2017 UT App 69

THE 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 
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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).
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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.
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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 
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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‛:
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(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 
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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,‛4is 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.‛
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20150892-CA 8 2017 UT App 69

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.
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¶15 As for the third and fourth statements—‚the ‘hunt-andpeck’ 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).
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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 
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20150892-CA 11 2017 UT App 69

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.
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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 
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20150892-CA 13 2017 UT App 69

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.