Pape v. Reither

• Court: Missouri Court of Appeals
• Writing for the Court: PUDLOWSKI; AHRENS, P.J., and SIMON
• Citation: Pape v. Reither, 918 S.W.2d 376 (Mo. App. 1996)
• Decision Date: 26 March 1996
• Docket Number: No. 68742,68742
• Parties: David PAPE, Plaintiff/Appellant, v. Christopher REITHER, Defendant/Respondent.

Page 376

918 S.W.2d 376

David PAPE, Plaintiff/Appellant, v. Christopher REITHER, Defendant/Respondent.

No. 68742.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 26, 1996.

Appeal from St. Louis County; Honorable Larry Kendrick, Judge.

Richard B. Dempsey, Richard B. Dempsey, Jr., Washington, for Appellant.

Hinshaw & Culbertson, Bruce J. Weingart, Brent W. Baldwin, St. Louis, for Respondent.

PUDLOWSKI, Judge.

David Pape (appellant) brought this defamation action against Christopher Reither (respondent), and the trial court dismissed the case for failure to state a claim. This case provides a worthy occasion for an exposition of the labyrinthine law of defamation. The judgment of the trial court is affirmed in part and reversed in part.

Factual and Procedural History

In the Spring of 1987, appellant worked as an architect for Rooney Properties, a construction firm which (along with various other companies and individuals) had been hired by respondent to design and build a new residence. The construction deal grew acrimonious, and finally degenerated into a lawsuit. Respondent's lawsuit named Rooney Properties (with Onyx Corporation and Helicopters, Inc. listed as its general partners), R.J. Rooney, Charlene Rooney, Cigi Gallery, Inc., Schultz Group, Inc., Donald Schultz, West County Surveying and Engineering, Inc. and William Steinkoetter as defendants; appellant was neither named as a defendant nor mentioned anywhere in respondent's petition. Respondent's petition featured five counts alleging various misconduct by sundry assortments of defendants: count one alleged fraud and misrepresentation (in misrepresenting the suitability for construction of the land on which the house was built) against Rooney Properties, Onyx Corporation, Helicopters, Inc., Robert Rooney and Charlene Rooney; count two sought to pierce the corporate veils of the companies mentioned in count one; count three alleged breach of contract (relating to charges for some carpeting) by Cigi Gallery, Inc.; count four sought to pierce the corporate veil of Onyx Corporation and, thereby, impute liability for its acts to Cigi Gallery, Inc.; and count five alleged that Donald Schultz, Schultz Group, Inc., West County Surveying and Engineering, Inc., and William Steinkoetter were negligent in performing various engineering and architectural aspects of the construction.

The parties to this lawsuit entered into a settlement agreement which, although apparently submitted to the trial court, was never consummated by performance of the terms thereto. It was this nonperformance (on the part of the settling defendants) which prompted respondent to fire off the angry missives which are the basis of the instant defamation action. The first letter, entitled "For Settlement Purposes Only," was addressed to Robert Rooney, Terry Steinkoetter, Ed Weman, Donald Schultz, and Steve Lieber. In that letter, respondent states "It is my position that you participated in fraudulent and or (sic) illegal acts...." Enclosed with this "Settlement" letter was a second letter, which was addressed to the Missouri Board for Architects, Professional Engineers, and Land Surveyors (the Board).

The "Board" letter begins with an expression of respondent's desire to file a formal complaint against appellant, Weman, Steinkoetter, and Schultz. Respondent then claims to have "overwhelming written evidence which shows several gentlemen participated in a scheme of conduct that defrauded [him]." In the letter's piece de resistance, respondent announces:

I am prepared to provide you with the following written information for your review:

1. David Pape held himself out to the public as an architect when in fact he was not an architect as defined. ¹

2. David Pape forged/counterfeited the professional seal of Donald Schultz and submitted architectural plans to the City of Ladue for the construction of a home in which none of the architectural work was done by Donald Schultz.

The "Settlement" letter was sent only to the named addressees, while the "Board" letter was sent to both the Board and the recipients of the "Settlement" letter.

On July 11, 1994, after receipt of this correspondence, appellant filed a two count petition alleging that the above-described passages from respondent's letters defamed him. Respondent promptly filed a motion to dismiss for failure to state a claim and a memorandum in support thereof, urging that the statements complained of in appellant's petition were privileged as statements of opinion, as statements made in an on-going judicial proceeding, and as statements made to an administrative agency pursuant to the exercise of right conferred by state law. The trial court sustained respondent's motion without explaining its reasoning in doing so, and this appeal followed. ²

Standard of Review

An understanding of our standard of review, as well as the standards the trial court should have employed as an initial matter, is critical to reaching the correct resolution of this case. Review of a judgment on the pleadings is a purely legal exercise wherein we treat all facts alleged in the dismissed petition as true. Matyska v. Stewart, 801 S.W.2d 697, 699 (Mo.App.E.D.1991). Moreover, whether language is defamatory and actionable is a question of law. Anton v. St. Louis Suburban Newspapers, Inc., 598 S.W.2d 493, 496 (Mo.App.E.D.1980). It is well established that in evaluating an allegedly defamatory statement, a court should determine whether the statement is capable of having a defamatory meaning; if so, the question of whether it was actually understood as defamatory is submitted to the jury. Henry v. Halliburton, 690 S.W.2d 775, 779 (Mo. banc 1985); Hagler v. Democrat-News, Inc., 699 S.W.2d 96, 98 (Mo.App.E.D.1985); Anton at 497. Likewise, the decision-making paradigm applicable to the question of whether a statement is one of fact or opinion requires the court to first determine whether the statement is capable of being understood as a factual assertion, and if it is, the question of whether it was actually understood as such is one for the jury. Henry at 788 ³; Schnelting v. Coors Distributing Co. of Missouri, 729 S.W.2d 212, 217 (Mo.App.E.D.1987); Diez v. Pearson, 834 S.W.2d 250, 252 (Mo.App.E.D.1992); Anton at 499. While at first blush these rules may appear redundant and collapsible into a single inquiry, a recognition of why they are not is crucial to understanding this case and the law of defamation generally.

The defamation analysis is comprised of two components, each of which has a number of sub-parts. First, there is the question of whether the statement is defamatory at all; to be defamatory, a statement must be clear as to the person addressed, see Diez at 253, and must cast aspersions on that person's reputation so as "to lower him in the estimation of the community or to deter third persons from associating with him." Henry at 779 (quoting Restatement 2nd of Torts, § 559). Once a statement is found to be defamatory as defined, the court inquires as to whether one or more privileges (e.g., the privilege applicable to statements of opinion, the privilege for statements made in a judicial proceeding, et cetera) shelters the defaming party from legal action.

This delineation of defamation doctrine helps to illuminate the rules a court should employ in reviewing a defamation claim. The rule that a jury question is presented if a statement is capable of being understood as defamatory is analytically prior to the rule that a jury question is presented if words are capable of being understood as an assertion of fact, because the latter rule concerns the "opinion privilege," which does not arise as an issue until the statement is found to be defamatory. With this framework in mind, we now turn to an examination of the statements at issue in this case.

"Settlement" Letter

The only statement in the "Settlement" letter which appellant asserts is defamatory reads, "It is my position that you participated in fraudulent and or (sic) illegal acts...." Given that the letter is addressed to appellant (among others), there can be no question that the word "you" in this sentence refers to a group of people which includes appellant. Thus, there is no vagueness or imprecision as to the subject of the sentence. Furthermore, statements which falsely impute conduct incompatible with one's business, trade or profession are defamatory per se. Matyska v. Stewart, 801 S.W.2d 697, 700 (Mo.App.E.D.1991). In assessing whether this requirement is met, we must read the statements in their full context, Matyska at 700; doing so here, it is clear that the allegation of "fraudulent and or illegal acts" pertains to a professional context. Fraudulent or illegal conduct committed in one's professional endeavors is, of course, incompatible with those endeavors, so that this statement is defamatory per se (assuming, as we must, that appellant can demonstrate its falsity.)

We next inquire whether some privilege applies to this statement which prevents it from being actionable. Statements of opinion are protected by an absolute privilege which is rooted in the First Amendment to the United States Constitution; that is, even if they are made maliciously or insincerely, they do not give rise to a cause of action. Diez at 253. The only exception to this rule which is recognized in Missouri is that the privilege does not apply when the statement of opinion necessarily implies the existence of undisclosed defamatory facts, Henry at 787; this caveat is not relevant here. Respondent argues that the phrase "it is my position" clearly requires the conclusion that this statement is one of opinion, and we agree. The rule of construction articulated above requires that we allow a jury to decide how the statement was understood if it can be reasonably interpreted as a statement of fact. The phrase "it is my position" cannot be contorted to mean anything other than "it is my...