This opinion will be unpublished and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

A05-398

 

Malcolm W. Prinzing,
Appellant,

vs.

Grace Stabell Schwab,
Respondent.

 

Filed March 7, 2006

Affirmed

Wright, Judge

 

Freeborn County District Court

File No. C3-02-1505

 

 

Randall D.B. Tigue, Randall Tigue Law Office, P.A., 3960 Minnehaha Avenue South, Suite 100, Minneapolis, MN  55406 (for appellant)

 

Frederic W. Knaak, Knaak & Kantrud, P.A., 3500 Willow Lake Boulevard, Suite 800, Vadnais Heights, MN  55110 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D  O P I N I O N

WRIGHT, Judge

After finding that appellant had defamed respondent, a state senator, by posting signs accusing her of stealing, a jury awarded damages.  Appellant now argues that (1) his statements were not defamatory because they were true; (2) the evidence was insufficient to establish actual malice; and (3) the damages award is excessive.  We affirm.

FACTS

On November 5, 2001, respondent Grace Schwab saw an eight-foot by eleven-foot sign in the parking lot of Northridge Mall in Albert Lea.  The sign urged area residents to vote against a proposed school referendum the next day.  Schwab, a state senator who supported the referendum, stopped at the mall to speak with the manager about whether the sign reflected the views of the mall merchants.  The mall manager, concerned that shoppers might attribute the views on the sign to the mall, decided “to change the message so that it was neutral until we found who it belonged to and how to get it removed.”  The mall manager and Schwab removed most of the letters from the sign so as to change the message to a politically neutral one.  The mall manager then stored the letters at the mall.

Appellant Malcolm Prinzing, who had parked the sign in the parking lot, was advised about the removal of the letters by a friend who had seen Schwab and the mall manager altering the sign.  Prinzing called the local police to report the incident.  An officer went to the mall, spoke with the mall manager, and returned Prinzing’s letters to him a few hours later.  Prinzing moved the sign later that day.

            Prinzing requested that the police pursue the prosecution of Schwab for theft.  The Albert Lea police chief advised Prinzing that charges would not be brought because Schwab’s actions did not constitute theft.  Prinzing then placed a newspaper advertisement offering a $5,000 reward to anyone who could supply information leading to the arrest and conviction of those who removed the letters.  No one came forward.  When the city declined to prosecute, Prinzing contacted the county attorney’s office and requested prosecution.  But he received no response.  Schwab was never prosecuted for theft.

            Almost a year after the letters were removed, during Schwab’s fall 2002 reelection campaign, Prinzing placed several signs around Schwab’s district accusing her of theft.  The signs included the following messages:  “Grace Schwab took letters from sign; I call it stealing; will U vote 4 a thief?”; “Ok to steal if your [sic] a state senator right Gracie? How will U vote Nov. 5?”; and “Grace Schwab stop the spin; you are the thief; I am the victim.”  Prinzing also employed the use of an airplane banner at a campaign event where Schwab was speaking.  The banner accused Schwab of being a thief.  Schwab lost her reelection bid.

On October 30, 2002, Prinzing filed suit against Schwab, alleging conversion of the letters removed from the parking lot sign.  Schwab counterclaimed, alleging defamation.  The matter proceeded to a jury trial.  The jury found that Schwab had not converted Prinzing’s property.  But the jury found that Prinzing had defamed Schwab and awarded her $150,000 in damages.  Prinzing moved for judgment notwithstanding the verdict, remittitur, or a new trial.  After the district court denied the motion, Prinzing appealed.

D E C I S I O N

I.

To be defamatory, a statement about a public figure (1) must be communicated with actual malice to someone other than the public figure, (2) must be false, and (3) must cause harm to the public figure’s reputation.  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).  A public-figure plaintiff must prove “actual malice” by clear and convincing evidence.  Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 480 (Minn. 1985) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 283-86, 84 S. Ct. 710, 726 (1964)).  Both parties agree that Schwab is a public figure for the purpose of this action.  Prinzing contends, however, that the statements about Schwab on his signs were in fact true and that Schwab did not meet her burden of proving actual malice.

A.

Notwithstanding the jury’s special verdict that Prinzing’s statements about Schwab were false, Prinzing urges us to review the record and find that Schwab indeed committed theft.  We “will not set aside a jury verdict on an appeal from a district court’s denial of a motion for a new trial unless it is manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict.”  Navarre v. S. Washington County Sch., 652 N.W.2d 9, 21 (Minn. 2002) (quotation omitted).  When judgment notwithstanding the verdict has also been denied by the district court, the denial “must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict.”  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998) (quotation omitted).

The record supports the jury’s finding that Prinzing’s statements were false.  The jurors heard uncontested evidence that Schwab was never charged with or prosecuted for theft and that the local police chief advised Prinzing that Schwab’s actions did not constitute theft.  Indeed, Schwab’s testimony establishes that she did not possess the requisite intent to commit theft.  The only evidence that might support a theory that Schwab committed theft was her admission that she removed some of the letters from Prinzing’s sign and gave them to the shopping-mall manager.  Without more, however, a reasonable juror could conclude that this brief physical contact with Prinzing’s property was insufficient to constitute theft under Minnesota law.[1]  The district court did not err when it affirmed the jury’s determination that Prinzing’s statements regarding Schwab were false.

B.

When the plaintiff in a defamation action is a public figure, “an essential element of the plaintiff’s claim is clear and convincing proof of actual malice . . . .”  Jadwin,367 N.W.2d at 480.  Prinzing maintains that Schwab did not meet her burden of proving actual malice.

The constitutional requirement that a public-figure plaintiff prove actual malice reflects the high value placed on the ability to discuss freely the character and qualifications of candidates for public office.  New York Times Co., 376 U.S. at 281, 84 S. Ct. at 726.  To satisfy the actual-malice standard, a public-figure plaintiff must prove by clear and convincing evidence that a defendant published a statement with “knowledge that it was false or with reckless disregard of whether it was false or not.”   Id. at 279-80, 84 S. Ct. at 726.  Although the actual-malice standard sets a high bar, it is not insurmountable. 

Here, Schwab did not argue that Prinzing had actual knowledge that his statements were false.  Rather, she relied on evidence of “reckless disregard” of the statements’ falsity.  While noting that reckless disregard “cannot be fully encompassed in one infallible definition,” the United States Supreme Court has provided guidance for the application of this standard.  St. Amant v. Thompson, 390 U.S. 727, 730, 88 S. Ct. 1323, 1325 (1968).  In doing so, the St. Amant court stated that “reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.”  Id.at 731, 88 S. Ct. at 1325. 

The Minnesota Supreme Court has consistently cited this language from St. Amant as the touchstone for its reckless-disregard jurisprudence, stating recently that reckless disregard “requires that a defendant make a statement while subjectively believing that the statement is probably false.”  Chafoulias v. Peterson, 668 N.W.2d 642, 655 (Minn. 2003) (citing St. Amant); see also Hirman v. Rogers, 257 N.W.2d 563, 566 (Minn. 1977) (quoting St. Amant’s test for reckless disregard as requiring “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication”). 

Although procedurally this case comes to us after the district court denied Prinzing’s motions for a new trial and judgment notwithstanding the verdict, the constitutional concerns inherent in an action for defamation of a public figure require us to apply a less deferential standard of review than ordinarily applicable given this procedural posture.  See Bose Corp. v. Consumers Union, 466 U.S. 485, 499, 104 S. Ct. 1949, 1959 (1984) (“The New York Times rule emphasizes the need for an appellate court to make an independent examination of the entire record . . . .”).  Thus, we review de novo whether the evidence in the record is sufficient to support a finding of actual malice.  Chafoulias, 668 N.W.2d at 655.  But we nevertheless give due regard to the jury’s credibility assessments made after observing the witnesses at trial.  Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S. Ct. 2678, 2696 (1989) (holding that credibility determinations in defamation action are reviewed under clearly erroneous standard because fact-finder has had the opportunity to observe witnesses); Bose Corp., 466 U.S. at 499-500, 104 S. Ct. at 1959 (clarifying that independent review required by New York Times actual-malice rule is consistent with Fed. R. Civ. P. 52(a), which requires that “[f]indings of fact . . . shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses”); see also Minn. R. Civ. P. 52.01 (mirroring language of Fed. R. Civ. P. 52(a)).  Although the standard for reckless disregard is a subjective one, rather than an objective reasonable-person standard, a “defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true.  The finder of fact must determine whether the publication was indeed made in good faith.”  St. Amant, 390 U.S. at 732, 88 S. Ct. at 1326. 

Prinzing testified that, when he posted his signs throughout Schwab’s senate district, he subjectively believed that he was the victim of a theft.  Although reckless disregard is a subjective standard, this element does not require a fact-finder to consider only the defendant’s testimony as evidence.  The fact-finder may assess a defendant’s credibility by considering evidence that the statement is fabricated, is a product of the defendant’s imagination, or is so inherently improbable that only a reckless person would publish it, or by considering evidence of obvious reasons to doubt the veracity of a statement.  Id.  Thus, when a defendant’s testimony as to his subjective beliefs simply is not credible, the fact-finder is free to disbelieve the testimony and draw a contrary conclusion.  Bose Corp., 466 U.S. at 512, 104 S. Ct. at 1966 (“When the testimony of a witness is not believed, the trier of fact may simply disregard it.”)  Here, the jury made a credibility determination regarding Prinzing’s testimony, to which we defer. 

Because of the constitutional concerns at issue in a defamation action, a plaintiff may not simply rest on the jury’s disbelief of the defendant’s testimony.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514 (1986).  Although Prinzing asserts that Schwab did just that, his argument is unsupported by the record.  Schwab presented circumstantial evidence establishing that Prinzing did not publish the statements with a good-faith belief that they were true.  The police chief’s testimony that Schwab’s actions did not satisfy the legal definition of theft, that no one responded to Prinzing’s reward offer, and that both the city and county prosecutors declined to prosecute Schwab supply strong evidence that Prinzing did not publish the statements with a good-faith belief in their truth.  Moreover, the timing of the publication provides additional circumstantial evidence of Prinzing’s reckless disregard for the falsity of the statements.  Although Prinzing had more than one year to investigate whether his beliefs were true, he took no further action to confirm or deny whether Schwab’s actions met the definition of theft.  Instead, he waited until Schwab was in the midst of her reelection campaign and published his allegations. 

Prinzing alleged on his signs and testified at trial that Schwab was not prosecuted for theft because of her position as a state senator and her husband’s position as city attorney.  But Prinzing presented no evidence to substantiate his theory.  Without any evidence, Prinzing chose to publish his statements based on an unsubstantiated conspiracy theory of his own making.  On this record, we conclude that Schwab has met the heavy burden of proving actual malice.  Accordingly, the district court properly denied Prinzing’s motion for a new trial or judgment notwithstanding the verdict.

II.

The jury awarded Schwab $100,000 in damages for past harm and $50,000 in damages for future harm from the defamatory statements.  Prinzing argues that this award is excessive and necessitates remittitur or a new trial. 

We will not disturb an award of damages “unless [our] failure to do so would be shocking or would result in plain injustice.”  Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 199 (Minn. 1986).  In a defamation action, “the amount to be awarded is referred to the discretion of the jury, and the court will not ordinarily interfere unless the amount is so unreasonable and excessive as to be indicative of passion, prejudice, partiality, or corruption of the jury.”  Blume v. Scheer, 83 Minn. 409, 412, 86 N.W. 446, 447 (1901).  We will not disturb the district court’s decision on a new-trial motion based on excessive damages absent an abuse of discretion. Advanced Training Sys. v. Caswell Equip. Co., 352 N.W.2d 1, 11 (Minn. 1984).

Accusations of criminal wrongdoing constitute defamation per se.  Anderson v. Kammeier, 262 N.W.2d 366, 372 (Minn. 1977).  When a defendant’s statements are defamatory per se, general damages are presumed.  Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987).

Prinzing’s signs were placed around Schwab’s senate district during the weeks before the election.  There was extensive publicity in both print and television media regarding Prinzing’s signs.  Schwab testified that she experienced severe stress, manifested by headaches and sleeplessness, from the signs and accompanying publicity.  And the signs put stress on her children and marriage.  Because of the signs, she was personally humiliated, and one of her children was taunted in school.  Not only did Schwab lose her reelection bid, but she also has lost interest in seeking elected office because the experience was so difficult for her.  The evidence establishes that Schwab accepted a job in St. Paul, in part, to work in a community that was unaware of Prinzing’s actions.  As a result, Schwab’s time with her family has been reduced because she now lives in St. Paul during the week while her family remains in Albert Lea.  On this record, the jury’s damages award is not manifestly contrary to the evidence, nor is its amount indicative of partiality or prejudice. 

Prinzing maintains that precedent from other jurisdictions suggests that the damages award of $150,000 is excessive.  But our own precedent leads us to conclude otherwise.  For example, when a city maintenance supervisor successfully sued a Duluth newspaper for libel after it implied that he engaged in criminal conduct by stealing from the city, we affirmed a damages award of $676,000 in 1994.  LeDoux v. Nw. Publ’g, Inc., 521 N.W.2d 59, 69 (Minn. App. 1994), review denied (Minn. Nov. 16, 1994).  In doing so, we noted that the plaintiff in LeDoux

(1) felt “devastated” after reading the editorials published by appellants; (2) ha[d] difficulty sleeping, digestive problems, headaches, nausea, vomiting, and chest pains; (3) contemplated committing suicide and sought counseling because the “newspaper articles kept coming and coming”; (4) withdrew from his sons and became more moody; and (5) attempt[ed] to avoid being identified in public or at work, for fear of embarrassment. 

 

Id.  Schwab presented similar, albeit less severe, consequences from the defamation at issue here. 

            From our review of the record and relevant precedent, we conclude that the amount of damages awarded here is not excessive or unjust.  Thus, the district court was well within its discretion to deny Prinzing’s motion for remittitur or a new trial on damages.

            Affirmed.