This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Charles Allen Davisson,



Virgil Engelke,


Filed September 23, 1997


Randall, Judge

Hennepin County District Court

File No. 9610000

Marshall H. Tanick, Mansfield & Tanick, P.A., 1560 International Centre, 900 Second Ave. So., Minneapolis, MN 55402 (for appellant)

Richard G. Wilson, Wayne S. Moskowitz, 3300 Norwest Center, 90 South Seventh St., Minneapolis, MN 55402 (for respondent)

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



The district court granted summary judgment in respondent's favor, dismissing appellant's defamation claim. Appellant argues the district court erred in concluding respondent's statements were not defamatory, that respondent enjoyed a qualified immunity, that the court erred in not allowing discovery to determine whether any qualified immunity was abused, and that the court erred in imposing sanctions. We affirm on all issues.


On four different occasions in early August, 1995, 81-year-old respondent Virgil Engelke observed an unknown Caucasian male, approximately forty years of age, park his car, a blue-gray Lincoln with Iowa license plates, near his home, walk up the alley behind his house, turn into the driveway near a neighbor's fence and garage, and stand there. Engelke's neighbor was a local television anchorwoman who lived alone. Engelke noted the car's Iowa license plates as "WW 058."

On the evening of August 17, 1995, Engelke told his wife and grandson Guy what he had seen. Then, as they were putting leftovers in Guy's car, the strange man reappeared. The man had parked his car nearby, walked past Engelke's home, turned and walked up the alley, and faced Engelke's neighbor's house. Guy went to get the car's license plate number, while Engelke called the police. Guy noted that the license plates were from Iowa with the number "WWX 058."

When the police arrived, the Engelke told the officers what they had seen, giving them a description of the man, his clothing, and the car. The officers then went to speak with the neighbor. As the officers were leaving the neighbor's house, they observed a man drive past, matching the description given by the Engelkes. The police stopped and questioned the man. The man identified himself as Charles Allen Davisson.

When questioned by police, Davisson denied ever being in the neighborhood. Davisson maintained that he had just purchased gas at Roger's Superette and was trying to find the entrance ramp for Highway 100. This raised the officers' suspicions because there is a highway entrance ramp next to the gas station and Davisson was three blocks away, heading in the wrong direction. The officers did not take Davisson into custody, but advised him to seek professional help. Following their investigation, which revealed that the victim had twice seen Davisson in the parking lot of her workplace and that several other neighbors had observed the same suspicious conduct as Engelke, the police charged Davisson with stalking, a gross misdemeanor.

Davisson commenced a defamation action against Engelke, alleging that Engelke defamed him with malice by accusing him of unlawful conduct. Shortly after filing suit and prior to his scheduled criminal trial, Davisson sought to take the deposition of Engelke, his grandson Guy, and the investigating officer. Davisson also served a subpoena on the investigating police officer, requesting the production of all documents and statements related to the criminal charge against him. Insisting that the depositions take place before the criminal trial, Davisson moved to compel discovery. The police officer opposed Davisson's motion to compel on the ground that Davisson was attempting to obtain discovery concerning the subject of an active, on-going criminal investigation in an effort to circumvent the limitations on criminal discovery. Engelke brought a motion to stay discovery pending resolution of the criminal trial or, alternatively, for summary judgment.

After hearing the parties' motions, the district court ruled from the bench, granting summary judgment in Engelke's favor. The judge observed that in eighteen years on the bench, Davisson's lawsuit was the most "frivolous" and "baseless" lawsuit she had ever seen. The court indicated that sanctions would be imposed. Later, in its written order, the court found that the three allegedly defamatory statements asserted by Davisson were substantially true, and therefore not defamatory. Alternatively, the court held that even if the statements made by Engelke to his grandson and the police were false and defamatory, Engelke was protected by qualified immunity because the statements were made on a proper occasion and from a proper motive, and they were based upon reasonable or probable cause. The court also ruled that there was no evidence that Engelke had any ill will or malice toward Davisson, because at the time of the statements, Davisson was a complete stranger to Engelke. The court imposed sanctions against Davisson and his counsel, Marshall Tanick, in the amount of $2,500. The court ruled that there was no objective or reasonable basis for Davisson to allege that Engelke defamed him with malice; there was no reasonable factual basis for Tanick to affirm that he had investigated the allegation as required by Minn. R. Civ. P. 11; and the suit was frivolous and baseless, and asserted in bad faith for an improper purpose.

In the meantime, based on a stipulated record, Davisson was convicted of criminal stalking. The court stayed adjudication and placed Davisson on two years probation. This court affirmed the criminal conviction in State v. Davisson, No. C6-96-2141 (Minn. App. June 3, 1997).


On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4, (Minn. 1990). The evidence must be viewed in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). The party opposing summary judgment must come forward with specific facts that establish a genuine issue for trial. Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986). A party cannot rely solely upon mere general statements of fact, but must demonstrate that, at the time the motion is made, there are specific facts in existence that create a genuine issue for trial. Id.

For purposes of this appeal, we assume that Engelke made the statements as alleged by Davisson. Davisson alleges that the following statements made by Engelke to his grandson and the police are defamatory: (1) that Engelke saw Davisson "prowling the neighborhood"; (2) that he saw Davisson "prying around" the fence; (3) that he observed Davisson "peering at the house by the fence"; (4) that he told his grandson that he saw Davisson "going into [the victim's] backyard"; and (5) that he told his grandson that he saw Davisson "actually on the fence." Davisson argues the statements made by Engelke are defamatory per se because they impute criminal conduct to him

"For a statement to be defamatory, it must be false, it must be communicated to another, and it must tend to harm the plaintiff's reputation." Bol v. Cole, 561 N.W.2d 143, 146 (Minn. 1997) (citing Stuempges v. Parke, Davis, & Co., 297 N.W.2d 252, 255 (Minn. 1980)). Only false and defamatory statements are actionable. Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986).

Expressions of opinion, rhetoric, and figurative language are generally not actionable if, in context, the audience would understand the statement is not a representation of fact.

Id. "If the statement is true in substance, inaccuracies of expression or detail are immaterial." Id. Where the underlying facts are undisputed, the question of whether a statement is substantially accurate is one of law. Id. An accusation of a crime, if false, constitutes slander per se. Anderson v. Kammeier, 262 N.W.2d 366, 371 (Minn. 1977).

Here, the statements made by Engelke do nothing more than honestly explain his observation of Davisson's conduct. In light of the subsequent investigation, arrest, finding of probable cause, and conviction of Davisson by proof beyond a reasonable doubt, Engelke's statements fit squarely within "if the statement is true in substance," and any "inaccuracies of expression or detail are immaterial." See Jadwin, 390 N.W.2d at 441.

As the district court concluded, the statements by Engelke merely "presented Engelke's impression of what the stranger was doing near his neighbor's house * * *," and are not defamatory per se. Also, essential to any defamation action is a determination that the alleged statements concern, or are understood to concern, the plaintiff. Covey v. Detroit Lakes Printing Co., 490 N.W.2d 138, 143 (Minn. App. 1992). Engelke simply reported to his grandson and the police that he observed an unknown person engaging in suspicious activity around his neighbor's property. Only after the police investigation began did Engelke learn that the unknown individual he reported seeing was Davisson.

Engelke acted properly, as any citizen may, in calling to the attention of law enforcement suspicious conduct that he observed in his neighborhood. The ultimate determination of what is or is not criminal conduct is for the prosecuting authorities, and finally the courts. Engelke could make the statements he did without having to sweat out whether or not there would be a later criminal conviction. The fact that there was a later criminal conviction only serves to substantially bolster an already strong case for good faith conduct on the part of Engelke.

Next, Davisson maintains that the district court improperly recognized a new "intra-family" privilege, and that if any qualified privilege did exist, it was lost because Engelke abused it by using exaggerated language and thereby acted with malice. We disagree.

An individual "who makes a defamatory statement will not be held liable if the statement is published under circumstances that make it qualifiedly privileged and if the privilege is not abused." Bol, 561 N.W.2d at 149. A statement made in good faith, upon a proper occasion, from a proper motive, and based upon reasonable or probably cause is protected by a qualified privilege. Id. (citing Stuempges, 297 N.W.2d at 256-57). The privilege is abused and lost if the declarant acts with actual malice. Lewis v. Equitable Life Assurance Soc'y of the United States, 389 N.W.2d 876, 889 (Minn. 1986). The burden of proving actual malice is on the plaintiff. Frankson v. Design Space Int'l, 394 N.W.2d 140, 144 (Minn. 1986). "'Malice may be proved by extrinsic evidence of personal ill feeling, or by intrinsic evidence [like] exaggerated language * * *, the character of the language used, the mode and extent of publication, and other matters in excess of the privilege.'" Id. (quoting Friedell v. Blakely Printing Co., 163 Minn. 226, 231, 203 N.W. 974, 976 (1925) (citation omitted)). The question of "[w]hether a qualified privilege exists is a question of law for the court to decide." Bol, 561 N.W.2d at 149.

Here, the district court did not err in ruling that Engelke's statements were protected by a qualified privilege. To begin, a qualified privilege exists for statements made to law enforcement personnel. Smits v. Wal-Mart Stores, Inc., 525 N.W.2d 554, 557 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995). Thus, the statements Engelke made to the police are protected by a qualified privilege.

Similarly, the two statements made by Engelke to his grandson are protected by a qualified privilege. Contrary to Davisson's arguments, the district court did not recognize a new "intra-family" privilege. The court simply applied the test used to determine whether a qualified privilege existed under the circumstances and concluded, based on the record, that the elements required to establish such a privilege had been satisfied. We agree with the district court's analysis. The statements made by Engelke were made at the moment he observed the stranger's suspicious behavior and because he was concerned about his neighbor, a young television anchor woman who lived alone. Engelke's statements were made in good faith, upon a proper occasion, and from a proper motive. They were therefore protected by a qualified privilege.

Davisson argues that the district court committed reversible error because it denied him the opportunity to engage in discovery on the issue of malice. But the record is absolutely devoid of any evidence that would support a finding that Engelke acted with malice. There is no indication that additional discovery would lead to any such evidence. It is undisputed that at the time of his observations and statements, Engelke did not know Davisson and the two men were complete strangers. There is no evidence that Engelke was motivated by anything except his concern about suspicious activity occurring in his neighborhood. There is no evidence either in the record or alleged by Davisson on appeal that could support a finding that Engelke acted with actual malice. The record unequivocally establishes that Engelke made the statements to his grandson and police because he was genuinely concerned about the safety and well-being of his neighbor. The record unequivocally establishes that Engelke's statements turned out to be honest and accurate observations of criminal conduct which Engelke called to the attention of the authorities.

Finally, Davisson argues the district court erred in imposing sanctions. Pursuant to Minn. R. Civ. P. 11 and Minn. Stat. § 549.21, subd. 2 (1996), the district court imposed sanctions against Davisson and his attorney Tanick in the amount of the $2,500. The court found that Davisson's complaint was "baseless, frivolous and asserted in bad faith." We agree. It is difficult to find malice in a true statement that not only turns out to be true, but ultimately results in a criminal conviction. A subsequent criminal conviction is not the test; but a subsequent criminal conviction affirms, by proof beyond a reasonable doubt, by an independent factfinder, the accuracy, in this case, of what the first witness to the event told the police. Although a subsequent criminal conviction is not the test, it stands for honesty on Engelke's part, and certainly not malice.

A Rule 11 sanction is reviewed under an abuse of discretion standard. Uselman v. Uselman, 464 N.W.2d 130, 145 (Minn. 1990). Under this standard, this court asks whether there was "an objectively reasonable basis for pursuing a factual or legal claim or [whether] a competent attorney could form a reasonable belief [that] a pleading is well-grounded in fact and law" and "is not interposed for any improper purpose." Id. at 143; Minn. R. Civ. P. 11. If it is determined that Rule 11 has been violated, sanctions are mandatory. Id. at 142.

The district court concluded that Davisson's lawsuit was frivolous because there was no objectively reasonable basis for Davisson to allege that Engelke defamed him with malice. Engelke merely was reporting repeated suspicious conduct by an unknown individual in his neighborhood. Engelke accurately described the individual's appearance, clothes, and car, including the vehicle's license plate numbers. Based on this description, the police were able to apprehend the individual. The person turned out to be Davisson. Given the timing of Davisson's suit against Engelke, we are left with the firm belief that it was instituted in an attempt to obtain discovery for use in Davisson's criminal trial and to intimidate Engelke, the state's principal witness. See In re Kuntsler, 914 F.2d 505, 519-20 (4th Cir. 1990) (holding that obtaining civil discovery for use in criminal trial and the intimidation of persons involved in plaintiff's criminal trial are improper purposes under Federal Rule 11). Commencing a civil lawsuit to engage in discovery to circumvent the limited discovery allowed in criminal matters or to intimidate state witnesses are improper purposes under Rule 11. We find the district court properly awarded sanctions on behalf of respondent and against Davisson and his attorney.

Davisson relies on an affidavit describing the pre-suit investigation conducted by Tanick. This affidavit was not submitted to the district court until after the hearing on Engelke's motion for sanctions. See Dalco Corp. v. Dixon, 338 N.W.2d 437, 440 (Minn. 1983) (holding that district court was precluded from considering affidavits and depositions submitted after summary judgment hearing but before district court entered its order). The affidavits of attorney Tanick and Patrick Smith, submitted after the summary judgment hearing, were untimely, the district court was precluded from considering them, and they do not establish a basis for reversal.

On appeal, respondent requests sanctions against Davisson and Tanick in the form of an award of attorney fees because this appeal "represents the continued bad faith prosecution of a frivolous claim." We agree. Pursuit of a frivolous claim on appeal may justify an award of attorney fees. Minn. Stat. § 549.21, subd. 2 (1996); see Knecht Bros. v. Ames Constr., Inc., 404 N.W.2d 859, 861 (Minn. App. 1987). Davisson's continued pursuit on appeal of this defamation claim is frivolous. At the very least it should have become clear to Davisson and Tanick that after Davisson's criminal conviction for stalking, further pursuit of a defamation claim, characterized before conviction as baseless and frivolous, was now completely and irrevocably unwarranted. An acquittal of Davisson on all criminal charges would not have been a bar to Engelke's successful defense of the defamation claim. But the resulting criminal conviction of Davisson can appropriately be likened to an absolute bar by Davisson to any claim that his continued lawsuit against Engelke was continued in good faith.

Accordingly, pursuant to Minn. Stat. § 549.21, subd. 2, we award respondent an additional $12,000 in attorney fees and costs on appeal.