This opinion will be unpublished and

may not be cited except as provided by

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




Kenneth S. Benigni,



Town of Cotton, as respondeat superior, et al.,


Marie J. Baust,


Karen Moore,


Filed July 8, 1997


Parker, Judge

St. Louis County District Court

File No. C196601389

Kenneth S. Benigni, 7485 Kauppi Lake Road, Cotton, MN 55724 (appellant pro se)

Gunnar Bengt Johnson, 222 West Superior Street, Suite 200, Duluth, MN 55802 (for respondent Town of Cotton)

Linda Creedon Barbe, 302 Ordean Building, 424 West Superior Street, Duluth, MN 55802 (for respondent Baust)

Karen Moore, 2972 Devonshire Street, Duluth, MN 55806 (respondent pro se)

Considered and decided by Parker, Presiding Judge, Toussaint, Chief Judge, and Harten, Judge.



Appellant Kenneth Benigni challenges the district court's award of summary judgment to respondents Town of Cotton, Terry Nelson, Marie Baust, and Karen Moore. Benigni alleges that the district court (1) erred in determining that the statute of limitations had run on his defamation claim; (2) erred in the application of municipal immunity; (3) failed to address his claims of intentional and negligent infliction of emotional distress; (4) erred in concluding that he did not have standing to bring claims of invasion of privacy and unreasonable search; (5) erred in dismissing his first amendment claim; and (6) was biased against him. Respondents Town of Cotton and Terry Nelson request attorney fees on appeal. We affirm.


On April 29, 1991, respondents Marie Baust and Karen Moore sent a letter addressed to the "Sheriff of Cotton, Government Center - City Hall, Cotton, Minnesota 55724." The letter stated that (1) they were concerned about "deplorable conditions" regarding animals in Cotton, Minnesota, and wanted to know what they could do to help eliminate the problems; (2) a man has "wild animals and wants to start a zoo"; (3) the man carries guns and knives; (4) the man "makes a mockery of the law by his billboards that are "terribly disrespectful"; (5) the man beats declawed bears with bats; (6) the "man is rotten clear though every bone in his body and is mentally ill and should be put in a mental asylum to get help, not be allowed to beat and treat animals cruelly"; and (7) little dogs were being held in urine and their own feces. The letter did not name appellant Kenneth Benigni. However, the population of Cotton is 440, and Benigni contends it was apparent that he was the man referred to in the letter.

Because the town of Cotton does not have its own sheriff, the postal service delivered the letter to the Cotton Town Board at the address stated on the letter. A member of the Cotton Town Board opened the letter, read it, copied it, and placed it in a file regarding Benigni. On May 9, 1991, respondent Terry Nelson, supervisor of the Cotton Town Board, forwarded the letter to the Mesabi Humane Society and stated that the letter was "concerning some animals and their treatment" and that he was forwarding it because the Township had no authority to act on the complaint.

On July 15, 1994, pursuant to a different cause of action, Benigni requested copies of all material pertaining to him held in the Cotton Town Board's files. The letter was produced as part of the material in his file on August 2, 1994. Benigni filed his complaint on July 31, 1996. Respondents moved for and the district court granted summary judgment. Benigni's motion for relief from the judgment was denied. This appeal followed.


Summary judgment may be granted when the evidence shows there are no genuine issues of material fact and a party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal from summary judgment, this court makes two inquiries: (1) whether genuine issues of material fact exist; and (2) whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citing Offerdahl v. University of Minn. Hosp. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988)).

1. The statute of limitations for bringing a defamation claim is two years. See Minn. Stat. § 541.07(1) (1996) (actions for libel and slander "shall be commenced within two years"). The two-year period begins to run on the date the defamatory statement is published, Wild v. Rarig, 302 Minn. 419, 448, 234 N.W.2d 775, 794 (1975), cert. denied, 424 U.S. 902, 96 S.Ct. 1093 (1976), not when the statement is discovered by the plaintiff. McGovern v. Cargill, Inc., 463 N.W.2d 556, 558 (Minn. App. 1990). Lack of knowledge of a defamatory publication will not toll the statute of limitations. Wild, 302 Minn. at 449, 234 N.W.2d at 794; McGaa v. Glumack, 441 N.W.2d 823, 825 (Minn. App. 1989), review denied (Minn. Aug. 15, 1989).

Fraudulent concealment of a defamatory publication will toll the two-year statute of limitations until discovery, or reasonable opportunity for discovery, of the publication by the exercise of ordinary diligence. Wild, 302 Minn. at 450, 234 N.W.2d at 795. To establish fraudulent concealment, a plaintiff must prove that (1) there was an affirmative act or statement which concealed a potential cause of action, (2) the statement was known to be false or was made in reckless disregard of its truth or falsity, and (3) the concealment could not have been discovered by reasonable diligence. Haberle v. Buchwald, 480 N.W.2d 351, 357 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992).

Benigni alleges the statute of limitations should have been tolled because the letter written to the "Sheriff of Cotton" was fraudulently concealed from him when it was not forwarded to the sheriff of St. Louis County.[1] Benigni asserts that if the letter had been forwarded to the sheriff of St. Louis County, the sheriff would have investigated and Benigni would have been made aware of the letter immediately in the course of the sheriff's investigation. Benigni does not allege, however, that respondents affirmatively acted to keep the letter from him rather than the sheriff of St. Louis County. Additionally, it is mere conjecture that the St. Louis County sheriff would have investigated and revealed the letter to Benigni. Moreover, Benigni admits that the letter was forwarded to him when he requested information pertaining to him. Thus, no active concealment occurred upon his reasonable effort to obtain the letter. We conclude that the district court did not err in deciding that no fraudulent concealment occurred. The two-year statute of limitations, therefore, was not tolled, and this action was time-barred.

2. Benigni asserts that the district court erred by concluding that the municipalities held privileges and immunities that would shield them from liability for the commission of felonies. However, the district court did not rule on municipal immunity. The district court's memorandum provided:

The Court also notes the strong likelihood that the municipal defendants (the town board and members thereof) have significant immunity protections which would undoubtedly insulate them from the claims of plaintiff here. Nonetheless, however, as earlier noted, the Court bottoms its grant of summary judgment on the issue of the statute of limitations, Minn. Stat. § 541.07.

Because the district court ordered summary judgment based on the running of the statute of limitations and did not decide whether the municipal defendants were insulated by immunity, we have no reason to consider the issue.

3. Benigni alleges the district court erred by failing to address the claims of intentional and negligent infliction of mental anguish that he raised in his complaint. He admits that "intentional infliction of mental distress falls within Minn. Stat. § 541.07 which is the 2-year statute of limitations for that tort." Thus, according to his own statement, the statute of limitations ran for that cause of action before he filed his complaint. He contends, however, that the statute of limitations in Minn. Stat. § 541.05 governs cases of negligent infliction of emotional distress, allowing parties six years before the statute of limitations runs. See Christenson v. Argonaut Ins. Cos., 380 N.W.2d 515, 518 (Minn. App. 1986) (holding six-year statute of limitations applicable to actions redressing negligent personal injury under Minn. Stat. § 541.05), review denied (Minn. Mar. 27, 1986). He asserts, therefore, that his claim of negligent infliction of emotional distress should still have been actionable. We disagree.

[T]he general rule regarding the negligent infliction of emotional distress has been that there can be no recovery absent some accompanying physical injury. In cases in which physical symptoms occur subsequent to and because of the plaintiff's emotional disturbance, many jurisdictions, including this one, require the plaintiff to have been in some personal physical danger caused by the defendant's negligence before awarding damages for emotional distress. The only exception to this rule occurs in cases involving a direct invasion of the plaintiff's rights such as defamation, malicious prosecution, or other willful or malicious conduct.

Langeland v. Farmers State Bank of Trimont, 319 N.W.2d 26, 31-32 (Minn. 1982) (citations omitted); see Tibbetts v. Crossroads, Inc., 411 N.W.2d 535, 538 (Minn. App. 1987) (recognizing an exception to rule allows recovery of damages for emotional distress in actions founded on direct invasions of plaintiff's rights, such as defamation). Benigni does not assert here that the negligent infliction of emotional distress arose as a result of physical injury or that he was in a zone of physical danger arising from respondents' negligence. Thus, his claim must arise from the exception involving a direct invasion of his rights from allegedly being defamed.

In cases where the liability for negligent infliction of emotional distress is founded on an independent predicate tort, if the predicate tort is barred by the statute of limitations, the consequent negligent infliction of emotional distress claim has no base upon which it may be founded. Benigni has cited no predicate tort other than defamation. Therefore, because we conclude that (1) the negligent infliction of emotional distress claim cannot exist absent a predicate tort, (2) that tort must be actionable at the time the emotional distress claim is brought, and (3) the statute of limitations has run on the defamation claim here, we hold that Benigni's negligent infliction of emotional distress claim was barred upon the running of the statute of limitations for the defamation claim.

4. Benigni asserts that the district court misinterpreted the law by concluding that he did not have standing to bring his claims of invasion of privacy and unreasonable search. He contends that his standing arises from (1) his privacy interests, (2) his protectable property interest in his reputation, and (3) his right as a United States citizen to expect that the United States mail will not be delivered to and, consequently, read by people other than the addressees. Respondents reply that (1) no generalized constitutional privacy right exists, Paul v. Davis, 424 U.S. 693, 712-13, 96 S.Ct. 1155, 1166 (1976); (2) no recognized fundamental right to privacy was affected here, see id. at 713, 96 S.Ct. at 1166 (holding privacy rights arising from the Constitution exist only in regards to fundamental rights of "marriage, procreation, contraception, family relationships, and child-rearing and education"); and (3) Benigni did not have a fourth-amendment-protected reasonable expectation of privacy over mail addressed to the "Sheriff of Cotton." We conclude that respondents' first two contentions are accurate and the third contention is compelling.

The Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution proscribe unreasonable searches by the government of "persons, houses, papers, and effects." U.S. Const. amend. IV; Minn. Const. art. I, § 10:

"[C]apacity to claim the protection of the Fourth Amendment depends * * * upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." A subjective expectation of privacy is legitimate if it is "one that society is prepared to recognize as 'reasonable.' "

State v. Carter, 545 N.W.2d 695, 697 (Minn. App. 1996) (citations omitted), review granted (Minn. June 19, 1996). No court has recognized a legitimate expectation of privacy in another individual's mail, and we decline to recognize the legitimacy of that expectation of privacy here. Thus, Benigni had no standing to bring a claim regarding the "Sheriff of Cotton"'s mail, and the trial court did not misinterpret the law.

5. Benigni asserts the letter was republished by the Town of Cotton in retaliation for his exercise of free speech and, thus, the district court misapplied the law when it granted summary judgment despite his First Amendment claim. However, Benigni relies solely on the accusation that individuals such as the postmaster and respondents were prejudiced against him and had a motive to retaliate against him. Because Benigni did not demonstrate that there was a genuine factual issue regarding whether respondents took action in retaliation, the district court did not err in concluding that no genuine issues of material fact existed to substantiate his first amendment claim. See Lamont v. Minnesota Dep't of Employee Relations, 495 N.W.2d 11, 13 (Minn. App. 1993) (to defeat motion for summary judgment, nonmoving party must produce specific facts showing genuine issue and citing Hunt v. IBM Mid. Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986)).

6. Benigni asserts that the district court's determination was based on bias against him. However, the issue of bias should have been presented to the district court in order for Benigni to preserve the issue for appeal. See Midway Nat'l Bank v. Bollmeier, 474 N.W.2d 335, 339 (Minn. 1991) (holding "we will not consider new issues raised by a losing party for the first time on appeal" and citing Urban v. Continental Convention & Show Management, Inc., 244 Minn. 44, 47, 68 N.W.2d 633, 635 (1955)). We decline to address this claim because it was raised for the first time on appeal.

7. Minn. Stat. § 549.21, subd. 2 (1996), allows the court to award a party attorney fees if the opposing party acted in bad faith or asserted a frivolous claim or defense. Respondents request that this court award them attorney fees, alleging that Benigni's appeal was frivolous and brought in bad faith. Although appellant did not prevail, we decline to characterize his appeal as frivolous or brought in bad faith and award no attorney fees on appeal.


[ ]1 In his complaint, Benigni stated:

Cotton, Minnesota, does not have a "sheriff" per se, and it is and was well known in Cotton and by Cotton Town Board/administration members, as well as by USPS employees at the Cotton Post Office, that Cotton is in St. Louis County and that the St. Louis County Sheriff is based in Duluth, Minnesota and has jurisdiction over Cotton, Minnesota.

Thus, Benigni asserts, the postal service should have forwarded the letter to the sheriff with jurisdiction over Cotton even though that sheriff was not located at the stated address but, rather, was in Duluth.