This opinion will be unpublished and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

A03-528

A03-1053

 

John O. Roberts,

Appellant,

 

Jane Roberts,

Plaintiff (A03-528),

 

vs.

 

Board of Trustees of the Minnesota State

Colleges and Universities, on behalf of the

State of Minnesota, et al.,

Respondents,

 

Earl Cummings, et al.,

Respondents,

 

Mark Smith, et al.,

Respondents,

 

Thunderbird Aviation, Inc., et al.,

Respondents (A03-1053),

 

Jeff Kagermeier,

Respondent.

 

Filed April 6, 2004

Affirmed

Peterson, Judge

 

Blue Earth County District Court

File No. C102878

 

Henry M. Helgen III, Pamela H. Nissen, Timothy J. Foster, McGrann Shea Anderson Carnival Straughn & Lamb, Chartered, 800 Nicollet Mall, Suite 2600, Minneapolis, MN  55402 (for appellant John O. Roberts)

 

Mike Hatch, Attorney General, Nancy J. Joyer, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2130 (for respondents Board of Trustees of MSCU, et al.)

 

John M. Riedy, Maschka, Riedy & Ries, 201 North Broad Street, Suite 200, Mankato, MN  56002-0007 (for respondents Earl Cummings, et al.)

 

Dustan J. Cross, Gislason & Hunter, LLP, 2700 South Broadway, P.O. Box 458, New Ulm, MN  56073-0458 (for respondents Mark Smith, et al.)

 

Ronald L. Snelling, Snelling, Christensen & Laue, 5101 Vernon Avenue South, Suite 400, Minneapolis, MN  55436 (for respondents Thunderbird Aviation, Inc., et al.)

 

Pierre N. Regnier, Susan S. Tice, Jardine, Logan & O’Brien, 8519 Eagle Point Boulevard, Suite 100, Lake Elmo, MN  55042 (for respondent Jeff Kagermeier)

 

            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this consolidated appeal from summary judgments, appellant John Roberts argues that the district court (1) erred in granting summary judgment on his defamation claims; (2) erred in dismissing his claim for tortious interference with contract; (3) erred in dismissing his due-process claims; (4) erred in granting summary judgment on certain claims before discovery was completed; and (5) abused its discretion in awarding costs and disbursements to respondents.  We affirm.

 

FACTS

            Respondent Minnesota State University, Mankato (MSUM), offers an aviation program consisting of classroom courses and flight school to prepare students to become professional pilots.  To meet course requirements and requirements of the Federal Aviation Administration (FAA), students must take a computerized written examination and an in-flight practical-skills test.

            Appellant John Roberts, a professor in the aviation department and a director of the aviation program since 1981, became chair of the department in 1998.  Roberts is also an FAA-designated examiner and administers the FAA tests.  In his capacity as director, Roberts contracted with a company to provide the computerized testing services.  MSUM was named as the contracting company, although Roberts had no authority to enter into contracts on behalf of MSUM.

            Roberts charged the students a testing fee separate from their tuition and, after paying a portion of the fees to the testing company, kept the remainder.  The fees were initially deposited in a university account over which he retained exclusive control.  In 1991, at the request of a university dean, Roberts closed the university account and opened a personal bank account, naming himself and his wife as account owners, into which the fees were deposited.

            Some of the aviation-program coursework was done at the Mankato airport, which is owned by the City of Mankato and managed by respondent North Star Aviation (NSA).  NSA had a contract with the Minnesota State Colleges and Universities to provide flight instruction for students enrolled in the flight-training program at MSUM.  On February 16, 2001, NSA gave the university notice of termination of its contract to manage the flight school, effective August 31, 2001. 

            On May 7, 2001, MSUM held a meeting to provide information to potential applicants for the flight-school contract, as well as to explore financial issues.  During this meeting, when asked about the status of the FAA-exam fees, Roberts responded that the fees “went to the University.”  He did not disclose that he deposited part of the fees into his own bank account.  Later, investigation by the university revealed that part of the fees went to Roberts personally, not the university.

            Respondent Thunderbird Aviation, Inc., was ultimately awarded the flight-school contract, although Roberts and his fellow faculty members opposed some of the contract provisions that Thunderbird proposed.  Aviation students also became involved in the controversy surrounding the new flight-school contract.

            Meanwhile, in July 2001, the president of MSUM ordered an internal audit of the aviation-program fee system.  The auditor found that Roberts misrepresented his authority, created a conflict of interest, and misused university assets when he contracted with the computer-assisted-testing service on the university’s behalf to administer the computerized FAA written test.  The auditor also concluded that Roberts created a conflict of interest when he conducted and charged students for the FAA flight tests and that although Roberts used MSUM time and resources to become certified, he used these credentials primarily for personal gain.

            The president placed Roberts on paid suspension for up to 30 days effective November 5, 2001.  As part of his suspension, he was not allowed to teach classes, communicate with anyone except his union representative regarding an investigation of the auditor’s report, or be on the MSUM campus.  The president then instructed an MSUM dean to investigate the auditor’s findings.

            After the dean reported her findings, the president suspended Roberts without pay for 30 days.  In her letter informing Roberts about her decision, the president stated:

                                    1.         You exceeded your authority by entering into a contract that would purport to bind Minnesota State University, Mankato, to [the computer-assisted-testing service].

 

                                    2.         You charged students for and profited from the administration of the Airman Knowledge Test even though such examinations were a part of your course syllabi.  This conduct is totally inappropriate and is a clear conflict of interest . . . .

 

                                    3.         You personally charged students and personally profited from the administration of flight check rides when such rides were an MSU course requirement as set forth in course syllabi.  This conduct is totally inappropriate and is a clear conflict of interest.

 

            Roberts then sued four sets of defendants on a variety of claims: (a) MSUM respondents, including various administrators; (b) NSA and its manager Mark Smith, Turning Point Management, a consulting firm, and Earl Cummings, president of Turning Point; (c) Thunderbird Aviation, Mankato Aviation, and Nancy Grazzini-Olson, president of these two companies; and (d) Mankato Mayor Jeff Kagermeier.  The district court granted summary judgment to all respondents and awarded them costs and disbursements.  This consolidated appeal followed.

D E C I S I O N

            On appeal from summary judgment, the appellate court will examine 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).  This court views the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

I.

            We first address Roberts’ claim that the district court erred in granting summary judgment on his defamation claims against the state respondents.  We limit our analysis to the six specific instances of alleged defamation that Roberts cites in his brief.

            “[F]or a statement to be considered defamatory it must be communicated to someone other than the plaintiff, it must be false, and it must tend to harm the plaintiff’s reputation and to lower him in the estimation of the community.”  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).  Defamation by implication occurs “‘if the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts.’”  Diesen v. Hessburg, 455 N.W.2d 446, 450 (Minn. 1990) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Tort, § 116 (5th ed. Supp. 1988) (footnotes omitted)).  “Slanders affecting the plaintiff in his business, trade, profession, office or calling are slanders per se and thus actionable without any proof of actual damages.”  Stuempges, 297 N.W.2d at 255.  Truth is an absolute defense.  Id.

            Roberts first cites a comment made by Dean Joanne Brandt to an aviation student.  After hearing that Roberts had been suspended, the student visited Brandt to find out the reasons for the suspension.  When the student asked why Roberts had been suspended, Brandt answered that there were too many “under the table” transactions by Roberts for him to be involved in this process.  When the student asked Brandt to explain, she would not.  The student averred that “[d]espite my own disbelief, I understood her comments to mean that John Roberts was doing some really bad things.”  Roberts argues that this statement is defamatory because his transactions were never “under the table.”  To be defamatory, a statement must “impl[y] actual facts that can be proven false.”  Lund v. Chi. & Northwestern Transp. Co., 467 N.W.2d 366, 369 (Minn. App. 1991), review denied (Minn. June 19, 1991).  Whether a statement is factual or opinion is a question of law for the court.  Id.  A four-factor test can be applied to determine whether a statement constitutes a protected opinion.  Geraci v. Eckankar, 526 N.W.2d 391, 397 (Minn. App. 1995), review denied (Minn. Mar. 14, 1995).  These include “the statement’s (1) specificity and precision, (2) verifiability, (3) literary and social context in which it was made, and (4) public context.”  Id. 

It is a close question whether Brandt’s statement is sufficiently specific, precise, and verifiable to conclude that it states a fact, but we need not determine whether the statement is defamatory because Brandt made the statement under circumstances that entitle her to a qualified privilege.

“The law is that a communication, to be privileged, must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause.  When so made in good faith, the law does not imply malice from the communication itself, as in the ordinary case of libel.  Actual malice must be proved, before there can be a recovery, and in the absence of such proof the plaintiff cannot recover.”

 

Stuempges, 297 N.W.2d at 256-57 (quoting Hebner v. Great N. Ry., 78 Minn. 289, 292, 80 N.W. 1128, 1129 (1899)).  “It is well-settled in Minnesota that to demonstrate malice in a defamation action the plaintiff must prove that the defendant ‘made the statement from ill will and improper motives, or causelessly and wantonly for the purpose of injuring the plaintiff.’”  Id. at 257 (quoting McKenzie v. William J. Burns Int’l Detective Agency, Inc., 149 Minn. 311, 312, 183 N.W. 516, 517 (1921)). 

Malice cannot be implied from the statement itself or from the fact that the statement was false.  Malice can be shown by extrinsic evidence of personal spite, as well as by intrinsic evidence such as “the exaggerated language of the libel, the character of the language used, the mode and extent of publication, and other matters in excess of the privilege.”

 

Bol v. Cole, 561 N.W.2d 143, 150 (Minn. 1997) (citation omitted) (quoting Friedell v. Blakely Printing Co., 163 Minn. 226, 231, 203 N.W. 974, 976 (1925)) (other quotation omitted).

            Brandt made the statement in response to a student who asked why Roberts had been suspended.  When she made the statement, Brandt was aware of the contents of the audit report that lead to Roberts’ suspension.  Therefore, the statement was made upon a proper occasion, from a proper motive, and was based upon reasonable or probable cause.  There is no evidence that Brandt made the statement from ill will or with the purpose of injuring Roberts.  Therefore, Brandt is entitled to a qualified privilege.

            Next, Roberts argues that three statements that Brandt made to Dr. Edward Bryant are defamatory.  These statement are (1) that MSUM had more than enough evidence to fire Professor Roberts; (2) that part of Roberts’ wrongful conduct justifying his suspension involved his taking money from students in giving them FAA check rides, constituting a conflict of interest; and (3) that the aviation program was going to stay, but Roberts was not.  However, Roberts did not argue to the district court that any of these statements is defamatory.  Instead, in his offer of proof, Roberts offered the statements to “impeach the testimony of the State Defendants, and to provide additional rebuttal testimony as to their claims that they never made statements regarding his suspension.”  Roberts cannot argue for the first time on appeal that these statements are defamatory.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (an appellate court will only review issues that were “presented and considered” by the district court).

            Next, Roberts contends that a statement made by President Karen Boubel to Charles Sorenson was defamatory.  Citing Sorenson’s affidavit, Roberts describes Boubel’s statement as a “statement to parents of Aviation students, following Professor Roberts’ suspension, telling them that he was suspended due to the ongoing investigation of the Aviation Department.”  But in his affidavit, Sorenson states:

(4)       When Dr. Boubel was asked why Professor Roberts had been recently suspended from campus and airport training areas, she stated, “I cannot answer any of your questions because of the data practices act” and the ongoing investigation of Professor Roberts.

 

(5)       When President Boubel was asked whether Professor Roberts has done anything wrong, she stated that she could not respond due to the ongoing investigation of Mr. Roberts.

 

The actual statement that Sorenson attributed to Boubel says nothing more about Roberts than that he was being investigated, which was true.  When viewed in the light most favorable to Roberts, Sorenson’s affidavit does not establish that Boubel made a defamatory statement.

            Roberts also contends that testimony of Earl Cummings about a telephone conversation he had with Boubel demonstrates that Boubel made defamatory statements about Roberts.  Roberts contends that notes that Cummings made “show that he and Boubel discussed Roberts’ suspension and his falsifying records.”  The notes contain the statements “Suspend Faculty=Not all 3,” and “Falsifying Records—dates in log book.”  However, Cummings, not Boubel, made the notes.  During Cummings’ deposition, Roberts’ attorney directed Cummings’ attention to the statement, “Suspend Faculty=Not all 3,” and asked, “Now, again, I just want to be clear, this was a subject that was being discussed between you and President Boubel on that date?”  Cummings answered, “No.  That was a recommendation I had made to her.”  Later in the deposition, Roberts’ attorney directed Cummings’ attention to the last page of Cummings’ notes, which included the statement, “Falsifying Records—dates in log book,” and asked, “[W]as this part of that same conversation?”  Cummings answered, “No.  These were records taken from a student who wanted to talk to me in confidence relative to their latest experiences with the aviation program.”  When viewed in the light most favorable to Roberts, the evidence does not establish that Boubel made the statements that Roberts claims that she made.

            Citing the deposition testimony of Mankato Mayor Jeff Kagermeier, Roberts contends that Boubel made a defamatory statement when she asked several people at a meeting to contribute observations of any inappropriate activity by Roberts.  Roberts contends that the solicitation of observations of inappropriate behavior implied that Roberts was acting badly. 

“[A] publication may be defamatory on its face; or it may carry a defamatory meaning only by reason of extrinsic circumstances.  The question whether a claimed defamatory innuendo is reasonably conveyed by the language used is for the court to determine.”  Utecht v. Shopko Dep’t Store, 324 N.W.2d 652, 653 (Minn. 1982).  The statement that Roberts contends is defamatory was a request for information about Roberts; the language used did not assert anything about Roberts.  We conclude that asking people to contribute observations of any inappropriate activity does not reasonably imply that Roberts had acted inappropriately.

            Finally, Roberts argues that statements that Charles Anderson, the acting vice president of finance and administration, made to Michael Nevins were defamatory.  In an affidavit, Nevins stated:

[O]n or about July, 2001, I had a conversation with Charles Anderson, in which he stated the following:

 

            a.         In response to my questions as to rumor[s] circulating about John Roberts, he indicated that he needed to further investigate improprieties involving Mr. Roberts.

 

            b.         That [the aviation] program will continue without John Roberts—that at some point John Roberts will be gone, and the program will continue. 

 

            With respect to the first statement, Roberts argues that there is evidence that the statement is false, but he does not identify any evidence.  The record demonstrates that Anderson had received a June 13, 2001, memorandum from the assistant vice president for financial management and budget informing him that although Roberts had said at a meeting with potential applicants for the flight-school contract that FAA exam fees “went to the University,” the fees had not been deposited with business office cashiers, and further review revealed that the faculty had aviation students pay the fees directly to them and retained the money.  In light of this memorandum, there is no genuine fact issue whether Anderson’s statement that he needed to further investigate improprieties involving Roberts was true.

            With respect to Anderson’s second statement,

[o]nly statements that present or imply the existence of fact that can be proven true or false are actionable under state defamation law.  Thus, if it is plain that the speaker is expressing a “subjective view, an interpretation, a theory, conjecture, or surmise,” rather than claiming to be in possession of “objectively verifiable facts,” the statement is not actionable.

 

Schlieman v. Gannett Minn. Broad., Inc., 637 N.W.2d 297, 308 (Minn. App. 2001) (citation omitted) (quoting Haynes v. Alfred A Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993)), review denied (Minn. Mar. 19, 2002).

            The second statement is a statement about future events.  It does not imply the existence of a fact.  On its face, it presents only Anderson’s subjective view, interpretation, theory, conjecture, or surmise about what will happen in the future.  Therefore, the statement is not actionable.

II.

            Roberts argues that the district court erred in granting Kagermeier summary judgment on Roberts’ defamation claim based on a letter that Kagermeier sent to Boubel and a local newspaper.  The letter stated that aviation-program students had inundated Kagermeier with e-mails that were filled with “misinformation and out right lies” about the City of Mankato’s position with respect to the aviation program’s use of the airport.  The letter at least arguably implies that Roberts was the source of the students’ misinformation.

            The district court ruled that Roberts failed to establish a prima facie case of defamation and, at best, the statements in the letter are opinion.  The court further noted that Kagermeier made the statements in his official capacity as mayor of Mankato, which owns the airport, and that there was no claim that the mayor acted maliciously.

            We conclude that the statements in Kagermeier’s letter were made under circumstances that entitled Kagermeier to a qualified privilege.  As we have already explained with respect to a statement by Dean Brandt, a communication that is made upon a proper occasion, from a proper motive, and upon reasonable or probable cause is privileged, and actual malice must be proved before there can be a recovery.

            Roberts argues that Kagermeier did not make the statements in his letter upon a proper occasion because the letter contained personal attacks on Roberts and Kagermeier wrote the letter on his home computer on a Sunday afternoon without using official city letterhead.  But none of these facts indicate that the letter was not written upon a proper occasion.  The entire text of the letter addresses issues related to the aviation program’s use of an airport owned by the City of Mankato.  There is no evidence that there were not many aviation-program students who were concerned about the future of the aviation program and who contacted Kagermeier about their concerns.  These students’ concerns created a proper occasion for Kagermeier to make statements about the issues that the students raised.

            Roberts argues that there is a fact issue whether Kagermeier acted with malice because there is evidence that Earl Cummings, a person who had no official connection with the city, helped Kagermeier draft the letter and Kagermeier went out of his way to make sure that the letter received widespread circulation by faxing it to the local newspaper.  But it is not apparent how this evidence demonstrates ill will, improper motives, or intent to injure Roberts.  As mayor of Mankato, Kagermeier was contacted by people who were concerned about the future of a university program that used an airport owned by the City of Mankato.  In response, Kagermeier wrote a letter to the president of the university and made the letter available to the public by also sending it to the local newspaper.  We see no genuine fact issue regarding malice that prevents us from concluding that Kagermeier is entitled to a qualified privilege for any statement he made in the letter.

III.

            Roberts argues that the district court erred in granting summary judgment on Roberts’ tortious-interference-with-contract claims against Thunderbird, its president, NSA, its manager, and a consultant. 

            After NSA gave notice that it would not renew its contract to provide flight services for the university’s aviation program, the university chose Thunderbird as its replacement.  Roberts, along with other aviation faculty, opposed Thunderbird’s proposal.  Roberts’ claim of interference with contract is based on the theory that MSUM suspended him at the urging of those who supported Thunderbird’s proposal.

            Roberts contends that evidence that (1) Cummings, as the representative of both NSA and Thunderbird, spoke with Boubel about suspending faculty, and (2) after Roberts was suspended, MSUM offered to stay the sanctions against him in exchange for his support of the contract with Thunderbird, establishes a fact issue that precludes summary judgment.

            “A cause of action for wrongful interference with a contractual relationship requires:  (1) the existence of a contract; (2) the alleged wrongdoer’s knowledge of the contract; (3) intentional procurement of its breach; (4) without justification; and (5) damages.”  Kjesbo v. Ricks, 517 N.W.2d 585, 588 (Minn. 1994) (quotation omitted).

            “Upon a motion for summary judgment . . . the adverse party cannot preserve his right to a trial on the merits merely by referring to unverified and conclusionary allegations in his pleading or by postulating evidence which might be developed at trial.”  Rosvall v. Provost, 279 Minn. 119, 124, 155 N.W.2d 900, 904 (1968).  “He must instead present specific facts showing a genuine issue for trial.”  Id.

            The evidence that Roberts cites does not create a fact issue that precludes summary judgment.  The evidence that Cummings spoke with Boubel about suspending faculty does not indicate that Boubel did anything in response to Cummings’ statements.  And it is not apparent how evidence that MSUM offered to stay the sanctions against Roberts supports a claim that the non-MSUM defendants procured a breach of Roberts’ contract.

            The undisputed evidence indicates that Roberts was placed on a 30-day unpaid suspension following an audit that determined that Roberts had misrepresented his authority, created conflicts of interest, and misused university assets.  Boubel explicitly denied that any non-MSUM defendants influenced her decision with respect to Roberts, and the evidence that Roberts cites does not create a genuine issue of material fact regarding whether the non-MSUM defendants caused Boubel to take the actions that she took and thereby procured a breach of Roberts’ contract.  The non-MSUM defendants were entitled to summary judgment as a matter of law.

IV.

            Roberts next argues that summary judgment was premature because the court decided the motions before discovery was completed.

            The initial scheduling order required discovery to be completed by October 31, 2002, and all parties complied with this deadline.  Respondents moved for summary judgment, and the hearing was held on December 10, 2002.  On January 9, 2003, the university fired Roberts.  While decision on the summary-judgment motions was pending, Roberts moved to extend the discovery deadline, but he did not move for a continuance of the decision on the pending summary-judgment motions.

            On February 10, 2003, the district court granted Roberts’ motion for additional discovery, but limited discovery “to events that have occurred subsequent to the dates of deposition of potential witnesses.  Moreover, the scope of discovery shall be limited to events affecting the termination of [Roberts’] employment.”  The court set the new deadline for March 10, 2003.  Also on February 10, 2003, the district court granted summary judgment on all counts except the defamation action against the university.

            Roberts now argues that because the district court issued its summary-judgment order at the same time that his motion for additional discovery was granted, he was precluded from carrying out discovery.  But Roberts did not seek a continuance of the pending summary-judgment motions, and he may not seek this relief for the first time on appeal.  Thiele, 425 N.W.2d at 582.  Furthermore, the additional discovery that he was granted was limited to matters relating to his termination, and he has no claims in his lawsuit based on his termination. 

V.

            Roberts contends that his due-process rights were violated when he was suspended with pay and later terminated.  The district court held that the issue was premature because Roberts was engaged in arbitration and that Roberts did not present factual issues as to whether MSUM failed to provide him with the process that was due.

            Because the claims related to Roberts’s termination were not included in his complaint, they are not properly before us.  Further, a suspension with pay does not invoke the protection of the Due Process Clause.  See Townsend v. Vallas, 256 F.3d 661, 676 (7th Cir. 2001) (suspension from tenured position with pay does not trigger protection of Due Process Clause).

VI.

            Roberts contends that the district court did not address his substantive-due-process claim.  Roberts never raised a claim based on violation of substantive due process, and, therefore, he has waived any right to raise the issue on appeal.  Thiele, 425 N.W.2d at 582.  Roberts also failed to show any material fact as to the claimed violation.  See Young v. City of St. Charles, 244 F.3d 623, 628 (8th Cir. 2001) (describing substantive due-process claims).

VII.

            Roberts challenges the district court’s award of cost and disbursements, which awarded all costs and disbursements sought by respondents except two small amounts for mileage and parking incurred after the last deposition.  “In every action in a district court, the prevailing party . . . shall be allowed reasonable disbursements paid or incurred . . . .”  Minn. Stat. § 549.04 (2002).  The party seeking disbursements must state them in detail, verified by an affidavit.  Minn. R. Civ. P. 54.04.  One who objects must specify the objections in writing.  Id.  The district court’s award of disbursements is reviewed under an abuse-of-discretion standard.  Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998); Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 495 (Minn. 1984).  “The standard by which the court’s discretion is measured is whether the expenditures are reasonable.  Therefore, absent a specific finding that the costs were unreasonable, the court shall approve recovery of disbursements.”  Jonsson v. Ames Constr., Inc., 409 N.W.2d 560, 563 (Minn. App. 1987), review denied (Minn. Sept. 30, 1987).

            Roberts contends that the district court abused its discretion in awarding the costs without making findings or adequately evaluating their reasonableness.  See, e.g., Ill. Farmers Ins. Co. v. Brekke Fireplace Shoppe, Inc., 495 N.W.2d 216, 222 (Minn. App. 1993) (reversing and remanding where district court failed to conduct a hearing or make specific findings on objections to costs and disbursements).  Specifically, Roberts objects to the award of deposition costs for all 14 depositions taken.  Roberts contends that in light of the defendant’s joint-defense arrangement, the district court erred in overlooking the excessive, cumulative, and duplicative nature of the four separate depositions that were taken of him.  He also challenges the award for transcripts of his wife’s depositions even though he represented on the record that she was soon to be dismissed as a party, and her testimony was not used at all in the proceedings. 

            It is within the district court’s discretion to award costs for depositions.  Reichert v. Union Fid. Life Ins. Co., 360 N.W.2d 664, 668 (Minn. App. 1985).  “The fact that a deposition was not used at trial does not bar deposition costs.”  Johnson v. S. Minn. Mach. Sales, Inc., 460 N.W.2d 68, 73 (Minn. App. 1990). 

            The district court explained in the memorandum accompanying the award that “[t]he [respondents] submitted a joint statement of facts along with their separate arguments, to reduce the amount of paperwork filed with the Court.”  The court concluded that this did not amount to a coordinated or collusive defense as Roberts contends.  With respect to multiple copies of Roberts’ depositions, the court explained  that “this is not a situation where each attorney has ordered five copies of [Roberts’] deposition.  Each attorney has billed for one copy of the transcript for each deposition [Roberts] testified at.”  With respect to the transcript for Roberts’ wife’s deposition, the court explained that “she was once a Plaintiff in this case, and it is likely her transcript would have been used had she not been removed as a party.” 

            Roberts also disputes the award of copying costs to all respondents except the state, which did not request them.  He contends that the costs were for producing copies of documents for both him and other parties, although he never requested that copies be made or agreed to costs.  See Minn. R. Civ. P. 34.02 (documents to be produced for inspection). Miscellaneous costs and disbursements consisting of things such as photocopying, phone calls, and parking may be reimbursed in the court’s discretion if they are reasonable and necessary.  Stinson v. Clark Equip. Co., 473 N.W.2d 333, 338 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991).

            With respect to copying costs, the district court found that Roberts conceded that this case involved a massive amount of document production; that had Roberts wished to make special arrangements with various defendants to reduce the costs of photocopying documents, it was his obligation to do make that intention known.

            The district court’s memorandum contains sufficient findings and explanation to demonstrate that the court adequately evaluated the reasonableness of the costs and disbursements awarded to respondents.  Roberts has not shown that the court abused its discretion in awarding costs and disbursements to the respondents.

            Affirmed.