This opinion will be unpublished and

may not be cited except as provided by

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




David Carroll,



Renee Kestell, et al.,


Andrew Lucking, et al.,


Filed December 23, 1997

Affirmed; motions denied

Forsberg, Judge**

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

Hennepin County District Court

File Nos. 96-7735, 96-7736

David Carroll, 2925 Dean Parkway, #705, Minneapolis, MN 55416 (pro se appellant)

Thomas Darling, Carl Crosby Lehmann, Gray, Plant, Mooty, Mooty & Bennett, P.A., 3400 City Center, 33 South Sixth Street, Minneapolis, MN 55402 (for respondents Renee Kestell and Michael Kestell)

Richard Baldwin, 810 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for respondents Andrew Lucking and Robert Gallagher)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge.



Appellant David Carroll seeks review of the district court's award of summary judgment and attorney fees to respondents. Carroll's claims are either time-barred, barred because he asserts causes of action that this court cannot address, or barred because he has not alleged sufficiently specific facts. Accordingly, the district court's judgments granting summary judgment and attorney fees for respondents are affirmed.


On an appeal from summary judgment, we ask two questions: (1) whether any genuine issues of material fact exist and (2) whether the district court erred in its application of the law. Offerdahl v. University of Minn. Hosp. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). The reviewing court views "the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). A party may not rely on mere allegations of fact to avoid summary judgment. Minn. R. Civ. P. 56.05. The construction of a statute, including a statute of limitation, is a question of law and is subject to de novo review on appeal. Ryan v. ITT Life Ins. Corp., 450 N.W.2d 126, 128 (Minn. 1990).

Carroll appears to be challenging the district court's decision in its entirety. After a review of the record, including five supportive third-party affidavits submitted to this court, we conclude that Carroll's complaint seeks to reopen issues decided by a 1992 restraining order. His claims are for alleged injuries that occurred as a result of respondents' roles in the restraining order hearing. His complaint, answers to interrogatories, deposition, and supportive third-party affidavits all refer to activities that either occurred at the time of the restraining order, after the time of the restraining order but outside of the statute of limitations period, or are vague allegations insufficient to defeat summary judgment.

Carroll's affidavits and brief fail to establish any conduct by any respondent that occurred during or after April 1994. Accordingly, we hold that the following causes of action are barred by a two-year statute of limitations: libel, slander, assault, intentional infliction of emotional distress, defamation, and wrongful interference with business relations. See Minn. Stat. § 541.07 (libel, slander, assault); Christenson v. Argonaut Ins. Cos., 380 N.W.2d 515, 518 (Minn. App. 1986) (intentional infliction of emotional distress), review denied (Minn. Mar. 27, 1986); McGaa v. Glumack, 441 N.W.2d 823, 825 (Minn. App. 1989) (for defamation, statute of limitations begins at time of publication), review denied (Minn. Aug. 15, 1989); Wild v. Rarig, 302 Minn. 419, 447, 234 N.W.2d 775, 793 (1975) (section 541.07 applies where claimed wrongful interference with business occurs through defamation).

Similarly, Carroll's claims of perjury are barred by a three-year statute of limitations because he has alleged no perjury by respondents that occurred during or after April 1993. Minn. Stat. § 548.14 (1996) ("Any judgment obtained in a court of record by means of perjury, * * * may be set aside in an action brought for that purpose by the aggrieved party in the same judicial district within three years after the discovery by the aggrieved party him of such perjury or fraud.").

Additionally, we hold that Carroll has raised issues of invasion of privacy and terroristic threats, for which Minnesota courts have not allowed recovery in a civil action. See Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 28 (Minn. 1996) (Minnesota "has never recognized, either by legislative or court action, a cause of action for invasion of privacy, even though many other states have done so") (quoting Hendry v. Conner, 303 Minn. 317, 319, 226 N.W.2d 921, 923 (1975)); see also Minn. Stat. § 624.712, subd. 5 (1996) (defines crimes of violence to include terroristic threats). Accordingly, we do not consider these issues.

Finally, we conclude that Carroll has not raised facts sufficient to state a cause of action for malicious prosecution or negligent infliction of emotional distress against any of the respondents. It appears that Carroll's claim for malicious prosecution revolves around Kestell's restraining order. A cause of action for malicious prosecution requires Carroll to prove that Kestell maliciously and intentionally sought the restraining order without probable cause and with no reasonable ground on which to base a belief that she would ultimately prevail on the merits. Jordan v. Lamb, 392 N.W.2d 607, 609 (Minn. App. 1986), review denied (Minn. Oct. 29, 1986). The original referee and the district court, in a motion to review, already determined that Carroll's behavior was threatening enough to merit a restraining order and Carroll did not appeal that issue to this court. Accordingly, it is clear that Kestell had probable cause for seeking a restraining order. Carroll cannot maintain a cause of action for malicious prosecution against any of the other respondents.

While Carroll's submissions to this court do not refer specifically to negligent infliction of emotional distress as a possible cause of action, in order to view the facts in a light most favorable to the party against whom summary judgment was granted, we will address the requirements of such a claim. To establish a cause of action for negligent infliction of emotional distress, Carroll must raise fact issues that he "was within a zone of danger of physical impact, reasonably feared for [his] safety, and consequently suffered severe emotional distress with resulting physical injury." Doan v. Medtronic, 560 N.W.2d 100, 106, (Minn. App. 1997), review denied (Minn. May 14, 1997). An exception to the zone of danger rule exists if a person can prove "a direct invasion of his rights, such as defamation, malicious prosecution, or other willful, wanton or malicious conduct." Id. (quoting Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 907 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987)). In this case, Carroll has not alleged facts that suggest he was in the zone of danger. Cf. Quill v. Trans World Airlines, Inc., 361 N.W.2d 438, 443 (Minn. App. 1985) (airline passenger suffered negligent infliction of emotional distress when "pinned to a seat by gravity forces as an airplane twists and screams toward earth at just under the speed of sound. The nature of that experience guarantees plaintiff suffered severe emotional distress * * *."), review denied (Minn. Apr. 18, 1985). Furthermore, since he is unable to establish any direct invasion of his privacy through malicious prosecution or defamation, he does not fit within the exception to the zone of danger test. Doan, 560 N.W.2d at 106-07.

Lastly, we review the district court's award of attorney fees under an abuse of discretion standard. Radloff v. First Am. Nat'l Bank, 470 N.W.2d 154, 156 (Minn. App. 1991), review denied (Minn. July 24, 1991). Where a party asserts multiple baseless causes of action, sanctions are appropriate. Id. at 157. Apart from specifically finding that Carroll's claims all evolved out of the 1992 restraining order, the district court also determined that Carroll was uncooperative during discovery, increased the legal expenses incurred by respondents, and continued to file motions and requests even after summary judgment was granted. In light of these facts, we affirm the district court's award of costs and fees. Because Carroll's reply brief and "list of authorities" are untimely, we do not consider them and strike them from the record.

Affirmed; motions denied.