This opinion will be unpublished and

may not be cited except as provided by

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






James S. Jerdee,



M. Jane M. Jerdee,





Mary Guenther, et al.,



Filed December 11, 2001


Forsberg, Judge*


Hennepin County District Court

File No. 99-3092


James S. Jerdee, 6700 Game Farm Road E, Mound, MN 55364 (pro se appellant)


M. Jane M. Jerdee, 6700 Game Farm Road E, Mound, MN 55364  (pro se appellant)


Peter B. Tiede, Michelle D. Christensen, Murnane, Conlin, White & Brandt, Suite 1800, 444 Cedar Street, St. Paul, MN 55101 (for respondents)


Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge.

U N P U B L I S H E D  O P I N I O N



            Appellants contest the district court’s rejection of claims relating to the accumulation of silt upon their property and defamation.  Because the district court did not err, we affirm.



            Appellants James S. and M. Jane M. Jerdee and respondents Mary Guenther and Tim Stolz are neighbors.  There have been ongoing disputes between the parties.  In January 1999, appellants filed suit in district court, claiming that respondents

maintained a nuisance on [appellants’] property, trespassed on [appellants’] property, defamed [appellants] in statements made to the police department, and negligently inflicted emotional distress as a result of the alleged defamatory statements.


Respondents moved for summary judgment on the claims of nuisance, defamation, and negligent infliction of emotional distress, and the district court granted the motion.  A jury trial was held on trespass, and the jury returned a verdict in favor of appellants.  Appellants’ posttrial motions were denied.  In this court, appellants challenge the dismissal of some claims by summary judgment, but not the jury verdict.


I.          Standard of Review

The appeal is limited to issues decided by summary judgment.  On an appeal from summary judgment, this court considers whether there are any genuine issues of material fact, and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

There is no genuine issue of material fact when the nonmoving party presents evidence that creates no more than a metaphysical doubt as to a factual issue or that is not sufficiently probative on an essential element of the party’s case to permit reasonable persons to draw different conclusions.  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  “[T]he party resisting summary judgment must do more than rest on mere averments.”  Id.  To defeat a motion for summary judgment, the nonmoving party must provide significant probative evidence tending to support its complaint.  Horton v. Township of Helen, 624 N.W.2d 591, 594 (Minn. App. 2001), review denied (Minn. June 19, 2001).  Although this court views the evidence in the light most favorable to the party against whom judgment was granted, summary judgment will be affirmed if that party has failed to establish the existence of an element essential to his or her case.  Benassi v. Back & Neck Pain Clinic, Inc., 629 N.W.2d 475, 479 (Minn. App. 2001), review denied (Minn. Sept. 11, 2001).   

II.         Nuisance, Negligence, Trespass


A.        Statute of Limitations for Nuisance


The district court concluded that appellants’ nuisance claim was barred by the statute of limitations.  Minn. Stat. § 541.051 (2000).  Although it was not pleaded, appellants now argue that the essence of their nuisance claim for accumulation of silt upon their property is factually based on respondents’ negligence in the manner in which they “manage their horses[,]” and the nuisance statute of limitations should not apply.

A pleading shall contain a short and plain statement of the claim, showing that the pleader is entitled to relief, and a demand for judgment for the relief sought.  Minn. R. Civ. P. 8.01.  Although the “notice pleading” rule does not require a party to plead detailed facts in support of every element of a cause of action, its main purpose is to give the adverse party fair notice of the theory on which each claim is based.  Pullar v. Indep. Sch. Dist. No. 701, 582 N.W.2d 273, 276 (Minn. App. 1998).  A party is bound by its pleadings unless other issues are litigated by consent, and it is a violation of due process to litigate issues outside the pleadings.  In re Metro Siding, Inc., 624 N.W.2d 303, 308 (Minn. App. 2001). 

Appellants consistently and specifically claimed throughout the district court proceedings that respondents’ horse boarding practices constitute a nuisance.  They did not plead any claim for negligence, and the district court correctly applied the statute of limitations applicable to nuisance.

B.        Trespass

For the same reasons, there is no merit to appellants’ argument that the district court erred in rejecting their nuisance claim for accumulation of silt, rather than treating it as a claim for trespass.  Appellants argued in the district court that their trespass claim related to the alleged removal of survey stakes and did not assert that the accumulation of silt constituted a trespass.  When a case has been tried and decided, the defeated party may not then amend the pleadings to allege a new claim.  Bush Terrace Homeowners Ass’n v. Ridgeway, 437 N.W.2d 765, 771 (Minn. App. 1989), review denied (Minn. June 9, 1989).  If this were to be tolerated, there would be no end to litigation.  Id.  Since the claim of accumulation of silt has already been pleaded, argued, and disposed of under a nuisance theory, appellants cannot now assert a trespass theory based on the same facts.

The district court did not err in disposing of the claim relating to accumulation of silt as a nuisance claim, rather than as a claim for continuing trespass. 

III.       Nuisance Per Se/In Fact

Appellants argue that the district court did not construe their pleadings liberally and erred in treating their nuisance claim as one for nuisance per se.  Appellants argue that the district court also should have considered nuisance in fact. 

To survive summary judgment on nuisance, appellants were required to provide evidence showing that respondents’ horse boarding practices were injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of appellants’ property, so as to interfere with their comfortable enjoyment of the property.  See Minn. Stat. § 561.01 (2000); Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Further, appellants were required to provide significant probative evidence tending to support their complaint, Horton, 624 N.W.2d at 594, and were not entitled to rest on mere averments.  DLH, Inc., 566 N.W.2d at 69.

Appellants argued in the district court that they had been denied full use and enjoyment of their property.  The only evidence supporting this claim was appellants’ argument at the summary judgment hearing:

We’ve gained up to a foot of silt on portions of our property which is still there, we receive odors, insects in the sloppy manure handling, but, again, they are saying we can’t prove we receive more insects.  How do you prove – we don’t have an odorometer that we’ve run for five years that says the odors have increased.  We just know they have.  They increased the number of horses on that property when they moved in.  * * *  We have pictures showing the muddy run off, several of which I’ve given to [respondents’ counsel]. 


The photos do not demonstrate that there was any increase of silt attributable to respondents.  Since appellants provided no evidence supporting a claim for nuisance in fact, summary judgment was proper.

Further, the district court order reveals that the court did consider nuisance in fact.  In its memorandum, the district court indicated that

[appellants] claim that their nuisance claim is based on the purported violations of the Minnetrista City ordinances and other factors.  To prevail, [appellants] must do more than show that [respondents] were in violation of city ordinances. 


* * * *


[Appellants] have not presented or developed other facts to support their claim of nuisance.  [Appellants] have not shown how the alleged acts have injured them.  [Appellants] have failed to present this court with specific facts demonstrating the existence of a material fact.


(Emphasis added.)  The district court did not mischaracterize appellants’ nuisance claim, and it properly concluded that appellants failed to establish the existence of a genuine issue of material fact on nuisance. 

IV.       Opening of the Culvert

Appellants argue that the district court abused its discretion in determining that respondents’ opening of a drainage culvert was merely a cosmetic change, because it actually resulted in an increase of silt and pollution on appellants’ property.  Appellants also argue that the statute of limitations should have begun to run anew when the culvert was opened in 1998. 

Minn. Stat. § 541.051, subd. 1(a), states that any action to recover damages for an injury to property “arising out of the defective and unsafe condition of an improvement to real property,” must be brought within two years of discovery of the injury.  An improvement upon property has been defined as

a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.


Pac. Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn. 1977).  Appellants had the burden of establishing a genuine issue of material fact as to whether the change that respondents made to the drainage culvert constituted an improvement.  Benassi, 629 N.W.2d at 479.  Appellants admitted that in 1991 or 1992, they became aware of, and contacted the prior owner about, the accumulation of silt on their property due to the drainage system.  Appellants provided no evidence establishing that the opening of the drainage culvert constituted an improvement.  Thus, the district court did not err in concluding that the opening of the culvert was not an improvement, or that the claims relating to the drainage system were barred because they were brought more than two years after discovery of the injury.

V.        Fact Issues Re: “Reasonable Use”

Appellants argue that the district court erred in granting summary judgment on their nuisance claim because they established genuine issues of material fact as to the “reasonable use” of property.  When evaluating nuisance in the context of water damage, the courts employ the flexible doctrine of reasonable use, which presents questions of fact that must be resolved on a case-by-case basis.  Matter v. Nelson, 478 N.W.2d 211, 214 (Minn. App. 1991).  Because appellants did not provide sufficient evidence to support a nuisance claim relating to accumulation of silt, there was no error in failing to apply the doctrine of reasonable use.   

VI.       Defamation Per Se and Conditional Privilege

Appellants argue that the district court erred when it evaluated claims relating to alleged false accusations as defamation, rather than defamation per se.  The elements of defamation are a statement communicated to someone other than the subject of the statement, the statement is false, and the statement tends to harm the subject’s reputation and standing in the community.  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).  In a case of defamation per se, damages are presumed and need not be proved.  Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 25 n.3 (Minn. 1996).   False accusations that someone has committed a crime constitute defamation per se.  Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987).  The district court’s order reveals that the statements were considered both in the context of defamation and defamation per se.

Appellants argue that the district court erred in concluding that the statements were protected by conditional privilege.  In cases of defamation per se, statements may be protected by conditional privilege, unless that privilege is abused.  Stuempges, 297 N.W.2d at 256-66.  Whether a particular communication is conditionally privileged is a question of law.  Singleton v. Christ the Servant Evangelical Lutheran Church, 541 N.W.2d 606, 615 (Minn. App. 1996), review denied (Minn. Mar. 19, 1996).  A communication is conditionally privileged if it is made upon a proper occasion, made from a proper motive, and based upon reasonable or probable cause.  Id.

If a speaker establishes that a conditional privilege existed, the burden shifts to the  subject of the statement to show abuse of the privilege.  Id.  The burden is met by proving malice, which requires a showing that the statements were made “from ill will and improper motives, or causelessly and wantonly for the purpose of injuring” the subject.  See id. (citation omitted).  This may be shown by

extrinsic evidence of personal ill feeling, or by intrinsic evidence such as the exaggerated language of the [statement], the character of the language used, the mode and extent of the publication, and other matters in excess of the privilege.


Buchanan v. Minn. State Dep’t of Health, 573 N.W.2d 733, 738 (Minn. App. 1998), review denied (Minn. Apr. 30, 1998) (quotation omitted).  Although a jury normally determines whether the speaker has abused the privilege, summary judgment is appropriate when the record shows no facts that would lead to a conclusion that the speaker acted out of malice or ill will.  Id.

Appellants provided no evidence showing that respondents abused the privilege by acting with malice.  There is no evidence showing that respondents used exaggerated language in making statements to local authorities, or that the mode and extent of publication was unreasonable.  Because appellants did not establish any genuine issue of material fact as to whether respondents acted with malice in making reports to the police, the district court did not err in finding that statements were conditionally privileged.

Lastly, appellants argue that the district court erred in finding that respondents did not make false statements to others.  Although the district court found that appellants produced no evidence of statements made to anyone other than the police, the record contains an undated, handwritten memo from a local official on issues relating to the parties’ dispute.  This minimal evidence may support an inference of broader publication.  However, appellants have the burden on appeal to demonstrate that any error caused actual prejudice.  Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993), review denied (Minn. June 28, 1993).  Although the record establishes this official’s familiarity with the parties’ dispute, it also establishes that appellants themselves approached this official about their problems with respondents.  Appellants simply did not establish that respondents made statements alleged to be defamatory to anyone other than police and this local official.  In the absence of proof of publication to a greater extent than required by proper purposes, appellants cannot overcome the conditional privilege, so any error in overlooking possible evidence that statements were made to one official, in addition to police, is not prejudicial.

The district court did not err in dismissing various claims made by appellants on respondents’ motion for summary judgment.





*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.