Apperson v. Kaminsky: Plaintiff Testimony May Establish Actual Reputational Injury in Missouri Defamation Actions (and Unstated Directed-Verdict Grounds Cannot Support Affirmance)

Introduction

Parties: Apperson (plaintiff) sued Kaminsky and Norman (defendants) for defamation arising out of public statements accusing him of rape, abuse, stalking, threats, and related misconduct. Procedural posture: At the close of Apperson’s case-in-chief, both defendants moved for directed verdict under Rule 72.01, arguing Apperson failed to present “independent” (non-plaintiff) evidence that his reputation was damaged by their statements. The circuit court granted directed verdicts and entered judgment for defendants.

Core issues on appeal: (1) Whether Missouri defamation law requires “independent evidence” of reputational injury beyond a plaintiff’s own testimony to survive a directed verdict; and (2) whether appellate courts may affirm a directed verdict on alternative grounds (e.g., falsity or fault) not stated in the directed-verdict motion, given Rule 72.01(a)’s specificity requirement.

Summary of the Opinion

The Supreme Court of Missouri held that Missouri law does not require “independent” evidence of reputational injury in defamation cases. A plaintiff may establish the required “actual reputational harm” with competent testimony—so long as it is concrete and supports a reasonable inference of reputational injury (not merely subjective feelings like embarrassment).

The Court therefore vacated the directed-verdict judgment as to all counts against Kaminsky and one remaining count against Norman and remanded for a new trial, while affirming the judgment on four counts against Norman that were based on agency (those counts were abandoned on appeal).

The Court also rejected defendants’ attempt to affirm on “alternative grounds” (lack of falsity proof; lack of negligence/fault proof) because those grounds were not stated in the directed-verdict motions as required by Rule 72.01(a).

Analysis

Precedents Cited

• Brock v. Dunne, 637 S.W.3d 22 (Mo. 2021)
  Supplies the governing directed-verdict lens: evidence is viewed in the light most favorable to plaintiff; courts assume the jury will believe plaintiff’s supporting evidence and draw favorable inferences. The opinion uses Brock to frame “substantial evidence” and the de novo review standard.
• Smith v. Humane Soc'y of United States, 519 S.W.3d 789 (Mo. 2017)
  Provides the six defamation elements, including the key disputed element here: damage to reputation. This anchors the Court’s focus on whether reputational injury evidence was submissible.
• Nazeri v. Mo. Valley Coll., 860 S.W.2d 303 (Mo. 1993)
  Eliminates the historical “per se/per quod” sorting as a damages shortcut in Missouri, requiring actual damages in all cases. The Court uses Nazeri to emphasize that reputational harm must be proven, but not in any particular evidentiary form.
• Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809 (Mo. 2003)
  The central authority. The Court reaffirms Kenney’s rule that “proof of actual reputational harm is an absolute prerequisite” in every defamation action, but clarifies Kenney was about the substance of proof (conclusory embarrassment versus reputation harm), not the source (plaintiff versus others). The Court expressly cautions against reading Kenney to impose an “independent evidence” requirement.
• Bauer v. Ribaudo, 975 S.W.2d 180 (Mo. App. 1998) and Taylor v. Chapman, 927 S.W.2d 542 (Mo. App. 1996)
  Used in Kenney and again here to illustrate what is insufficient: speculative or unsupported assertions (e.g., integrity “tarnished” without concrete effects). The Court treats these cases as “nature-of-proof” decisions, not “who-must-testify” decisions.
• Fireworks Restoration Co. v. Hosto, 371 S.W.3d 83 (Mo. App. 2012)
  Defendants relied on it to argue reputational injury requires evidence beyond plaintiff testimony. The Supreme Court explains Fireworks Restoration misread Kenney by adopting an erroneously heightened standard, and it corrects that misreading.
• Rocci v. MacDonald-Cartier, 731 A.2d 1205 (N.J. App. Div. 1999), Rocci v. Ecole Secondaire Macdonald- Cartier, 755 A.2d 583 (N.J. 2000), and Sisler v. Gannett Co., 516 A.2d 1083 (N.J. 1986)
  These cases appear because Kenney quoted language suggesting plaintiff-only testimony or “inferred” damages were “unacceptable.” The Court traces the quotation’s lineage and declares it irrelevant dicta: the New Jersey cases concerned whether damages could be presumed, not who may supply evidence. The Court therefore instructs that this “troublemaking” Kenney quote should not be used to impose an “independent evidence” requirement.
• Weidner v. Anderson, 174 S.W.3d 672 (Mo. App. 2005) and Scott v. LeClercq, 136 S.W.3d 183 (Mo. App. 2004)
  Cited as examples of Missouri appellate decisions that were led astray by the same Kenney quotation; the Supreme Court signals a course correction.
• Conservation Comm'n v. Bailey, 669 S.W.3d 61 (Mo. 2023); State ex rel. Mo. Coal. for the Env't v. Joint Comm. on Admin. Rules, 519 S.W.3d 805 (Mo. 2017); Reed v. Reilly Co., LLC, 534 S.W.3d 809 (Mo. 2017); Williams v. Hubbard, 455 S.W.3d 426 (Mo. 2015); Rizzo v. State, 189 S.W.3d 576 (Mo. 2006)
  These frame the general “affirm on any ground” doctrine in appeals from dismissals and summary judgments—and set up the contrast: directed verdicts are different because Rule 72.01(a) demands stated, specific grounds.
• Howard v. City of Kan. City, 332 S.W.3d 772 (Mo. 2011) and Burrell ex rel. Schatz v. O'Reilly Auto., Inc., 175 S.W.3d 642 (Mo. App. 2005)
  Key preservation authorities. The Court uses them to hold that a directed verdict cannot be sustained on an unstated element, and appellate courts cannot affirm on directed-verdict grounds not specified in the Rule 72.01 motion.
• Lippard v. Houdaille Indus., Inc., 715 S.W.2d 491 (Mo. 1986) (Satz, J., concurring)
  Appears in the Court’s rejection of defendants’ damages-allocation argument; it supports apportionment principles for repeated defamatory statements.
• McCostlin v. Monsanto Co., 718 S.W.3d 435 (Mo. App. 2025) and Marcantonio v. Bd. of Curators of Lincoln Univ., 702 S.W.3d 153 (Mo. App. 2024)
  Cited regarding the often-misstated “presumption” favoring reversal of directed verdicts; the Court reiterates there is no such presumption, but acknowledges the directed-verdict standard is demanding.

Legal Reasoning

1. Directed verdict is a “submissibility” screen, not a credibility assessment.
   Applying Brock v. Dunne, the Court stresses that, at directed verdict, courts assume the jury will credit plaintiff evidence and favorable inferences. The trial court’s role is only to determine whether a reasonable juror could find the element—not whether the court believes the plaintiff.
2. Missouri requires actual reputational harm in all defamation cases, but not “independent” proof.
   The Court reaffirms Nazeri v. Mo. Valley Coll. and Kenney v. Wal-Mart Stores, Inc.: defamation plaintiffs must prove actual reputational injury in every case. But it draws a sharp line between:
   • Insufficient substance: conclusory statements, purely subjective feelings, embarrassment/humiliation without reputational consequences (as in Kenney and Taylor v. Chapman).
   • Permissible source: reputational harm may be shown by plaintiff testimony, other witnesses, documents, admissions, or any other competent evidence.
3. The Court disavows reliance on a misleading snippet of dicta attributed to Kenney.
   The opinion identifies the quotation—“Awards based on a plaintiff’s testimony alone or on ‘inferred’ damages are unacceptable.”—as poorly vetted dicta, borrowed through New Jersey cases that addressed presumed damages, not evidentiary-source restrictions. The Court instructs future courts not to treat Kenney as imposing a categorical bar on plaintiff testimony regarding reputational harm.
4. Apperson’s evidence was “concrete” reputational harm, not mere embarrassment.
   The Court holds Apperson’s testimony described third-party reactions and tangible consequences (e.g., confrontation at his home leading to displacement, being told not to patronize a coffee shop, lost speaking engagement, forced removal from shared office space, professional and organizational fallout). That sort of evidence permits a reasonable inference of reputational injury—making the case submissible on damages.
5. No “alternative grounds” to affirm a directed verdict unless stated in the Rule 72.01 motion.
   Defendants attempted to defend the judgment by arguing lack of proof of falsity and lack of negligence/fault. The Court rejects this because Rule 72.01(a) requires a directed-verdict motion to “state the specific grounds,” and under Howard v. City of Kan. City a court cannot direct a verdict on an unstated element. Therefore, the appellate court cannot affirm on those unstated theories.

Impact

• Clarifies the evidentiary pathway for defamation damages in Missouri.
  Plaintiffs may rely on their own testimony to prove reputational harm, provided it describes concrete reputational effects or supports reasonable inferences of injury (e.g., changed treatment by others, loss of access/opportunities, exclusion, adverse professional consequences). This directly rejects any perceived “corroboration required” rule.
• Corrects downstream misapplications of Kenney.
  By labeling the “plaintiff testimony alone” line as unhelpful dicta, the Court aims to end reliance on that quote in cases like Fireworks Restoration Co. v. Hosto, Weidner v. Anderson, and Scott v. LeClercq to require “independent” proof.
• Raises the drafting stakes for Rule 72.01 directed-verdict motions.
  Defendants must specify each challenged element (e.g., falsity, fault, damages) in the motion or forfeit the ability to sustain a directed verdict on that basis and to use it as an appellate “alternative ground.” This pushes litigants toward precision and may reduce post-hoc appellate reframing.
• Practical trial effects.
  Trial courts should expect that “plaintiff-only” damages proof is not automatically deficient; the inquiry is whether the testimony is concrete and reputation-focused. Parties may respond by developing fuller cross-examination and rebuttal evidence rather than banking on a categorical directed verdict.

Complex Concepts Simplified

Directed verdict (Rule 72.01)

A ruling that takes the case away from the jury because the plaintiff’s evidence is legally insufficient on an essential element. The court does not decide who is telling the truth; it decides whether a reasonable juror could find for the plaintiff if the juror believed the plaintiff’s evidence.

“Submissible case” / “substantial evidence”

A plaintiff has a submissible case when there is enough probative evidence for a reasonable juror to find each required element. It is a threshold; it does not mean the plaintiff will win.

Actual reputational harm vs. embarrassment

Defamation compensates for harm to reputation (how others view and treat the plaintiff), not merely hurt feelings. Evidence like being shunned, losing opportunities, or being excluded can show reputational harm; saying “I was embarrassed” usually cannot.

Defamation “per se” vs. “per quod”

Older categories that once affected whether damages could be presumed. Under Nazeri v. Mo. Valley Coll., Missouri requires proof of actual damages in all defamation cases, making the old sorting largely irrelevant to damages proof.

“Independent evidence”

In this case, defendants argued the plaintiff needed third-party testimony or other non-plaintiff proof of reputational harm. The Court rejects that: the admissible source may be the plaintiff, so long as the evidence is concrete and reputation-focused.

“Alternative grounds” to affirm

Appellate courts sometimes affirm a correct result reached for the wrong reason. But for directed verdicts, Rule 72.01(a) requires the grounds to be stated in the motion; unstated elements (like falsity or fault) cannot later be used to uphold the directed verdict.

Conclusion

Key takeaways: (1) Missouri defamation plaintiffs must prove actual reputational injury, but they may do so through their own competent testimony; there is no categorical requirement of “independent” corroboration. (2) The oft-cited dictum suggesting plaintiff-only testimony is “unacceptable” should not be treated as Missouri law. (3) Directed-verdict practice is tightly constrained by Rule 72.01(a): defendants must state specific grounds, and appellate courts cannot affirm on unstated directed-verdict theories.

Broader significance: The decision realigns Missouri defamation law with a substance-over-source approach to reputational injury proof and reinforces preservation discipline in directed-verdict motions, shaping both trial strategy and appellate review in defamation and other tort cases.