This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
City of Moose Lake, et al.,
Thomas Michael Cich,
Affirmed in part, reversed in part, and remanded
Carlton County District Court
File Nos. C5-01-681, C3-02-57
Thomas M. Skare, Skare Law
Patricia Y. Beety, League of
James W. Balmer, Falsani, Balmer, Peterson & Quinn, 1200 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for respondent Robin Schroenrock)
John D. Kelly, Kenneth A. Kimber; Hanft Fride, A Professional Association, 130 West Superior Street, Suite 1000, Duluth, MN 55802 (for Thomas Michael Cich)
Considered and decided by Minge, Presiding Judge; Wright, Judge; and Poritsky, Judge.*
Following his discharge from employment with the
Moose Lake Police Department, appellant Patrick Longbehn initiated a lawsuit in
which he brought tort and employment claims against respondents
On appeal, Longbehn argues that the district court erred by (1) granting summary judgment on the claims against the City and Heaton; (2) denying his motion for a new trial; (3) denying his motion for a continuance or mistrial due to the absence of a witness; and (4) dismissing with prejudice the claims against Cich and Schoenrock. We affirm in part, reverse in part, and remand.
Appellant Patrick Longbehn was hired by the Moose Lake Police Department as a full-time police officer on May 28, 2000. At the time, Longbehn was 34 years old. Longbehn began residing with an 18-year-old woman in September 2000.
of Longbehn’s friends, Brian Collins and Charles Wilson, attended a party in
Longbehn met with respondent Police Chief Dale Heaton on the evening of January 24, 2001. During their conversation, Heaton explained that community members had questioned Longbehn’s reputability because of his relationship with the 18-year-old woman. Heaton added that some members of the community referred to Longbehn as “Pat the Pedophile.”
When Longbehn reported to work on January 25, 2001, Heaton advised Longbehn that he was discharged from employment. When Longbehn inquired as to the basis for the discharge, Heaton replied that city officials had made the decision because of Longbehn’s loss of credibility in the community. Heaton also cited several citizen complaints that contributed to the decision to discharge.
During an employment background check on Longbehn in April 2001, the St. Paul Police Department contacted the Duluth Police Department. Ann Brooks, a secretary at the Duluth Police Department, was asked by a supervisor to collect some information on Longbehn. Longbehn alleges that, while carrying out this assignment, Brooks was contacted by respondent Thomas Cich, a retired officer from the Duluth Police Department. In a deposition, Brooks related the substance of their conversation as follows:
Q: What did Tom Cich tell you?
A: He just was making a comment that Mr. Longbehn was involved in, how did he word it, furnishing alcohol to a minor and I—and I’m trying to remember. I think he said something about pedophile . . . .
Brooks relayed Cich’s statements to the St. Paul Police Department.
Longbehn sued the City, Heaton, and Schoenrock on May 30, 2001. The complaint included claims of defamation; age discrimination; improper, wrongful, and retaliatory termination; negligent and intentional infliction of emotional distress; and violation of the Peace Officer Discipline Procedures Act.
The City and Heaton moved for summary judgment. They asserted that, because the City’s termination decision was an administrative decision subject to certiorari review, the district court lacked authority to consider the wrongful termination claim. With respect to the defamation claim, the City and Heaton maintained that any objectionable statements were subject to a qualified privilege. The City and Heaton also argued that there were no genuine issues of material fact as to Longbehn’s other claims. In his responsive memorandum, Longbehn conceded that summary judgment was proper on the claims of age discrimination and retaliatory discharge. The district court granted summary judgment in favor of the City and Heaton, concluding that, because the decision to terminate Longbehn was an administrative decision subject to certiorari review, it lacked authority to entertain any claims against those parties.
On January 14, 2002, Longbehn sued Thomas
Cich for defamation. The cases against
Cich and Schoenrock were consolidated and proceeded to trial. Cich testified that he had contacted Brooks
about Longbehn, but he denied stating that Longbehn was a pedophile.
Longbehn intended to call Brooks to testify on August 14, but she failed to appear. In light of Brooks’s absence, Longbehn moved to admit Brooks’s deposition, or in the alternative, for a continuance or mistrial. Cich objected to the admission of the deposition because it had been taken before the action against him had commenced. Both Cich and Schoenrock then moved to dismiss. The district court excluded the deposition. Because it was not feasible for the district court or counsel to determine Brooks’s availability for a future trial date, the district court also denied a continuance. The remaining motions for mistrial or dismissal were taken under advisement.
In a letter brief, Longbehn clarified his motion and requested a new trial. The district court subsequently denied the motions for mistrial and a new trial and dismissed with prejudice the claims against Cich and Schoenrock. This appeal followed.
Longbehn raises several challenges
to the district court’s grant of summary judgment for the City and Heaton. Summary judgment is appropriate when the
nonmoving party fails to establish a genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.
review summary judgment de novo, viewing the evidence in the light most
favorable to the nonmoving party.
Longbehn asserts that the district court incorrectly determined that it lacked authority to entertain the claims against the City and Heaton. The district court concluded that, because a unit of the executive branch made the decision to discharge, the principle of constitutional separation of powers compelled judgment in favor of the City and Heaton. Two recent cases of the Minnesota Supreme Court have discussed the parameters of this doctrine.
Dietz v. Dodge County, 487 N.W.2d 237, 238 (
prevent undue interference by the district courts in the discharge decision,
the Dietz court disallowed district
court review of the discharge decision, noting that such action would result in
“scrutiny that runs a grave risk of usurping the [executive branch’s]
accordance with Dietz, the Willis
court held that a statutory cause of action could proceed in district court.
provides two general limitations on the requirement that a discharged employee
seek relief by certiorari appeal. First,
when tort actions arise out of different facts from those of the discharge and,
therefore, do not require judicial review of the decision to discharge, such
actions may proceed in district court. See
Here, Longbehn had claims against the City and Heaton for defamation, wrongful termination, negligent and intentional infliction of emotional distress, and violation of the Peace Officer Discipline Procedures Act. Because the wrongful termination claims would require scrutiny of the City’s discharge decision, they cannot be brought in district court. See Willis, 555 N.W.2d at 282. Thus, the district court correctly concluded that it lacked authority to decide these claims.
claims for defamation and negligent and intentional infliction of emotional
distress, however, do not require an inquiry into the City’s discharge
decision. See, e.g., id. (defamation);
The district court, relying solely on Dietz, concluded that Longbehn had no action for negligent or intentional infliction of emotional distress. This conclusion may have been based on the facts of Dietz in which a county employee sought damages for mental anguish. But Dietz does not explicitly state whether the employee brought any tort claims, and the Minnesota Supreme Court did not otherwise bar such claims. Dietz, 487 N.W.2d at 239. Because Willis recognizes that tort claims may proceed for reasons unrelated to employment discharge, Longbehn is entitled to proceed with his defamation and emotional distress claims.
The remaining claim is based on violation of the Peace Officer Discipline Procedures Act (PODPA), which provides in relevant part:
[A] political subdivision or state agency that violates this section is liable to the officer for actual damages resulting from the violation, plus costs and reasonable attorney fees. The political subdivision or the state is deemed to have waived any immunity to a cause of action brought under this subdivision . . . .
Minn. Stat. § 626.89, subd. 16 (2004). This provision expressly creates a cause of action against the executive branch and, as such, indicates legislative intent to allow judicial inquiry into the affairs of the executive branch. See Willis, 555 N.W.2d at 283. Accordingly, the district court also erred in concluding that it lacked authority to hear this claim.
We next consider whether a genuine issue of material fact exists as to the PODPA claim and the claims that do not require an inquiry into the discharge decision. The outstanding tort claims are for defamation and intentional and negligent infliction of emotional distress.
To establish a claim for defamation,
the claimant must offer proof of a statement, communicated to someone other
than the claimant, that is false and that tends to harm the claimant’s
reputation and esteem in the community. Weinberger
Longbehn’s claim against Heaton arises out of the conversation the two had the evening before Longbehn was discharged. The record indicates that Heaton told Longbehn that others in the community referred to him as “Pat the Pedophile.” Because Heaton spoke with other city officials earlier that day, it may be inferred for the purpose of our analysis that Heaton relayed the same statement, which was attributable to others, not Heaton, to city officials.
Even when viewed in the light most favorable to Longbehn, the record does not establish that Heaton called Longbehn “Pat the Pedophile.” Rather, Heaton made a true statement, not disputed by Longbehn, that other community members were referring to Longbehn as “Pat the Pedophile.” Because this statement is substantially true, and because Longbehn does not allege any other defamatory statement by Longbehn or another city official, the City and Heaton are entitled to summary judgment on the defamation claim.
We next address the claim for
negligent infliction of emotional distress.
The claimant ordinarily must demonstrate exposure to physical danger
that caused reasonable fear for safety, which resulted in severe emotional
distress accompanied by physical manifestations. Wall v.
Because the record fails to establish defamation and Longbehn alleges no physical danger, Longbehn’s claim for negligent infliction of emotional distress is without any factual support. Summary judgment in favor of the City and Heaton was properly granted on this claim.
We now turn to the claim for
intentional infliction of emotional distress.
The claimant must demonstrate that a party intentionally or recklessly
engaged in extreme and outrageous conduct, which resulted in severe emotional
distress to the claimant accompanied by physical manifestations. Langeslag v. KYMN Inc., 664 N.W.2d
860, 864 (
The statements at issue here were made by Heaton to Longbehn regarding his job performance. Because such statements are not extreme and outrageous conduct, Longbehn failed to establish the existence of a genuine issue of material fact relating to his claim for intentional infliction of emotional distress. Thus, summary judgment on this claim was properly granted.
only remaining claim against the City and Heaton is an alleged violation of the
PODPA. When an officer is subject to
disciplinary action, the PODPA establishes certain procedures for taking a
formal statement from the officer. Minn.
Stat. § 626.89, subd. 3 (2004). A formal
statement is defined as “the questioning of an officer in the course of
obtaining a recorded, stenographic, or signed statement to be used as evidence
in a disciplinary proceeding against the officer.”
Longbehn claims that he was discharged without an opportunity to request an attorney or union representative. But when the record is viewed in the light most favorable to Longbehn, it fails to indicate that Heaton ever questioned Longbehn about disciplinary issues. Assuming for the purpose of our analysis that such questioning occurred, no statements were used against Longbehn in a disciplinary hearing, since his discharge was based entirely on complaints by citizens and city officials. Because Longbehn fails to establish that he provided a formal statement that was used against him in a disciplinary action, the district court did not err in granting summary judgment in favor of the City and Heaton on this claim.
Longbehn argues that the district court erred by failing to grant his motions for a mistrial, continuance, and a new trial. These motions all arose from Brooks’s absence at trial and the district court’s decision that Brooks’s deposition testimony was inadmissible in her absence. As a result, they share several common considerations.
motion for a new trial may proceed on the basis of an error of law occurring at
One basis for admission of a deposition at trial is found in Minn. R. Civ. P. 32.01, which provides in relevant part:
At the trial . . . any part or all of a deposition, so far as admissible under the Minnesota Rules of Evidence applied as though the witness were then present and testifying, . . . may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof in accordance with any one of the following provisions: . . .
(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . .
(4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena[.]
(Emphasis added.) Longbehn sought admission of Brooks’s deposition, in which Brooks purportedly relates a defamatory statement made by Cich about Longbehn. Longbehn does not assert that Brooks’s deposition has any relevance in the action against Schoenrock. At the time of the deposition, Cich was not a party to the action, and no other party had an incentive to protect Cich’s interests.
By its plain language, Rule 32.01 does not authorize the admission of a deposition against a party not represented at the deposition. Because Cich was not represented at Brooks’s deposition, Rule 32.01 does not authorize the admission of Brooks’s deposition in the case against Cich.
In the alternative, Longbehn seeks admission of the deposition under the hearsay
exceptions for an unavailable witness. A
statement is hearsay if it is made outside of court and is offered for the
truth of what it asserts.
Hearsay ordinarily is not admissible as evidence.
The district court has discretion to determine whether a party has made
reasonable efforts to procure the trial appearance of a witness. Spears v. State Farm Fire & Cas. Ins.,
725 S.W.2d 835, 839 (
The trial at issue here had been continued several times. The parties agree that Brooks had been subpoenaed for a previously scheduled trial date. But when the trial was rescheduled for August 13 and 14, Longbehn did not subpoena Brooks. Indeed, Longbehn admits that he relied on an informal agreement with Brooks that she would appear. On the day that Brooks was scheduled to testify, Longbehn learned through Brooks’s employer that she was out of the state on vacation.
Because Longbehn did not verify Brooks’s
whereabouts until the trial, it was reasonable for the district court to infer
that Longbehn did not undertake due diligence to secure Brooks’s appearance at
trial. By failing to subpoena Brooks for
the new trial date, Longbehn necessarily ran the risk of her failure to appear. See Roseberry v. Hart-Parr Co., 145
also claims that the deposition is admissible under the residual hearsay
exception. Because this argument was not
presented to or decided by the district court, this claim is waived. Thiele
v. Stich, 425 N.W.2d 580, 582 (
Longbehn challenges the district court’s denial of his motion for a new trial on several additional bases. Motions for a new trial are governed by Minn. R. Civ. P. 59.01, which provides in relevant part:
A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes:
(a) Irregularity in the proceedings of the court, referee, jury, or prevailing party, or any order or abuse of discretion, whereby the moving party was deprived of a fair trial; . . .
(c) Accident or surprise which could not have been prevented by ordinary prudence[.]
We review for an abuse of discretion a district court’s decision to grant or deny a new trial on any of these bases. Dostal, 679 N.W.2d at 194.
Longbehn also challenges the district court’s denial of his motion for a mistrial. Because a motion for a mistrial is, in
effect, a motion for a new trial in the midst of an ongoing trial, we apply the
same standard of review for denial of a mistrial as for denial of a new
trial. See Spinett, Inc. v. Peoples
Natural Gas Co., 385 N.W.2d 834, 840 (Minn. App. 1986) (applying new trial
standard to mistrial); see generally 23 Ronald I.
When a motion for a new trial is based on an irregularity in the proceedings, the movant must show that an irregularity, not constituting an error of law, resulted in an unfair trial. Boschee v. Duevel, 530 N.W.2d 834, 840 (Minn. App. 1995), review denied (Minn. June 14, 1995). Such irregularity may arise out of the presentation of arguments or evidence; the conduct, selection, or instruction of jurors; or the conduct of the district court. See, e.g., Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 47-48 (Minn. 1997) (prejudicial statement by district court as to pivotal fact); Brooks Realty, Inc. v. Aetna Ins. Co., 276 Minn. 245, 249-50, 149 N.W.2d 494, 497-98 (1967) (recanted testimony from witness); Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 329-30, 104 N.W.2d 301, 304 (1960) (prejudicial closing statement).
Longbehn contends that the district court’s exclusion of Brooks’s deposition resulted in an irregularity in the proceedings. But this argument asserts an error of law based on the district court’s evidentiary ruling rather than an irregularity in the proceedings. The district court did not abuse its discretion by excluding Brooks’s deposition. Thus, Longbehn cannot assert that the exclusion of this evidence is an unfair irregularity in the proceedings. The district court’s denial of the motion for a new trial on the basis of an irregularity in the proceedings was proper.
Longbehn also seeks a new trial on
the basis of accident or surprise. A
motion for a new trial may proceed on this basis when the movant does not
fairly anticipate an event at trial. Schiro
v. Raymond, 237
Longbehn counters that the district court improperly considered the cost
and inconvenience of a new trial when it denied the motion. A motion for a new trial may be granted only on
the bases stated in Rule 59.01. Bowman
v. Pamida, Inc., 261 N.W.2d 594, 596-97 (
Longbehn also argues that the district court should have granted a
continuance in order to ensure the appearance of Brooks. When a district court denies a continuance at
trial, we review for a clear abuse of discretion. Dunshee v. Douglas, 255 N.W.2d 42, 45
When a party is aware of a witness
prior to trial but fails to procure the attendance of the witness at trial, the
district court may properly deny a continuance to procure the witness. Roseberry, 145
Longbehn challenges the district
court’s dismissal, with prejudice, of the remaining tort claims against Cich
and Schoenrock. When the plaintiff has completed the
presentation of the evidence, the defendant may move to dismiss a claim on the
ground that, upon application of the law to the facts, the plaintiff has failed
to establish a right to relief.
An action for defamation requires
the claimant to include the alleged defamatory statement in the complaint, even
if the statement appears elsewhere in the record. Am. Book Co. v. Kingdom Pub. Co., 71
As discussed above, a defamation claim requires a statement communicated
to someone other than the claimant that is false and that tends to harm the
claimant’s reputation and esteem in the community. Weinberger, 668 N.W.2d at 673. A statement is defamatory per se, requiring
no proof of special damages, when the harm to a claimant’s reputation may be
implied as a matter of law. Ernster
v. Eltgroth, 149
In the action against Shoenrock,
The only remaining claims are against Schoenrock for negligent and intentional infliction of emotional distress. To establish a claim for negligent infliction of emotional distress, the plaintiff must demonstrate exposure to physical danger, causing reasonable fear for one’s safety, which resulted in severe emotional distress with accompanying physical manifestations. Wall, 584 N.W.2d at 408. Proof of another intentional tort, such as defamation, may substitute for the element requiring presence in a zone of physical danger. Oslin, 543 N.W.2d at 417.
with our earlier analysis, the defamation claim against Schoenrock
survives. Thus, the outstanding issue is
whether Longbehn has offered sufficient proof of severe emotional
distress. Although this claim
ordinarily requires that the claimant suffer physical manifestations of
emotional distress, such physical manifestations are not required when the
claim proceeds on a theory of defamation.
Covey, 490 N.W.2d at 144; see alsoState
Farm Mut. Auto. Ins. Co. v. Vill. of Isle, 265
When viewed in the light most favorable to Longbehn, the record indicates that Longbehn suffered loss of esteem resulting in depression for which he ultimately was hospitalized. Because a physical manifestation of his emotional distress is not required, this evidence is sufficient. Thus, the district court erred in dismissing Longbehn’s claim against Schoenrock for negligent infliction of emotional distress. Accordingly, we reverse the district court’s dismissal of this claim and remand for further proceedings.
On the claim against Shoenrock for intentional infliction of emotional distress, Longbehn must demonstrate that Shoenrock intentionally or recklessly engaged in extreme and outrageous conduct, which resulted in severe emotional distress with accompanying physical manifestations. See Langeslag, 664 N.W.2d at 864. Claims for intentional infliction of emotional distress are disfavored and are limited to those instances when “the emotional distress is so severe that no reasonable person could be expected to endure it.” Mrozka v. Archdiocese of St. Paul & Minneapolis, 482 N.W.2d 806, 813-14 (Minn. App. 1992), review denied (Minn. May 24, 1992).
v. Thorne, 490 N.W.2d 908, 910-11 (
Affirmed in part, reversed in part, and remanded.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 The parties have devoted substantial argument on appeal to whether Longbehn was a probationary employee at the time of his discharge. Because this issue requires inquiry into the basis for the City’s discharge decision, the district court lacked authority to decide it. See Dietz, 487 N.W.2d at 240. As a result, we are precluded from considering this issue on appeal.
 The district court, relying solely on Dietz, concluded that Longbehn had no action for negligent or intentional infliction of emotional distress. This conclusion may have been based on the facts of Dietz, in which a county employee sought damages for mental anguish. But Dietz does not explicitly state whether the employee brought any tort claims, and the Minnesota Supreme Court did not otherwise bar such claims. Dietz, 487 N.W.2d at 239. Because Willis recognizes that tort claims may proceed for reasons unrelated to employment discharge, Longbehn is entitled to proceed with his defamation and emotional distress claims here.
 In the December 8, 2003 order dismissing the claims against Cich and Schoenrock with prejudice, the district court stated, “Defendant’s [sic] motion to dismiss the case, on the merits, is hereby granted.” Based on this error, Longbehn argues that the district court purposefully overlooked the claim against Cich. But the order was served and filed in the action against Cich. Moreover, Longbehn did not appeal from the December 8, 2003 order. Rather, he appealed from the May 28, 2004 judgment. In the April 15, 2004 order predating entry of judgment, the district court expressly dismissed the claims against both Cich and Schoenrock. On the record before us, we conclude that the district court dismissed the claim against Cich with prejudice.