This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-96-208

Julia A. Jerdee,
Appellant,

vs.

Steve's Shoes, Inc., a
Missouri corporation, d/b/a
Overland Trading Company, et al.,
Respondents.

Filed August 20, 1996
Affirmed
Holtan, Judge

1

Hennepin County District Court
File No. 94-15547

Stephen P. Laitinen, Mahoney, Hagberg & Rice, P.A., 1500 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Appellant)

Robert W. Kettering, Scott H. Rauser, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., 500 Young Quinlan Building, 81 South Ninth Street, Minneapolis, MN 55402 (for Respondents)

Considered and decided by Peterson, Presiding Judge, Norton, Judge, and Holtan, Judge.

U N P U B L I S H E D O P I N I O N

HOLTAN , Judge
Julia Jerdee challenges the district court's grant of partial summary judgment, arguing that there is sufficient evidence to prove publication and thus establish a prima facie case of defamation. We affirm.
FACTS

On March 11, 1994, appellant Julia Jerdee and LeaAnn Kobs, a coworker, worked the closing shift at the Mall of America store of respondent Overland Trading Company. As part of their closing responsibilities, Jerdee and Kobs filled out a deposit slip for the day's deposit and brought the deposit to the bank. On this particular day, there was an additional or "special" deposit of $159.95 in cash.
On their way from the store, on the first floor, to the bank, on the third floor, the special deposit bag was lost. When they realized the bag was missing, Jerdee and Kobs retraced their steps back to the store, but they were unable to find the missing deposit bag. They returned to the store and called the manager, Jim Madsen, and mall security. The following day, Madsen called the Bloomington police, and a formal report was filed.
Two days later, Madsen called the president of the company, Michael Yaeger, to report the loss of the deposit and relate the information he had received from Jerdee and Kobs about the incident. About 15 minutes later, Yaeger called Madsen back and told him that, pursuant to company policy, Jerdee would have to be discharged. Overland's policy provides that failing to make a deposit is grounds for immediate termination.
After Jerdee was discharged, Yaeger called another store manager, Chris Eissinger, who was romantically involved with Jerdee at the time of her discharge, to inform him of the decision. Jerdee contends that the statements made during this phone call were defamatory. She claims that Yaeger told Eissinger that criminal charges would be sought against Jerdee and that it would be a felony. Jerdee contends that Yaeger proceeded to relate stories about two other employees who had been charged for missing deposits, telling Eissinger that those employees had done jail time. According to Jerdee, Eissinger also learned that Overland was going to sue Jerdee for a missing deposit from February. Eissinger was allegedly told that "[w]e know that she took the money, so she may as well 'fess up." A friend of Jerdee's was in her apartment and overheard Eissinger's call and confirms Jerdee's version of the conversation between Eissinger and Jerdee. Yaeger and Eissinger, however, testified that Eissinger inquired about what might happen next, and Yaeger related the outcomes of two similar situations and speculated that if charges were filed it would be a felony.
The district court granted partial summary judgment, concluding that Jerdee had failed to establish a prima facie case because she could not prove publication. This appeal followed.
D E C I S I O N

In reviewing a grant of summary judgment, we ask (1) whether there are any genuine issues of material fact and (2) whether the lower court erred in applying the law. See State by Cooper v. French , 460 N.W.2d 2, 4 (Minn. 1990).
Jerdee contends that the district court erred in concluding that she failed to produce sufficient evidence to raise a genuine issue of material fact that the statements had been published. In particular, she contends that the district court erroneously ruled that the deposition testimony of Eissinger was inadmissible hearsay. Jerdee claims that the deposition is admissible nonhearsay and does establish genuine issues of material fact. Overland contends that the admission of Eissinger's deposition is irrelevant because Eissinger did not say anything that would establish publication of Yaeger's statements.
"To be defamatory, a statement must be communicated to someone other than the plaintiff, must be false, and must tend to harm the plaintiff's reputation and to lower her in the estimation of the community." Hunt v. University of Minn. , 465 N.W.2d 88, 93 (Minn. App. 1991). "`To publish is to intentionally exhibit the defamatory words to one other than the libelee.'" Frankson v. Design Space Int'l , 394 N.W.2d 140, 144 (Minn. 1986) (quoting Rickbeil v. Grafton Deaconess Hosp. , 23 N.W.2d 247, 251 (N.D. 1946)).
The district court concluded that the allegedly defamatory statement "would have been published during the conversation between Yaeger and Eissinger discussing Jerdee's termination." The court also concluded that "Eissinger could offer competent testimony regarding the conversation with Yaeger, but Eissinger will be unavailable for trial." The trial court noted that the only other evidence would be the testimony of Jerdee and one of her friends, that they had not heard the conversation between Yaeger and Eissinger, and "[t]heir testimony therefore would be inadmissible hearsay." Thus, it does not appear that the district court ever addressed the admissibility of Eissinger's deposition.
Jerdee contends that Eissinger's deposition should be admissible as nonhearsay, an admission by a party opponent. See Minn. R. Evid. 801(d)(2)(D) ("a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship" is not hearsay). However, if Eissinger is unavailable for trial, his deposition would be admissible as an exception to the hearsay rule. See Minn. R. Evid. 804(b)(1) ("In a civil proceeding testimony given as a witness * * * in a deposition * * * if the party against whom the testimony is now offered * *had an opportunity and similar motive to develop the testimony," the evidence is not excluded by the hearsay rule). Because the district court found Eissinger would be unavailable for trial, we conclude that his deposition should have been considered.
Overland contends that even if Eissinger's deposition is admitted, Jerdee cannot establish publication because there is nothing in Eissinger's deposition that indicates Yaeger ever made the alleged statements.
Eissinger stated in his deposition that he asked Yaeger what kind of criminal charges might be "brought up," and Yaeger told him that if charges were filed, he thought it would be a felony. In response to Eissinger's questions, Yaeger also related two other incidents involving missing deposits. In both of those cases, Yaeger said that the individuals had actually served jail time. However, Eissinger also made the following statements:
Q. Now, Chris, do you recall Mr. Yaeger ever telling you that Julia stole money from the Overland Trading Company?

[Objection.]

A. No, he did not.

Q. Do you recall Michael Yaeger ever telling you the following: Julia Jerdee is going to jail?

A. No.

Q. Do you recall Michael Yaeger ever telling you the following: Julia Jerdee is a thief?

A. No.

Q. Chris, do you ever recall Michael Yaeger ever telling you the following: We know that she, referring to Julia Jerdee, took the money so she might as well fess up?

A. No.

Q. Do you recall Michael Yaeger telling you the following: It's stealing, she's a thief no matter how you look at it?

A. No.

Q. And, Chris, do you ever recall Michael Yaeger telling you at any time the following: She'll go to jail over this unless she pays what she owes me?

A. No.

Even assuming Eissinger's testimony is completely truthful, as we must, the evidence does not establish the publication of actionable statements. Neither the statement about whether or not it could be a felony nor the stories about other employees tend to harm Jerdee's reputation. Further, Eissinger denies that Yaeger made the statements that Jerdee alleges. Thus, we conclude that the admission of Eissinger's testimony would not establish a prima facie case of defamation.
Overland contends that Yaeger's statements were opinion and therefore not actionable. However, because we conclude that Jerdee did not establish a prima facie case of defamation, we need not determine whether the statements were opinion.
Jerdee contends that the district court erred in concluding that the statements made by Yaeger were qualifiedly privileged and that she had failed to prove actual malice. Because we conclude that Jerdee failed to establish a prima facie case, the statements made by Yaeger are therefore not actionable, and we do not need to reach the issue of qualified privilege.
Affirmed.


1
  • *
Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.