This opinion will be unpublished and

may not be cited except as provided by

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




Bradley A. Hoyt, et al.,



Robert Spangenberg,


Filed February 24, 1998


Randall, Judge

Ramsey County District Court

File No.C9-96-12433

Rick J. Sheridan, Hoyt Development Company, 13400 15th Ave. N., Suite F, Plymouth, MN 55441 (for appellant)

Paul C. Peterson, Sarah E. Morris, Lind, Jensen, & Sullivan, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402 (for respondent)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Holtan, Judge.**

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



Appellant Bradley A. Hoyt argues that the district court erred when it converted respondent Robert Spangenberg's motion to dismiss under Minnesota Statutes chapter 554 (1996, Supp. 1997) to a motion for summary judgment; that the court erroneously made factual determinations when granting summary judgment in favor of Spangenberg; and that Minnesota Statutes chapter 544 violates his constitutional right to a jury trial, procedural due process, and equal protection. On cross-appeal, Spangenberg argues that he is entitled to a remand to determine attorney fees and costs under Minn. Stat. § 554.04 (1996). We affirm the district court on all issues.


Hoyt is the president of Hoyt Development Company. Hoyt and his development company are the sole partners of a limited liability partnership that owns a commercial building and attached parking ramp located in St. Paul. Hoyt sued Spangenberg for defamation. Spangenberg filed a motion to dismiss the action under chapter 554, Minnesota's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute and for summary judgment under Minn. R. Civ. P. 56. Spangenberg also asked the court to suspend discovery pursuant to the anti-SLAPP statute. The district court suspended discovery, pending a decision on Spangenberg's motion.

The district court ruled that the statements made by Spangenberg were true, that they were made without malice, and that Hoyt was a limited purpose public figure. The district court dismissed Hoyt's case and this appeal follows.


Initially, Hoyt argues that the district court erred when converted Spangenberg's motion to dismiss under Minnesota Statutes chapter 554 (1996 and Supp. 1997) into a motion for summary judgment under Minn. R. Civ. P. 56. The district court may, sua sponte, grant summary judgment if the court would have granted summary judgment on a party's motion. Septran, Inc. v. Independent Sch. Dist. No. 271, 555 N.W.2d 915, 920 (Minn. App. 1997), review denied (Minn. Feb. 26, 1997). This court will not reverse a district's court's award of summary judgment unless the objecting party can show he or she was prejudiced by a lack of notice, procedural irregularities, or "the lack of a meaningful opportunity to oppose summary judgment." Id.

Here, Spangenberg's motion to dismiss was brought pursuant to chapter 554 and Rule 56 (summary judgment), and it was served nearly 11 weeks before the hearing. Hoyt had sufficient notice that the court might grant summary judgment. In addition, Hoyt failed to object the hearing when the district court informed the parties that the motion to dismiss would be considered as a request for summary judgment. Hoyt failed to demonstrate prejudice, lack of notice, or lack of opportunity to oppose summary

judgment. We conclude that the district court did not err in converting the motion to dismiss into one for summary judgment.

On appeal from summary judgment, this court asks (1) whether any genuine issues of material fact exist, and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This 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). Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03.

Here, it is undisputed that Spangenberg made the statements in question. The district court found that the statements were true and not defamatory. Hoyt argues that the statements are false and that the district court improperly weighed the evidence when it ruled that the statements were true.

If a statement is substantially true, it does not give rise to an actionable defamation claim. Hunter v. Hartman, 545 N.W.2d 699, 707 (Minn. App. 1996), review denied (Minn. June 19, 1996). A statement is substantially true "if any 'reasonable person' could find the statements to be 'supportable interpretations' of their subjects." Id. at 707 (quoting Moldea v. New York Times Co., 22 F.3d 310, 317 (D.C. Cir. 1994)). Statements that are substantially true "are incapable of carrying a

defamatory meaning, even if 'a reasonable jury' could find that the statements were mischaracterizations." Id. (quoting Moldea, 22 F.3d at 317.

Hoyt claims that he agreed to arrange for adequate employee parking and not free parking. The term "adequate" parking is vague and susceptible to differing interpretations. A reasonable person could interpret this to mean free parking. Spangenberg's interpretation is not per se unreasonable. As such, the statements are not actionable.

Even if we were to conclude that the statements made by Spangenberg gave rise to a cause of action, we conclude, as did the district court, that Spangenberg was protected by a qualified privilege and that Spangenberg did not abuse that privilege by acting with actual malice.

An individual will not be held liable for a defamatory statement "if the statement is published under circumstances that make it qualifiedly privileged and if the privilege is not abused." Bol v. Cole, 561 N.W.2d 143, 149 (Minn. 1997). A statement is qualifiedly privileged if it is made in good faith, upon a proper occasion from a proper motive, and based on reasonable or probable cause. Id. The privilege is abused and lost if the declarant acts with actual malice. Lewis v. Equitable Life Assurance Soc'y, 389 N.W.2d 876, 890 (Minn. 1986).

"Malice may be proved by extrinsic evidence of personal ill feeling, or by intrinsic evidence such as the exaggerated language * * *, the character of the language used, the mode and extent of publication, and other matters in excess of the privilege."

Frankson v. Design Space Int'l, 394 N.W.2d 140, 144 (Minn. 1986) (quoting Friedell v. Blakely Printing Co., 163 Minn. 226, 231, 203 N.W. 974, 976 (1925)) (citation omitted). "Whether a qualified privilege exists is a question of law for the court to decide." Bol, 561 N.W.2d at 149.

Minnesota courts have held:

"[A] communication or publication made in good faith upon any subject in which the party communicating or publishing has an interest, or in reference to which he has a duty, public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty, is privileged."

Smits v. Wal-Mart Stores, Inc., 525 N.W.2d 554, 557 (Minn. App. 1994) (quoting Friedell, 163 Minn. at 229-30, 203 N.W. 974, 975), review denied (Minn. Feb. 14, 1995). Courts recognize that neighbors share a common interest in matters affecting their collective welfare and that statements made regarding such matters are protected by a qualified privilege. See, e.g., Hohl v. Mettler, 162 A.2d 128, 130 (N.J. Super. Ct. App. Div. 1960) (holding homeowners in vicinity of proposed trailer camp shared common interest in community's welfare and were protected by qualified privilege for statements made disparaging trailer camps); Liberman v. Gelstein, 605 N.E.2d 344, 349 (N.Y. 1992) (holding statement that landlord was bribing police officer falls within common interest privilege).

Here, the subject of Spangenberg's statements concerned parking problems in the neighborhood. According to Spangenberg, employees of Hoyt's tenants were parking on neighborhood streets and causing problems for residents. Spangenberg and his neighbors have a legitimate and common interest in this issue affecting their collective welfare. The statements made in the flier were made on a proper occasion to address a proper purpose, and they are protected by a qualified privilege.

Hoyt also argues that the district court erred when it concluded that he is a limited purpose public figure. The question of whether an individual is a public figure for the purpose of applying defamation law is a question of law that this court reviews de novo. Hunter, 545 N.W.2d at 704. A limited public purpose figure is an individual who has placed himself at the forefront of a public controversy in an attempt to influence the controversy's resolution. Id. If the following three elements exist, the individual is a limited purpose public figure: (1) a public controversy; (2) the individual's purposeful or prominent role in the controversy; and (3) a relationship between the allegedly defamatory statements and the controversy. Id.

Our supreme court has held that a building owner who tries to influence government action affecting his building is a public figure. Beatty v. Ellings, 285 Minn. 293, 301, 173 N.W.2d 12, 17 (1969). We conclude that Hoyt is a limited purpose public figure. His purchase of the property and attempts to redevelop it generated substantial public interest and controversy. Hoyt placed himself at the forefront of that controversy, and the statements made by Spangenberg related to that controversy. All three elements exist and the district court did not err.

As a public figure, Hoyt can recover only if he can prove by clear and convincing evidence that Spangenberg made defamatory statements with actual malice. See Hunter, 545 N.W.2d at 705 (holding that public figures must satisfy actual malice standard). Actual malice is proven when it is shown that the declarant knowingly made a false statement or made a statement "with reckless disregard for the truth." Elstrom v. Independent Sch. Dist. No. 270, 533 N.W.2d 51, 56 (Minn. App. 1995), review denied (Minn. July 27, 1995). Reckless disregard means the declarant had seriously doubted the truth of the statement. Id. Errors in judgment and failure to investigate do not constitute actual malice. Id. On appeal from summary judgment, this court asks

"whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not."

Connelly v. Northwest Publications, Inc., 448 N.W.2d 901, 903 (Minn. App. 1989), review denied (Minn. Feb. 21, 1990) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2555-56, 106 S. Ct. 2505, 2514 (footnote omitted)).

We find no evidence that would allow a reasonable jury to conclude that Spangenberg knew his statements were false or that he acted with reckless disregard for the truth. Hoyt failed to establish the existence of any genuine issue of material fact that would preclude summary judgment.

Next, Hoyt argues that chapter 554 is unconstitutional because it violates his procedural due process rights, his equal protection rights, and his right to a jury trial as guaranteed by the United States and Minnesota Constitution. However, these issues are not properly before this court. When the district court dismissed the case, it did so on common law grounds, not statutory grounds, and refused to rule on the constitutionality of the statute. Because the constitutionality of the anti-SLAPP statute was not passed on by the district court, it is not before this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that reviewing court will not consider issue on appeal, "even though the question was raised below, if it was not passed on by the trial court").

Finally, Spangenberg argues that the matter should be remanded so the district court can determine if he is entitled to costs and disbursements, including attorney fees, under Minn. Stat. § 554.04 (1996). Hoyt argues that this provision is unconstitutional because it violates his constitutional right to a trial by jury.

We do not address the constitutionality of this section because we note that Spangenberg did not prevail under the statute. The district court granted summary judgment on common law grounds, not under chapter 554. Because Spangenberg did not prevail under chapter 554, he is not entitled to a chapter 554 hearing on attorney fees or damages.