Rebecca Davidson, Tara Smelt, & Tayo, Inc. v. Baird , 438 P.3d 928 ( 2019 )

2019 UT App 8THE UTAH COURT OF APPEALS
REBECCA DAVIDSON, TARA SMELT, AND TAYO, INC.,
Appellants,
v.
CHRIS BAIRD, CONNIE MCMILLAN,
JIM STILES, AND THE CANYON COUNTRY ZEPHYR,
Appellees.
Opinion
No. 20170200-CA
Filed January 10, 2019
Seventh District Court, Moab Department
The Honorable Lyle R. Anderson
No. 160700036
Gregory W. Stevens, Attorney for Appellants
Russell C. Fericks, Barry Scholl, and Kendall
Moriarty, Attorneys for Appellees
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES KATE APPLEBY and DIANA HAGEN concurred.
HARRIS, Judge:
¶1 A free democracy is often messy and, in our country,
those willing to serve in public positions and who are entrusted
with appropriately spending the public’s money must be
“[individuals] of fortitude, able to thrive in a hardy climate,” and
willing to put up with robust, even sharp, criticism of their
actions by members of the public whom they represent. See New
York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964) (quotation
simplified). The First Amendment to the United States
Constitution affords a level of protection even for “vehement,
caustic, and sometimes unpleasantly sharp attacks on
government and public officials.” Id. at 270.
Davidson v. Baird
¶2 In this case, we are called upon to consider the legality,
under state defamation law, of certain comments—made by a
citizen, a reporter, and another public official—expressing
criticism of actions taken by Rebecca Davidson while she was
employed as the City Manager of Moab, Utah. Faced with the
choice of suffering her critics’ slings and arrows in silence, or
taking action against her sea of troubles, 1 Davidson (and two
other related plaintiffs) chose the latter course, and filed a
lawsuit accusing her critics of defamation and other torts. The
district court dismissed the lawsuit on summary judgment, and
Plaintiffs appeal. We affirm.
BACKGROUND
¶3 Davidson came to Moab with some experience—and
some experience with controversy—in municipal government.
Prior to accepting employment in Moab, Davidson worked in
the city governments of Kemmerer, Wyoming and Timnath,
Colorado. Timnath is a small town, and while the record
contains little information about Davidson’s duties there, it
appears she worked as an “engineer” or as “town manager.”
Davidson acknowledges that, during her time in Timnath,
criticism was leveled against her related to her work, but she
characterizes those allegations as “false” and claims that the
Timnath Town Council cleared her “of any wrongdoing . . .
[and] issued a press release expressing that fact.”
¶4 Following her departure from Timnath, Davidson next
took a job as the City Administrator of Kemmerer, Wyoming.
While working there, Davidson became acquainted with plaintiff
1. WILLIAM SHAKESPEARE, Hamlet, act III, sc. 1 (inquiring as to
“[w]hether ‘tis nobler in the mind to suffer the slings and arrows
of outrageous fortune, or to take arms against a sea of troubles,
and by opposing end them?”).
20170200-CA 2 2019 UT App 8Davidson v. Baird
Tara Smelt, who had been hired as Kemmerer’s Director of
Communications and Events, as well as another individual
(Consultant) who had been hired by the city as an IT consultant.
Among other things, Smelt’s duties included serving as a
“channel of communication” with Consultant. While Davidson
worked for Kemmerer, a concern apparently arose that the
town’s IT system was not sufficiently secure and might become a
target for foreign hackers, and the town hired Consultant to
investigate and address these issues.
¶5 While in Kemmerer, Davidson also became acquainted
with defendant Connie McMillan, a Kemmerer resident who
came to believe that Davidson was “creating a horrible work
environment” for city employees and was thereby causing good
employees to leave. McMillan acted on this conviction by
repeatedly voicing her concerns at city council meetings, and by
organizing like-minded citizens of Kemmerer into vocal public
opposition to Davidson.
¶6 In April 2015, Davidson left Kemmerer to take the City
Manager position in Moab. Smelt had already relocated to Moab,
and Smelt moved into Davidson’s house in Moab soon after
Davidson arrived. The City of Moab assigned Davidson goals for
2015 and 2016, including evaluating city employees and
departments to ensure they were accountable and productive. In
response, Davidson devised and implemented a reorganization
plan that included the firing, in September 2015, of two popular
longtime city employees.
¶7 Also early in her tenure in Moab, Davidson asked her
assistant city manager (Assistant) to hire someone to assess the
city’s IT system and determine the extent of its cybersecurity
issues. Davidson suggested that Assistant speak with
Consultant, with whom she had worked in Kemmerer, and the
city eventually hired Consultant. In May and June 2015,
Consultant conducted a “security assessment” of the city’s
20170200-CA 3 2019 UT App 8Davidson v. Baird
computer system and determined that it was not sufficiently
secure, and that significant work was required in order to secure
it. Soon thereafter, Davidson, Assistant, and Moab’s mayor
(Mayor) met in an executive session with the Moab City Council
and determined that, because of the “danger” presented by the
IT system’s vulnerability, there was “no time to present the work
for competitive bidding,” and concluded that the city should
retain Consultant to perform the necessary work without
following the usual competitive bidding process. Ultimately, the
city agreed to pay Consultant more than $40,000 for this work. In
late June 2015, shortly after the city hired Consultant, Smelt and
Consultant formed a company called Tayo, Inc. (Tayo), which
received the balance of the money owed to Consultant for the
work he performed for the city. At the time, Davidson informed
Mayor and the city attorney that Smelt lived at her house and
was involved with Tayo, but did not at that time disclose those
facts to the Moab City Council.
¶8 A few months later, certain individuals—including each
of the defendants in this case—began making public statements
questioning the propriety of some of Davidson’s actions in
Moab. The first of these occurred in late October 2015, when an
independent online newspaper known as The Canyon Country
Zephyr (the Zephyr) published an article written by reporter
(and defendant here) Jim Stiles, entitled “Upheaval at Moab City
Hall: For its new City Manager, REBECCA DAVIDSON, ‘It’s
DÉJÀ VU all OVER again.’” In this article, Stiles stated that
“Moab/Grand County citizens” were upset by Davidson’s
decision to terminate two city employees as part of her
restructuring plan. Stiles also stated that “upheaval . . . seems to
be a pattern for Ms. Davidson. Wherever she goes, dissension
and turmoil follow.” Stiles then discussed Davidson’s previous
employment in Timnath and Kemmerer. With regard to
Kemmerer, Stiles stated that Davidson had fired employees there
in a manner similar to the two terminations in Moab, and that
these firings had prompted several Kemmerer residents,
20170200-CA 4 2019 UT App 8Davidson v. Baird
including McMillan, to speak out in opposition to Davidson.
With regard to Timnath, Stiles reported that Davidson had
clashed with public officials and had been suspended and
eventually resigned from her position as part of a settlement.
Stiles noted that “Timnath officials would not publicly discuss
the matter,” and quoted another news report on the subject as
stating that “‘both sides [of the Timnath settlement] signed a
non-disparagement clause.’” Stiles concluded the article by
stating that “[t]he Moab City Council must have been aware of
Davidson’s background at both Timnath and Kemmerer before
they selected her” to be Moab’s city manager, and that it must
have “expected . . . that kind of baggage” when it made the
decision to hire her.
¶9 According to an affidavit he submitted before the district
court, Stiles based his assertions regarding Davidson’s
experience in Timnath on news reports and other sources.
According to the news reports upon which Stiles relied,
Davidson was employed by Timnath as its “town manager,” a
role which gave her some influence over construction and
engineering projects occurring in the town. The reports also
indicated that while serving as “town manager” Davidson
simultaneously ran an engineering firm that was paid
“hundreds of thousands of dollars a year” by Timnath. Those
same reports indicate that during Davidson’s tenure Timnath
was sued twice regarding conduct that the complainants
attributed at least in part to Davidson. Eventually, according to
the same news sources, the town council began an investigation
of Davidson’s involvement with the town’s “contracting
processes,” and suspended Davidson while the investigation
was conducted. Ultimately, per the news reports, Timnath
reached a settlement with Davidson in which she agreed to
resign and each side agreed to sign non-disparagement
agreements. The news reports quote Timnath town officials as
stating publicly, after the settlement, that there was no evidence
of “intentional wrongdoing” on Davidson’s part.
20170200-CA 5 2019 UT App 8Davidson v. Baird
¶10 Soon after the article was published, in November 2015,
McMillan posted a comment on the Zephyr’s online comments
page, stating that “[t]he citizen[s] of Moab need to demand the
removal of Rebecca Davidson as city administrator. What is
happening will be just the beginning you have no idea what the
person is capable of.”
¶11 In February 2016, Stiles wrote a follow-up article for the
Zephyr entitled “‘What’s Past is Prologue’: Three Small Towns
& Their Common Bond–City Manager Rebecca Davidson.” In a
preface, Stiles asserted that the article was based on information
gathered from many sources, including government records he
obtained from the City of Kemmerer, the Wyoming Division of
Criminal Investigation, and the City of Moab, as well as
interviews conducted with individuals who were aware of
Davidson’s activities in Timnath, Kemmerer, and Moab. In the
article, among other things, Stiles discussed Davidson’s
termination of the two longtime Moab city employees, explored
whether Davidson acted improperly with respect to Consultant’s
hiring, and examined Davidson’s previous work for Timnath
and Kemmerer, concluding that her previous employment had
been “marked by heated controversy, angry public debate, and
even litigation.”
¶12 More specifically, in the article Stiles reported on the
details of Davidson’s departure from Timnath, and stated that
“Davidson could not have been ‘cleared’ of anything” with
respect to her actions in Timnath “because the non-
disparagement agreement banned anyone involved in the
litigation from expressing any opinion at all.” While Stiles noted
that a member of Moab city government had claimed an audit
conducted by Timnath cleared Davidson of any wrongdoing,
Stiles noted that he made a governmental records request for
any such audit and was unable to even confirm its existence, let
alone review a copy of it. Stiles also reported that “a priority for
Davidson in Kemmerer was to dramatically ‘restructure’ its
20170200-CA 6 2019 UT App 8Davidson v. Baird
government, a process that led to the departure of more than 20
of its employees in just three years,” and that “Davidson . . .
made criminal allegations against two of Kemmerer’s staff,
forcing an investigation,” which, “in both cases, the county
attorney declined to prosecute.” He further stated that no
competitive procurement process had been implemented in
Moab with respect to Consultant’s hiring or the eventual
payment to Tayo, and that the City of Moab had “paid Tayo
almost $30,000, four times the maximum allowed by the city”
without conducting a competitive bid process.
¶13 Mayor publicly responded to Stiles’s second article, which
spurred Stiles to pen an op-ed piece in the Moab Sun News. In
the op-ed, Stiles stated that his article “What’s Past is Prologue”
was the result of an “exhaustive, thoroughly researched
investigation” into both Davidson’s history and her performance
as city manager of Moab. He reiterated his assertion that
Davidson’s employment in both Timnath and Kemmerer had
been characterized by controversy, and opined that Moab was
“watching history repeat itself.”
¶14 Meanwhile, during this same time period, Chris Baird, a
member of the Grand County Council, had also begun
developing concerns about some of Davidson’s actions. Baird
first began expressing his concerns in posts to a Facebook group
called “Citizens for Transparency in Local Government” that
was geared towards Moab/Grand County residents. Eventually
Baird crystallized those concerns in an op-ed written for the
Moab Sun News that was published in June 2016. In that op-ed,
Baird stated that in October 2015 he became aware of “a serious
financial impropriety concerning the city’s procurement of IT
services.” Baird went on to explain that Smelt lived with
Davidson and registered Tayo “immediately prior to the city
paying [Tayo] several thousand dollars . . . for IT services.” This,
Baird argued, presented “a clear conflict of interest” because
Davidson and Smelt lived together when Smelt’s company was
20170200-CA 7 2019 UT App 8Davidson v. Baird
enriched by a city contract. Baird went on to state that “State law
requires that such conflicts [of interest] be declared” through a
formal process and that, “[as] far as I know, no such declaration
was made.” Baird also expressed that he felt “dismay” at
Davidson’s termination of city employees, and indicated he
wanted to “see a greater level of accountability in finance” from
the city government and for the city to “rethink their callous new
management practices.”
¶15 After publishing this op-ed, Baird made several
additional postings to the “Citizens for Transparency in Local
Government” Facebook group. In those posts, Baird defended
his op-ed, and stated that he was concerned that the City of
Moab had hired Smelt’s company without Davidson properly
disclosing her relationship with Smelt, which Baird opined was
“in violation of all kinds of ethical laws.” He also argued that
Davidson’s actions constituted a violation of legal or ethical
standards governing her position. In addition to these online
comments, Baird also made oral and written statements to
members of the Moab City Council, and written statements to
auditors investigating the situation, repeating his view that
Davidson had violated legal or ethical standards.
¶16 Also, during the same time period, McMillan posted
several online comments to stories on the “Citizens for
Transparency in Local Government” Facebook page. In these
comments, McMillan noted that she was a Kemmerer resident
and stated that Davidson had “destroyed our community” and
urged Moab’s citizens to avoid letting Davidson “do to Moab
what she did to Kemmerer.” McMillan also referenced the events
in Kemmerer concerning the suspected foreign cyberhacking
that Consultant was paid to address, and compared those events
to the cybersecurity issues Consultant identified and Tayo was
paid for in Moab, stating that she “would question how almost
the exact same situation [that] was reported in Kemmerer” could
have presented itself again in Moab. She stated that she found it
20170200-CA 8 2019 UT App 8Davidson v. Baird
“highly unlikely that a foreign threat would happen in both
Kemmerer and Moab that resulted in the amount of money
being spent by both communities to a company partially owned
by” Smelt. McMillan also reiterated her belief that Davidson had
been difficult to work with in Kemmerer, stating that
“approximately 25 [city] employees left or were fired” during
Davidson’s tenure, and asserting in a separate post that “more
than 28 employees left the city of Kemmerer” because of a
hostile work environment during that period.
¶17 In June 2016, after the publication of Baird’s op-ed, the
city conducted an independent audit of “transactions and
actions [from 2013 to 2016] involving engineering services, IT
services[,] and other areas . . . to ensure that all those processes
were performed correctly.” The audit was completed by the end
of June, and the auditor determined that “the City had followed
its existing policies and procedures when it hired Tayo.”
¶18 After he reviewed the auditor’s findings, Baird sent a
letter to the Mayor and to the Moab City Council indicating that
he had “reviewed the independent audit findings” and had
discussed further questions with the auditor, and that these new
developments had prompted him to conclude that Davidson had
not actually violated the letter of the law or of the City’s ethics
regulations. Nonetheless, Baird continued to express his
displeasure with Davidson, stated that he and the auditor agreed
that, “in princip[le],” Davidson’s conduct should have been
prohibited, and characterized Davidson as having taken
advantage of a “loophole” to violate “the spirit of the laws and
policies” governing her position. Baird advocated that the
loophole be closed and that greater care be taken in future
expenditures of public funds.
¶19 On September 13, 2016, the city placed Davidson on
administrative leave for reasons not appearing in the record.
However, around the time Davidson was placed on leave, the
20170200-CA 9 2019 UT App 8Davidson v. Baird
city council held meetings that included an agenda item for
discussion of a proposed ordinance that would heighten city
employees’ disclosure requirements regarding potential conflicts
of interest pertaining to city transactions. On September 30, 2016,
Davidson was terminated from her position as city manager for
proffered reasons that do not appear in the record, but which
Davidson contends were not related to the facts at issue here.
¶20 On September 16, 2016, three days after she was placed on
administrative leave, Davidson initiated this lawsuit, accusing
the Zephyr, Stiles, Baird and McMillan (Defendants) of defaming
her and intentionally causing her to suffer emotional distress.
Smelt and Tayo joined in the lawsuit, 2 with Smelt asserting that
Defendants had defamed her and intentionally inflicted
emotional distress upon her, and with both Smelt and Tayo
claiming that the defendants intentionally interfered with their
economic relations.
¶21 Defendants moved for judgment on the pleadings or, in
the alternative, for summary judgment. Both sides attached
affidavits to their memoranda, and the district court ended up
considering those affidavits and deciding the motion pursuant to
rule 56 of the Utah Rules of Civil Procedure. In their motion,
Defendants argued that Davidson’s and Smelt’s defamation
claims failed because Defendants’ statements were either true or
substantially true, were pure statements of opinion, or fell under
the “public interest exception” protecting speech concerning
governmental bodies, officials, and matters involving the
expenditure of public funds. Specifically, Defendants asserted
that Plaintiffs could not prevail on their defamation claims
without proving “actual malice,” which Defendants asserted
required Plaintiffs to prove that Defendants had “published the
2. Davidson, Smelt, and Tayo are sometimes referred to herein as
“Plaintiffs.”
20170200-CA 10 2019 UT App 8Davidson v. Baird
allegedly defamatory material with knowledge that it was false,
or with reckless disregard for the truth.” Defendants further
argued that Plaintiffs’ claims for intentional infliction of
emotional distress and intentional interference with economic
relations depended on a finding of defamation, and would fail if
the defamation claims did.
¶22 Plaintiffs opposed Defendants’ motion, with affidavits,
but did not ask for additional discovery pursuant to rule 56(d) of
the Utah Rules of Civil Procedure. After a hearing, the district
court granted summary judgment to Defendants, agreeing that
the allegedly defamatory statements were all either true or “in
essence, true,” were pure statements of opinion, or were
protected under the “public interest privilege.” The court further
found that Plaintiffs had not presented evidence sufficient to
demonstrate that Defendants acted with “actual malice,” which
the court identified as the standard of fault for a defamation
claim under the facts of this case. The court also agreed with
Defendants that the claim for intentional interference with
economic relations depended on the success of their defamation
claims, and failed because the defamation claims did. The court
further determined that the claim for intentional infliction of
emotional distress failed because Defendants’ statements were
not outrageous or intolerable as a matter of law.
ISSUES AND STANDARDS OF REVIEW
¶23 Plaintiffs appeal, and ask us to consider three issues. First,
they contend that the district court erred when it determined
that Defendants were entitled to summary judgment with
respect to Plaintiffs’ defamation claims. Second, Smelt and Tayo
contend that the district court erred when it determined that
Defendants were entitled to summary judgment on their claims
for intentional interference with economic relations. Third,
Davidson and Smelt contend that the district court erred when it
20170200-CA 11 2019 UT App 8Davidson v. Baird
awarded summary judgment to Defendants with respect to their
claims for intentional infliction of emotional distress.
¶24 “Summary judgment is appropriate where ‘there is no
genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.’” Gardiner v. Anderson,
2018 UT App 167, ¶ 14 (quoting Utah R. Civ. P. 56(a)). “We
review the district court’s grant of summary judgment for
correctness and accord no deference to its conclusions of law.”
Id. (quotation simplified). In addition, “we may affirm the result
reached by the district court if it is sustainable on any legal
ground or theory apparent on the record, even though that
ground or theory was not identified by the lower court as the
basis of its ruling.” Id. (quotation simplified).
ANALYSIS
I. Defamation
¶25 Plaintiffs’ central claim is that Defendants made
defamatory statements about them, causing them to suffer
damages. In order to succeed on their defamation claim,
Plaintiffs must prove five separate elements: (1) that Defendants
published the statements in question; (2) that the statements
were false; 3 (3) that the statements were not subject to any
3. This element is often thought of as an affirmative defense
upon which the defendant would bear the burden of proof. See,
e.g., Brehany v. Nordstrom, 812 P.2d 49, 57 (Utah 1991) (stating
that “truth is an absolute defense to an action for defamation”).
But where the plaintiff “is a public figure or the statement
involves a matter of public concern,” it is the plaintiff who “must
shoulder the burden in his case-in-chief of proving the falsity of
the challenged statement.” See Bustos v. A&E Television Networks,
646 F.3d 762, 764 (10th Cir. 2011) (emphasis in original) (citing
(continued…)
20170200-CA 12 2019 UT App 8Davidson v. Baird
privilege; (4) that the statements were published with the
requisite degree of fault; and (5) that the statements resulted in
damages. See Jacob v. Bezzant, 2009 UT 37, ¶ 21, 212 P.3d 535.
Plaintiffs’ claims here fail to satisfy the second and fourth
elements, because some of Defendants’ statements are either
substantially true (on the record before us) or are pure
statements of opinion which cannot, by definition, be proven
false, and Plaintiffs have in any event failed to demonstrate that
Defendants acted with the requisite degree of fault.
A. The Allegedly Defamatory Statements
¶26 The first element that Plaintiffs must prove is that
Defendants made the statements that Plaintiffs consider
defamatory. In this case, there is no controversy about whether it
was Defendants—as opposed to someone else—who published
the statements in question. Indeed, Defendants concede in their
brief that they “do not dispute either that the statements
occurred or the specific content of the statements.”
¶27 The difficulty presented by this first element is that
Plaintiffs nowhere provide—not in their complaint, their
summary judgment briefing below, or in their briefs on appeal—
a comprehensive list of the statements they assert were
defamatory. They certainly mention newspaper articles,
(…continued)
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986)).
Davidson concedes that she is a public figure and, as we discuss
below, we conclude that Smelt and Tayo are public figures for
the purpose of assessing whether statements made about the
public contract awarded to Consultant and Tayo are defamatory,
and that all of the speech at issue here is therefore of public
concern. Accordingly, in this case Plaintiffs bear the burden of
proving that the statements they assail are false.
20170200-CA 13 2019 UT App 8Davidson v. Baird
Facebook postings, and other statements in their briefs, but those
articles and postings are lengthy and voluminous, and Plaintiffs
acknowledge that not every statement contained in the identified
posts and articles is alleged to be defamatory. In order to
determine whether Defendants made actionable statements, we
of course need to know what those statements are. When
questioned about this at oral argument, Plaintiffs’ counsel
agreed that, if a particular statement was not specifically
mentioned in Plaintiffs’ opening brief, it was not intended to be
among the statements Plaintiffs assert are actionable. 4
¶28 After examination of Plaintiffs’ brief, and as near as we
can tell, it appears the following statements are the ones that
Plaintiffs complain are defamatory:
Statements by McMillan:
• That the residents of Moab had “no idea” what
Davidson was capable of;
• That Davidson “destroyed” Kemmerer,
Wyoming;
• That Moab should not “let [Davidson] do to
Moab what she did to Kemmerer”;
4. While we have our doubts that this procedure is adequate,
Defendants do not take issue with the manner in which Plaintiffs
have set forth the specific statements upon which they rest their
case, and therefore we choose not to ascribe dispositive effect to
the somewhat cavalier manner in which Plaintiffs have
identified the statements at issue. However, we emphasize that
future defamation plaintiffs would be well-served by including
in their complaints a list or other specific identification of the
particular statements alleged to be tortious.
20170200-CA 14 2019 UT App 8Davidson v. Baird
• That “approximately 25” or “more than 28”
employees left the City of Kemmerer during
Davidson’s tenure;
• That “the exact same situation” involving a
purported security breach resulting in a
contract being awarded to Tayo occurred in
Kemmerer prior to occurring in Moab, and that
McMillan found it “highly unlikely that a
foreign [cybersecurity] threat would happen in
both Kemmerer and Moab that resulted in the
amount of money being spent by both
communities to a company partially owned by
Tara Smelt.”
Statements by Baird:
• That Davidson’s suggestion of Consultant for
Moab City’s IT work, without what he viewed
as proper disclosure, was a “serious financial
impropriety” and presented a “clear conflict of
interest” because the work done by Consultant
ultimately enriched Tayo and Smelt;5 and
5. In their brief, Plaintiffs assert that Baird stated that Assistant
and Davidson had “violated the law and ethics rules by hiring
Tayo, Inc. to perform IT services for [Moab].” Plaintiffs then
argue that this statement was false because “Davidson did not
hire Tayo, Inc. to perform IT services for the City.” But the
record does not support this characterization of Baird’s
statements. In fact, the portions of the record to which Plaintiffs
refer demonstrate that Baird was aware that Davidson did not
hire Tayo directly, and that the hire was made by Assistant for
and on behalf of the City of Moab. Instead, Baird argued that
Davidson’s actions before the formation of Tayo enriched both
(continued…)
20170200-CA 15 2019 UT App 8Davidson v. Baird
• That Davidson and Assistant violated legal and
ethical rules by hiring Consultant.
Statements by Stiles and the Zephyr:
• That Davidson’s actions as city administrator in
Kemmerer “led to the departure of more than
20” Kemmerer employees “in just three years”;
• That Davidson’s experiences in city
government in Timnath and Kemmerer were
“marred by heated controversy, angry public
debate, and litigation”;
• That Davidson had not been definitively
cleared of wrongdoing in Timnath;
• That Tayo was hired without participating in a
competitive procurement process and received
payments above and beyond what would
normally be allowed by the city without that
process; and
• That Moab was “watching history repeat itself”
in reference to Davidson’s actions in Timnath
and Kemmerer. 6
(…continued)
Tayo and, by extension, Davidson’s housemate Smelt, without
Davidson disclosing the “clear conflict of interest” that Baird
believed this arrangement entailed.
6. Plaintiffs also allege that Stiles stated that Davidson, during
her tenure as Kemmerer’s City Administrator, “wrongfully
terminated a large number of employees and made false
(continued…)
20170200-CA 16 2019 UT App 8Davidson v. Baird
¶29 Thus, there are approximately a dozen specific
statements that Plaintiffs assert were defamatory. For the
reasons that follow, in our view each of those statements fails to
satisfy at least one of the elements of a defamation claim. Our
supreme court has noted that there are “countless ways [in
which] the law [of defamation] defers to the commanding
presence of free expression among our liberties.” See Jensen v.
Sawyers, 2005 UT 81, ¶ 89, 130 P.3d 325. Some of the statements
at issue here are true or substantially true. Some are pure
statements of opinion, which are not actionable in defamation.
And none of the statements was published with the necessary
degree of fault applicable here, given that the statements were
made about a public official and about the expenditure of public
funds.
B. Truth, Falsity, and Opinion
¶30 The second element of any successful defamation claim is
that the “statements were false.” See Jacob v. Bezzant, 2009 UT 37,
¶ 21, 212 P.3d 535. Defendants assert that some of the statements
at issue are in fact true—or at least there is no evidence on this
record that they are not—or are statements of opinion that by
definition cannot be proven false. We agree with Defendants.
(…continued)
allegations against employees who left their employment with
that municipality.” Plaintiffs do not cite to the record for this
proposition, and in fact their characterization appears wholly
unsupported. Although Stiles did indicate that Davidson
terminated employees at Kemmerer and accused individuals of
criminal activity, we are unable to locate any portion of Stiles’s
comments in which he alleges that the terminations were
wrongful or that the accusations were false. Accordingly, we do
not consider those claimed statements.
20170200-CA 17 2019 UT App 8Davidson v. Baird
¶31 A plaintiff is definitionally unable to meet this
requirement with regard to statements of pure opinion, because
such statements “are incapable of being verified” and therefore
“cannot serve as the basis for defamation liability.” See West v.
Thomson Newspapers, 872 P.2d 999, 1015 (Utah 1994). But “this
protection is abused when the opinion states or implies facts that
are false and defamatory.” Id. (quotation simplified).
Accordingly, in examining whether Plaintiffs have met their
burden on this second element, we must determine whether any
of the statements at issue here constitute protected expressions
of opinion and, if so, whether any of those opinions state or
imply underlying facts that might be considered defamatory. See
Spencer v. Glover, 2017 UT App 69, ¶ 8, 397 P.3d 780.
¶32 Here, several of the statements Plaintiffs challenge are
expressions of pure opinion that do not state or imply facts and
are therefore not practically verifiable. See West, 872 P.2d at 1015.
McMillan’s statement that Davidson “destroyed” Kemmerer,
Wyoming is a perfect example. No reader would take such a
statement literally—clearly Kemmerer, Wyoming still exists, and
has not been reduced to rubble by Davidson’s actions. Such a
statement is obviously intended to express McMillan’s
“subjective belief and amounts to rhetorical hyperbole.” See
Spencer, 2017 UT App 69, ¶ 12 (quotation simplified) (referring to
a client’s Yelp review that his lawyer was the “worst lawyer
ever”); see also Hogan v. Winder, 762 F.3d 1096, 1108 (10th Cir.
2014) (applying Utah law, and stating that a “reasonable reader
would realize not only that the accusation was made in the heat
of a nasty employment dispute but also that the objectionable
terms were merely hyperbole and rhetorical flourish”). 7 As the
7. It might also be said that such statements, in addition to being
protected statements of opinion, are not susceptible to a
defamatory meaning. See O’Connor v. Burningham, 2007 UT 58,
¶ 26, 165 P.3d 1214 (engaging in a “context-driven assessment”
(continued…)
20170200-CA 18 2019 UT App 8Davidson v. Baird
district court aptly noted, “[w]hether or not Ms. Davidson
destroyed Kemmerer, Wyoming is clearly . . . a matter of opinion
and not something we could ever try to determine its truth or
falsity in this court.”
¶33 Other statements fall into this same category, including
McMillan’s statements that Moab residents had “no idea what
[Davidson] was capable of,” and that they should not “let
Davidson do to Moab what she did to Kemmerer,” and Stiles’s
statement that Moab was “watching history repeat itself” with
respect to Davidson’s actions. Although we acknowledge that
“opinions rarely stand alone, isolated from any factual
moorings,” and that “[a]ssertions of fact, being objectively
verifiable and much more capable of harming reputation, are not
entitled to the same degree of protection afforded expressions of
opinion,” West, 872 P.2d at 1015, Plaintiffs identify no specific
assertions of fact, whether explicit or implicit, that these
(…continued)
of the alleged defamatory statement to determine whether the
statement was “susceptib[le] to a defamatory interpretation”).
Indeed, some of the statements to which Plaintiffs point were
made in “op-ed” pieces in news publications, a forum that is a
“traditional source of harsh political invective.” See West v.
Thomson Newspapers, 872 P.3d 999, 1009 (Utah 1994). “[C]riticism
by newspaper columnists comes with the job of being” a public
official, and “[w]hile statements about public figures in
newspaper editorials are not incapable of being defamatory,”
such statements’ presence in editorial form tends to “negate
damage to [the public official’s] reputation and therefore
make[s] it less likely that the statement was defamatory.” Id. at
1009–10. Because we have other grounds upon which to rest our
conclusions, it is not necessary for us to reach the merits of
whether the challenged statements were, in context, susceptible
of a defamatory meaning.
20170200-CA 19 2019 UT App 8Davidson v. Baird
particular statements invoke. These statements are pure
statements of opinion that do not themselves state or imply
specific facts, and Plaintiffs therefore cannot meet their burden
of establishing that these statements are false. 8
¶34 Moreover, some of the challenged statements, although
not fairly characterized as statements of opinion, appear on this
record to be true, or at least substantially true. See Bustos v. A&E
Television Networks, 646 F.3d 762, 764 (10th Cir. 2011) (stating that
“minor inaccuracies do not amount to falsity so long as the
substance, the gist, the sting of the libelous charge be justified”
(quotation simplified)). For instance, McMillan’s statements that
“approximately 25” or “more than 28” employees left Kemmerer
during Davidson’s tenure appear to be at least substantially true.
Plaintiffs concede that Davidson fired at least two employees
during her time in Kemmerer, and that an unspecified number
of other employees left Kemmerer’s employ for various other
reasons, including “seasonal employees” leaving “at various
times.” But Plaintiffs provide no other evidence that would help
us nail down the exact number of employees who ceased
working at Kemmerer during Davidson’s time there. If, for
instance, twenty-four employees left Kemmerer’s employ during
Davidson’s tenure, such that McMillan’s statement was only
inaccurate by one employee, McMillan’s statement would be at
least substantially true, and therefore not actionable. See id.Similarly, Stiles’s statement that Davidson’s experience at
8. Some of the other statements—most notably Baird’s expressed
view that Davidson violated legal or ethical rules—are offered as
opinions, but state or at least imply the existence of certain facts.
With regard to those statements, the district court correctly
entered judgment for Defendants, not because the statements
were non-actionable expressions of pure opinion, but because—
as discussed below—there is no evidence that Defendants had
the requisite degree of fault in making those statements.
20170200-CA 20 2019 UT App 8Davidson v. Baird
Timnath and Kemmerer was “marred by heated controversy
[and] angry public debate” appears to be at least substantially
true. It is undisputed that Davidson’s actions in Timnath were
the subject of some controversy, including media scrutiny. And
the very existence of McMillan’s Facebook postings more or less
demonstrates that there was at least some contentious public
debate about Davidson’s actions in Kemmerer. Because
Davidson has not produced any evidence to demonstrate
whether, and if so by how far, these statements are false, such
statements cannot be considered actionable here.
C. Actual Malice and Fault
¶35 Thus, many of the statements to which Plaintiffs point
cannot be defamatory because they are not false or cannot be
shown to be false. Relatedly, however, even if we were to
assume that there were a hint of falsity to at least some of
Defendants’ statements, Plaintiffs’ defamation claims still fail,
because Plaintiffs have not demonstrated that Defendants acted
with the necessary degree of fault. As we discuss, because
Davidson is a public official and the controversy in this case
deals with the expenditure of public funds, Plaintiffs must prove
more than merely the existence of false statements about them;
they must demonstrate that Defendants acted with “actual
malice” in making the statements in question. And on the record
before us, Plaintiffs fall short of any such showing here.
¶36 Over the years, our country has developed “a profound
national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open, and that it
may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials.”
See New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). In the
course of such robust debates on issues of public concern, it is
inevitable that, on occasion, statements are made that are not
completely accurate. Id. at 271 (stating that “erroneous
20170200-CA 21 2019 UT App 8Davidson v. Baird
statement[s are] inevitable in free debate”). Such occasional false
statements are part of the price we pay for an open democracy
and “must be protected if the freedoms of expression are to have
the breathing space that they need to survive.” Id. at 271–72
(quotation simplified).
¶37 The level of protection that a statement receives, under
principles of free speech and expression, depends upon the
identity of the plaintiff alleging defamation. “A central maxim
. . . in the realm of defamation law” is that “all persons are not
treated equally.” O’Connor v. Burningham, 2007 UT 58, ¶ 8, 165
P.3d 1214. Instead, “[t]hose who by choice or mishap acquire the
status of a public official or public figure surrender a sizeable
measure of their right to recover damages from those who
defame them,” in the form of facing a heavier burden to
demonstrate that defamation occurred. Id. Indeed, “[t]he
constitutional guarantees require . . . a federal rule that prohibits
a public official from recovering damages for a defamatory
falsehood relating to his [or her] official conduct unless he [or
she] proves that the statement was made with ‘actual malice.’”
Sullivan, 376 U.S. at 279–80. Actual malice, as defined in this
context, does not necessarily have anything to do with ill will or
spite toward the person who is the subject of the statement;
rather, an actor acts with “actual malice” if he makes a statement
“with knowledge that it was false or with reckless disregard of
whether it was false or not.” Id. at 280.
¶38 In this case, all parties agree that Davidson is a public
figure who must prove actual malice in order to succeed on her
defamation claim. Plaintiffs maintain, however, that Tayo and
Smelt are not public figures, and therefore that those two parties
need not prove that Defendants acted with actual malice. 9 To
9. We note that none of Defendants’ statements which Plaintiffs
challenge on appeal directly concern Smelt and Tayo, and only a
(continued…)
20170200-CA 22 2019 UT App 8Davidson v. Baird
support this proposition, Defendants cite Wayment v. Clear
Channel Broadcasting, Inc., 2005 UT 25, 116 P.3d 271. In that case,
an ex-employee of a local television station sued her former
employer for public statements she believed her supervisor
made about the reasons for her departure from the station. Id.
¶ 1. Her employer moved for summary judgment, arguing that
she was a “public figure” for purposes of his statements and that
she thus needed to meet a heavier burden of proof. Id. ¶ 13. The
district court agreed and, applying that higher standard of proof,
dismissed plaintiff’s defamation suit. Id. ¶ 14. On appeal, our
supreme court reversed and, in so doing, clarified the contours
of who may or may not be defined as a “public figure” in the
context of defamation.
¶39 First, our supreme court noted that there are two ways an
individual can be considered a public figure with respect to
allegedly defamatory statements. The first establishes an
individual as “a public figure for all purposes and in all
contexts” by virtue of their “’general fame or notoriety in the
community[] and pervasive involvement in the affairs of
society.’” Id. ¶¶ 24–25 (quoting Gertz v. Robert Welch, Inc., 418
U.S. 323, 352 (1974)). The second is significantly narrower,
establishing an individual as “a limited-purpose public figure.”
Id. ¶ 31. While all allegedly defamatory statements about an all-
purpose public figure must be made with actual malice in order
to be actionable, id. ¶¶ 19–22, statements about a “limited-
purpose public figure” are subject to that heavier burden only if
they are based on “a particular public controversy” in which the
(…continued)
few of those statements mention them even obliquely. For
purposes of this opinion, however, we assume without deciding
that Smelt and Tayo were ancillary subjects of Defendants’
statements and that this sort of indirect reference could be
sufficient to support a claim for defamation.
20170200-CA 23 2019 UT App 8Davidson v. Baird
person “intentionally sought or obtained a position of
influence,” id. ¶ 32.
¶40 Here, Plaintiffs argue that Smelt and Tayo were not public
figures because, although Tayo’s retention by the city and
Davidson’s conduct as city manager were public controversies,
neither Smelt nor Tayo intentionally sought or obtained a
position of influence with respect to that controversy. “To the
contrary,” Plaintiffs argue, Smelt and Tayo are just “private
parties who merely engaged in activities, which, as a result of
the false statements by [Defendants], attracted public attention.”
¶41 We disagree. While we acknowledge that neither Smelt
nor Tayo appear to have participated in the public debate
regarding the propriety of Davidson’s actions, we note that Tayo
received public funds pursuant to a city contract to perform IT
work, and Smelt was Tayo’s co-founder and co-owner. In other
jurisdictions, courts have held that government contractors who
receive government funds and then are involved in a
controversy involving those contracts are public figures for the
purposes of that controversy. See Broussard v. Kaplan, 604 So. 2d
77, 83–84 (La. Ct. App. 1992) (holding that an insurance agent
who received a contract for a city’s health insurance was a public
figure with respect to a controversy surrounding how that
contract was awarded); Vandentoorn v. Bonner, 342 N.W.2d 297,
300–01 (Mich. Ct. App. 1983) (holding that a plaintiff who owned
and operated a towing and wrecking business and had a city
contract was a public figure for the purpose of comments
regarding his performance under that contract); Gleichenhaus v.
Carlyle, 597 P.2d 611, 613 (Kan. 1979) (holding that a real estate
agent who made a large campaign contribution to a city
politician and subsequently received several appraisal contracts
from the city without being subjected to a competitive bidding
process was a limited-purpose public figure with respect to
controversy surrounding both his contributions and the
contracts he was awarded); see also Tracy A. Bateman, J.D., Who
20170200-CA 24 2019 UT App 8Davidson v. Baird
is “Public Figure” for Purposes of Defamation Action, 19 A.L.R. 5th 1§ 106[a] (1994) (collecting cases in which public contractors were
found to be public figures for the limited purpose of the details
and scope of their contracts). We find the reasoning of these
cases persuasive. Here, Tayo was paid public funds pursuant to
a government contract that was awarded without a competitive
bidding process, and at the time Smelt was a part-owner of Tayo
and Davidson’s housemate. Whether Tayo was properly a part
of that government contract is unquestionably a matter of public
concern. Accordingly, we are persuaded that Tayo and Smelt are
limited-purpose public figures with respect to any controversy
surrounding the process by which Consultant was awarded a
government contract and Tayo received the funds associated
with that contract, 10 and to the extent the district court’s
determination rested on that conclusion, it did not err.
¶42 Because all three Plaintiffs are public figures for the
purposes of evaluating the statements in question, they each
must establish not only that Defendants’ statements were false
but also that Defendants acted with “actual malice” in making
the statements. Ferguson v. Williams & Hunt, Inc., 2009 UT 49,
¶ 22, 221 P.3d 205. To demonstrate actual malice, a plaintiff must
present evidence that the speaker either knew the allegedly
defamatory statement was untrue at the time it was made, or
that the speaker acted at least “with reckless disregard” as to the
statement’s truth or falsity. Id. ¶ 30. The former can be
demonstrated by presenting evidence that the defendant, at the
time he made the statement, was aware of but ignored factual
information contradicting the statement. Id. The latter, while
“substantially subjective,” can be shown by providing “sufficient
10. We note that Plaintiffs do not allege that any of Defendants’
statements that involved Smelt and Tayo stemmed from
anything other than the controversy regarding Consultant’s
retention (and Tayo’s eventual payment) by Moab.
20170200-CA 25 2019 UT App 8Davidson v. Baird
evidence to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his publication,” id.(quotation simplified), or that the statement was “so inherently
improbable that only a reckless [individual] would have put [it]
in circulation,” id. (quotation simplified).
¶43 Here, Plaintiffs cannot point to sufficient evidence to meet
that standard with regard to the statements they challenge. In
their briefing, Plaintiffs spent significant energies attempting to
demonstrate that Defendants acted with “ill will” or spite
towards Davidson. Plaintiffs argue that Defendants “were angry
and very upset” over Davidson’s actions and that this anger
demonstrates that Defendants acted with “malice.” But Plaintiffs
appear to confuse the legal term “actual malice,” which can only
be proved by demonstrating that Defendants knew their
statements were false or acted with reckless disregard as to the
statements’ potential falsity, id., with “common law malice,”
often used to “prove abuse of a conditional privilege,” which can
be proven in some circumstances by demonstrating “[i]ll will or
spite,” id. ¶ 47; see also Russell v. Thomson Newspapers, Inc., 842
P.2d 896, 904 (Utah 1992) (stating that “[a]ctual malice refers to
the constitutionally mandated level of fault necessary for public
figure cases,” while “malice” refers to “simply a means of
determining when” a privilege is forfeited). 11 For purposes of
11. It is unclear from the record whether the district court was
applying constitutional malice requirements or the common-law
public interest privilege in dismissing Plaintiffs’ claims for lack
of “malice.” In Defendants’ motion, they invoked the public
interest privilege, but also stated that Plaintiffs could not prove
defamation without proving “actual malice,” which they defined
as a showing that “the defendant published the alleged
defamatory material with knowledge that it was false or with
reckless disregard of whether it was false.” Then, in its ruling,
the district court likewise invoked the public interest privilege,
(continued…)
20170200-CA 26 2019 UT App 8Davidson v. Baird
demonstrating actual malice, however, it does not matter
whether Defendants disliked Plaintiffs. It only matters whether
Defendants made statements they knew (or recklessly
disregarded the possibility that they) were false.
¶44 On that subject, Plaintiffs offer virtually no evidence in
support of their position. Although they characterize
Defendants’ statements as “obviously, objectively false” and
“entirely baseless and unsupportable,” the evidence supporting
these characterizations is nearly nonexistent, and in our view
(…continued)
but also quoted the constitutional “actual malice” standard. At
no point in the proceedings before the district court did Plaintiffs
invoke rule 56(d) of the Utah Rules of Civil Procedure or make
any request for additional discovery, even though Defendants
had argued that part of the reason they believed summary
judgment was appropriate was because they believed Plaintiffs
had no evidence that Defendants knew (or recklessly
disregarded evidence that) their statements were false. While we
acknowledge some confusion with regard to the extent to which
the district court rested its decision on the constitutional “actual
malice” standard, it is in any event clear from the record that the
issue was raised in Defendants’ motion and that no request for
additional discovery was made, and we may affirm the district
court’s decision on any ground apparent from the record. See
Gardiner v. Anderson, 2018 UT App 167, ¶ 14 (stating that “we
may affirm the result reached by the district court if it is
sustainable on any legal ground or theory apparent on the
record, even though that ground or theory was not identified by
the lower court as the basis of its ruling” (quotation simplified)).
In our view, it is apparent from the record that Plaintiffs have
not produced evidence indicating that Defendants acted with the
requisite level of fault (actual malice), and we therefore affirm
largely on that basis.
20170200-CA 27 2019 UT App 8Davidson v. Baird
insufficient as a matter of law to demonstrate that any of the
Defendants acted with actual malice.
1. Stiles’s Statements
¶45 Contrary to Plaintiffs’ contentions, none of Stiles’s
statements is obviously false. For instance, his statement about
the number of employees who left Kemmerer during Davidson’s
tenure was carefully phrased; he stated that “[c]ritics of
Davidson argue that more than 20 Kemmerer city employees left
their jobs during her three years in Kemmerer,” but noted that
there is no “official count” of how many employees left, and that
it is “impossible to confirm” the reasons for each individual
employee’s departure. Plaintiffs do not dispute that at least some
employees left Kemmerer’s employ during Davidson’s tenure,
but have not offered any evidence as to what the exact number
was, or the reasons for the departures. More to the point,
Plaintiffs have produced nothing that would indicate that Stiles
knew that his description of these events was false, or that he
recklessly disregarded the possibility that it might be. Similarly,
even if Stiles’s statement that Davidson’s previous experiences in
city government had been “marred by heated controversy, angry
public debate, and litigation” is assumed to have some minor
inaccuracies, see supra ¶ 34, Plaintiffs have not provided
evidence to establish exactly what those inaccuracies are or,
more importantly, that Stiles was aware of (or acted with
reckless disregard toward) any inaccuracies.
¶46 Further, Plaintiffs also have not demonstrated that Stiles
was off-base when he stated that Davidson had never been
“cleared of wrongdoing” in Timnath. Although Stiles
acknowledged that Davidson maintained she had been
exonerated by an audit, he noted that—despite making a request
for the audit—he had never received direct evidence that this
was true, and further noted that, according to his sources,
Davidson’s claim was undermined by a non-disparagement
20170200-CA 28 2019 UT App 8Davidson v. Baird
agreement banning Timnath officials from discussing the issue.
Further, Stiles claimed to have drawn his version of the facts
regarding Timnath from various sources, including other news
reports which he attached to his affidavit. Plaintiffs have
provided no evidence that the facts in those articles or Stiles’s
characterization of those facts was incorrect, or that he was
otherwise aware of (or acted with reckless disregard toward) any
inaccuracies in this account.
¶47 It is a similar story with regard to Stiles’s statements that
Tayo was hired without participating in a competitive
procurement process and received payments over and above
what would normally be allowed by the city without such a
process. Plaintiffs characterize these statements by Stiles as
allegations that “Davidson had violated the requirement for a
competitive procurement process” when Tayo was hired.
Plaintiffs then attempt to rebut these allegations by explaining
that Consultant was retained (and Tayo eventually paid for
Consultant’s work) on an emergency basis by Davidson and
Assistant. But the record does not support Plaintiffs’
characterization of Stiles’s statements. Instead, Stiles indicated—
correctly—that no competitive procurement process was
followed for the retention of Consultant, and that the eventual
payout to Tayo exceeded the amount normally allowed without
a competitive procurement process. Stiles did not explicitly
assert that the requirement for a competitive procurement
process was violated and, indeed, detailed the justification
Plaintiffs now offer in the text of his article, albeit in a way that
suggests he disagrees with Plaintiffs’ reasoning. As with the
other statements, Plaintiffs offer no evidence that Stiles made
these statements with at least a reckless disregard for the
possibility that they might be false.
¶48 Part of the reason the record is devoid of any such
evidence is that Plaintiffs did not depose—or even request to
depose—Stiles or anyone else associated with the Zephyr to
20170200-CA 29 2019 UT App 8Davidson v. Baird
determine what they knew at the time they made the allegedly
defamatory statements, as other successful defamation plaintiffs
have done when bringing suit against news reporters. See, e.g.,
Harte-Hanks Comms., Inc. v. Connaughton, 491 U.S. 657, 682–84
(1989) (permitting the question of actual malice to be submitted
to the jury because the plaintiff established, partly through
deposing the reporter who wrote the allegedly-defamatory story,
that the reporter had deliberately chosen not to interview
potential witnesses who might tell a different story than the one
printed, and that therefore there was a question of fact as to
whether the reporter recklessly published a false statement); cf.
Russell, 842 P.2d at 899, 905 (allowing a plaintiff to proceed to
trial on the question of “malice” because she presented evidence
that the reporter wrongly attributed a quote to a person). As a
result, other than Stiles’s own assertions that he conducted an
“exhaustive, thoroughly researched investigation” involving
numerous public records requests and interviews, the record
contains no indication about the level of diligence Stiles achieved
while researching the facts underlying his articles. There is no
evidence, on this record, that there exist sources that Stiles
should have consulted but did not, or individuals Stiles should
have interviewed but did not. See Connaughton, 491 U.S. at 682–
84. There is certainly no indication that Stiles recklessly failed to
complete basic research into his stories for the purpose of
publishing a deliberately one-sided article.
2. Baird’s Statements
¶49 Plaintiffs have similarly failed to provide evidence that
Baird knew, or recklessly disregarded the possibility, that any of
his statements were false. The chief statement attributed to Baird
with which Plaintiffs take issue is Baird’s viewpoint, expressed
publicly in various ways, that Davidson violated legal or ethical
rules by suggesting that the city hire Consultant (and Tayo) but
not appropriately disclosing her relationship with Smelt and
Smelt’s involvement with Tayo. Plaintiffs correctly point out that
20170200-CA 30 2019 UT App 8Davidson v. Baird
an independent auditor, after a comprehensive review,
concluded that Davidson violated neither laws nor city
ordinances or policies. But Plaintiffs’ arguments with regard to
Baird are nevertheless unpersuasive.
¶50 First, Plaintiffs point to no evidence, in this record, that
any of the facts supporting Baird’s publicly-expressed opinions
were wrong. See West v. Thomson Newspapers, 872 P.2d 999, 1015
(Utah 1994) (stating that statements of pure opinion cannot be
defamatory because they “are incapable of being verified,” but
that “this protection is abused when the opinion states or implies
facts that are false and defamatory”). Baird based his views on
the undisputed facts that (a) an “emergency purchase” was
made, in the absence of a competitive bidding process, to a
company Smelt partially owned while she was living with
Davidson, and (b) Davidson did not formally disclose her
relationship with Smelt to the city council prior to the city
making payments to Tayo. On this record, there is no indication
that these factual assumptions were in any way inaccurate.
¶51 Second, although Baird may have misapprehended the
legal consequences of Davidson’s actions under the rules
applicable at the time, there is no indication on this record that
Baird was aware (or recklessly disregarded the possibility) that
his viewpoint was incorrect. A statement made with a good-faith
belief in its accuracy is not a statement made with actual malice.
See, e.g., St. Amant v. Thompson, 390 U.S. 727, 732 (1968) (stating
that a statement about “a public official” that “was indeed made
in good faith” is not actionable in defamation, even if it is
ultimately found to be untrue); see also Marcone v. Penthouse
Intern. Magazine for Men, 754 F.2d 1072 (3d Cir. 1985) (holding
that the publisher did not act with “actual malice” when it
falsely indicated that an attorney had been convicted of drug
charges, because the publisher was not on notice as to the
statement’s probable falsity); Libel and Slander: Privilege as to
Statement Reflecting on Manner in Which Public Work is Performed,
20170200-CA 31 2019 UT App 8Davidson v. Baird
50 A.L.R. 339 § IV (2018) (“The privilege of a statement reflecting
on the manner in which public work is performed has been held
not to depend on reasonable grounds for believing it to be true,
but only on good faith and honest belief that it was true.”). In
this case, there is no evidence that Baird held anything other
than a good-faith belief in the merits of his position. He
indicated in his op-ed that he had discussed his concerns with a
number of city officials and conducted research calculated to get
to the truth of his claims. As with Stiles, Plaintiffs did not seek to
depose Baird, and thus have no evidence that Baird failed to
fully research his position before making the statements. 12
¶52 Moreover, each of Baird’s public assertions that Davidson
violated legal or ethical rules preceded the release of the auditor’s
contrary conclusion, and there is no indication that Baird was
aware of the auditor’s conclusion before he made any of the
statements at issue here. Indeed, after he reviewed the results of
the audit, Baird did not continue to publicly maintain that
Davidson had violated the law or existing ethics provisions.
While Baird did express displeasure with Davidson even after
reviewing the audit results, his focus after that point appeared to
change from maintaining that she violated the rules to
acknowledging that the rules contained a “loophole” of which
he believed Davidson had taken advantage, a conviction he
apparently shared with the auditors themselves.
12. While Plaintiffs claimed at oral argument that Baird knew
that Davidson had not engaged in any impropriety because he
had been made aware at a “council meeting” that Davidson had
disclosed her relationship with Smelt, the record does not
support that assertion. In fact, the council meeting to which
Plaintiffs refer appears to have been the meeting at which the
auditor’s findings were presented, which occurred after Baird
published the statements plaintiffs characterize as defamatory.
20170200-CA 32 2019 UT App 8Davidson v. Baird
3. McMillan’s Statements
¶53 Finally, there is no indication on the record before us that
McMillan made any of her statements with actual malice. As
noted above, most of McMillan’s postings were statements of
pure opinion that are intended to be understood hyperbolically
and which cannot be proven false. To the extent some of
McMillan’s statements—for instance, her statement that
“approximately 25” or “more than 28” employees left
Kemmerer’s employ during Davidson’s tenure at least in part
because of Davidson—are grounded in fact rather than
expressions of pure opinion, Plaintiffs have not produced
evidence that McMillan knew her statements were false, or
spoke while recklessly disregarding the possibility that they
might have been. As noted above, it is undisputed that some
number of employees left Kemmerer during Davidson’s time
there, but there is no indication of how many or why they left,
and certainly no indication that McMillan knew she had her facts
wrong when she made the statements at issue.
¶54 For all of these reasons, Plaintiffs have failed to
demonstrate that Defendants acted with actual malice with
respect to any of their statements, and accordingly have not
presented evidence sufficient to establish the requisite degree of
fault to support their defamation claim. Accordingly, the district
court did not err when it awarded summary judgment in favor
of Defendants on that claim.
II. Intentional Interference with Economic Relations
¶55 Because the district court did not err in granting summary
judgment to Defendants with regard to Plaintiffs’ defamation
claims, the court also did not err in granting summary judgment
to Defendants on Smelt’s and Tayo’s claim for intentional
interference with economic relations. “In order to win a tortious
interference claim under Utah law, a plaintiff must . . . prove (1)
that the defendant intentionally interfered with the plaintiff’s
20170200-CA 33 2019 UT App 8Davidson v. Baird
existing or potential economic relations, (2) by improper means,
(3) causing injury to the plaintiff.” Eldridge v. Johndrow, 2015 UT
21, ¶ 70, 345 P.3d 553 (quotation simplified). Here the only
“improper means” Tayo and Smelt allege are Defendants’
purportedly defamatory statements. Because Tayo and Smelt
have not presented sufficient evidence to sustain their claims for
defamation, it follows that they also have not presented
sufficient evidence to prove the “improper means” element for
intentional interference with economic relations. Accordingly,
the district court did not err in awarding summary judgment to
Defendants with respect to Tayo’s and Smelt’s claim for
intentional interference with economic relations.
III. Intentional Infliction of Emotional Distress
¶56 Finally, Plaintiffs allege that the district court erred when
it awarded summary judgment to Defendants on Davidson’s
and Smelt’s claims for intentional infliction of emotional distress.
To sustain a claim for intentional infliction of emotional distress,
a plaintiff must demonstrate: “(a) that [a] defendant intentionally
engaged in some conduct toward the plaintiff considered
outrageous and intolerable in that it offends the generally
accepted standards of decency and morality”; “(b) with the
purpose of inflicting emotional distress or where any reasonable
person would have known that such would result;” and “(c) that
severe emotional distress resulted as a direct [consequence] of
the defendant’s conduct.” Ellison v. Stam, 2006 UT App 150, ¶ 34
n.5, 136 P.3d 1242. But “[a]n act is not necessarily outrageous
merely because it is tortious, injurious, or malicious, or because
it would give rise to punitive damages, or because it is illegal.”
Franco v. The Church of Jesus Christ of Latter-Day Saints, 2001 UT
25, ¶ 28, 21 P.3d 198. Rather, to sustain a claim for intentional
infliction of emotional distress, a defendant’s alleged conduct
“must be more than unreasonable, unkind, or unfair,” it must
instead be so severe as to “evoke outrage or revulsion.” Cabaness
v. Thomas, 2010 UT 23, ¶ 38, 232 P.3d 486, abrogated on other
20170200-CA 34 2019 UT App 8Davidson v. Baird
grounds by Gregory & Swapp, PLLC v. Kranendonk, 2018 UT 36,
¶¶ 29–32, 424 P.3d 897.
¶57 Although “the tort of intentional infliction of emotional
distress is not . . . subsumed within a defamation claim” in the
same way a claim for tortious interference is when the alleged
improper means is defamation, “where an emotional distress
claim is based on the same facts as a claim for defamation,
appropriate concern for the First Amendment rights of the
parties must be considered.” Russell v. Thomson Newspapers, Inc.,
842 P.2d 896, 905–06 (Utah 1992) (quotation simplified). In that
situation, “[a] plaintiff may not recover for the tort of emotional
distress by reason of a defamatory publication absent a showing
of the requisite level of fault.” Id. at 906.
¶58 For two reasons, then, Davidson’s and Smelt’s claim for
intentional infliction of emotional distress fails. First, for the
reasons set forth above, Davidson and Smelt have not
demonstrated the requisite level of fault with regard to any of
the statements they claim are defamatory. See supra ¶¶ 35–54.
Accordingly, they may not state a claim for intentional infliction
of emotional distress with regard to those same statements.
¶59 Second, the statements identified by Davidson and Smelt
do not constitute behavior so extreme as to evoke outrage or
revulsion or offend generally accepted standards of decency and
morality. Here, Davidson and Smelt allege that Defendants
“sought to and in fact did publicly impeach the integrity of both
Ms. Smelt and Ms. Davidson in their professions” by making
“public, false accusations about Ms. Davidson and Ms. Smelt
that, ordinarily, are reserved for people who have been
convicted of money laundering or other, similar criminal
offenses.” Even assuming that this characterization is accurate,
the described conduct is not outrageous or intolerable enough to
offend generally accepted standards of decency and morality.
See Franco, 2001 UT 25, ¶ 28 (noting that “[t]o be considered
20170200-CA 35 2019 UT App 8Davidson v. Baird
outrageous, the conduct must evoke outrage or revulsion; it
must be more than unreasonable, unkind, or unfair,” and that
“an act is not necessarily outrageous merely because it is
tortious, injurious, or malicious, or because it would give rise to
punitive damages, or because it is illegal” (quotation
simplified)); see also Bodett v. CoxCom, Inc., 366 F.3d 736, 747 (9th
Cir. 2004) (noting that “false accusations alone” are typically
“not enough to constitute an intentional infliction of emotional
distress”). Davidson and Smelt are, in effect, seeking redress
against Defendants for critical political speech. While it is
evident that the comments were critical, and perhaps even
hurtful for them to endure, such speech, without more, is
insufficient to constitute intentional infliction of emotional
distress. Accordingly, the district court did not err when it
granted summary judgment to Defendants on Davidson’s and
Smelt’s claims for intentional infliction of emotional distress.
CONCLUSION
¶60 Public officials in American society are subject to being
criticized, even sharply and potentially falsely, about matters of
public concern. The criticism leveled in this case against
Plaintiffs regarding Davidson’s performance as Moab City
Manager, and regarding a public contract awarded to
Consultant and Tayo for IT work, concerned public matters
about which citizens have the right to express their views. In
order for statements about such matters to be defamatory, they
must be both false and made with actual malice. Some of the
statements at issue here are not false, and there is no evidence,
on this record, that any of the statements were made with actual
malice. Accordingly, the district court did not err in granting
summary judgment to Defendants with respect to any of
Plaintiffs’ claims.
¶61 Affirmed.
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