Tom Bauer was recalled from office in 2005.
The Missouri Court of Appeals Eastern District last week reversed a St. Louis jury's verdict in which former St. Louis Alderman Tom Bauer (Ward 24) won a defamation lawsuit against 7-Eleven and one of its franchise owners, Randy Munton.
In a unanimous decision handed down November 27, all three appellate judges ruled that Bauer failed to prove that Munton and 7-Eleven acted with actual malice and that St. Louis Circuit Court Judge Philip Heagney erred when he denied the defendants' motion to dismiss the case during trial this past January.
Despite the legal victory, Munton, who owns the 7-Eleven at the corner of McCausland and Southwest avenues, expressed little relief last week.
"I'm just wondering what Bauer's next course of action will be," said Munton, who has been dealing with the defamation lawsuit since 2005. "I'm quite confident he'll appeal the decision."
Bauer, an attorney who represented himself during the appeal, did not return calls for comment. Related content:
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The defamation suit stemmed from a successful effort in 2005 to recall Bauer from office after residents and business owners in the ward raised concerns about the alderman's relationship with real estate developers. Bauer took particular exception to a flyer circulated during the recall drive that -- among other things -- stated that he served as executor of an estate that sold property in the ward to a developer for a lower price than was offered from a ward resident who disagreed with Bauer's development plans for the property.
Bauer's case seemed curious from the outset.
For starters, it's extremely difficult to defame a public official. And while Bauer initially sued several ward residents for defamation, all defendants but Munton and 7-Eleven were eventually dismissed. Moreover, Munton was not the person who wrote the flyer. (A fact that was never in debate.) Additionally, Munton, according to him, never distributed the flyer inside his store.
"I have employees who will swear to that," he says. "But we never raised that point to the court because we were confident that the case would be thrown out over the argument of actual malice."
Instead, the case was allowed to proceed to trial in January 2012 (after seven years of legal filings) and ended with the jury awarding Bauer $150,000 in actual damages for defamation. But as the appellate judges noted, Bauer should have been forced during trial to prove "actual malice" -- a higher degree of slander.
Wrote the court:
Actual malice exists where a defendant had actual knowledge that the allegedly defamatory statement was false or acted with reckless disregard as to its truth or falsity at a time when the defendant had serous doubts as to its truth. The test for actual malice is not whether a reasonably prudent person would have had serious doubts as to the truth of the publication, but whether the defendant in fact held such doubts. In a defamation case involving a public official, we are obliged to determine the presence of actual malice by an independent review of the entire record.
During the trial Bauer argued that Munton should have known that he was not officially offered a higher price for the disputed piece of property in the Clayton-Tamm neighborhood. Why? Because the private individual who stated publicly that he offered Bauer more for the property only made the alderman a verbal -- but not written -- offer to purchase the property.
Concluded the appellate court:
[W]hile plaintiff did explain at the meeting he had not received an offer, this evidence alone, when viewed in context of the entire record, does not satisfy his burden of proof. We cannot hold that a citizen is compelled to believe a denial by a public figure, nor can we hold that such a denial necessarily requires a citizen to investigate the circumstances further. While caution and moderation might well be praiseworthy in political debate, we cannot mandate it in the give-and-take of the political arena.
In striking down the earlier ruling, the appellate judges all agreed that the lower court should not have denied motions from Munton and 7-Eleven's attorney, John McCollough, to throw out the case both before and after the jury reached its verdict.
For what it's worth, Munton found himself in Bauer's crosshairs for opposing another proposed development in the ward that called for construction of a Quiktrip at McCausland and Manchester -- just down the road from his 7-Eleven.
"I was at an Ellendale neighborhood meeting when Bauer announced the plans for the Quiktrip," recalls Munton. "A few weeks later, I went to the meeting of the Franz Park neighborhood (where the Quiktrip was to be located) and asked if they knew about it. They knew nothing, and that stirred up a hornet's nest. I wasn't going to stand in the way of the project if the neighborhood wanted it, but that wasn't the case." Read the entire opinion from the appellate court here.