This opinion will be unpublished and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
Malcolm W. Prinzing,
Grace Stabell Schwab,
Freeborn County District Court
File No. C3-02-1505
Randall D.B. Tigue, Randall Tigue Law Office, P.A., 3960 Minnehaha Avenue South, Suite 100, Minneapolis, MN 55406 (for appellant)
Frederic W. Knaak, Knaak & Kantrud, P.A., 3500 Willow Lake Boulevard, Suite 800, Vadnais Heights, MN 55110 (for respondent)
Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Crippen, Judge.*
After finding that appellant had defamed respondent, a state senator, by posting signs accusing her of stealing, a jury awarded damages. Appellant now argues that (1) his statements were not defamatory because they were true; (2) the evidence was insufficient to establish actual malice; and (3) the damages award is excessive. We affirm.
On November 5, 2001, respondent Grace Schwab saw an eight-foot by eleven-foot sign in the parking lot of Northridge Mall in Albert Lea. The sign urged area residents to vote against a proposed school referendum the next day. Schwab, a state senator who supported the referendum, stopped at the mall to speak with the manager about whether the sign reflected the views of the mall merchants. The mall manager, concerned that shoppers might attribute the views on the sign to the mall, decided “to change the message so that it was neutral until we found who it belonged to and how to get it removed.” The mall manager and Schwab removed most of the letters from the sign so as to change the message to a politically neutral one. The mall manager then stored the letters at the mall.
Appellant Malcolm Prinzing, who had parked the sign in the parking lot, was advised about the removal of the letters by a friend who had seen Schwab and the mall manager altering the sign. Prinzing called the local police to report the incident. An officer went to the mall, spoke with the mall manager, and returned Prinzing’s letters to him a few hours later. Prinzing moved the sign later that day.
Prinzing requested that the police pursue
the prosecution of Schwab for theft. The
Almost a year after the letters were removed, during Schwab’s fall 2002 reelection campaign, Prinzing placed several signs around Schwab’s district accusing her of theft. The signs included the following messages: “Grace Schwab took letters from sign; I call it stealing; will U vote 4 a thief?”; “Ok to steal if your [sic] a state senator right Gracie? How will U vote Nov. 5?”; and “Grace Schwab stop the spin; you are the thief; I am the victim.” Prinzing also employed the use of an airplane banner at a campaign event where Schwab was speaking. The banner accused Schwab of being a thief. Schwab lost her reelection bid.
On October 30, 2002, Prinzing filed suit against Schwab, alleging conversion of the letters removed from the parking lot sign. Schwab counterclaimed, alleging defamation. The matter proceeded to a jury trial. The jury found that Schwab had not converted Prinzing’s property. But the jury found that Prinzing had defamed Schwab and awarded her $150,000 in damages. Prinzing moved for judgment notwithstanding the verdict, remittitur, or a new trial. After the district court denied the motion, Prinzing appealed.
be defamatory, a statement about a public figure (1) must be communicated with
actual malice to someone other than the public figure, (2) must be false, and (3) must
cause harm to the public figure’s reputation.
Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (
the jury’s special verdict that Prinzing’s statements about Schwab were false,
Prinzing urges us to review the record and find that Schwab indeed committed
theft. We “will not set aside a jury verdict on an appeal from a district court’s denial of a motion for a new trial unless it is
manifestly and palpably contrary to the evidence viewed as a whole and in the
light most favorable to the verdict.” Navarre v. S. Washington County Sch.,
652 N.W.2d 9, 21 (
record supports the jury’s finding that Prinzing’s statements were false. The jurors heard uncontested evidence that Schwab
was never charged with or prosecuted for theft and that the local police chief
advised Prinzing that Schwab’s actions did not constitute theft. Indeed, Schwab’s testimony establishes that
she did not possess the requisite intent to commit theft. The only evidence that might support a theory
that Schwab committed theft was her admission that she removed some of the letters
from Prinzing’s sign and gave them to the shopping-mall manager. Without more, however, a reasonable juror
could conclude that this brief physical contact with Prinzing’s property was
insufficient to constitute theft under
When the plaintiff in a defamation action is a public figure, “an essential element of the plaintiff’s claim is clear and convincing proof of actual malice . . . .” Jadwin,367 N.W.2d at 480. Prinzing maintains that Schwab did not meet her burden of proving actual malice.
constitutional requirement that a public-figure plaintiff prove actual malice reflects
the high value placed on the ability to discuss freely the character and
qualifications of candidates for public office.
New York Times Co., 376
Schwab did not argue that Prinzing had actual knowledge that his statements were
false. Rather, she relied on evidence of
“reckless disregard” of the statements’ falsity. While noting that reckless disregard “cannot
be fully encompassed in one infallible definition,” the United States Supreme
Court has provided guidance for the application of this standard. St.
Amant v. Thompson, 390
Minnesota Supreme Court has consistently cited this language from St. Amant as the touchstone for its
reckless-disregard jurisprudence, stating recently that reckless disregard
“requires that a defendant make a statement while subjectively believing that
the statement is probably false.” Chafoulias v. Peterson, 668 N.W.2d 642, 655 (
Although procedurally this
case comes to us after the district court denied Prinzing’s motions for a new
trial and judgment notwithstanding the verdict, the constitutional concerns
inherent in an action for defamation of a public figure require us to apply a
less deferential standard of review than ordinarily applicable given this
procedural posture. See Bose Corp. v. Consumers
Union, 466 U.S. 485, 499, 104 S. Ct. 1949, 1959 (1984) (“The New York Times rule emphasizes the need
for an appellate court to make an independent examination of the entire record . .
. .”). Thus, we review de novo whether
the evidence in the record is sufficient to support a finding of actual
malice. Chafoulias, 668 N.W.2d at 655.
But we nevertheless give due regard to the jury’s credibility
assessments made after observing the witnesses at trial. Harte-Hanks
Commc’ns, Inc. v. Connaughton, 491
Prinzing testified that,
when he posted his signs throughout Schwab’s senate district, he subjectively believed
that he was the victim of a theft. Although
reckless disregard is a subjective standard, this element does not require a
fact-finder to consider only the defendant’s testimony as evidence. The fact-finder may assess a defendant’s
credibility by considering evidence that the statement is fabricated, is a
product of the defendant’s imagination, or is so inherently improbable that
only a reckless person would publish it, or by considering evidence of obvious
reasons to doubt the veracity of a statement.
Id. Thus, when a defendant’s testimony as to his
subjective beliefs simply is not credible, the fact-finder is free to
disbelieve the testimony and draw a contrary conclusion. Bose
The jury awarded Schwab $100,000 in damages for past harm and $50,000 in damages for future harm from the defamatory statements. Prinzing argues that this award is excessive and necessitates remittitur or a new trial.
will not disturb an award of damages “unless [our] failure to do so would be
shocking or would result in plain injustice.”
Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 199 (
Accusations of criminal wrongdoing
constitute defamation per se.
Prinzing’s signs were placed around Schwab’s
senate district during the weeks before the election. There was extensive publicity in both print
and television media regarding Prinzing’s signs. Schwab testified that she experienced severe
stress, manifested by headaches and sleeplessness, from the signs and
accompanying publicity. And the signs
put stress on her children and marriage.
Because of the signs, she was personally humiliated, and one of her
children was taunted in school. Not only
did Schwab lose her reelection bid, but she also has lost interest in seeking elected
office because the experience was so difficult for her. The evidence establishes that Schwab accepted
a job in
Prinzing maintains that precedent from other
jurisdictions suggests that the damages award of $150,000 is excessive. But our own precedent leads us to conclude
otherwise. For example, when a city
maintenance supervisor successfully sued a Duluth newspaper for libel after it
implied that he engaged in criminal conduct by stealing from the city, we affirmed
a damages award of $676,000 in 1994. LeDoux v. Nw. Publ’g, Inc., 521 N.W.2d
59, 69 (
(1) felt “devastated” after reading the editorials published by appellants; (2) ha[d] difficulty sleeping, digestive problems, headaches, nausea, vomiting, and chest pains; (3) contemplated committing suicide and sought counseling because the “newspaper articles kept coming and coming”; (4) withdrew from his sons and became more moody; and (5) attempt[ed] to avoid being identified in public or at work, for fear of embarrassment.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The district court correctly instructed the jurors to use the following definition of theft during their deliberations:
Whoever does any of the following commits theft under Minnesota law: One, intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other’s consent and with intent to deprive the owner permanently of possession of the property; or two, intentionally does any of the above-mentioned acts but with intent to exercise temporary control only and the control exercised manifests an indifference to the rights of the owner or the restoration of the property to the owner.
See 10 Minnesota Practice, CRIMJIG 16.01, 16.80 (1999).