This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-1742

 

Duane "Dewey" Anderson,
Appellant,

vs.

Art Forse,
Respondent.

 

Filed April 29, 2003

Affirmed

Poritsky, Judge*

 

Carlton County District Court

File No. C501860

 

Steven K. Marden, 2136 Ford Parkway, Box 359, St. Paul, MN 55116 (for appellant)

 

James R. Andreen, Benjamin B. Bohnsack, Erstad & Reimer, P.A., 200 Riverview Office Tower, 8009 34th Avenue South, Minneapolis, MN 55425 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

 

            Appellant sued respondent for defamation.  Respondent moved for summary judgment.  The district court, noting that appellant had brought a similar claim in federal court against respondent’s employer, granted respondent’s motion on the ground that allowing appellant’s case to proceed would result in an impermissible double recovery.  On appeal, appellant argues that the defense of double recovery does not apply to the facts of this case and therefore the district court erred when it granted summary judgment on that ground.  We affirm the district court’s grant of summary judgment but do so on the ground that appellant’s claim is barred by the statute of limitations.

FACTS

 

            Appellant Duane “Dewey” Anderson worked as a school-bus driver for Independent School District Number 97 (school district).  He was selected for an unannounced, random drug and alcohol test to be conducted on April 23, 1998.  Respondent Art Forse is the transportation supervisor for the school district, and he informed Anderson that Anderson had been randomly selected to take the drug test.  Such random drug tests are required by 49 U.S.C. § 31306 and 49 C.F.R. § 382.101 et. seq. 

            Federal regulations dictate that a sample of 45 ml of urine must be collected in order to conduct a drug test.  49 C.F.R. § 40.25(f)(10).  This quantity is required so as to provide enough urine to conduct a second test of the same sample if the initial test is positive for drug use. 

            Anderson provided a urine sample of about 30 ml.  The federal regulations provide that if a driver provides an inadequate amount of urine, the driver is to drink water and wait until the required amount can be provided.  Anderson was angry about the possibility of being detained any longer and made it clear to the test administrator that he was not going wait until he could provide an additional 15ml of urine.  The test administrator allowed appellant to leave and submitted a letter explaining the inadequate amount, along with the sample, to the Medical Review Officer. 

            An employee is deemed to have refused to submit to a required test if the employee fails to provide the amount of urine that the regulations require.  49 C.F.R. § 382.107.  If an employee who is subject to random testing refuses to submit to a test, the federal regulations provide that the employee may not be permitted to drive a commercial vehicle.  49 C.F.R. § 382.211.  Anderson was suspended from employment on May 13, 1998, due to his failure to provide an adequate urine sample, and therefore, refusing to take the test. 

            Anderson alleges that after he was suspended from employment, Forse defamed him by making statements regarding Anderson’s refusal to provide an adequate urine sample.  Specifically, Anderson alleges that Forse told Jeff Kirk, a former transportation supervisor for the district, that Anderson had refused to take the test.  Anderson alleges these statements were made in a public café in the city of Moose Lake, and he asserts that these comments amount to defamation per se

            The alleged comments were made in late May of 1998.  Kirk testified that the conversation may have continued “for at least a couple months.”  Anderson does not allege that any comments were made later than the fall of that year. 

In October 1998, Anderson initiated a lawsuit against the school district in federal court, asserting a number of causes, including a claim that Forse’s comments were defamatory.  The federal court dismissed Anderson’s defamation claim, among others, as a matter of law.  His claim alleging violations of the Minnesota Government Data Practices Act went to the jury, which awarded Anderson damages.  Subsequently, however, the court granted the school district’s motion for judgment as a matter of law and vacated the jury award. 

On June 6, 2001, while the federal suit was still in progress, Anderson commenced the present action against Forse.  Anderson’s sole cause of action is for defamation.  His allegations in support of that claim are almost identical to the allegations he made in support of his defamation claim in federal court. 

Forse moved for summary judgment based on theories of collateral estoppel, substantial truth, the statute of limitations, qualified privilege and impermissible double recovery.  The district court granted the motion, ruling that Forse was entitled to summary judgment based on the theory of impermissible double recovery.  Anderson appeals.

D E C I S I O N

            “On an appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.”  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted).  Here, the district court determined that “allowing Plaintiff’s claims to go forward in this state proceeding would result in an impermissible double recovery.”  Double recovery for the same harm is impermissible in Minnesota.  Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 379 (Minn. 1990); Vaughn v. Northwest Airlines, Inc., 558 N.W.2d 736, 745 (Minn. 1997). 

            On appeal, Anderson argues that the district court erred when it accepted Forse’s argument that allowing this action to proceed would result in an impermissible double recovery.  Forse responds that the district court was correct when it made its ruling on double recovery, but he goes on to assert a number of other defenses, all of which he asserted in district court, including the argument that the statute of limitations bars Anderson’s suit.

We affirm the district court’s grant of summary judgment in favor of respondent Forse, but we do so solely on the ground that the statute of limitations bars Anderson’s suit.  Minnesota appellate courts may affirm the granting of summary judgment if there are no genuine issues of material fact and if the decision is correct on grounds other than those relied on by the trial court.  Northway v. Whiting, 436 N.W.2d 796, 798 (Minn. App. 1989); Braaten v. Midwest Farm Shows, 360 N.W.2d 455, 457 (Minn. App. 1985).  The appellate court can also affirm summary judgment on alternative theories presented but not ruled on at the district court level.  See e.g. Myers Through Myers v. Price, 463 N.W.2d 773, 775 (Minn. App. 1990); Winkler v. Magnuson, 539 N.W.2d 821, 827 (Minn. App. 1995), review denied (Minn. Feb. 4, 1991). 

            The statute of limitations for defamation is two years.  Minn. Stat. § 541.07, subd. 1 (1998).  The statute of limitations in a defamation action begins to run on the date that the alleged defamatory statement was made, not when it is discovered by plaintiff.  McGovern v. Cargill, Inc., 463 N.W.2d 556, 558 (Minn. App. 1990).  Forse allegedly made the initial comments to Jeff Kirk in late May of 1998.  Kirk testified that the conversation may have continued “for at least a couple months.”  The present action was commenced on June 6, 2001.  Therefore, in order to survive a statute-of-limitations challenge, Anderson would have to make a showing that Forse made defamatory statements after June 5, 1999.  The record is clear that Forse did not make any defamatory statements after that date.

            At the oral argument, Anderson claimed that Forse fraudulently concealed the defamatory remarks, and that therefore the statute of limitations was tolled.  Anderson did not, however, raise the fraudulent-concealment argument in his brief.  Issues not briefed on appeal are waived.  Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).  An appellate court will decline to reach an issue in the absence of adequate briefing.  State, Dep’t of Labor and Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997).

Even if we were to consider Anderson’s claim of fraudulent concealment, it is unpersuasive.  The statute of limitations may be tolled if a defamatory statement is fraudulently concealed from the plaintiff by an affirmative statement or by an act that is designed to and does prevent discovery of a cause of actionWild v. Rarig, 234 N.W.2d 775, 795 (Minn. 1975).  Concealment must take place through an affirmative action designed to present discovery.  McGaa v. Glumack, 441 N.W.2d 823, 825 (Minn. App. 1989), review denied (Minn. June 20, 1989).  Anderson’s claim of fraudulent concealment is based solely on the fact that in Forse’s deposition, Forse denied making the defamatory statements.  Forse persuasively argues that to accept Anderson’s argument that denial equals fraudulent concealment is to rule that any defendant in a defamation suit who denies making the defamatory statement is, without more, guilty of fraudulent concealment.  Anderson does not point us to any authority in support of his position.  In the absence of such authority, we decline to adopt such a rule.  Moreover, in his complaint, Anderson alleges that the defamatory statements were made “at Art’s Café, a public restaurant, in Moose Lake,” an allegation that does not support a claim of concealment.  We reject Anderson’s claim that the statute of limitations was tolled by any fraudulent concealment on Forse’s part.

            We conclude that Anderson’s action for defamation is barred by the statute of limitations. 

Affirmed.



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