This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).



Beverly Smith, et al.,



Terrance J. Toomey, et al.,


Crel Petroleum, et al.,


Paul J. DesHotels,


Filed August 26, 1997


Kalitowski, Judge

Hennepin County District Court

File No. MC941528

D.C. Meisinger, Meisinger & Meisinger, 60 East Marie Avenue, No. 109, West St. Paul, MN 55118 (for respondents Smith, et al.)

John J. Todd, Michael J. Orme, Brenner & Glassman, Ltd., BLN Office Park, Suite 170, 2001 Killebrew Drive, Minneapolis, MN 55425-1822 (for respondents Toomey, et al.)

Paul J. DesHotels, Law Offices of Paul J. DesHotels, Ltd., 2930 Norwest Center, 90 South 7th Street, Minneapolis, MN 55402 (pro se appellant)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.



Appellant Paul DesHotels challenges the district court's entry of judgment in favor of respondents, claiming the district court erred in concluding he and Crel Petroleum are liable to respondents under the theories of: (1) slander of title; (2) interference with prospective contractual relations; and (3) indemnity. We affirm.


Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the district court to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01. A finding of fact is clearly erroneous if it is "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Wangen v. Swanson Meats, Inc., 541 N.W.2d 1, 3 (Minn. App. 1995), review denied (Minn. Jan. 25, 1996). On questions of law, however, this court reviews a district court's determinations de novo. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

The fundamental rule is that a verdict will only be set aside if manifestly contrary to the evidence viewed in the light most favorable to it. Ouellette by Ouellette v. Subak, 391 N.W.2d 810, 817 (Minn. 1986). "A verdict will not be set aside unless the evidence against it is practically conclusive." Id. (citation omitted).

In Kelly v. First State Bank of Rothsay, 145 Minn. 331, 177 N.W. 347 (1920), the supreme court stated:

Utterance of false and malicious statements disparaging the title to property in which one has an estate or interest, if the statements are untrue and cause damage, constitutes slander of title. Filing for record an instrument known to be inoperative is a false statement within the rule and if done maliciously it is regarded as slander of title. It is clear, however, that if a man does no more than file for record an instrument which he has a right to file, he commits no wrong.

Id. at 332-33, 177 N.W. at 347 (citations omitted).

The district court, in discharging the notice of lis pendens, determined that DesHotels filed the notice without "basis in law or in fact." The district court concluded that the notice "was maliciously filed of record because it was known to be inoperative and was filed with no legal justification." DesHotels argues that this conclusion is not supported by the facts or law. We disagree.

In a defamation case, malice is defined as "actual ill-will or a design causelessly and wantonly to injure plaintiff." Bol v. Cole, 561 N.W.2d 143, 150 (Minn. 1997) (citation omitted). The action for slander of title, however, is not an action for defamation and is based on different grounds and governed by different principles. Quevli Farms, Inc. v. Union Sav. Bank & Trust Co., 178 Minn. 27, 29, 226 N.W. 191, 191-92 (1929). The definition of malice in a slander of title case is different from its definition in an ordinary libel or slander case.

In Minnesota, malice, in a slander of title case, requires that the disparaging statements be made without a good faith belief in their truth. See id. at 30, 226 N.W. at 192 (plaintiff has burden of proving that disparaging statements were made without probable cause). Under this definition, the district court's finding that DesHotels acted maliciously as a matter of law is supported by the record. First, DesHotels filed the notice without any legal foundation. His after-the-fact claim that he had a good faith argument for the extension of the law is without merit. Second, DesHotels filed the notice without commencing a lawsuit. Minn. Stat. § 557.02 (1996) allows the filing of a notice of lis pendens "at the time of filing the complaint, or at any time thereafter during the pendency of such action." Accordingly, the district court did not err in determining that DesHotels is liable to respondents for slander of title.

DesHotels further argues that even if respondents established slander of title, he is immune from liability.

[A]n attorney acting within the scope of his employment as attorney is immune from liability to third persons for actions arising out of that professional relationship. This immunity, to be sure, may not be invoked if the attorney, exceeding the bounds of this unique agency relationship, either is dominated by his own personal interest or knowingly participates with his client in the perpetration of a fraudulent or unlawful act.

McDonald v. Stewart, 289 Minn. 35, 40, 182 N.W.2d 437, 440 (1970) (citations omitted). We conclude DesHotels is not immune from liability. First, the finding that DesHotels acted maliciously brings him within the exception to immunity for fraudulent or unlawful actions.

Second, Minn. R. Civ. P. 8.03 requires that affirmative defenses be raised in a responsive pleading or subsequent amendment. "By failing to raise an affirmative defense in a responsive pleading or any subsequent amendment, one is deemed to have waived that defense." St. Cloud Aviation, Inc. v. Pulos, 375 N.W.2d 543, 545 (Minn. App. 1985) (citation omitted). Because DesHotels did not raise immunity in a responsive pleading or subsequent amendment, he has waived this defense. DesHotels argues that immunity falls within Minn. R. Civ. P. 12.02, which allows, among other things, the defense of failure to state a claim upon which relief can be granted to be raised by motion, or, pursuant to Winter v. Farmers Educ. & Co-op Union, 259 Minn. 257, 264, 107 N.W.2d 226, 232 (1961), for the first time on appeal. We disagree. An immunity defense does not fall within this limited exception.

Finally, the district court did not address the issue of immunity. This court must limit its review to only those issues actually presented and decided by the district court. In re Dawson, 502 N.W.2d 65, 67 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993).

Because the district court properly found DesHotels liable to respondents for slander of title, the most appropriate theory for liability, we need not address the other legal theories considered by the district court.