Englezos v. Newspress and Gazette Co.

• Decision Date: 01 September 1998
• Docket Number: No. WD,WD
• Citation: 980 S.W.2d 25
• Parties: 27 Media L. Rep. 1161 George ENGLEZOS and Aesop, Inc., Appellant-Respondent, v. THE NEWSPRESS AND GAZETTE COMPANY, a Missouri Corporation, and Terry Raffensperger, Respondent-Appellant. 54143.
• Court: Missouri Court of Appeals

Page 25

980 S.W.2d 25

27 Media L. Rep. 1161

George ENGLEZOS and Aesop, Inc., Appellant-Respondent, v. THE NEWSPRESS AND GAZETTE COMPANY, a Missouri Corporation, and Terry Raffensperger, Respondent-Appellant.

No. WD 54143.

Missouri Court of Appeals,

Western District.

Sept. 1, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 27, 1998.

Application for Transfer Denied Dec. 22, 1998.

James M. Yeretsky, Brian G. Boos, Yeretsky & Maher, L.L.C., Kansas City, for Appellant-Respondent.

Wendell E. Koerner, Jr., St. Joseph, for Respondent-Appellant.

Before HANNA, P.J., and LAURA DENVIR STITH and HOWARD, JJ.

LAURA DENVIR STITH, Judge.

Appellant St. Joseph News-Press & Gazette appeals the jury's verdict awarding George Englezos $20,000 in damages for defamation based on an article about Mr. Englezos which the News-Press published and which was later determined to have been inaccurate in large part. Mr. Englezos cross-appeals the trial court's direction of a verdict for the News-Press on the issue of punitive damages. We find that the trial court properly submitted the actual damage issue to the jury pursuant to an instruction allowing the jury to find liability based on fault or negligence on the part of the News-Press. We reject the News-Press' argument that actual malice was required to prove defamation in this case, which does not involve a public figure. We also affirm the trial court's direction of a verdict for the News-Press on the issue of punitive damages. Plaintiff was required to offer clear and convincing evidence of actual malice in order to submit punitive damages. He showed only a failure to adequately investigate, and other negligence, and this cannot support submission of punitive damages. Accordingly, the judgment is affirmed.

I. FACTUAL AND PROCEDURAL HISTORY

On February 10, 1994, an article written by Terry Raffensperger entitled "Bistro Blues Closes Amid Contention," was published in the St. Joseph News-Press & Gazette. It was accompanied by photographs of Ken Shearin (the owner of Bistro Blues) and George Englezos (the operator of Bistro Blues). It stated, in its entirety:

Bistro Blues, a popular downtown restaurant at 817 Francis St., appears to have died an ugly death.

Restaurant operator George Englezas (sic) unexpectedly closed the restaurant Friday afternoon after putting up a sign saying he was going on vacation until March.

On Saturday, Englezas tried to leave town in a rented truck full of equipment and supplies belonging to Bistro Blues, owner Ken Shearin confirmed Wednesday.

Shearin, who founded Bistro Blues six years ago, was in Atlanta attending a convention Saturday. Shearin leased the business to Englezas, a Greek national, last August.

Fast action by two of Shearin's employees thwarted Englezas before he could leave town. Maria George and Debbie Robinson, along with Shearin's wife, Heather, contacted police. An attorney went to the home of Associate Circuit Court Judge Don Judah on Saturday morning and obtained a court order to stop Englezas.

"The man was robbing us in broad daylight," George said.

A Buchanan County Sheriff's deputy, serving the court order, prevented Englezas from driving away in the truck long enough for Shearin's employees to search the truck and remove items that belonged to Shearin.

The items removed from the truck, which Shearin said belonged to him, included $7,000 worth of wine and liquor, a microwave oven, a large quantity of spices, china, wine goblets, steam table pans and trays, and nostalgic wall decorations.

Shearin said his contract with Englezas said that nothing could be removed from the restaurant without Shearin's permission. Englezas, who had been living rent-free in the apartment Shearin owned above the restaurant, has not been seen since Saturday, when he drove away in the rented moving truck.

Due to the court order, both the restaurant and the apartment have been sealed with evidence tape until the matter is cleared up.

Shearin has been unable to enter the restaurant or the apartment to take an inventory. He has not asked the prosecutor to file any criminal charges, but vows there "will be legal ramifications."

"I have no idea what's going on," Shearin said Wednesday. "It's a real mess for me, of course. And I feel bad to see this happen to Bistro because I have some emotional ties to it. One thing I do know is that those girls who are working for me did a good job of saving my bacon."

Shearin thinks the quick departure of Englezas likely was caused by Shearin's pulling the liquor license for the restaurant Feb. 2. Englezas had been operating the business with the license that Shearin had obtained. Shearin said he asked Englezas several times to get his own liquor license.

"I finally pulled my liquor license after he made no effort to get his own," Shearin said. "A liquor control agent suggested it because I was liable for anything in my name."

On Saturday night, a large vase, which had been sitting by the back door of Bistro Blues, was heaved through the front plate glass window of Shearin's nearby restaurant, Dante's Pizza & Pasta.

Shearin, notified by police, said he called Englezas in the middle of the night and accused him of the act.

"I told him to come get his vase, that his fingerprints were on it," Shearin said.

He said Englezas knew he was leaving town last weekend to attend the convention in Atlanta. Shearin said Englezas was two months behind in rent and, according to court records, Englezas owed Shearin $1,000. Shearin said Englezas apparently also owes money to a number of vendors, who have been calling Shearin's office.

Englezas claimed when he took over Bistro Blues that in the two previous years he had owned and operated his own restaurant in Decatur, Ill., called Big Daddy's Steakhouse. Englezas said he moved to St. Joseph and went into business locally to be closer to his former wife and their children.

The civil case is scheduled to be heard in Division 6 at 1 p.m. on March 9.

A few months after the publication of the article, Mr. Englezos filed a lawsuit against the reporter, Mr. Raffensperger, and against the News-Press. He asserted that the allegations and implications of the article that he had failed to pay past-due rent, that he was taking property not belonging to him, that he had vandalized the restaurant, and that there was a court order preventing him from leaving town and the sheriff had stopped him from doing so, were defamatory. He requested actual and punitive damages against both defendants.

The case was tried beginning on November 12, 1995. At trial, the plaintiff presented evidence which showed several inaccuracies in Mr. Raffensperger's News-Press article. Mr. Englezos testified that after Mr. Shearin revoked the liquor license for the restaurant in February 1994, he decided to change the theme of the restaurant from a Greek tavern to a family-style buffet. On February 4, 1994, Mr. Englezos and some of his employees stayed late after the closing of the restaurant to prepare for the remodeling. On that evening, two of Mr. Shearin's employees arrived with a police officer to investigate what they were doing. After Mr. Englezos explained that they were redecorating, the officer and Mr. Shearin's employees left.

On the following day, February 5, 1994, Mr. Englezos began to remove equipment from the restaurant to store during the renovation. While Mr. Englezos was loading equipment on a truck, a sheriff's deputy arrived and served him with a summons stating he had improperly failed to pay the Shearins rent and utilities on the first day of the month for the month of February 1994. A copy of the lease agreement, however, showed that rent was not due until the fifteenth of each month. The deputy sheriff testified that he did not observe any criminal activity at the restaurant, but stated that he stayed at the restaurant for a while to "keep the peace" because there were a lot of other people in the parking lot, including Mrs. Shearin. The deputy further testified that he did not put up police tape or barricades and did not prevent Mr. Englezos from leaving the restaurant in his truck, as was erroneously reported in the News-Press article.

A few days after the incident, Mr. Raffensperger conducted telephone interviews with the Shearins and some of their employees. Mr. Raffensperger testified that he was unsuccessful in his attempts to contact Mr. Englezos. He also admitted that he did not check additional potential sources of information, such as the court file or the sheriff's department, to verify the information he received from the Shearins. He stated that he did talk with Judge Judah, the judge that signed the summons served by the deputy sheriff and was who told that Mr. Shearin was claiming that Mr. Englezos owed him some money. Mr. Raffensperger also stated that, although he did not have both sides of the story, the editors of the paper decided that it was a sufficiently important story to tell the readers and that follow-up stories could be done later once more facts and information were acquired.

Although Mr. Raffensperger and the News-Press did not claim at trial that the allegations in the article were true, they argued that they both had acted in good faith and without malice in printing the story, and that they had acted in an acceptable journalistic fashion in printing the article, even though many of its statements were not later borne out. In response, Mr. Englezos called Donald P. Ranly, Ph.D., as an expert to testify as to the standards in the journalism industry. Dr. Ranly stated that Mr. Raffensperger's article failed to comport with the principles of truth and accuracy and fair play promulgated by the American Society of Newspaper Editors. Dr. Ranly further stated that several things in the article should have been "red flags" to any editor, especially the fact that the article was one-sided because there was no outside source to...