This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-1657

Jeffrey Brills,

d/b/a Ritzy Clean Carpet Cleaning and Upholstery, Inc., et al.,

Appellants,

vs.

WCCO Television, Inc.,

a unit of Columbia Broadcasting System, Inc.,

a California corporation, et al.,

Respondents.

Filed February 25, 1997

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. 9410564

Marshall H. Tanick, Daniel R. Kelly, Mansfield & Tanick, P.A., 1560 International Centre, 900 Second Avenue South, Minneapolis, MN 55492-3383 (for Appellants)

Kurt B. Glaser, Kurt B. Glaser & Associates, 600 Flour Exchange Building, 310 Fourth Avenue South, Minneapolis, MN 55415 (for Appellants)

Paul R. Hannah, 2625 American Bank Building, 101 East Fifth Street, St. Paul, MN 55101 (for Respondents)

Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.

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

KALITOWSKI, Judge

Appellants challenge the district court's grant of summary judgment in favor of respondent WCCO Television, Inc. (WCCO), arguing the court erred in determining that the alleged defamatory statements made in a report on carpet cleaning did not support a defamation claim. We affirm.

D E C I S I O N

On appeal from summary judgment, a reviewing court determines whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). In doing so, the court views the evidence in the light most favorable to the nonmoving party. State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). However, a party cannot rely on speculation or general assertions to create a genuine issue of material fact. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995). Further, "[s]ummary judgment is appropriate when a party _fails to make a showing sufficient to establish the existence of an element essential to that party's case._" Iacona v. Schrupp, 521 N.W.2d 70, 72 (Minn. App. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986)). No deference need be given to the district court's application of the law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

I.

To establish a defamation claim, a plaintiff is required to prove that the defendant published (1) a statement of fact, (2) that was false, (3) that concerns the plaintiff, and (4) that tends to harm the plaintiff's reputation and to lower him or her in the estimation of the community. Foley v. WCCO Television, Inc., 449 N.W.2d 497, 500 (Minn. App. 1989), review denied (Minn. Feb. 9, 1990).

Whether a statement is one of fact or opinion is a question of law. Id. at 501. To determine whether a statement is one of opinion, which is protected, appellate courts consider four factors:

(1) the statement's precision and specificity;

(2) the statement's verifiability;

(3) the social and literary context in which the statement was made; and

(4) the statement's public context.

Huyen v. Driscoll, 479 N.W.2d 76, 79 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992).

Where there is no dispute as to the underlying facts, whether a statement is substantially true is a question of law. Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986) (citation omitted). Further, the court in Jadwin stated:

the plaintiff cannot succeed in meeting the burden of proving falsity by showing only that the statement is not literally true in every detail. If the statement is true in substance, inaccuracies of expression or detail are immaterial. "A statement is substantially accurate if its gist or sting is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced."

Id. (citations omitted).

Even if a statement is one of fact and false, it must also be about the plaintiff to be actionable. Huyen, 479 N.W.2d at 79. "Defamatory words, to be actionable, must refer to some ascertained or ascertainable person and that person must be the plaintiff." Brill v. Minnesota Mines, Inc., 200 Minn. 454, 458, 274 N.W. 631, 633 (1937).

Here, the district court found the statements that appellants rely on as a basis for their defamation claims to be either substantially true, figurative statements, or not about the appellants. Based on an independent review of the record, we agree.

Appellants claim the broadcast included references to bait and switch, which, as applied to Ritzy Clean Carpet Cleaning and Upholstery, Inc's (Ritzy Clean) pricing and sales practices, are false and defamatory. The district court found this analogy to be substantially true. We agree. The evidence supports the district court's finding that, due to Ritzy Clean's sales tactics, the final bill the consumer paid was substantially higher than the price the consumer was originally quoted. In addition, in the context of the broadcast, which included references to other carpet cleaning businesses, the use of the term bait and switch was not a statement of fact about appellants.

Appellants claim that WCCO accused them of performing unneeded services, an accusation that appellants say is false and defamatory. The district court noted that "reporting that customers were sold additional services they _may_ not have needed is not the equivalent of stating that customers were sold services they _did_ not need." We agree. As such, this alleged accusation is substantially true.

Appellants claim that WCCO stated that Ritzy Clean's employees were unskilled, a statement they argue is false and defamatory. The district court found:

The statement "[i]ndustry experts warned subcontractors often have limited training" is not the equivalent of plaintiffs' derivation that "plaintiffs are poorly skilled in their profession."

We agree. Accordingly, the statement was not about appellants. In addition, the statement is one of opinion, not fact.

Appellants claim that WCCO's statement that the Better Business Bureau told WCCO that 62 complaints were filed against Ritzy Clean in the last three years is false and defamatory. We agree with the district court that the statement is substantially true. Although the statement is not literally true because the 62 complaints collected by the Better Business Bureau include complaints against another carpet cleaning business wholly owned by appellant Brill, the statement is substantially accurate. See Jadwin, 390 N.W.2d at 441 (statement is substantially accurate, even though it is not literally true, "if its gist or sting is true").

Appellants argue that the use by WCCO of such phrases as "dirty secrets of carpet cleaning," "what can you do to keep your pocketbook from being cleaned out," "what some would consider dirty dealings in the carpet cleaning business," etc., constitutes actionable defamation. The district court found that these statements "are no more than figurative language." We agree.

Finally, appellant contends the following statement was false and defamatory:

The former subcontractors also told us other techniques used would include watering down the chemicals so that you didn't get what you thought you were paying for.

The statement that chemicals are watered down is potentially actionable. The statement is not an opinion or figurative speech, and, contrary to the determination of the district court, because the persons interviewed were identified as former employees of Ritzy Clean, the statement concerned Ritzy Clean. Because it is unclear whether the statement is true, for purposes of summary judgment we must assume the statement is untrue. As a corporate plaintiff, however, Ritzy Clean must prove that WCCO acted with actual malice in making the statement. Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 487 (Minn. 1985). Further, Ritzy Clean must prove actual malice by clear and convincing evidence. See Fitzgerald v. Minnesota Chiropractic Ass'n, Inc., 294 N.W.2d 269, 270 (Minn. 1980) (actual malice must be proven by clear and convincing evidence). The supreme court has stated that actual malice is

more than mere negligence and probably even more than highly unreasonable conduct. Mere errors in judgment are insufficient to constitute actual malice and a defamatory statement must have been made with an awareness of its probable falsity, as demonstrated by "sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication."

Hirman v. Rogers, 257 N.W.2d 563, 566 (Minn. 1977) (citations omitted). Also, "[m]ere failure to investigate an article before publication can never, standing alone, establish actual malice." Connelly v. Northwest Publications, Inc., 448 N.W. 901, 904 (Minn. App. 1989), review denied (Minn. Feb. 21, 1990). In a defamation case, whether the evidence in the record "is sufficient to support a finding of actual malice is a question of law." Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685, 109 S. Ct. 2678, 2694 (1989). Here, there is no evidence in the record that WCCO had any information to cause it to entertain serious doubts as to the truth of the statement regarding the dilution of chemicals by Ritzy Clean. Accordingly, the district court did not err in granting summary judgment in favor of WCCO on this claim.

II.

Generally, a claim for negligent infliction of emotional distress must be premised upon a physical manifestation of distress. Leaon v. Washington County, 397 N.W.2d 867, 875 (Minn. 1986). Where there is no physical manifestation of distress, a plaintiff may still proceed if the defendant has directly invaded the plaintiff's legal rights, such as in cases of defamation. Covey v. Detroit Lakes Printing Co., 490 N.W.2d 138, 144 (Minn. App. 1992) (citation omitted).

Here, appellants do not allege a physical manifestation of distress. Thus, appellants must have a viable defamation claim to maintain their negligent infliction of emotional distress claim. Because appellants do not have a viable defamation claim, they cannot maintain their emotional distress claim. Accordingly, the district court did not err in granting summary judgment in favor of WCCO on this claim.

Affirmed.