James Turntine v. Charles Peterson

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 19-2185
___________________________

James Turntine; Promotional Services, Inc.

Plaintiffs - Appellants

v.

Charles Peterson; Redeye Rhino, L.L.C.

Defendants - Appellees
____________

Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________

Submitted: March 10, 2020
Filed: May 18, 2020
____________

Before GRUENDER, ARNOLD, and SHEPHERD, Circuit Judges.
____________

GRUENDER, Circuit Judge.

James Turntine and Promotional Services, Inc., d/b/a Partners Promoting
Darts (“Promotional Services”) (collectively, “Plaintiffs”) appeal the district court’s
dismissal of their complaint bringing three defamation counts against Charles
Peterson and RedEye Rhino L.L.C. (“RedEye Rhino”) (collectively, “Defendants”).
We reverse.
 I.

The following facts are drawn from Plaintiffs’ complaint. See Vigeant v.
Meek, 953 F.3d 1022, 1025 (8th Cir. 2020).

Turntine, a Missouri resident, is the owner and president of Promotional
Services, a Missouri corporation with its principal place of business in Missouri,
which is a governing body for the sport of darts. Promotional Services also operates
a darts league and stages an annual darts competition in the Kansas City, Missouri
area called the “Tournament of Champions” (“Tournament”). Peterson, a Minnesota
resident, is the managing member of RedEye Rhino, a Minnesota LLC with its
principal place of business in Minnesota, which sells darts-themed apparel and
produces darts-related videos. RedEye Rhino has a Facebook page that it uses to
promote its business. Defendants also have a Facebook page under the “Charles
RER” moniker used primarily to promote RedEye Rhino.

Promotional Services and RedEye Rhino entered into a contract under which
Promotional Services granted RedEye Rhino the right to be the exclusive jersey
provider for its league in 2015 and for the 2015 Tournament. As part of this contract,
Promotional Services sold RedEye Rhino $7,500 worth of vouchers that entitled the
holder to participate in the 2015 Tournament. The intent behind this transaction was
to allow RedEye Rhino to offer these vouchers as prizes at darts competitions it
sponsored. The parties “understood and agreed at the time of purchase that RedEye
Rhino was required to award the vouchers, if at all, prior to the beginning of
registration for the 2015 Tournament.” RedEye Rhino did not award all of these
vouchers in time, but, “as a gesture of goodwill,” Promotional Services bought back
$2,500 worth of vouchers.

In 2016, Promotional Services implemented a new apparel rule for its
Tournament, prohibiting players from wearing brands (such as RedEye Rhino)
unless the brand made a $500 donation to the National Pediatric Cancer Foundation.
Promotional Services then informed RedEye Rhino that it would not be given the

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right to be the exclusive jersey provider for the 2016 Tournament, and RedEye Rhino
declined to make the required donation. Turntine nevertheless donated on RedEye
Rhino’s behalf so that Tournament participants could still wear RedEye Rhino
apparel. Peterson then published a number of Facebook posts disparaging Turntine
and Promotional Services. After these posts, Promotional Services banned RedEye
Rhino from participating in any Promotional Services’ events following the 2016
Tournament.

Roughly two years later, RedEye Rhino posted to Facebook a photo taken at
the 2018 Tournament featuring two players whom it sponsored. When Turntine
learned of this, he asked the players to have the photo removed. Subsequently,
Defendants posted to the Charles RER Facebook page comments criticizing Turntine
over their business dealings back in 2015. Turntine responded by posting a
statement in a Facebook group hosted by Promotional Services, recounting the
parties’ past business dealings and explaining why their business relationship
soured. In reply, Peterson posted to Defendants’ Facebook accounts multiple
statements—some written and others verbal—that are the subject of this lawsuit.

First, on October 30, 2018, Defendants posted to RedEye Rhino’s Facebook
page (and later to his own Facebook page) the following statement: “There is only
one league that manipulates, lies and censors its players. ‘Charles RER’ C.E.O. of
RedEye Rhino speaks up about the recent attacks from Jim Turntine of the
[Tournament of Champions] League.” That statement along with a video contained
in the same post indicated that Peterson would be broadcasting a video in November
2018 to address Turntine’s statements.

Second, on November 18, 2018, Defendants posted a video to the Charles
RER Facebook page. In it, Peterson accused Turntine of “selfishness” and “greed”
and claimed that Turntine had engaged in underhanded business practices in 2015
by selling Peterson vouchers for Peterson to redistribute and then actively interfering
with Peterson’s ability to redistribute them.

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 Third, in the comments section of that video post, Peterson responded to three
different individuals who had asked questions. One asked, “I know you’ve said that
Turntine is a liar, but did he actually like [sic] to you or do you just not like the guy?”
Peterson replied, “Yes he has lied about this situation to manipulate it.” Another
asked, “[W]hat do you mean Jim turntine lies? I don’t want to be involved in a
league that lies to it’s [sic] players.” Peterson replied, “He has lied about what he
has been saying about me to manipulate the situation.” A third person asked, “Jim
said on Facebook that this all started when you refused to make the charity donatiin
[sic]- is that true?” Peterson replied, “NO! We refused to be a part of [the
Tournament] because I didn’t like how he does his business and I knew the bs that
was to come. Jim uses the Pedatric [sic] Foundation donation to gain sympathy from
people about what went don’t [sic]. it’s [sic] a complete lie.”

A few weeks later, Turntine and Promotional Services sued Peterson and
RedEye Rhino in Missouri state court, bringing two counts for libel and one count
for slander and seeking “in excess of $20,000.00” for each count as well as punitive
damages under each count “in an amount that will be sufficient to deter Defendants
from engaging in similar misconduct in the future.” Defendants then removed the
action to federal court on diversity jurisdiction grounds and moved to dismiss all
counts for lack of personal jurisdiction and for failure to state a claim.

The district court granted this motion, agreeing that the complaint failed to
state a claim because the statements in question were not actionable under Missouri
law. See Turntine v. Peterson, No. 4:19-CV-107 RLW, 2019 WL 2076047 (E.D.
Mo. May 10, 2019). Plaintiffs appeal, arguing that the district court misapplied
Missouri law in dismissing each count of their complaint.

II.

Before proceeding to the merits, we must first determine whether the district
court had subject-matter jurisdiction over this action. Mensah v. Owners Ins., 951
F.3d 941, 942 (8th Cir. 2020) (per curiam). Defendants removed this case from

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Missouri state court to federal court on the basis of diversity jurisdiction, and
Plaintiffs’ three state-law defamation claims do not appear to require “resolution of
a substantial, disputed federal question” so as to implicate federal-question
jurisdiction. See Pet Quarters, Inc. v. Depository Tr. & Clearing Corp., 559 F.3d
772, 779 (8th Cir. 2009). As such, subject-matter jurisdiction exists here only if the
requirements of diversity jurisdiction are met. We review de novo the question
whether diversity jurisdiction exists. Mensah, 951 F.3d at 943.

Diversity jurisdiction has two requirements: complete diversity of citizenship
of the adverse parties, see Lee v. Airgas-Mid South, Inc., 793 F.3d 894, 899 (8th Cir.
2015) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806)), and an amount
in controversy exceeding $75,000, 28 U.S.C. § 1332(a). In this case, the first
requirement is met. Plaintiffs are both citizens of Missouri and only Missouri, and
Defendants are both citizens of Minnesota and only Minnesota.

Whether the amount-in-controversy requirement is satisfied, however, is a
closer question. For each of Plaintiffs’ three defamation counts, they pleaded actual
damages “in excess of $20,000” as well as “punitive damages” in an unspecified
amount “sufficient to deter Defendants from engaging in similar misconduct in the
future.” Because it was unclear to us from this pleading that the amount in
controversy—“in excess of” $60,000 1 plus punitive damages—exceeded $75,000,

1
The damages sought by a single plaintiff via two or more claims against a
single defendant may be aggregated for purposes of calculating the amount in
controversy. Spears v. Robinson, 431 F.2d 1089, 1093 (8th Cir. 1970). Applying
that rule here, the aggregated damages sought by either plaintiff against either
defendant is “in excess of” $60,000. We thus consider “in excess of” $60,000 the
operative amount in controversy.

It is possible that the claims of each plaintiff against one of the defendants
could be aggregated, totaling “in excess of” $120,000, which would remove any
doubt about satisfaction of the amount-in-controversy requirement. See Snyder v.
Harris, 394 U.S. 332, 335 (1969) (noting that the claims of “two or more plaintiffs”
may be aggregated when they “unite to enforce a single title or right in which they
have a common and undivided interest”). But this “common and undivided interest”

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see Schubert v. Auto Owners Ins., 649 F.3d 817, 822 (8th Cir. 2011) (“The general
federal rule has long been to decide what the amount in controversy is from the
complaint itself . . . .”), we raised the matter at oral argument and then ordered
supplemental briefing. See Webb ex rel. K.S. v. Smith, 936 F.3d 808, 814 (8th Cir.
2019) (noting our “independent obligation to assure ourselves of subject-matter
jurisdiction, even when no party raises the issue”).

After further consideration, we conclude that the pleaded actual damages are
sufficient to satisfy the amount-in-controversy requirement. Critically here, “the
complaint does not limit its request for damages to a precise monetary amount.” See
Angus v. Shiley Inc., 989 F.2d 142, 146 (3d Cir. 1993). Rather, Plaintiffs have
pleaded in excess of $60,000. When damages are pleaded in this way, “the amount
in controversy is not measured by the low end of an open-ended claim, but rather by
a reasonable reading of the value of the rights being litigated.” Id.

This approach comports with the law of our circuit. The amount-in-
controversy requirement may be satisfied even when “the complaint alleges no
specific amount of damages or an amount under the jurisdictional minimum.” See
In re Minn. Mut. Life Ins. Co. Sales Practices Litig., 346 F.3d 830, 834 (8th Cir.
2003). And we measure the amount in controversy “by the value to the plaintiff of
the right sought to be enforced” when the amount is in question. Am. Family Mut.
Ins. v. Vein Ctrs. for Excellence, Inc., 912 F.3d 1076, 1081 (8th Cir. 2019).

Granted, we cannot assume the amount-in-controversy requirement is
satisfied in these circumstances. Rather, as the proponent of federal jurisdiction, the
removing party “bears the burden of proving that the jurisdictional threshold is
satisfied.” Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir. 2009). The “relevant

test has been the subject of “pervasive criticism” to the effect that it is “arcane,”
unclear, and “mystifying.” Travelers Prop. Cas. v. Good, 689 F.3d 714, 719 (7th
Cir. 2012). Given these criticisms coupled with the fact this issue has not been
briefed, we decline to find the amount-in-controversy requirement met on this basis.

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jurisdictional fact” the removing party must prove here is “whether a fact finder
might legally conclude” that “the damages are greater than the requisite amount.”
Kopp v. Kopp, 280 F.3d 883, 885 (8th Cir. 2002). The removing party must prove
this fact by a preponderance of the evidence. Bell, 557 F.3d at 956.

Once the removing party carries its burden, “remand is only appropriate if the
plaintiff can establish to a legal certainty that the claim is for less than the requisite
amount.” Id. To meet this “legal certainty” standard, the plaintiff must show that
the jurisdictional amount could not be recovered “as a matter of law” or that “no
reasonable jury could award damages totaling more than $75,000 in the
circumstances that the case presents.” Kopp, 280 F.3d at 885.

“In some cases,” the removing defendant will need “to provide additional
evidence demonstrating that removal is proper” to satisfy the burden. Roe v.
Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010). “In other cases,
however, it may be ‘facially apparent’ from the pleading itself that the amount in
controversy exceeds the jurisdictional minimum,” and “the court itself may be
better-situated to accurately assess” whether this is so. Id. A court may “employ[]
its judicial experience or common sense” to ascertain whether the relevant
jurisdictional fact is present. See id. at 1063; see also Waters v. Ferrara Candy Co.,
873 F.3d 633, 636 (8th Cir. 2017) (per curiam) (noting that the amount in
controversy may be established by “specific factual allegations . . . combined with
reasonable deductions, reasonable inferences, or other reasonable extrapolations”).

In the notice of removal, Defendants represented that “a reasonable fact finder
might conclude the damages are greater than the requisite amount.” We find
ourselves situated adequately to assess whether this is true at this stage, see Roe, 613
F.3d at 1061, and we agree that “a fact finder might legally conclude” that “the
damages are greater than the requisite amount,” see Kopp, 280 F.3d at 885.

In their complaint, Plaintiffs alleged that Defendants’ statements “have
damaged and continue to damage Plaintiffs’ well-earned reputations for honesty and

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fair dealing in their professions,” that Turntine “has experienced mental anguish and
suffering” because of them, and that Promotional Services “has lost revenue and
business opportunities” on account of them. Plaintiffs also provided specific factual
allegations making these assertions plausible. In similar cases, plaintiffs seeking “in
excess of $25,000” in actual damages based on single counts of defamation have
been awarded in excess of $75,000 in actual damages. See, e.g., Scott v. LeClercq,
136 S.W.3d 183, 186 (Mo. Ct. App. 2004). As such, we conclude the relevant
jurisdictional fact is present here. See Kopp, 280 F.3d at 885; Angus, 989 F.2d at
146 (concluding similarly even though plaintiff only pleaded damages “in excess of”
eighty percent of the jurisdictional threshold because “a reasonable jury likely could
have valued [plaintiff’s] losses” as exceeding the threshold); see also Shaw v. Dow
Brands, Inc., 994 F.2d 364, 366-68 (7th Cir. 1993), abrogated on other grounds by
Meridian Sec. Ins. v. Sadowksi, 441 F.3d 536 (7th Cir. 2006) (finding the
jurisdictional threshold met even though the complaint “asked only for damages ‘in
excess of’” thirty percent of the threshold).

Plaintiffs have not shown to a legal certainty that they could not recover in
excess of $75,000 in actual damages. Kopp, 280 F.3d at 885. At most, after we
questioned the amount in controversy, they suggested it is unclear if “a factfinder
could legally conclude” their actual damages exceed $75,000. Decisions like
LeClerq, 136 S.W.3d 183, however, persuade us otherwise.

Assured of our jurisdiction, we now proceed to the merits.

III.

We review a dismissal for failure to state a claim de novo, accepting all well-
pleaded factual allegations as true and construing all reasonable inferences in the
nonmoving party’s favor. Vigeant, 953 F.3d at 1024. In a diversity action such as
this, we also review de novo the district court’s interpretation of state law. Keller
Farms, 944 F.3d at 979-80.

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 A.

Under Missouri law, the elements of defamation are (1) publication (2) of a
defamatory statement (3) that identifies the plaintiff, (4) that is false, (5) that is
published with the requisite degree of fault, and (6) that damages the plaintiff’s
reputation. Overcast v. Billings Mut. Ins., 11 S.W.3d 62, 70 (Mo. 2000). The district
court dismissed all three of Plaintiffs’ counts for failure to state a claim on the basis
that the second element was not satisfied due to the fact that the statements in
question were not actionable because either the statements were not defamatory or
they were privileged as opinion. Turntine, 2019 WL 2076047, at *4-6. In Missouri,
determining whether statements are actionable as defamation is a two-step process.
Hammer v. City of Osage Beach, 318 F.3d 832, 842 (8th Cir. 2003).

First, the reviewing court “must determine whether a statement is capable of
defamatory meaning.” Henry v. Halliburton, 690 S.W.2d 775, 779 (Mo. 1985). A
“defamatory meaning” is a meaning that “tends so to harm the reputation of another
as to lower him in the estimation of the community or to deter third persons from
associating or dealing with him.” Id. In determining whether words are capable of
such meaning, the reviewing court must consider them “‘in context, giving them
their plain and ordinarily understood meaning.’” Smith v. Humane Soc’y of United
States, 519 S.W.3d 789, 798 (Mo. 2017) (quoting Nazeri v. Mo. Valley Coll., 860
S.W.2d 303, 311 (Mo. 1993)).

Second, if the statements in question are capable of such a meaning, the
reviewing court must determine whether a privilege shields the defendant from legal
action. Henry, 690 S.W.2d at 779; Pape v. Reither, 918 S.W.2d 376, 380 (Mo. Ct.
App. 1996). The only privilege that Defendants argue applies here is the opinion
privilege: “there can be no liability under state defamation law for statements of
opinion.” Smith, 519 S.W.3d at 799. This privilege does not apply, however, if a
statement “implies an assertion of objective facts,” even if couched as an opinion.
Id. at 799-800. To determine if an ostensible opinion statement implies an assertion
of objective facts, the reviewing court must consider the “totality of the

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circumstances.” Henry, 690 S.W.2d at 788. And at this stage, the test for whether
this privilege applies is “whether a reasonable factfinder could conclude that the
statement implies an assertion of objective fact.” Smith, 519 S.W.3d at 800.

B.

Before applying this two-step standard to the specifics of Plaintiffs’ claims,
we must address a dispute about the correct legal standard under Missouri law. The
district court identified an additional component of the analysis that Defendants
argue applies here; namely, that if “a statement is capable of a nondefamatory
meaning, and can be reasonably construed in an innocent sense, [the Court] must
hold the statement nonactionable as a matter of law.” Turntine, 2019 WL 2076047,
at *3. This principle is referred to as the innocent-construction rule. See 53 C.J.S.
Libel and Slander; Injurious Falsehood § 33 (2020).

A line of Missouri Court of Appeals decisions furnishes support for the view
that Missouri follows the innocent-construction rule. See, e.g., Castle Rock
Remodeling, LLC v. Better Bus. Bureau of Greater St. Louis, Inc., 354 S.W.3d 234,
239 (Mo. Ct. App. 2011); State ex rel. Diehl v. Kintz, 162 S.W.3d 152, 155 (Mo. Ct.
App. 2005); Mandel v. O’Connor, 99 S.W.3d 33, 36 (Mo. Ct. App. 2003); Chastain
v. Kan. City Star, 50 S.W.3d 286, 288 (Mo. Ct. App. 2001); Ampleman v.
Scheweppe, 972 S.W.2d 329, 333 n.2 (Mo. Ct. App. 1998) (per curiam). As the
Ampleman court explained, this rule renders statements nonactionable even if they
are capable of a defamatory meaning so long as they are also capable of a
nondefamatory meaning. 972 S.W.2d at 333 n.2.

We recognize that in the absence of Missouri Supreme Court precedent
deciding an issue, decisions of the Missouri Court of Appeals are “persuasive
authority” that we “must follow” when “they are the best evidence of what state law
is.” United Fire & Cas. Ins. v. Garvey, 328 F.3d 411, 413 (8th Cir. 2003) (brackets
omitted). We need not follow them, however, if we are “convinced by other
persuasive data that the [Missouri Supreme Court] would decide otherwise.”

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Council Tower Ass’n v. Axis Specialty Ins., 630 F.3d 725, 728 (8th Cir. 2011).
“Persuasive data” includes “relevant state precedents, analogous decisions,
considered dicta, scholarly works, and any other reliable data.” Symphony
Diagnostic Servs. No. 1 Inc. v. Greenbaum, 828 F.3d 643, 646 (8th Cir. 2016). In
light of the following, we conclude the Missouri Supreme Court would not recognize
the innocent-construction rule as the law of Missouri if this question were before it.

Before 1993, Missouri “courts made distinctions between per se and per quod
defamation actions.” Taylor v. Chapman, 927 S.W.2d 542, 544 (Mo. Ct. App.
1996). A per se claim arose out of words “defamatory on their face,” whereas a per
quod claim arose out of words “not defamatory on their face.” Capobianco v.
Pulitzer Publ’g Co., 812 S.W.2d 852, 855 (Mo. Ct. App. 1991). A statement that
was not actionable per se nevertheless could be actionable per quod. Langworthy v.
Pulitzer Publ’g Co., 368 S.W.2d 385, 388 (Mo. 1963).

The innocent-construction rule only applies in the per se context. Tuite v.
Corbitt, 866 N.E.2d 114, 125 (Ill. 2006); accord Gupta v. The Lima News, 744
N.E.2d 1207, 1213 (Ohio Ct. App. 2000). And only a few states apply it in that
context. See Rodney A. Smolla, 1 Law of Defamation §§ 4:21-22 (2d ed. 2019)
(identifying Ohio and Illinois as the only states following this rule).

Although confusion on this point crept into its caselaw later, the Missouri
Supreme Court explicitly and repeatedly rejected the innocent-construction rule long
ago. See, e.g., Diener v. Star-Chronicle Publ’g Co., 132 S.W. 1143, 1148 (Mo.
1910) (“Courts no longer construe words in their most favorable and mild sense
. . . .”); Ukman v. Daily Record Co., 88 S.W. 60, 65 (Mo. 1905) (“The correct rule
in construing words seems to be that they are to be taken, not in mitiori sensu, but in
their fair English meaning . . . .”); Fallenstein v. Booth, 13 Mo. 427, 430 (1850)
(“The old doctrine that words spoken slanderously are to be taken in mitiori sensu,
has long since been abandoned.”).

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 Consistent with this position, the Missouri Supreme Court has also recognized
that a fact question exists whenever “a statement is capable of defamatory meaning,”
even if it is also capable of nondefamatory meaning. See Henry, 690 S.W.2d at 779;
see also Coots v. Payton, 280 S.W.2d 47, 55 (Mo. 1955) (“While these words are
capable of a nondefamatory construction, . . . . [w]e . . . may not say as a matter of
law that the words were not defamatory . . . .”); McGinnis v. George Knapp & Co.,
18 S.W. 1134, 1138 (Mo. 1892) (“‘If the words published are fairly capable of two
meanings[]—one harmless and the other defamatory[]—it is a question for the jury
. . . .’” (quoting Twombly v. Monroe, 136 Mass. 464, 468 (1884))).

Without overruling, distinguishing, or even addressing these precedents, the
Missouri Supreme Court in Walker v. Kansas City Star Co. announced that “in
considering whether a publication is libelous per se, words to be considered
actionable . . . should be construed in their most innocent sense.” 406 S.W.2d 44,
51 (Mo. 1966). As support for this proposition, the Walker court cited only Atterbury
v. Brink’s Express Co., a Missouri Court of Appeals decision that itself quoted only
one of that court’s own precedents to the effect that words “‘should be understood
and construed in their most innocent sense’” before they may be deemed actionable
per se. 90 S.W.2d 807, 809 (Mo. Ct. App. 1936) (quoting Kunz v. Hartwig, 131
S.W. 721, 724 (Mo. Ct. App. 1910)). But Kunz was not good law on this point when
the Atterbury court quoted it. In fact, “the same learned Judge,” Lowe v. De Hoog,
193 S.W. 969, 970-71 (Mo. Ct. App. 1917), who wrote Kunz authored Vanloon v.
Vanloon the next year, in which he recognized that the Missouri Supreme Court in
Ukman, 88 S.W. 60, and elsewhere had rejected the “absurdity” that was the
innocent-construction rule and recast Kunz to conform to Missouri law on this point.
140 S.W. 631, 633-34 (Mo. Ct. App. 1911); see Lowe, 193 S.W. at 970-71
(recognizing that Kunz did “not correctly state the law”). In other words, it seems
the Walker court imported the innocent-construction rule into Missouri law based on
repudiated Missouri Court of Appeals precedent that conflicted with the Missouri
Supreme Court’s own longstanding position on the matter.

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 Walker thus unsurprisingly introduced confusion into Missouri law about
whether the innocent-construction rule applied to per se claims. See Capobianco,
812 S.W.2d at 855 (recognizing the “two different standards” applied by the
Missouri Supreme Court in this context and trying to harmonize them).

In Nazeri, the Missouri Supreme Court recognized that the rule of Walker was
not “absolutely consistent” with the standard articulated in its “other precedents” for
determining “whether a statement of fact is defamatory per se.” 860 S.W.2d at 311.
In that case, the Nazeri court concluded that these standards “should be read
together” and found that the statement was actionable no matter which standard
applied. See id. The court then recognized “the undue difficulty of use of the
traditional per se and per quod requirements,” commented on how “attempts to
characterize” statements “as per se or per quod appear more artificial than real,”
noted that this traditional framework “may have a very real impact more far-reaching
than justified,” stated it “creates unjustifiable inequities,” and held that “in
defamation cases the old rules of per se and per quod do not apply.” Id. at 312-13.
As such, it declared that “plaintiffs need not concern themselves with whether the
defamation was per se or per quod” any longer. Id. at 313.

Given it was only ever applicable in the per se context, see Walker, 406
S.W.2d at 51, the innocent-construction rule should not have survived Nazeri’s
abrogation of the per se/per quod framework and creation of a “unified” framework
in which the same standards apply to either type of claim, see Nazeri, 860 S.W.2d at
312-13—a point the Missouri Supreme Court has since implicitly recognized, see
Smith, 519 S.W.3d at 798 (“To determine whether a statement is defamatory, ‘the
alleged defamatory words must be considered in context, giving them their plain and
ordinarily understood meaning.’” (quoting Nazeri, 860 S.W.2d at 311)). After all,
if the innocent-construction rule still applied, then only those claims based on
statements that are facially and unequivocally defamatory would be actionable after
Nazeri. But to read Nazeri in this way, as Ampleman did in finding it ratified the
innocent-construction rule, see 972 S.W.2d at 333 n.2, makes Nazeri internally
contradictory given its assurance that “plaintiffs need not concern themselves” any

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longer with whether statements were facially defamatory (that is, defamatory per se)
to state a claim for defamation, 860 S.W.2d at 313.

It appears, then, that Ampleman and subsequent Missouri Court of Appeals
decisions following it misapplied Nazeri and, as a result, turned the logic of that
decision on its head. As such, we do not ask whether the statements at issue here
are capable of nondefamatory meaning when “construed in an innocent sense.” See
Ampleman, 972 S.W.2d at 333 n.2. Instead, consistent with the analytical framework
laid out above, see Section III.A., we ask only whether the statements are capable of
defamatory meaning based on their plain meaning and, if so, whether the opinion
privilege applies at this stage.

C.

With the table now set, we turn at last to the substance of Plaintiffs’
defamation claims. These claims are based on three statements from Defendants:

• In the first, Defendants responded to a statement by Plaintiffs about
the parties’ business dealings by asserting that Plaintiffs
“manipulate[]” and “lie[].”
• In the second, Peterson expounded on Defendants’ previous
statement by discussing how Turntine’s explanation for the parties’
soured business relationship was not true and that the true
explanation was that Turntine had engaged in underhanded business
dealings with Peterson.
• In the third, Peterson doubled down on Defendants’ claim that
Plaintiffs were liars, responding to multiple individuals inquiring
about whether Peterson’s claims were just bluster by asserting that
he meant what he said.

The district court concluded that the first statement was “not defamatory as a
matter of law” because it was “a response to Plaintiffs’ prior post and not . . . a

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statement of objective fact regarding Plaintiffs’ moral character.” It concluded that
the second statement was not actionable because it consisted of “mere opinion.” And
it concluded that the third statement was not actionable both because it was “not
capable of a defamatory meaning as a matter of law” and because it consisted of
subjective opinion that “cannot be provable as false.” We disagree on all counts.

First, each of these statements appears capable of defamatory meaning; that
is, capable of a meaning that “tends so to harm the reputation of another as to lower
him in the estimation of the community or to deter third persons from associating or
dealing with him.” Henry, 690 S.W.2d at 779. Words that impute “fraud, want of
integrity, or misconduct in the line of one’s calling” are capable of such a meaning.
Nazeri, 860 S.W.2d at 311; see also Matter of Westfall, 808 S.W.2d 829, 833 (Mo.
1991) (recognizing that calling someone a liar can cause “‘damage to reputation’”
and thus be capable of defamatory meaning (quoting Milkovich v. Lorain Journal
Co., 497 U.S. 1, 19 (1990)). In Anton v. St. Louis Suburban Newspapers, Inc., for
instance, the Missouri Court of Appeals concluded that statements characterizing a
lawyer’s work as “sleazy dealings” and a “sleazy sleight-of-hand” were capable of
defamatory meaning because they “affect[ed] him in his professional character” and
imputed to him “dishonesty” and “misconduct incompatible with the proper conduct
of his profession.” 598 S.W.2d 493, 497 (Mo. Ct. App. 1980).

Similarly here, each of Defendants’ statements is capable of defamatory
meaning. The first statement accused Plaintiffs of dishonesty about the reason for
the parties’ soured business relationship. The second statement built on the first by
providing specifics—specifics that charged Plaintiffs with want of integrity in their
business dealings. The third statement resembled the first insofar as Peterson once
again accused Turntine of being a liar and manipulator. That these statements might
harm Plaintiffs’ reputation and “deter third persons from associating or dealing with”
Plaintiffs, Henry, 690 S.W.2d at 779, is borne out by the fact that one of the
individuals who commented on Defendants’ video asked Peterson to clarify if he
really meant what he said because that individual did not “want to be involved in a
league that lies to it’s [sic] players.”

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 Second, the opinion privilege does not render these statements nonactionable
at this stage. In light of the totality of the circumstances and context in which these
statements were made, a reasonable factfinder could conclude that these statements
at a minimum imply an assertion of objective fact. See Smith, 519 S.W.3d at 798-
800; Henry, 690 S.W.2d at 779, 788.

In the first statement, Defendants were responding to an earlier statement by
Plaintiffs regarding the parties’ business dealings and thus implying that Plaintiffs
had misrepresented facts about those dealings. This implies an assertion of objective
fact—Plaintiffs were not telling the truth about past events. See Matter of Westfall,
808 S.W.2d at 833 (noting how the statement “[i]n my opinion John Jones is a liar”
implies “a knowledge of facts which lead to the conclusion that Jones told an
untruth” (quoting Milkovich, 497 U.S. at 19)).

In the second statement, Defendants went even further by detailing how and
why Plaintiffs had lied: to cover up the fact that Plaintiffs had cheated Defendants
out of a benefit of their agreement. While certain assertions in this statement could
constitute privileged opinion—such as Peterson’s claim that Turntine had acted with
“selfishness and greed,” see Anton, 598 S.W.2d at 498-99 (noting that a defendant
is not liable for a “derogatory opinion” accompanied by a “statement of false and
defamatory facts”)—the statement in general and in context charges Plaintiffs with
engaging in underhanded business dealings and lying to cover up those dealings.
Furthermore, Plaintiffs’ defamation claim arising from this statement is not based
on Defendants’ passing accusation that Plaintiffs were selfish and greedy but rather
on the factual assertions about the parties’ past dealings that Plaintiffs allege were
“false in multiple respects.” The opinion privilege thus does not defeat this claim.
See id. (recognizing that the defendant is still “liable for the false statements” made
in conjunction with the “expression of a derogatory opinion” so long as the plaintiff
relies on the false statements and not just the opinion to support the defamation
claim); see also Buller v. Pulitzer Publ’g Co., 684 S.W.2d 473, 476, 479 (Mo. Ct.
App. 1984) (reversing dismissal of defamation claim based on artistic depiction of

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plaintiff that visually asserted “false and defamatory facts” about her accompanied
by “derogatory opinion”).

In the third statement, Peterson repeated his claim that Turntine was a liar and
manipulator, and the circumstances in which this statement was made rebut any
notion that Peterson was just conveying his subjective opinion about Turntine. In
context, Facebook users who had seen Peterson’s video wanted to know if he meant
what he said literally or if he was just speaking rhetorically because, for instance, he
did not like Turntine. Given this opportunity to clarify his words were just
nonfactual bluster, Peterson instead doubled down, explaining that he meant to claim
Turntine actually lied. Again, these alleged lies were about objectively verifiable
historical facts: what happened between the parties that led to the souring of their
business relationship. As such, Peterson’s statements appear provable as false,
notwithstanding the district court’s conclusion to the contrary. See Smith, 519
S.W.3d at 798-99.

In sum, Defendants’ three statements are all capable of defamatory meaning
and could be viewed as implying assertions of objective fact. Thus, Plaintiffs’ three
claims predicated on these statements should not have been dismissed.

IV.

For the foregoing reasons, the district court erred in concluding that Plaintiffs’
complaint failed to state a claim for defamation and in dismissing each of the three
counts therein. We therefore reverse and remand for further proceedings consistent
with this opinion.
______________________________

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