letter expressly stated that the parties’ dispute would
have to be resolved in court. Cf. id. (“In the last line of the demand
20120369‐CA 7 2013 UT App 236Westmont Maintenance v. Vance
letter in this case, [the attorney] suggested that he and his clients
wished to avoid litigation, but that a judicial proceeding was an
imminent possibility.”). Further, the forgery question was actually
litigated in the Shurtliff–Westmont case, resulting in a
determination that there was no evidence that Westmont forged
the lease. Under these circumstances, we agree with the district
court that Vance’s communications were made “preliminary to a
proposed judicial proceeding” and were therefore “made during
or in the course of a judicial proceeding” for purposes of the
privilege. Id.¶16 Westmont also argues that the allegedly defamatory
statements in Vance’s letters lack “some reference to the subject
matter of the proceeding.” Id. ¶ 8 (citation and internal quotation
marks omitted). The thrust of Westmont’s argument in this regard
is that the Shurtliffs never alleged a formal claim of forgery, fraud,
or extortion in the subsequent Shurtliff–Westmont litigation.
However, “[a] statement need not be relevant or pertinent to the
judicial proceeding from an evidentiary point of view for the
privilege to apply.” DeBry v. Godbe, 1999 UT 111, ¶ 16, 992 P.2d 979.
Rather, “[s]tatements are relevant for purposes of the privilege if
they simply have ‘some relationship to the cause or subject matter
involved.’” Krouse, 2001 UT 28, ¶ 12 (quoting DeBry, 1999 UT 111,
¶ 16). In this case, Vance’s statements relate broadly to the overall
dispute between the Shurtliffs and Westmont and specifically to
the question of whether the second lease was valid. This is
sufficient to satisfy the requirement that statements “have some
reference to the subject matter of the proceeding.” Id. ¶ 8 (citation
and internal quotation marks omitted).
¶17 Westmont has failed to convince us that the district court
erred in its conclusions that Vance’s statements were preliminary
to proposed or threatened litigation and that the statements
referred to the subject matter of that litigation. We therefore affirm
the district court’s determination that Vance’s statements are
protected by the judicial proceedings privilege and the resulting
dismissal of Westmont’s defamation complaint against Vance.
20120369‐CA 8 2013 UT App 236Westmont Maintenance v. Vance
II. Sanctions
¶18 Westmont also challenges the district court’s award of
$2,600 in sanctions against it to compensate Vance for the time he
spent defending himself in this matter. Westmont argues that the
district court erred in awarding Vance his own attorney fees
because he failed to request such fees in his motion to dismiss and
because Utah law prohibits attorney fee awards to licensed
attorneys for representing themselves pro se. Westmont also argues
that the award cannot be upheld as a sanction because the district
court failed to give Westmont notice and an opportunity to
respond, in violation of its due process rights.
¶19 We agree with Westmont that Vance’s motion to dismiss did
not contain an express request for attorney fees—either based on
prevailing party status or as a sanction5—and also that Utah law
precludes prevailing‐party attorney fee awards to pro se attorneys
for successfully representing themselves in litigation. See Jones,
Waldo, Holbrook & McDonough v. Dawson, 923 P.2d 1366, 1374–75
(Utah 1996) (precluding award of contractual prevailing‐party
attorney fees to pro se attorney); Smith v. Batchelor, 832 P.2d 467,
473 (Utah 1992) (same under statutory attorney fee provision); see
also Strohm v. ClearOne Commc’ns, Inc., 2013 UT 21, ¶¶ 89–99
(extending ban on attorney fee awards where an attorney jointly
represents himself and a client against a common claim). Thus, the
district court would have erred had it simply awarded the pro se
Vance his attorney fees as the prevailing party in the lawsuit.6
5. Although Vance’s motion to dismiss did not expressly ask for
attorney fees, it did state that Westmont’s defamation suit “smacks
of bad faith on the part of [Westmont] and Attorney Schultz in an
attempt to intimidate and/or harass Attorney Vance in light of his
ongoing representation of the Shurtliffs in their legal dispute with
[Westmont].”
6. An award of prevailing‐party attorney fees would additionally
have been improper because there is no contractual or statutory
(continued...)
20120369‐CA 9 2013 UT App 236Westmont Maintenance v. Vance
¶20 However, the district court did not award Vance prevailing‐
party attorney fees, but rather awarded those fees to Vance as a
sanction against Westmont. This is suggested by the district court’s
oral ruling, but any doubt was removed by the dismissal order’s
specific language awarding fees “[p]ursuant to the Court’s inherent
power to sanction.”7 Thus, Westmont’s only argument on appeal
that actually challenges the basis for the district court’s attorney fee
award is Westmont’s argument that the district court violated
Westmont’s due process rights by imposing sanctions without
giving Westmont notice and an opportunity to respond.
¶21 We conclude that Westmont failed to preserve its due
process issue for appeal because it failed to apprise the district
court that the court had erred by imposing sanctions without the
required notice and hearing. See State v. Diaz‐Arevalo, 2008 UT App
219, ¶ 10, 189 P.3d 85 (“In order to preserve an issue for appeal, a
defendant must raise the issue before the district court in such a
way that the court is placed on notice of potential error and then
has the opportunity to correct or avoid the error.”); see also State v.
Dean, 2004 UT 63, ¶ 13, 95 P.3d 276 (“A proper objection puts the
judge on notice of the asserted error and allows the opportunity for
correction at that time in the course of the proceeding.” (citation
and internal quotation marks omitted)). Westmont could have
6. (...continued)
basis for such an attorney fee award in this case. See Anderson &
Karrenberg v. Warnick, 2012 UT App 275, ¶ 9, 289 P.3d 600 (“As a
general rule, attorney fees are recoverable only if authorized by
contract or statute.”). We express no opinion on whether Vance’s
failure to expressly request attorney fees in the district court would
have precluded an award of prevailing‐party attorney fees if such
an award had been otherwise proper.
7. In light of this express language in the district court’s November
22, 2011 dismissal order, we reject Westmont’s argument in its
reply brief that it “never learned that the court was claiming that
it was imposing sanctions on Westmont until it received the court’s
[March 6, 2012] ruling on Westmont’s Motion to Alter or Amend.”
20120369‐CA 10 2013 UT App 236Westmont Maintenance v. Vance
raised this objection immediately after the district court’s oral
ruling, in its objection to Vance’s proposed dismissal order, or in its
motion to alter or amend that order. Cf. Dickman Family Props., Inc.
v. White, 2013 UT App 116, ¶¶ 12–13, 302 P.3d 833 (finding no
preservation where appellants failed to raise an issue at contempt
proceeding or in their objection to the contempt order). However,
Westmont’s failure to raise the issue to the district court despite
multiple appropriate opportunities to do so constitutes a waiver of
that issue, and we decline to address it on appeal. See id. ¶ 9
(“‘Issues that are not raised [in the trial court] are usually deemed
waived.’” (alteration in original) (quoting 438 Main St. v. Easy Heat,
Inc., 2004 UT 72, ¶ 51, 99 P.3d 801)).8
CONCLUSION
¶22 We conclude that Vance’s letters were protected by the
judicial proceedings privilege, and we affirm the district court’s
dismissal of Westmont’s defamation complaint on that basis. We
also affirm the district court’s award of attorney fees as a sanction
against Westmont because Westmont waived its due process
argument below when it failed to raise that argument to the district
court. For these reasons, we affirm the district court’s dismissal
order, including its monetary sanction against Westmont in the
amount of $2,600.
8. To the extent that Westmont argues that the district court’s
imposition of sanctions was substantively improper, that issue was
also not preserved for appeal.
20120369‐CA 11 2013 UT App 236