In re the Matter of: Nicole Lee Nelson, Respondent, vs. Shane Victor Edstrom, Respondent (C4-00-1284), Appellant (C0-00-1377), Nancy J. Edstrom, Appellant (C4-00-1284), Respondent (C0-00-1377).

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This opinion will be unpublished and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

C6-98-1284

Redwood County Telephone Company,

Appellant,

vs.

Jerry Luttman, et al.,

Respondents.

Filed December 29, 1998

Affirmed

Klaphake, Judge

Redwood County District Court

File No. CX-96-17

Alan M. Anderson, C. Brent Robbins, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Ave. S., Bloomington, MN 55431-1194 (for appellant)

Shawn M. Raiter, Dan Trudeau, King & Hatch, P.A., 1500 Landmark Towers, 345 St. Peter St., St. Paul, MN 55102 (for respondents)

Considered and decided by Klaphake, Presiding Judge, Foley, Judge,[*] and Mulally, Judge.[**]

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

KLAPHAKE, Judge

Redwood County Telephone (Redwood Telephone) appeals from a grant of summary judgment to respondents Jerry Luttman and Redwood County. Because Luttman and the county are absolutely immune from suit and because they did not waive the issue of immunity, we affirm.

FACTS

Redwood Telephone provides telephone service for some of the residents of the county. Luttman has been the elected county sheriff for 19 years.

This matter arises out of a dispute concerning 911 emergency services. The county has been attempting to convert its 911 emergency response system from basic 911 service to E-911 service, which automatically displays a caller's location on a computer screen, permitting faster and more accurate emergency response. The county and Redwood Telephone had been negotiating for some time, through Luttman, about provision of E-911 service, each blaming the other for the delay in implementation.

On April 20, 1994, a resident asked Luttman, who was speaking to the Redwood County Cities Association, when E-911 service would be available. Luttman responded, "When the telephone company gets sold * * * I shouldn't have said that."

In April 1995, Luttman spoke at a senior citizens' center. When asked when E-911 service would be available, he said after a dispute involving the local telephone company is settled. Also in 1995, county resident Jan Remiger wrote to Luttman twice, asking why E-911 service was not available. Luttman replied to her second letter, stating:

The area of Wabasso is served by a phone company that will not provide the enhanced "911" service which means we have no way of knowing where the call is originating from other than what the caller tells * * *. In regards to your comment about how good the 911 system is, it is good when properly set up. You should address your concerns to your telephone service provider.

Based on these three statements, Redwood Telephone sued Luttman, alleging common law defamation and business disparagement pursuant to Minn. Stat. § 325D.44, subd. 1 (8) (1996), and included the county on a theory of respondeat superior. Luttman and the county moved for summary judgment on "all claims" based upon absolute privilege and official immunity. The district court denied their motion, and they appealed. Although their statement of the case included reference to the business disparagement claim, they briefed only the defamation issue. This court held that Luttman's statements were absolutely privileged, but in a footnote stated:

In addition to its defamation claims, Redwood Telephone also raised claims for business disparagement based on Minn. Stat. § 325D.44, subd. 1(8) (1996). Neither party briefed the business disparagement claims before this court. Therefore, we must remand to the trial court based on the remaining claims.

Redwood County Tel. Co. v. Luttman, 567 N.W.2d 717, 721 n. 3 (Minn. App. 1997) ("Redwood Tel. I"), review denied (Minn. Oct. 21, 1997).

On remand to the district court, Luttman and the county moved for summary judgment on the business disparagement claim. The district court granted the motion based on absolute privilege. Redwood Telephone now appeals.

D E C I S I O N

Summary judgment is appropriate where there is no genuine issue of material fact and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. The reviewing court must determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Bol v. Cole, 561 N.W.2d 143, 146 (Minn. 1997). The question of whether a privilege or immunity exists is an issue of law that we review de novo. LeBaron v. Minnesota Bd. of Pub. Defense, 499 N.W.2d. 39, 41 (Minn. App. 1993), review denied (Minn. July 9, 1993).

Public officials are given absolute privilege, including total immunity from suit, to make false and defamatory statements, regardless of the nature or intent of the speaker, when made in the performance of official duties. Johnson v. Dirkswager, 315 N.W.2d 215, 220 (Minn. 1982); LeBaron, 499 N.W.2d at 41. The rationale for this privilege is that the official must be encouraged to act on his public duties, without fear of second-guessing. Carradine v. State, 511 N.W.2d 733, 735 (Minn. 1994). The privilege has been extended to any official performing a task essential to his duties. Id. at 736. Whether a task is essential to an official's duties depends upon a balancing of factors, including the "nature of the function assigned to the officer and the relationship of the statements to the performance of that function." Id.

Redwood Telephone argues that Luttman had no duty to respond to questions about E-911 and that his official duties are limited to law enforcement. However, as chief law enforcement officer of the county, Luttman is a natural candidate for questions concerning emergency response services. The very fact that he was questioned about E-911 service at public forums indicates that county residents believed this was part of his job.

We are not persuaded that the difference between defamation and business disparagement is so significant that absolute privilege is extended in the former and not the latter cause of action. Defamation is a false statement, communicated to someone other than the complaining party, which tends to harm the complainant's reputation and lower his standing in the community. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980). Business disparagement occurs when a party makes a false or misleading statement regarding the business or service of another; to put it in another way, it occurs when a party makes a defamatory statement about a person's business, rather than a personal matter. Minn. Stat. § 325D.44, subd. 1(8). To extend immunity in the one instance and not in the other would defeat the purpose of the doctrine.

Immunity of the official extends to the official's employer. See Carradine, 511 N.W.2d at 737 (immunity enjoyed by officer extends to employer). Since Luttman is absolutely privileged, no cause of action exists against the county.

Redwood Telephone argues that Luttman and the county have waived the issue of absolute privilege as to the business disparagement claim by failing to raise the issue in the first appeal. The district court's February 7, 1997 order fails to mention the business disparagement claim, focusing instead on the defamation action. In Redwood Tel. I, 567 N.W.2d at 721 n.3, this court discussed only the defamation claim, noting that neither party had briefed the disparagement issue. The record, regrettably, is unclear as to the extent of the original trial court ruling; we thus hesitate to apply the doctrine of waiver. Summary judgment is designed to secure a "just, speedy, and inexpensive determination of an action" by allowing disposition on the merits if there are no genuine issues of material facts and if either party is entitled to judgment as a matter of law. DLH v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). Since it is unclear whether the issue was raised or examined on its merits, we decline to rule that the trial court erred in its application of the law.

Affirmed.

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

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