JENNIFER GOURLEY ROBERT CREWDSON v. JEFFERSON GOURLEY DONALD MANN LESLIE ALBRECHT (2026)

Jennifer Gourley and Robert Crewdson (collectively, the “Gourleys”) appeal the judgment of the Circuit Court of Greene County, Missouri (the “trial court”), dismissing their defamation claim against Leslie Albrecht (“Albrecht”) on the basis of official immunity.¹ The Gourleys assert four points of error. In Points I through III, the Gourleys allege that the trial court misapplied Missouri law with respect to the doctrine of official immunity. In Point IV, the Gourleys allege that the trial court's judgment erroneously dismissed their claim against Albrecht with prejudice instead of sua sponte granting them leave to amend their petition. Holding the Gourleys’ claims to be without merit, we affirm.

Procedural Background

On November 30, 2023, the Gourleys filed suit against Albrecht, in addition to Jefferson Gourley and Don Mann (collectively, “Co-Defendants”). In their Second Amended Petition (the “Petition”), the Gourleys assert one count of defamation (“Count I”)² against Albrecht and Co-Defendants and one count of intentional infliction of emotional distress against Co-Defendants which is not at issue in this appeal. Broadly, the Petition alleged that Albrecht and Co-Defendants knowingly made various false statements to third parties during the period of “July and September of 2023” accusing the Gourleys of perpetrating elder abuse against Jennifer Gourley's mother (“C.G.”). Relevant to this appeal, the Petition initially alleged with respect to Albrecht that:

During ․ the last week of August 2023, [Co-Defendants] again called [the Missouri Department of Health and Senior Services (“DHHS”)] and accused [the Gourleys] of stealing the Lake Lot, the boat, and some of [C.G.]’s jewelry, as well as fraud and abuse of [C.G.] [Co-Defendants] then arranged for DHSS investigator Albrecht to visit [C.G.] after they had prepped [C.G.] and Albrecht with false allegations concerning the [Gourleys]․.[3]

Albrecht showed up at [C.G.]’s home on August 25, 2023․. Albrecht spent approximately 2 hours with [C.G.], and with [Co-Defendants] as well, together and/or separately, discussing [C.G.]’s family situation and estate.

One business day after meeting [C.G.], Albrecht accompanied [C.G.] and [Co-Defendant] Mann to [C.G.]’s attorney[’s] office in Springfield, Missouri. There, Defendant Albrecht dramatically waived [sic] a large folder of documents around in front of [C.G.’s attorney], [C.G.] and [Co-Defendant] Mann claiming that [the Gourleys] had committed fraud on [C.G.], repeating the same defamatory statements that [Co-Defendants] told her about the Lake Lot, [C.G.]’s jewelry, and the boat (and other theft by [the Gourleys]), and that the fraud needed to be corrected by [C.G.’s attorney] by changing [C.G.]’s will and estate plans immediately. [C.G.’s attorney] refused to immediately make any changes to [C.G.]’s will.

In pleading Albrecht's alleged defamatory acts, Count I of the Petition alleged:

In late August of 2023, ․ Defendant Albrecht told [C.G.] and others at DHSS in Springfield, Missouri, that there was “missing jewelry” and that [Jennifer Gourley] had stolen jewelry from [C.G.]

․

In August of 2023, Defendant Albrecht, at [C.G.’s attorney's] office in Springfield, Missouri, told [C.G.’s attorney], [C.G.] and [Co-Defendant] Mann that [the Gourleys] had committed fraud on [C.G.] Upon information and belief, Albrecht also repeated (either intentionally or recklessly without any effort to verify the accuracy of) the defamatory and false statements that [the Gourleys] stole from, defrauded, and committed elder abuse against [C.G.] in the DHSS report and investigative file in 2023, as described in a voluntary declaration under oath by Albrecht in late 2023. (See Exhibit E[4]).

․

Albrecht failed to investigate anything she learned from [Co-Defendants], and instead threatened [Jennifer Gourley] with a criminal action despite [Jennifer Gourley] explaining to Albrecht the falsity of [Co-Defendants]’ accusations. Instead of investigating, Albrecht accompanied [C.G.] and [Don] Mann to [C.G.’s attorney's] office ․ to demand a change to [C.G.’s] will.․

The Petition further alleged that Albrecht was provided with or had access to information and unspecified documents indicating the falsity of the accusations against the Gourleys and therefore either knew her statements were false or “recklessly” made the statements without attempting to determine their truth or falsity. Thus, the Petition concluded:

[A]t all times during the events referenced in this Petition, Albrecht operated outside the terms and obligations of her employment with the State of Missouri, by not properly investigating the allegations made by [Co-Defendants], by joining with [Co-Defendants] in their scheme to recklessly make false statements about the [Gourleys], and taking a lead role in helping to change the personal financial affairs of [C.G.] to [the Gourleys’] detriment and damage [the Gourleys’] reputations.

․

All of the actions taken, and statements made, by [Albrecht and Co-Defendants] were either done with actual malice and intent to do harm, were made in bad faith, and/or were made with extreme recklessness and disregard for the truth of the statements being made in an effort to destroy [the Gourleys]’ reputation, most significantly with [C.G.], and to cause [the Gourleys] harm.

Albrecht filed a motion to dismiss the Petition, asserting, inter alia, that the Gourleys’ defamation claim against her is barred by official immunity. Agreeing that Albrecht was entitled to official immunity, the trial court granted her motion and entered its judgment dismissing the Gourleys’ claim against Albrecht with prejudice. This appeal follows.

Standard of Review

We review the trial court's grant of a motion to dismiss for failure to state a claim de novo. Forester v. May, 671 S.W.3d 383, 386 (Mo. banc 2023). “A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition.” State ex rel. Henley v. Bickel, 285 S.W.3d 327, 329 (Mo. banc 2009) (quoting Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001); Nazeri, 860 S.W.2d at 306). Accordingly, “[o]ur review [of a trial court's dismissal for failure to state a claim] is confined to the facts alleged in the [operative] petition and the exhibits incorporated therein by reference.” Cornelius v. CJ Morrill, 302 S.W.3d 176, 178–79 (Mo. App. E.D. 2009). “[T]he petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.” Henley, 285 S.W.3d at 329. In doing so, we make no attempt “to weigh any facts alleged as to whether they are credible or persuasive.” Id. Instead, this Court “assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom.” Id. “We will, however, disregard conclusory allegations of fact and legal conclusions[.]” Ryno v. Hillman, 641 S.W.3d 385, 389 (Mo. App. S.D. 2022).

Even under the de novo standard of review, “appellant bears the burden of demonstrating that reversal is required.” Cady v. City of Malden, 694 S.W.3d 616, 619 (Mo. App. S.D. 2024) (reviewing a trial court's grant of a motion to dismiss on the basis of official immunity). “On appeal, the trial court's judgment is presumed valid, and the burden is on appellants to demonstrate incorrectness of the judgment.” Austin v. Trotters Corp., 815 S.W.2d 951, 957 (Mo. App. S.D. 1991).

Analysis

Points I and II

The Gourleys’ first point on appeal alleges that the trial court misapplied the law in finding that the Petition established that Albrecht's alleged tortious acts were done within the scope of her authority as a DHSS investigator (i.e., during the course of her official duties)⁵ for the purposes of assessing official immunity. Specifically, the Gourleys contend that the trial court 1) incorrectly shifted the burden of pleading ⁶ the immunity issue to the Gourleys, and 2) only analyzed Albrecht's investigation generally instead of specifically assessing whether her alleged defamatory acts exceeded the scope of her authority. Similarly, the Gourleys’ second point on appeal alleges the trial court misapplied the law in concluding that Albrecht was entitled to official immunity because Albrecht's alleged defamatory acts were done either 1) outside “her authority and scope employment” as a DHSS investigator, or 2) after her employment with DHSS had ended. Because the issues raised by the Gourleys’ first two points on appeal are interrelated, we address them together.

Official Immunity Generally

Officially immunity is a longstanding, judicially-created doctrine that “protects public officials sued in their individual capacities from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts.” State ex rel. Love v. Cunningham, 689 S.W.3d 489, 494–95 (Mo. 2024) (citations and quotations omitted). As explained in Love:

Official immunity is intended to provide protection for individual government actors who, despite limited resources and imperfect information, must exercise judgment in the performance of their duties. The purpose of this doctrine is to allow public officials to make judgments affecting the public safety and welfare without the fear of personal liability. This is because, if an officer is to be put in fear of financial loss at every exercise of his official functions, the interest of the public will inevitably suffer. When a public official asserts the affirmative defense of official immunity, she should be afforded such immunity so long as she was acting within the scope of her authority and without malice. A finding that a public employee is entitled to official immunity does not preclude a finding that he or she committed a negligent act—because official immunity does not deny the existence of the tort of negligence, but instead provides that an officer will not be liable for damages caused by his negligence.

Immunity connotes not only immunity from judgment but also immunity from suit. Courts applying the doctrine of official immunity must be cautious not to construe it too narrowly lest they frustrate the need for relieving public servants of the threat of burdensome litigation.

[However,] [o]fficial immunity does not apply, and a public official may be held personally liable for the damages the official caused, in two narrow exceptions: (1) when a public official fails to perform a ministerial duty required of the official by law, or (2) when a public official acts in bad faith or with malice.

Id. at 495 (internal citations and quotations omitted).

Discussion

As a general matter, official immunity is an “affirmative defense” and a public employee who asserts the immunity “bear[s] the burden of pleading and proving it applies.” Love, 689 S.W.3d at 495 n.7.⁷ However, the Supreme Court of Missouri has nonetheless held that:

when the factual allegations of a petition establish a public employee's challenged actions were within the scope of her official duties and there is no [factual] allegation of malice,[8] the defendant may invoke the affirmative defense of official immunity in a motion to dismiss for failure to state a claim.

Forester, 671 S.W.3d at 387; see also Freeman v. Leader Nat. Ins. Co., 58 S.W.3d 590, 597 (Mo. App. E.D. 2001) (“[W]hen facts constituting a defense appear affirmatively on the face of the petition, the defense may be interposed by motion to dismiss without the necessity of a specific motion or answer.”).

“To survive such a motion to dismiss, a plaintiff must plead factual allegations affirmatively establishing an exception to official immunity.” Forester, 671 S.W.3d at 387; see also State ex rel. Morales v. Alessi, 679 S.W.3d 467, 471 (Mo. banc 2023) (“A plaintiff must plead facts establishing an exception to official immunity. Absent these allegations, the pleadings are insufficient to state a claim which is not barred by the doctrine of official immunity as a matter of law.” (internal citations and quotations omitted)); State ex rel. Missouri Dept. of Agric. v. McHenry, 687 S.W.2d 178, 181 (Mo. banc 1985) (“It is ․ appropriate to require a litigant who sues the state or its officers to file a petition demonstrating a viable theory of liability.”) Thus, contrary to the Gourleys’ assertions, Albrecht was not required to plead nor prove facts – and indeed could not have pled nor proven facts – in order to invoke the doctrine of official immunity in a motion to dismiss.⁹

The Gourleys next contend that Albrecht's defamatory acts constituted intentional torts ¹⁰ which exceeded the “scope of her authority” as a DHSS investigator and consequently precluded dismissal on the basis of official immunity. These arguments mistakenly conflate general statements of the official immunity rule with the “malice and bad faith” exception to such immunity (which we address below in disposing of the Gourleys’ third point on appeal). In support of their position, the Gourleys first recite from the opinions in Love and Rhea v. Sapp, 463 S.W.3d 370, 376 (Mo. App. W.D. 2015). However, in the quoted portions of both cases, the court of review was merely reciting the general official immunity rule – there was no “scope of authority” challenge presented or discussed, much less any denial of official immunity on such a ground. See Love, 689 S.W.3d at 495; Rhea, 463 S.W.3d at 376. Indeed, the ultimate holdings in each of those cases actually support the conclusion that Albrecht's alleged misconduct fell within the bounds of official immunity. See Love, 689 S.W.3d at 497 (transportation supervisors who were alleged to have intentionally violated safety policies and placed an employee at a worksite without protective measures in “retaliation” for her request for workplace accommodations for her pregnancy were nonetheless entitled to official immunity); Rhea, 463 S.W.3d at 378-80 (fire chief responding to burning trailer fire was acting in the course of his official duties and was entitled to official immunity despite, inter alia, allegedly violating internal department policies prohibiting his speeding on the night of accident). Accordingly, these cases do not support the Gourleys’ position that Albrecht's alleged misconduct constituted acts outside the “scope of her authority” for the purposes of assessing official immunity.

The Gourleys next cite to several cases for the proposition that “public employees act outside the scope of their employment and are not entitled to immunity from suit when they engage in conscious wrongdoing, commit actions that are not required by their office, or act in bad faith or with a malicious purpose.” See State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 446 (Mo. banc 1986); Blue v. Harrah's N. Kansas City, LLC, 170 S.W.3d 466, 479 (Mo. App. W.D. 2005); State ex rel. Boshers v. Dotson, 879 S.W.2d 730, 732 (Mo. App. S.D. 1994); Rozell v. Stiefermann, 726 S.W.2d 342, 343–44 (Mo. App. W.D. 1987). However, a review of these decisions reveals no holdings, or indeed any language, recognizing any purported “scope of employment” or “non-required action” exception to official immunity. In the referenced portion of each case, the court of review was only addressing the “malice or bad faith” exception to official immunity. See Twiehaus, 706 S.W.2d at 446 (“[I]t is generally held that official immunity applies to all discretionary acts except those done in bad faith or with malice.”); Blue, 170 S.W.3d at 479 (“[T]he issue here is whether [defendant] acted in bad faith or with malice, removing the protection of official immunity.”); Boshers, 879 S.W.2d at 732 (“Plaintiff contends that there was a genuine issue as to the validity of the search warrant and [d]efendant's intent or malice in connection with the search and arrest.”); Rozell, 726 S.W.2d at 343–44 (“[Plaintiff] argues that [defendant] committed the alleged defamation in bad faith, with malice, and that official immunity is therefore inapplicable.”). These authorities support our conclusion that that the Gourleys’ claim on appeal confuses the applicable portions of the official immunity doctrine.

The Gourleys additionally cite to this Court's opinion in Balderree v. Beeman for the proposition that defamatory acts “[do] not, under any stretch of imagination, constitute a discretionary official act.” 837 S.W.2d 309, 322 (Mo. App. S.D. 1992).¹¹ However, the referenced portion of Balderree is not consistent with recent holdings of the Supreme Court of Missouri.¹² Our conclusion in Balderree that the defendant official's defamatory acts did not constitute a “discretionary, official act” was predicated upon a statement of law from State ex rel. Eli Lilly & Co. v. Gaertner, 619 S.W.2d 761, 765 (Mo. App. E.D. 1981), holding that discretionary acts consisted of only those acts “which go to the essence of governing.” See 837 S.W.2d at 321-22. The Supreme Court of Missouri, however, has noted this holding in Eli Lilly was quoting precedent discussing sovereign immunity, and specifically rejected the proposition that official immunity only shields actions that “go to the essence of governing.” Laughlin v. Perry, 604 S.W.3d 621, 627 (Mo. banc 2020) (“[T]his Court has not adopted Eli Lilly’s interpretation of official immunity in any case.”). Rather, the scope of acts encompassed by official immunity is “broad.” Alsup, 588 S.W.3d at 194. Consequently, Balderree does not set forth a basis for overturning the trial court's decision.

Lastly, the Gourleys contend that the Petition sufficiently pleads defamatory acts after Albrecht's employment at DHSS had concluded. Specifically, they point to Paragraph 79 of the Petition, which alleges in the relevant portion that Albrecht “repeated ․ the defamatory and false statements that [the Gourleys] stole from, defrauded, and committed elder abuse against [C.G.] in the DHSS report and investigative file in 2023, as described in a voluntary declaration under oath by Albrecht in late 2023.” Because Exhibit E to the Petition suggests that Albrecht left her employment at DHSS at some time prior to October 2, 2023, the Gourleys argue that it may be reasonably inferred from this allegation that Albrecht's “late 2023” declaration constituted a post-employment defamatory act. We disagree – such facts are simply not clear not from the face of the Petition and such an inference would not be reasonable.

The plain language of Paragraph 79 clearly identifies Albrecht's repetition of the accusations against the Gourleys in the DHSS report and investigative file as the offending conduct and only refers to the declaration as supporting documentation for such allegation. Moreover, the possibility that the purported declaration could have been made after the conclusion of Albrecht's employment at some unspecified point in 2023 is not sufficient for us to reasonably infer this was a fact being alleged in the case. See generally, Wright v. Over-The-Rd. & City Transfer Drivers, Helpers, Dockmen & Warehousemen, 945 S.W.2d 481, 495 (Mo. App. W.D. 1997) (Even a “liberal view” of plaintiff's inferences “does not include speculative free leaps to the desired inference[,]” and “[i]f two or more inferences may be deducted of equal reasonableness, then there is no inference that may be indulged without mere speculation.” (citations and quotations omitted)). A copy of the declaration was not attached to the Petition; thus, the nature and substance of its contents are unclear under the limited facts alleged. Nor is there any allegation in the Petition that the declaration was actually published. While the Gourleys’ briefing on appeal claims that Albrecht's declaration was included as part of a pleading in an unrelated domestic case after Albrecht's employment at DHSS ended, none of these facts were pled in the Petition. “Our review is confined to the facts alleged in the petition and the exhibits incorporated therein by reference.” Cornelius, 302 S.W.3d at 178-79.

Points I and II are denied.

Point III

The Gourleys’ third point on appeal alleges that the trial court misapplied the law in dismissing their claim against Albrecht based on official immunity because the Petition established that her challenged actions were done with malice and in bad faith. “[I]t is generally held that official immunity applies to all discretionary acts except those done in bad faith or with malice.” Love, 689 S.W.3d 489, 496. This exception to official immunity is a “narrow” one. Id. at 495.

As an initial matter, we hold that the Gourleys’ various arguments that there exists a “conscious wrongdoing” standard separate from an “intent to injure” standard misapplies the law. “Conscious wrongdoing” is one characteristic of an act done in bad faith. See Twiehaus, 706 S.W.2d at 447 (“[B]ad faith, although not susceptible of concrete definition, embraces more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud” (emphasis added, internal citations omitted)). “[B]ad faith or malice in [the official immunity] context ordinarily contains a requirement of actual intent to cause injury.” Id. Indeed, as recently clarified by the Supreme Court of Missouri in Love, “[m]alice, or the actual intent to cause injury, is the only mental state to which official immunity does not apply under Missouri law.” 689 S.W.3d at 498 (emphasis added). For this reason, the Gourleys’ reliance on the appellate decisions in Rozell, and Blue, is misplaced – both opinions were issued prior to Love and neither examined whether the allegations of possible “conscious wrongdoing” in those cases demonstrated an “actual intent to cause injury.” See Rozell, 726 S.W.2d at 344; Blue, 170 S.W.3d at, 479-80 (citing to Rozell).

Turning to Love, there an employee for the Missouri Department of Transportation and her unborn child were killed after the mother was struck by a vehicle while she was striping a highway intersection. 689 S.W.3d at 493. Prior to her death, the mother had requested that her supervisors assign her to a safer work role to reduce the risk of injury while she was pregnant. Id. The decedents’ family brought a wrongful death action against the mother's supervisors, alleging that, despite the mother's requests, the supervisors had placed her at the worksite without a protective vehicle, training, or a safety plan in violation of mandatory department rules, policies and procedures. Id. at 493-94. Decedents’ family further alleged that the supervisors’ acts had been done “blatantly, maliciously, ․ intentionally[,] ․ with malice, and/or ․ in bad faith,” and that such was sufficient to plead the malice and bad faith exception to official immunity. Id. at 494-97. Rejecting this claim, the Supreme Court concluded that, even under the “most egregious reading of the allegations” against the supervisors – that they had “intentionally refused to ensure placement of a protective vehicle, ongoing training, and a safety plan in retaliation for [mother]’s request [that her] supervisors place her in a safer role where the risk of injury would be reduced while she was pregnant” – the petition failed to plead any “factual allegations” establishing that any of the supervisors had “performed a discretionary act with the actual intent to cause injury.” Id. at 497-98 (emphasis added). In its decision, the Supreme Court in Love was clear that conclusory allegations that a public employee's acts were done with malice or bad faith are insufficient to overcome official immunity. See id. at 497.

The Gourleys contend that the present matter is distinguishable from Love because their Petition pleads factual allegations showing that Albrecht's defamatory statements were made with the intent to injure them. We disagree.

Similar to Love, the Petition at most pleads Albrecht intentionally engaged in misconduct – i.e., knowingly making false statements. However, as exemplified by Love, intentional misconduct, in and of itself, is not sufficient to establish malice or bad faith – there must be non-conclusory factual allegations establishing Albrecht acted with the specific intent to cause the Gourleys injury. See Love, 689 S.W.3d at 498. Contrary to the Gourleys’ arguments on appeal, we cannot reasonably infer an actual intent to injure from Albrecht's alleged improper acts themselves – the statements at C.G.’s attorney's office, the allegation of criminal action towards Jennifer Gourley, etc. See Brock v. Dunne, 637 S.W.3d 22, 30 (Mo. banc 2021) (“The fact that an intentional act may increase the risk of injury to others does not unequivocally lead to the conclusion that the actor intended to increase the risk of injury.”); Carlton v. Means, 688 S.W.3d 625, 631 (Mo. App. E.D. 2024) (Evidence, including expert testimony that the defendant officer's actions were “off the charts irresponsible and reckless,” was sufficient to establish “wanton” conduct under “the first prong of the malice test ․ [b]ut the intent prong of the malice test is another matter.”) The Gourleys’ conclusory, blanket allegations that all of Albrecht's alleged acts were done with “malice,” “bad faith,” and “intent to do harm” or “to [the Gourleys]’ detriment and damage [to their] reputations” are not sufficient to imbue Albrecht's alleged acts with the specific intent to injure necessary to overcome official immunity.

We recently upheld the application of official immunity at the pleading stage in a case involving similar allegations of public employee misconduct in Metcalf v. Beard, 717 S.W.3d 579, 587 (Mo. App. S.D. 2025), transfer denied (Aug. 12, 2025). In Metcalf, plaintiff was a commissioner for a Missouri road district who also owned and operated a business providing services to the district. Id. at 584. Plaintiff alleged that another commissioner of the district falsely reported to a law enforcement officer that “there had been stealing” in the road district, and that the other commissioner initiated an audit of the district and plaintiff while withholding documents from the State Auditor's Office. Id. Plaintiff accused the reporting law enforcement officer himself of filing a false probable cause statement, and accused two officials with the Auditor's Office of proceeding with an audit despite knowing the information they had been provided was inaccurate and incomplete. Id.

The trial court granted the public employees’ motions to dismiss on the grounds of official immunity. Id. On appeal, one of plaintiff's claims was that the public employees were not entitled to official immunity because the petition specifically pled they had “purposefully, maliciously, and intentionally failed to obtain a complete set of District records; and instigated criminal proceedings against him recklessly, out of malice, for improper purposes.” Id. at 588. Rejecting this argument and affirming the trial court's dismissal, we held these allegations were “general and conclusory” and did not establish that any of the public employees “wished to cause [plaintiff] injury or death.” Id.

Much like Metcalf, the present case involves allegations of false claims of misconduct, intentional failures to investigate, and threats of criminal action by a public employee. The Gourleys neither address nor attempt to distinguish Metcalf despite the trial court's judgment specifically noting the similar allegations at issue in that case and relying upon our decision there (in addition to Love) in concluding that the Petition failed to establish the malice and bad faith exception to official immunity. We see no reason to deviate from our reasoning in Metcalf here. Point III is denied.

Point IV

In their fourth point on appeal, the Gourleys contend the trial court erred in dismissing their claim against Albrecht with prejudice instead of allowing them to amend their Petition. However, the Gourleys concede they never requested leave to amend the Petition after the trial court dismissed it with prejudice; and, “[a] trial court is under no duty, sua sponte, to grant a party leave to amend.” Gross v. A New Missouri, Inc., 591 S.W.3d 489, 494 (Mo. App. W.D. 2019); see also Costa v. Allen, 274 S.W.3d 461, 463 (Mo. banc 2008) (“Rule 67.06[¹³ ] [does] not require the trial court sua sponte to grant leave to amend[.]”).

Assuming without deciding that the Gourleys would have been able to cure the deficiencies of the Petition in a third amended pleading – which is not clear from the record – the Gourleys nonetheless bore the obligation to seek leave from the trial court to do so. Schauer v. Gundaker Movits Real Estate Co., 813 S.W.2d 112, 116 (Mo. App. E.D. 1991) (Where plaintiff desires to file an amended petition it is up to him to ask leave to do so.”). They offer no explanation for why they made no such request in this case. “[We] will not, on review, convict a lower court of error on an issue which was not put before it to decide.” Holmes v. Union Pac. R.R. Co., 617 S.W.3d 853, 859 (Mo. banc 2021); see also Rapp v. Eagle Plumbing, Inc., 440 S.W.3d 519, 524 (Mo. App. E.D. 2014) (“On review, an appellate court will not convict a trial court of error on an issue that was never presented to the trial court for its consideration.”). Point IV is denied.

Conclusion

The trial court's judgment is affirmed.

FOOTNOTES

1.   Albrecht comprises one of three defendants in the underlying civil action. Following motion practice, the trial court granted Albrecht's motion to dismiss the Gourleys’ Second Amended Petition and entered its order dismissing the lone claim against Albrecht with prejudice (the “judgment”), certifying there was “no just reason for delay” pursuant to Mo. R. Civ. P. 74.01(b). Because the judgment disposed of all the Gourleys’ claims against Albrecht in the case as a “single, distinct judicial unit,” it was properly certified as a final judgment and jurisdiction in this Court is therefore proper. See generally Gibson v. Brewer, 952 S.W.2d 239, 244-45 (Mo. banc 1997).

2.   The Petition denominates this count as an action for “Slander and Defamation.” However, because the generic tort of defamation encompasses slander under modern law, see Nazeri v. Missouri Valley Coll., 860 S.W.2d 303, 308 (Mo. banc 1993), we refer to and treat the Gourleys’ “Slander and Defamation” claim as a defamation claim.

3.   The Petition alleged that Co-Defendants first called DHSS at some point during the 3 months leading up to August 2023, reporting similar allegations of elder abuse. Then, in late July 2023, Jennifer Gourley had a phone discussion with a DHSS investigator (not Albrecht) in which she responded to the allegations. No further communication between the initial DHSS investigator and Jennifer Gourley is alleged to have occurred.

4.   Exhibit E to the Petition purports to be an October 2, 2023 correspondence from Albrecht's DHSS supervisor to one of Jennifer Gourley's attorneys. The DHSS letter indicates that Albrecht had previously been employed at DHSS at some unspecified point prior to October 2, 2023, and also generally makes note of a “contact” between Albrecht and Jennifer Gourley at an unspecified time regarding the DHSS investigation into the “suspected financial exploitation of [C.G.]” The letter concludes that DHSS found “no evidence or information to support claims that [C.G.] was in any way, the victim of any financial crime, or being taken advantage of financially by Jennifer Gourley[,]” noting that the DHSS investigation into the matter had been “closed as unsubstantiated on September 27, 2023.”

5.   The trial court's judgment and Gourleys’ briefing on appeal interchangeably articulate this issue as whether Albrecht acted within the “scope of her employment.” However, whether a public official has acted “during the course of [her] official duties” in the context of official immunity is a distinct and “broader standard than whether a public official has acted strictly within the scope of employment” in the context of vicarious liability. Haley v. Bennett, 489 S.W.3d 288, 297 (Mo. App. W.D. 2016). Accordingly, to avoid confusion, we adhere to the “course of official duties” or “scope of authority” language pronounced by the Supreme Court of Missouri in applying official immunity. See State ex rel. Alsup v. Kanatzar, 588 S.W.3d 187, 190-91 (Mo. banc 2019) (“[O]fficial immunity ․ protects a public official ․ [who] acts within the course of [her] official duties and without malice[,] ․ [and] should be afforded ․ so long as [the official] was acting within the scope of her authority and without malice.”).

6.   The Gourleys’ briefing argues that the trial court misapplied the “burden of proof” with respect to determining Albrecht's official immunity. However, we do not weigh the credibility or persuasiveness of fact allegations when reviewing the grant of a motion to dismiss. Henley, 285 S.W.3d at 329. Thus, this aspect of the Gourleys’ first point appeal is more accurately characterized as a challenge to the trial court's purported application of the “burden of pleading.”

7.   In Love, the Supreme Court of Missouri addressed a trial court's partial denials of motions for judgment on the pleadings that asserted official immunity. 689 S.W.3d at 494.

8.   Forester did not hold that a bare allegation of “malice” will withstand a claim of official immunity on a motion to dismiss or for judgment on the pleadings. Love, 689 S.W.3d at 497 n. 9. Such conclusory allegations are insufficient to defeat a public official's invocation of official immunity at the pleading stage. See id. at 497.

9.   While it appears that Albrecht's motion to dismiss the Petition contained factual assertions beyond what was alleged in the Petition, the trial court expressly disregarded these assertions in reaching its judgment. The Gourleys present no argument on appeal that the trial court considered matters outside the Petition in adjudicating Albrecht's motion to dismiss.

10.   A defamation claim in Missouri, while generally categorized as an intentional tort, see Hester v. Barnett, 723 S.W.2d 544, 554 (Mo. App. W.D. 1987) (“established intentional torts: defamation ․”), only requires a defamatory statement to be negligently published to establish liability where, as is the case here, plaintiffs are private figures. Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. banc 2000) (“The requisite degree of fault for [defamation against] a private figure, like [plaintiff], is negligence[.]” (citation omitted)). This lends further support to our conclusion that application of official immunity in this case was proper. Additionally, while recklessness can establish “actual malice” for the purposes of punitive damages or otherwise state a claim in a defamation action, neither recklessness nor negligence is sufficient to establish an actual specific intent to injure in the official immunity context. See Love, 689 S.W.3d at 497–98 (“[O]fficial immunity applies to recklessness to the same extent as negligence.”); James v. Sch. Dist. of Kansas City 33, 728 S.W.3d 648, 668 (Mo. App. W.D. 2025) (“Reckless conduct alone does not amount to malice [in the official immunity context].”).

11.   Overruled on other grounds by Amick v. Pattonville-Bridgeton Terrace Fire Prot. Dist., 91 S.W.3d 603, 605 (Mo. banc 2002).

12.   Our holding in Balderree was premised on the fact that the defendant testified and maintained at trial that the alleged defamatory statements were never made, a proposition which the jury rejected. 837 S.W.2d at 320-21. When defendant attempted to pivot on appeal and claim that she had immunity even if such statements were actually made, we held that such argument was inconsistent with the evidence and that defendant was bound by her theory of defense at trial. Id.

13.   All rule references are to Missouri Court Rules (2025).

MATTHEW P. HAMNER, J. – OPINION AUTHOR

BECKY J. WEST, J. – CONCURS BRYAN E. NICKELL, J. – CONCURS