This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-01-173

 

 

Jeffrey L. Nielsen,

Appellant,

 

vs.

 

Daniel G. Wall,

Respondent.

 

Filed August 28, 2001

Affirmed

Gordon W. Shumaker, Judge

 

Ramsey County District Court

File No. C1999475

 

 

 

 

George O. Ludcke, John D. Bessler, Kelley & Berens, P.A., 3720 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)

 

Pierre N. Regnier, Jardine, Logan & O’Brien, P.L.L.P., 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101-2160; and

 

Richard A. Lind, Sarah E. Morris, Lind, Jensen, Sullivan & Peterson, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402 (for respondent)

 

 

 

            Considered and decided by Shumaker, Presiding Judge, Amundson, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

            In this defamation action, the district court granted the respondent’s motion for summary judgment, ruling that, as a matter of law, there had been no actionable defamation.  The court also denied appellant’s motion to amend his complaint to add a claim for punitive damages.  Appellant contends that the district court erred in both rulings.  We affirm.

FACTS

            Appellant Jeffrey Nielsen is a real estate developer and broker in the Roseville area.  Respondent Daniel Wall is a former Roseville planning commission member and former mayor of Roseville.

Since at least 1988, Nielsen has taken public positions critical of various aspects of Roseville government and of the conduct of some of Roseville’s elected officials.  He attended and participated in public debates and wrote letters to the editor in which he criticized certain public officials, including Wall.  One of his major targets of criticism was Roseville’s tax increment financing program.  Nielsen also brought several lawsuits against the city of Roseville and from time to time publicly supported candidates for public office in Roseville government.

While he was mayor, Wall wrote a letter to the editor that appeared on the op-ed page of the October 7, 1999, edition of Focus News, a newspaper serving several suburban communities.  The letter was critical of Nielsen.  Wall later discussed his views in interviews with reporters for the Saint Paul Pioneer Press and the Roseville Review newspapers.  Nielsen contends that the letter and Wall’s statements in his interviews were defamatory.

The pertinent parts of the letter appearing in Focus News follow:

As the campaigns for mayor and city council near the final stages, we are once again exposed to the bitterness and extremism of Sands/Houck/Kehr and their puppet candidates.  * * * Older and grumpier, these guys have struck an alliance with Jeff Nielsen, owner of Everest Development, a major landowner in Roseville.  Nielsen is mad at Roseville because his various development schemes were rejected by city staff and council.  He is also upset because he missed out on the opportunity to develop the Centre Pointe Business Park.  Nielsen sat on the sideline waiting for the Centre Pointe project to collapse when the original developer threatened bankruptcy so he could put big box retail on that site instead of first rate corporate users.  When Ryan Company came forward and said it could develop Centre Pointe as approved by the city, Nielsen sued and lost.  Now he has another suit, about to be dismissed, for city actions years ago on other developments.  These and other specious lawsuits brought by Nielsen have cost Roseville taxpayers thousands of dollars.  It is no secret that he is financing Sands/Houck/Kehr in their efforts to restructure city government to his liking.  For years Nielsen and the three grumpy old men have backed candidates for city office who have consistently been rejected by Roseville voters.  Sands has repeatedly refused to disclose his close association with Nielsen. 

 

* * * *

 

It’s time for Kysylyczyn and Thordson to come clean and disclose their cozy friendship with Nielsen right now.  They should also fully disclose all financial support, direct or indirect, they have received from Nielsen, Har Mar owner Bradley Partnership and Cub Stores.  They need to assure us that they have not sold out the city in return for campaign financing and support.

 

* * * *

Do we want a non-resident land developer pulling strings at city hall?

 

(Emphasis added.)

 

Reporters for the Pioneer Press and the Roseville Review interviewed Wall after Nielsen and another person had started defamation actions.  On October 26, 1999, the Pioneer Press quoted Wall as saying, “It’s nonsense, * * * I don’t understand what their momentum is.”  On the same day the Review quoted Wall as follows:

I’m not concerned about it at all.  * * * I expect these lawsuits to be very short lived.

 

It’s pretty obvious that the entire matter is pure nonsense.  * * *  It’s just another example of the playground bullies raising their heads again.  It’s harassment and intimidation, pure and simple.

 

Nielsen commenced an action against Wall for damages for defamation on the basis of the letter to the editor, and then amended his complaint to add the interview statements Wall made to the other newspapers.  Nielsen also moved to add a punitive-damages count to his action.  Wall moved for summary judgment.

In granting Wall’s summary judgment motion and dismissing Nielsen’s complaint, the district court ruled that, as a matter of law, Nielsen is a limited-purpose public figure as to whom defamation is not actionable without a showing of actual malice.  The court then ruled that, as a matter of law, the facts, even if undisputed, were insufficient to prove malice.  The court also denied Nielsen’s motion to amend his complaint to add a punitive-damages claim.  This appeal followed.

D E C I S I O N

            The appellate court reviews a summary judgment to determine whether there are any genuine issues of material fact to be tried to a fact-finder and whether the district court erred in its application of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  On purely legal issues, the appellate court is not bound by and need not defer to the district court’s decision.  Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

Limited-Purpose Public Figure

Noting that Nielsen had assumed a purposeful and prominent role in the public controversy in Roseville concerning real estate development policy and tax increment financing, the district court ruled that Nielsen was a limited-purpose public figure.  That ruling is a legal issue, which we review de novo.  Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 483 (Minn. 1985) (Jadwin I).

Limited-purpose public figures are those who

thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved * * * [and] they invite attention and comment.

 

Id. at 484 (citation omitted).  In the context of a defamation action, we consider three elements to determine whether an individual is a limited-purpose public figure:

(a) the existence of a public controversy, (b) the individual’s purposeful or prominent role in that controversy, and (c) a relation between the allegedly defamatory statements and the public controversy.

 

Hunter v. Hartman, 545 N.W.2d 699, 704 (Minn. App. 1996) (citation omitted).

Nielsen concedes that he is a limited-purpose public figure as to the statements in Focus News and the Roseville Review and that he must show malice if he is to prevail on his defamation claim as to those statements.  However, as to the Pioneer Press statements, he contends that (1) the newspaper has a distribution beyond the geographic region of controversy and beyond that region he is merely a private figure; and (2) the statements in the Pioneer Press related to the defamation lawsuit and not to the public controversy.

As to Nielsen’s second contention, a public figure does not become a private figure when litigation results from the controversy that gave rise to his public-figure status.  See Beatty v. Republican Herald Publ’g Co., 291 Minn. 34, 37-38, 189 N.W.2d 182, 185 (1971) (holding that plaintiff, who actively opposed urban renewal, was a public figure for purposes of public controversy and later defamation suit, and his public-figure status had not been diminished by shifting the forum of the controversy from public debate to litigation).  Furthermore, the defamation lawsuit is in fact about the public controversy because that controversy provides the context for the lawsuit.  Thus, we reject the notion that litigation that is an outgrowth of the public controversy somehow insulates Nielsen from the status of a limited-purpose public figure.

We also reject Nielsen’s argument that his status as a limited-purpose public figure ends at the geographical boundaries of the Roseville area.  He cites no Minnesota authority for that proposition.  The federal cases he cites do not involve an individual who purposely thrust himself into public controversy and became a public figure before the defamatory statements were made.  We will not consider arguments made without pertinent supporting authority.  See City of Cloquet v. Cloquet Sand & Gravel, Inc., 312 Minn. 277, 279 n.1, 251 N.W.2d 642, 644 n.1 (1977) (noting reviewing court will not consider issue when party provides minimal explanation of contention on appeal and cites no supporting authority).

Malice

A limited-purpose public figure can recover damages in a defamation action only if he can prove by clear and convincing evidence that the defamatory statements were made with actual malice.  Hunter, 545 N.W.2d at 705.  Actual malice is proved when it is shown that the declarant knowingly made a false statement or made a statement “with reckless disregard for the truth.”  Elstrom v. Independent Sch. Dist. No. 270, 533 N.W.2d 51, 56 (Minn. App. 1995) (citation omitted), review denied (Minn. July 27, 1995). “Reckless disregard” means that the declarant seriously doubted the truth of the defamatory statement.  Id.

On appeal from summary judgment we inquire as to

whether the evidence in the record could support a reasonable jury finding * * * that the plaintiff has shown actual malice by clear and convincing evidence * * *.

 

Connelly v. Northwest Publ’ns, Inc., 448 N.W.2d 901, 903 (Minn. App. 1989) (quotation omitted), review denied (Minn. Feb. 21, 1990).  The district court here ruled that Nielsen had failed to produce sufficient evidence to create a genuine fact issue as to actual malice.  The court further held that Wall’s statements were opinion or hyperbole.

Nielsen argues that Wall failed to investigate the facts before he made the statements and that Wall had a long-standing animosity toward Nielsen.  Wall concedes that he made no special investigation of the facts but rather relied on information that he had acquired over a period of time.  The mere failure to investigate before publishing statements will not alone establish actual malice.  Connelly, 448 N.W.2d at 904.  Furthermore, actual malice “has nothing to do with motive or ill will * * *.”  Moreno v. Crookston Times Printing Co., 610 N.W.2d 321, 329 (Minn. 2000) (citing Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666 n.7, 109 S. Ct. 2678, 2685 n.7 (1989)).

Nielsen contends that Wall’s statements were false and that, as mayor and a lawyer, Wall knew or should have known they were false.  Statements that cannot reasonably be interpreted as stating actual facts are afforded First Amendment protection.  Hunt v. University of Minn., 465 N.W.2d 88, 94 (Minn. App. 1991).  Expressions of opinion, rhetoric, and figurative language generally are not actionable if the context is such that the audience would understand that the statements were not representations of fact.  Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986) (Jadwin II).

The context of Wall’s statements was the campaign for the election to the positions of mayor and city council in Roseville.  Wall’s comments related to candidates or supporters of candidates and primarily took the form of a letter to the editor.

When we review statements made about a public figure, we determine whether the statements can be reasonably considered to be opinion, hyperbole, or substantial truth.  Hunter, 545 N.W.2d at 706-07.  Viewing all of Wall’s statements in the context of the political campaign about which he was writing, we conclude that the district court did not err in characterizing the statements as opinion, hyperbole, or substantial truth.

Words and phrases that Wall used, such as “schemes,” “grumpy old men,” “puppet candidates,” “cozy friendship,” “self-appointed apostles,” “pulling strings,” “sitting on the sidelines,” “big box retail,” and “playground bullies” are reasonably understood as political commentary and opinion.  This is quintessential figurative language that is characteristic of political campaigns.  As such, it not only fails to show malice, it is inherently nonactionable.  See Jadwin II, 390 N.W.2d at 441 (use of term “one man show” was figurative language not subject to liability).

Wall’s allegation that Nielsen brought “specious lawsuits” that “have cost Roseville taxpayers thousands of dollars” falls into two categories.  Whether a lawsuit is specious, that is, lacking in merit, surely is a matter of opinion and is reasonably understood as such.  It is likely that most people who get sued dispute the merit of the suit.  The statement regarding the cost to taxpayers is substantially true.

Wall’s comments about Nielsen’s support of candidates Kysylyczyn and Thordson are true, except as to the suggestion that Thordson received financial support from Nielsen.  That appears not to be the case.  But in the context of supporting these candidates, Wall’s statements are substantially true and a minor inaccuracy does not make them defamatory.

Finally, Wall’s statements to the reporters for the Pioneer Press and the Roseville Review are imprecise, nonspecific, nonverifiable opinions.  See Huyen v. Driscoll, 479 N.W.2d 76, 79 (Minn. App. 1991) (to constitute facts statements must be specific, precise, and verifiable; otherwise they are opinions), review denied (Minn. Feb. 10, 1992).  Opinions critical of public figures are protected by the First Amendment.  Foley v. WCCO Television, Inc., 449 N.W.2d 497, 501 (Minn. App. 1989), review denied (Minn. Feb. 9, 1990).

The district court did not err in determining that there existed no genuine issue of fact regarding actionable defamation.  And, although the court styled its order as findings of fact, it relied on facts that Nielsen conceded or did not dispute.  Although it is not appropriate for the court to decide factual disputes on summary judgment, it is proper for the court to determine what facts, if any, are legitimately in dispute.  Moe v. Kilde, 419 N.W.2d 820, 821 (Minn. App. 1988).

Because the district court did not err in dismissing Nielsen’s action, it also did not err in denying Nielsen’s motion to add a punitive-damages count.

Affirmed.