A05-1259

Patrick E. Takuanyi,

Appellant,

vs.

The Office of Lawyers Professional

Responsibility, et al.,

Respondents.

Filed May 30, 2006

Affirmed

Willis, Judge

Ramsey County District Court

File No. C6-04-11772

Patrick E. Takuanyi, P.O. Box 75341, St. Paul, MN 55175 (pro se appellant)

Mike Hatch, Attorney General, Amy V. Kvalseth, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101 (for respondents)

Considered and decided by Toussaint, Chief Judge; Willis, Judge; and Crippen, Judge.*

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant challenges the district court’s order dismissing his defamation claim. Because we agree with the district court that appellant’s claim is barred by the statute of limitations, we affirm.

FACTS

Appellant Patrick E. Takuanyi challenges the dismissal of his defamation claim against respondents Office of Lawyers Professional Responsibility (OLPR) and named individuals involved in the investigation of an ethics complaint that Takuanyi filed. The material facts are not disputed. In August 2002, Takuanyi filed an ethics complaint with the OLPR against a lawyer who had represented him. The OLPR assigned the investigation of the complaint to respondent William Hull, a member of the Hennepin County District Ethics Committee (the committee). After Hull completed his investigation, he prepared a report and presented it to the committee. Hull recommended dismissing the complaint. The memorandum attached to the report contains a statement that is the basis for Takuanyi’s defamation claim.

The committee approved the report and adopted the recommendation that Takuanyi’s ethics complaint be dismissed. After reviewing the report and the committee’s recommendation, respondent Betty Shaw, then the senior assistant director in the OLPR, agreed that discipline was unwarranted. And on October 24, 2002, she signed a letter determination that discipline was not warranted, attached the memorandum containing the allegedly defamatory statement, and mailed copies of these documents to Takuanyi; the respondent attorney; Hull; and the committee’s administrator, respondent Jodee Marble.

Takuanyi appealed the October 24, 2002 decision to OLPR’s acting director. On November 8, 2002, respondent Neil Meyer, a volunteer member of the Lawyers Professional Responsibility Board, was assigned the task of reviewing the dismissal of Takuanyi’s ethics complaint. On December 9, 2002, Meyer approved the OLPR’s dismissal in a letter that he sent to Takuanyi; the respondent attorney; and to respondent Kenneth L. Jorgensen, then the director of the OLPR. The allegedly defamatory statement was not included in or attached to this communication.

On December 7, 2004, Takuanyi served the OLPR with a summons and complaint that alleged that respondents made defamatory statements that injured his reputation. Respondents moved to dismiss or, alternatively, for summary judgment.

After considering the pleadings and the parties’ affidavits, the district court issued an order dismissing Takuanyi’s complaint, concluding that (1) the action was barred by the two-year statute of limitations, (2) respondents were immune from liability under the Rules on Lawyers Professional Responsibility, and (3) the allegedly defamatory communication is absolutely privileged and cannot serve as a basis for liability. This appeal follows.

D E C I S I O N

When a party brings a rule 12 motion to dismiss and the district court considers matters outside the pleadings, the motion shall be treated as one for summary judgment under rule 56. Minn. R. Civ. P. 12.03. This court asks two questions when it reviews an appeal from summary judgment: (1) whether any genuine issue of material fact exists 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 “view[s] 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 shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, reviewed de novo by an appellate court. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn. 1998).

Takuanyi argues that the district court erred by concluding that (1) his defamation action is barred by the statute of limitations; (2) the board is immune from liability under Rule 21(b) of the Rules on Lawyers Professional Responsibility; and (3) the allegedly defamatory statement is absolutely privileged under Rule 21(a) of the Rules on Lawyers Professional Responsibility.

Defamation actions are subject to a two-year statute of limitations. Minn. Stat. § 541.07(1) (2004). In Minnesota, the statute of limitations for defamation begins to run upon publication. McGovern v. Cargill, Inc., 463 N.W.2d 556, 558 (Minn. App. 1990). The publication of a defamatory statement requires that a statement be made and that a third party understand that statement. Nw. Airlines, Inc. v. Friday, 617 N.W.2d 590, 594 (Minn. App. 2000). The publication of a defamatory statement includes the preparation of a letter containing the alleged defamation and the distribution of that letter to others. Frankson v. Design Space Int’l, 394 N.W.2d 140, 144 (Minn. 1986). Each new publication restarts the statute of limitations. See McGaa v. Glumack, 441 N.W.2d 823, 826 (Minn. App. 1989) (concluding that a defamation action based on a 1981 memorandum was time-barred but reviewing a defamation action based on a 1985 republication of the 1981 memorandum), review denied (Minn. Aug. 15, 1989).

Here, the memorandum containing the allegedly defamatory statement was created before October 2, 2002, and it was distributed to the committee by that date. The memorandum was then distributed by mail on October 24, 2002, with the OLPR’s determination that discipline was not warranted. Takuanyi appealed that determination; and the file, which included the memorandum, was assigned to Meyer on November 8, 2002. This is the last distribution of the memorandum that appears in the record.

A civil action is commenced against a defendant when the summons is served on a defendant. Minn. R. Civ. P. 3.01. Here, Takuanyi served the OLPR on December 7, 2004. Because November 8, 2002, is the last date of distribution of the allegedly defamatory statement that appears in the record, we conclude that Takuanyi’s defamation action was commenced more than two years after the statement’s last publication and is barred by the statute of limitations.

Takuanyi argues that he was under a medical disability that tolled the statute of limitations. Minn. Stat. § 541.07 does not provide such an exception. And medical disabilities are not mentioned in the statute listing the disabilities suspending “the running of the period of limitation.” See Minn. Stat. § 541.15 (2004) (allowing the suspension of a period of limitations when: (1) the plaintiff is under the age of 18 years; (2) the plaintiff is insane; (3) the plaintiff is an alien and the subject or citizen of a country at war with the United States; or (4) when the beginning of the action is stayed by injunction or by statutory prohibition.) Takuanyi provides no legal authority to support his argument that his claimed disabilities suspended the statute of limitations.

Because we conclude that Takuanyi’s defamation action is barred by the statute of limitations under Minn. Stat. § 541.07(1), we do not reach Takuanyi’s other arguments.

Affirmed.

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