This opinion will be unpublished and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

A03-1176

 

 

George W. Hawkins,

Appellant,

 

vs.

 

Al DeRuyter,

Respondent,

Douglas P. Seaton,

Respondent.

 

 

Filed June 15, 2004

Affirmed

Anderson, Judge

 

Hennepin County District Court

File No. 01-16545

 

Gregg J. Cavanagh, 13277 94th Avenue North, Maple Grove, MN  55369 (for appellant)

 

David J. Duddleston, Natalie Wyatt-Brown, Jackson Lewis LLP, 150 South Fifth Street, Suite 2800, Minneapolis, MN  55402 (for respondent DeRuyter)

 

Paul C. Peterson, William L. Davidson, Sarah E. Morris, Lind, Jensen, Sullivan & Peterson, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN  55402 (for respondent Seaton)

 

            Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Stoneburner, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            In August 2001, appellant instituted an action against respondents for libel, slander, tortious interference with contract, and tortious interference with prospective economic advantage.  The district court granted respondents’ motions for summary judgment.  Appellant appeals from that judgment.  We affirm.

FACTS

 

The Minnesota chapter of the Associated Builders and Contractors, Inc. (Minnesota ABC) is part of a national trade association.  From 1989 until 2001, appellant George Hawkins served as the Executive Director of Minnesota ABC.  Respondent Douglas Seaton served as chapter counsel to Minnesota ABC from 1983 until the date of trial.  Respondent Al DeRuyter is a member of Minnesota ABC and served on the company’s board of directors and executive committee from 1995 until 2001. 

            In November 2000, DeRuyter and Colleen Donovan, another member of Minnesota ABC’s board of directors, sent a letter, drafted by Seaton, to Robert Halagan, an attorney not associated with Minnesota ABC.  The letter sought advice regarding Minnesota ABC’s potential exposure to legal claims if Hawkins’ behavior toward female employees created a hostile work environment at Minnesota ABC.  The November 2000 letter paraphrased several former employees’ complaints about Hawkins’ behavior.  Halagan ultimately concluded, in a December 2000 opinion letter responding to the November 2000 letter, that if the allegations in the November 2000 letter were accepted as true then “it would appear that a pattern does exist of hostile behavior [by Hawkins] towards women.”       

At the January 2001 board meeting DeRuyter presented the November 2000 and December 2000 letters to the board of directors of Minnesota ABC.  Both Seaton and DeRuyter summarized the contents of the letters to the board.  But, before the January board meeting, Hawkins contacted the San Diego chapter of ABC to apply for a position as an Executive Vice President.  He interviewed for the position seven days before the January board meeting, and two days after the meeting Hawkins received an offer of employment with San Diego ABC.

            In August 2001, Hawkins instituted an action against DeRuyter and Seaton alleging libel, slander, tortious interference with contract, and tortious interference with prospective economic advantage.  The district court ordered summary judgment in favor of DeRuyter and Seaton in June 2003.  Hawkins appeals.

D E C I S I O N

 

Standard of Review

 

            On appeal from summary judgment, we review the record to answer two questions: (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted).  Summary judgment is appropriate when there are no genuine issues of material fact and either party is entitled to judgment as a matter of law.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  A genuine issue of material fact exists when the nonmoving party presents evidence that creates doubt about a factual issue that is both probative to an essential element of the nonmoving party’s case and that would permit a reasonable person to draw a different conclusion.  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  This court reviews “the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio, 504 N.W.2d at 761 (citation omitted).

I.

            Hawkins argues that the district court erred when it ordered summary judgment in favor of DeRuyter and Seaton on Hawkins’ claim of tortious interference with contract.  We disagree.  To prove tortious interference with contract, Hawkins must show: (1) the existence of a contract; (2) respondents’ knowledge of the contract; (3) respondents’ intentional procurement of a breach of the contract; (4) absence of justification; and (5) damages caused by the breach.  Kjesbo v. Ricks, 517 N.W.2d 585, 588 (Minn. 1994) (citation omitted).

            Here, summary judgment was appropriate because Hawkins cannot prove that Seaton and DeRuyter intentionally procured the breach of Hawkins’ contract with Minnesota ABC.  It is undisputed that Hawkins voluntarily left his position at Minnesota ABC for a different job only two days after the January board meeting where the alleged interference occurred. 

            Hawkins argues that, although Minnesota ABC did not terminate his employment, he was constructively discharged from employment because of the conduct of Seaton and DeRuyter.  But, a constructive discharge occurs when the employee leaves employment in order to escape intolerable working conditions created by the employer.  See Navarre v. S. Washington County Schs., 652 N.W.2d 9, 32 (Minn. 2002) (discussing the theory of constructive discharge).  Here, Hawkins failed to produce evidence he left his position at Minnesota ABC in order to escape intolerable working conditions.  Because Hawkins voluntarily left his position at Minnesota ABC, and because he cannot prove he was constructively discharged from Minnesota ABC, he cannot prove the third element of his claim for tortious interference with contract—that DeRuyter and Seaton procured the breach of his employment contract.  The district court properly dismissed by way of summary judgment Hawkins’ claim for tortious interference with contract.  See Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994) (concluding that summary judgment is appropriate when a party who bears the burden of establishing an essential element of the claim cannot bear that burden).

II.

            Hawkins argues that the district court erred when it ordered summary judgment in favor of DeRuyter and Seaton on Hawkins’ claim of tortious interference with prospective contractual relations.  We disagree.  To prove tortious interference with prospective contractual relations, Hawkins must prove: (1) that respondents intentionally and improperly committed a wrongful act; (2) that act interfered with Hawkins’ prospective contractual relationship; and (3) Hawkins suffered pecuniary harm.  See United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628, 632-33 (Minn. 1982). 

            Here, even if Hawkins could prove that DeRuyter and Seaton committed intentional and improper actions that were wrongful, he cannot show that those actions interfered with his prospective contractual relationship with Minnesota ABC or resulted in pecuniary harm.  Hawkins voluntarily terminated his employment relationship with Minnesota ABC by resigning from his position, only two days after the January board meeting, to join San Diego ABC.  Therefore, because Hawkins cannot prove the elements for tortious interference with prospective contractual relations, summary judgment was appropriate, and the district court did not err by ordering judgment in favor of Seaton and DeRuyter.  See Lloyd, 523 N.W.2d at 3.

III.

            Hawkins claims that the district court erred when it determined on summary judgment that the November 2000 letter was protected by the attorney client-privilege, was not published beyond the protection of that privilege, and could not therefore support a claim for defamation.  We disagree.  The elements of a defamation action are: “(1) [t]he alleged writing must be communicated to someone other than the plaintiff; (2) the writing must be ‘false’ and; (3) it must tend to harm the plaintiff’s reputation and to lower him in the estimation of the community.”  Woody v. Krueger, 374 N.W.2d 822, 824 (Minn. App. 1985) (citations omitted).

            The district court determined that the allegations in the November 2000 letter were true or substantially true, but that, even if the statements were not substantially true as a matter of law, they were “protected by the attorney-client privilege and [were] not published beyond the protection of that privilege.”  The district court concluded that, because the November 2000 letter was not published beyond the officers, directors, and counsel of Minnesota ABC, the contents of the letter were protected by the attorney-client privilege.  In discussing the scope of what constitutes “communication to someone other than the plaintiff” in defamation actions, we have determined that “advice given a client by an attorney in the course of his professional duty . . . is protected by the attorney-client privilege.”  Woody, 374 N.W.2d at 824.  Privileged attorney-client communications may not be used to satisfy the publication element of a defamation claim.  Id. 

            Here, DeRuyter and Donovan approached Seaton, the chapter counsel to Minnesota ABC, seeking his assistance in drafting a letter to outside counsel for an opinion about the liability posed by Hawkins’ alleged behavior towards female employees at Minnesota ABC.  Hawkins does not challenge Seaton’s assertion that Seaton was chapter counsel to Minnesota ABC, nor does Hawkins claim that DeRuyter was not a member of the board of Minnesota ABC when the allegedly defamatory letter was sought, drafted, and discussed at the board meeting.  Further, Hawkins does not deny that the only people present at the board meeting where the November 2000 letter was discussed were himself, the members of the board, and the chapter counsel of Minnesota ABC.  Because the November 2000 letter was only communicated to Hawkins, counsel retained on behalf of the board of Minnesota ABC,[1] the board of Minnesota ABC, and chapter counsel of Minnesota ABC, we conclude that no publication of the allegedly defamatory material occurred.  See id. at 824 (stating that communications between attorney and client board of directors does not constitute publication of allegedly defamatory material to support a defamation claim).  

            Because we conclude that the attorney-client privilege applies to the November 2000 letter, and that no publication occurred here, we conclude the district court properly granted summary judgment in favor of DeRuyter and Seaton on Hawkins’ defamation claim.  See Lloyd, 523 N.W.2d at 3 (concluding summary judgment is appropriate when a party who bears the burden of establishing an essential element of the claim cannot bear that burden).  Because we so conclude, we need not reach Hawkins’ remaining claims.

            Affirmed.



[1] Hawkins also argues that DeRuyter and Seaton did not have the authority to hire outside counsel on behalf of the board, and therefore, the November 2000 letter is not protected by the attorney-client privilege.  But Hawkins’ assertion merely argues in the negative that because Minnesota ABC’s bylaws do not specifically permit individual board members and chapter counsel the authority to seek outside legal opinion, that authority does not exist.  We find this reasoning unpersuasive; in the absence of a specific prohibition, we conclude that Hawkins has not established that DeRuyter and Seaton lacked the authority to hire outside counsel on behalf of the board of Minnesota ABC.