This opinion will be unpublished and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
CX-98-140

Milavetz, Gallop & Milavetz, P.A., et al.,
Appellants,

vs.

Robert A. Hill, et al.,
Respondents,

Marie Gellerman a/k/a Melissa Doe,
Respondent,

John Doe I-X, et al.,
Defendants.

Filed July 28, 1998
Affirmed
Kalitowski, Judge

Hennepin County District Court
File No. 975618

Phillip S. Resnick, Scott J. Seiler, Resnick & Seiler, P.L.L.P., 1925 Rand Tower, 527 Marquette Avenue South, Minneapolis, MN 55402 (for appellants)

Paul A. Sortland, Sortland Law Office, 701 Fourth Avenue South, Minneapolis, MN 55415-1654 (for respondents Robert A. Hill, et al.)

James H. Kaster, Paul J. Lukas, Nichols Kaster & Anderson, 4644 IDS Center, Minneapolis, MN 55402 (for respondent Marie Gellerman)

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Davies, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant law firm brought an action against respondents, alleging they were seeking to defraud the law firm and coerce it into settling a frivolous lawsuit. In challenging the dismissal and summary judgment of its case, the law firm contends its complaint set forth facts that gave rise to claims and material issues of fact regarding coercion, attempted coercion, defamation, conversion, trespass, conspiracy to defraud, and fraud. We affirm.

FACTS

Respondent Marie Gellerman worked as a legal secretary for appellant Milavetz, Gallop & Milavetz, P.A. (the law firm) from August 1992 through October 1996. She alleges that she resigned due to repeated acts of sexual harassment, reprisal, and retaliation from appellant Robert Milavetz. She consulted respondents Robert Hill and Robert Hill and Associates (Hill) to discuss bringing a lawsuit against the law firm.

The law firm brought this action against respondents, alleging that they had tried to coerce it into settling a frivolous lawsuit. The district court granted respondent Hill's motion to dismiss all claims against it. Subsequently the district court granted respondent Gellerman's motion for summary judgment on the claims against her.

D E C I S I O N

I.

When reviewing a case dismissed for failure to state a claim upon which relief can be granted, the appellate court considers only one question: did the complaint set forth a legally sufficient claim for relief? Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980); see also Minn. R. Civ. P. 12.02(e) (allowing party to move for dismissal of action on basis of plaintiff's failure to state a claim upon which relief can be granted). Because Minnesota is a general notice pleading state, a claim in a complaint will withstand a motion to dismiss if it would be possible to grant relief based on any evidence that could be produced consistent with the pleading. Northern States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963), cited in Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997).

When reviewing a dismissal, this court must construe the pleadings in favor of the nonmoving party whose claim was dismissed. Ryan v. Lodermeier, 387 N.W.2d 652, 653 (Minn. App. 1986). In district court and now on appeal, Hill argues that, even if all alleged facts were true, dismissal was appropriate because no legal basis exists for the firm's claims. We agree.

A. Fraud

The law firm contends it presented sufficient facts in the complaint to withstand dismissal of the fraud claim because it alleged that Hill made affirmative misrepresentations and conspired with Gellerman to defraud the law firm. The district court properly determined this claim fails because the law firm failed to plead fraud specifically in the amended complaint.

A party must plead "with particularity" all circumstances constituting fraud or mistake. Minn. R. Civ. P. 9.02; see also Fitzgerald v. St. Joseph's Hosp., 301 Minn. 493, 494, 221 N.W.2d 702, 703 (1974) (affirming dismissal of fraud action where party seemed to be alleging conspiracy to defraud, but pleadings lacked specificity); McBroom v. Al-Chroma, Inc., 386 N.W.2d 369, 374 (Minn. App. 1986) (complaint must allege elements of intent, inducement, and reliance).

Here, the plain language of the amended complaint failed to plead fraud or its elements with specificity. The law firm alleged that Hill acted in concert with Gellerman and others to make false, defamatory statements, to deceive, and to extort money from the law firm. However, even if we extrapolate the necessary elements of intent and inducement from these allegations, the law firm has not pleaded reliance or damages. Indeed, because the law firm refused to settle and instead filed this lawsuit, the record shows reliance and damages never occurred. As in Fitzgerald, 301 Minn. at 494, 221 N.W.2d at 703, the complaint failed to plead fraud with particularity when it merely discussed the conspiracy to defraud. We conclude the district court did not err when it dismissed the fraud claim.

B. Private Cause of Action under Minn. Stat. 609.275

The law firm raised a civil claim for coercion and attempted coercion, based on Hill's alleged violation of criminal statutes prohibiting coercion. See Minn. Stat. 609.27, 609.275 (1996) (defining and prohibiting coercion and attempted coercion). The district court correctly ruled that unless a criminal statute specifically provides for a civil cause of action, such a cause of action is not created. Larson v. Dunn, 460 N.W.2d 39, 47 n.4 (Minn. 1990). Because neither section 609.27 nor section 609.275 provides for a civil cause of action, the district court properly concluded the law firm could not maintain a civil claim against Hill for violation of the statute.

The district court also correctly ruled that the law firm has no civil remedy pursuant to Minn. Stat. 8.31 (1996). That statute sets forth additional duties for the state attorney general, including the obligation to investigate violations of the law regarding business and trade. The statute references a nonexclusive list of laws, none of which is criminal in nature. The statute also provides a private cause of action for any person injured by a violation of the cited laws. Id., subd. 3a. We agree with the district court that section 8.31, by generally allowing claims from a nonexclusive list of civil statutes, does not alter the rule that, absent specific statutory language, a criminal violation does not create a private cause of action. See Larson, 460 N.W.2d at 47 n.4.

C. Attorney Misconduct

The law firm contends the district court erred by ruling the firm could not maintain an action for violation of the statutes setting out penalties for attorney misconduct because it was not in an attorney-client relationship with Hill. See Minn. Stat. 481.07-.071 (1996) (penalizing attorney deceit, collusion, and misconduct). We disagree. An essential element for an attorney malpractice action is an attorney-client relationship. See TJD Dissolution Corp. v. Savoie Supply Co., 460 N.W.2d 59, 62 (Minn. App. 1990) (affirming summary judgment against plaintiffs on attorney malpractice claim where no attorney-client relationship existed).

We reject the law firm's interpretation of language in Gilchrist v. Perl, 387 N.W.2d 412, 419 (Minn. 1986), arguing that these statutes allow any deceived party to sue an attorney for damages. Gilchrist involved the requisite attorney-client relationship; plaintiffs sued their former attorney for breach of fiduciary duty in negotiating their settlements. Id. at 414. We conclude the district court did not err in dismissing the claim based on violation of Minn. Stat.  481.07-.071.

D. Defamation

The law firm argues the district court erred when it determined that an absolute privilege protects Hill from the claim of defamation arising from the attempted settlement of Gellerman's claims. Assuming that all of the facts in the amended complaint were true, the district court granted the privilege because the allegedly defamatory statements took place during settlement discussions preliminary to a judicial proceeding.

Initially, we note that an action based on coercion to settle will generally not stand if the plaintiff was not in fact coerced and suffered no damages. Pillsbury Co. v. National Union Fire Ins. Co., 425 N.W.2d 244, 251 (Minn. App. 1988) (main question is whether plaintiff's free will was overcome by coercion), review granted (Minn. July 28, 1988), appeal dismissed (Minn. Mar. 13, 1989). Here, the law firm never lost its free will; it chose to sue rather than settle. In addition, its claimed damages were elective; the law firm chose to respond to the settlement negotiations by filing a lawsuit and hiring counsel. On this basis alone, dismissal was proper.

Further, as the district court properly determined, Hill was entitled to an absolute privilege because all of the alleged defamatory statements regarding the law firm occurred during settlement negotiations preliminary to a proposed judicial proceeding. See Mathis v. Kennedy, 243 Minn. 219, 228, 67 N.W.2d 413, 419 (1954) (holding attorney's communication is absolutely privileged during period preliminary to proposed judicial proceeding); see also Kittler v. Eckberg, Lammers, Briggs, Wolff, & Vierling, 535 N.W.2d 653, 655 (Minn. App. 1995) (whether allegedly defamatory communication is privileged is legal question that this court may review de novo), review denied (Minn. Oct. 10, 1995). The phrase "preliminary to a proposed judicial proceeding" means communication that has some relation to a proceeding contemplated in good faith and under serious consideration. Kittler, 535 N.W.2d at 655. In Kittler, this court held comments attorney made during hearing were relevant and pertinent to issues presented and were absolutely privileged. Id. at 656.

Here, Hill's communications demonstrated serious consideration of a judicial proceeding. Hill had drafted a complaint against the law firm at the time of the settlement talks and had declared its intent to file the complaint unless the law firm met the settlement demands. Contrary to appellant's contention, the district court correctly concluded that Hill's remarks during settlement talks concerning the strengths and weaknesses of the case were made to induce settlement and were therefore not evidence of bad faith that would defeat the privilege.

In Kittler, this court focused on the overarching policy reasons favoring the extension of judicial privilege to attorneys' communication:

Undergirding the immunity conferred by [the judicial privilege] is the broadly applicable policy of assuring litigants the utmost freedom of access to the courts * * * without fear of being harassed subsequently by derivative tort actions.

*  * * * 

[T]he better means of addressing the problem of unjustified litigation is through the adoption of measures facilitating the speedy resolution of the initial lawsuit and authorizing the imposition of sanctions for frivolous or delaying conduct within that first action itself, rather than through an expansion of the opportunities for initiating one or more additional rounds of malicious prosecution litigation after the first action has been concluded.

Kittler, 535 N.W.2d at 657 (quoting Rubin v. Green, 17 Cal.Rptr.2d 828, 831, 834, 847 P.2d 1044, 1047, 1050 (1993)). We noted further:

[T]his action is not the proper vehicle to determine the merit or the lack thereof of [respondents'] claims against [appellants]. By bringing this action, [appellants] effectively obstructed the ability of [respondents] to have their claims against [appellants] heard by a Court of proper jurisdiction. This is exactly the result the judicial privilege was designed to prevent.

Id.

Here, as in Kittler, Gellerman has not yet had the opportunity to bring her claims to court. We agree with our conclusion in Kittler that public policy warranted granting the privilege and allowing the parties to resolve their issues "in a proceeding other than this defamation action." Id. Thus, we conclude the district court properly determined that Hill's statements during settlement negotiations were privileged.

E. Conspiracy

The law firm argues the district court erred when it found no actionable claim for conspiracy to defraud. "Conspiracy is a combination of persons to accomplish an unlawful purpose or a lawful purpose by unlawful means." Lipka v. Minnesota Sch. Employee Ass'n, 537 N.W.2d 624, 632 (Minn. App. 1995), aff'd, 550 N.W.2d 618 (Minn. 1996). Civil conspiracy cannot stand alone, but must be based on a criminal act or an intentional tort. Senart v. Mobay Chem. Corp., 597 F. Supp. 502, 505 (D. Minn. 1984). Persons do not conspire when they join efforts to achieve a goal they have a legal right to attain, even if they are motivated by malice. Id.

The district court properly ruled that Hill's conduct did not meet the definition of conspiracy, because it did not act to achieve an unlawful purpose nor did it use unlawful means to achieve its goals. Because, as discussed above, the law firm has no valid criminal and civil claims, the conspiracy claim must fail.

II.

On review of summary judgment, this court must determine 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).

A. Coercion

The law firm contends it raised genuine issues of material fact regarding the coercion claim against Gellerman. We disagree. The elements of a coercion claim are: a wrongful or unlawful act that is sufficient to constrain the plaintiff against its will to do or refrain from doing something that plaintiff has a legal right to do or not to do; and resulting damages. Pillsbury, 425 N.W.2d at 251. Coercive conduct need not be technically unlawful, but need only be wrongful in the sense that it is "so oppressive" under given circumstances that it constrains the plaintiff to act against his or her free will. Id.

The facts as alleged by the law firm do not raise an issue of wrongful or unlawful conduct on the part of Gellerman. Further, the record indicates the free will of the law firm was not overcome by coercion; it did not settle, but instead countersued. Thus, the damages element is also lacking. The firm did not pay out any money as settlement and chose to incur legal fees in its countersuit. Summary judgment for Gellerman was proper.

The law firm contends the record before summary judgment was incomplete because the district court erred by failing to compel discovery of Gellerman's attorney-client conversations. We disagree. Under Minnesota law, an attorney's statements during the preliminary stages of a proposed judicial proceeding are privileged. Kittler, 535 N.W.2d at 657-58.

B. Attempted Coercion

The law firm alleges the district court erred when it refused to recognize a private cause of action for the criminal offense of attempted coercion. See State v. Bolte, 530 N.W.2d 191, 193 (Minn. 1995) (convicting defendant of attempted coercion, along with other offenses). The firm suggests that, pursuant to Article I, Section 8 of the Minnesota Constitution, the state should offer a civil remedy for this offense. We disagree with this position. The statute does not specifically provide for a private cause of action. See Minn. Stat.  609.275 (describing the offense of attempted coercion and not providing any private cause of action); Larson, 460 N.W.2d at 47 n.4 (criminal statute does not create civil cause of action unless statutory language specifically so provides).

A. Conversion

The law firm argues that it presented evidence to show that Gellerman took the firm's property so as to raise an issue of fact on the conversion claim. The elements of conversion are: (1) plaintiff has a property interest; and (2) defendant deprives plaintiff of that interest. Larson v. Archer-Daniels-Midland Co., 226 Minn. 315, 317, 32 N.W.2d 649, 650 (1948); Lassen v. First Bank Eden Prairie, 514 N.W.2d 831, 838 (Minn. App. 1994), review denied (Minn. June 29, 1994). We conclude the district court properly determined that no issues of fact exist concerning this claim because Gellerman did not deprive the firm of its property. The evidence indicates: (1) Gellerman took home copies of certain documents, but the firm maintained the originals; and (2) Gellerman has returned all documents to the firm. We conclude summary judgment for Gellerman was proper.

D. Trespass

Finally, the law firm alleges the district court erred when it determined that no trespass had occurred. Civil trespass occurs when a defendant unlawfully interferes with a plaintiff's person, property, or rights, Garvis v. Employers Mut. Cas. Co., 497 N.W.2d 254, 259 (Minn. 1993), or gains access to property without consent. Martin v. Smith, 214 Minn. 9, 12, 7 N.W.2d 481, 482 (1942); Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402, 404 (Minn. App. 1995). An entrant who moves beyond the limitation or permission of the owner, may become a trespasser. Copeland, 526 N.W.2d at 404.

The trespass claim arose when Gellerman returned to her office the day after she resigned to retrieve personal items. At the time, Gellerman had possession of the office key the firm had given her. We conclude the district court properly granted summary judgment on the grounds that Gellerman's entry was not trespass because the firm had given her the key and failed to retrieve it when she resigned.

Affirmed.