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08/17/93 JANET NAZERI v. MISSOURI VALLEY COLLEGE

August 17, 1993

JANET NAZERI, APPELLANT,
v.
MISSOURI VALLEY COLLEGE AND DENNIS SPELLMANN, RESPONDENTS.



APPEAL FROM THE CIRCUIT COURT OF ST. CHARLES COUNTY. Honorable William T. Lohmar, Judge

Price, Jr.

The opinion of the court was delivered by: Price

Appellant Janet Nazeri appeals the dismissal of her third amended petition for damages for failure to state a claim upon which relief can be granted. We reverse the dismissal of Counts I and II, alleging slander per quod and slander per se, and remand. We affirm the dismissal s of Count III, prima facie tort; Count IV, intentional infliction of emotional distress; Count V, intentional interference with a business relationship; and Count VI, invasion of privacy (false light).

I

A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo. banc 1993). No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.

With this in mind, we turn to appellant's petition. In general, it alleges that appellant was employed as Director of Teacher Education in the Missouri Department of Elementary and Secondary Education. Her duties included chairing the Department's teacher evaluation teams and visiting college campuses to conduct such evaluations. The respondents are the Missouri Valley College, a private religious college located in Marshall, Missouri, and Dennis Spellmann, who was Vice-President of the college at the time the acts complained of took place.

In October 1989, Spellman (hereafter "respondent") spoke to a reporter for the Marshall Democrat-News about appellant's adverse evaluation of the college's teacher education program. Respondent stated that he was speaking on behalf of the college as its Vice-President. He described appellant as incompetent, out to get the college, prejudiced against the college, and opposed to church schools having education programs. He also asserted that "Janet Nazeri lives with S___ A___, who is a well known homosexual and has lived with her for years", and that "You know Ms. Nazeri left her husband and children to live with S___ A___."

Some time later respondent met with the same reporter and a second reporter for the Marshall Democrat-News. At this meeting, respondent stated that appellant was incompetent, "out to get" Missouri Valley College and "out to close private colleges," and that he "would not tolerate fags on campus." He also accused appellant of being involved in a conspiracy with S___ A___ to use her professional position to effect a bad educational program evaluation of the college, in furtherance of these purported objectives. Although none of these statements was published by the newspaper, appellant asserts that they have become "public knowledge."

Respondent then met with the Administrative Assistant to the Commissioner of Education and informed him that he did not want appellant to head an evaluation team. In August 1990, respondent told faculty members at Lindenwood College that he had "taken care of" appellant and that she would no longer be on campus.

Appellant avers that these statements have injured her personal and professional reputation and have adversely affected her employment. After these events transpired, appellant was relieved of certain responsibilities as chair of the evaluation teams. She was prevented from completing the evaluation of Missouri Valley College and from performing the preliminary work for an evaluation of Lindenwood College. She stopped receiving requests for teacher education and testing from Drury College. In December 1989, another official was assigned to deliver a presentation to the Board of Education in her place.

Appellant further avers that because of respondent's actions she has suffered public ridicule and loss of reputation, respect, professional standing, and business contacts. Professional peers have asked her about the truth of the comments. Fellow employees have informed her that she is too controversial to associate with. Communications she would normally receive have been routed around her. This situation has caused appellant emotional distress and sleep and appetite disturbances, for which she has had to seek medical treatment.

II

A.

An analysis of plaintiff's slander claims and defendants' objections thereto reveals the complexity in actions of this sort. Some are inherent in all defamation actions. Others, however, focus on the peculiar distinctions between the theories of slander per se and slander per quod.

Appellant's slander claim in both counts is grounded upon the remarks made by respondent to the newspaper reporters. Appellant asserts that all of these statements were and are false, that they were made concerning her, and that they were made willfully and maliciously, in an effort to discredit and destroy her personal and professional reputation. She further avers that the statements were made with knowledge that they were false, or with reckless disregard for their truth or falsity. Count II pleads slander per se, based upon the allegation that respondent's remarks impute unchastity, adultery, homosexuality, and criminal conduct. Count I pleads slander per quod, further alleging injury to appellant's reputation, employment, professional standing, and emotional harm.

Respondents counter with a barrage of objections. They argue that appellant did not plead the objectionable language with specificity; that there is no nexus with the damages claimed by appellant because the newspaper did not report the comments; that the comments are privileged, both as expressions of opinion and as commentary upon the motives of a public official; that appellant did not plead special damages; that the statements pleaded are not defamatory on their face and are not accompanied by any innuendo that would render them defamatory; and that any references to homosexuality do not allude to appellant and do not impute unchastity or the crime of deviate sexual intercourse.

B.

At common law, slander per se encompassed false statements that the plaintiff was guilty of a crime, afflicted with a loathsome disease, or unchaste, as well as false statements that concerned the plaintiff's ability to engage in his or her occupation or business. In such cases the plaintiff was not required to plead damages, as damages were presumed from the nature of the defamation. Where the words were not actionable as slander per se, the tort was referred to as slander per quod and the plaintiff was required to plead and prove, in addition, "special damages." Special damages in this sense meant a loss of money or of some advantage capable of being assessed in monetary value, such as the loss of a marriage, employment, income, profits, or even gratuitous hospitality. Carter v. Willert Home Products, Inc., 714 S.W.2d 506, 509 (Mo. banc 1986).

These classifications do not correspond exactly to those found in libel law. There, per se referred to a statement whose defamatory nature was apparent upon the face of the publication, whereas per quod indicated a statement that required resort to extrinsic facts in order to become defamatory. Carter, 714 S.W.2d at 509 n.1. Libel per se was actionable without proof of damages. Libel per quod, by analogy to slander per quod, required proof of special damages. Capobianco v. Pulitzer Publishing Co., 812 S.W.2d 852, 855 (Mo. App. 1991). Adding to the confusion was the fact that many courts permitted libel per quod to be actionable without proof of special damages if it imputed a matter that would constitute slander per se if the statement had been spoken. Agriss v. Roadway Express, Inc., 334 Pa. Super. 295, 483 A.2d 456, 471 (Pa. Super. Ct. 1984).

The distinction between per se and per quod causes of action derived from the ancient conflict of jurisdiction between the royal and ecclesiastical courts of England. Initially, slander was the province of the ecclesiastical courts. The royal courts had jurisdiction only over those claims that could be shown to have resulted in "temporal," as opposed to "spiritual," injury. This is the origin of the requirement to prove "special damages" in the form of an actual out-of-pocket loss in all cases where such damages cannot be conclusively presumed. Carter, 714 S.W.2d at 509; Agriss, 483 A.2d at 469-70. With the demise of the ecclesiastical courts, the rationale for this distinction evaporated--and so did the venue for defamation claims that did not result in direct economic losses. Nonetheless, by this time the presumed damages/special damages duality was entrenched in the very definition of the tort. As a result, even though libel and slander have evolved to the point where modern law combines them as the generic tort of defamation, the causes of action themselves have retained both the per se/per quod designation and many of the characteristics of the old common law torts.

The consequences of this anachronism were of more than academic interest. The presumed damages/special damages distinction controlled the right of plaintiffs to bring a defamation claim, even though it bore little relationship to either the magnitude of a plaintiff's injury or the wrongfulness of a defendant's conduct. It also exposed some defendants to liability that might be far in excess of the actual injury caused. Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974).

The situation was made more egregious by the nature of the injury usually inflicted by a defamation. As noted by the United States Supreme Court in Gertz, "the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering." Id. at 350. Consequently, the particular type of harm demanded by courts in per quod cases was often impossible to document.

The law of defamation, however, has been the subject of substantial re-examination and reformation during the past thirty years. The primary cause of this re-examination was a series of United States Supreme Court decisions attempting to reconcile federal constitutional principles of freedom of speech with state-developed defamation law.

In New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), the Court held that the First Amendment precluded a public official's recovery of defamatory damages unless proof was made of "actual malice" *fn1 regarding the false statements. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), the Court focused on the nature of recovery allowed to a private defamation plaintiff. There the Court noted:

The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury.

Gertz went on to hold that a "private defamation plaintiff" is constitutionally precluded from recovery of presumed or punitive damages absent a showing of malice. Absent malice, a private plaintiff is limited to recovery of damages for "actual injury" as to which the Court stated:

We need not define "actual injury," as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.

Id. at 349.

The Supreme Court in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 86 L. Ed. 2d 593, 105 S. Ct. 2939 (1984), again addressed this issue. Justice Powell issued a plurality opinion restricting the Gertz decision to matters of public concern and holding that as to private individuals and private matters the constitutional value of speech is reduced and "the states' interest adequately supports awards of presumed and punitive damages even absent a showing of "actual malice." 472 U.S. at 761. *fn2

Prior to the decision in Dun & Bradstreet, Inc., many courts believed that Gertz had eliminated the distinction between defamation per se and per quod. For example, in Memphis Publishing Co. v. Nichols, 569 S.W.2d 412 (Tenn. 1978), the Tennessee Supreme Court stated:

Since Gertz has held that presumed damages are no longer permissible, the per se/per quod distinction no longer has any practical meaning. "A uniform requirement for proof of actual damages obliterates these often illogical distinctions, most of them relics from centuries past. Eaton, The American Law of Defamation Through Gertz v. Robert Welch and Beyond, 61 Va. L.Rev. 1349, 1434 (1975). We hold, therefore, that the per se/per quod distinction is no longer a viable one. The ...


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