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Smith v. The Humane Society of United States

Court of Appeals of Missouri, Southern District, Second Division

June 29, 2015

MARY ANN SMITH, d/b/a SMITH'S KENNEL, Plaintiff-Appellant,

APPEAL FROM THE CIRCUIT COURT OF DENT COUNTY Honorable Ronald D. White, Special Judge.



Mary Ann Smith ("Plaintiff) appeals the trial court's dismissal with prejudice of her fourth amended petition. The petition alleged causes of action for defamation and for false light invasion of privacy. We reverse the trial court's judgment because the allegations in the context of the petition cannot, as a matter of law, be declared to be "opinion" and the petition stated a cause of action for false light invasion of privacy.

Standard of Review- Defamation

An appellate court reviews a trial court's grant of a motion to dismiss de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). It will consider only the grounds raised in the motion to dismiss in reviewing the propriety of the trial court's dismissal of a petition, and, in so doing, it will not consider matters outside the pleadings. Brennan By and Through Brennan v. Curators of the Univ. of Mo., 942 S.W.2d 432, 434 (Mo.App.1997). This Court considers solely whether the grounds raised in the motion supported dismissal.

City of Lake Saint Louis v. City of O'Fallon, 324 S.W.3d 756, 759 (Mo. banc 2010). We review "the petition 'in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action . . . .'" Id. (quoting Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993)). We take the "plaintiff's averments as true and liberally grant[] plaintiff all reasonable inferences." Id.

Additionally, the exhibits to Plaintiff's fourth amended petition can be considered in determining whether the statements in question are, as a matter of law, protected opinion under the totality of the circumstances. "An exhibit to a pleading is a part thereof for all purposes." Rule 55.12; section 509.130.[1]

Under Rule 55.12, "[a]n exhibit to a pleading is a part thereof for all purposes." When considering a motion to dismiss for failure to state a claim, "[w]e also consider exhibits attached to the petition . . . as part of the allegations." Armistead v. A.L.W. Group, 155 S.W.3d 814, 816 (Mo.App. E.D. 2005). The fact that the trial court considered the terms of the Curators' self-insurance plan did not convert their motion into one for summary judgment.

Hendricks v. Curators of University of Missouri, 308 S.W.3d 740, 747 (Mo.App. W.D. 2010)

To recover in a defamation case, a plaintiff needs to plead and prove the unified defamation elements set out in MAI 23.06(1) and 32.12. Nazeri, 860 S.W.2d at 313.[2]Paraphrased from MAI, those elements are: (1) defendant published a statement (unless the statement is substantially true), (2) defendant was at fault in publishing the statement, (3) the statement tended to expose plaintiff to hatred, contempt or ridicule, or deprive the plaintiff of the benefit of public confidence and social associations, (4) such statement was read by someone other than the plaintiff, and (5) plaintiff's reputation was thereby damaged. Therefore, because this is a defamation case, we accept as true Plaintiff's allegations that certain statements made by Defendants are false and we consider the totality of the circumstances to determine whether those statements are protected "opinion" statements.

Standard of Review- False Light Invasion of Privacy

Our high court has not been presented with a case in which it recognized the tort of false light invasion of privacy although the tort has been recognized by the Eastern District of this Court in Meyerkord v. Zipatoni Co., 276 S.W.3d 319, 324-25 (Mo.App. E.D. 2008). In Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475 (Mo. banc 1986), the Supreme Court of Missouri set forth the situation in which such a tort might be plead.

It may be possible that in the future Missouri courts will be presented with an appropriate case justifying our recognition of the tort of "false light invasion of privacy." The classic case is when one publicly attributes to the plaintiff some opinion or utterance, whether harmful or not, that is false, such as claiming that the plaintiff wrote a poem, article or book which plaintiff did not in fact write. W. Prosser & P. Keeton, supra, at 863. E.g., Kerby v. Hal Roach Studios, 53 Cal.App.2d 207, 127 P.2d 577 (1942). Another situation, although possibly actionable under defamation law, is when one uses another's likeness in connection with a story that has no bearing on the plaintiff. In Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70 (W.Va.1984), for example, the defendant published plaintiff's picture next to a story about the problems faced by women coal miners, although the plaintiff did not experience any of the problems related in the story. See also Leverton v. Curtis Publishing Co., 192 F.2d 974 (3rd Cir.1951); Peay v. Curtis Publishing Co., 78 F.Supp. 305 (D.C.Cir.1948).
Recognizing the many ancillary questions that will arise and the confusion that now engulfs this area of the law, we hesitate under the facts of this case to decide whether or not to denominate a separate tort for "false light invasion of privacy." This Court is not confronted with a situation where a party alleges that another has created a false impression in the public eye. Nor is this a case such as Crump, supra, where the plaintiff's likeness (picture) improperly created the impression that the plaintiff encountered the problems discussed in the story.

Id. at 480-81.

We therefore review the pleadings to determine whether Plaintiff appropriately plead that Defendants made statements which created a false impression in the public eye.[3]


Plaintiff sued Defendants in March 2011 for defamation and false light invasion of privacy. In a fourth amended petition filed in April 2014, Plaintiff alleged the following:

1. "Defendants, acting in concert" "authored" and "caused to be published" "a report entitled 'Missouri's Dirty Dozen'" ("Report"), a summary report ("Summary"), a press release and an article. The Report, Summary, and press release were released and issued "at a press conference on October 5, 2010." The article was released on October 5, 2010.
2. The Report
stated that Plaintiff's dog kennel was one of the "Dirty Dozen", listed "Mary Ann Smith, Smith's Kennel, Salem" as being among "the worst puppy mills in Missouri", and stated that "Missouri's Dirty Dozen were selected as examples of some of the worst licensed kennels in the state, based upon the number and severity of state and/or federal animal welfare violations." The report further indicated "availability of photographs to verify the conditions was also a factor in some cases." Defendants, acting in concert, said of the "Dirty Dozen": "One thing they have in common is atrocious violations of basic humane standards for dogs in their care."
3. The press release
included the statement: "These puppy mills were singled out from the hundreds of high-volume commercial breeders in Missouri for repeatedly depriving dogs of the basics of humane care, such as food, shelter from the heat and cold and/or basic veterinary care according to state and/or federal inspection reports for each dealer . . . ." It went on to state: "At puppy mills in Missouri, dogs are crammed into small and filthy cages, denied veterinary care, exposed to extremes of heat and cold, and given no exercise or human affection." In that release, [it was] stated: ["]These puppy mills have an undeniable record of unconscionable violations of the minimal humane care standards in place, according to our study of their records."
4. The article
contain[ed] the following statements: "HSUS researchers identified these Dirty Dozen puppy mills and eight dishonorable mentions[, ]" and "[t]his painstakingly documented report synthesizes information gleaned from state and federal inspection reports, including enforcement records, animal care violations, and photographs, and ...

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