STATE OF MINNESOTA
IN COURT OF APPEALS
Marchant Investment & Management Co., Inc.,
St. Anthony West Neighborhood Organization, Inc., et al.,
Filed April 5, 2005
Hennepin County District Court
File No. MC03-019319
Matthew L. Fling, 4018 West 65th Street, Suite 100, Edina, MN 55435 (for appellant)
Ansis V. Viksnins, DeAnne M. Hilgers, Lindquist & Vennum, P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondents)
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Stoneburner, Judge.
S Y L L A B U S
I. To survive a motion to dismiss based on immunity provided by Minnesota’s participation-in-government statute, Minn. Stat. §§ 554.01-.05 (2004), the nonmoving party must clearly and convincingly demonstrate the existence of an actionable tort or a violation of a constitutional right.
II. In determining whether an alleged defamatory statement presents or implies a provably false assertion of facts, we look to the broad context of the communication, including the general tenor of the speech; the specific context and content of the statement, including the use of hyperbolic and figurative language; and whether the statement is sufficiently objective to be susceptible of being proven true or false.
O P I N I O N
In litigation between a real-estate developer and a neighborhood organization, the district court applied the participation-in-government immunity provided by Minn. Stat. §§ 554.01-.05 (2004) to grant judgment on the pleadings for the neighborhood organization. The developer appeals the judgment as it relates to its defamation claim and the attendant order for attorneys’ fees. Because the developer’s allegations do not clearly and convincingly demonstrate that the neighborhood organization’s statements declare or imply a provably false assertion of defamatory fact, the district court did not err in granting the neighborhood organization participation-in-government immunity and ordering judgment on the pleadings; we therefore affirm.
F A C T S
Marchant Investment & Management Co., Inc. (Marchant) is a real-estate developer that proposed a development project, the River Run Apartment Project, in the Sheridan neighborhood of Northeast Minneapolis. St. Anthony West Neighborhood Organization, Inc. (STAWNO) is a non-profit organization that, along with other neighborhood organizations, opposed the design of the proposed project.
While Marchant was in the process of obtaining the city’s approval of the project and the necessary permits, Michael Rainville, STAWNO’s president, wrote a letter to the Minneapolis Planning Department opposing Marchant’s zoning application and requests for variances. Rainville sent copies of the letter to Marchant, the mayor, the city council, and another development company. The language in the letter that is relevant to this appeal states:
We have met countless times with the developers to inform them of the vision of the Above the Falls Plan and our concerns about having that vision carried out. They have refused to listen to our concerns, especially regarding the height variance, design and the relationship the proposed project has to the Above the Falls Plan.
Marchant’s president, James Bartlett, responded by letter, questioning whether Rainville was speaking for himself or for STAWNO’s board and pointing out inaccuracies in Rainville’s letter. Bartlett said that Marchant had never met with STAWNO and that STAWNO had not asked for a meeting. He stated that Marchant had met many times with the Sheridan Neighborhood Organization and that Rainville had personally “attended a number of those meetings.” Bartlett also said that, at Rainville’s suggestion, Marchant had met with MEND, an umbrella organization of neighborhood associations, and that Rainville spoke at that meeting.
Three months later Marchant sued STAWNO and its officers and directors, alleging defamation, tortious interference with a prospective business advantage, tortious interference with a contract, civil conspiracy, and civil aiding and abetting. Marchant’s complaint specifically refers to Rainville’s letter, the response from Bartlett, and a subsequent letter from Marchant to the STAWNO Board of Directors inquiring whether the board had authorized Rainville’s letter. In its answer to Marchant’s complaint, STAWNO also refers to the three letters and their contents and affirmatively alleges that it has discussed the River Run Project several times with Marchant. Among other affirmative defenses, STAWNO asserts immunity for protection of citizens’ participation in government under Minn. Stat. §§ 554.01-.05 (2004).
STAWNO moved under Minn. R. Civ. P. 12.03 and Minn. Stat. § 554.02, subd. 2(3), for judgment on the pleadings on all claims. The district court granted STAWNO’s motion. On the defamation claim, the court held that Marchant had failed to clearly and convincingly demonstrate that any of the contested statements in the letter conveyed a defamatory meaning and therefore STAWNO was entitled to immunity for its participation in the proceedings. In this appeal, Marchant challenges the district court’s determination on one set of the alleged defamatory statements and also appeals the court’s allowance of attorneys’ fees.
Did the real-estate developer clearly and convincingly establish that the neighborhood organization tortiously defamed the developer by stating or implying a provably false assertion of fact?
A N A L Y S I S
The participation-in-government immunity provided under Minn. Stat. §§ 554.01-.05 (2004) explicitly requires the nonmoving party to disprove the movant’s immunity by clearly and convincingly establishing an underlying tort. Even assuming that all facts alleged in the complaint are true and drawing all reasonable inferences in Marchant’s favor, it has not met this high, statutorily imposed burden. See Swanlund v. Shimano Indus. Corp., 459 N.W.2d 151, 154 (Minn. App. 1990) (stating that clear and convincing standard requires court to view evidence “through the prism of the substantive evidentiary burden” (quotation omitted)), review denied (Minn. Oct. 5, 1990). The district court did not err in dismissing the defamation claim in accord with the immunity provision in the participation-in-government statute.
Marchant also appeals the district court’s grant of attorneys’ fees to STAWNO but acknowledges that entitlement to costs and attorneys’ fees is nondiscretionary under Minn. Stat. § 554.04, subd. 1 (“The court shall award a moving party who prevails in a motion under this chapter reasonable attorney fees and costs associated with the bringing of the motion.”). Because STAWNO has prevailed on the defamation issue, it is entitled to the attorneys’ fees allowed by the district court.
With respect to Marchant’s claims in addition to defamation, the district court held that they were viable only if Marchant succeeded on its defamation claim. Marchant has not separately addressed these claims in its appeal. Although STAWNO has addressed them in its response brief, we decline to extend our review beyond those issues raised by the appellant.
Marchant failed to clearly and convincingly demonstrate that STAWNO’s statements constitute defamation. We conclude, in the absence of clear and convincing proof of an underlying tort or violation of constitutional rights, the participation-in-government immunity provided by Minn. Stat. §§ 554.01-.05 (2004) applies, and we affirm the district court’s dismissal of Marchant’s claims.