Spencer v. Glover , 837 Utah Adv. Rep. 16 ( 2017 )

2017 UT App 69THE UTAH COURT OF APPEALS
TERRY R. SPENCER AND TR SPENCER & ASSOCIATES PC,
Appellants,
v.
STEPHEN M. GLOVER,
Appellee.
Opinion
No. 20150892-CA
Filed April 20, 2017
Third District Court, Salt Lake Department
The Honorable L. Douglas Hogan
No. 150903279
Gavin V. Collier and Terry R. Spencer, Attorneys
for Appellants
Robert B. Cummings, Attorney for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and JILL M. POHLMAN concurred.
TOOMEY, Judge:
¶1 Attorney Terry R. Spencer and his law firm appeal the
decision of the district court dismissing his suit under rule
12(b)(6) of the Utah Rules of Civil Procedure. Spencer contends
the court erred in determining that an online review posted by
Stephen M. Glover was ‚mere opinion‛ and thus not actionable
defamation. We affirm.
BACKGROUND
¶2 Spencer represented Glover in his divorce proceedings.
Glover was unsatisfied with the representation and ultimately
retained new counsel. He subsequently posted a review
Spencer v. Glover
regarding Spencer and his services on yelp.com, an online
comment aggregator.1 The review stated:
Worst ever. Had to fire him after I gave him a
chance for well over a year. Paid him his $2,500
retainer, then paid him another $2,500 shortly after
. . . and I still owe him another several thousand
dollars! . . . all for his hunt-and-peck filing typing
b.s. while he makes me watch. I’d be willing to
wager that he was sitting on it and running the bill
up until I produced money that she had not gotten
her hands on. There was none that she had not
gotten her hands on. She admitted that she spent
the $40k in the safe. My order is _still_ based on
substantially higher income earned the hard way
in the Middle East, supporting my family by
supporting those who protect our freedom. The
arrears [have] become astronomical and ORS is
threatening to take my license and passport . . .
Yelled at me once when I called to ask him about
something his office had sent me that day. Told me
to ‚GOOGLE IT!‛ Worst. Ever. Filed a Utah Bar
complaint and strongly considering suing him. Just
have to find someone to do it.
¶3 Spencer asked Glover to remove the review, and when
Glover refused, Spencer filed suit against him for defamation,
intentional infliction of emotional distress, and intentional
1. Yelp Inc. is a company that ‚describes itself generally as an
online networking platform that connects people with great local
businesses by hosting user-generated reviews.‛ Curry v. Yelp
Inc., No. 14-cv-03547-JST, 2015 WL 1849037, at *1 (N.D. Cal. Apr.
21, 2015) (citation and internal quotation marks omitted).
20150892-CA 2 2017 UT App 69Spencer v. Glover
interference with prospective economic relations.2 Glover moved
to dismiss all three claims for failure to state a claim upon which
relief could be granted.
¶4 The district court granted Glover’s motion to dismiss.
Regarding the defamation claim, the court, assuming the
statements in the review were false and resulted in damage to
Spencer, determined the statements were ‚mere opinion‛ and
dismissed the claim. The court next dismissed the claim for
intentional infliction of emotional distress, stating that ‚*w+riting
and publishing a critical online review does not amount to
outrageous and intolerable behavior, particularly where there is
no defamation.‛ Finally, the court dismissed the interference
with economic relations claim because even if Glover had
‚intentionally interfered with Spencer’s prospective economic
relations,‛ Spencer did not demonstrate that writing an online
review was an ‚improper means‛ where the review was not
defamatory and no other impropriety was apparent. Spencer
appeals.
2. Spencer’s complaint contained two additional causes of action:
declaratory relief and breach of contract. The district court
dismissed Spencer’s declaratory relief cause of action, reasoning
that because Spencer’s other claims had failed, no ‚justiciable
controversy‛ remained. See Miller v. Weaver, 2003 UT 12, ¶ 15, 66
P.3d 592 (determining that ‚a justiciable controversy‛ is a
necessary element to proceed with a declaratory judgment
action). The court also dismissed the breach of contract cause of
action, ordering the parties to arbitrate that claim. Spencer does
not appeal the dismissal of either of these claims, and we do not
address them further.
20150892-CA 3 2017 UT App 69Spencer v. Glover
ISSUES AND STANDARD OF REVIEW
¶5 Spencer raises three issues on appeal. First, he contends
the district court erred in dismissing his defamation claim. When
reviewing claims of defamation that are dismissed for failure to
state a claim, ‚we accept as true all material allegations
contained in the complaint,‛ West v. Thomson Newspapers, 872
P.2d 999, 1004 (Utah 1994), but we do not ‚indulge [the
appellant] by interpreting inferences that may be reasonably
drawn from the statements in favor of a defamatory meaning,‛
Jacob v. Bezzant, 2009 UT 37, ¶ 18, 212 P.3d 535. Instead, we ‚look
to the context of the allegedly defamatory statement and then, in
a nondeferential manner, reach an independent conclusion about
the statement’s susceptibility to a defamatory interpretation.‛ Id.(citation and internal quotation marks omitted). This
determination is a question of law, reviewed for correctness. Id.Additionally, whether the motion to dismiss was properly
granted is also a question of law that we review for correctness.
West, 872 P.2d at 1004.
¶6 As to his second and third issue on appeal, Spencer
contends the court erred in dismissing both his intentional
infliction of emotional distress claim and his intentional
interference with prospective economic relations claim. His
challenge to the dismissal of these claims hinges on his assertion
that the court erroneously determined that the online review
was not actionable defamation. Because we conclude the court’s
decision regarding the defamation claim was correct, we need
not address these two issues on appeal.
ANALYSIS
¶7 Spencer contends the district court erred in determining
Glover’s review was ‚mere opinion‛ and thus not defamatory.
‚Under Utah law, a statement is defamatory if it impeaches an
individual’s honesty, integrity, virtue, or reputation and thereby
20150892-CA 4 2017 UT App 69Spencer v. Glover
exposes the individual to public hatred, contempt, or ridicule.‛
Id. at 1008. ‚At its core, an action for defamation is intended to
protect an individual’s interest in maintaining a good
reputation.‛ Id. The ‚guiding principle‛ in determining whether
a statement is defamatory is ‚the statement’s tendency to injure
a reputation in the eyes of its audience.‛ Id. A defamatory
statement requires ‚more than sharp criticism‛—‚*a+ publication
is not defamatory simply because it is nettlesome or
embarrassing to a plaintiff.‛ Id. at 1009 (citations and internal
quotation marks omitted). To make this determination, a court
cannot ‚view*+ individual words in isolation‛ but must
‚carefully examine the context in which the statement was
made.‛ Id.
¶8 Even if a statement is defamatory, the ‚Utah Constitution
provides an independent source of protection for expressions of
opinion.‛ Id. at 1013. ‚Because expressions of pure opinion fuel
the marketplace of ideas and because such expressions are
incapable of being verified, they cannot serve as the basis for
defamation liability.‛ Id. at 1015. But the Utah Supreme Court
has noted that ‚opinions rarely stand alone, isolated from any
factual moorings. To convince readers of the legitimacy of an
opinion, authors typically describe the perceived factual bases
for opinions, seeking to demonstrate that the author’s opinions
are grounded in common sense.‛ Id. And although the Utah
Constitution protects expressions of opinion, this protection is
abused ‚when the opinion states or implies facts that are false
and defamatory. If the opinion does not state or imply such facts
or if the underlying facts are not defamatory, an action for
defamation is improper.‛ Id. Thus, our inquiry is whether the
online review is a protected expression of opinion, and whether
the opinion states or implies underlying defamatory facts.
¶9 The distinction between opinion and fact is not always
clear, and our supreme court has outlined four factors that are
‚useful in distinguishing fact from opinion‛:
20150892-CA 5 2017 UT App 69Spencer v. Glover
(i) the common usage or meaning of the words
used; (ii) whether the statement is capable of
being objectively verified as true or false; (iii)
the full context of the statement—for example,
the entire article or column—in which the
defamatory statement is made; and (iv) the
broader setting in which the statement appears.
Id. at 1018.
¶10 First, we analyze the online review under these four
factors to determine whether it was an opinion, identifying any
potentially defamatory statements in the review. Because we
conclude the online review was an opinion, we next determine
whether it stated or implied any underlying facts, and decide
whether those underlying facts were defamatory.
I. The Online Review Was an Expression of Opinion.
A. Whether the Statements Are Capable of Being Objectively
Verified
¶11 As we begin our analysis, we employ the ‚common usage
or meaning of the words‛ to determine ‚whether the statement
is capable of being objectively verified as true or false.‛ See West
v. Thomson Newspapers, 872 P.2d 999, 1018 (Utah 1994). Glover
made six potentially defamatory statements in the online review:
(1) ‚Worst ever‛; (2) ‚Had to fire him after I gave him a chance
for well over a year‛; (3) ‚all for his hunt-and-peck filing typing
b.s. while he makes me watch‛; (4) ‚I’d be willing to wager that
he was sitting on it and running the bill up until I produced
money that she had not gotten her hands on‛; (5) ‚Yelled at me
once when I called to ask him about something his office had
20150892-CA 6 2017 UT App 69Spencer v. Glover
sent me that day. Told me to ‘GOOGLE IT!’‛; (6) ‚Filed a Utah
Bar complaint and strongly considering suing him.‛3
¶12 The first statement, ‚*w+orst ever,‛4 is not subject to
objective verification. The word ‚worst‛ is a superlative, and can
mean the ‚most bad, evil,‛ the ‚most unfavorable, unpleasant,‛
the ‚most unsuitable, faulty,‛ the ‚least skilled or efficient‛ or
the ‚most wanting in quality.‛ Worst, Webster’s Third New
International Dictionary (1968). There are no objective criteria
from which to determine whether someone is the ‚worst.‛
‚Ever‛ is ‚used as an intensive with a superlative‛ and means
‚through all time.‛ Ever, Webster’s Third New International
Dictionary (1968). The phrase ‚worst ever‛ expresses Glover’s
subjective belief and ‚amounts to rhetorical hyperbole.‛ Cf.
Seaton v. TripAdvisor LLC, 728 F.3d 592, 598 (6th Cir. 2013)
(concluding that ‚‘*d+irtiest’ is a loose, hyperbolic term because
it is the superlative of an adjective that conveys an inherently
subjective concept‛).
¶13 Spencer argues it is possible to demonstrate the phrase
‚worst ever‛ is false because he has twenty-five years of
experience as an attorney and has never been disciplined by the
Utah State Bar. He therefore cannot be the ‚worst‛ attorney,
3. In the review, Glover also complained that ‚[t]he arrears
*have+ become astronomical.‛ This appeared after Glover stated
‚*t+here was *no money+ that *his ex-spouse] had not gotten her
hands on,‛ and ‚*m+y order is _still_ based on substantially
higher income earned the hard way in the Middle East.‛ Given
this context, Glover’s complaint about astronomical arrears is
not directed toward Spencer, and so is not a potentially
defamatory statement.
4. Glover repeated this language later in the online review, with
additional punctuation for emphasis: ‚Worst. Ever.‛
20150892-CA 7 2017 UT App 69Spencer v. Glover
because others, who have received professional discipline, must
be worse than he is. Thus, he reasons, the phrase ‚worst ever‛
can be objectively determined to be true or false. This argument
makes sense if a reader would likely understand the phrase
‚worst ever‛ in a strictly literal sense. But no reader would.
‚Worst ever‛ is a common colloquial phrase used to express a
strong negative opinion. When a person declares that he or she
just went on the worst date ever, no reasonable listener would
understand that statement as a claim that the speaker
exhaustively researched all the dates in the history of dating,
developed objective scoring criteria, and determined as a matter
of fact that last night’s date was worse than dates that ended in
death, violence, or vomiting in a restaurant. Likewise, if a person
declares that his doctor is the worst ever, no reasonable listener
would understand the statement to mean that the doctor was
worse than Dr. Josef Mengele. Similarly, no reasonable reader
would have read Glover’s comment, especially in context, as an
assertion of fact rather than an assertion of opinion.
¶14 The second statement is also not capable of objective
verification. Glover wrote that he ‚*h+ad to fire *Spencer+ after
giving him a chance for well over a year.‛ We agree with
Spencer that the common usage of ‚had to‛ in this context
suggests that Glover was forced to, or had no choice but to fire
Spencer. But whether Glover believed he had no choice but to
fire Spencer ‚is something only *Glover+ himself knows, not
something that is subject to objective verification.‛ See West, 872
P.2d at 1019 (noting that whether a mayor ‚intended to dupe
voters into electing him mayor by misrepresenting his position‛
is something only the mayor himself could know, and not
‚subject to objective verification‛). Furthermore, whether Glover
gave Spencer ‚a chance for well over a year‛ is Glover’s
subjective assessment, and is something only Glover himself
could know. It cannot be shown to be true or false.
20150892-CA 8 2017 UT App 69Spencer v. Glover
¶15 As for the third and fourth statements—‚the ‘hunt-and-
peck’ comment and the ‘running up the bill’ comment‛—
Spencer acknowledges in his brief that they are also not capable
of objective verification.
¶16 A portion of the fifth statement, on the other hand, can be
objectively demonstrated to be true or false. The online review
stated that Spencer ‚yelled‛ at Glover and told him to google5
something. To yell is to ‚utter a loud cry, scream, or shout.‛ Yell,
Webster’s Third New International Dictionary (1968). Whether a
person yelled depends at least to some extent on the hearer—
what qualifies as a yell to some may not be understood as such
by others. But whether Spencer told Glover to google something
can be objectively verified.
¶17 The sixth statement also can be objectively verified.
Whether Glover actually filed a complaint against Spencer is
demonstrable true or false, as is whether Glover was considering
suing Spencer.
¶18 In sum, three statements in the online review are subject
to objective verification: (1) whether Spencer told Glover to
google something, (2) whether Glover filed a complaint with the
Utah State Bar against Spencer, and (3) whether Glover was
considering suing Spencer. The rest of the statements in the
online review cannot be objectively verified and weigh in favor
of a determination that the review expressed an opinion.
5. To ‚google‛ means ‚to use the Google search engine to obtain
information about (as a person) on the World Wide Web.‛
Google, Merriam Webster’s Collegiate Dictionary (11th ed. 2007).
20150892-CA 9 2017 UT App 69Spencer v. Glover
B. The Broader Setting in Which the Statements Appear and
the Full Context of the Statements
¶19 Next, we consider the broader setting in which the
statements were made and the full context of the statements.
Glover’s review was posted on yelp.com, a website where
people post business reviews, commenting on their experiences
and degrees of satisfaction with particular businesses. The
district court determined that ‚a necessarily subjective online
review of a particular business, published in the review section
of a website commonly used by customers to rank their
experiences with businesses of all kinds,‛ indicates that the
statements were an expression of opinion. We agree with the
district court. In West, our supreme court determined that an
article was a protected opinion, in part because it was published
in a weekly editorial column. West v. Thomson Newspapers, 872
P.2d 999, 1020 (Utah 1994). The article’s publication in that
setting was enough to indicate to readers that the statements
were not ‚hard news‛ and argued ‚strongly in favor of finding
the statements to be protected opinion.‛ Id. (internal quotation
marks omitted). There is a similar situation here. Online reviews
communicate a person’s experience with and opinion of a
business. ‚Some types of writing or speech by custom or
convention signal to readers or listeners that what is being read
or heard is likely to be opinion, not fact.‛ Id. (citation and
internal quotation marks omitted). The presence of Glover’s
objectionable statements in an online review platform signals to
readers that he was communicating his negative opinion about
Spencer.
¶20 Additionally, given the full context of Glover’s
statements, it is apparent that Glover was in the midst of an
acrimonious divorce and that he was upset about the money he
owed to Spencer and the division of marital assets in the divorce
proceedings. Glover used hyperbolic phrases throughout the
review. Given this context, ‚[i]t is unlikely that any reader
20150892-CA 10 2017 UT App 69Spencer v. Glover
would take [the review] at face value,‛ because ‚most readers
would view it as exaggerated commentary expressing *Glover’s+
frustration.‛ See id. at 1010. For example, readers are unlikely to
take literally Glover’s statement that Spencer was the ‚*w+orst
ever,‛ but rather would interpret it as conveying Glover’s
general dissatisfaction with Spencer’s performance. For these
reasons, the full context of the online review reveals it as an
expression of opinion.6
¶21 In sum, after considering Glover’s statements in light of
the factors identified in West, we conclude that the online review
constituted an expression of opinion, which is protected by the
6. The district court stated that the ‚context of the review also
shows that the statements were made by a biased, and therefore
potentially unreliable, individual.‛ In his brief, Spencer alleges
that the court relied on ‚external ‘mental-health related facts or
claims’‛ in determining that the context of the online review
demonstrated it was an expression of opinion. Spencer also
claims that the district court focused on ‚Glover’s questionable
mental health‛ in classifying the review as an opinion, and he
argues that Glover’s ‚biased and diminished state of mind‛
should not determine whether the review was an opinion,
because an average reader could not ‚objectively conclude that
Glover is biased, unreliable or mentally ill‛ based only on his
comments. Having located no reference to Glover’s mental
health in the district court’s order, this court during oral
argument inquired about Spencer’s comments. Spencer
responded that the court’s statement concerning Glover’s bias
and potential unreliability indicated that Glover suffered from
mental illness. Spencer added that he did not ‚know how else to
read‛ the court’s statement. On the contrary, we do not believe
that any impartial observer could read the court’s statement as
Spencer does.
20150892-CA 11 2017 UT App 69Spencer v. Glover
Utah Constitution unless the opinion states or implies
underlying defamatory facts.
II. The Underlying Facts Were Not Defamatory.
¶22 Our next inquiry is whether the review states or implies
underlying facts, and whether these facts were defamatory. If the
facts are not defamatory, there is no basis for a defamation
lawsuit. See West v. Thomson Newspapers, 872 P.2d 999, 1015 (Utah
1994).
¶23 The review states several facts: (1) that Glover paid
Spencer thousands of dollars and owed more, (2) that Spencer,
instead of answering Glover’s inquiry, told him to ‚GOOGLE
IT!,‛ (3) that Glover filed a complaint against Spencer with the
Utah State Bar, and (4) that Glover was considering suing
Spencer.
¶24 Again, a defamatory statement ‚impeaches an
individual’s honesty, integrity, virtue, or reputation and thereby
exposes the individual to public hatred, contempt, or ridicule.‛
Id. at 1008. We conclude that none of these statements is
defamatory.
¶25 First, Glover alleged he paid Spencer five thousand
dollars and owed him thousands more. But the review also
indicated that Spencer represented Glover in his divorce
proceedings for more than one year. Although Glover was
dissatisfied with the representation, the fact that Spencer
charged Glover for services rendered would not injure Spencer’s
reputation in the eyes of the public. See id.
¶26 Second, Glover alleged that when he asked Spencer a
question, Spencer told him to ‚GOOGLE IT!,‛ essentially telling
Glover to find the answer to his question himself. This also is not
defamatory. Although it might portray Spencer in a negative
light for being curt with a client, this type of behavior would not
20150892-CA 12 2017 UT App 69Spencer v. Glover
expose an attorney ‚to public hatred, contempt, or ridicule.‛ See
id.
¶27 Third, the fact that Glover filed a complaint against
Spencer cannot support a defamation claim. Spencer concedes in
his brief that Glover filed a complaint against him, and ‚*i+n this
state, truth is an absolute defense to an action for defamation.‛
Brehany v. Nordstrom, Inc., 812 P.2d 49, 57 (Utah 1991).
¶28 Finally, Glover alleged that he was considering suing
Spencer. Although this indicates Glover was dissatisfied with
Spencer’s representation, the fact that a person might be
contemplating a lawsuit against another doesn’t injure his
reputation to the point that he is exposed to hatred, contempt, or
ridicule. A statement that a person is ‚strongly considering
suing‛ another is not defamatory.
¶29 For these reasons, we conclude that none of the
underlying facts of the online review is defamatory. Because
they are not defamatory, the district court correctly dismissed
Spencer’s suit. See West, 872 P.2d at 1015.
CONCLUSION
¶30 The district court correctly dismissed Spencer’s
defamation claim because the review was an expression of
opinion protected by the Utah Constitution and because the
underlying facts stated in the review are not defamatory.
20150892-CA 13 2017 UT App 69