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 1 27-CV-12-19807 Filed in Fourth Judicial District Court 2/18/2015 2:27:45 PM Hennepin County Civil, MN 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. 2 27-CV-12-19807 Filed in Fourth Judicial District Court 2/18/2015 2:27:45 PM Hennepin County Civil, MN 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. 3 27-CV-12-19807 Filed in Fourth Judicial District Court 2/18/2015 2:27:45 PM Hennepin County Civil, MN (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 4 27-CV-12-19807 Filed in Fourth Judicial District Court 2/18/2015 2:27:45 PM Hennepin County Civil, MN 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 5 27-CV-12-19807 Filed in Fourth Judicial District Court 2/18/2015 2:27:45 PM Hennepin County Civil, MN 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. 6 27-CV-12-19807 Filed in Fourth Judicial District Court 2/18/2015 2:27:45 PM Hennepin County Civil, MN 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 7 27-CV-12-19807 Filed in Fourth Judicial District Court 2/18/2015 2:27:45 PM Hennepin County Civil, MN 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. 8 27-CV-12-19807 Filed in Fourth Judicial District Court 2/18/2015 2:27:45 PM Hennepin County Civil, MN 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 9 27-CV-12-19807 Filed in Fourth Judicial District Court 2/18/2015 2:27:45 PM Hennepin County Civil, MN 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 10
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