Bauer v. 7-Eleven, Inc.
Bauer v. 7-Eleven, Inc.
Opinion of the Court
7-Eleven, Inc. and Randy Munton, Inc., (“Defendants”), appeal the trial court’s judgment following a jury verdict in favor of Thomas Bauer (“Plaintiff’) in his defamation suit. Because Plaintiff failed to prove Defendants acted with actual malice, we reverse the judgment.
I. BACKGROUND
The present action arises from a successful campaign to recall Plaintiff from his position as alderman for the 24th Ward of the City of St. Louis. Plaintiff served as a member of the Board of Alderman from 1999 until he was recalled in September 2005. As alderman, Plaintiff supported several redevelopment projects, including the development of a QuikTrip gas station. Randy Munton owned a 7-Eleven gas station one block from the proposed development site, and he opposed the QuikTrip project.
Plaintiff was also involved in a private capacity in the development of a property in the Clayton-Tamm neighborhood. The plan called for residential redevelopment of a property that was owned by a decedent’s probate estate (“the estate property”). Plaintiff was the attorney who represented the personal representative of the estate, Richard Torack. Western Continental, a developer with whom Plaintiff had worked in the past, ultimately purchased the estate property for $95,000.
Based on their opposition to this project, the QuikTrip project, and other redevelopment projects supported by Plaintiff, Mun-ton and several residents in the 24th Ward started a campaign to recall Plaintiff. One resident drafted a flyer entitled “10 Reasons for Bauer Recall.” Munton distributed the flyers at his 7-Eleven station. Paragraph 2 of the flyer stated:
Bauer gives work only to certain developers and at least twice has sold property to one in particular for less than what other people (not developers) have offered for the same land. One of these sales was property from an estate for which Bauer was the Executor and whose owner had requested that 20% of the sale price be donated to St. James Church. Bauer took his developer’s offer over one from a resident of the 24th Ward ... the accepted offer was at least $25,000 less. When questioned about*27 this at a Neighborhood Association Meeting ... by the man who made the larger offer ... Bauer said he didn’t remember it.
Plaintiff filed the present action for defamation against Defendants and numerous other individual defendants. The petition asserted Paragraph 2 distributed by Mun-ton was false and defamatory. The case proceeded to jury trial.
II. DISCUSSION
In a joint brief on appeal, Defendants assert five points of error. Because the first point is dispositive, we need not consider the remaining points.
A. Standard of Review
Our review of the trial court’s denial of a motion for directed verdict and judgment notwithstanding the verdict is the same: we must determine whether a plaintiff made a submissible case. Hodges v. City of St. Louis, 217 S.W.3d 278, 279-80 (Mo. banc 2007). On questions of law, however, this court reviews the trial court’s conclusions de novo. Id. at 280. Whether a statement is defamatory is a question of law. Ribaudo v. Bauer, 982 S.W.2d 701, 704 (Mo.App. E.D. 1998).
B. Submissibility of Plaintiffs Defamation Claim
To make a submissible case for defamation a plaintiff must plead and prove that the defendant published a defamatory statement
Where a plaintiff is a public official, the requisite degree of fault is actual malice.
Here, Plaintiff specifically objected to the portions of Paragraph 2 that alleged he, as the executor of the estate property, accepted an offer from a favored developer that was $25,000 less than another offer. Because Plaintiff was a public official, he was required to show by clear and convincing evidence that Munton had actual knowledge of the falsity of these statements or had actual serious doubts as to their truth. See Englezos, 980 S.W.2d at 33. Defendants argue that Plaintiff failed to establish Munton published the alleged defamatory statement with actual malice. The record in its entirety supports Defendants’ argument.
Once the details of the redevelopment plan for the estate property were revealed, the Clayton-Tamm neighborhood association held an emergency meeting in January 2005 to address community concerns. Both Plaintiff and Munton attended the meeting. At the end of the meeting, Plaintiff addressed the group, responding to residents’ concerns.
Plaintiff testified at trial that during the meeting, he clarified he was not the executor for the estate. Instead, Plaintiff explained he was the attorney for Torack, who was the personal representative for the estate. Plaintiff explained after an offer on the estate property for $90,000 fell through, Plaintiff contacted Western Continental with Torack’s permission and offered the property for $95,000. Plaintiff stated that Rob McKendry had expressed interest in the estate property, but he had not made an offer of $125,000 for the property. Plaintiff further testified the same discussion occurred at a second neighborhood association meeting in February, which Plaintiff and Munton also attended.
In his deposition and at trial, Munton testified he recalled Plaintiff speaking at the January and February meetings. Munton testified he did not hear Plaintiff clarify that he was not the personal representative for the estate. Munton also testified he did recall Plaintiff saying he could have sold the estate property to McKendry but McKendry did not have the means to “do the right thing.”
In addition, in February 2005, the Riverfront Times published an article, titled “Doubting Thomas: Alderman Bauer’s Stealth Schemes are Raising Eyebrows,” discussing Plaintiffs support for redevelopment projects. Regarding the estate property, the article contained an interview with McKendry who stated he was willing to buy the property for $125,000. Deborah Lord, who wrote the flyer containing the alleged defamatory language, testified she based the flyer in part on this Riverfront Times article.
Based on the foregoing, the record does not support a finding that Munton in fact knew Paragraph 2 of the flyer was false or had serious doubts of its truth. Instead, although Plaintiff asserts Munton was at two meetings where Plaintiff denied the actions of which he was accused in Paragraph 2, Munton’s presence at the two meetings is not sufficient, in light of the entire record, to meet clearly and convincingly this subjective standard. Rather, the evidence in full shows the information before Munton was that McKendry made a verbal, but not written, offer for $125,000. This information corresponds on its face with the statement in Paragraph 2 that Plaintiff did not accept an “offer” for $25,000 higher than the offer from his favored developer. For determining actual malice, whether or not Paragraph 2 was in fact false is not the issue; rather, the issue is whether Munton knew it was false or had serious doubts as to its truth. Plaintiff failed to prove with clear and convincing evidence that Munton published the language with actual malice.
Moreover, while Plaintiff did explain at the meeting he had not received an offer, this evidence alone, when viewed in the context of the entire record, does not satisfy his burden of proof.
Accordingly, having determined that Defendants did not act with the requisite
We grant the first point on appeal and reverse the trial court’s judgment.
LAWRENCE E. MOONEY, P.J. and PATRICIA L. COHEN, J., concur.
. Plaintiff made no claim against the remaining “Reasons” raised in the flyer.
. Plaintiff dismissed the other individual defendants prior to trial and proceeded solely against Defendants.
. In Points two through four, Defendants argue the trial court erred in denying the motions for directed verdict and for judgment notwithstanding the verdict because: (point two) Plaintiff failed to prove the damage to his reputation was directly related to Paragraph 2; (point three) Paragraph 2 was not defamatory as a matter of law, because it could reasonably be construed in an innocent sense; and (point four) Paragraph 2 was constitutionally protected speech, because it was a statement of opinion made within the context of a political campaign. In Point five, Defendants argue the trial court erred in denying the motion for new trial, because the jury verdict was against the weight of the evidence.
.The phrase “defamatory statement” has meaning independent from the term "defamation” and is a term of art. Generally, a defamatory statement refers to a statement that tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Kennedy v. Jasper, 928 S.W.2d 395, 399-400 (Mo.App. E.D. 1996).
. By contrast, the requisite degree of fault for a private figure is negligence. Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. banc 2000).
. Plaintiff also points to an email Munton received from the flyer’s author in which she acknowledges using “poetic license" to draft the document. Plaintiff argues this email demonstrates that Munton had actual knowledge of the flyer's falsity or serious doubts as to its truth. In light of the record, we likewise find this email fails to satisfy Plaintiff’s burden.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.