This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-97-1004

Charles R. Mitchell,

Appellant,

vs.

Colin T. Nelson,

Respondent.

Filed January 13, 1998

Affirmed and motion denied

Randall, Judge

Hennepin County District Court

File No. 96-12612

Charles R. Mitchell, OID# 171077 Box 55, B-East 659, Stillwater, MN 55082 (pro se appellant)

Hubert H. Humphrey, III, Attorney General, Jerome L. Getz, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128 (for respondent)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge[*].

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

RANDALL, Judge

Appellant asserts that respondent, who was appellant's appointed public defender, defamed him in the course of representation and that the district court erred in granting summary judgment to the respondent on the basis of absolute privilege. We disagree and affirm.

FACTS

Appellant Charles Robert Mitchell (Mitchell) was convicted of attempted second degree murder and was sentenced to 240 months, the statutory maximum. He appealed from the conviction and sentence. This court affirmed. He later appealed the district court's denial of his petition for postconviction relief, arguing that the judge should have been removed, that the district court should have held an evidentiary hearing, and that he received ineffective assistance of counsel. This court affirmed. Mitchell, pro se, filed a complaint alleging that he was defamed by his public defender, respondent Collin Nelson (Nelson), when Nelson represented him at his sentencing hearing. Nelson moved for summary judgment. The district court granted the motion after determining that Nelson's alleged defamatory statements were privileged. Mitchell, pro se, appeals.

D E C I S I O N

On appeal from a district court's grant of summary judgment, this court reviews (1) whether any genuine issues of material fact exist and (2) whether the lower court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). In doing so, 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).

As an initial matter, Mitchell moved to strike Nelson's arguments concerning malpractice immunity and absolute privilege because they were not before the district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (issues not raised below are not properly before the reviewing court). We disagree. Nelson argued that malpractice immunity shielded him from claims in his summary judgment motion. Further, the district court, sua sponte, raised the issue of absolute privilege; Nelson was entitled to respond in his appellate brief. Accordingly, Mitchell's motion to strike is denied.

Mitchell claims that he was defamed by Nelson's misrepresentation of the number of contacts Nelson had with Mitchell in the course of Nelson's representation of Mitchell. We disagree. Traditional defamation claims concern false statements about a person made to a third party that harm the person. See Lewis v. Equitable Life Assurance Soc'y of the United States, 389 N.W.2d 876, 886 (Minn. 1986). Mitchell is complaining about the number of times that Nelson said he met with Mitchell. Nelson's statement concerns Nelson's actions, not Mitchell's, and thus can not defame Mitchell. If Nelson's statement about the number of contacts was in fact false, Mitchell may, theoretically, file a complaint with the Minnesota Professional Responsibility Board. But, Mitchell did not establish a prima facie case of defamation.

Arguendo, even if Mitchell had a sufficient defamation claim, Nelson was absolutely privileged. Mitchell contends that Nelson lost the affirmative defense of privilege because Nelson did not plead privilege and that there was insufficient evidence to establish that Nelson's statements were "made in office" and were thus privileged. We disagree. The record shows that Nelson was appointed to represent Mitchell and answered questions from the judge concerning the nature and extent of his representation of Mitchell. Nelson answered properly in his capacity as Mitchell's counsel. The Minnesota Supreme Court has stated "that counsel are absolutely privileged in respect of any statements, oral or written, made in judicial proceedings and pertinent thereto." Matthis v. Kennedy, 243 Minn. 219, 224, 67 N.W.2d 413, 417 (1954). In Matthis, the supreme court characterized absolute privilege as a form of immunity. Id. at 223-24, 67 N.W.2d at 416-17. The defense of immunity is not lost if it is not pled. Rehn v. Fischley, 557 N.W.2d 328, 332 (Minn. 1997). Similarly, absolute privilege is also not lost if it is not pled. Thus, the district court correctly determined that Nelson was absolutely privileged.

Affirmed and motion denied.

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