Norusis v. Goodfellow

1

John P. Norusis, Appellant, v. John Goodfellow, et al., Defendants, Peter Reich, et al., Respondents, Andrew Kramer, et al., Respondents, Larry Whitaker et al., Respondents.

No. A22-0365

Court of Appeals of Minnesota

August 15, 2022

This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).

Washington County District Court File No. 82-CV-21-1444

Brandon M. Schwartz, Schwartz Law Firm, Oakdale, Minnesota (for appellant)

Meghan A. Cooper, Stringer & Rohleder, Ltd., St. Paul, Minnesota (for respondents Peter Reich, et al.)

Daniel J. Stahley, Provo-Petersen & Associates, P.A., Rosemount Minnesota (for respondents Andrew Kramer, et al.)

Richard C. Scattergood, Jessica C. Richardson, Tomsche, Sonnesyn, & Tomsche, P.A., Minneapolis, Minnesota (for respondents Whitaker)

Considered and decided by Ross, Presiding Judge; Frisch, Judge; and Florey, Judge.

FLOREY, JUDGE ^[*]

Appellant challenges the summary-judgment dismissal of his defamation claims against respondents, arguing that the district court erred by concluding that appellant's claims had no merit and abused its discretion by denying appellant's motion for leave to amend his complaint. Because we see no error and no abuse of discretion in the district court's decisions, we affirm.

FACTS

Respondents Andrew and Karen Kramer, Anne and Peter Reich, and Larry and Mary Whitaker are residents of properties adjacent to or near a property on Pine Cone Trail (the property) in the City of Marine on St. Croix (the city). In 2018, appellant John P Norusis purchased the property, which he used for short-term rentals and events until the city enacted an ordinance prohibiting that use. Norusis brought an action, 82-CV-20-3974, against the city disputing the ordinance.

A private driveway to another Pine Cone Trail property crosses Norusis's property, and the residents of that property, John Goodfellow and Kirsten Vadheim, had an easement to use the driveway for themselves and their invitees. Norusis disputed their use of the easement and brought an action, 82-CV-21-1370, against them. Norusis also told people walking along the easement that they were trespassing and brought actions against the alleged trespassers, including Andrew and Karen Kramer, 82-CV-21-1045.

In 2020, several residents, including Mary Whitaker, complained about Norusis to a Marine on St. Croix City Council member who is also a police officer in another jurisdiction. The council member investigated and provided some information and advice on dealing with Norusis to respondents.

Norusis then brought an action against the council member, 82-CV-20-4275, alleging that he had used law-enforcement databases to obtain information on Norusis and had interfered with Norusis's prospective customer relationships. In his response to Norusis's interrogatories, the council member said that Anne Reich and Mary Whitaker had told him that: (1) "Norusis was physically and verbally threatening them," (2) "they were aware that Norusis has a violent criminal history," (3) Anne Reich had received a "cease and desist" letter from Norusis requesting them to stop walking on the easement, and (4) the two women "were shaking and crying while talking to . . . [the council member] about . . . Norusis." The council member also said that the women were concerned because Norusis had "physically confronted residents and non-residents . . . walking along Pine Cone Trail, informing them that they were trespassing on his property and threatening legal action" and because "residents felt physically threatened by . . . Norusis due to his behavior during these encounters being perceived as physically aggressive in both body language and tone of voice."

In April 2021, based on the council member's responses to the interrogatories, Norusis brought this action against respondents, claiming defamation and tortious interference with prospective business advantage.^[1] The defamation claim was based on statements allegedly made by some or all of the respondents that: (1) Norusis had physically and verbally threatened them and others, (2) Norusis had a violent criminal history, (3) Norusis was a violent criminal, and (4) Norusis had physically confronted residents and non-residents of Pine Cone Trail who were walking along Pine Cone Trail.

Anne Reich was deposed in September 2021. Her deposition responses caused Norusis to move to amend his complaint by adding further facts supporting the defamation claim and a claim for punitive damages. In November 2021, respondents moved for summary judgment.

A hearing was held on the parties' motions in December 2021. Although Norusis's claims in this action were based solely on what the council member said in his responses to interrogatories in Norusis's action against him, the council member did not appear at the hearing because he was unavailable. At the hearing, the parties agreed with the district court that it made sense to address respondents' summary-judgment motion before Norusis's motion to amend his complaint and that Norusis's claim of tortious interference with prospective business advantage was not actionable.

The district court asked Norusis's attorney to identify the allegedly defamatory statements and those who had made them. Norusis's attorney replied, "We've learned during discovery, that it was [only] Anne Reich and Mary Whitaker that those statements are attributable to," and agreed when asked if the only two statements under consideration were that Norusis "has physically and verbally threatened [respondents] and others" and "has physically confronted residents and non-residents of Pine Cone Trail while walking along Pine Cone Trail."^[2]

After the hearing, the district court granted respondents' motion for summary judgment, denied Norusis's motion to amend, and awarded respondents their "reasonable costs and disbursements." Norusis challenges both the grant of summary judgment, arguing that the district court erred by viewing the facts in the light most favorable to respondents and by resolving factual disputes, and the denial of his motion for leave to amend his complaint, arguing that it was an abuse of discretion.

DECISION

I. Grant of Summary Judgment

A grant of summary judgment is reviewed de novo. Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010) (citation omitted). Summary judgment may be granted "when there is no genuine issue as to any material fact and one party is entitled to judgment as a matter of law. A genuine issue of material fact exists when there is sufficient evidence regarding an essential element [of the claim] to permit reasonable persons to draw different conclusions." St. Paul Park Ref. Co. v. Domeier, 950 N.W.2d 547, 549 (Minn. 2020) (citations and quotations omitted). A genuine issue of material fact is presented only when there is "sufficient evidence to allow reasonable persons to reach different conclusions on the issue." BFI Waste Sys. of N. Am., LLC v. Bishop, 927 N.W.2d 314, 323 (Minn.App. 2019). Summary judgment will be affirmed if it can be sustained on any grounds. Winkler v. Magnuson, 539 N.W.2d 821, 827 (Minn.App. 1995) (citation omitted), rev. denied (Minn. Feb. 13, 196). The evidence is reviewed in the light most favorable to the nonmoving party. Gradjelick v. Hance, 646 N.W.2d 225, 231 (Minn. 2002). However, the nonmoving party "may not establish genuine issues of material fact by relying upon unverified and conclusory allegations, or postulated evidence that might be developed at trial, or metaphysical doubt about the facts." Dyrdal v. Golden Nuggets, Inc., 689 N.W.2d 779, 783 (Minn. 2004).

A. The statement that Norusis physically and verbally threatened Anne Reich, Mary Whitaker, and others

Norusis argues first, as he argued to the district court, that by telling the council member that Norusis had verbally and physically threatened them, Anne Reich and Mary Whitaker were falsely accusing Norusis of the crimes of terroristic threats under Minn. Stat. § 609.713, subd. 1 (2020), or assault under Minn. Stat. § 609.02, subd. 10 (2020), and therefore the statement was defamation per se. "Statements are defamatory per se if they falsely accuse a person of a crime, of having a loathsome disease, or of unchastity, or if they refer to improper or incompetent conduct involving a person's business, trade, or profession." Longbehn v. Schoenrock, 727 N.W.2d 153, 158 (Minn.App. 2007).

The district court concluded that:

Norusis has not proven that the statement is capable of being defamatory per se . . . [because it] is too vague to rise to the level of assault and terroristic threats, nor is it a false statement about his business, trade or professional conduct. Mary Whitaker and Anne Reich never reported assault or the threats to the police. . . . A reasonable person would also not hear the phrase "physical and verbal threats" and understand that to mean Norusis committed an assault or made terroristic threats.

Norusis relies on Wilkes v. Shields, 64 N.W. 921, 921 (Minn. 1895) (holding that "[a] publication which charges the plaintiff with being 'a dangerous, able, and seditious agitator' is . . . actionable per se"), and argues that "[t]he false statements in Wilkes are eerily similar to the false statements by [respondents]." But Wilkes is distinguishable. First, it concerned a printed statement and directly quoted the author's language. Here, as the district court noted, the allegedly defamatory per se statement was not a direct quotation.^[3] Second, Wilkes observed that the challenged language charged a person

with being a disturber of public tranquility, and guilty of acts tending to the breach of public order, all of which is inimical to good society

...