27-CV-12-19807
STATE OF MINNESOTA
DISTRICT COURT
COUNTY OF HENNEPIN
FOURTH JUDICIAL DISTRICT
Filed in Fourth Judicial District Court
2/18/2015 2:27:45 PM
Hennepin County Civil, MN
Kevin Holler, Valerie Holler,
Plaintiffs,
Court File No. 27-CV-12-19807
vs.
ORDER
Hennepin County , Mike Opat, Mark
Stenglein,
Defendants.
The above-entitled case came on for a hearing before the undersigned Judge of District
Court on January 16, 2015, on Defendants’ motion for summary judgment.
Appearances:
Patrick T. Tierney, Esq., appeared on behalf of Plaintiffs.
Paul R. Hannah, Esq., appeared on behalf of Defendants.
Based upon all the files, records, and proceedings herein, including the arguments of
counsel, the Court makes the following ORDER:
1.) Defendants’ motion for summary judgment is GRANTED.
2.) The attached memorandum is incorporated herein as if set forth in full.
BY THE COURT:
DATED: 2/18/2015
John Q. McShane
Judge of District Court
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MEMORANDUM
The matter before the court is Defendants’ motion for summary judgment.
FACTS
This is a defamation action. It concerns two newspaper articles and a Hennepin County
Board Resolution relating to a library that was to be built on or near property owned by Plaintiffs
Kevin Holler and Valerie Holler.
The Hollers owned property on 45th Avenue North that included a home, a commercial
building and a large lot (the Property). In early 2007, the Hollers wished to move and sought to
sell the Property. Mr. Holler hung a large “for sale” banner on the wall of the commercial
building. In March 2007 they decided not to move as they hadn’t been able to sell the Property.
The ‘for sale’ sign was not taken down until July 23, 2007.
In May of 2007 representatives of Minneapolis and Hennepin County (the County) began
to plan the construction of a new library. They determined that a location at the intersection of
45th Avenue North and Humboldt Avenue North (the Kowalski’s site) was the most desirable
location. In late September of 2007 a County task force toured the Kowalski’s site and discussed
preliminary plans to acquire it.
In December of 2007 the Hennepin County Board resolved to include $15 million in the
2008 -2012 capital improvement budget for construction of the new library. In May of 2008,
negotiations with the owner of the Kowalski’s site had progressed to the point that the County
decided to inform the owners of the adjoining parcels that the County was considering purchasing
their properties for the new library site. A May 2008 letter to this effect was the first written
notification the Hollers received that the County was interested in purchasing the Property.
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The County had numerous interactions with the Hollers regarding acquiring the Property
from July 2008 through July 2009. The Hollers claim they consistently represented that they
were not interested in selling the Property. The County, on the other hand, characterizes the
Hollers as being ambivalent, vacillating between selling and not selling, and asking for $1.2
million for the Property. In any event, the County was unable to acquire the Property. In August
2009, the County put the library on hold and rescinded the resolution it had passed calling for the
acquisition of the properties.
During the summer of 2010 Sue Quist published a story in the Camden News about the
library project. The article discussed the County’s interaction with the Hollers. The Camden
News simultaneously published a letter from Ms. Holler which reprimanded the County, along
with Commissioner Opat (Opat) and Commissioner Stenglein (Stenglein) for claiming that her
family stood in the way of the construction of the new Webber Park Library.
That fall, Stenglein was quoted in a Dolan Media Newswire story about the stalled project.
He made the following two statements, which Plaintiffs allege are defamatory:
(Stenglein Statement 1): Mark Stenglein, third [sic] district commissioner, said
Wednesday that Valerie Holler “had a sign on her house, a ‘for sale’ sign, as big as the
IDS building, in 2007.”
(Stenglein Statement 2): “so all of a sudden we want to buy the house and she takes the
property off the market,” Stenglein said, noting that the Hollers had balloons and flags
around the “for sale” sign.
Roughly fourteen months after the Stenglein article, Opat was asked to comment on a
series of written questions composed by Sue Quist for the Camden News about the status of the
library project. He wrote the following statements, which Plaintiffs allege are defamatory:
(Opat Statement 1): “Third, with the Holler rental property posted for sale in 2007, the
County purchased the other sites necessary for an ideal, state-of-the-art library to be built
on the parkway. Only after those purchases did the Hollers actively oppose a sale of their
rental property and commercial building.
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(Opat Statement 2): “Pursuant to that property’s availability, the County purchased the
four nearby properties and met several times with the Hollers, attempting to purchase their
rental property. Our staff reported to us that they would only sell for one million or more,
then insisted that the property was no longer for sale.”
(Opat Statement 3): “But we will not agree to build in a sub-par location due to a single
property owner – not after successfully acquiring four nearby parcels, and especially not
after the remaining property was once listed for sale.”
(Opat Statement 4): “We will not pay $1 million for the rental property that’s needed. We
will wait and hope that its owners, who once had the property for sale, will accept fairmarket value and allow the community to move forward on this important project. Despite
their manipulation of this process, the Hollers are long-time residents in our community
and I hope they will one day be partners with us on building a new library. “
Five months later, the Hennepin County Board voted to remove the library project from its
five-year capital plan. Plaintiffs allege that the resolution is defamatory:
WHEREAS, in 2007 the County Board voted to create Capital Project 030322, the New
North Minneapolis (Webber Park) Library, which would replace the existing Webber
Library with a new, green, state-of-the-art facility; and
WHEREAS, County staff subsequently assembled portions of a site for the new Library
adjacent to Victory Memorial Drive. Which would optimize the beauty of the parkway
and leverage the improvements made by the Victory Memorial Drive Task force; and
WHEREAS, the portion of the proposed library site at 1423 45TH Ave. N., was listed for
sale in 2007; and
WHEREAS, when County staff sought to negotiate a sale of the 45th Ave N. property the
owners stated that the property was no longer for sale and they were not interested in
selling.
PROCEDURAL POSTURE
This matter was originally heard by Judge Denise Reilly on February 25, 2013 on
Defendants’ motion to dismiss. Judge Reilly granted Defendants’ motion to dismiss, finding that
Plaintiffs’ defamation claim against Defendants failed as a matter of law.
Judge Reilly’s order was appealed to the Court of Appeals. On February 3, 2014 it was
reversed and remanded. The Court of Appeals noted that it had to accept the factual allegations in
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the complaint as true and draw all inferences in favor of the nonmoving party. It was then to
decide, de novo, whether the complaint sets forth a legally sufficient claim for defamation. Judge
Ross held that, because the Hollers had sufficiently pled the elements of defamation, the court had
to reverse the district court’s dismissal and remand the case for further proceedings.
Judge Ross specifically noted that, in context, a jury could conclude that the Hollers took
their property off the market by August 2007, before the County had revealed its interest in
building a library near their property. He opined that the County did not approve its plans to
construct a new library until April 2008 and made no land purchases until December 2008. “A
jury might reasonably deem the declaration that the Hollers oppose the sale of their property only
after those purchases to be false.” Holler v. Hennepin Cnty., No. A13-1014, 2014 WL 349738, at
*4 (Minn. Ct. App. Feb. 3, 2014), review denied (Apr. 15, 2014).
Judge Ross noted that the statements that the County acquired the Kowalski’s property in
reliance on the availability of the Property could be considered false as the Property hadn’t been
available for over a year. Id. He further stated that the statement that the County met several times
with the Hollers to buy the property while it was still for sale could be reasonably interpreted as
false given the factual representations in the Complaint that the Hollers had taken the property off
the market by August 2007. Id.
Defendants are now before this court seeking summary judgment. It should be noted at the
outset that there is a significant difference between the standard of review in a motion to dismiss
versus a motion for summary judgment. When considering Plaintiff’s motion to dismiss, Judge
Reilly and the Court of Appeals were able only to consider the allegations in the Complaint. This
court can and does look beyond the Complaint and considers the entire record before it. In this
case the record was supplemented after the remand from the Court of Appeals. The record now
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reflects numerous interactions between the County and the Hollers, many of which are detailed
below.
County employee Marcia Wilda identified three conversations with the Hollers in July of
2008 relating to the possible purchase of the Property. The first conversation occurred on
July 24, 2008. Mr. Holler told Ms. Wilda that the Hollers “may or may not” be interested
in selling the Property and told her to speak with Ms. Holler. Ms. Holler indicated that
sale was unlikely. The second conversation occurred several days later. Ms. Holler told
Ms. Wilda that she was not inclined to sell the Property and that the Hollers would not
allow an appraiser on the Property. The third conversation was a telephone call between
Mr. Browen, the County’s appraiser, and Mr. Holler in the fall of 2008. Mr. Holler told
Mr. Browen that they wanted $1.2 million for the Property. Mr. Browen noted that his
appraisal from the street was $270,000.
In December of 2008, the Hennepin County Board resolved to pursue the acquisition of
the properties surrounding the Kowalski’s site, including the Property, “by direct purchase
or condemnation.” On January 5, 2009, the Hollers asked that the Property be removed
from the resolution. On January 21, 2009, Opat spoke to Ms. Holler on the phone. Opat
reported that Ms. Holler said that her husband had calculated that the Hollers would need
$1.2 million in order to sell the Property.
In March of 2009, Ms. Holler agreed to allow a County representative inspect the Property
during the last week of March. Ms. Wilda followed up, but the inspection never
happened. At the beginning of April, Ms. Wilda asked Ms. Holler’s permission to tour the
Property with an appraiser and relocation specialist. Ms. Holler declined, but promised to
speak to a realtor.
In an e-mail dated May 5, 2009, Ms. Holler told Ms. Wilda that she had spoken to a
realtor, but the realtor had been unable to find the Hollers a comparable property. She
noted that if the County’s relocation consultant knew of a comparable property, the
Hollers would be interested in looking at it.
On June 15, 2009, Ms. Wilda told the Hollers that the County had contracted with a
relocation specialist to search for comparable properties. The County formally offered the
Hollers $270,000, which was the Property’s appraised value, and promised to provide the
Hollers with relocation benefits.
The Hollers mailed the Hennepin County Board a letter, dated July 1, 2009, listing the
reasons why the County did not need to acquire their property for the library project. In a
July e-mail, Opat noted that since Hollers were not interested in selling, the County would
place the library project on hold indefinitely.
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LEGAL STANDARD
Summary judgment is appropriate where there are no genuine issues of material fact, and
where the moving party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03; DLH,
Inc. v. Russ, 566 N.W.2d 60, 68 (Minn. 1997). When faced with a motion for summary judgment
under Rule 56, the Court is to first determine whether a genuine issue of material fact exists. The
moving party has the burden of proof and the evidence must be viewed in the light most favorable
to the nonmoving party. Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn. 1982). The mere
existence of a factual dispute does not, by itself, make summary judgment inappropriate. Rather,
the fact in dispute must be material. Pischke v. Kellen, 384 N.W.2d 201, 205 (Minn. Ct. App.
1986).
A material fact is one that will affect the result or outcome of the case, depending upon its
resolution. Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259–60 (1976). Any doubt
regarding the existence of a genuine fact issue will be resolved in favor of its existence. Rathbun
v. W.T. Grant Co., 300 Minn. 223, 230, 219 N.W.2d 641, 646 (1974). The non-moving party may
not rely on general statements of fact to oppose a motion for summary judgment; rather, it must
identify specific facts that establish the existence of a triable issue. Hunt v. IBM Mid Am.
Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986).
To prevail on a claim for defamation the plaintiffs must identify defamatory statements
that were communicated to a third-party, that were false and that tended to harm their reputation
or lower them in the community’s estimation. Stuempges v. Parke Davis & Co., 297 NW. 2d 252,
255 ( Minn. 1980). Unless a statement is capable of being proven false, it cannot support a
defamation suit. Nexus v. Swift 785 N.W. 771,784 (Minn. App. 2010). Expressions of opinion,
rhetoric and figurative language are generally not actionable if, in context, the audience would
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understand the statement is not a representation of fact. Marchant Inv. & Management Co. Inc. v.
St. Anthony W. Neighborhood Org. Inc. 694 NW. 2d at 95 – 96 (Minn. Ct. App. 2005).
Opinions, which imply provably false statements are actionable. Even a literally false
statement avoids defamation if it is “substantially accurate” see Jadwin v. The Minneapolis Star
and Tribune Co. 390 NW. 2d 437, 441 (Minn. App 1986). A statement also is not defamatory if it
reflects a supportable interpretation of an ambiguous underlying situation. Hunter v. Hartman 545
NW. 2d 699, 707 ( Minn. App 1996), rev. den. (Minn. June 19, 1996). “The context of a remark,
if one would that would lead even the most careless listened to perceive the remark as
exaggerated or imaginative commentary, may make an otherwise defamatory comment protected
hyperbole. Hunter v Hartman, 545 N.W.2d 699, 706 (Minn. Ct. App. 1996) (Milkovich, 497 U.S.
at 16-17, 21).
ANALYSIS
Stenglein Statements 1 and 2 are both hyperbolic and true. With regard to Stenglein
Statement 1, it is true that the Hollers had a “for sale” sign on their property in 2007. Stenglein’s
comparison of the sign to the IDS Center is protected hyperbole. Even the most casual reader
would perceive the comparison as exaggerated. See Hunter, 545 NW. 2d at 706
With regard to Stenglein Statement 2, in context, the phrase “all of a sudden” literally
means that the County wanted to buy the Holler property all of a sudden, which neither side is
arguing happened. The use of ‘all the sudden’ is an exaggeration; this part of statement is
hyperbolic. The remainder of Stenglein Statement 2 is a reasonable interpretation of the
underlying factual situation. Although the Hollers represent that they took the Property off the
market prior to the County expressing interest in acquiring it, the record reflects that the Hollers
were involved in conversations with the County until July 2009 related to the sale of the Property.
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During these conversations, the Hollers vacillated between refusing to sell and considering
selling. In light of these conversations, Stenglein Statement 2 is a reasonable interpretation of the
underlying situation. The County’s discussions with the Hollers are subject to multiple
interpretations, including Stenglein’s interpretation. See Hunter, 545 NW. 2d at 707.
Opat’s written statements are also true. With regard to Opat Statement 1, the Property was
indeed for sale in 2007. The County purchased other sites necessary for the new library project.
This is an accurate assessment of the timeline of the County’s interaction with the Hollers. The
comment that the Hollers only actively opposed the selling the Property after the County
purchased the nearby parcels is a reasonable interpretation of an ambiguous situation. Id. The
County engaged in negotiations with the Hollers from July of 2008 to July of 2009, at which point
the Hollers finally communicated that they were not interested in selling. At that point, the
County had already purchased the other parcels necessary to build the library at the Kowalski’s
site.
With regard to Opat Statement 2, the County purchased nearby parcels and made several
attempts to purchase the Property, thinking that the Property was obtainable. The Property had
been listed for sale in 2007 and Opat believed the Hollers were willing to sell the Property for
$1.2 million. This belief was based on the fact that Mr. Holler and Ms. Holler had both
communicated such to the County. Under the circumstances, Opat’s statement was a reasonable
interpretation of an ambiguous situation. While the Hollers made it clear thereafter that they did
not want to sell, it would not be unreasonable for Opat to continue to wonder if the Hollers’
position would change depending on the amount offered.
Opat Statement 3 is comprised of fact and opinion. The County did not want to go to
another, less desirable location. Opat’s statement to this effect is reflective of his opinion. As
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such, the statement is not actionable. Hunter, 545 N.W.2d at 706. The remainder of the
statement is completely factual. The County had successfully acquired four nearby parcels and
the Property was once listed for sale.
Opat Statement 4 also contains fact and opinion. The County was unwilling to pay $1
million for the Holler property. Since the Hollers once listed the property for sale, the County
elected to wait in the hope that it could obtain the Property for fair market value. Although the
way the Hollers manipulated the process didn’t justify it, Opat hoped that they would reconsider
and “partner with the County to build the library.” Opat’s use of “manipulated” may be
considered pejorative; however, given the record it is either truthful, opinion or a reasonable
interpretation of the facts. Under no circumstances would it be actionable.
The May 22, 2012 Board Resolution is not actionable. The portion of the proposed library
site at 1423 45th Ave. N. was listed for sale in 2007. County staff sought to negotiate a sale and
the Hollers stated that the property was no longer sale and they were not interested in selling. The
Resolution is a factual recounting of the events in this case.
For the above reasons, Defendants’ motion for summary judgment is granted.
JQM
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