Moore v. Hoff, No. A11–1923.

• Decision Date: 20 August 2012
• Docket Number: No. A11–1923.
• Citation: 821 N.W.2d 591
• Parties: Jerry L. MOORE, Respondent, v. John HOFF a/k/a Johnny Northside, Appellant.
• Court: Minnesota Court of Appeals

821 N.W.2d 591

Jerry L. MOORE, Respondent,

v.John HOFF a/k/a Johnny Northside, Appellant.

No. A11–1923.

Court of Appeals of Minnesota.

Aug. 20, 2012.

Syllabus by the Court

1. A claim for tortious interference with a contract or prospective business advantage cannot be based on conveying true information to a third party.

2. When speech protected by the First Amendment is intertwined with allegedly tortious conduct, courts must carefully and explicitly delineate the tortious conduct on which liability is based so as not to infringe on a defendant's constitutional rights. When there is no practical way to separate the tortious conduct from the protected speech, there is no liability as a matter of law.

Jill Clark, Jill Clark, LLC, Golden Valley, MN, for respondent.

Paul Godfread, Godfread Law Firm, P.C. and Mark R. Anfinson, Minneapolis, MN, for appellant.

John P. Borger, Leita Walker, Faegre Baker Daniels LLP, Minneapolis, MN, for amicus.

Considered and decided by HALBROOKS, Presiding Judge; BJORKMAN, Judge; and MUEHLBERG, Judge.^*

OPINION

HALBROOKS, Judge.

Appellant challenges the district court's denial of his motion for judgment as a matter of law (JMOL) or a new trial. Because the jury's verdict is contrary to established law and appellant's alleged tortious acts are too intertwined with constitutionally protected conduct to avoid infringing on appellant's First Amendment rights, we reverse and remand.

FACTS

Appellant John Hoff writes a blog titled “The Adventures of Johnny Northside.” In June 2009, Hoff was informed that respondent Jerry L. Moore was working for the University of Minnesota in the Urban Research and Outreach–Engagement Center (UROC). The UROC consisted of a group of residents from Hoff's and Moore's neighborhood that had been asked to “focus on foreclosures in the neighborhood.” On June 21, 2009, Hoff blogged about Moore's new position:

[Moore]—who has been a plaintiff in a lawsuit against JACC [Jordan Area Community Council], and was fired from his executive director position for misconduct, (fistfight, coughcough) is nothing if not a controversial figure in the Jordan neighborhood.... ... Repeated and specific evidence in Hennepin County District Court shows [Moore] was involved with a high-profile fraudulent mortgage at 1564 Hillside Ave. N.

Donald Allen, an acquaintance of Hoff's, testified that, after this post was published, Hoff called him and asked him to send an e-mail to the University of Minnesota to try to get Moore terminated. Hoff denies making this phone call to Allen or any phone call seeking Moore's termination. Whether or not he was asked to do so, Allen sent an e-mail to the university that stated:

This email is to give you a heads up on a pending situation[ ] that could possibly turn into a public relations nightmare for the University of Minnesota/Urban Research and Outreach Center.

On last week, allegedly—[Moore] and [M.K.] were released from the Northside Marketing Task Force board of directors. This comes on the heels of several different scenarios involving [Moore] and his relationship with [T.S.] who is under indictment for mortgage fraud as reported on KSTP–TV....

[Moore] did a deal that remains in question where he received a $5000 check for “new windows” at 1564 Hillside Avenue North. [Moore] put no new windows in said property. This was a conflict of interest, at the time he was JACC's executive director. More importantly—he was not a “window repairman” either.

From the court documents that surfaced in the [L.M.] tr[ia]l with an invoice for $5000 to JL Moore Consulting and the current Jordan Area Community Council court case, I feel there could have been an error in judgment on the part of the UROC in collaborating with [Moore].

There is enough public information to support the claims made in this email, I hope that the U of M's corrective action is swift and covert to avoid more media distribution of this information as it pertains to UROC, the U of M and the connection with [Moore] which would be “he gets a check” from the University of Minnesota to discuss Mortgage Foreclosures and other information in the community.

Allen's e-mail included a link to Hoff's June 21 blog post. Moore received a letter from the University of Minnesota dated June 22, 2009, that indicated that his “services would no longer be needed.”

On June 26, 2009, Moore sued Hoff ¹ for defamation, intentional interference with contract, and aiding and abetting. The complaint was later amended to add a count for interference with prospective advantage. Moore alleged that the statement on Hoff's blog that “[r]epeated and specific evidence in Hennepin County District Court shows [Moore] was involved with a high-profile fraudulent mortgage at 1564 Hillside Ave. N.” was defamatory.

A jury trial was held in March 2011. Before trial, the district court held that Moore was a “limited-purpose public figure” for purposes of Hoff's First Amendment rights. The district court heard testimony regarding housing issues and received exhibits “describ[ing] the work of JACC as involving housing issues in the Jordan neighborhood” and found that there was a public controversy. The district court found that Moore had “assumed a purposeful or prominent role in that controversy” based on his role as executive director of JACC. Finally, the district court found that the allegedly defamatorystatement was related to the public controversy.

A three-day jury trial focused on whether or not the allegedly defamatory statement was true or false and whether Hoff had acted with malice. The jury found that the allegedly defamatory statement was not false. The jury was asked to answer two questions, regardless of its determination as to whether the statement was false or not false. First, the jury was asked: “Did [Hoff] intentionally interfere with [Moore]'s employment contract?” The jury answered, “Yes.” Second, the jury was asked: “Did [Hoff] interfere with [Moore]'s prospective employment advantage?” The jury again answered, “Yes.” The jury awarded Moore $60,000 in damages as a result of these two torts. Following the verdict, Hoff moved for JMOL or a new trial. He asserted that “[t]his verdict is inconsistent and contrary to established law in Minnesota where liability for tortious interference claims ² cannot be based upon true statements.” The district court denied Hoff's motion and directed entry of judgment in Moore's favor on the tortious-interference claims. This appeal follows.

ISSUES

I. Can a non-defamatory statement be the basis for a tortious-interference claim?

II. Was there sufficient evidence of tortious interference that is separate and distinct from the “not false” statement to support the jury's verdict without infringing on Hoff's constitutional rights?

ANALYSIS

“We review de novo a district court's decision to deny a motion for judgment as a matter of law.” Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 887 (Minn.2010). In applying this de novo standard of review, we must view the evidence in a light most favorable to the nonmoving party. Jerry's Enters., Inc., v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 816 (Minn.2006). “Viewing the evidence in a light most favorable to the nonmoving party, this court makes an independent determination of whether there is sufficient evidence to present an issue of fact for the jury.” Id.

[JMOL] should be granted: “only in those unequivocal cases where (1) in the light of the evidence as a whole, it would clearly be the duty of the [district] court to set aside a contrary verdict as being manifestly against the entire evidence, or where (2) it would be contrary to the law applicable to the case.”

Id. (quoting J.N. Sullivan & Assocs. v. F.D. Chapman Constr. Co., 304 Minn. 334, 336, 231 N.W.2d 87, 89 (1975)).

I. The non-defamatory statement in this case cannot serve as the basis for the tortious-interference claims.

“A cause of action for wrongful interference with a contractual relationship requires: (1) the existence of a contract; (2) the alleged wrongdoer's knowledge of the contract; (3) intentional procurement of its breach; (4) without justification; and (5) damages.” Kjesbo v. Ricks, 517 N.W.2d 585, 588 (Minn.1994) (quotation omitted). Justification is a factual determination. See Kallok v. Medtronic, Inc., 573 N.W.2d 356, 362 (Minn.1998) (stating that “[w]hether interference is justified is ordinarily a factual determination of what is reasonable conduct under the circumstances,” and “the burden of proving justification is on the defendant”). The tort of intentional interference with prospective advantage is “intentionally and improperly interfer[ing] with another's prospective contractual relation.” United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628, 633 (Minn.1982).

With respect to Moore's tortious-interference-with-a-prospective-advantage claim, this court has previously addressed the question of whether this tort can be based on “not false” information. In Glass Serv. Co. v. State Farm Mut. Auto. Ins. Co., we held that statements made by a defendant alleged to have tortiously interfered with prospective business relations “were not improper because they were not false.” 530 N.W.2d 867, 871 (Minn.App.1995) (citing Restatement (Second) of Torts § 772 cmt. b (1979)), review denied (Minn. June 29, 1995). Because a claim for tortious interference with a prospective business relation requires the interference to be “improper,” the plaintiff in Glass Serv. Co. was unable to recover on this claim. Id.

Despite the similarity between a claim for tortious interference with a contract and one for tortious interference with prospective business relations, there is no Minnesota appellate case that has squarely addressed whether tortious interference with a contract can be based on a true statement. But we are guided by cases that have considered a claim for defamation, in addition to other tort claims. In Wild v. Rarig, 302 Minn. 419, 447, 234...