Terry R. Spencer and TR Spencer & Associates PC, Appellants,
Stephen M. Glover, Appellee.
District Court, Salt Lake Department The Honorable L. Douglas
Hogan No. 150903279
V. Collier and Terry R. Spencer, Attorneys for Appellants
B. Cummings, Attorney for Appellee
Kate A. Toomey authored this Opinion, in which Judges J.
Frederic Voros Jr. and Jill M. Pohlman concurred.
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.
Spencer represented Glover in his divorce proceedings. Glover
was unsatisfied with the representation and ultimately
retained new counsel. He subsequently posted a review
regarding Spencer and his services on yelp.com, an online
comment aggregator. 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.
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
interference with prospective economic
relations. Glover moved to dismiss all three claims
for failure to state a claim upon which relief could be
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
AND STANDARD OF REVIEW
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.
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.
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 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 ...