Steven Iverson, Appellant, vs. Robert Shogren, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1299

 

Steven Iverson,
Appellant,
 
vs.
 
Robert Shogren,
Respondent.

 

Filed April 27, 2004

Affirmed

Stoneburner, Judge

 

Ramsey County District Court

File No. C202008198

 

Steven Iverson, 111 East Kellogg Boulevard, Apartment #1606, St. Paul, MN 55101 (pro se appellant)

 

Clyde E. Miller, Jennings, DeWan, Miller & Anderson, L.L.C., 307 South Main Street, Box 511, Cambridge, MN 55008-0511 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Anderson, Judge; and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant Steven Iverson challenges the district court's grant of summary judgment to respondent Robert Shogren in this defamation action.  Iverson also alleges that the district court abused its discretion by denying his motion to compel discovery, and denying his motion to remove the judge for bias.  We affirm.

FACTS

 

            As respondent Robert Shogren was driving southbound on I-35W, he noticed that the vehicle in front of him was weaving, touching the fog line and crossing the lane-line marking, and traveling faster than other traffic on the road.  Shogren called 911 on his cellular telephone, identified himself, described the driving conduct he observed, and gave the license number of the car he was following.  Shogren stayed behind the car until a state patrol car got behind the car Shogren had been following.  The car Shogren had been following and the state patrol car exited at Cleveland Avenue, and Shogren continued south on I-35W.

            Trooper Troy McCormack, who had received the dispatch about Shogren's report of witnessing erratic driving, pulled behind the vehicle identified by Shogren on I-35W and followed it onto Cleveland Avenue.  Trooper McCormack observed the vehicle cross the center lane marking of the southbound lanes of Cleveland Avenue twice in a quarter of a mile.  Trooper McCormack stopped the vehicle and identified the driver as appellant, Steven Iverson.  Trooper McCormack questioned Iverson, had him perform some field sobriety tests, and released him with a request that he be evaluated by Driver and Vehicle Services to determine whether or not restrictions needed to be placed on Iverson's license due to medications Iverson told the trooper he was taking.  In response to a letter from Driver and Vehicle Services asking for documentation about his medication, Iverson's doctor provided a letter stating that Iverson's ability to safely operate a vehicle was not, in his opinion, in any way affected by the prescribed medication.  No further action was taken by the state patrol or Driver and Vehicle Services.

            Iverson sued Trooper McCormack in federal district court alleging a violation of his Fourth Amendment rights.  The federal district court granted summary judgment to McCormack and the Eighth Circuit Court of Appeals affirmed.  During that litigation, Iverson learned that Shogren had made the 911 call that brought Iverson's vehicle to the attention of Trooper McCormack.  Iverson then initiated this defamation action against Shogren, based on Shogren's statements to the 911 operator.

            KSTP television news broadcast a brief story about the lawsuit and Shogren's subsequent attempt to obtain legislation protecting calls such as his from civil liability.  Shogren appeared on the broadcast and repeated what he had told the 911 operator about the vehicle he had observed.  He did not name Iverson, but the broadcast identified Iverson and included his response to inquiry by KSTP.  Iverson then amended his complaint to include a claim that Shogren's statements to KSTP were defamatory.

            Iverson moved to compel discovery, alleging that Shogren's answers to interrogatories were evasive.  He also moved to add a claim for punitive damages.  The district court denied both motions.  Shogren moved for summary judgment.  Iverson moved for removal of the district court judge for alleged bias.  The district court denied Iverson's motion to remove him and granted Shogren's motion for summary judgment.  This appeal followed.

D E C I S I O N

 

I.          Motion to remove judge for bias

            Denial of a motion to remove a judge for bias is within the district court's discretion and should not be reversed absent a clear abuse of discretion.  Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).  A judge who feels able to "preside fairly over the proceedings should not be required to step down upon allegations of a party which themselves may be unfair or which simply indicate dissatisfaction with the possible outcome of the litigation."  McClelland v. McClelland, 359 N.W.2d 7, 11 (Minn. 1984).  Iverson's only argument on appeal on this issue is that "[a] judge is required to remove himself from a case when there is only an appearance of bias," citing United States v. Hollister, 746 F.2d 420, 425 (8th Cir. 1984).  Iverson asserted as evidence of bias three statements by the district court judge: (1) "Are you still representing yourself?" (2) "What is evasive about defendant's answers?" (3) "Plaintiff has failed to demonstrate that defendant's discovery responses are incomplete or otherwise defective."  Although Iverson may be unhappy about the judge's denial of his motion to compel discovery, nothing in the statements indicates any hint of bias on the part of the district court judge, and the district court did not abuse its discretion by denying Iverson's motion to remove.

II.        Motion to compel discovery

            Regarding Iverson's motion to compel discovery, the district court concluded that Iverson had failed to show that Shogren's responses "are incomplete or otherwise defective."  The district court has "wide discretion to issue discovery orders and, absent clear abuse of that discretion, normally its order with respect thereto will not be disturbed."  Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990). 

            On appeal, Iverson asserts only that he cannot understand the district court's ruling "given that requested document was promised but not produced and a nonanswer was given to plaintiff's interrogatory."  In the absence of adequate briefing, this court may decline to consider an issue.  State, Dep't of Labor and Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997).  This court may also decline to address allegations that are unsupported by legal analysis or citation.  Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994).  Because Iverson has failed to adequately brief or argue this issue, we decline to reach it.

III.       Claim for punitive damages

            Iverson's appellate brief raises a question about whether he provided prima facie evidence justifying amending the complaint to claim punitive damages and states "no supplementation of memorandum necessary." As with his discovery claim, Iverson's failure to adequately brief and analyze this issue leads us to decline to reach it.

IV.       Summary judgment on defamation claim

            For purposes of Iverson's summary judgment motion, the district court assumed that Shogren's statements to the 911 operator were false and derogatory.[1]  The district court concluded that Shogren's statement to the 911 operator is entitled to a qualified privilege and that Iverson failed to defeat the qualified privilege by producing any evidence raising a genuine issue of material fact regarding whether the statement was made with malice, making summary judgment appropriate.  The district court determined that Shogren's statement to KSTP was not defamation, and in the alternative, was also protected by a qualified privilege.

            On appeal from summary judgment, this court asks two questions: "(1) whether there are any genuine issues of material fact 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).  The district court properly grants a motion for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law."  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  On appeal, this court "must view the evidence in the light most favorable to the party against whom judgment was granted."  Id.  The non-moving party may not rest on mere averments; a genuine issue for trial must be established by substantial evidence.  DLH Inc. v. Russ, 566 N.W.2d 60, 69-71 (Minn. 1997).  No genuine issue of material fact exists "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party."  Id. at 69. (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).

            In Minnesota, the elements of a defamation claim are: (1) a false statement; (2) communication of the statement to a third party; and (3) resulting harm to the plaintiff's reputation and standing in the community.  Rouse v. Dunkley & Bennett, P. A., 520 N.W.2d 406, 410 (Minn. 1994).[2]  "Even though an untrue defamatory statement has been published, the originator of the statement will not be held liable if the statement is published under circumstances that make it conditionally privileged and if privilege is not abused."  Lewis v. Equitable Life Assur. Soc'y,389 N.W.2d 876, 889 (Minn. 1986) (citing Restatement (Second) of Torts § 593 (1977)). 

A communication, to be privileged, must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause. When so made in good faith, the law does not imply malice from the communication itself, as in the ordinary case of libel.  Actual malice must be proved, before there can be recovery, and in the absence of such proof, the plaintiff cannot recover. 

 

Id. (quoting Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 256-57 (Minn. 1980)

 

(quotation omitted)).

           

The doctrine of privileged communication rests on public policy considerations and the existence of a privilege results from a court's "determination that statements made in particular contexts or on certain occasions should be encouraged despite the risk that the statements might be defamatory."  Id.  "Whether an occasion is a proper one upon which to recognize a privilege is a question of law for the court to determine."  Id.    

A reviewing court is not bound by and need not give deference to a district court's decision on a purely legal issue.  Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn. 2003) (citing Frost-Benco Elec. Ass'n v. Minn. Publ Utils Comm'n, 358 N.W.2d 639, 642 (Minn. 1984)).

A communication or publication made in good faith upon any subject matter in which the party communicating or publishing has an interest, or in reference to which he has a duty, public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty is privileged.

 

Smits v. Wal-Mart Stores, Inc., 525 N.W.2d 554, 557 (Minn. App. 1994) (quoting Friedell v. Blakely Printing Co., 163 Minn. 226, 229-30, 203 N.W. 974, 975 (1925)), review denied (Minn. Feb. 14, 1995).  In Smits, this court recognized that a qualified privilege exists when an individual makes a good faith report of suspected criminal activity to law enforcement officials, but only when communication is made with probable cause and for a proper purpose and occasion.  Id.  (citing Stuempges, 297 N.W.2d at 256-57.

            a.         911 call

            We conclude that a qualified privilege exists for Shogren's statement to the 911 operator because Shogren had a social duty to report observation of a possibly dangerous driver, the communication was to law enforcement, which has a corresponding duty to investigate possibly dangerous driving, and Shogren's statement was based on contemporaneous personal observation of the driving conduct on a public highway, constituting probable cause, proper purpose, and occasion.  Iverson argues that because he denies the driving conduct observed by Shogren, Shogren lacked probable cause, and therefore a qualified privilege does not exist.  Iverson relies on Smits, in which we rejected defendant's claim that a report of suspected shoplifting was entitled to a qualified privilege because the reporter, who did not witness the reported conduct, lacked reasonable grounds to believe the report was valid.  Id.   Iverson's reliance on Smits is misplaced because Shogren, no matter how faulty his observations may have been, was traveling directly behind Iverson's vehicle and Shogren made his statement from personal knowledge and belief that the driving he was seeing created a danger.  And, Shogren's observations are corroborated by Trooper McCormack's subsequent observation of similar driving conduct.  

            Because Shogren's statement to the 911 operator is protected by a qualified privilege, Iverson has the burden to prove that the privilege was abused because the defamatory statements were made with malice.  See Bol v. Cole, 561 N.W.2d 143, 150 (Minn. 1997).  Although malice is generally a question of fact, on review of summary judgment, we determine whether the evidence submitted raises any genuine issues of material fact.  Id.    

            Iverson asserts that he has raised a genuine issue of material fact about whether Shogren acted with malice by denying that he engaged in the driving conduct Shogren reported seeing. 

Malice is defined as "actual ill-will or a design causelessly and wantonly to injure plaintiff." . . . Malice cannot be implied from the statement itself or from the fact that the statement was false. . . . Malice can be shown by extrinsic evidence of personal spite, as well as by intrinsic evidence such as "the exaggerated language of the libel, the character of the language used, the mode and extent of publication and other matters in excess of the privilege."

 

Id. at 150 (citations omitted).  Shogren did not know who was driving the car he was observing when he called 911.  There is no evidence in the record that he knew Iverson or had any knowledge about Iverson when the call was made.  The language Shogren used[3] does not evince malice.  The mode of publication does not evince malice because Shogren made the statement to a 911 operator.  Because the record is devoid of any evidence that Shogren acted with malice, the district court did not err in granting summary judgment to Shogren on Iverson's claims of defamation based on the 911 call.

            b.         KSTP interview

            The KSTP television news story was about Iverson's lawsuit against Shogren and Shogren's attempt to get legislative protection for drivers who make 911 calls to report possibly dangerous driving conduct they witness.[4]  Shogren reported the circumstances that led to the lawsuit against him, including what he observed about the car ahead of him and what he told the 911 operator.  He did not mention Iverson by name.  We agree with the district court that Shogren's statements do not constitute defamation because he truthfully reported the facts that led to the lawsuit and nothing Shogren said could have resulted in harm to Iverson's reputation and standing in the community because Shogren did not identify Iverson as the driver of the vehicle he was observing, and nothing Shogren said could have led to the identification of Iverson.  That KSTP identified Iverson does not make Shogren's statement defamatory.

            Because we affirm summary judgment on the basis that Shogren's statement to KSTP was not defamatory, we do not reach the issue of whether a qualified privilege exists for the statement.

            Affirmed.  

 

[1] We share the concern raised by the district court about whether the undisputed facts constitute a claim for defamation, but because we affirm the district court's grant of summary judgment, we do not reach alternative grounds for summary judgment.

[2] Iverson has asserted in the district court that his claim is for defamation per se, which allows harm to reputation to be presumed.  Becker v. Alloy Hardfacing & Eng'g Co., 401 N.W.2d 655, 661 (Minn. 1987).  Because the district court presumed the 911 call statements constituted defamation for purposes of Iverson's summary judgment motion, we are not required to analyze whether Iverson's allegations constitute defamation per se.

[3] There is no transcript of the 911 call in the record, but Shogren's affidavits describe what he reported in the 911 call.

[4] On May 8, 2003, the legislature enacted Minn. Stat. § 604 A. 34 (Supp. 2003), 2003 Minn. Laws ch. 35, § 1 (effective Aug. 1, 2003) protecting good faith reports of apparent unlawful conduct to law enforcement from civil liability.