author: HANSON, Judge.

text:
    Jana L. METGE, Appellant, v. CENTRAL NEIGHBORHOOD IMPROVEMENT ASSOCIATION, a Minnesota non-profit Corporation, et al., Defendants, Basim SABRI, Respondent.
    No. C2-02-249.
    Court of Appeals of Minnesota.
    Aug. 20, 2002.

      John A. Fabian, III, Nicholas G.B. May, Nichols Raster & Anderson, PLLP, Minneapolis, for appellant.
    Stephen 0. Plunkett, Paul B. Kohls, Rider, Bennett, Egan & Arundel, LLP, Minneapolis, for respondent.
    Considered and decided by HANSON, Presiding Judge, WILLIS, Judge, and G. BARRY ANDERSON, Judge.
   OPINION

HANSON, Judge.

Appellant sued respondent for defamation and tortious interference with contract based upon respondent’s statements and actions that allegedly led to a neighborhood organization’s termination of appellant’s at-will employment. On appeal from summary judgment dismissing her claims, appellant argues that the district court erred in concluding (1) that the alleged defamatory statements were mere opinion and not defamatory, or were not made with malice, and (2) that the actions alleged to constitute tortious interference with contract were not shown to have caused the termination of appellant’s employment, or were justified. We affirm in part, reverse in part, and remand.

FACTS

In 1992, appellant Jana L. Metge was hired as the Executive Director of the Central Neighborhood Improvement Association (CNIA). CNIA is a community-based nonprofit organization responsible for distributing public and private funds used for the improvement of Minneapolis’ Central Neighborhood. She served in that position until 2000 when her employment was terminated by CNIA’s Board of Directors.

Metge brought claims for, among other things, wrongful termination of employment, defamation, and tortious interference with contract against CNIA and several individuals connected with CNIA, including respondent Basim Sabri. Sabri is a landlord and developer in the Central Neighborhood and, from time to time, was a CNIA board member and served on CNIA committees.

From October 1999 to March 2000, Sa-bri served as co-chair of CNIA’s Business Development Committee (BDC). The BDC recommends to the CNIA Board of Directors how certain funds allocated to business development in the Central Neighborhood should be spent. Sabri submitted several proposals to the BDC that would benefit his own real-estate development company, Sabri Properties, and then acted on those proposals as co-chair of the BDC.

Metge reported to CNIA’s Board of Directors that Sabri was using his leadership position at CNIA to benefit his own business ventures and that his actions constituted self-dealing and violated CNIA’s conflicts-of-interest policy. Metge urged CNIA’s Board of Directors to hold Sabri accountable for the alleged violations.

Thereafter, Sabri openly declared his desire to see Metge fired as CNIA’s executive director. In that connection, Sabri publicly disparaged Metge’s performance to the CNIA’s board and various community members. On April 7, 2000, Sabri wrote a letter to Metge complaining about her actions in connection with Sabri’s attempt to purchase a building at Fourth Avenue and Lake Street. Sabri published the letter to several people, including the Minneapolis Star Tribune, the mayor of Minneapolis, a Minneapolis city council member, and members of the Minneapolis Community Development'Agency. Metge alleges that three of the statements in the letter are defamatory (indicated by italics):

You have, in previous years, succeeded in manipulating some of the CNIA board members by feeding them wrong and/or misleading information. It is apparent that you continue to try to manipulate cumnt board members to accomplish your own personal goals.
⅜ ⅜ ⅞: ⅜ ⅜? ⅝
Not only is your challenge of [a member of Sabri’s staff] right to vote evidence of your efforts to discredit and discriminate against me, it is also evidence of your willingness to waste CNIA’s staff time and resources on a personal goal.

Metge alleges that in the months before the May 16, 2000, annual meeting of CNIA, Sabri recruited a group of individuals to run for the CNIA Board of Directors for the specific purpose of terminating Metge’s employment. Metge further alleges that Sabri brought a large number of people from outside of the Central Neighborhood to the annual meeting to vote for his slate of board candidates. Most of these candidates were elected, including Sabri. Following the election, the new board voted to swear itself in immediately, even though it may have been CNIA’s practice for newly elected board members to be sworn in on or after June 1 following the annual meeting. The new CNIA Board of Directors then held a special meeting on May 18, 2000, and voted to terminate Metge’s employment. When a controversy arose concerning whether the special meeting was legal, the new Board of Directors was again sworn in on June 27, 2000, at which time it conducted another meeting and voted to ratify all decisions made during the May 18 meeting.

Metge obtained employment as the executive director of another neighborhood association some time later. On April 23, 2001, Sabri posted a public message on the internet. Metge alleges that statements made in the posting refer to her by implication and are defamatory (indicated by italics):

And in fact, there were many files pertaining to NRP [Neighborhood Revitalization Program] funds and programs, along with many other materials that were necessary to operate the organization and NRP business that had disappeared when the new board came into office. Not only is there $110,000 of NRP funds currently missing, but as we all know, it costs a lot of money to generate those files and reconstruct those files that are now missing. I hold the NRP * * * responsible for filing formal charges and investigating this matter. However, to this date, they have done nothing to resolve this very important issue after a formal request was given to them. Isn’t it ironic that the ED at that time (Jana) is currently the ED of another neighborhood group that receives NRP funds? I am wondering when the NRP office will start holding individuals accountable for their actions. Frankly, I don’t see it happening under the current operation of the NRP. We must have reform and we should start holding people accountable for public money that is clearly misappropriated.

By an order dated October 2, 2001, the district court granted summary judgment dismissing the bulk of Metge’s claims. Later that month, Metge entered into a settlement agreement that settled all of her claims against CNIA and all individually named defendants, except that “Metge preserve[d] her cause of action against Ba-sim Sabri for his individual conduct not as a director of CNIA.” On October 31, 2001, the district court entered its order for judgment dismissing all of Metge’s claims against Sabri and incorporating its order and memorandum of October 2, 2001. Metge appeals.

ISSUES

1. Did the district court err in granting summary judgment in favor of Sabri on Metge’s defamation claims?

2. Did the district court and does this court have subject-matter jurisdiction over Metge’s claims of tortious interference with contract?

3. Did the district court err in granting summary judgment in favor of Sabri on Metge’s claims of tortious interference with contract?

ANALYSIS

On appeal from summary judgment, we determine whether there are genuine issues of material fact and whether the district court erred in its application of the law. Minn. R. Civ. P. 56.03; State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). We must view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Even so, summary judgment

is mandatory against a party who fails to establish an essential element of [the] claim, if that party has the burden of proof, because this failure renders all other facts immaterial.

Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn.App.1994). Once the moving party has made a prima facie case that entitles it to summary judgment, the burden shifts to the nonmoving party to produce specific facts that raise a genuine issue for trial. Minn. R. Civ. P. 56.05; Thiele v. Stich, 425 N.W.2d 580, 583 (Minn.1988). The nonmoving party may not rely on mere averments in the pleadings or unsupported allegations, but must come forward with specific facts to satisfy its burden of production. Musicland Group, Inc. v. Ceridian Corp., 508 N.W.2d 524, 530-31 (Minn.App.1993), review denied (Minn. Jan. 27, 1994).

I

Metge argues that the district court erred in granting summary judgment dismissing her defamation claims.

Limited-Purpose Public Figure

Metge first challenges the district court’s conclusion that she is a limited-purpose public figure for defamation purposes and thus must show actual malice. The determination of a plaintiffs status as a public figure is a question of law, which appellate courts review de novo. Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 483 (Minn.1985).

There are three categories of public figures: an involuntary public figure, an all-purpose public figure, and a limited-purpose public figure. Id. at 484. An involuntary public-purpose figure is one who becomes a public figure through no purposeful action of his or her own and is an exceedingly rare classification. Id. at 483. An all-purpose public figure is generally described as a celebrity or a prominent social figure. Id. at 484. A limited-purpose public figure is one who voluntarily “injects [herself] or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3013, 41 L.Ed.2d 789 (1974).

Clearly, Metge is neither an involuntary nor an all-purpose public figure. To determine if Metge is a limited-purpose public figure, we must consider whether: (1) a public controversy existed; (2) Metge assumed a purposeful or prominent role in that controversy; and (3) the allegedly defamatory statement was related to the public controversy. Hunter v. Hartman, 545 N.W.2d 699, 704 (Minn.App.1996) (citing and adopting test established in Waldbaum v. Fairchild Publ’ns, Inc., 627 F.2d 1287, 1296-98 (D.C.Cir.1980)), review denied (Minn. June 19, 1996).

We conclude that Metge qualified as a limited-purpose public figure. The record is replete with newspaper articles about CNIA activities, especially those related to the Neighborhood Revitalization Program (NRP), and its award of public and private funds to neighborhood projects. The specific controversy and the events leading up to the termination of Metge’s employment, including Metge’s criticisms of Sabri’s self-dealing, attracted considerable media attention.

Moreover, though CNIA is a private, non-profit corporation, it is imbued with a public purpose, it is substantially supported with public funds, and its activities are routinely reported in the media. See Smith v. A Pocono Country Place Prop. Owners Ass’n, Inc., 686 F.Supp. 1053, 1057 (M.D.Pa.1987) (finding that a dispute concerning the composition of the board of directors of a private property-development association is a public controversy for purposes of a defamation case). As executive director of the CNIA, Metge assumed a purposeful and prominent role in those controversies in an effort to influence the outcome of the CNIA board decisions. She had enhanced media access and used that access to respond to actions taken against her and present her side of the story. The allegedly defamatory statements most definitely relate to the public controversy concerning the events leading up to the termination of Metge’s employment.

Defamatory Statements/Actual Malice

Metge next challenges the district court’s conclusion that the statements Sa-bri made were either not defamatory or were not made with actual malice. To be considered defamatory, a statement of fact about a plaintiff

must be communicated to someone other than the plaintiff, it must be false, and it must tend to harm the plaintiffs reputation and to lower him [or her] in the estimation of the community.

Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn.1980) (citing Restatement (Second) of Torts §§ 558-59 (1977)).

Moreover, in order to be actionable, a comment must be reasonably interpreted as stating facts that can be proven false. See Geraci v. Eckankar, 526 N.W.2d 391, 397 (Minn.App.1995) (stating that the U.S. Supreme Court made clear that not all opinions are protected by the First Amendment, and “that only statements about matters of public concern not capable of being proven true or false and statements that cannot be interpreted reasonably as stating facts are protected from defamation actions under the First Amendment”), review denied (Minn. Mar. 14, 1995).

Finally,

[i]f the plaintiff is a * * * public figure, an essential element of the plaintiffs claim is clear and convincing proof of actual malice, i.e., that the defendant acted with willful or reckless disregard for the truth or falsity of the matter published.

Jadwin, 367 N.W.2d at 480 (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 283-86, 84 S.Ct. 710, 726-29, 11 L.Ed.2d 686 (1964)). “Reckless [disregard] is not measured by whether a reasonably prudent person would have published or would have investigated before publishing.” Connelly v. N.W. Publ’ns, Inc., 448 N.W.2d 901, 903 (Minn.App.1989) (citing St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968)), review denied (Minn. Feb. 21, 1990). Instead, the defamatory statement must have been published with a subjective awareness of its probable falsity, as demonstrated by “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” Connelly, 448 N.W.2d at 903 (quoting St. Amant, 390 U.S. at 731, 88 S.Ct. at 1325).

The district court determined that Sa-bri’s statements were either not defamatory, as being mere opinion; were reasonably supported in fact; or were not made with actual malice. Metge argues that Sabri made four defamatory statements about her.

1. Kickbacks on a Lake Street Project. Metge alleges that Sabri stated, during the May 18, 2000, special meeting held by the newly elected CNIA Board of Directors, that she received kickbacks on the Fourth Avenue and Lake Street project. Metge argues that the receipt of kickbacks constitutes a crime and, therefore, the statement was susceptible of a defamatory meaning. See Minn.Stat. § 609.86 (2000) (commercial-bribery criminal statute).

But Sabri argues that the alleged statement was made after he was elected to the board and therefore this claim was released in the parties’ settlement agreement. The settlement agreement unquestionably released all claims against Sabri as a CNIA board member. But, Metge argues that Sabri should not be deemed a board member, for purpose of the release, due to the irregularities associated with the first swearing-in of the newly elected board on May 16, 2000. Metge asserts that Sabri was not a legitimate board member until June 27, 2000, when the new board was sworn in a second time, and argues that her claim based on the May 18 statement was thus not released.

The question is what the parties to the settlement agreement intended when they drew the release to preserve only those claims for Sabri’s conduct “not as a director.” We look first to the settlement agreement to determine whether it reflects any agreement by the parties as to when Sabri first became a director. See Wolfson v. City of St. Paul, 535 N.W.2d 384, 386 (Minn.App.1995) (stating that we initially look to the writing itself to determine the parties’ intent), review denied (Minn. Sept. 28, 1995).

We observe that the settlement agreement states that Metge’s employment was terminated no later than May 31, 2000. This statement reflects recognition by the parties of the legitimacy of the May 16 election, because the newly elected board voted to terminate Metge’s employment at the May 18 special meeting and did not vote to ratify that action until June 27. Because the settlement agreement recognizes the legitimacy of the May 16 election of the board, we must construe the settlement-agreement release terms to include all actions taken after Sabri was elected a director on May 16, 2000. Any other construction of the release would be inconsistent with the settlement agreement’s statement that Metge was terminated no later than May 31, 2000.

While there is some dispute as to whether Sabri made the alleged statement, the only evidence before the court is that if he made the statement, he did so on May 18. Because Metge released all claims against Sabri as a board member and Sabri was elected to the board on May 16, Metge’s claim concerning the alleged May 18 statement has been released.

2. Financial Mismanagement of CNIA. Metge alleges that Sabri also stated at the May 18, 2000, meeting that she engaged in financial mismanagement of the CNIA. For the reasons discussed above, any claim concerning this statement is also defeated by Metge’s release.

3. The April 7, 2000, Letter. Metge argues that the district court erred when it concluded that statements made in Sabri’s letter of April 7, 2000, were not actionable because they constituted Sabri’s opinion and were not capable of being proven untrue. Courts consider four factors when determining whether a statement is one of fact or opinion: (1) the precision and specificity of the statement; (2) the statement’s verifiability; (3) the social and literary context of the statement; and (4) the public context in which the statement was made. Huyen v. Dris-coll, 479 N.W.2d 76, 79 (Minn.App.1991), review denied (Minn. Feb. 10,1992).

Sabri wrote that Metge “succeeded in manipulating some of the CNIA board members by feeding them wrong and/or misleading information” and that her efforts to “manipulate current board members [were] to accomplish [her] own personal goals.” Sabri also accused Metge of “wasting CNIA’s staff time and resources on a personal goal.” We conclude that Sabri’s statements are without precision and specificity; they are not verifiable because the information is subjective; and it is also not likely that the statements would be understood as facts in the social and public context in which they were made.

4. The Internet Posting. Metge argues that the statements in Sabri’s internet posting were defamatory because the reasonable implication and inference to be drawn from them was that she was the one who misappropriated the $110,000 from the CNIA. The district court concluded that the message was not defamatory of any person because the message as a whole was critical of the NRP. The court found that it “would be inappropriate in the context of the message and of the community dispute” to permit claims of defamation by implication and that there was no evidence of actual malice.

Defamation by implication occurs when a defendant (1) juxtaposes a series of facts to imply a defamatory connection between them; or (2) creates a defamatory implication by omitting facts. Diesen v. Hessburg, 455 N.W.2d 446, 450 (Minn. 1990).

Sabri’s posting was part of a continuing on-line dialogue related to the CNIA and NRP. Discussion of matters in the public interest and involving public persons justifies robust, and sometimes even caustic, debate. Id. at 453. We conclude that the posting represents a statement of opinion and does not contain such an omission or juxtaposition of facts as would be necessary to establish genuine issues of material fact for defamation by implication.

For these reasons, summary judgment dismissing Metge’s defamation claims was appropriate.

II

Metge argues that the district court erred in granting summary judgment dismissing her claims for tortious interference with contract.

Subject-Matter Jurisdiction

Sabri argues preliminarily that the courts have no subject-matter jurisdiction over Metge’s claim for tortious interference with contract because Minnesota does not recognize a cause of action for tortious interference against a party who lacks the capacity to cause an at-will employee to be terminated.

The district court did not analyze Metge’s claim for tortious interference as an issue of subject-matter jurisdiction. But, the issue of a lack of subject-matter jurisdiction may be raised at any time, even for the first time on appeal, because “[s]ubjeet matter jurisdiction cannot be conferred upon the court by consent of the parties.” Herubin v. Finn, 603 N.W.2d 133, 137 (Minn.App.1999) (citation omitted). Questions of subject-matter jurisdiction are reviewed de novo. Federal-Hoffman, Inc. v. Fackler, 549 N.W.2d 93, 96 (Minn.App.1996), review denied (Minn. Aug. 20,1996).

Sabri argues that neither the Minnesota Legislature nor the Minnesota Supreme Court has recognized a cause of action for tortious interference with an at-will employment contract by a third party who has no ability to terminate the employee. Sabri cites Nordling v. N. States Power Co., 478 N.W.2d 498 (Minn.1991), in support of this conclusion. In Nordling, the supreme court reserved the issue of “[w]hether a tortious interference claim against a [non-supervisory] co-employee * * * might ever lie.” Id. at 507.

While it is true that the supreme court in Nordling only recognized a cause of action for tortious interference against a co-employee who was a supervisor, and thus had the capacity to terminate, the court did not limit such a cause of action against non-employee third parties. Id. at 507. The issues involving co-employees are unique because of the concept that a party cannot tortiously interfere with its own contract, and, generally, the actions of an employee are those of the employer. See id. at 505 (stating these two principles). Accordingly, Nordling recognized that a cause of action generally would not lie for tortious interference against a co-employee unless the co-employee was a supervisor who had the ability to terminate and who acted outside the scope of his or her duties in doing so. Id. at 506. But again, the court’s holding did not impose any limits on claims against non-employee third parties.

To the contrary, in Nordling the supreme court recognized that “a tortious interference claim will lie for an at-wñl employment agreement” and went on to state that

[t]he at-will employment subsists at the will of the employer and employee, not at the will of a third party meddler who wrongfully interferes with the contractual relations of others.

Id. at 505 (emphasis added); see Kallok v. Medtronic, Inc., 573 N.W.2d 356, 361 (Minn.1998) (stating that its holding in Nordling was “that third party ‘meddlers’ should not be permitted to interfere with an at-will employment agreement”). The supreme court did not condition the claim against third parties to only those meddlers who could directly terminate an employee. See also Kallok, 573 N.W.2d at 361 (stating “[i]t is well-established that a third party who interferes with and causes the breach of a contract may be held liable for damages”); Carnes v. St. Paul Union Stockyards Co., 164 Minn. 457, 462, 205 N.W. 630, 631 (1925) (stating “[i]t being the law that a [person] who has employment and is discharged by [the] employer solely by reason of the wrongful interference of another, sustains an injury for which the intermeddler is liable”); Re statement (Second) of ToHs § 766 (1976) (discussing elements of intentional interference with performance of contract by a third person and not limiting who may be considered an actor). Thus, we conclude that the issue reserved in Nordling, of “[wjhether a tortious interference claim against a [non-supervisory] co-employee * ■* * might ever lie,” is not presented by a tortious interference claim brought against a third party. As a result, the district court and this court have subject-matter jurisdiction over a claim for tor-tious interference with contract brought against a non-employee third party who allegedly procured the termination of the employment of an at-will employee.

Procuring Cause/Justification

Metge argues that the district court erred in determining that there was insufficient evidence to create a genuine issue of material fact as to whether Sabri’s conduct caused the majority of the CNIA board to vote to terminate Metge and that. Sabri’s conduct was protected by privilege or immunity.

To establish a prima facie case of tortious interference with contract, a plaintiff must show: (1) the existence of a contract; (2) knowledge of the contract by the alleged wrongdoer; (3) intentional procurement of the contract’s breach; (4) absence of justification; and (5) damages caused by the breach. Furlev Sales & Assoc., Inc. v. N. Am. Auto. Warehouse, Inc., 325 N.W.2d 20, 25 (Minn. 1982). “A successful claim requires proof of all five elements.” Bebo v. Delander, 632 N.W.2d 732, 738 (Minn.App.2001) (citation omitted), review denied (Minn. Oct. 16, 2001). Clearly, Metge’s evidence provided a pri-ma facie case of elements (1), (2), and (5). The question then becomes whether there was sufficient evidence to establish a pri-ma facie case that Sabri was a procuring cause of Metge’s termination and, if so, whether Sabri’s actions were justified.

Metge presented evidence that Sabri recruited individuals to run for the CNIA board positions for the express purpose of terminating Metge’s employment; that Sa-bri further recruited ineligible voters to attend the election and paid them to vote for his slate of directors; that Sabri argued at the special meeting in favor of the termination of Metge’s employment; and that the directors recruited by Sabri voted to terminate Metge’s employment. We conclude that this evidence presents a pri-ma facie case that Sabri’s conduct was a procuring cause of the termination of Met-ge’s employment. That prima facie case precludes summary judgment unless Sa-bri’s actions were justified as a matter of law.

“Justification or privilege is a defense to an action for tortious interference.” Nordling, 478 N.W.2d at 506. Justification is lost, however, if a bad motive is present. Id.

In other words, while bad motive or malice may not be an element of the tort of tortious interference, it is often persuasive evidence on whether the defendant’s conduct was proper and justified or improper and not justified.

Id. “A bad motive is sometimes referred to as malice,” and in circumstances such as those here, malice means “nothing more than wrongful conduct done without legal justification or excuse, and that actual malice in the sense of ill-will [is] not essential” where the “alleged defendant interferer [is] not employed by the same company as the plaintiff.” Id.

Thus, the final question is whether Metge produced sufficient evidence to establish a prima facie case that Sabri acted with a bad motive. “Ordinarily, whether interference is justified is an issue of fact, and the test is what is reasonable conduct under the circumstances.” Kjesbo v. Ricks, 517 N.W.2d 585, 588 (Minn.1994). Sabri has the burden of proving justification. Id.

Metge presented evidence that Sabri’s actions were motivated by his displeasure with Metge because she had raised self-dealing and conflict-of-interest issues against him with the CNIA board. Accepting this evidence as true for purposes of summary judgment, including Metge’s allegation that Sabri’s conduct violated policies of CNIA, we conclude that Metge presented a prima facie case of bad motive, sufficient to preclude summary judgment.

Immunity

There also appears to be a genuine issue of material fact as to whether Sabri’s conduct was protected by immunity under Minn.Stat. § 317A.257 (2000). Generally,

a person who serves without compensation as a director, officer, trustee, member, or agent of an organization exempt from state income taxation * * * is not civilly liable for an act or omission by that person if the act or omission was in good faith, was within the scope of the person’s responsibilities as a director, officer, trustee, member, [or] agent * * * of the organization, and did not constitute willful or reckless misconduct.

Minn.Stat. § 317A.257, subd. 1. It is Sa-bri’s burden to show that his acts were in good faith, were within the scope of his responsibilities, and did not constitute willful or reckless misconduct. See Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn.1997) (stating these requirements).

Determination of immunity is necessarily a mixed question of law and fact. Id. Reviewing courts may correct an erroneous application of law, but will accord the district court discretion in its ultimate conclusions and review such conclusions under an abuse-of-discretion standard. Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn.1990). In reviewing the conclusions, we must carefully examine the explanations given by the court for its decisions. Id.

Here, the district court concluded that Sabri was protected by the statutory immunity granted volunteers of non-profit organizations. But, the district court’s findings do not address whether Sabri proved he acted in good faith or that his acts were not willful or reckless misconduct. Evidence put forth by Metge suggests that Sabri’s actions were the product of ill will toward her in response to the conflict-of-interest issues she raised. At the very least, Sabri’s motivations were contested. Therefore, because Sabri failed to establish as a matter of law that his actions were conducted in good faith and without willful or reckless misconduct, summary judgment was not appropriate.

DECISION

The district court did not err in granting summary judgment dismissing Metge’s defamation claims, which were either precluded by Metge’s release or were statements of opinion that could not be proven untrue. The district court had subject-matter jurisdiction over Metge’s claims of tortious interference with contract, and Metge presented sufficient evidence to establish a prima facie case of the elements of those claims. Accordingly, the district court erred in granting summary judgment dismissing Metge’s tortious-interference claims.

Affirmed in part, reversed in part, and remanded.

      . The parties agreed that the settlement agreement is to be construed in accordance with the principles set forth in Pierringer v. Hoger, 21 Wis.2d 182, 124 N.W.2d 106 (1963), and Frey v. Snelgrove, 269 N.W.2d 918 (Minn.1978).


source: Caselaw Access Project

author: STONEBURNER, Judge.

license: Public Domain

text:
    Kirsten Sersland BEACH, petitioner, Respondent, v. Gerald JESCHKE, Appellant.
    No. C1-02-243.
    Court of Appeals of Minnesota.
    Aug. 20, 2002.
    James M. Crist, Steinhagen & Crist, P.L.L.P., Minneapolis, MN, for appellant.
    John R. Jesperson, Minneapolis, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge, TOUSSAINT, Chief Judge, and RANDALL, Judge.
   OPINION

STONEBURNER, Judge.

Appellant Gerald Jeschke appeals from a harassment restraining order issued by the district court. Because appellant’s two-sentence statement made on one occasion does not constitute harassment as defined by Minn.Stat. § 609.748, subd. 1(a)(1), we reverse.

FACTS

After a high-school play in which appellant’s step-son performed, appellant approached his wife’s ex-husband and respondent, who is married to the ex-husband, and said: “You two had better come up with the $80,000, or you’re both going to jail. This is going to be fun.” The remark related to pending child-support litigation in appellant’s wife’s and respondent’s husband’s acrimonious post-dissolution proceedings.

Respondent and her husband petitioned for a harassment restraining order based on the words spoken and an allegation that appellant had grabbed them by their necks. After a hearing, the court found that appellant made the statement, but did not find that there had been any physical contact. Based solely on the words spoken, the district court granted respondent’s petition for a restraining order preventing appellant from any contact with respondent. This appeal followed.

ISSUE

Did the district court abuse its discretion by issuing a restraining order against appellant?

ANALYSIS

This court reviews harassment restraining orders under an abuse-of-discretion standard. Witchell v. Witchell, 606 N.W.2d 730, 731 (Minn.App.2000). A district court may grant a restraining order if “the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment.” Minn.Stat. § 609.748, subd. 5(a)(3) (2000). “Harassment” is defined in the statute as:

a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.

Minn.Stat. § 609.748, subd. 1(a)(1).

Although we do not condone appellant’s unwarranted confrontation of respondent at a high-school play, the two-sentence statement, uttered on one occasion, does not meet the requirement of “repeated incidents” necessary to constitute verbal harassment under Minn.Stat. § 609.748, subd. 1(a)(1). The district court abused its discretion by issuing the harassment restraining order against appellant based on a single incident of words.

Appellant also argues that Ms statements could not have a substantial adverse effect or be intended to have such an effect on the safety, security, or privacy of respondent, as required by the statute. We note that comments that are merely inappropriate and argumentative are insufficient to rise to the level of harassment. Witchell, 606 N.W.2d at 732 (noting that “[ajlthough husband’s statements are inappropriate and argumentative, we cannot say that they were intrusive or that they were intended to adversely affect the safety, security, or privacy, of wife”). But because we have already determined that this single incident does not constitute harassment, we decline to reach the issue of the statement’s content.

DECISION

The district court abused its discretion by issuing a harassment restraining order against appellant based solely on a two-sentence comment made to respondent on only one occasion.

Reversed.

      . The court's written order also did not contain a finding of physical contact. The order merely stated: "This court finds that there are reasonable grounds to believe that [appellant] has engaged in harassment ⅜ *

      . The ex-husband’s petition was dismissed because he did not appear at the hearing.


author: KAPSNER, Justice.

text:
    2002 ND 128
    Jerry L. MEIDE, Individually and Meide & Son, Incorporated, a North Dakota Corporation, Plaintiffs and Appellants, v. Wayne STENEHJEM, Attorney General, ex rel. STATE OF NORTH DAKOTA, State Health Department, and Environmental Abatement Services, Inc., Defendants and Appellees.
    No. 20010273.
    Supreme Court of North Dakota.
    Aug. 15, 2002.

      Joseph A. Turman (argued), DeMars & Turman, Fargo, for plaintiffs and appellants.
    Lyle G. Witham (argued), Assistant Attorney General, Attorney General’s Office, Bismarck, for defendants and appellees Wayne Stenehjem and State of North Dakota Health Department.
    Suzanne M. Schweigert (argued), Smith Bakke Hovland & Oppegard, Bismarck, for defendant and appellee Environmental Abatement Services, Inc.
   KAPSNER, Justice.

[¶ 1] Jerry L. Meide, individually, and Meide & Son, Inc. (collectively, “Meide”), appeal from a summary judgment dismissing .the declaratory judgment action filed against the State of North Dakota, the North Dakota Department of Health (collectively, “State”), and Environmental Abatement Services, Inc. (“EAS”). Because genuine issues of material fact exist regarding the amount of compensation owed by Meide to EAS for asbestos abatement, the district court erred as a matter of law in granting summary judgment. The district court also erred in concluding Meide was barred by the doctrine of judicial estoppel from seeking to determine the amount owed through a declaratory judgment action. We reverse and remand for further proceedings consistent with this opinion.

I

[¶ 2] Meide improperly removed asbestos from buildings in Wahpeton. The State ordered Meide to develop and implement a cleanup plan in February of 1998. Meide retained Nova Environmental Services, Inc. (“Nova”), to conduct an asbestos abatement on the property. In turn, Nova contracted with EAS to perform the asbestos abatement work.

[¶ 3] After performing the abatement work, EAS sent Meide a bill in the amount of $58,160. Before any payment was made, the State ordered more cleanup at additional building sites. Meide wanted EAS to perform the second round of abatement work, but EAS refused to do so until Meide paid the bill from the first abatement. Meide paid a portion of the bill and EAS performed the second round of abatement work. EAS sent a bill to Meide in the amount of $42,675 for the second abatement.

[¶ 4] Following the two rounds of abatement work, the State commenced a lawsuit against Meide for violation of various state pollution control and hazardous waste acts. The State and Meide entered into a consent agreement to end the litigation. The State and Meide each “agree[d] to be bound by the terms and conditions of this Consent Agreement.” The purpose of the consent agreement was “to settle this matter” between Meide and the State regarding various environmental regulation violations. EAS was not a party to the consent agreement. The State and Meide stipulated:

1. Jerry L. Meide and/or Meide and Son, Incorporated, shall satisfy any monetary obligations owing to Nova Environmental Services Incorporated the environmental consultant, and Environmental Abatement Services of N.D., the environmental remediation contractor who performed the asbestos cleanup on the identified buildings in Wahpeton, North Dakota within two years of the date of entry of judgment herein. The contractors shall retain the right to seek compensation from Defendant prior to the two-year period;
2. Jerry L. Meide and/or Meide and Son, Incorporated, shall pay restitution to the State of North Dakota in the amount of $9,208 within two years of the date of entry of judgment herein;
3. If Jerry L. Meide and/or Meide and Son, Incorporated fails to comply with either 1 or 2 of paragraph XX above, the full Two Hundred Twenty-Five Thousand Dollars ($225,000) jointly and severally assessed against Jerry L. Meide and Meide and Son, Incorporated, become immediately due and payable to the State of North Dakota.

Judgment pursuant to the consent agreement was filed January 25, 1999. On January 18, 2001, just days before the $225,000 penalty came due, Meide filed “a declaratory judgment action seeking to determine the rights and obligations of Meide and [EAS] and the proper amount of compensation, if any, to which [EAS] is entitled for the work performed as a subcontractor of Nova.” Meide also deposited $69,178.69 with the Southeast Judicial District Clerk of Court in an interest bearing account, claiming the amount represented the unpaid balance owed to EAS.

[¶ 5] EAS, joined by the State, moved for summary judgment, claiming Meide was refusing to pay when the amount owed was known. Following a hearing on the summary judgment motion, the district court granted the motion, reasoning there was not a genuine issue of material fact because the consent agreement between the State and Meide was unambiguous and the amount owed was known and ascertainable. The district court also determined Meide’s declaratory judgment action was barred under the doctrine of judicial estoppel. Meide appeals.

II

[¶ 6] We review this appeal under our standards for summary judgment, a procedure which promptly resolves a controversy on the merits without a trial if the evidence demonstrates the nonexistence of a genuine issue of material fact, or of inferences to be drawn from undisputed material facts, and if the evidence shows a party is entitled to judgment as a matter of law. N.D.R.Civ.P. 56(c); Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357. “Issues of fact may become issues of law if reasonable persons could reach only one conclusion from the facts.” Fetch, at ¶ 8. Even undisputed facts do not justify summary judgment if reasonable differences of opinion exist as to the inferences to be drawn from those facts. Helbling v. Helbling, 267 N.W.2d 559, 561 (N.D.1978).

[¶ 7] “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible ....” N.D.C.C. § 9-07-04. “Construction of a written contract is a question of law.” Garofalo v. Saint Joseph’s Hospital, 2000 ND 149, ¶ 7, 615 N.W.2d 160. “If the intent of the parties can be ascertained from the agreement alone, interpretation of the contract is a question of law.” Id. “Whether a contract is ambiguous is a question of law.” National Bank of Harvey v. International Harvester Co., 421 N.W.2d 799, 801 (N.D.1988). “A contract is ambiguous when rational arguments can be made for different positions about its meaning.” Id. “Extrinsic evidence is properly considered only if the language of the agreement is ambiguous and the parties’ intentions cannot be determined from the writing alone.” Miller v. Schwartz, 354 N.W.2d 685, 689 (N.D.1984). “On appeal, this [C]ourt will independently review the contract to determine whether it is ambiguous.” International Harvester, at 801. “[A]n unambiguous contract is particularly amenable to summary judgment.” Garofalo, at ¶ 7.

[¶ 8] The language of the consent agreement in dispute is in Paragraph XX, where it states “[Meide] shall satisfy any monetary obligations owing to ... [EAS] ... within two years of the date of entry of judgment herein.” Meide argues the language is ambiguous because an amount is not specified in the instrument. EAS argues the language is unambiguous because Meide received bills for the abatement work as it was completed and did not dispute them.

[¶ 9] Reasonable people could make rational arguments in support of contrary positions as to whether the words “shall satisfy any monetary obligations owing” covers the entire amount billed to Meide by EAS. Paragraph XX is, therefore, ambiguous with respect to the amount owed, and presents a genuine issue of material fact precluding summary judgment.

[¶ 10] A reasonable person could rationally argue the absence of a specific amount in the consent agreement means the amount owed to EAS was disputed or open to negotiation. The amount billed by EAS was known to both the State and Meide. When the consent agreement was signed in January of 1999, EAS had submitted bills to Meide in March and May of 1998 for the two rounds of abatement work. In oral argument, when questioned why an amount was not put in the consent agreement, the State conceded the language was used because it knew Meide would pay some of the billed amount and would contest the remainder. EAS, in oral argument, stated the language of the consent, agreement meant Meide had to pay what was reasonable. When the billed amount is known, but that amount is not put into the consent agreement, a reasonable person could argue the amount Meide owed was disputed or negotiable.

[¶ 11] Conversely, the use of the word “any” suggests an intention to require Meide to pay whatever amount was billed by EAS. “The word ‘any’ is expansive, not restrictive.” Pamida, Inc. v. Meide, 526 N.W.2d 487, 493 (N.D.1995) (noting the definition of “any” as “ ‘1: one indifferently out of more than two: one or some indiscriminately of whatever kind ... c: one or some of whatever kind or sort; ... 2: one, some, or all indiscriminately of whatever quantity: ... 3a: great, unmeasured, or unlimited in amount, quantity, number, time, or extent....’ ”). Thus, a reasonable person could rationally argue the amount billed to Meide by EAS, no matter what it is, falls within the ambit of the phrase “shall satisfy any monetary obligations owing.”

[¶ 12] Because reasonable people could make rational arguments in support of contrary positions about the meaning of “any monetary obligations owing,” the intent of the contracting parties, the State and Meide, is a question of fact, rendering summary judgment inappropriate. See id.; see also Johnson v. Mineral Estate, Inc., 343 N.W.2d 778, 780 (N.D.1984).

Ill

[¶ 13] Alternatively, the State and EAS argue Meide is barred from challenging the amount owed under the doctrine of judicial estoppel. The United States Supreme Court has set out factors which help a court determine whether the doctrine applies in a particular case:

First, a party’s later position must be “clearly inconsistent” with its earlier position .... Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled,” .... Absent success in a prior proceeding, a party’s later inconsistent position introduces no “risk of inconsistent court determinations,” ... and thus poses little threat to judicial integrity.... A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped....
In enumerating these factors, we do not establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel. Additional considerations may inform the doctrine’s application in specific factual contexts.

New Hampshire v. Maine, 532 U.S. 742, 750-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001).

[¶ 14] The State and EAS contend Meide’s filing of the declaratory judgment action to determine the proper amount of compensation owed to EAS is inconsistent with the signing of the consent agreement, in which Meide agreed to “satisfy any monetary obligations owing.” Meide argues the doctrine of judicial estoppel does not apply because his position in the declaratory judgment action is not inconsistent with his position in the consent agreement. Meide contends the issue in the consent agreement was whether he violated environmental laws, and the appropriate punishment for any violation, while in the declaratory judgment action the issue was the amount owed for the asbestos abatements.

[¶ 15] This Court has stated the following with regard to judicial estoppel:

We have never adopted the doctrine of judicial estoppel in this state. Judicial estoppel prohibits a party from assuming inconsistent or contradictory positions during the course of litigation. See State v. Profit, 591 N.W.2d 451, 462 (Minn.1999); 28 Am.Jur.2d Estoppel and Waiver § 74 (2000); 31 C.J.S. Estoppel and Waiver § 139(a) (1996). The underlying rationale for the doctrine is summarized in 28 Am.Jur.2d Estoppel and Waiver § 74 (footnotes omitted):
The fundamental concept of judicial estoppel is that a party in a judicial proceeding is barred from denying or contradicting sworn statements made therein. Judicial estoppel is a judge-made doctrine that seeks to prevent a litigant from asserting a position inconsistent, conflicts with, or is contrary to one that she has previously asserted in the same or in a previous proceeding; it is designed to prevent litigants and their counsel from playing fast and loose with the courts, and to protect the integrity of the judicial process. Judicial estoppel doctrine is equitable and is intended to protect the courts from being manipulated by chameleonic litigants who seek to prevail, twice, on opposite theories. The purpose of the doctrine of judicial es-toppel is to reduce fraud in the legal process by forcing a modicum of consistency on the repeating litigant.
The doctrine applies only where a party’s subsequent position is totally inconsistent with its original position, and does not apply where distinct or different issues or facts are involved. Profit, 591 N.W.2d at 462; 28 Am.Jur.2d Estoppel and Waiver § 74; 31 C.J.S. Estoppel and Waiver § 139(a).

BTA Oil Producers v. MDU Resources Group, 642 N.W.2d 873, 2002 ND 55, ¶ 14. Assuming, without deciding, the doctrine of judicial estoppel applies in this state, we conclude the doctrine would not bar Meide’s action for a declaratory judgment because the position taken by Meide is not inconsistent with the position he took in signing the consent agreement. The consent agreement does not specify an amount owed to EAS. The declaratory judgment action seeks to resolve this undecided issue. This does not conflict, and is consistent, with one of the possible interpretations of the consent agreement. Because the consent agreement is ambiguous, the district court erred in determining the doctrine of judicial estoppel prevented Meide from bringing the declaratory judgment.

IV

[¶ 16] Because genuine issues of material fact exist regarding the amount of compensation owed to EAS for asbestos abatement, the district court erred as a matter of law in granting summary judgment. The district court also erred in applying the doctrine of judicial estoppel to the declaratory judgment action. We reverse and remand for further proceedings consistent with this opinion.

[¶ 17] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.

      . None of the parties have briefed or raised the issues of whether the amount deposited with the district court is enough to satisfy any monetary claim EAS has, or whether the deposit spares Meide from having to pay the $225,000 civil penalty to the State. "Issues not briefed or argued are deemed abandoned.” Olmstead v. First Interstate Bank of Fargo, N.A., 449 N.W.2d 804, 807 (N.D.1989). Accordingly, we decline to review whether the deposit with the district court is sufficient, and whether it precludes the imposition of the civil penalty called for in the consent agreement.