This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1998).




Gerry O. Lundell,



Maranatha Baptist Care Center, Inc.,


Filed July 27, 1999


Peterson, Judge

Concurring specially, Short, Judge

Hennepin County District Court

File No. 988141

Rolf E. Gilbertson, Jennifer L. Shea, Zelle & Larson, L.L.P., 33 South Sixth Street, Suite 4400, Minneapolis, MN 55402 (for appellant)

Kathy S. Kimmel, Eric J. Magnuson, Rider, Bennett, Egan & Arundel, L.L.P., 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Short, Presiding Judge, Peterson, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal from a summary judgment, appellant Gerry O. Lundell challenges the dismissal of his defamation claim against respondent Maranatha Baptist Care Center, Inc. We affirm.


Maranatha is a Minnesota nonprofit corporation that operates a nursing home. In March 1992, Maranatha hired Lundell as its controller. As controller, Lundell supervised the accounting staff, prepared financial statements, oversaw accounts payable and receivable, and handled worker's compensation claims. Lundell was also responsible for developing a procedure to resolve problems with Maranatha's aging accounts receivable.

Following a 1994 audit, Maranatha's accounting firm, Larson, Allen, Weishair & Co., L.L.P. (LAWCO) told Maranatha that Lundell had not made progress on the accounts receivable problems and recommended that Maranatha hire a finance controller who was a certified public accountant.

On January 3, 1995, Maranatha's administrator, Larry S. Peterson, met with two representatives from LAWCO, Michael McConnell and Jim Rottman, to discuss Lundell's job performance. After the meeting, Peterson drafted a memorandum detailing what had been discussed. The memorandum states that McConnell and Rottman felt that Lundell did well with routine tasks, but had deficiencies in several areas, including making decisions on financial reports, solving the accounts receivable problems, and exhibiting an overall lack of leadership and assertiveness. The memorandum also indicates that Peterson felt that Lundell did not have the skills to continue as Maranatha's controller and that it would be a good time to look for someone with advanced skills. Peterson gave copies of this memorandum to McConnell, Rottman, and Bruce Farrington, a Maranatha board member.

On January 23, 1995, Peterson met with Lundell and discussed Lundell's overall employment performance as Maranatha's controller. After the meeting, Peterson wrote a memorandum that outlined several alleged deficiencies in Lundell's job performance. The memorandum asked Lundell to add any additional recollections he had concerning the meeting and to sign the document. Lundell did not add any recollections, and he did not sign the memorandum. Peterson gave a copy of the memorandum to Lundell, and a copy was placed in Lundell's employee file.

On January 27, 1995, Peterson had another meeting with Lundell to discuss his job duties and performance. Peterson drafted another memorandum that detailed deficiencies in Lundell's job performance and informed Lundell that the board was considering increasing the responsibilities of the controller. The memorandum asked Lundell to review the document, provide any additional comments he had, and sign it. Lundell did not add any comments, and he did not sign the memorandum. Peterson gave a copy of the memorandum to Lundell, and a copy was placed in Lundell's employee file.

On February 20, 1995, Lundell asked Maranatha's board chairman, Roger Adams, to meet with him to discuss his future as controller. During this meeting, Adams told Lundell that he would be replaced because of his inability to perform certain parts of his job, including solving the accounts receivable problem. However, Adams told Lundell that he would not be let go immediately and agreed to give him until the end of May 1995 to find a new job. Following the meeting, Adams wrote a memorandum detailing what was discussed. Adams gave a copy of the memorandum to Peterson and placed a copy in Lundell's employment file.

Lundell was terminated and worked his last day as Maranatha's controller in May 1995. In January 1997, Lundell sued Maranatha for defamation, negligent infliction of emotional distress, breach of contract, and promissory estoppel. Lundell's defamation claim was based on statements about his ability as controller that were contained in the four memoranda written to record discussions that occurred at the meetings in 1995.

Maranatha moved for summary judgment on all claims. The district court granted the motion and dismissed all of Lundell's claims. On appeal, Lundell challenges only the grant of summary judgment on his defamation claim.


On appeal from summary judgment, this court must review the record to 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). We must view the evidence in a light most favorable to the nonmoving party. Id.

[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). We need not defer to a district court's decision on a legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

I. Defamation

In order for a statement to be considered defamatory it must be communicated to someone other than the plaintiff, it must be false, and it must tend to harm the plaintiff's reputation and to lower him in the estimation of the community.

Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980) (citations omitted).

Even though an untrue defamatory statement has been published, the originator of the statement will not be held liable if the statement is published under circumstances that make it conditionally privileged and if privilege is not abused.

Lewis v. Equitable Life Assurance Soc'y of the U.S., 389 N.W.2d 876, 889 (Minn. 1986).

The law is that a communication, to be privileged, must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause. When so made in good faith, the law does not imply malice from the communication itself, as in the ordinary case of libel. Actual malice must be proved, before there can be a recovery, and in the absence of such proof the plaintiff cannot recover.

Stuempges, 297 N.W.2d at 256-57 (quoting Hebner v. Great N. Ry., 78 Minn. 289, 292, 80 N.W. 1128, 1129 (1899)).

Lundell argues that the district court erred in granting summary judgment on his defamation claim because the evidence, viewed in the light most favorable to him, created material fact issues as to whether the alleged defamatory statements were made on proper occasions. Lundell contends that the occasions were not proper occasions to recognize a privilege because they were not truly for the purpose of reviewing his work. Lundell claims that the meetings were held and the memoranda were created for the improper purpose of providing a false, negative employment record that would support the decision Maranatha had already made to terminate his employment. This argument reflects a misunderstanding of the burden of proof in a defamation action when the defendant asserts a qualified privilege defense.

Commentators have explained this burden of proof as follows:

The burden is upon the defendant in the first instance to establish the existence of a privileged occasion for the publication, by proof of a recognized public or private interest which would justify the utterance of the words. Whether the occasion was a privileged one is a question to be determined by the court as an issue of law, unless of course the facts are in dispute, in which case the jury will be instructed as to the proper rules to apply.

W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 115, at 835 (5th ed. 1984) (footnotes omitted).

This explanation is consistent with Minnesota law. In Minnesota, "whether an occasion is a proper one upon which to recognize a privilege is a question of law for the court to determine." Lewis, 389 N.W.2d at 889.

The facts regarding the occasions on which the alleged defamatory statements were made are not in dispute. The statements were all made in memoranda prepared to record discussions that occurred in meetings to discuss Lundell's performance as controller at Maranatha.

Minnesota recognizes a qualified privilege which exempts an employer from liability for defamatory statements about an employee so long as the statements are made in good faith and for a legitimate purpose.

Brooks v. Doherty, Rumble & Butler, 481 N.W.2d 120, 124-25 (Minn. App. 1992) (footnote omitted), review denied (Minn. Apr. 29, 1992). The district court properly determined that meetings to discuss Lundell's performance as controller were proper occasions upon which to recognize a privilege. As the district court stated, "To hold otherwise would chill employers from reviewing employees' work and generating reports of employee evaluations."

Lundell's argument that the defamatory statements were not made on a proper occasion because they were made for the improper purpose of creating a false employment record incorrectly combines the determination whether a conditional privilege applies with the determination whether a conditional privilege has been abused. These are two distinct determinations. If a defendant makes a defamatory statement on a proper occasion, the defendant enjoys a conditional privilege. But the conditional privilege can be lost if the plaintiff demonstrates that the defendant used the occasion for an improper purpose.

[O]nce the defendant has demonstrated the existence of a conditional privilege, the burden shifts to plaintiff to prove that the privilege has been abused, which is generally a question for the jury.

Stuempges, 297 N.W.2d at 257. Commentators have explained the plaintiff's burden of proof more fully, as follows:

Once the existence of the privilege is established, the burden is upon the plaintiff to prove that it has been abused by excessive publication, by use of the occasion for an improper purpose, or by lack of belief or grounds for belief in the truth of what is said. Unless only one conclusion can be drawn from the evidence, the determination of the question whether the privilege has been abused is for the jury.

Keeton, supra § 115, at 837 (footnote omitted).

Because Lundell incorrectly combined the determination whether a conditional privilege applies with the determination whether a conditional privilege has been abused, he did not attempt to show in the district court that Maranatha had lost its conditional privilege through abuse. Instead, he argued only that Maranatha was not entitled to a conditional privilege. In its memorandum, the district court expressly recognized the principles that a defendant who demonstrates the existence of a conditional privilege loses the privilege if it is abused and that the plaintiff bears the burden of proving abuse. But because Lundell made no attempt to show that Maranatha had abused the conditional privilege, the court also expressly declined to determine whether Maranatha lost the privilege.

On appeal, Lundell argues that Maranatha lost its privilege through abuse. But because this issue was not presented to and considered by the district court, we will not consider it on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (reviewing court must generally consider only those issues that were presented to and considered by district court).

The district court correctly determined that there were no material fact issues regarding the occasions upon which Maranatha made the alleged defamatory statements and whether a conditional privilege applied to those occasions. Therefore, because Lundell did not attempt to show that the conditional privilege was lost through abuse, the district court properly granted summary judgment dismissing Lundell's defamation claim.


SHORT, Judge (concurring specially).

I concur because Lundell failed to offer evidence that Maranatha abused its qualified privilege. See Lewis v. Equitable Life Assurance Soc'y of the U.S., 389 N.W.2d 876, 890 (Minn. 1986) (noting qualified privilege is abused and lost if plaintiff shows defendant acted with actual malice); Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 257 (Minn. 1980) (concluding once defendant shows existence of privilege, burden shifts to plaintiff to prove privilege was abused). Speculation that Maranatha had a "design to injure" Lundell's reputation or that statements were made to avoid legal liability is insufficient to defeat summary judgment as a matter of law. See Frankson v. Design Space Int'l, 394 N.W.2d 140, 144-45 (Minn. 1986) (concluding evidence is insufficient for finding malice necessary to destroy qualified privilege when plaintiff only presents evidence of possible reason for action taken); Harvet v. Unity Med. Ctr., Inc., 428 N.W.2d 574, 579 (Minn. App. 1988) (concluding allegations made by plaintiff in support of claim of malice based on conjecture and speculation are insufficient to create jury question). Under these circumstances, the trial court properly granted summary judgment for Maranatha on Lundell's defamation claim.