This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1214

 

Patrick Longbehn,
Appellant,

vs.

City of Moose Lake, et al.,
Respondents,

and

Robin Schoenrock,
Respondent,

and

Thomas Michael Cich,
Respondent.

Filed May 17, 2005

Affirmed in part, reversed in part, and remanded

Wright, Judge

 

Carlton County District Court

File Nos. C5-01-681, C3-02-57

 

 

Thomas M. Skare, Skare Law Office, Inc., 1429 Cloquet Avenue, Cloquet, MN  55720 (for appellant)

 

Patricia Y. Beety, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN  55103-2044 (for respondents City of Moose Lake, Dale Heaton)

 

James W. Balmer, Falsani, Balmer, Peterson & Quinn, 1200 Alworth Building, 306 West Superior Street, Duluth, MN  55802 (for respondent Robin Schroenrock)

 

John D. Kelly, Kenneth A. Kimber; Hanft Fride, A Professional Association, 130 West Superior Street, Suite 1000, Duluth, MN  55802 (for Thomas Michael Cich)

 

            Considered and decided by Minge, Presiding Judge; Wright, Judge; and Poritsky, Judge.*

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Following his discharge from employment with the Moose Lake Police Department, appellant Patrick Longbehn initiated a lawsuit in which he brought tort and employment claims against respondents City of Moose Lake (the City) and Chief of Police Dale Heaton.  Longbehn also brought tort claims against respondent Robin Schoenrock and a defamation claim against respondent Thomas Cich.  Concluding that it lacked authority to hear claims arising out of the discharge, the district court granted summary judgment in favor of the City and Heaton.  The case proceeded to trial on the remaining claims against Cich and Schoenrock.  After one of Longbehn’s witnesses failed to appear, Longbehn moved for either a continuance or a mistrial and a new trial.  Cich and Schoenrock countered with a motion for dismissal with prejudice.  The district court denied Longbehn’s motions and dismissed the remaining claims with prejudice.

On appeal, Longbehn argues that the district court erred by (1) granting summary judgment on the claims against the City and Heaton; (2) denying his motion for a new trial; (3) denying his motion for a continuance or mistrial due to the absence of a witness; and (4) dismissing with prejudice the claims against Cich and Schoenrock.  We affirm in part, reverse in part, and remand.

FACTS

 

Appellant Patrick Longbehn was hired by the Moose Lake Police Department as a full-time police officer on May 28, 2000.  At the time, Longbehn was 34 years old.  Longbehn began residing with an 18-year-old woman in September 2000. 

Two of Longbehn’s friends, Brian Collins and Charles Wilson, attended a party in Duluth on the evening of December 31, 2000.  Collins brought to the party two teenaged girls, one of whom was the daughter of respondent Robin Schoenrock.  While making arrangements to provide the girls a ride home after the party, Wilson and Schoenrock made several telephone calls to one another.  According to Wilson, Schoenrock referred to Longbehn as “Pat the Pedophile” during one of these calls.

            Longbehn met with respondent Police Chief Dale Heaton on the evening of January 24, 2001.  During their conversation, Heaton explained that community members had questioned Longbehn’s reputability because of his relationship with the 18-year-old woman.  Heaton added that some members of the community referred to Longbehn as “Pat the Pedophile.”

            When Longbehn reported to work on January 25, 2001, Heaton advised Longbehn that he was discharged from employment.  When Longbehn inquired as to the basis for the discharge, Heaton replied that city officials had made the decision because of Longbehn’s loss of credibility in the community.  Heaton also cited several citizen complaints that contributed to the decision to discharge.

            During an employment background check on Longbehn in April 2001, the St. Paul Police Department contacted the Duluth Police Department.  Ann Brooks, a secretary at the Duluth Police Department, was asked by a supervisor to collect some information on Longbehn.  Longbehn alleges that, while carrying out this assignment, Brooks was contacted by respondent Thomas Cich, a retired officer from the Duluth Police Department.  In a deposition, Brooks related the substance of their conversation as follows:

Q:        What did Tom Cich tell you?

 

A:        He just was making a comment that Mr. Longbehn was involved in, how did he word it, furnishing alcohol to a minor and I—and I’m trying to remember.  I think he said something about pedophile . . . .

 

Brooks relayed Cich’s statements to the St. Paul Police Department.

            Longbehn sued the City, Heaton, and Schoenrock on May 30, 2001.  The complaint included claims of defamation; age discrimination; improper, wrongful, and retaliatory termination; negligent and intentional infliction of emotional distress; and violation of the Peace Officer Discipline Procedures Act.

The City and Heaton moved for summary judgment.  They asserted that, because the City’s termination decision was an administrative decision subject to certiorari review, the district court lacked authority to consider the wrongful termination claim.  With respect to the defamation claim, the City and Heaton maintained that any objectionable statements were subject to a qualified privilege.  The City and Heaton also argued that there were no genuine issues of material fact as to Longbehn’s other claims.  In his responsive memorandum, Longbehn conceded that summary judgment was proper on the claims of age discrimination and retaliatory discharge.  The district court granted summary judgment in favor of the City and Heaton, concluding that, because the decision to terminate Longbehn was an administrative decision subject to certiorari review, it lacked authority to entertain any claims against those parties.

On January 14, 2002, Longbehn sued Thomas Cich for defamation.  The cases against Cich and Schoenrock were consolidated and proceeded to trial.  Cich testified that he had contacted Brooks about Longbehn, but he denied stating that Longbehn was a pedophile.  Wilson testified that, in a telephone conversation on the morning of January 1, 2001, Schoenrock referred to Longbehn as “Pat the Pedophile.”

Longbehn intended to call Brooks to testify on August 14, but she failed to appear.  In light of Brooks’s absence, Longbehn moved to admit Brooks’s deposition, or in the alternative, for a continuance or mistrial.  Cich objected to the admission of the deposition because it had been taken before the action against him had commenced.  Both Cich and Schoenrock then moved to dismiss.  The district court excluded the deposition.  Because it was not feasible for the district court or counsel to determine Brooks’s availability for a future trial date, the district court also denied a continuance.  The remaining motions for mistrial or dismissal were taken under advisement.

            In a letter brief, Longbehn clarified his motion and requested a new trial.  The district court subsequently denied the motions for mistrial and a new trial and dismissed with prejudice the claims against Cich and Schoenrock.  This appeal followed.

D E C I S I O N

I.

            Longbehn raises several challenges to the district court’s grant of summary judgment for the City and Heaton.  Summary judgment is appropriate when the nonmoving party fails to establish a genuine issue of material fact and the moving party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03; DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997).  To survive summary judgment, the nonmoving party cannot rely on mere denials or averments, but instead has the burden to produce evidence that will permit reasonable persons to draw different conclusions on an issue of material fact.  Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995). 

We review summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party.  Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn. 2002).  Under this standard, we need not defer to the district court’s conclusions of law.  Reads Landing Campers Ass’n v. Township of Pepin, 546 N.W.2d 10, 13 (Minn. 1996).  If the district court’s rationale for summary judgment is erroneous but the decision itself is correct, then we shall affirm.  Schweich v. Ziegler, Inc., 463 N.W.2d 722, 728 (Minn. 1990).

A.

            Longbehn asserts that the district court incorrectly determined that it lacked authority to entertain the claims against the City and Heaton.  The district court concluded that, because a unit of the executive branch made the decision to discharge, the principle of constitutional separation of powers compelled judgment in favor of the City and Heaton.  Two recent cases of the Minnesota Supreme Court have discussed the parameters of this doctrine.

            Dietz v. Dodge County, 487 N.W.2d 237, 238 (Minn. 1992), involved an employee at a county-operated nursing home who brought an action in district court for wrongful discharge.  The employee later amended the complaint to include “unlawful discrimination” and sought “compensatory damages, reinstatement, and damages for mental anguish.”  Id. at 238.  The Minnesota Supreme Court observed that, as a “quasi-judicial decisio[n]” by the executive branch, the principle of constitutional separation of powers required the judicial branch to defer to the decision-making processes of the executive branch.  Id. at 239.

To prevent undue interference by the district courts in the discharge decision, the Dietz court disallowed district court review of the discharge decision, noting that such action would result in “scrutiny that runs a grave risk of usurping the [executive branch’s] administrative prerogative.”  Id. at 240.  In the absence of a statutory cause of action, review of the discharge decision must proceed to the Court of Appeals by writ of certiorari, where we utilize a deferential arbitrary-and-capricious standard of review.  Id. at 239-40.  The Dietz court affirmed the district court’s dismissal of the employee’s case.  Id. at 237.

In Willis v. County of Sherburne, 555 N.W.2d 277 (Minn. 1996), the Minnesota Supreme Court revisited the scope of its ruling in Dietz.  A discharged county administrator brought an action in district court against the county for defamation, breach of contract, wrongful termination, and disability discrimination.  Id. at 278.  Because the breach of contract and wrongful termination claims challenged the basis for the decision to discharge, the Minnesota Supreme Court disallowed the claims brought under these theories in district court.  Id. at 282.  But the defamation action, which did not require review of the discharge decision, was allowed to proceed.  Id.

In accordance with Dietz, the Willis court held that a statutory cause of action could proceed in district court.  Id. at 283.  In support of this holding, the supreme court reasoned that the legislature’s creation of a statutory cause of action against the executive branch authorized judicial inquiry into the affairs of the executive branch.  Thus, the disability discrimination claim brought under the Minnesota Human Rights Act could proceed in district court.  Id. at 283.

Willis provides two general limitations on the requirement that a discharged employee seek relief by certiorari appeal.  First, when tort actions arise out of different facts from those of the discharge and, therefore, do not require judicial review of the decision to discharge, such actions may proceed in district court.  See Clark v. Indep. Sch. Dist. No. 834, 553 N.W.2d 443, 446 (Minn. App. 1996) (prior to Willis, but using common rationale, holding that claims for defamation and intentional infliction of emotional distress may proceed in district court); see also Lueth v. City of Glencoe, 639 N.W.2d 613, 617 (Minn. App. 2002) (holding that, because motion to compel arbitration did not require inquiry into employee’s dispute with executive branch, motion could proceed in district court), review denied (Minn. Apr. 16, 2002).  Second, when there is statutory authorization to inquire into decisions of the executive branch, such statutory actions also may proceed in district court.  See Navarre v. S. Washington County Schs., 652 N.W.2d 9, 32 (Minn. 2002) (allowing action under Minnesota Government Data Practices Act); Manteuffel v. City of N. St. Paul, 538 N.W.2d 727, 730 (Minn. App. 1995) (prior to Willis, allowing action under Whistleblower Act).

Here, Longbehn had claims against the City and Heaton for defamation, wrongful termination, negligent and intentional infliction of emotional distress, and violation of the Peace Officer Discipline Procedures Act.  Because the wrongful termination claims would require scrutiny of the City’s discharge decision, they cannot be brought in district court.  See Willis, 555 N.W.2d at 282.  Thus, the district court correctly concluded that it lacked authority to decide these claims.[1]

The claims for defamation and negligent and intentional infliction of emotional distress, however, do not require an inquiry into the City’s discharge decision.  See, e.g., id. (defamation); Clark, 553 N.W.2d at 446 (intentional infliction of emotional distress).  Thus, the district court erred when it concluded that it lacked authority to decide these claims.[2]

The district court, relying solely on Dietz, concluded that Longbehn had no action for negligent or intentional infliction of emotional distress.  This conclusion may have been based on the facts of Dietz in which a county employee sought damages for mental anguish.  But Dietz does not explicitly state whether the employee brought any tort claims, and the Minnesota Supreme Court did not otherwise bar such claims.  Dietz, 487 N.W.2d at 239.  Because Willis recognizes that tort claims may proceed for reasons unrelated to employment discharge, Longbehn is entitled to proceed with his defamation and emotional distress claims.

The remaining claim is based on violation of the Peace Officer Discipline Procedures Act (PODPA), which provides in relevant part:

[A] political subdivision or state agency that violates this section is liable to the officer for actual damages resulting from the violation, plus costs and reasonable attorney fees.   The political subdivision or the state is deemed to have waived any immunity to a cause of action brought under this subdivision . . . .

 

Minn. Stat. § 626.89, subd. 16 (2004).  This provision expressly creates a cause of action against the executive branch and, as such, indicates legislative intent to allow judicial inquiry into the affairs of the executive branch.  See Willis, 555 N.W.2d at 283.  Accordingly, the district court also erred in concluding that it lacked authority to hear this claim.

B.

            We next consider whether a genuine issue of material fact exists as to the PODPA claim and the claims that do not require an inquiry into the discharge decision.  The outstanding tort claims are for defamation and intentional and negligent infliction of emotional distress.

            To establish a claim for defamation, the claimant must offer proof of a statement, communicated to someone other than the claimant, that is false and that tends to harm the claimant’s reputation and esteem in the community.  Weinberger v. Maplewood Review, 668 N.W.2d 667, 673 (Minn. 2003).  If the statement at issue is substantially true, summary judgment against the claimant is proper.  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980); Oaks Gallery & Country Store—Winona, Inc. v. Lee Enters., Inc., 613 N.W.2d 800, 803-04 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000).

Longbehn’s claim against Heaton arises out of the conversation the two had the evening before Longbehn was discharged.  The record indicates that Heaton told Longbehn that others in the community referred to him as “Pat the Pedophile.”  Because Heaton spoke with other city officials earlier that day, it may be inferred for the purpose of our analysis that Heaton relayed the same statement, which was attributable to others, not Heaton, to city officials.

Even when viewed in the light most favorable to Longbehn, the record does not establish that Heaton called Longbehn “Pat the Pedophile.”  Rather, Heaton made a true statement, not disputed by Longbehn, that other community members were referring to Longbehn as “Pat the Pedophile.”  Because this statement is substantially true, and because Longbehn does not allege any other defamatory statement by Longbehn or another city official, the City and Heaton are entitled to summary judgment on the defamation claim.

We next address the claim for negligent infliction of emotional distress.  The claimant ordinarily must demonstrate exposure to physical danger that caused reasonable fear for safety, which resulted in severe emotional distress accompanied by physical manifestations.  Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395, 408 (Minn. 1998).  Proof of another intentional tort, such as defamation, can suffice in lieu of the physical-danger element.  Oslin v. State, 543 N.W.2d 408, 417 (Minn. App. 1996), review denied (Minn. Apr. 1, 1996); Bohdan v. Alltool Mfg., Co., 411 N.W.2d 902, 907 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987).  When a claim proceeds on this theory, failure of the defamation claim precludes recovery for negligent infliction of emotional distress.  Covey v. Detroit Lakes Printing Co., 490 N.W.2d 138, 144 (Minn. App. 1992).

Because the record fails to establish defamation and Longbehn alleges no physical danger, Longbehn’s claim for negligent infliction of emotional distress is without any factual support.  Summary judgment in favor of the City and Heaton was properly granted on this claim.

We now turn to the claim for intentional infliction of emotional distress.  The claimant must demonstrate that a party intentionally or recklessly engaged in extreme and outrageous conduct, which resulted in severe emotional distress to the claimant accompanied by physical manifestations.  Langeslag v. KYMN Inc., 664 N.W.2d 860, 864 (Minn. 2003).  Extreme and outrageous conduct is “so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community.”  Id. at 865 (quotation omitted).  Ordinary insults or indignities, even if patently false, do not constitute extreme and outrageous conduct.  Id. (citing Restatement (Second) of Torts § 46 cmt. d (1965)).  Because statements about job performance between an employer and employee are not extreme and outrageous, they do not as a matter of law support a claim for intentional infliction of emotional distress.  See Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 439 (Minn. 1983) (ongoing verbal and written criticism); Cafferty v. Garcia’s of Scottsdale, Inc., 375 N.W.2d 850, 853 (Minn. App. 1985) (statements relating to discharge).

The statements at issue here were made by Heaton to Longbehn regarding his job performance.  Because such statements are not extreme and outrageous conduct, Longbehn failed to establish the existence of a genuine issue of material fact relating to his claim for intentional infliction of emotional distress.  Thus, summary judgment on this claim was properly granted.

            The only remaining claim against the City and Heaton is an alleged violation of the PODPA.  When an officer is subject to disciplinary action, the PODPA establishes certain procedures for taking a formal statement from the officer.  Minn. Stat. § 626.89, subd. 3 (2004).  A formal statement is defined as “the questioning of an officer in the course of obtaining a recorded, stenographic, or signed statement to be used as evidence in a disciplinary proceeding against the officer.”  Id., subd. 1(b) (2004).  When a formal statement is taken, the officer has the right to have present an attorney or union representative chosen by the officer during the questioning.  Id., subd. 9 (2004).  “The officer may request the presence of an attorney or union representative at any time before or during the session.”  Id.  And when a request has been made, a formal statement may not be taken until a reasonable opportunity is provided for the officer to secure the presence of the attorney or union representative.  Id. 

            Longbehn claims that he was discharged without an opportunity to request an attorney or union representative.  But when the record is viewed in the light most favorable to Longbehn, it fails to indicate that Heaton ever questioned Longbehn about disciplinary issues.  Assuming for the purpose of our analysis that such questioning occurred, no statements were used against Longbehn in a disciplinary hearing, since his discharge was based entirely on complaints by citizens and city officials.  Because Longbehn fails to establish that he provided a formal statement that was used against him in a disciplinary action, the district court did not err in granting summary judgment in favor of the City and Heaton on this claim.

II.

            Longbehn argues that the district court erred by failing to grant his motions for a mistrial, continuance, and a new trial.  These motions all arose from Brooks’s absence at trial and the district court’s decision that Brooks’s deposition testimony was inadmissible in her absence.  As a result, they share several common considerations.

A.

            A motion for a new trial may proceed on the basis of an error of law occurring at trial.  Minn. R. Civ. P. 59.01(f).  Our standard of review for such a motion is based on the standard of review for the underlying legal error.  Compare Dostal v. Curran, 679 N.W.2d 192, 194 (Minn. App. 2004) (noting that, when motion for new trial is based on question of law, review is de novo), review denied (Minn. July 20, 2004), withMyers v. Winslow R. Chamberlain Co., 443 N.W.2d 211, 215 (Minn. App. 1989), (reviewing denial of motion for new trial based on evidentiary error for abuse of discretion), review denied (Minn. Sept. 27, 1989).  Longbehn’s motion for a new trial asserts that the district court committed an evidentiary error by excluding the deposition of an absent witness.  Assuming that this decision would have an effect on the outcome at trial, our review is for an abuse of discretion.  May v. Strecker, 453 N.W.2d 549, 554 (Minn. App. 1990), review denied (Minn. June 15, 1990).

            One basis for admission of a deposition at trial is found in Minn. R. Civ. P. 32.01, which provides in relevant part:

At the trial . . . any part or all of a deposition, so far as admissible under the Minnesota Rules of Evidence applied as though the witness were then present and testifying, . . . may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof in accordance with any one of the following provisions: . . .

 

(c)  The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . .

(4)  that the party offering the deposition has been unable to procure the attendance of the witness by subpoena[.]

 

(Emphasis added.)  Longbehn sought admission of Brooks’s deposition, in which Brooks purportedly relates a defamatory statement made by Cich about Longbehn.  Longbehn does not assert that Brooks’s deposition has any relevance in the action against Schoenrock.  At the time of the deposition, Cich was not a party to the action, and no other party had an incentive to protect Cich’s interests.

By its plain language, Rule 32.01 does not authorize the admission of a deposition against a party not represented at the deposition.  Because Cich was not represented at Brooks’s deposition, Rule 32.01 does not authorize the admission of Brooks’s deposition in the case against Cich.

In the alternative, Longbehn seeks admission of the deposition under the hearsay exceptions for an unavailable witness.  A statement is hearsay if it is made outside of court and is offered for the truth of what it asserts.  Minn. R. Evid. 801(c).  Because the deposition was offered for the truth of the statements Brooks made during the deposition, the parties do not dispute that it is hearsay.

Hearsay ordinarily is not admissible as evidence.  Minn. R. Evid. 802.  Rule 804, however, allows the admission of a statement by an unavailable witness in “situations in which the declarant . . . is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance . . . by process or other reasonable means.”  Minn. R. Evid. 804(a)(5).  Caselaw that predates Rule 804 establishes that, before a hearsay statement from an absent witness may be admitted, the proponent must undertake due diligence to procure the trial appearance of the witness.  Wilder v. City of St. Paul, 12 Minn. 192, 205, 12 Gil. 116, 129 (1866).  Contemporary Minnesota caselaw has not considered what conduct constitutes due diligence under Rule 804(a)(5), but foreign authorities offer substantial guidance.  See generally Milton Roberts, Annotation, Sufficiency of Efforts to Procure Missing Witness’ Attendance to Justify Admission of his Former Testimony, 3 A.L.R.4th 87 (1981 & Supp. 2004).

The district court has discretion to determine whether a party has made reasonable efforts to procure the trial appearance of a witness.  Spears v. State Farm Fire & Cas. Ins., 725 S.W.2d 835, 839 (Ark. 1987).  When making this determination, the district court may accept or reject the representations of counsel with respect to these efforts.  Id.  When a party purportedly subpoenas a witness, but does not determine whether the subpoena was duly served or whether the witness will be present to testify, the party has not undertaken due diligence.  Grant v. State, 24 P.3d 761, 765 (Nev. 2001).  Due diligence may require the party to make efforts to contact the witness’s home, family, or employer to ensure that the witness is present.  Id.

The trial at issue here had been continued several times.  The parties agree that Brooks had been subpoenaed for a previously scheduled trial date.  But when the trial was rescheduled for August 13 and 14, Longbehn did not subpoena Brooks.  Indeed, Longbehn admits that he relied on an informal agreement with Brooks that she would appear.  On the day that Brooks was scheduled to testify, Longbehn learned through Brooks’s employer that she was out of the state on vacation.

Because Longbehn did not verify Brooks’s whereabouts until the trial, it was reasonable for the district court to infer that Longbehn did not undertake due diligence to secure Brooks’s appearance at trial.  By failing to subpoena Brooks for the new trial date, Longbehn necessarily ran the risk of her failure to appear.  See Roseberry v. Hart-Parr Co., 145 Minn. 142, 146, 176 N.W. 175, 176 (1920) (noting that, because defendant failed to subpoena witness and relied merely on oral promise to attend trial, defendant took risk of losing benefit of witness testimony).  In the absence of due diligence in securing Brooks’s attendance, Longbehn cannot rely on hearsay exceptions that are based on witness unavailability.

            Longbehn also claims that the deposition is admissible under the residual hearsay exception.  Because this argument was not presented to or decided by the district court, this claim is waived.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1998).

B.

            Longbehn challenges the district court’s denial of his motion for a new trial on several additional bases.  Motions for a new trial are governed by Minn. R. Civ. P. 59.01, which provides in relevant part:

A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes:

            (a)  Irregularity in the proceedings of the court, referee, jury, or prevailing party, or any order or abuse of discretion, whereby the moving party was deprived of a fair trial; . . .

            (c)  Accident or surprise which could not have been prevented by ordinary prudence[.]

 

We review for an abuse of discretion a district court’s decision to grant or deny a new trial on any of these bases.  Dostal, 679 N.W.2d at 194.

Longbehn also challenges the district court’s denial of his motion for a mistrial.  Because a motion for a mistrial is, in effect, a motion for a new trial in the midst of an ongoing trial, we apply the same standard of review for denial of a mistrial as for denial of a new trial.  See Spinett, Inc. v. Peoples Natural Gas Co., 385 N.W.2d 834, 840 (Minn. App. 1986) (applying new trial standard to mistrial); see generally 23 Ronald I. Meshbesher, Minnesota Practice § 32.1 (2004).

            When a motion for a new trial is based on an irregularity in the proceedings, the movant must show that an irregularity, not constituting an error of law, resulted in an unfair trial.  Boschee v. Duevel, 530 N.W.2d 834, 840 (Minn. App. 1995), review denied (Minn. June 14, 1995).  Such irregularity may arise out of the presentation of arguments or evidence; the conduct, selection, or instruction of jurors; or the conduct of the district court.  See, e.g., Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 47-48 (Minn. 1997) (prejudicial statement by district court as to pivotal fact); Brooks Realty, Inc. v. Aetna Ins. Co., 276 Minn. 245, 249-50, 149 N.W.2d 494, 497-98 (1967) (recanted testimony from witness); Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 329-30, 104 N.W.2d 301, 304 (1960) (prejudicial closing statement). 

            Longbehn contends that the district court’s exclusion of Brooks’s deposition resulted in an irregularity in the proceedings.  But this argument asserts an error of law based on the district court’s evidentiary ruling rather than an irregularity in the proceedings.  The district court did not abuse its discretion by excluding Brooks’s deposition.  Thus, Longbehn cannot assert that the exclusion of this evidence is an unfair irregularity in the proceedings.  The district court’s denial of the motion for a new trial on the basis of an irregularity in the proceedings was proper.

            Longbehn also seeks a new trial on the basis of accident or surprise.  A motion for a new trial may proceed on this basis when the movant does not fairly anticipate an event at trial.  Schiro v. Raymond, 237 Minn. 271, 276-77, 54 N.W.2d 329, 332-33 (1952).  When the surprise is based on a witness’s absence, the movant must show that the absence could not have been avoided through ordinary prudence.  Fire Ins. Exch. v. Adamson Motors, 514 N.W.2d 807, 811 (Minn. App. 1994).  Longbehn fails to meet this standard because he did not undertake due diligence to secure Brooks’s attendance at trial.  Thus, the district court’s denial of the motion for a new trial based on accident or surprise was not an abuse of discretion.

Longbehn counters that the district court improperly considered the cost and inconvenience of a new trial when it denied the motion.  A motion for a new trial may be granted only on the bases stated in Rule 59.01.  Bowman v. Pamida, Inc., 261 N.W.2d 594, 596-97 (Minn. 1977).  Because Longbehn fails to establish any basis for a new trial in accordance with the rule, any error committed by the district court’s consideration of improper factors was harmless.

C.

            Longbehn also argues that the district court should have granted a continuance in order to ensure the appearance of Brooks.  When a district court denies a continuance at trial, we review for a clear abuse of discretion.  Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977).  Denial of a continuance shall be reversed only if the decision prejudiced the outcome of the trial.  Chahla v. City of St. Paul, 507 N.W.2d 29, 31-32 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993).

            When a party is aware of a witness prior to trial but fails to procure the attendance of the witness at trial, the district court may properly deny a continuance to procure the witness.  Roseberry, 145 Minn. at 146, 176 N.W. at 176; Beyer v. Comm’r of Pub. Safety, 358 N.W.2d 713, 715 (Minn. App. 1984).  Again, Longbehn’s failure to undertake due diligence to procure the attendance of Brooks is a critical factor in our analysis.  The district court did not clearly abuse its discretion by denying a continuance.

III.

            Longbehn challenges the district court’s dismissal, with prejudice, of the remaining tort claims against Cich and Schoenrock.[3]  When the plaintiff has completed the presentation of the evidence, the defendant may move to dismiss a claim on the ground that, upon application of the law to the facts, the plaintiff has failed to establish a right to relief.  Minn. R. Civ. P. 41.02(b).  Unless otherwise specified by the district court in its order, such dismissal operates as an adjudication on the merits.  Minn. R. Civ. P. 41.02(c).  A motion for dismissal with prejudice on the ground that the adverse party has not established a right to relief is governed by identical considerations as a motion for a directed verdict.  Lampert Lumber Co. v. Joyce, 405 N.W.2d 423, 426 (Minn. 1987).  A directed verdict is proper when, considering all the evidence at trial, reasonable persons could not differ and the movant is entitled to a verdict as a matter of law.  Ramirez v. Miska, 304 Minn. 4, 7, 228 N.W.2d 871, 873 (1975).  Because whether a directed verdict was properly granted is a question of law, we undertake de novo review, viewing the evidence in the light most favorable to the nonmoving party.  Nelson v. Nelson, 282 Minn. 487, 491, 166 N.W.2d 70, 73 (1969).  The existence of minimal evidence weighing against dismissal with prejudice or a directed verdict does not compel reversal, as long as a reasonable person would not rely on this evidence.  Lee v. Smith, 253 Minn. 401, 415-16, 92 N.W.2d 117, 127-28 (1958).

A.

            An action for defamation requires the claimant to include the alleged defamatory statement in the complaint, even if the statement appears elsewhere in the record.  Am. Book Co. v. Kingdom Pub. Co., 71 Minn. 363, 365-66, 73 N.W. 1089, 1090 (1898); Benson v. Northwest Airlines, Inc., 561 N.W.2d 530, 538 (Minn. App. 1997), review denied (Minn. June 11, 1997).  In the action against Cich, the evidence at trial establishes that Cich referred to Longbehn as a “pervert” and a “sex maniac” at a retirement dinner.  Longbehn moved to amend his complaint to include these terms on March 11, 2003, but the record is silent as to any action on this motion.  These terms, furthermore, were omitted from an amended complaint Longbehn filed on July 15, 2003.    Because it was improper to permit evidence on these statements to be submitted to the jury, and no other evidence of defamatory statements by Cich was presented at trial, the district court properly granted dismissal with prejudice on this claim.

            As discussed above, a defamation claim requires a statement communicated to someone other than the claimant that is false and that tends to harm the claimant’s reputation and esteem in the community.  Weinberger, 668 N.W.2d at 673.  A statement is defamatory per se, requiring no proof of special damages, when the harm to a claimant’s reputation may be implied as a matter of law.  Ernster v. Eltgroth, 149 Minn 39, 40, 182 N.W. 709, 710 (1921).  A false statement that a person has committed a crime or sexual misconduct is defamatory per se.  Anderson v. Kammeier, 262 N.W.2d 366, 372 (Minn. 1977); Hammersten v. Reiling, 262 Minn. 200, 206, 115 N.W.2d 259, 264 (1962).

            In the action against Shoenrock, Wilson’s testimony establishes that Schoenrock referred to Longbehn as “Pat the Pedophile.”  This phrase suggests a propensity toward committing, if not the commission of, a sex crime.  Because this statement alleges sexual misconduct, it is defamatory per se.  See Anderson, 262 N.W.2d at 372.  When viewed in the light most favorable to Longbehn, the evidence reasonably supports a claim for defamation.  Therefore, the district court erred in dismissing this claim with prejudice.  Accordingly, we reverse the dismissal of the defamation claim against Schoenrock and remand for further proceedings.

B.

            The only remaining claims are against Schoenrock for negligent and intentional infliction of emotional distress.  To establish a claim for negligent infliction of emotional distress, the plaintiff must demonstrate exposure to physical danger, causing reasonable fear for one’s safety, which resulted in severe emotional distress with accompanying physical manifestations.  Wall, 584 N.W.2d at 408.  Proof of another intentional tort, such as defamation, may substitute for the element requiring presence in a zone of physical danger.  Oslin, 543 N.W.2d at 417.

            Consistent with our earlier analysis, the defamation claim against Schoenrock survives.  Thus, the outstanding issue is whether Longbehn has offered sufficient proof of severe emotional distress.   Although this claim ordinarily requires that the claimant suffer physical manifestations of emotional distress, such physical manifestations are not required when the claim proceeds on a theory of defamation.  Covey, 490 N.W.2d at 144; see alsoState Farm Mut. Auto. Ins. Co. v. Vill. of Isle, 265 Minn. 360, 368, 122 N.W.2d 36, 41 (1963) (noting that in action for defamation, recovery for emotional distress without proof of physical injury is allowed).

            When viewed in the light most favorable to Longbehn, the record indicates that Longbehn suffered loss of esteem resulting in depression for which he ultimately was hospitalized.  Because a physical manifestation of his emotional distress is not required, this evidence is sufficient.  Thus, the district court erred in dismissing Longbehn’s claim against Schoenrock for negligent infliction of emotional distress.  Accordingly, we reverse the district court’s dismissal of this claim and remand for further proceedings.

            On the claim against Shoenrock for intentional infliction of emotional distress, Longbehn must demonstrate that Shoenrock intentionally or recklessly engaged in extreme and outrageous conduct, which resulted in severe emotional distress with accompanying physical manifestations.  See Langeslag, 664 N.W.2d at 864.  Claims for intentional infliction of emotional distress are disfavored and are limited to those instances when “the emotional distress is so severe that no reasonable person could be expected to endure it.”  Mrozka v. Archdiocese of St. Paul & Minneapolis, 482 N.W.2d 806, 813-14 (Minn. App. 1992), review denied (Minn. May 24, 1992).

            In Strauss v. Thorne, 490 N.W.2d 908, 910-11 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992), a doctor made notations on a medical chart alleging that a patient had committed child abuse.  We held that, notwithstanding the patient’s embarrassment and depression, the conduct was not extreme or outrageous as a matter of law.  Id. at 913.  The facts in support of the instant claim are nearly indistinguishable, albeit involving allegations of pedophilia instead of child abuse.  Because, when viewed in the light most favorable to Longbehn, the facts fail to establish intentional infliction of emotional distress as a matter of law, the district court did not err in dismissing this claim with prejudice.

            Affirmed in part, reversed in part, and remanded.