This opinion will be unpublished and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

C0-96-918

Harold M. Madison,

Respondent,

vs.

George A. Madison,

Appellant.

Filed November 26, 1996

Affirmed

Short, Judge

Lake County District Court

File No. C593236

Joseph J. Dudley, Jr., Brent G. Eilefson, Dudley and Smith, P.A., 2602 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101 (for respondent)

William D. Paul, 1217 East First Street, Duluth, MN 55805 (for appellant)

Considered and decided by Randall, Presiding Judge, Short, Judge, and Davies, Judge.

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

SHORT, Judge

There was bad blood between the Madison brothers. For over thirty years, George A. Madison spread rumors that his brother was a drug smuggler, a child molester, and the father of a child of their sister. When Madison's brother returned to their hometown of Knife River, hostilities were exchanged and Madison's brother filed this defamation action. A jury found Madison defamed his brother, and expressly found that the brother did not "invite, instigate or procure" the defamatory statements. The jury awarded Madison's brother $7,000 in compensatory damages and $10,000 in punitive damages. The trial court remitted $5,000 of the compensatory damages.

On appeal from the denial of his post-trial motions, Madison argues the trial court erred by: (1) denying his motions when his statements were privileged; (2) admitting certain blood test results into evidence; and (3) granting his brother's motion to amend the complaint to add a claim for punitive damages, and failing to vacate the punitive damages award. We affirm.

D E C I S I O N

I.

On appeal from a trial court's denial of judgment notwithstanding the verdict, this court must affirm if there is any competent evidence reasonably tending to support the verdict. Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984). We will not disturb a trial court's denial of a motion for a new trial unless the verdict is manifestly and palpably contrary to the evidence viewed in the most favorable light. Zumberge v. Northern States Power, 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

To maintain an action for the common law tort of defamation, a plaintiff must prove a defendant published a false statement tending to damage the plaintiff's reputation. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980). Madison agrees that his statements were defamatory. However, he argues the statements were absolutely privileged because his brother invited and consented to the statements. See Utecht v. Shopko Dep't Store, 324 N.W.2d 652, 654 (Minn. 1982) (basing absolute privilege on plaintiff's consent to publication); LeBaron v. Minnesota Bd. of Pub. Defense, 499 N.W.2d 39, 42 (Minn. App. 1993) (same), review denied (Minn. June 9, 1993).

The record demonstrates: (1) Madison's brother traveled to Knife River specifically to confront his brother; (2) Madison's brother hoped Madison would utter slanderous statements in the presence of a witness; (3) Madison's brother approached Madison in a local bar and engaged him in conversation in the presence of the proprietor; (4) in front of the proprietor, Madison accused his brother of engaging in incest, child molestation, and drug smuggling; and (5) there were conflicting accounts as to whether Madison's brother merely initiated the conversation or asked pointed questions that led to the defamatory statements. Because Madison's brother introduced evidence supporting the jury's finding that he did not invite the defamation, the trial court properly dismissed the post-trial motions. See Young v. Wlazik, 262 N.W.2d 300, 310 (Minn. 1977) (recognizing it is jury function to determine credibility of witnesses).

Madison also argues there is no basis for finding harm to his brother's reputation because his brother does not reside in Knife River. To be defamatory, a statement must tend to harm the plaintiff's reputation and lower him in the estimation of the community. Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 410 (Minn. 1994). However, statements relating to one's business, trade, or profession, and statements about the commission of serious sexual misconduct, constitute slanders per se and are actionable without proof of actual damages. See Richie v. Paramount Pictures, 544 N.W.2d 21, 25 n.3 (Minn. 1996) (quoting Baufield v. Safelite Glass Corp., 831 F. Supp. 713, 717 (D. Minn. 1993)) (serious sexual misconduct); Anderson v. Kammeier, 262 N.W.2d 366, 372 (Minn. 1977) (business, trade, or profession); see also Restatement (Second) of Torts § 570 (1977) (listing slanders per se).

The defamatory statements at issue all relate either to serious sexual misconduct or to the brother's profession. Given the nature of the statements, damages to the brother's reputation can be presumed. See Becker v. Alloy Hardfacing & Eng'g, 401 N.W.2d 655, 661 (Minn. 1987) (reaffirming rule general damages are presumed where statements are defamatory per se). Even if the defamatory statements were not slanderous per se, there was ample evidence of apparent harm to reputation. Madison's brother testified that local acquaintances informed him they had heard Madison's allegations of incest, drug smuggling, and child molestation. Given this testimony, Madison's argument regarding harm to reputation is without merit and the trial court properly denied Madison's motions.

II.

Madison also argues the trial court improperly admitted certain blood test results into evidence. However, elements of proper foundation and probative value, except where entirely absent, bear on the weight, not the admissibility, of the evidence. State v. Daby, 293 Minn. 179, 181, 197 N.W.2d 670, 671 (1972); see also Rose v. Koch, 278 Minn. 235, 249, 154 N.W.2d 409, 420 (1967) (vesting trial court with discretion to determine whether evidence is admissible).

The record demonstrates: (1) blood samples were taken in three different locations by three different technicians; (2) each technician verified the identity of the person tested with a valid driver's license, social security card, or fingerprint; (3) while none of the technicians testified at trial, a medical expert testified as to the procedural safeguards his lab employed to assure the identity of each person tested; (4) Madison's counsel fully cross-examined the medical expert regarding procedural irregularities; and (5) the jury was given the standard expert witness instruction. Under these circumstances, we cannot say the trial court abused its discretion by admitting the blood test results.

III.

Minn. Stat. § 549.191 (1994) allows a party to move to amend the complaint to seek punitive damages if the motion alleges an applicable legal basis for such an award and is "accompanied by one or more affidavits showing the factual basis for the claim." See Minn. Stat. § 549.20, subd. 1 (1994) (listing statutory bases for punitive damages). If the trial court finds prima facie evidence supporting the motion, it must allow the moving party to amend its complaint. Minn. Stat. § 549.191; see also Swanlund v. Shimano Indus. Corp., 459 N.W.2d 151, 154 (Minn. App. 1990) (noting that "prima facie" does not refer to a quantum of evidence, but to a procedure for screening out unmeritorious claims for punitive damages), review denied (Minn. Oct. 5, 1990). The trial court exercises its discretion in allowing an amendment to seek punitive damages, and we will not reverse on appeal absent an abuse of that discretion. Utecht, 324 N.W.2d at 654.

Madison argues the trial court abused its discretion in granting his brother's motion to amend without requiring the submission of new affidavits. However, Madison failed to object at the motion hearing and is, therefore, precluded from raising the issue on appeal. See State v. Gore, 451 N.W.2d 313, 317 (Minn. 1990) (disallowing consideration of issue by reviewing court when party first raises issue on appeal); Thorp Loan & Thrift v. Morse, 451 N.W.2d 361, 363 (Minn. App. 1990) (refusing to allow party to raise procedural irregularities not raised below), review denied (Minn. Apr. 13, 1990).

Madison also argues the punitive damages award is excessive. The purpose of punitive damages is both to punish the defendant and to deter others from committing future wrongs. Melina v. Chaplin, 327 N.W.2d 19, 20 n.1 (Minn. 1982). In determining whether punitive damages are unreasonably excessive, a trial court should consider the degree of the defendant's willful disregard for the rights of the plaintiff, the amount truly needed to deter the defendant's conduct in the future, and the cost to the plaintiff of bringing suit. Wilson v. City of Eagan, 297 N.W.2d 146, 151 (Minn. 1980).

The jury awarded $10,000 in punitive damages. The evidence shows that for over 30 years Madison made similar defamatory remarks about his brother. The jury could have concluded that Madison showed no remorse over damaging his brother's reputation. Additionally, as of September 1995, Madison's brother had incurred over $13,000 of attorney fees and expenses in pursuing this litigation. On these facts, we cannot say the trial court abused its discretion in refusing to vacate the punitive damages award.

Affirmed.