Appeal No. ED97989

IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT

THOMAS BAUER,

Plaintiff/Respondent,

vs.

7-ELEVEN, INC. and RANDY C. MUNTON, INC.,

Defendants/Appellants.

Appeal from the Circuit Court of the City of St. Louis State of Missouri

The Honorable Philip D. Heagney

JOINT REPLY BRIEF OF APPELLANTS RANDY C. MUNTON, INC. AND 7-ELEVEN, INC.

John S. McCollough #36990 Melissa R. Null #56824 HEPLERBROOM LLC

211 North Broadway, Suite 2700 St. Louis, MO 63102 314/241-6160 314/241-6116 – Facsimile

Attorneys for Appellants

Randy C. Munton, Inc. and 7-Eleven, Inc.

i

TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................................. ii

ARGUMENT ..................................................................................................................... 1

I. Munton’s mere attendance at two neighborhood meetings does not establish actual malice with clear and convincing proof. ................................. 1

II. Bauer failed to produce substantial and competent evidence to support his contention that his reputation was damaged as a direct result of the allegedly defamatory statements contained in Paragraph 2 of Ten Reasons for Bauer Recall. ...................................................................................................... 7

III. Construed in its most innocent sense, Paragraph 2 conveys a complaint about Bauer’s aldermanic conduct; It does not accuse Bauer of specific unethical conduct or wrongdoing. ..................................................................... 11

IV. Taken in its political context, Paragraph 2 is a statement of opinion regarding Bauer’s aldermanic career made during the recall campaign and therefore, is afforded absolute privilege. .................................................. 14

V. Bauer failed to present sufficient evidence that Munton acted with actual malice or that Bauer suffered actual damage to his reputation as a result of the publication of paragraph 2 of Ten Reasons. ....................... 16 

CONCLUSION ................................................................................................................ 17 

CERTIFICATE OF COMPLIANCE .............................................................................. 18 

CERTIFICATE OF SERVICE ......................................................................................... 19 

ii

TABLE OF AUTHORITIES

Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984) ………………….....5 Diez v. Pearson, 834 S.W.2d 250 (Mo. App. 1992) …………………………………...15

Englezos v. Newspress & Gazette Co., 980 S.W.2d 25 (Mo. App. 1998) ……..….…2, 4

Glover v. Herald Co., 549 S.W.2d 858 (Mo. banc 1977) ……………………...….....1, 5

Harte-Hanks Commc’n, Inc. v. Connaughton, 491 U.S. 657 (1989) …………………..15

Henry v. Halliburton, 690 S.W.2d 775 (Mo. banc 1985) ……………………………..15

Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809 (Mo. banc 2003) ………………….7

Mandel v. O’Connor, 99 S.W.3d 33 (Mo. App. 2003) ………………………………..12 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) ……………………………………15 Nazeri v. Mo. Valley Coll., 860 S.W.3d 303 (Mo. banc 1993) ………………………..12 Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62 (Mo. banc 2000) …………………...1 Ribaudo v. Bauer, 982 S.W.2d 701 (Mo. App. 1998) …………………………….13, 15 St. Amant v. Thompson, 390 U.S. 727 (1968) ………………………………….....1, 2, 4 Warner v. Kansas City Star Co., 726 S.W.2d 384 (Mo. App. 1987) ……..…….…..3, 4 Wright v. Over-The-Road & City Transfer Drivers, Helpers, Dockmen &

Warehousemen, 945 S.W.2d 481 (Mo. App. 1997) ……………………...…..2, 4

1

ARGUMENT

I. Munton’s mere attendance at two neighborhood meetings does not

establish actual malice with clear and convincing proof.

Bauer’s response ignores two key pieces of evidence relevant to the actual

malice analysis. First, Munton testified that he did not hear Bauer say he was not

the executor of the Adler Estate during two neighborhood association meetings.

Dep. of Munton, p. 147, ln 16-20. Second, Munton did not draft Ten Reasons. Tr.

604-8, 617-18, 627. Instead, Bauer conflates Munton’s attendance at the

neighborhood association meetings with actual knowledge of Bauer’s proper role

in the Adler estate. At best, Munton’s attendance at the meetings establishes only

that Munton “should have known” of the alleged falsity of Paragraph 2. As

noted in Appellants’ opening brief, however, mere negligence is constitutionally

insufficient to show actual malice. Glover v. Herald Co., 549 S.W.2d 858, 861 (Mo.

banc 1977).

In order to make a submissible case, Bauer was required to prove by clear

and convincing evidence that Munton published Paragraph 2 with actual malice.

Id. at 860. Actual malice denotes that the statement was made “with knowledge

that it was false or with reckless disregard for whether it was true or false at a

time when defendant had serious doubts as to whether it was true.” Overcast v.

Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. banc 2000). See also St. Amant v.

2

Thompson, 390 U.S. 727, 731 (1968). A defendant acts with reckless disregard for

the truth or falsity when it publishes a defamatory statement with a high degree

of awareness of the probable falsity of the statement. Wright v. Over-The-Road &

City Transfer Drivers, Helpers, Dockmen & Warehousemen, 945 S.W.2d 481, 497 (Mo.

App. 1997). But, a failure to investigate a statement before it is published does

not establish actual malice. Englezos v. Newspress & Gazette Co., 980 S.W.2d 25, 34

(Mo. App. 1998).

Munton’s testimony regarding these meetings, which Bauer conveniently

ignores, establishes that he did not have actual knowledge of the fact that Bauer

was not the executor of the Adler Estate. In his response brief, Bauer repeatedly

claims that Munton admitted he attended the January and February meetings

and remembers Bauer speaking at these meetings. Bauer then infers that Munton

had actual knowledge that Bauer was not executor of the Adler Estate. Yet, Bauer

ignores Munton’s testimonial account of what Bauer said during these meetings.

Indeed, Bauer wrongly claims, “Appellants put forth absolutely no evidence in

this matter to show that those facts were not discussed, that Munton did not hear

them.” (See Resp. Brief, p. 23). To the contrary, Munton testified that he did not

hear Bauer say that he was not the executor of the Adler Estate. Dep. of Munton,

p. 147, ln 16-20. Further, Munton described the meeting as “pretty wild” with “a

lot of shouting.” Tr. 60. Robert McKendry similarly testified that the meeting

3

was “pretty unruly” when the Adler Estate was discussed. Tr. 598. McKendry

further admitted that he was not sure who heard him when he stated he did not

have a sales contract for the Adler property. Tr. 594-98.

For this reason, Warner v. Kansas City Star Company, 726 S.W.2d 384 (Mo.

App. 1987), is persuasive. The appellate court in Warner held a public figure

plaintiff does not satisfy his burden of proving actual malice by showing he

provided the defendant with the correct information. Rather, the evidence must

show “with convincing clarity that [the defendant] knew [the publication] was

false, or that [he was] recklessly disregardful of its truth or falsity, and

entertained serious doubts about its truthfulness.” 726 S.W.2d at 388.

Like the plaintiff in Warner, Bauer offered his version of what he said at the

neighborhood meetings as evidence of Munton’s actual malice. Tr. 258, 267. Like

Warner, the ultimate question here is not whether Bauer explained his role in the

Adler estate at the meetings, but rather Munton’s belief and understanding of

what was said at the meetings. Munton, like the defendant editors in Warner,

presented a different account of what was said at the meetings. Munton’s

testimony that he did not remember Bauer explaining that he was not the

executor of the Adler Estate demonstrates that Munton did not act with actual

malice in publishing Paragraph 2.

4

As in Warner, this court need not reject Bauer’s testimony regarding what

was said at the meeting. As the court explained, “If [plaintiff’s] explanation to

[the editors] had been only slightly less explicit than his trial account of it, if he

had been only somewhat vague or equivocal, or ambiguous, it is not likely that

his hearers would have grasped this extraordinary arrangement.” Id. Bauer, like

the plaintiff in Warner, failed to present evidence that Munton grasped the

distinction between the roles of executor and attorney for personal

representative. Not only was there no evidence that Munton grasped the

distinction, but Munton testified he does not remember Bauer addressing his role

as attorney for the personal representative. As such, Bauer failed to present clear

and convincing evidence that Munton acted with actual malice. Accordingly, the

trial court erred in denying Munton’s motion for directed verdict and motion for

judgment notwithstanding the verdict.

Furthermore, Munton did not draft the Ten Reasons. Munton could have

been more careful in relying upon a document prepared by someone else.

Munton’s failure to verify the truth of Paragraph 2, however, is insufficient to

prove actual malice. Englezos, 980 S.W.2d at 34. This is not a case where the

contents of the publication “are so inherently improbable that only a reckless

man would have put [it] in circulation” such that the defendant may be guilty of

actual malice. St Amant, 390 U.S. at 732. See also Wright, 945 S.W.2d at 497

5

(holding that plaintiff failed to make a submissible case because plaintiff “failed

to point to anything in the record that would support an inference that the

statements were so obviously false that the [defendant] would have been

immediately put on notice of their falsity and the need to investigate their

veracity before publishing”). The Riverfront Times reported that McKendry “was

willing to buy the [Adler] property himself for up to $125,000, or $30,000 more

than Western Continental paid.” App. A6. In addition, Bauer himself recognized

that the distinction between executor and attorney for the personal

representative is not intuitive to persons who are not attorneys. During trial,

Bauer admitted that he has to explain to his clients the difference between the

roles of executor and attorney for the estate. Tr. 342.

Yet, Bauer offered no evidence that Munton “realized the inaccuracy [of

the description of Bauer’s role in the Adler estate] at the time of publication.”

Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512 (1984). See also Glover,

549 S.W.2d at 861. In Bose, the court found that a stereo reviewer who gave an

inaccurate description of what he heard when he listened to the stereo did not act

with actual malice even though he knew his description was inaccurate, because

he did not realize the inaccuracy at the time of publication. See Bose, 466 U.S. at

512-13. Likewise, Bauer failed to present evidence that Munton realized the

inaccuracy in Paragraph 2’s description of Bauer’s role at the time of publication.

6

Furthermore, Bauer failed to demonstrate that Munton knew that the mistaken

description could be interpreted to accuse Bauer of improper conduct.

As a result, Bauer’s case rests upon a series of inferences and not clear and

convincing evidence of actual malice. Bauer’s evidence of actual malice consisted

of evidence that Munton should have known it was false because he attended

two meetings where Bauer discussed his role in the Adler estate. Munton’s

attendance at two meetings is not clear and convincing proof of actual malice

because Munton himself testified that he did not hear Bauer make the distinction

between executor and attorney of the estate. Moreover, Bauer failed to present

evidence that Munton understood the distinction. Bauer also failed to present

evidence that Munton recognized the inaccuracy of the description of Bauer’s

role in the Adler Estate in Paragraph 2 prior to the publication of Ten Reasons.

As such, Bauer failed to present clear and convincing evidence that Munton

knew that Paragraph 2 was false or that Munton entertained serious doubts

about the truth or falsity of Paragraph 2 at the time it was published.

Accordingly, the trial court erred in denying Appellants’ motion for

directed verdict and motion for judgment notwithstanding the verdict.

Therefore, the trial court’s judgment should be reversed, and judgment should

be entered on behalf of Munton and 7-Eleven.

7

II. Bauer failed to produce substantial and competent evidence to

support his contention that his reputation was damaged as a direct

result of the allegedly defamatory statements contained in Paragraph 2

of Ten Reasons for Bauer Recall.

Bauer argues that he has presented substantial evidence to support the

element of actual reputational harm during trial. However, a closer look at the

testimony relied upon by Bauer shows only that Bauer’s reputation in the

community changed. The testimony does not show Bauer’s reputation changed

as a direct result of the allegedly defamatory statements contained in Paragraph

2 of Ten Reasons, as required under Missouri law. See Kenney v. Wal-Mart Stores,

Inc., 100 S.W.3d 809, 818 (Mo. banc 2003).

a. Testimony of James Gaddell

Bauer relies heavily on the testimony of James Gaddell, which was

objected to on grounds of hearsay during trial. Tr. 213. Gaddell testified

concerning a conversation with neighbor, Ken Rause. Tr. 213. Gaddell indicated

that Rause’s opinion of Bauer changed “when all the controversy about the recall

came out. It changed when these – this document came out.” Tr. 214. It is not

clear from the record what document Gaddell is referring to during this portion

of his testimony. More importantly, Gaddell fails to link the change in Bauer’s

reputation to Paragraph 2 of the Ten Reasons document. Tr. 214. As noted by the

8

title of the document, there were 9 other statements on the document to support

a recall of Bauer. App. A3. While Gaddell states on re-direct that Rause

mentioned Paragraph 2 of the Ten Reasons document, he does not link the

change in opinion of Bauer to the allegedly defamatory statements contained in

Paragraph 2 of Ten Reasons.

Gaddell provided similar testimony concerning his former neighbor, Marie

Miller. Gaddell testified, again over objection, that Miller previously liked Bauer,

but her opinion changed to “where there’s smoke, there’s fire. All of these

negative allegations about Mr. Bauer – there must be some truth to them.” Tr.

215-16. Gaddell also testified that Miller had seen the Ten Reasons document;

however, it is beyond speculative to assume the “negative allegations” about

Bauer were the statements contained in Paragraph 2 of the Ten Reasons

document. Tr. 216-17. On cross-examination, Gaddell testified that “the thrust of

what I heard was upon the Ten Reasons . . . The Ten Reasons, something to do

with a church and other press accounts.” Tr. 222-23. Gaddell’s testimony

indicates that the change in reputation was attributable to the recall in general,

press accounts, and generally the Ten Reasons document, but not specifically

Paragraph 2 of the Ten Reasons document. For this reason, Gaddell’s testimony

fails to support Bauer’s claim for actual reputational harm caused by the

allegedly defamatory statement.

9

b. Testimony of James Lawrence Wurm

Bauer also relies on testimony of James Lawrence Wurm to support his

claim of actual damages; however, Wurm’s testimony also fails to link the

change in reputation to Paragraph 2 of the Ten Reasons document.

Wurm testified that he heard various comments when handing out

campaign literature on behalf of Bauer, including that Bauer’s “a crook due to his

financial involvement with the Adler Estate.” Tr. 178. Wurm does not any point

link the statements made to him concerning Bauer to Paragraph 2 of the Ten

Reasons document. Wurm also testified that Bob Cass informed him that he had

initially gotten along with Bauer, “but that began to deteriorate when this Adler

estate issues rose its head.” Tr. 180. As noted in Bauer’s brief, there were two

neighborhood association meetings about the Adler Estate issue prior to the

alleged publication of the Ten Reasons document by Munton. In addition, an

article by Mike Seely concerning the Adler Estate had been published in The

Riverfront Times. App. A4-7. As a result, it was imperative for Wurm to link the

change in reputation to Paragraph 2 of the Ten Reasons document. This he failed

to do.

c. Testimony of Richard Torack

The testimony of Richard Torack also fails to specifically link the change in

Bauer’s reputation to Paragraph 2 of Ten Reasons. Torack testified that after the

10

sale of the Adler Estate, he heard disparaging remarks concerning Bauer. Tr. 140-

41. He also testified that after the sale of the Adler Estate, Bauer’s reputation was

injured. Tr. 143. Torack specifically admits that he cannot link the damage to

Bauer’s reputation to any specific incident. Tr. 157.

Just as in Kenney v. Wal-Mart Stores, Inc., Bauer failed to distinguish the

harm from the allegedly defamatory statements contained in Paragraph 2 of Ten

Reasons, and the harm to his reputation from the non-defamatory statements

contained in Paragraph 2, the two The Riverfront Times articles, the other nine

paragraphs contained in Ten Reasons, the other negative press concerning Bauer,

and Bauer’s own statements concerning the Adler Estate made at the two

neighborhood association meetings. In fact, Bauer’s own statement of facts

indicates sources of harm to his reputation related to the Adler Estate at a time

prior to the Ten Reasons document. (See Resp. Brief, p. 9). Specifically, Bauer

states, “Some people made derogatory remarks about Alderman Bauer because

he was the attorney for the personal representative of the Adler estate. . . . Many

people were unaware of Alderman Bauer’s role and accused him of improper

conduct regarding the sale of the Adler property.” Id.

For the foregoing reasons, the trial court erred in denying Appellants’

motion for directed verdict at the close of Bauer’s case in chief, and again at the

close of all evidence. The trial court further erred in denying Appellants’ motion

11

for judgment notwithstanding the verdict. Bauer’s failure to produce substantial

evidence to support his claim for actual damages prevents recovery on his

defamation claim. Thus, the trial court’s judgment must be reversed, and

judgment must be entered on behalf of Munton and 7-Eleven.

In the alternative, the trial court erred in denying Bauer’s motion for new

trial because the verdict entered was against the weight of the evidence

presented at trial.

III. Construed in its most innocent sense, Paragraph 2 conveys a

complaint about Bauer’s aldermanic conduct; It does not accuse Bauer

of specific unethical conduct or wrongdoing.

Bauer imbues the comments on his political career contained in Paragraph

2 of Ten Reasons with defamatory meaning. To do so, he first relies upon the trial

court’s ruling that Paragraph 2 charges Bauer with a breach of fiduciary duty and

unethical conduct as a lawyer. (See Resp. Brief, pp. 44-5). Bauer next claims

Paragraph 2 imputes him with misconduct as both an alderman and executor.

Neither interpretation offered by Bauer is the most natural and reasonable

interpretation of Paragraph 2. To adopt either interpretation requires one to

insert text and apply innuendo to the plain and ordinary meaning of the

language of Paragraph 2. Such actions are contrary to the Missouri Supreme

Court’s instruction in Nazeri v. Missouri Valley College.

12

In determining whether a statement is defamatory, “the words must be

stripped of any pleaded innuendo…and construe[d] in their most innocent sense.

Nazeri v. Mo. Valley Coll., 860 S.W.3d 303, 311 (Mo. banc 1993). The words must

be considered in context and given their plain and ordinary meaning. Id.

Therefore, if a statement is capable of a non-defamatory meaning, and can be

reasonably construed in an innocent sense, the court must hold the statement

non-defamatory as a matter of law. Mandel v. O’Connor, 99 S.W.3d 33, 36 (Mo.

App. 2003). Applying these principles, Paragraph 2 is not defamatory.

The plain language of Paragraph 2 does not charge Bauer with a breach of

fiduciary duty or unethical conduct as an attorney. Not only does Paragraph 2

fail to charge Bauer with violating any law or rule of professional conduct, but

Bauer has never identified what supposed fiduciary duty or rule of professional

conduct may be implicated. Indeed, Paragraph 2 does not even identify Bauer as

an attorney. Thus, Bauer’s argument rests not on Paragraph 2’s plain language,

but on pleaded innuendo.

In addition, Paragraph 2, contrary to Bauer’s brief, does not charge Bauer

“with misconduct both as an alderman and executor.” (Resp. Brief, p. 45).

Paragraph 2 does charge Bauer with violating any law or rule as an alderman.

Nor does it charge Bauer with misconduct as an executor. To the contrary,

Bauer’s own witness admitted that an executor selling estate property has “other

13

considerations” besides purchase price when considering offers. Tr. 139-40.

Moreover, Bauer fails to distinguish Ribaudo v. Bauer, which also involved

statements made during a contentious political campaign. 982 S.W.2d 701 (Mo.

App. 1998). In Ribaudo, the court recognized that the statements at issue were

opinions on the candidate’s political career. 982 S.W.2d at 705. The court found

that “upon reading the campaign advertisements, the average reader would not

be left with the impression that Ribaudo was being accused of those crimes.” Id.

The same analysis applies here. Ten Reasons was used during a political

campaign to recall Bauer as alderman. Paragraph 2 must be viewed within this

political context. Paragraph 2 is a complaint concerning Bauer’s conduct as an

alderman. Specifically, it conveys a complaint about Bauer’s seemingly

preferential dealings with certain developers in the 24th Ward. A reader of

ordinary intelligence would not be left with the impression that Bauer was being

accused of unethical conduct or other wrongdoing. Bauer himself cannot even

identify what law or rule is allegedly violated. When taken in context, and given

the most obvious and natural meaning based upon its intended purpose and

audience, Paragraph 2 is not defamatory as a matter of law.

14

IV. Taken in its political context, Paragraph 2 is a statement of opinion

regarding Bauer’s aldermanic career made during the recall campaign

and therefore, is afforded absolute privilege.

Bauer’s brief mischaracterizes Appellants’ argument. Munton and 7-

Eleven do not argue that Paragraph 2 is protected speech merely because it was

made within the context of a political campaign. Rather, when its language is

viewed in the context of the recall campaign and in light of Ten Reasons as a

whole, Paragraph 2 expresses an opinion of Bauer’s political career. The average

reader would have recognized Paragraph 2 as political rhetoric.

Although Bauer recognizes that Missouri law requires the court to

examine the totality of circumstances, he claims that Paragraph 2 cannot be

considered an opinion because it is “largely composed of assertions of fact.”(See

Resp. Brief, p. 49). While there is not a “wholesale defamation exception” for

anything that might be labeled an opinion, Bauer cannot so easily ignore the

context within which Paragraph 2 was published—a contentious political

campaign.

The Missouri Supreme Court has ruled that “even apparent statements of

fact may assume the character of statements of opinion, and thus be privileged,

when made in public debate, heated labor dispute, or other circumstances in

which an audience may anticipate efforts by the parties to persuade others to

15

their positions by use of epithets, fiery rhetoric or hyperbole.” Henry v.

Halliburton, 690 S.W.2d 775, 787 (Mo. banc 1985) (internal quotations omitted). A

statement regarding another’s political career made in the heat of an election

offers the paradigm of statements that readers recognize as opinion despite the

fact that the statements may contain some factual elements. Indeed, the United

States Supreme Court has acknowledged that readers know that statements by

one side in a political context are often exaggerated, emotional, and even

misleading. Milkovich v. Lorain Journal Co., 497 U.S. 1, 32 (1990). See also Harte-

Hanks Commc’n, Inc. v. Connaughton, 491 U.S. 657, 687 (1989) (“When a candidate

enters the political arena, he or she must expect that the debate will sometimes be

rough and personal.”). Similarly, Missouri appellate courts have recognized that

readers are cognizant of political context and therefore, have ruled that

statements dealing with politicians’ conduct are opinions afforded constitutional

protection. See Ribaudo, 982 S.W.2d 701; Diez v. Pearson, 834 S.W.2d 250 (Mo. App.

1992).

As shown above and in Appellants’ opening brief, Missouri courts have

found significant the fact that statements are made during a political campaign.

Bauer provides no compelling reason why the court should ignore the context

within which Paragraph 2 was published. Paragraph 2 does not state an objective

assertion of fact. Paragraph 2 does not accuse Bauer of committing a specific

16

crime such as armed robbery. Furthermore, neither Paragraph 2 nor Ten Reasons

as a whole is objective. Considering the surrounding circumstances of the recall

campaign, the average reader would understand Paragraph 2 to express an

opinion regarding Bauer’s political career. As a statement of opinion, it is

afforded constitutional protection.

V. Bauer failed to present sufficient evidence that Munton acted with

actual malice or that Bauer suffered actual damage to his reputation as

a result of the publication of paragraph 2 of Ten Reasons.

Bauer’s cursory response to Point V raises no new argument or case law

and therefore, merits no reply.

17

CONCLUSION

The trial court’s judgment should be reversed, and judgment entered in

favor of Appellants Randy C. Munton, Inc. and 7-Eleven, Inc. In the alternative,

the judgment should be reversed, and the cause remanded for a new trial on all

issues.

HEPLERBROOM LLC

By: /s/ John S. McCollough JOHN S. McCOLLOUGH, #36990 jsm@heplerbroom.com

MELISSA R. NULL, #56824 Mnull@heplerbroom.com

211 North Broadway, Suite 2700 St. Louis, MO 63102

314/241-6160 314/241-6117 – Facsimile

18

CERTIFICATE OF COMPLIANCE

The undersigned certifies that this Joint Reply Brief of Appellants complies

with Rule 55.03, and with the limitations contained in Rule 84.06(b) and this

Court’s Special Rule 360, and that it contains 3,576 words of proportional font,

excluding the cover, table of contents and authorities, certificate of service,

signature block, and this certificate, as determined by the Microsoft Word 2010

system.

HEPLERBROOM LLC

By: /s/ John S. McCollough

JOHN S. McCOLLOUGH, #36990 jsm@heplerbroom.com

MELISSA R. NULL, #56824 Mnull@heplerbroom.com

211 North Broadway, Suite 2700 St. Louis, MO 63102 314/241-6160

314/241-6117 – Facsimile

19

CERTIFICATE OF SERVICE

I hereby certify that service has been provided through the electronic filing

system to the attorneys of record and that on this 5th day of September, 2012, I

mailed, postage prepaid, a copy of the Joint Reply Brief to: Thomas E. Bauer,

3176 Hampton Ave., St. Louis, MO 63139 and Daniel A. Raniere, Aubuchon

Raniere & Panzeri PC, 1015 Locust St., St. Louis, MO 63101.

/s/ John S. McCollough