This opinion will be unpublished and

may not be cited except as provided by

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




Carol Mulinix,



Michael Mulinix,


Brooklyn Evangelical Lutheran Church, et al.,


Filed September 22, 1997


Peterson, Judge

Hennepin County District Court

File No. PI960002461

Madge S. Thorsen, Jennifer L. Frisch, Kelly & Berens, P.A., 3720 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)

Kenneth F. Daniels, James J. Moran, 4725 Olson Memorial Highway, Minneapolis, MN 55422 (for respondent Michael Mulinix)

Richard L. Pemberton, Jr., W.D. Flaskamp, Leatha G. Wolter, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN (for respondents Brooklyn Evangelical Lutheran Church, Minnesota District of the Wisconsin Synod, and the Wisconsin Evangelical Lutheran Synod)

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



In this appeal from a summary judgment, appellant argues: (1) the district court erred in dismissing her defamation claims because material issues of fact exist; (2) this court should recognize a cause of action for invasion of privacy; (3) the district court erred in dismissing her claim for negligent infliction of emotional distress; (4) the district court erred in dismissing her negligence claims; (5) the First Amendment does not preclude a claim for negligent supervision or wrongful retention; and (6) this court should recognize a cause of action for clergy malpractice. We affirm.


Respondent Wisconsin Evangelical Lutheran Synod (WELS) is a nonprofit corporation with its principal headquarters in Milwaukee, Wisconsin. WELS is divided into 12 jurisdicitonal areas called districts one of which is respondent Minnesota District of the Wisconsin Evangelical Lutheran Synod (MN District). Respondent Brooklyn Evangelical Lutheran (Brooklyn Lutheran) is a congregation located in Brooklyn Park, and is part of the MN District of WELS.

Appellant Carol Mulinix and respondent Michael Mulinix were married in 1975. Michael has served as pastor of Brooklyn Lutheran since 1977. As the wife of a pastor, Carol performed volunteer duties at the church, but was never an employee.

In 1993, Michael filed for divorce. At Michael's request, the district court issued a restraining order against Carol to prevent her from making any comments that would harm Michael's employment as pastor. During this period, Michael told Carol that he had been involved in extramarital sexual relationships with four women parishioners. None of these four women has ever been identified nor has any reported being involved in a sexual relationship with Michael.

In 1994, the Mulinixes attended marital counseling together with Dr. Linda Hammer-Burns, a licensed psychologist. During the course of two or three counseling sessions, Dr. Hammer-Burns learned that Michael had told Carol that he had sexual affairs with women in his congregation.

Dr. Hammer-Burns told a pastor of a neighboring congregation about Michael's alleged sexual relationships with parishioners. MN District President Larry Cross spoke with the Brooklyn Lutheran council and Michael regarding Dr. Hammer-Burns's allegations. Michael denied having inappropriate sexual contact with parishioners.

Cross met again with Michael. During this meeting, Michael admitted telling Carol he had extramarital affairs with parishioners, but claimed that he fabricated this story to persuade Carol to continue with the divorce proceedings. Cross also met with Carol, but she declined to provide him details regarding Dr. Hammer-Burns's allegations because of the existence of the restraining order.

MN District recommended that Michael resign as minister of Brooklyn Lutheran, but Brooklyn Lutheran overruled the recommendation and decided that Michael should continue as pastor. MN District hired an investigator to further explore Dr. Hammer-Burns's allegations. Dr. Hammer-Burns refused to comment further on the allegations until she received releases from both Michael and Carol. Michael was asked to provide a release, but did not comply with this request. In meetings with the investigator and church authorities, Carol refused to provide the names of the parishioners with whom Michael allegedly had sexual relationships, due to the existence of the restraining order.

The Mulinixes were divorced by decree dated March 15, 1995. The divorce decree stated:

Except as set forth herein, neither party shall have any further claim of any kind against the other party arising out of the marital relationship of the parties.

At a meeting in May 1995, Brooklyn Lutheran voted to retain Michael as pastor. Carol claims that at this meeting, Michael stated that he was not guilty of sexual misconduct, that he had biblical grounds for the divorce, and that he wished to remain as pastor. Carol claims she was treated poorly at this meeting and chose to leave early.

Based upon the alleged sexual contacts with parishioners and her mistreatment during the investigation of the allegations, Carol brought suit against Michael, Brooklyn Lutheran, MN District, and WELS. Carol claimed clergy malpractice, defamation, negligent and intentional infliction of emotional distress, negligence, and invasion of privacy against Michael. She also claimed negligent supervision and retention, respondeat superior, negligence, clergy malpractice, and invasion of privacy against Brooklyn Lutheran, the MN District, and WELS.


On appeal from summary judgment, this court must determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). This court must view the evidence in the light most favorable to the nonmoving party. Id. The nonmoving party, however,

cannot rely on the pleadings alone to defeat a summary judgment motion but instead must produce specific facts which establish the existence of a genuine issue for trial.

Krogness v. Best Buy Co., 524 N.W.2d 282, 285 (Minn. App. 1994), review denied (Minn. Jan. 25, 1995).

[S]ummary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.

Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).

1. Defamation

Carol argues that the district court erred in granting summary judgment on her defamation claims because material issues of fact existed. In her complaint, Carol alleged that Michael published six false statements about her: (1) Carol falsely accused Michael of sexual misconduct; (2) Carol filed for divorce; (3) Michael's admissions of marital infidelity were false and were intended to force Carol into marital counseling; (4) Carol engaged in marital infidelity; (5) Carol engaged in instances of bizarre and/ or inappropriate conduct; and (6) Michael was not violent.

A statement is defamatory if it: (1) is communicated to someone other than the plaintiff; (2) is false; and (3) tends to harm the plaintiff's reputation and lower her in the estimation of the community. Stuempges v. Park, Davis & Co., 297 N.W.2d 252, 255 (Minn.1980). Truth is an absolute defense to a defamation claim based on a statement of fact. Id.; see Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-22, 110 S. Ct. 2695, 2606-07 (1990) (distinguishing between statements of fact and statements of opinion for purposes of a defamation claim).

Carol's brief on appeal does not address the first of the six alleged defamatory statements. Therefore, any defamation claim based on that statement has been waived. See Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987) (issue not argued in briefs deemed waived on appeal).

Our examination of the record reveals that Carol did not present evidence sufficient to establish genuine fact issues regarding the falsity of statements (2), (3), and (6).[1] It is undisputed that Carol filed a countersuit for divorce. Therefore, the statement that she filed for divorce is not false. In her brief, Carol suggests that the false statement was that she had filed for divorce first, but the statement she cites in the record was simply that she had filed for divorce.

Carol argues that statement (3) was false because she was willing to enter counseling and did not need to be forced to do so. But Carol did not produce any evidence that Michael was aware of her willingness to enter counseling. Carol's statement that she was willing to enter marital counseling does not establish a genuine fact issue regarding the falsity of Michael's statement that he intended to force Carol into counseling by falsely admitting marital infidelity.

Similarly, to establish a genuine issue of fact regarding the falsity of statement (6), Carol had to introduce evidence that Michael was violent. The only evidence of Michael's violence was Carol's conclusory statement that Michael was violent. This conclusory statement contained no specific facts about any violent acts and was not sufficient to establish as a genuine issue for trial whether the statement, "Michael was not violent," was false.

With regard to statement (4), Carol claims that Michael told Cross and possibly others that she engaged in extramarital affairs, when she had not. As evidence that Michael made this statement, Carol cites only Cross's deposition.[2] When asked whether Michael ever told him that Carol had engaged in marital infidelity, Cross responded, "He may have." Carol argues that this response establishes a genuine issue of fact that precludes summary judgment. We disagree.

A genuine issue must be established by "substantial evidence." The standard is not defined, but it has been applied to require evidence sufficient to avoid a directed verdict at trial.

Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976) (citations omitted).

In explaining whether evidence is sufficient to avoid a directed verdict, the supreme court has stated:

Where the entire evidence sustains, with equal justification, two or more inconsistent inferences so that one inference does not reasonably preponderate over the others, the complainant has not sustained the burden of proof on the proposition which alone would entitle him to recover. It becomes the duty of the trial court to direct a verdict because failing to do so would cause any verdict to the contrary to be based on pure speculation and conjecture.

E. H. Renner & Sons, Inc. v. Primus, 295 Minn. 240, 243-44, 203 N.W.2d 832, 835 (1973).[3]

Cross's testimony that Michael may have told him that Carol engaged in marital infidelity sustains with equal justification the inconsistent inferences that Michael did tell him and that Michael did not tell him. The inference that Michael made the statement does not reasonably preponderate over the inference that he did not make the statement. The evidence is not sufficiently probative to establish that Michael made the statement, and, therefore, does not establish the existence of a genuine fact issue for trial. Reasonable persons could not draw the conclusion that Michael made the statement from evidence that indicates only that he may have made the statement. See DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997) (there is not genuine issue of material fact for trial when nonmoving party presents evidence that merely creates metaphysical doubt about factual issue and is not sufficiently probative with respect to essential element of nonmoving party's case to permit reasonable persons to draw different conclusions).

With regard to alleged defamatory statement (5), Carol argues that Michael told a church secretary, a women identified as "JB" a number of falsehoods that accused Carol of bizarre or inappropriate conduct. She asserts that JB republished the false statements in a March 1995 letter entitled "Experiences at Brooklyn Lutheran Church" that was circulated to Cross and church elders. She claims that this letter establishes as a genuine issue for trial whether Michael made the statements contained in the letter.

The district court ruled that the statements contained in the letter were inadmissible hearsay. We agree. Hearsay is inadmissible evidence and must be disregarded on a motion for summary judgment. Murphy, 307 Minn. at 349, 240 N.W.2d at 511 (1976). The letter written by JB was hearsay under Minn. R. Evid. 801, and was inadmissible because Carol did not present a supporting affidavit. See Minn. R. Civ. P. 56.05 (form of affidavits supporting a summary judgment motion).

Carol also argues that the district court erred in concluding that her defamation claims were barred by the provision in the divorce decree that barred claims arising out of the marital relationship and in concluding that Brooklyn Lutheran, MN District, and WELS were not liable for any defamatory statements made by Michael concerning Carol. Because Carol failed to establish a prima facie case of defamation against Michael, we need not address these arguments.

2. Invasion of Privacy

Carol appeals the district court's ruling that Minnesota does not recognize claims for invasion of privacy. Invasion of privacy is a term that has been used to refer to four different causes of action: (1) appropriation of the plaintiff's name or likeness for commercial benefit; (2) unreasonable intrusion into the plaintiff's seclusion; (3) public disclosure of private facts about the plaintiff; and (4) placing the plaintiff in a false light before the public. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 117, at 851-66 (5th ed. 1984).

Minnesota courts have not recognized any of the four invasion of privacy torts. See Hendry v. Conner, 303 Minn. 317, 319, 226 N.W.2d 921, 923 (1975) (noting that Minnesota has not recognized a cause of action for invasion of privacy); see also Stubbs v. North Mem'l Med. Ctr., 448 N.W.2d 78, 80-81 (Minn. App. 1989) (declining to recognize cause of action for invasion of privacy), review denied (Minn. Jan. 12, 1990); cf. Richie v. Paramont Pictures Corp., 544 N.W.2d 21, 28 (Minn.1996) (declining to allow emotional harm as the basis of a defamation action because it would be inconsistent with the supreme court's rejection of invasion of privacy claims). Therefore, the district court properly dismissed Carol's claim for invasion of privacy.

3. Negligent Infliction of Emotional Distress

Carol argues the district court erred in dismissing her claim for negligent infliction of emotional distress.

In an action for negligent infliction of emotional distress, the plaintiff must show that he was within the "zone of danger," and reasonably feared for his safety. Stadler v. Cross, 295 N.W.2d 552, 553 (Minn. 1980). However, an exception to the "zone of danger" rule is available if the plaintiff can show a "direct invasion of his rights, such as defamation, malicious prosecution, or other willful, wanton or malicious conduct." Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 907 (Minn. App. 1987), pet for rev. denied (Minn. Nov. 13, 1987).

Soucek v. Banham, 503 N.W.2d 153, 163 (Minn.App.1993) (citations omitted).

Carol claims that her emotional injuries fall within the exception to the "zone of danger" requirement because she suffered physical and psychological injury from Michael's acts of defamation and invasion of privacy. However, because Carol failed to establish her predicate claim of defamation and Minnesota does not recognize a cause of action for invasion of privacy, the district court properly dismissed her claim for negligent infliction of emotional distress.

4. Negligence in Investigating Complaints

Carol asserted a claim against all defendants for negligently investigating allegations of sexual misconduct by Michael. The district court concluded that because Carol was not the object of improper sexual contact by Michael and Minnesota does not recognize the "secondary victim" status claimed by Carol, Carol has no legally cognizable claim for negligently investigating the allegations. We agree. Carol does not claim that Michael had improper sexual contact with her, and she cites no authority that Minnesota has recognized her "secondary victim" status.

5. Wrongful Retention and Negligent Supervision

Carol asserts that the district court erred in holding that her claims against Brooklyn Lutheran, MN District, and WELS for wrongful retention and failure to offer appropriate advice or spiritual guidance were barred by the First Amendment of the United States Constitution.

The establishment clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I. The First Amendment applies to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903 (1940). Under the establishment clause, an exercise of governmental authority is valid if it (1) has a secular purpose, (2) neither inhibits nor advances religion as its primary effect, and (3) does not create excessive entanglement between church and state. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111 (1971). However, in Geraci v. Eckankar, 526 N.W.2d 391 (Minn. App. 1995), review denied (Minn. Mar. 14, 1995), we questioned

Lemon's continuing vitality subsequent to the Supreme Court's decision in Board of Educ. v. Grumet, [512] U.S. [687], 114 S. Ct. 2481 * * * (1994), where the court did not rely on Lemon, but used neutrality principles when analyzing the Establishment Clause.

Id. at 400 (citing Grumet, 512 U.S. at 750-51, 114 S.Ct. at 2515 (Scalia, J., dissenting)). "Under Grumet, governmental power must be exercised in a religiously neutral manner." Id. (citing Grumet, 512 U.S. at 704, 114 S.Ct. at 2491).

Under Lemon, the question is whether there is excessive entanglement and, under Grument, whether the governmental action is religiously neutral. Whether government action causes excessive entanglement depends on the nature of the intrusion into religious administration, the character and purpose of the involved institutions, and the resulting relationship between the religious authority and government. Lemon, 403 U.S. at 615, 91 S.Ct. at 2112; Black v. Snyder, 471 N.W.2d 715, 720 (Minn.App.1991), review denied (Minn. Aug. 29, 1991). If a claim involves core issues of ecclesiastical concern, the potential for excessive government precludes judicial review. Serbian E. Orthodox Diocese for the U.S. & Can. v. Milivojevich, 426 U.S. 696, 721-23, 96 S.Ct. 2372, 2386-87 (1976) (holding that the First Amendment barred judicial review of diocese reorganization, which was conducted pursuant to church constitution). If the court can resolve the dispute by looking only to neutral principles of law, however, judicial review is permissible. Jones v. Wolf, 443 U.S. 595, 602-05, 99 S.Ct. 3020, 3025-26 (1979); Piletich v. Deretich, 328 N.W.2d 696, 701 (Minn.1982). Courts refrain from considering claims that require "a searching and therefore impermissible inquiry" into church governance. Milivojevich, 426 U.S. at 723, 96 S.Ct. at 2387.

Carol contends that her claims for negligent retention and negligent supervision involve purely secular conduct and do not involve inquiry into church doctrine. Carol's claims for negligent retention and negligent supervision are fundamentally connected to issues of church governance. Adjudication of these claims would necessitate inquiry into the church's motives for not discharging Michael, as well as how the church investigates and resolves complaints concerning clergy misconduct. We conclude that under either the Lemon or Grumet analysis, Carols claims involve ecclesiastical concerns. Therefore, the district court did not err in concluding that the claims were barred by the First Amendment of the United States constitution.

6. Clergy Malpractice

Because Minnesota does not recognize a cause of action for clergy malpractice, the district court properly dismissed this claim.


[ ]1In her deposition, Carol stated that Michael accused her of "drinking" and identified this accusation as an additional defamatory statement. Carol did not present evidence that this statement is false.

[ ]2Carol also cites paragraph 9 of her affidavit and her deposition testimony. Paragraph 9 does not state that Michael said that Carol engaged in marital infidelity and the deposition testimony contains only an allegation.

[ ]3 We recognize that there is a difference between a summary judgment and a directed verdict. See DHL, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997) (explaining difference between summary judgment and directed verdict). However, the directed verdict standard is appropriate in this case to test the legal sufficiency of the evidence presented by Carol.