This opinion will be unpublished and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

A04-2390

 

Nuro B. Dedefo,
Appellant,

vs.

Aliyi Wake, et al.,
Respondents.

 

Filed February 21, 2006

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. MC 02-002448

 

 

Nuro B. Dedefo, 11819 Fillmore Street, N.E., Blaine, MN 55434 (pro se appellant)

 

David E. Zins, 5353 Gamble Drive, Suite 125, Minneapolis, MN 55416 (for respondents)

 

            Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

            Appellant challenges the district court’s entry of a directed verdict dismissing his defamation claim, arguing that alleged defamatory statements were not protected as a part of dispute resolution and that the district court improperly excluded certain testimony.  Because the district court did not err in its determinations, we affirm.

FACTS

            Appellant Nuro Dedefo and respondents came to the United States from the same region in Ethiopia and are members of the Oromo Community of Minnesota (Oromo).  Oromo has a staff, officers, a board and elders; Dedefo is its president.  In addition, Dedefo and respondents formed the Anole Association (Anole), a small organization to promote the interests of its Ethiopian members.  Anole meets monthly.  At Anole’s September 2001 meeting, Dedefo and respondent Aliyi Wake argued.  At the October meeting, Dedefo was informed that Anole had assessed him a fine of $100 for disrupting the September meeting.  Dedefo requested a copy of the decision but his requests were denied.  Dedefo then received a letter from Anole, accusing him of disrupting the organization and ordering him to discontinue his disruptive behavior.

            Respondents, as members of Anole, also sent a letter about Dedefo dated November 10, 2001 to Oromo and copied its elders.  The letter was written in the Oromo language; Dedefo provided a translation.  The letter first identifies the authors as members of Anole and describes Anole.  The letter states, “Dedefo being the leader of the Oromo Community, when he should have encouraged the development of [Anole], he has engaged in the destruction.  His action is saddening.”  The letter then lists four specific complaints about Dedefo.  It refers to itself as a “petition” and to the respondents (authors) as “petitioners.”  The letter recites that it is sent “to inform you about the problems he has caused to our organization.” 

            The function of the Oromo elders includes resolving disputes among Oromo community members.  In his complaint, Dedefo alleges that the elders indicated that they would attempt to resolve the matter, spent three weeks investigating, decided in his favor, and ordered respondents to apologize and pay compensation to Dedefo.  Respondents did not accept the elders’ decision.

            In February 2002, Dedefo brought this action against respondents, alleging with specificity that respondents’ November 10, 2001 letter was defamatory.  The district court granted respondents’ motion for judgment on the pleadings under Minn. R. Civ. P. 12.03, reasoning that respondents’ statements were matters of opinion and not actionable.  This court reversed and remanded.  Dedefo v. Wake, No. C2-02-1692 (Minn. App. May 27, 2003).

            On remand, Dedefo presented his case at a jury trial.  The district court excluded both the testimony from the elders regarding matters discussed in the dispute resolution proceeding and the results of the proceeding under Minn. Stat. § 595.02, subd. 1a (2004) because the proceeding was a form of mediation.  The district court also excluded testimony about other allegedly defamatory statements, both before and after delivery of the letter to the Oromo organization and the elders’ consideration of the letter.  The district court reasoned that those statements were not part of Dedefo’s claim in the pleadings and that statements made after the mediation proceeding were a matter of public knowledge due to the proceeding.  The district court granted respondents’ motion for a directed verdict, concluding that because respondents’ letter was only sent to the Oromo organization and the elders, this publication was absolutely privileged because the letter was part of a dispute resolution proceeding.  This appeal followed.

D E C I S I O N

I.

            The first issue is whether the district court improperly granted respondents’ motion for a directed verdict on Dedefo’s defamation claim.  On appeal from a directed verdict, appellate courts make an independent determination of whether the evidence was sufficient to present a fact question to the jury and review the evidence in the light most favorable to the nonmoving party.  Boone v. Martinez, 567 N.W.2d 508, 510 (Minn. 1997).  A directed verdict should not be granted unless the trial court would have a duty “to set aside a contrary verdict as being manifestly against the entire evidence, or against applicable law.”  Howie v. Thomas, 514 N.W.2d 822, 824 (Minn. App. 1994). 

            The elements of defamation are (1) a false statement, (2) communication of the statement to someone other than the plaintiff, and (3) the statement’s tendency to harm the plaintiff’s reputation.  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).  Some statements are immune from liability based on various privileges.  See, e.g., Johnson v. Dirkswager, 315 N.W.2d 215, 220 (Minn. 1982).  Here, the district court directed the verdict in favor of the respondents on the ground that the November 10, 2001 letter and related testimony about its receipt and consideration by the elders was privileged, as it occurred in the context of and the testimony concerned a dispute resolution proceeding. 

            Appellant Dedefo does not challenge the district court’s legal determination that the Oromo elders engage in dispute resolution or that statements made in that context are privileged.  He also does not cite or discuss any statutory or case law regarding the nature or scope of this privilege.  This principle is dispositive of much of this appeal.  In this context, issues not argued in the briefs are waived.  Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).  A party has an obligation to provide argument and authority supporting its position, and failure to do so results in waiver of an issue, “unless prejudicial error is obvious on mere inspection.”  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quoting Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971)).

            Despite Dedefo’s failure to provide any legal analysis, we note the following: Minnesota has by statute recognized that communications in dispute resolution settings are not admissible as evidence:

            Subd. 1.  Competency of witnesses

 

            . . . .

 

            (l)  A person cannot be examined as to any communication or document, including worknotes, made or used in the course of or because of mediation pursuant to an agreement to mediate. . . .  A communication or document otherwise not privileged does not become privileged because of this paragraph.  This paragraph is not intended to limit the privilege accorded to communication during mediation by the common law.

 

            . . . .

 

            Subd. 1a.  Alternative dispute resolution privilege.  No person presiding at any alternative dispute resolution proceeding established pursuant to law, court rule, or by an agreement to mediate, shall be competent to testify, in any subsequent civil proceeding or administrative hearing, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding . . .

 

Minn. Stat. § 595.02.  Our courts have also recognized that statements made during judicial or quasi-judicial proceedings that are relevant to the proceeding are absolutely privileged and cannot be the basis for a defamation action.  Matthis v. Kennedy, 243 Minn. 219, 224, 67 N.W.2d 413, 417 (1954); Kellar v. VonHoltum, 568 N.W.2d 186, 192 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997).  

            Although Dedefo does not challenge the district court’s legal determination that dispute resolution before the elders is a qualifying dispute resolution proceeding under the statute or the common law privilege, he argues that the letter was only presented to communicate defamatory statements about him, not to engage in dispute resolution.  We note that on its face, the only defamatory conduct alleged by Dedefo was the letter itself.  This letter was styled a petition and was sent to the Oromo organization with copies to the elders.  Although certain employees, officers, and board members of Oromo apparently saw the letter, it was incident to its being sent to the organization itself.  These persons were part of the official structure of the organization. 

            One of the roles of Oromo elders is to resolve disputes among community members.  In furtherance of this goal, the elders spent three weeks investigating the matter and attempted to mediate the dispute between Dedefo and the respondents.  This response by the elders is relevant; it indicates their view of both their role and the nature of the communication.  As the district court determined, this is persuasive evidence that the purpose of the November 10, 2001 letter was dispute resolution.  Appellant Dedefo does not allege any defamatory conduct other than sending the letter and does not claim that he or the elders viewed their process in handling the letter as anything other than dispute resolution.[1]

            Even if respondents hoped to defame Dedefo, that does not prohibit them from sending a letter to initiate a dispute resolution process within their larger community.  The district court only concluded that in his complaint Dedefo had limited his basis for claiming defamation to the letter and its communication to the Oromo organization.  Dedefo framed his own claim.  We are not prepared to say that the doors of the dispute resolution process are closed because an unidentified defamatory effort lurks in the background.  Appellant does not contest the conclusion that the legislature has decided to encourage use of an alternative dispute resolution process and that documents and activity incident to that process are privileged.  See Minn. Stat. § 595.02, subds. 1(l), 1a.  This is a public policy conclusion we respect and apply.

            Dedefo further argues that in the Oromo tradition, a request for dispute resolution is presented orally, not in writing, and that since respondents sent a written communication to the Oromo community, it was not a legitimate dispute resolution request.  According to Dedefo’s witness at trial, although an oral request complies with traditional Oromo procedure, written requests are now also accepted.  Dedefo asserts that Oromo elders do not read and write in the Oromo language, but one of the elders testified that someone read the letter to the elders and that he could read the letter himself.  In this era, it is neither logical nor credible to claim that only oral communications can initiate dispute resolution proceedings and that written communications, even in an immigrant community, are inappropriate.  The importance of a record and clarity favor written communications.  Other than his bare assertion of the oral tradition, appellant Dedefo provides no logical reason why it should be accorded an exclusive role.  Under the circumstances, we conclude that in this case the respondents did not forfeit the mediation privileges by making a written request that the elders resolve the dispute.

            Dedefo further challenges the motive for sending the letter, claiming that the Anole bylaws provide a mechanism for dispute resolution and thus respondents would have no reason to submit their claim to the Oromo elders.  The Anole bylaws permit the association to sanction members with fines or expulsion, but do not preclude the submission of disputes to Oromo elders.  Further, respondents utilized their own Anole procedure without success; Dedefo apparently rejected the fine Anole assessed and the warning letter it sent.  We conclude the district court did not err in finding that respondents could present a dispute to the Oromo elders.     

            Dedefo also argues that the language of the letter itself indicates that it was not a request for dispute resolution.  But the letter refers to itself as a “petition,” refers to respondents as “petitioners,” and outlines specific problems respondents had with Dedefo.  Although the letter itself does not specifically request any relief and the letter states twice that its purpose is to inform the reader of the problems Dedefo caused, this is not inconsistent with it being a request for dispute resolution.    

            We conclude the district court did not err in determining that the letter presentation to the Oromo organization and its consideration by the elders was a part of a dispute resolution proceeding.  Therefore, we affirm the district court’s directed verdict for respondents.   

II.

            The second issue is whether the district court improperly excluded testimony by the elders about the matters discussed during the mediation.  Absent an erroneous interpretation of the law, the question of whether to admit evidence is within the district court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Id. at 46 (quotation omitted).  Under Minn. Stat. § 595.02, subd. 1a, set forth above, a mediator is not competent to testify about a proceeding over which he presides.           

            Here, respondents alerted the elders to their concern.  Dedefo testified that the elders told him “we’ll figure out what’s going on” and that he said “okay.”  Given the scope of the disputed activity, the identity of the parties, the role of the Oromo elders, and the parties’ participation in the elders’ proceeding; the district court determined that this constituted a proceeding pursuant to an agreement to mediate.  Dedefo does not dispute that some proceeding occurred, but instead argues that the letter was not a request for mediation.  For the same reasons those arguments failed above, they also fail here.  The district court’s decision to exclude the elders’ testimony on the contents of the mediation was not an error of law or an abuse of discretion.  Further, even if the exclusion was improper, it was not prejudicial.  The testimony would not have altered the determination that the letter was privileged as part of a dispute resolution proceeding and therefore not a proper basis for a defamation claim.

III.

            The last issue is whether the district court improperly excluded testimony about additional publication of respondents’ allegedly defamatory statements before and after the dispute resolution.  Unless the district court erroneously interpreted the law, we review a district court’s decision to exclude evidence for abuse of discretion, and only reverse for prejudicial error.  Kroning, 567 N.W.2d at 45-46.  “A party is bound by the pleadings if that party does not amend, unless an issue is litigated by consent.”  State ex rel. Hatch v. Allina Health Sys., 679 N.W.2d 400, 406 (Minn. App. 2004).    

            Here, the district court excluded testimony Dedefo offered about publication of respondents’ defamatory statements other than through the letter.  The district court found that the complaint did not contain allegations of any publication of defamatory statements other than the letter, that respondents had no knowledge of the evidence Dedefo wanted to produce until trial, and that respondents had conducted discovery in reliance on the claim described in Dedefo’s complaint.  Under these circumstances, the district court’s exclusion of testimony was not an abuse of discretion. 

            Affirmed.