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Spencer v. Glover

Court of Appeals of Utah

April 20, 2017

Terry R. Spencer and TR Spencer & Associates PC, Appellants,
v.
Stephen M. Glover, Appellee.

         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.

          OPINION

          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 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 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.

         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 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 ...


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