This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Tuan J. Pham,
Mai Vu, et al.,
Thang Dinh Le,
Thanh Van Tran,
Dean Do, et al.,
Filed August 21, 2007
Affirmed in part and reversed in part
Ramsey County District Court
File No. C7-04-9920
Patrick T. Tierney, Collins, Buckley, Sauntry & Haugh, PLLP, W-1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondents Tuan J. Pham, Mai Vu, and Capital Market (A06-1189))
Michael C. Mahoney, Thomas Foster, Mahoney & Foster, Ltd., 539 East Lake Street, Wayzata, MN 55391 (for plaintiff appellants Dean Do, Linda Vu and Tuan Pham (A06-1189))
Thang Dinh Le,
Thanh Van Tran,
Considered and decided by Stoneburner, Presiding Judge; Shumaker, Judge; and Dietzen, Judge.
In this consolidated appeal, the represented appellants challenge the denial of their post-trial motions and resulting judgment awarding respondents damages on their defamation and tortious interference with prospective advantage claims, arguing that (1) their statement that respondent is a Communist is protected free speech, and there was no evidence of actual malice; and (2) respondents failed to plead tortious interference with prospective advantage, and that the claim failed as a matter of law. The pro se appellants also challenge the award of damages on respondents’ tortious interference with prospective advantage claim, arguing that the award was not supported by the evidence, and that the jury verdict was based on passion or prejudice. We affirm in part and reverse in part.
Tuan Joseph Pham (respondent Pham) and Mai Vu (respondent Vu) are married and
Vietnamese Community of Minnesota (VCM) was incorporated in 1981 and
represented the interests of newly-arrived Vietnamese refugees. Historically, the organization was controlled
by elder members of the Vietnamese community who held high military positions
in the former South Vietnamese Army. It
currently represents the majority of the Vietnamese community in
In the late 1990’s, younger members of the Vietnamese community were elected to leadership positions in the VCM. In 1998, respondent Pham’s son, Alex Pham, was elected vice-president of the VCM. Respondent Pham was also actively involved in fundraising to construct the VCM’s community center and acted as an advisor to its board of directors.
Unhappy with the changes in leadership, defendant-appellants Tuan Anh Pham (appellant Pham), Thang Dinh Le (Le), Linda Vu, Tram Bui, Thanh Van Tran, and others left VCM and formed a rival organization named the Vietnamese Community of Minnesota Board of Representatives (VCM-BR). The VCM-BR was incorporated in 2001, and Linda Vu became its second president.
December 2003, respondent Pham learned that Bishop Hoang Van Tiem, the Catholic
bishop for the Bui Chu diocese in
A luncheon was
arranged for Bishop Tiem at a local Vietnamese restaurant, but at the last
minute the location was changed to the
Following the bishop’s visit, some members of the Vietnamese community staged protests regarding the lowering of the flag. A “proclamation” was issued by a group entitled “Vietnamese Refugee Community of Minnesota,” criticizing the organizer for ordering the South Vietnamese flag lowered. Appellant Le asked members of the community for information regarding any individuals involved in the bishop’s visit. Appellant Dean Do provided Le with a 1999 letter (Minh letter) that his ex-wife Minh Pham, respondent Pham’s daughter, wrote criticizing respondent Pham. But the letter was publicly disavowed by Minh Pham in 2000.
In January 2004, Le sent a letter to President Bush and other public officials (Bush letter), with a list of 51 “co-signatories,” demanding that respondent Pham be removed from his presidential appointment as a board member of the Vietnam Educational Foundation (VEF), for “misconduct” and “moral turpitude.” The Minh letter, which was attached to the Bush letter, accused respondent Pham of bribery, tax evasion, physical abuse, arson and extortion; and that he had poor character and was guilty of hypocrisy.
Later that same month, the represented appellants arranged a boycott of Capital Market, in which protestors held signs and chanted, “Down with the Vietnamese Communists,” “Down with Tuan Pham,” “Down with Vietnamese Nationals who acted as Communist Lackeys,” and “Boycott the Thudo Market.” Hundreds of flyers were circulated announcing further demonstrations and protests. The flyers and pamphlets denounced respondent Pham and others as Communists. At the boycott, protestors stated that Capital Market was a “communist fundraising enterprise,” and members of the Vietnamese community were “ordered” not to shop there.
interview on a national Vietnamese radio station, appellant Linda Vu accused
respondent Pham of being a member of a “Communist sleeper cell” in
Respondents commenced legal action against the 51 signatories of the Bush letter, which included the represented and pro se appellants, for defamation. During the litigation, respondents dismissed the majority of the co-signatories from the lawsuit on the ground that they had not reviewed the Bush letter before it was sent. The case proceeded with seven remaining defendants, six of whom are the subject of these consolidated appeals.
Prior to trial, the district court concluded that respondent Pham was a limited purpose public figure. At trial, respondent Pham testified that he was not a Communist, the Bush and Minh letters were false, and that appellants had defamed him and destroyed his reputation. Respondent Pham claimed that as a result of the boycott, he lost rental income of $33,000 and the gross income of his business decreased by over 50%. In August 2004, Capital Market was forced to close. Appellants testified that their statement that respondent Pham is a Communist was protected free speech and related to the lowering of the South Vietnamese flag.
Following trial, the jury returned a verdict in favor of respondent Pham for $477,000, consisting of $130,000 for past harm to reputation; $73,000 for past income loss; $150,000 for future harm to reputation; $54,000 for damage to future earnings; and $70,000 in punitive damages. The jury returned a verdict in favor of Capital Market for $216,000, consisting of $108,000 for past-income loss; $54,000 for damage to future-earning capacity; and $54,000 for intentional interference with prospective advantage. The jury awarded no damages to Mai Vu.
Appellants moved for a new trial and for amended findings. Following arguments, the district court filed its order granting appellants’ motion to amend the verdict on respondent Pham’s defamation claims reducing the total award to $350,000. The district court also reduced Capital Market’s total award to $54,000.
The represented appellants and the pro se appellants filed separate appeals. Respondent Pham filed a notice of review. We consolidated the appeals for determination by the court.
D E C I S I O N
Appellants argue that the district court erred in denying their motion for amended findings and new trial regarding respondent’s defamation claims. Appellants argue their statement that respondent Pham is a “Communist” is protected speech, and was not made with actual malice. Respondents argue that the district court erred in concluding that respondent Pham was a limited purpose public figure and reducing their damage awards for loss of past income and loss of future earning capacity.
We review a
district court’s decision to grant or deny a motion for a new trial for an
abuse of discretion. Halla Nursery, Inc. v. Baumann-Furrie &
Co., 454 N.W.2d 905, 910 (
pursue a common-law defamation claim, a plaintiff must prove that the defendant
made: (1) a false and defamatory statement about the plaintiff; (2) the
statement was unprivileged published to a third party; and (3) the statement
harmed the plaintiff’s reputation in the community. Weinberger
The Court later determined
that “in cases raising First Amendment issues . . . an appellate court has an
obligation to ‘make an independent examination of the whole record’ in order to
make sure that ‘the judgment does not constitute a forbidden intrusion on the
field of free expression.’” Bose Corp. v. Consumers Union of United
States, Inc., 466
A. Opinion Statements
argue that their allegedly defamatory statements were constitutionally protected
political speech. Specifically,
appellants claim that their statement that respondent Pham is a Communist was
an opinion based on the fact that Pham had the flag lowered at the
Both parties rely
on Milkovich v. Lorain Journal Co.,
[W]e think Hepps stands for the proposition that a statement on matters of public concern must be provable as false before there can be liability under state defamation law . . . . Hepps ensures that a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.
Thus, where a statement of “opinion” on a matter of public concern reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth.
The Supreme Court
reversed the dismissal of Milkovich’s claim concluding that the connotation
that he committed perjury is sufficiently factual to be susceptible of being
proven true or false. In doing so, Milkovich held that a separate
constitutional privilege for “opinion” was not required in addition to
established safeguards regarding defamation to ensure freedom of expression guaranteed
by the First Amendment. Put another way,
if it is plain that the speaker is expressing a subjective view, such as an
interpretation, a theory, conjecture, or surmise, rather than objectively
verifiable facts, the statement is not actionable. Schlieman
In Marchant Inv. & Mgmt. Co. v. St. Anthony
West Neighborhood Org., Inc., 694 N.W.2d 92 (Minn. App. 2005), this court
considered a defamation claim under Milkovich. We concluded that to determine whether a
statement is actionable under Milkovich,
consideration must be given to the broad context of the statement, the specific
context and content of the statement, and whether the statement is sufficiently
objective to be susceptible of being proved true or false.
accusing someone of collaborating or sympathizing with Communists is generally
defamatory. See Gertz, 418
Here, appellants argue
that their statements went beyond respondent Pham’s role in lowering the South
Vietnamese flag, stating that he is a “Communist lackey” and a member of a “Communist
sleeper cell” controlled by the Vietnamese communists; and that his business,
Capital Market, is a “Communist fundraising enterprise.” Thus, appellants’ statements went beyond
loose, figurative language, to specific statements that are “sufficiently
factual to be proven true or false.” Milkovich, 497
B. Actual Malice
argue there was insufficient evidence of “actual malice” to support the jury
verdict. Actual malice must be shown by
clear and convincing evidence that the defendant made the statements with
actual malice, that is, either knowing that they were false or with reckless
disregard for whether they were true.
admittedly had no evidence that Tuan Pham is a Communist. They argue that because lowering the South
Vietnamese flag is such an outrage, it could only mean one thing—that Tuan Pham
is a Communist sympathizer. But
appellants failed to produce any evidence that respondent Pham is a Communist. Appellants admitted that at the time the
statements were made that they knew respondent Pham’s background in fighting
Communism. Further, the Bush letter contained
many statements that appellants admit were false and defamatory. The public retraction of the contents of the Minh
letter should have alerted appellants to the letter’s untruthfulness and
implies a “purposeful avoidance of the truth” by appellants. See Connaughton,
Finally, respondent Pham argues that the district court erred as a matter of law by concluding that he was a “limited purpose public figure.” But at oral argument, respondent Pham conceded that his primary argument is that the statements were defamatory and were made with “actual malice.” Because we agree, it is not necessary for us to address whether respondent Pham was a limited purpose public figure and, therefore, we decline to do so.
argue that the district court erred by granting appellants’ motion to amend the
special verdict and by reversing the jury’s award of past income loss and loss
of future earning capacity. We review
the grant of a motion to amend a jury verdict for an abuse of that
discretion. Damages for defamation include:
(1) harm to plaintiff’s reputation and standing in the community; (2) mental
distress; (3) humiliation; (4) embarrassment; (5) physical disability; and
(6) economic loss caused by the defamatory statement or communication. 4
The district court concluded that “there was no evidence presented” to show that Pham suffered a loss of either past income or future earning capacity and, therefore, reduced the jury verdict by $73,000 and $54,000, respectively. The district court found that:
The only evidence submitted as to Capital Market was the gross income that was shown on a monthly basis for the year 2003 and up until the Market was sold in 2004. There was no testimony regarding expenses, including but not limited to the cost of goods, labor costs or taxes, which would have to be subtracted from gross income. In this court’s opinion, the evidence cannot reasonably sustain the allocation for past income loss or future earning capacity as it relates to Capital Market.
No evidence was offered during trial specifying the amount of income respondent Pham received from Capital Market. While there is some evidence in the record that Pham lost rental income due to the defamatory statements, the evidence is not specific. Respondent Pham did not offer of business expenses, which is necessary to determine net income. On this record, the district court did not abuse its discretion. McCarthy, 567 N.W.2d at 507.
Appellants argue that the district court erred in not dismissing respondent Capital Market’s claim for tortious interference with prospective advantage on the grounds that respondents failed to plead the claim in their complaint and that the claim fails as a matter of law. Initially, appellants argue that respondent did not plead tortious interference with prospective advantage, that no amendment to the pleading was granted by the district court and, therefore, the claim must be dismissed.
Rule 15.02 allows
amendments to the pleadings to conform to the evidence. See Minn.
R. Civ. P. 15.02 (stating that when issues not raised by the pleadings are
tried by express or implied consent of the parties, they shall be treated in
all respects as if they had been raised in the pleadings). Consent to litigate an issue not raised in
pleadings may be implied where a party does not object to evidence relating to
the issue or puts in his own evidence relating to the issue. Folk v.
Home Mut. Ins. Co., 336 N.W.2d 265, 267 (
Capital Market presented testimony, without objection, that appellants made defamatory statements during the boycott of its business, resulting in the loss of customers and damage to its business. Respondent’s claim for wrongful interference was the subject of a jury instruction and a question on the special verdict form that was presented to the jury without objection from appellant. On this record, we conclude that appellants implicitly consented to litigating the tortious interference claim. Consequently, we turn to the merits of Capital Market’s claim for tortious interference with prospective advantage.
One who intentionally and improperly interferes with another’s prospective contractual relation . . . is subject to liability to the other for the pecuniary harm resulting from the loss of the benefits of the relation, whether the interference consists of (a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or (b) preventing the other from acquiring or continuing the prospective relation.
See United Wild Rice, 313 N.W.2d at 632-33.
that Capital Market’s claim fails as a matter of law on the ground that it is
duplicative of respondent’s defamation claim.
We agree. In Wild v. Rarig, the plaintiff brought a claim for breach of
contract, interference with contract, and defamation. Our supreme court held, among other things,
that a plaintiff’s cause of action for tortious interference with prospective
advantage was “essentially” part of his cause of action for defamation. 302
The defamation which is the means used to interfere with his business relationships action is the same defamation that Dr. Wild seeks to recover damages for under his defamation claim. It seems to us that, regardless of what the suit is labeled, the thing done to cause any damage to Dr. Wild eventually stems from and grew out of the defamation. Business interests may be impaired by false statements about the plaintiff which, because they adversely affect his reputation in the community, induce third persons not to enter into business relationships with him.
Like Rarig, Capital Market’s claim of tortious interference is part of its defamation claim. Capital Market presented the same evidence, that is, the boycott of its business and the statements made by appellants at the boycott regarding its business, to support its claim for damages. Capital Market cannot recover the same damages under a tortious interference claim that it unsuccessfully sought to recover under its defamation claim. Specifically, the district concluded that there was insufficient evidence of damages to support Capital Market’s claim for defamation. For the same reason, we conclude that there is insufficient evidence to support Capital Market’s damage award for tortious interference with prospective advantage.
Market’s tortious interference claim fails under our reading of NAACP v. Claiborne Hardware Co., 458
Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims.
In Claiborne, the purpose of the boycott
was to secure compliance by both civic and business leaders with a lengthy list
of demands for equality and racial justice.
that the statement of the case and statement of facts in pro se appellants’ (Thang
Dinh Le, Bui Tram, and Thanh van Tran) informal briefs and certain pages of the
pro se appellants’ appendix should be stricken from the record because they are
not based on evidence introduced at trial. Generally, appellate courts cannot consider material
outside the record on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (
Here, the majority
of the material cited by respondents is simply argument or references to material
that can be found in the district court file.
None of the material to which respondents object, is crucial to deciding
the case. And we may selectively ignore
the extraneous information. Therefore,
we disregard discussion of extraneous events without striking large portions of
appellants’ pro se brief. Further, we have
evidence not part of the district court record, but found in the appendix of the pro se appellants’ brief.
Affirmed in part and reversed in part.
 Phila. Newspapers, Inc. v. Hepps, 475