MARY ANN SMITH, d/b/a SMITH’S                 )
KENNEL,                                       )
                                              )
               Plaintiff-Appellant,           )
                                              )
       vs.                                    )               No. SD33431
                                              )
THE HUMANE SOCIETY OF THE                     )               Filed: June 29, 2015
UNITED STATES and MISSOURIANS                 )
FOR THE PROTECTION OF DOGS,                   )
                                              )
               Defendants-Respondents.        )

             APPEAL FROM THE CIRCUIT COURT OF DENT COUNTY

                        Honorable Ronald D. White, Special Judge

REVERSED AND REMANDED

       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.




                                              1
                                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)




1
 All rule references are to Missouri Court Rules (2015), and all references to statutes are to RSMo 2000,
unless otherwise specified.


                                                     2
        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

2
 At the time Nazeri was written, the MAI sections were 23.01(1) and 23.01(2). Nazeri, 860 S.W.2d at
313.


                                                   3
         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

                                                  Pleadings

         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

3
 We understand that the tort of “invasion of privacy, putting one in a false light” has not been fleshed out
by cases in Missouri. The key element appears to be placing the plaintiff before the public in a false light.

         One who gives publicity to a matter concerning another that places the other before the
         public in a false light is subject to liability to the other for invasion of his privacy, if (a)
         the false light in which the other was placed would be highly offensive to a reasonable
         person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity
         of the publicized matter and the false light in which the other would be placed.

RESTATEMENT (SECOND) TORTS § 652E (1977); see also Dean Prosser, Privacy, 48 Cal LR 383, 386
(1960); and Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, THE LAW OF TORTS (2d ed. 2011) §582.


                                                        4
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 reveals shocking abuses and
       mistreatment of dogs at the states (sic) largest puppy mills.”

       5. Defendants, “acting in concert” “authored” an update report (“Update”) and

press release. The Update and press release were released and issued on March 9, 2011.




                                            5
       6. The Update

       stated that “most of the worst puppy mills in Missouri are still licensed”,
       and included in its report “Mary Ann Smith, Smith’s Kennel, Salem” as
       one of those worst “puppy mills” still licensed. It also stated . . . that
       “Smith’s Kennel remains both USDA licensed and MDA licensed through
       2011 despite ongoing repeat violations.”

       7. The release

       stated: “Missourians for the Protection of Dogs released a new report
       today demonstrating major continuing problems in licensed puppy mills”
       and repeated the claim that “many of the worst puppy mills in the state are
       still licensed and in business six months after their histories were made
       public[.]” It also] stated “[t]he licensed puppy mills identified in this
       report have an undeniable record of flagrant disregard for even the most
       minimal humane care standards for dogs.”

       Plaintiff’s fourth amended petition contained three counts. Count I (defamation)

alleged that the statements set forth above were (1) “false, scandalous, and defamatory”

and (2) “falsely imply that there are other, undisclosed objective facts known to

Defendants which support the false statements made by [D]efendants.” The publication

of these statements damaged Plaintiff’s “reputation.” In publishing these statements,

Defendants were negligent in that they “failed to conduct a full and complete

investigation” of Plaintiff’s dog kennel and other dog kennels in Missouri. Defendants’

conduct “deprived” Plaintiff’s “dog kennel business” of “valuable business associations,”

and Plaintiff has and will “suffer humiliation, embarrassment, hurt, mental anguish, pain

and suffering” and has and will be “deprived of public confidence and social and business

associations.”

       Count II (defamation) contains the same allegations except that (1) Defendants

are alleged to have made the statements “with knowledge that such statements were false

or with reckless disregard for whether such statements were true or false at a time when




                                             6
the Defendants had doubts as to whether such statements were true,” and (2) Plaintiff

requested punitive damages.

       Count III alleged a cause of action for the tort of false light invasion of privacy.

Count III (labeled in the petition as “Invasion of Privacy – False Light”) alleged the

statements set forth above in the Report, October 5, 2010 press release and article

       misrepresented Plaintiff’s activities, conditions at her kennel, and
       inspection reports. These [statements] falsely implied that Plaintiff was a
       “puppy mill” and was as bad as and engaged in the same conduct as the
       other kennels listed in the reports, which had more and/or more severe
       state and/or federal animal welfare violations, falsely implied that Plaintiff
       committed “atrocious violations of basic humane care standards for the
       dogs in her care”, and falsely implied that Plaintiff was a cruel and
       inhumane person. The [R]eport also falsely implied that Plaintiff had dogs
       who had developed interdigital cysts from being “forced to stand
       continually on wire flooring”. The [R]eport also falsely implied that
       Plaintiff and her kennel “were singled out from the hundreds of high
       volume commercial breeders in Missouri for repeatedly depriving dogs of
       the basics of humane care, according to state and/or federal state
       inspection reports for each dealer,” and falsely implied that Plaintiff’s
       kennel was among the worst of the worst and repeatedly deprived dogs of
       the basics of humane care. It was also falsely implied that Plaintiff’s
       kennel and dogs received little to no medical care, lived in squalid
       conditions with no exercise, socialization, or human interaction, and are
       confined inside cramped wire cages for life; dogs at Plaintiff’s kennel are
       crammed into small cramped cages, denied veterinary care, exposed to
       extremes of heat and cold, and given no exercise or human affection.
       These statements further falsely implied that Plaintiff’s kennel inspection
       “violations” were “horrific”, and that the state and federal inspections
       reports of Plaintiff and her kennel “reveal[ed] shocking abuses and
       mistreatment of dogs”. These statements were also made in public
       without any acknowledgement of explanatory facts and circumstances
       which, when added to facts recited in the reports and press releases, would
       naturally tend to create a less objectionable public opinion of Plaintiff and
       her kennel. For example, no mention was made of various inspections of
       Plaintiff’s kennel which indicted no violation of applicable state or federal
       animal welfare violations, and the quotes from the inspections were taken
       out of context and/or edited to make them sound more significant or
       ominous than they actually were. For all the reasons stated above, the[se
       statements] created a false impression of Plaintiff and her kennel in the
       minds of members of the public and lead others to believe things about her
       and her kennel that are not true.



                                             7
Count III further alleged the statements set forth above in the Update and March 9, 2011

press release

       misrepresented Plaintiff’s activities, conditions at her kennel, and
       inspection reports. These [statements] falsely implied that Plaintiff was a
       “puppy mill” and was as bad as and engaged in the same conduct as the
       other kennels listed in the reports, which had more and/or more severe
       state and/or federal animal welfare violations, falsely implied that Plaintiff
       committed “atrocious violations of basic humane care standards for the
       dogs in her care”, and falsely implied that Plaintiff was a cruel and
       inhumane person. It also falsely implied that Plaintiff continued to have
       violations similar to those in the original “Dirty Dozen” report, issued in
       October 2010. It was also published without any acknowledgement of
       explanatory facts and circumstances which, when added to facts recited in
       the report, would naturally tend to create a less objectionable public
       impression of Plaintiff and her kennel. For example, no mention was
       made of various inspections of Plaintiff’s kennel which indicated no
       violation of applicable state or federal animal welfare violations, and the
       quotes from the inspection reports were taken out of context and/or edited
       to make them sound more significant or ominous than they actually were.
       [The Humane Society] obtained 3 different pictures of the Bulldog they
       claim was “sick” in the Update Report. Two of the three photographs
       showed an active, alert healthy appearing dog. The third one showed the
       dog lying on a pillow, apparently half asleep. Defendants deliberately
       chose the third photograph to include in the report and excluded the other
       photographs in an effort to portray the dog, and Plaintiff, in as unfavorable
       a light as possible. For all the reasons stated above, the . . . [U]pdate
       [R]eport and March 9, 2011 press release created a false impression of
       Plaintiff and her kennel in the minds of members of the public and led
       others to believe things about her and her kennel that were not true.

Count III also alleged that these statements in the Report, October 5, 2010 press release,

article, Update Report, and March 9, 2011 press release “contained unreasonable and

highly objectionable publicity regarding Plaintiff and her kennel, and attributed to her

characteristics, conduct, and beliefs that are false and placed her before the public in a

false [light].” The “false light” was “highly offensive to a reasonable person.”

“Defendants had knowledge of or acted in recklessness [sic] disregard as to the falsity” of

these statements and misrepresentations and the “false light in which Plaintiff was



                                              8
placed.” Defendants’ conduct “deprived” Plaintiff’s “dog kennel business” of “valuable

business associations,” and Plaintiff’s

         privacy has been invaded, her history, activities, and beliefs have been
         misrepresented, her right to be left alone has been compromised and
         degraded, she has suffered and will in the future suffer mental anguish,
         emotional distress, as well as personal humiliation and embarrassment
         from the invasions of her privacy, for which she has incurred, and will
         incur in the future, costs for counseling and medical treatment.

Plaintiff also requested punitive damages.

         The Report was attached to Plaintiff’s fourth amended petition as Exhibit A and

“incorporated herein as if fully set forth in this petition.” The Report also stated the

following. The Report is dated October 5, 2010, and, in its first two paragraphs, states:

                 Researchers at The Humane Society . . . have spent weeks poring
         over state and federal inspection reports, Investigators’ photographs, and
         enforcement records received via the Freedom of Information Act to
         compile a list of some of the worst puppy mills in Missouri, known as
         “Missouri’s Dirty Dozen.”
                 The purpose of the report is to demonstrate current problems that
         could be addressed by the passage of Proposition B, which Missouri
         citizens will vote on in November. Under Proposition B, the Puppy Mill
         Cruelty Prevention Act, many of these dealers’ horrific violations would
         be backed by stronger enforcement opportunities.

The third page of the Report describes how Proposition B would “help” current law, and

states “[r]ead on for further details on Missouri’s Dirty Dozen and numerous

dishonorable mentions.” The last page of the Report again contains information about

what Proposition B would require.4 The Report contains almost one page of information

specifically about Plaintiff’s kennel including

                 [Plaintiff’s] Kennel has a history of repeat USDA violations
         stretching back more than a decade, including citations for unsanitary
         conditions; dogs exposed to below-freezing temperatures or excessive heat

4
 The Summary, which was attached to Smith’s fourth amended petition as Exhibit B and “incorporated
herein as if fully set forth in this petition,” contains similar information about how Proposition B “[c]an
[h]elp.”


                                                      9
       without adequate shelter from the weather; dogs without enough cage
       space to turn and move around freely; pest and rodent infestations; injured
       and bleeding dogs, dogs with loose, bloody stools who had not been
       treated by a vet, and much more.
               Quotations from federal inspection reports include:
               “In the big dog barn there is one dog that had a cherry eye on the
       right eye. There was one other dog that was noted to have multiple large
       interdigital cysts bilaterally in front paws and on the hind left paw.”
       (USDA inspection June 2010)
               [Note: Interdigital cysts are a common malady in dogs who are
       forced to stand continually on wire flooring. The cysts are painful and can
       lead to disabling infections – HSUS]
               [Five quotations from other inspection reports ranging in date from
       November 2005 to June 2009.]

Plaintiff does not allege in her fourth amended petition that any of the information

specifically about Plaintiff’s kennel in the Report was false.

       The October 5, 2010 press release, which was attached to Plaintiff’s fourth

amended petition as Exhibit C and “incorporated herein as if fully set forth,” includes in

its title the phrase “Missourians Encouraged to Vote ‘Yes’ on Proposition B to Curb

Puppy Mill Cruelty.” The press release later states “[the R]eport demonstrates the urgent

need for Missouri’s citizens to vote ‘yes’ on Proposition B, the Puppy Mill Cruelty

Prevention Act in November.” The press release also includes information on how

Proposition B “would amend Missouri law,” and a list of organizations, groups and

individuals that support Proposition B.

       The article, which was attached to Plaintiff’s fourth amended petition as Exhibit

D and “incorporated herein . . . as if fully set forth,” is entitled “A Dozen More Reasons

for Supporting Missouri’s Prop B.” The article also contains information on how

Proposition B would “turn this situation around,” and solicits financial contributions to

help finance the airing of an ad supporting Proposition B.




                                             10
       The Update, which was attached to Plaintiff’s fourth amended petition as Exhibit

E and “incorporated herein as if fully set forth in this petition,” is dated March 2011, and

refers to the Report as “a list of some of the worst puppy mills in Missouri, known as

‘Missouri’s Dirty Dozen.’” The Update also states

       [t]his update follows some of those kennels to see whether they are still
       licensed in 2011. As detailed in this report, the majority of the “Dirty
       Dozen” kennels are still state-licensed to this day, indicating the ongoing
       need for the protections that Proposition B, The Puppy Mill Cruelty
       Prevention Act, will provide.

The Update contains approximately one page of information specifically about Plaintiff’s

kennel. The only portion of this information that Plaintiff alleges is false is a heading

that read “STATUS: [Plaintiff’s] Kennel remains both USDA licensed and MDA

licensed through 2011 despite ongoing repeat violations.” The remainder of the

information specifically about Plaintiff’s kennel included

              [Plaintiff’s] son, now Republican Majority Whip Representative
       Jason Smith, was once listed in state records as a co-owner of her kennel
       and has been an outspoken opponent of Proposition B, the Puppy Mill
       Cruelty Prevention Act and other animal welfare bills.

               ....

               The HSUS has received complaints about sick puppies sold by
       [Plaintiff’s] Kennel, including a Bulldog (pictured) who was sold through
       a Petland store in 2008 and still suffers from congenital health problems
       that require daily care. [The caption to the photograph indicated the
       “Bulldog’s owner contacted the Humane Society of the United States in
       February 2011 . . . .”]
               The kennel’s most recent USDA inspection was in June 2010,
       when the owner was cited for a repeat violation for two dogs that had
       untreated veterinary problems, a repeat violation for housing in disrepair,
       and sanitation problems. According to news reports, [Plaintiff’s] most
       recent Missouri state inspection also lists some recent violations. HSUS
       researchers were not able to obtain a copy in time for this report.




                                             11
The Update also contains a section entitled “III. New Concerns.” The introductory

paragraph to this section stated

       Unfortunately, for every kennel on our original Dirty Dozen report that
       has gone out of business, there is one that we couldn’t fit on our original
       list that continues to demonstrate ongoing severe violations. New
       candidates for some of the worst kennels in Missouri who were not
       covered in our original report, include[.]

Finally, the Update contains two sections entitled “Voter Initiative in Jeopardy” and

“What Citizens Can Do.” The Voter Initiative in Jeopardy section described what

Proposition B required, and stated in part

               In November 2010, nearly one million Missouri citizens voted to
       pass Proposition B, the Puppy Mill Cruelty Prevention Act, into law. Prop
       B, which is scheduled to take effect in November 2011, will help
       thousands of dogs suffering across the state. But unbelievably, some
       legislators are trying to weaken or even overturn Prop B. Approximately a
       dozen bills have been introduced to attack Prop B since the measure was
       voted into law.

The What Citizens Can Do section stated

               Missouri citizens can help by making brief polite phone calls to
       their state senator, representative, and governor to ask them to respect the
       will of the voters – by voting “NO” on any bill that seeks to weaken or
       overturn Prop B. Even those who have already called before may want to
       call again due to new bills being introduced regularly (go to
       www.Missourifordogs.com to find your representative or senator’s
       information).

       The March 9, 2011 press release, which was attached to Plaintiff’s fourth

amended petition as Exhibit F and “incorporated herein as if fully set forth,” also

provided in its opening paragraph

       The Missouri Senate gave its preliminary approval last night to SB 113,
       sweeping legislation that repeals every core provision of Proposition B,
       the Puppy Mill Cruelty Prevention Act, and reverts back to the weak laws
       that allowed the inhumane treatment of thousands of dogs in Missouri’s
       puppy mills. Prop B was favored by voters in 18 of 34 Senate districts.
       The Senate is expected to take final action on the repeal bill tomorrow.



                                             12
The press release later added that Proposition B “passed in a majority of state House and

state Senate districts.”

        In May 2014, The Humane Society of the United States (“Humane Society”) filed

a motion to dismiss Plaintiff’s fourth amended petition, and Missourians for the

Protection of Dogs (“Missourians for Dogs”) joined in the Humane Society’s motion to

dismiss and filed a separate motion to dismiss Plaintiff’s fourth amended petition. The

Humane Society’s motion to dismiss contended that Counts I and II should be dismissed

because the statements in question were “protected statement[s] of opinion,” and Count

III should be dismissed because it fails to state a cause of action for false light invasion of

privacy inasmuch as Plaintiff’s cause of action, if any, was for defamation and the

statements in question were on matters of legitimate public interest.

        On June 4, 2014, the trial court granted the Humane Society’s motion to dismiss,

and dismissed Plaintiff’s fourth amended petition with prejudice. The trial court did not

decide Missourians for Dogs’ separate motion to dismiss.

                                          Analysis

                                           Point I

        In her first point, Plaintiff claims that the trial court erred in granting the Humane

Society’s motion to dismiss Counts I and II because the statements alleged to be false

were not protected statements of opinion that were privileged and not subject to a claim

for defamation.




                                              13
        While there is no “wholesale defamation exemption for anything that might be

labeled ‘opinion,’”5 in Missouri, a statement of opinion is “protected by an absolute

privilege which is rooted in the First Amendment to the United States Constitution” and

“do[es] not give rise to a cause of action” for defamation even if “made maliciously or

insincerely” unless “the statement of opinion necessarily implies the existence of

undisclosed defamatory facts.” Pape v. Reither, 918 S.W.2d 376, 380 (Mo.App. E.D.

1996). A corollary to this rule is that a statement of opinion is “constitutionally

privileged if the facts supporting [it] are set forth” and those facts are nondefamatory and

the statement of opinion does not imply other undisclosed facts. Diez v. Pearson, 834

S.W.2d 250, 253 (Mo.App. E.D. 1992) (internal citations omitted); see also

RESTATEMENT (SECOND) OF TORTS § 566 & illustrations 3 and 4 (1977).

        Under our standard of review, a statement is not protected opinion and is adequate

to permit a claim for defamation to survive a motion to dismiss based on the opinion

privilege, if “a reasonable factfinder could conclude that the statement[] . . . impl[ies] an

assertion [of objective fact]” (i.e., one “sufficiently factual to be susceptible of being

proved true or false”). Milkovich, 110 S.Ct. at 2705, 2707; Nazeri, 860 S.W.2d at 314

(indicating that if a “reasonable factfinder could conclude that the statement implies an

assertion of objective fact,” “the petition is not subject to dismissal on grounds of the

opinion privilege”); Castle Rock Remodeling, LLC v. Better Business Bureau of

Greater St. Louis, Inc., 354 S.W.3d 234, 241 (Mo.App. E.D. 2011) (“we must determine

whether the BBB ‘C’ rating could reasonably have been interpreted as stating actual facts

about Castle Rock capable of being proven true or false”); Benner v. Johnson Controls,

5
 Milkovich v. Lorain Journal Co., 110 S.Ct. 2695, 2705 (1990); see also Nazeri, 860 S.W.2d at 314
(noting the United States Supreme Court’s rejection in Milkovich of a wholesale defamation exemption for
anything labeled opinion).


                                                  14
Inc., 813 S.W.2d 16, 20 (Mo.App. W.D. 1991) (“[I]n light of Milkovich . . ., the question

is whether the person has made an assertion that can reasonably be understood as

implying provable facts.”).

       Whether a reasonable factfinder could conclude that the statement implies an

assertion of objective fact is “a question of law for the trial court.” Nazeri, 860 S.W.2d at

314. In deciding the question, the trial court “must examine the totality of the

circumstances to determine whether the ordinary reader would have treated the statement

as opinion.” Castle Rock, 354 S.W.3d at 241.

       The totality of the circumstances includes whether the statement in question is

susceptible to being proved true or false. Id. at 241-43. If it is not, the statement is

protected opinion. Id.; Milkovich, 110 S.Ct. 2695 at 2706 (“a statement on matters of

public concern must be provable as false before there can be liability under state

defamation law, at least in situations, like the present, where a media defendant is

involved”). The totality of the circumstances also includes the type of speech in question.

As our high court said some years ago – “[t]he highest protection [under the First

Amendment] is accorded pure speech touching on matters of public importance.” Henry

v. Halliburton, 690 S.W.2d 775, 784 (Mo. banc 1985) (internal footnote omitted). The

Eastern District of this Court also has observed that “[t]he Constitutional protection

afforded statements made during public debate on political issues has always been

broadly construed.” Ribaudo v. Bauer, 982 S.W.2d 701, 705 (Mo.App. E.D. 1998).

       At this stage of the case where we must take “plaintiff’s averments as true and

liberally grant[] plaintiff all reasonable inferences,” City of Lake Saint Louis, 324

S.W.3d 759, we are unable to hold as a matter of law that no reasonable factfinder could




                                              15
conclude the statements alleged to be false in Plaintiff’s fourth amended petition imply an

assertion of objective fact that is susceptible of being proved true or false. First, and most

importantly, the statements called Plaintiff’s business a “puppy mill.” The publications

purport to give facts that supported that claim that Plaintiff’s business was a puppy mill,

including, inferences that there were photographs available to verify the conditions of the

kennels, that the singled out kennels “repeatedly deprive[ed] dogs of the basics of

humane care, such as food, shelter from the heat and cold and/or basic veterinary care,”

that the 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.” The article

claimed those facts were determined from a “painstakingly documented report.” In a

press release, it was stated that “the licensed puppy mills identified in this report have an

undeniable record of flagrant disregard for even the most minimal humane care standards

for dogs.” These statements imply verifiable factual information, not statements of

opinion. Although many of the statements made by Defendants are “opinion,” such as

whether Plaintiff’s kennel was the “worst” of the puppy mills, the contention that

Plaintiff’s kennel was a puppy mill with the definitions given as to what constitutes a

puppy mill was, under the totality of the circumstances in this case, a factual contention.6

         Plaintiff’s first point is granted.




6
  Missourians for Dogs asserts other grounds for affirming the trial court’s judgment as to Missourians for
Dogs. These grounds were raised in Missourians for Dogs separate motion to dismiss, but were not raised
in the Humane Society’s motion to dismiss. The trial court granted only the Humane Society’s motion to
dismiss and did not decide Missourians for Dogs’ motion to dismiss. As a result, we do not consider the
additional grounds raised by Missourians for Dogs as, under our standard of review, we consider only
grounds raised in the motion to dismiss that was actually decided.


                                                    16
                                            Point II

        In her second point, Plaintiff asserts that the trial court erred in granting the

Humane Society’s motion to dismiss Count III because that count properly stated a cause

of action for false light invasion of privacy.

        As we noted earlier, the Eastern District of this Court recognized the tort of false

light invasion of privacy in Meyerkord. In Meyerkord, the plaintiff was a former

employee of the defendant. 276 S.W.3d at 321. While employed by the defendant, the

plaintiff was shown as the registrant for websites registered by the defendant. Id. About

three years after the plaintiff’s employment with the defendant ended, the defendant

registered a website that subsequently was used by a third party in a significant marketing

campaign, and listed the plaintiff as the registrant for the website. Id. at 321-22. The

marketing campaign generated criticism of the campaign and those associated with the

campaign including the plaintiff. Id. at 321. The plaintiff sued the defendant for false

light invasion of privacy alleging that “[the defendant] publicly and falsely attributed a

website to [the plaintiff].” Id. at 322, 321-22, 326. The plaintiff did not plead a claim for

defamation. Id. at 322. The Eastern District of this Court stated:

                 As noted earlier, the Missouri Supreme Court has considered the
        issue of whether Missouri courts should adopt the tort of false light
        invasion of privacy, but the Supreme Court concluded it had not yet been
        confronted with a factually suitable case. We now find that the facts of
        the present case properly present the issue of false light invasion of
        privacy and we hold that a person who places another before the public in
        a false light may be liable in Missouri for the resulting damages.

Id. at 325.

        Although this is a much closer question, Plaintiff’s contention that some of the

statements attributed to Defendants were “taken out of context and/or edited to make




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them sound more significant or ominous than they actually were” supports a claim of

false light invasion of privacy. In the Update and March 9, 2011 press release, Plaintiff

contends that Plaintiff continued to have violations “similar to those in the original ‘Dirty

Dozen’ report”, leading to a false impression that serious violations were continuing after

the first report. Plaintiff contends it was deliberately published to put her in a false light

without any acknowledgment of the explanatory facts and circumstances which would

naturally tend to create a less objectionable public impression of Plaintiff and her kennel.

Specifically, the report showed a dog that looked to be a “sick” dog in the report but it

was actually a dog sleeping. The gravamen of Plaintiff’s false light invasion of privacy

count is not that untrue statements caused injury to her reputation, but rather that

Defendants’ public statements allegedly attributed to her conduct and beliefs associated

with irresponsible and disreputable dog breeders that she did not engage in, share or

approve. Even if being a “puppy mill” is not a defamatory term, per se, these statements

allegedly placed Plaintiff before the public in a false light and caused injury to her right

to be let alone. Plaintiff pleads that the actions were done maliciously. She contends that

she was wrongly singled out for this publicity because her son is a Missouri politician,

who was opposed to Defendants’ agenda. Plaintiff’s fourth amended petition stated a

cause of action for false light invasion of privacy.

       Plaintiff’s second point is granted.

       The trial court’s judgment is reversed and the case is remanded to the trial court.


Nancy Steffen Rahmeyer, J. - Opinion Author

Mary W. Sheffield, P.J. - Concurs

Gary W. Lynch, J. - Concurs



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