This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-99-612
C8-99-616

Chris Kapp,
Appellant (C0-99-612),
Respondent (C8-99-616),

vs.

John Marvin, et al.,
Respondents (C0-99-612),

Bruce Mathees, et al.,
Respondents (C0-99-612),

Marie Meyer,
Appellant (C8-99-616).

Filed December 28, 1999
Affirmed
Amundson, Judge

Goodhue County District Court
File No. C2-97-1388

Susan A. McKay, 305 America Avenue, P.O. Box 1213, Bemidji, MN 56619 (for Chris Kapp)

Julie A. Fleming-Wolfe, 1654 Grand Avenue, St. Paul, MN 55105 (for John Marvin) and

Timothy Tobin, 9900 Bren Road East, P.O. Box 5297, Minnetonka, MN 55343 (for Bruce Mathees)

Considered and decided by Toussaint, Chief Judge, Amundson, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

In these consolidated appeals, appellant Kapp challenges the district courtís order granting summary judgment for several respondents on his claim of defamation, contending he was not a "limited purpose public figure" and therefore did not need to present evidence of actual malice by respondents. Appellant Kapp also challenges the district courtís grant of summary judgment in favor of respondents on his intentional interference-with-contract claim. The district court allowed Kappís defamation claim against Meyer to proceed. Meyer challenges the district courtís denial of her motions for judgment notwithstanding the verdict and a new trial, alleging Kapp failed to demonstrate that she published the statements with actual malice and that the verdict was contrary to the evidence.

FACTS

In October 1993, Chris Kapp was hired as the first Ambulance Director for the Zumbrota Ambulance Service (Service), which is wholly owned by Zumbrota Area Ambulance Association (Association). Prior to Kappís employment, the Service was run by the Emergency Medical Technicians (EMTs), who are trained in emergency medical services, and the Associationís Board of Directors.

Problems between Kapp and the respondents began when Kapp discovered the EMTs storing and consuming alcohol at the ambulance garage.

On September 12, 1995, a meeting of the attendants was held at the home of Bruce and Roxanne Matthees. After the meeting, Kapp found a written threat next to his office that stated, "You are going to die."

In November 1995, while completing paramedic training, Marie Meyer talked with a paramedic from Roseau. Meyer knew that Kapp had been the director of the ambulance service in Roseau, so she asked the paramedic about Kapp. The paramedic told Meyer that Kapp had been terminated for misappropriation of funds. Meyer reported what she had heard to the Associationís attorney, who told her the Board needed to know the information. Meyer told the Board and some of the EMTs what she had learned about Kapp. Meyer informed a Board subcommittee about the information she had learned about Kappís termination as director of the Roseau ambulance service.

Kappís former employer testified that he did not believe Kapp embezzled or misappropriated funds and that no one ever inquired, and that he ever told anyone that Kapp engaged in such conduct.

Greg Blakstad, a former EMT and president of the Associationís Board of Directors, called a special meeting of the Board to be held on December 14, 1995, to address the concerns raised by the EMTs about Kappís job performance. At the meeting, Kapp discussed the death threats he received and his concerns about the consumption of alcohol by the EMTs. This was the only occasion where Kapp publicly discussed the threats and the EMTs consumption of alcohol on the ambulance premises. The EMTs presented a vote of no confidence in Kapp, which was signed by eighty-five percent of the EMTs, to demonstrate their concerns about his inability to adequately perform his duties as director. They also expressed their belief that the threat of liability related to the use of alcohol was minimal, and that Kapp exaggerated the amount of alcohol used by the EMTs. Two newspaper reporters were present at the meeting.

The Board formed a subcommittee to investigate the concerns raised by the EMTs regarding Kappís job performance, alcohol use on the ambulance premises, and death threats made against Kapp. The subcommittee concluded that there had indeed been threats made against Kapp, but recommended his termination because of communication problems between Kapp and the EMTís.

D E C I S I O N

I.

On an appeal from summary judgment, this court must determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The reviewing court must view 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) (citation omitted), but is not bound by nor need give deference to the district courtís application of the law. Frost-Benco Elec. Assín v. Minnesota Pub. Utils. Commín, 358 N.W.2d 639, 642 (Minn. 1984).

The district court granted respondentsí motion for summary judgment, finding that because Kapp was a "limited purpose public figure," his failure to present evidence of actual malice by all respondents except Meyer warranted its grant of summary judgment. Kapp disputes this characterization and thereby contends that no showing of actual malice was necessary and summary judgment on this basis was improper. A determination of whether a person is a public figure for the purpose of deciding a defamation issue is a question of law, which this court reviews de novo. Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 483 (Minn. 1985).

Public figures may only succeed in defamation cases by showing that they were defamed by statements made with actual malice. Id. at 480. One such public figure is a limited purpose public figure. A "limited purpose public figure" is one that has "íthrust [himself] to the forefront of [a] particular public controvers[y] in order to influence the resolution of the issues involved.í" Hunter v. Hartman, 545 N.W.2d 699, 704 (Minn. App. 1996), review denied (Minn. June 19, 1996) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S. Ct. 2997, 3009 (1974). In a defamation suit there are three factors that must be satisfied to find that a person is a limited purpose public figure: (1) the presence of a public controversy; (2) the personís purposeful or prominent role in the controversy; and (3) a relationship between the allegedly defamatory statements and the public controversy. Id.

The controversy surrounding the Zumbrota Area Ambulance Service was a topic of public interest as evidenced by the editorials and articles that appeared on the subject in several newspapers. Additionally, a public meeting was held to discuss the controversy and newspaper reporters were present at this meeting.

Kappís relationship with the EMTs was central to the controversies surrounding the storage and consumption of alcohol at the ambulance facility and his abilities as director of the ambulance service. Therefore, while there may be a legitimate dispute about Kappís purposeful role in the controversy, there is no question that it was prominent, and thus this factor of the limited purpose public figure test is satisfied.

The statements regarding Kappís ability to perform his current job, as well as the allegation that he embezzled funds at his former job, constituted the very subject matter of the controversy. Thus, the relationship between the alleged defamatory statements and the controversy is clear. Accordingly, we conclude that the district court did not err in finding that Kapp was a "limited purpose public figure," as a matter of law, for the purpose of the defamation claim and affirm the district courtís grant of summary judgment.

II.

In addition to his claim of defamation, Kapp brought an intentional-interference-with-contract claim. Kapp appeals the district courtís grant of respondentsí motion for summary judgment on this claim. Five elements are required for a cause of action for tortious interference with a contractual relationship: "(1) the existence of a contract; (2) the alleged wrongdoerís knowledge of the contract; (3) intentional procurement of its breach; (4) without justification; and (5) damages." Kjesbo v. Ricks, 517 N.W.2d 585, 588 (Minn. 1994) (quoting Furlev Sales and Assoc., Inc. v. North Am. Automotive Warehouse, Inc., 325 N.W.2d 20, 25 (Minn. 1982).

Respondents claim that Kapp failed to produce evidence showing that any of the comments made by respondents interfered with his position or legally caused him to lose any contractual rights. See Lee v. Metropolitan Airport Commín, 428 N.W.2d 815, 822 (Minn. App. 1988) (court found that plaintiffís failure to provide evidence that respondentís acts legally caused her to lose any contractual rights supported district courtís grant of summary judgement against plaintiff regarding her intentional interference with contract claim). The Boardís reasons for terminating Kapp were: (1) Kappís relationship with the EMTs was irretrievably broken; (2) Kapp failed to communicate with the EMTs; (3) Kapp failed to attend Board meetings; and (4) Kapp failed to follow up on an incident involving the exposure of one of the EMTs to bloodborne pathogens. The district court found that Kapp failed to present any evidence that the Board "was improperly influenced by rumors of embezzlement in making its decision to end [Kappís] employment."

We conclude that Kapp failed to make a showing sufficient to establish the existence of the third element on this claim to withstand a summary judgment challenge and therefore, we affirm the district courtís grant of summary judgment on the intentional-interference-with-contract claim.

III.

Meyer challenges the district courtís denial of her motion for judgment notwithstanding the verdict, contending that the actual malice standard applicable to Kapp as a "limited purpose public figure" was not met. Meyer does not dispute that she made statements about Kapp, that she communicated the statements were to others, or that the statements tended to harm Kappís reputation. Rather, Meyer argues that Kapp failed to submit any evidence showing that Meyer knew or had substantial doubts about the truth of the statements that she made about Kapp. Kapp contends there was sufficient and competent evidence demonstrating that Meyer published her statements with actual malice and therefore, the evidence adequately supports the juryís verdict.

Denial of a judgment notwithstanding the verdict is purely a question of law. Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 14 (Minn. 1979), and must be affirmed if there is competent evidence that reasonably tends to sustain the verdict. Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984) (citation omitted). Only if reasonable minds could reach but one conclusion against the verdict should a district courtís denial of a motion for judgment notwithstanding the verdict be overturned. Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975) (citation omitted).

In order to establish a defamation claim, the plaintiff must show that (1) a statement was made; (2) the statement was communicated or published to someone other than the plaintiff; (3) the statement was false; and (4) the statement tended to harm plaintiffís reputation. Ferrel v. Cross, 557 N.W.2d 560, 565 (Minn. 1997). Additionally, if the plaintiff is a "limited purpose public figure" the plaintiff must show that the statements were published with malice. Hunter, 545 N.W.2d at 704.[1]

Generally, malice is a question of fact for the jury. Bauer v. State, 511 N.W.2d 447, 450 (Minn. 1994). But, in a defamation case, whether the evidence in the record is sufficient to support a finding of actual malice is a question of law. Britton v. Koep, 470 N.W.2d 518, 524 (Minn. 1991). A public figure defamation plaintiff must show that a defendant made the defamatory statements with actual malice, that is, the statements must have been made while the defendant knew that they were false or with reckless disregard for whether they were true. Anderson v. Liberty Lobby, 477 U.S. 242, 257, 106 S. Ct. 2505, 2514-15 (1986); New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726 (1964); Britton, 470 N.W.2d at 524; Hunter, 545 N.W.2d at 705. In the context of a defamation claim by a public figure, reckless disregard is not measured by errors in judgment or by failure to investigate. Instead, there must be sufficient evidence to permit the conclusion that the publisher entertained serious doubts about the publicationís truth. Britton, 470 N.W.2d at 524 (citation omitted); Elstrom v. Independent Sch. Dist. No. 270, 533 N.W.2d 51, 56 (Minn. App. 1995), review denied (Minn. July 7, 1995).

Kapp presented evidence that Meyer was motivated by personal animosity toward him and made the statements to hurt him and impugn his integrity. Furthermore, Kapp presented evidence that Meyer was unfairly critical of his performance as director and was part of a group of EMTs that disliked and harassed him. However, any ill will Meyer may have had toward Kapp is irrelevant to the actual malice inquiry. Diesen v. Hessburg, 455 N.W.2d 446, 453 (Minn. 1990); see also Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666, 109 S. Ct. 2678, 2685 n.7 (1989) (the term "Ďactual maliceí is unfortunately confusing in that it has nothing to do with bad motive or ill will"); cf. Bauer, 511 N.W.2d at 450-451 (the test for actual malice needed in a defamation claim to overcome the common-law doctrine of qualified privilege is whether defamatory statement was made from ill will and improper motives, or causelessly and wantonly for purpose of injuring plaintiff).

Kapp contends that the jury heard evidence that demonstrated that Meyer knew the statements she made were false or acted in reckless disregard of whether they were true or false. Specifically, Kapp points out that the jury heard evidence that Meyer communicated the statements to the investigatory subcommittee after being told by Kappís attorney that the information she was relaying to others was false and after she was unable to confirm the information.

Meyerís failure to corroborate the information or to assess the truth of the statements does not establish actual malice. Britton, 470 N.W.2d at 524. But her continuing to publish the information after being told it was false demonstrates that she acted in reckless disregard of the truth of the statements she was publishing, and accordingly, we conclude the jury could have reasonably found that her statements were published with actual malice. Thus, the district courtís denial of her motion for JNOV should not be overturned.

IV.

Meyer also challenges the district courtís denial of her motion for a new trial. The decision to grant a new trial lies within the sound discretion of the district court and will not be disturbed absent a clear abuse of that discretion. Halla Nursery v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). Furthermore, on appeal from a denial of a motion for a new trial, the reviewing court must view the evidence in the light most favorable to the verdict and allow the verdict to stand unless the court finds it is manifestly contrary to the evidence. Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999); ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

Meyer contends that the evidence presented at trial was insufficient to justify her verdict because she alleges that Kapp failed to demonstrate that she published her statements about him with actual malice. The jury heard evidence that Meyer learned that the statements could be false from Kappís attorney, yet continued to publish them. Given that we must view the evidence in the light most favorable to the verdict, we cannot say that the evidence was insufficient to sustain a conclusion that Meyer acted in reckless disregard of the truth of her statements and thus with actual malice. Therefore, we conclude the district courtís denial of Meyerís motion for a new trial did not constitute an abuse of discretion.

Affirmed.

[1] Review of denial of Meyer's JNOV motion is per Meyer's appeal and she does not dispute Kapp's limited purpose public figure status. Kapp does dispute this characterization, but this is addressed in an analysis of his appeal from the district court's grant of summary judgment in favor of the remaining defendants in his defamation suit.