author: PAGE, Justice.

text:
    David T. ADAMS, Relator, v. DSR SALES, INC., and Milwaukee Insurance Group, Respondents.
    No. A06-1402.
    Supreme Court of Minnesota.
    Feb. 15, 2007.
    David R. Vail, Soderberg & Vail, L.L.C., Minneapolis, MN, for Relator.
    Daniel A. Lively, Bloomington, MN, for Respondents.
   OPINION

PAGE, Justice.

This workers’ compensation matter is before us on certiorari of David T. Adams to review a decision of the Workers’ Compensation Court of Appeals (WCCA) affirming, by majority decision, an award of a credit to DSR Sales, Inc., and its workers’ compensation liability insurer, Milwaukee Insurance Group/Unitrin, for workers’ compensation benefits against the employee’s net settlement recovery in a third-party action. Concluding that the settlement recovery is subject to the statutory distribution formula, we reverse and remand.

On June 23, 2002, David Adams sustained injuries arising out of and in the course of employment with DSR Sales, Inc., when the motorcycle he was riding was involved in a collision with an automobile. Initially, Milwaukee Insurance/Unit-rin denied liability, and Adams filed a claim for workers’ compensation benefits. Adams also commenced a personal injury action against the driver of the other vehicle involved in the collision. Milwaukee Insurance/Unitrin had actual notice of the third-party action. While the workers’ compensation claim was pending, Adams settled the tort claim, giving the driver of the automobile a general release in exchange for $100,000, which represented the limits of the insurance policy covering the other driver. In settling the claim with the other driver, Adams failed to give notice of his intent to settle that claim to DSR Sales or Milwaukee Insurance/Unit-rin, as required by Minn.Stat. § 176.061, subd. 8a (2006).

By the time Adams’ workers’ compensation wage-loss claims came on for hearing, the parties had agreed that Adams was entitled to wage-loss benefits in the amount of $20,550, representing 27.4 weeks of temporary total disability. Issues still in dispute included whether Milwaukee Insurance/Unitrin was entitled to a subrogation credit from Adams’ third-party settlement recovery and, if so, the amount of the credit. The compensation judge found that Adams had not given notice of third-party settlement negotiations to Milwaukee Insurance/Unitrin; that Adams failed to rebut a presumption of prejudice resulting from lack of notice; and that pursuant to Womack v. Fikes of Minn., 61 Minn. Workers’ Comp. Dec. 574, 587 (WCCA), aff'd without opinion, 636 N.W.2d 795 (Minn.2001), Adams forfeited his statutory one-third of the recovery, leaving the entire net proceeds of the settlement ($62,667) available as a credit to Milwaukee Insurance/Unitrin for workers’ compensation benefits. On appeal, by panel majority, the WCCA affirmed with modification to the calculations of the credit and attorney fees. Adams v. DSR Sales, Inc., No. WC05-287, 2006 WL 2039964, *5-6 (Minn. WCCA June 28, 2006).

On certiorari review, Adams challenges the penalty for lack of notice. He argues, among other things, that the Womack forfeiture, which in effect would allow the employer to satisfy its subrogation interest before the employee could obtain any recovery, has no support in the law governing the subrogation rights of employers and their insurers. Questions of law are reviewed de novo. Busch v. Advanced Maint., 659 N.W.2d 772, 776 (Minn.2003).

Under the Workers’ Compensation Act, every employer is liable to pay compensation for an employee’s personal injury or death arising out of and in the course of employment. Minn.Stat. § 176.021, subd. 1 (2006). The employer’s liability “is exclusive and in the place of any other liability to such employee.” Minn.Stat. § 176.031 (2006). “When a compensable injury is caused by a party other than the employer, the Act gives the employee a right to workers’ compensation benefits from the employer while preserving the employee’s common law right of action against the tortfeasor.” Conwed Corp. v. Union Carbide Chems. & Plastics Co., 634 N.W.2d 401, 406 (Minn.2001); see Minn.Stat. § 176.061, subd. 5 (2006).

Minnesota Statutes § 176.061, subd. 5(a), provides that the employer is subro-gated to the rights of the employee and that if the employee fails to prosecute the action diligently or if the court deems it advisable to protect the interests of the employer, the court may permit the employer to intervene. The employer may maintain a separate action or continue the action already instituted. Id. Whether the action is prosecuted by the employee or the employer, the proceeds are distributed according to a statutory formula that allocates roughly one-third to the employee after deduction of the expenses of collection, the remainder to reimburse the employer for compensation paid, and any balance remaining thereafter to the employee with a credit to the employer against future compensation payable. Minn.Stat. § 176.061, subd. 6 (2006). The employer’s credit is also reduced by the costs of collection. Snyder v. Yellow Freight Sys., 683 N.W.2d 788, 790-91 (Minn.2004).

In order to protect the employer’s and insurer’s subrogation interests, an employee who institutes a third-party action must serve a copy of the complaint and notice of trial on the employer or insurer, and any judgment rendered in the action is subject to a lien of the employer for the amount of its statutory subrogation interest. Minn.Stat. § 176.061, subd. 8a. An employee cannot enter into an agreement with a third-party tortfeasor in full settlement of the employer’s right of subrogation without consent or over objection of the employer or insurer, and any such settlement is void. Jackson v. Zurich Amer. Ins. Co., 542 N.W.2d 621, 624 (Minn.1996).

An employee may, after notice to the employer, settle claims for damages not subject to the employer’s subrogation right, in which case he “waives his statutory right to one-third of the employer’s net recovery from the third-party.” Naig v. Bloomington Sanitation, 258 N.W.2d 891, 894 (Minn.1977). But if the employee does not give notice of settlement negotiations to the employer, the lack of notice is presumptively prejudicial and the employer is entitled to a credit against the Naig settlement recovery:

[Njotice of settlement negotiations for a Naig settlement must be given to the employer-insurer in a manner and at a time such that the employer-insurer has a reasonable opportunity to participate in the negotiations and to appear or intervene in any litigation to protect its interests. We further hold that lack of notice is presumptively prejudicial to the employer, and, if the presumption is not rebutted by the employee, the employer is entitled to a credit for future compensation payable against the employee’s Naig settlement recovery.

Easterlin v. Univ. of Minn., 330 N.W.2d 704, 708 (Minn.1983). The employer in Easterlin sought allocation of the settlement proceeds pursuant to the statutory distribution formula. Id. at 706.

In Womack, the WCCA decided that in cases in which the employee failed to give notice to his employer of the institution of a third-party suit and trial, as required by Minn.Stat. § 176.061, subd. 8a, forfeiture of the statutory one-third of the net verdict was an appropriate penalty. Womack, 61 Minn. Workers’ Comp. Dec. at 587. The WCCA articulated that this disposition was based on Easterlin:

In a Naig settlement situation, all the non-subrogable damages are protected if the employee gives notice. If notice is not given, those damages are fully available, less attorney fees, to create a credit. In a verdict or non -Naig settlement situation, where the one-third portion of the statutory formula would most likely be used, the employee, if he has given appropriate notices of the institution of suit and of trial, can. protect one-third of his net recovery, after deducting the cost of recovery. If he fails to give notice in a situation where he might use a one-third deduction, then his penalty should be the loss of his right to protect that one-third interest in the net recovery. In addition, if the employee were permitted to use the one-third deduction portion of the statutory credit calculation, at least in this case, he would be able to protect some portion of the non-subrogable damages contained in the recovery. Based on Naig and Easterlin, the entire amount of the non-subrogable damages is not protected from the credit calculation. As well, there is no reason to permit the employee to protect some part of the subrogable portions of the recovery by use of the arbitrary one-third deduction. * * * We think this is an appropriate penalty to an employee for failure to provide the required notices.

61 Minn. Workers’ Comp. Dec. at 587-88 (footnote omitted).

Easterlin does not, in our view, either explicitly or implicitly authorize or support the proposition found in the WCCA’s Womack decision, that the failure to provide statutory notice under section 176.061, subdivision 8a, results in a penalty to the employee amounting to a dollar-for-dollar offset for workers’ compensation benefits of the entire net tort recovery. As we read Easterlin, when there is no notice and the presumption of prejudice is not rebutted, the employer and insurer are entitled to have the statutory distribution formula applied to the Naig settlement proceeds. Easterlin, 330 N.W.2d at 706, 708.

Minnesota Statutes § 176.061, “taken as a whole, presents a comprehensive plan for asserting the claims of both employer and employee against third parties and for distributing any sums recovered.” Allstate Ins. Co. v. Eagle-Picher Indus., Inc., 410 N.W.2d 324, 327 (Minn.1987). Generally, when an employer is not notified of settlement negotiations in a third-party action, any settlement that results in a release of subrogated claims is void as to the employer and the employer shares in the settlement according to the statutory formula. See Paine v. Water Works Supply Co., 269 N.W.2d 725, 731 (Minn.1978) (holding that in dramshop settlement of claims to which the employer was subrogated, employer was entitled to a credit as computed in accord with Minn.Stat. § 176.061, subd. 6); Minn.Stat. § 176.061, subds. 5(a), 8a. We therefore hold that, pursuant to this comprehensive plan, the settlement proceeds of Adams’ third-party action are to be calculated in accordance with Minn.Stat. § 176.061, subd. 6.

It may be that in certain situations a claimant’s failure to provide notice of settlement would be sufficiently egregious and prejudicial to warrant a penalty in the nature of a forfeiture. At the same time, there may be cases in which forfeiture would be inappropriate, particularly when the settlement is reasonable and the employer suffers no loss of value to its subro-gation rights. Cf. Hendrickson v. Industrial Comm’n, 202 Ariz. 442, 46 P.3d 1063, 1066 (2002) (stating that claimant’s unauthorized settlement did not require forfeiture of workers’ compensation benefits unless the settlement was unreasonable, in which case the insurer’s credit would be increased to a reasonable settlement amount). Nevertheless, Minnesota’s statutory scheme provides for invalidation of the settlement rather than forfeiture; and any deviation should come from the legislature rather than the court. The decision of the WCCA is reversed and the matter remanded for recalculation of the credit.

Reversed and remanded.

Employee is awarded $1,600 in attorney fees.

MEYER, J., took no part in the consideration or decision of this case.

      . The proceeds of the settlement were distributed as follows:
      Settlement amount: $ 100,000.00
      Less one-third attorney fees 33,333.00
      Less costs 4,000,00
      Balance to Adams $ 62,667.00

      . The statutory formula in Minn. Stat. § 176.061, subd. 6, provides as follows:
      The proceeds of all actions for damages or of a settlement of an action under this section, except for damages received under subdivision 5, clause (b) received by the injured employee or the employee’s dependents or by the employer or the special compensation fund, as provided by subdivision 5, shall be divided as follows:
      (a) After deducting the reasonable cost of collection, including but not limited to attorneys fees and burial expense in excess of the statutory liability, then
      (b) One-third of the remainder shall in any event be paid to the injured employee or the employee's dependents, without being subject to any right of subrogation.
      (c) Out of the balance remaining, the employer or the special compensation fund shall be reimbursed in an amount equal to all benefits paid under this chapter to or on behalf of the employee or the employee’s dependents by the employer or special compensation fund, less the product of the costs deducted under clause (a) divided by the total proceeds received by the employee or dependents from the other party multiplied by all benefits paid by the employer or the special compensation fund to the employee or the employee's dependents.
      (d) Any balance remaining shall be paid to the employee or the employee’s dependents, and shall be a credit to the employer or the special compensation fund for any benefits which the employer or the special compensation fund is obligated to pay, but has not paid, and for any benefits that the employer or the special compensation fund is obligated to make in the future.
      There shall be no reimbursement or credit to the employer or to the special compensation fund for interest or penalties.

      . Minnesota Statutes § 176.061, subd. 8a, provides:
      In every case arising under subdivision 5, a settlement between the third party and the employee is not valid unless prior notice of the intention to settle is given to the employer within a reasonable time. If the employer or insurer pays compensation to the employee under the provisions of this chapter and becomes subrogated to the right of the employee or the employee’s dependents or has a right of indemnity, any settlement between the employee or the employee's dependents and the third party is void as against the employer’s right of subrogation or indemnity. When an action at law is instituted by an employee or the employee’s dependents against a third party for recovery of damages, a copy of the complaint and notice of trial or note of issue in the action shall be served on the employer or insurer. Any judgment rendered in the action is subject to a lien of the employer for the amount to which it is entitled to be subro-gated or indemnified under the provisions of subdivision 5.

      . Although we summarily affirmed the WCCA in the Womack decision, Womack does not represent a definitive statement of the law of Minnesota until adopted by this court. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that, "[s]ummary affir-mances have no precedential value because they do not commit the court to any particular point of view,” doing no more than establishing the law of the case). We now specifically reject the rationale of Womack v. Fikes of Minn.

      . An effective subrogation provision provides the employee "an incentive to sue the third party, and particularly to strive for the fullest possible damage recovery.” 6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 116.02 (2006). Minnesota's distribution formula provides that incentive.


source: Caselaw Access Project

author: KALITOWSKI, Judge.

license: Public Domain

text:
    In the Matter of the WELFARE OF the CHILDREN OF S.W., M.M., and J.A., Parents.
    No. A06-1175.
    Court of Appeals of Minnesota.
    Jan. 30, 2007.
    Review Denied March 28, 2007.

      Michael Kinney, Greta Smolnisky, Smol-nisky & Kinney, P.C., Willmar, MN, for appellant S.W.
    William J. Watson, Big Stone County Attorney, Ortonville, MN, for respondent Big Stone County.
    Jessica L. Ryan, BlueDog, Paulson & Small, P.L.L.P., Minneapolis, MN, for respondent Grand Portage Band of Chippewa.
    Thomas C. Mahlum, Marta M. Chou, George D. Carroll, Robins, Kaplan, Miller & Ciresi L.L.P., Minneapolis, MN, for respondent guardian ad litem.
    Considered and decided by KALITOWSKI, Presiding Judge; WRIGHT, Judge; and CRIPPEN, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

   OPINION

KALITOWSKI, Judge.

Appellant S.W. challenges termination of her parental rights to her children, T.W. and G.W., arguing that the district court erred by (1) finding appellant palpably unfit; (2) finding that reasonable and active efforts to unify the family had failed; (3) admitting expert testimony from an unqualified witness and giving that testimony too much weight; and (4) denying a petition to invalidate the termination of parental rights proceedings based on Indian Child Welfare Act (ICWA) violations that occurred during earlier temporary foster placement proceedings.

FACTS

Appellant S.W. is the mother of three children, two of whom, T.W. and G.W., are involved in this case. Because T.W.’s father is eligible for membership in the Grand Portage Band of Chippewa Indians (respondent Band), nine-year-old T.W. is also eligible. Five-year-old G.W. is not eligible for membership nor a member of any Indian tribe. Neither child’s father retains parental rights.

Appellant’s oldest child, T.W., was born in 1997. In late 2001, appellant gave birth to twins, G.W. and B.W. The twins were born prematurely and' required extensive hospitalization. During this period of hospitalization, health-care workers became concerned that appellant was unable to care for herself and her children and ultimately a child in need of protection (CHIPS) petition was filed in Anoka County-

Pursuant to the developed case plan, appellant:

participated in Semi-Independent Living Skills programming to assist her with money management and learning basic living tasks. She was involved in family-based parenting skills therapy to assist her in learning parenting techniques. An Adult Disabilities social worker was assigned to support [appellant] concerning her developmental disability.

A psychological assessment revealed that appellant has a dual diagnosis of mild mental retardation and borderline personality disorder with dependent and paranoid features, as well as “additional personality traits of impulsivity, developing unstable and intense interpersonal relationships, marked reactivity of mood, pervasive mistrust and suspiciousness.” Appellant’s case plan was in effect for two-and-one-half year's, during which time appellant improved her parenting skills. But social service professionals remained concerned because of what the district court found to be appellant’s “questionable relationships with men reflecting impulsivity and lack of insight for her personal safety and the safety of her children.”

The twins continued to have medical problems and appellant voluntarily terminated her parental rights to B.W. in January 2004. Six months later, Anoka County closed the existing CHIPS case as to all of appellant’s children. The district court found that “[i]t was anticipated that after court supervision ended [appellant] would remain in Anoka County and would voluntarily continue to receive self-sufficiency, family based, and DD (developmental, disability) services.” Instead, appellant, pursuing a romantic relationship, relocated her family to Big Stone County within two months of the Anoka County case closure.

Big Stone County (respondent County) social services became involved with appellant on referral from Anoka County. Appellant initially refused services, but soon sought counseling for T.W. Two months later, respondent County filed a CHIPS petition based on allegations that appellant had hit T.W., causing a loose tooth.

Respondent Band participated in an April 2005 admit/deny hearing. The parties agreed to continue the petition for dismissal if appellant participated in a case plan and agreed not to relocate until certain conditions were met. The case plan required psychological and parental capacities evaluations, respite care for the children, continued counseling for T.W., and parenting training for appellant. A month later, appellant began participating in adult mental health services as well.

In July 2005, appellant became suicidal and voluntarily placed the children in foster care while she was hospitalized. Respondent Band was not notified of or involved in the placement.

Upon appellant’s release from an eight-day hospital stay, she demanded return of her children. But Big Stone County denied her request in order to give her the weekend to get used to being out of the hospital before the children returned home. Two days later, appellant was re-hospitalized for suicidal ideations. After six days she checked herself out against medical advice.

Respondent County brought a motion to revoke the continuance for dismissal. Although respondent Band did not receive formal notice and did not appear at this August 17 hearing, the record indicates the Band received informal notice. Appellant admitted that her mental health precluded her from caring for her children at that time and they remained in voluntary foster care. Although the children had been placed outside the home for more than six months, because appellant was actively pursuing mental health services the district court extended the time limits for permanency until February 2006.

At a dispositional hearing held later that month, the district court found that reasonable and active efforts had failed to prevent foster placement due to appellant’s acute mental health difficulties. Respondent County took custody of the children for involuntary placement in foster care. No ICWA-qualified expert testified at this hearing.

A case plan adopted at this hearing required appellant to complete a six-month Dialectical Behavior Treatment (DBT) program, undergo a parental capacities evaluation, and continue sessions with her individual therapist and psychologist. The record indicates that appellant did not complete DBT treatment.

From August until November, appellant and her children continued to receive services from respondent County. Appellant received psychological counseling and extensive mental health services. The district court noted that “[rjecords indicate that in the fall of 2005 very few days went by when the mental health worker did not have to render some sort of assistance to the mother, whether it was arranging transportation, setting up appointments or just generally allowing [her] to vent relating to her stresses and frustrations.” Appellant refused to participate in developmental disability services, and although family counseling was discontinued because the children were in foster care, the children received foster support counseling. The district court found these services both active, occurring sometimes weekly, and reasonable, “particularly because they encompassed virtually all services available in the area.” The district court found that the efforts were only marginally successful, due mostly to appellant’s “limited capacities to both understand and integrate parenting techniques due to her limited intellectual capacities, her defensiveness and confrontive nature occasioned by her personality disorder, and her continuing resentment and distrust of social workers and child protection workers.”

During this time, respondent County arranged for appellant to visit with her children. Some visits went well, others did not. In November, her visits were increased to three times a week for two hours each, with half of the visits unsupervised. The district court found that the erratic quality of the visits continued: “[appellant] showed little ability to ‘multitask’ or to effectively adapt to the [children’s] ambivalence, boredom, or misbehavior in any given situation.” Appellant lacks an ability to think “outside the box” and cannot extend learned skills to new situations.

In a dispositional review hearing held on November 9, 2005, the district court ordered respondent County to make a decision within 30 days either to return the children to appellant or to petition to terminate her parental rights. By the end of the month, respondent County petitioned to terminate appellant’s parental rights.

Appellant and her children continued to receive social services from respondent County while the petition was pending. Appellant restarted DBT treatment and parenting techniques training, and indicated that she felt she would need parenting instruction to continue until the children turned 18.

In March 2006, respondent Band, alleging violations of ICWA during the CHIPS proceedings, filed a petition to invalidate the placement and the termination of parental rights (TPR) proceedings under ICWA, 25 U.S.C. § 1914 (2004). The district court deferred its decision on the petition until evidence could be heard at trial. Following a six-day hearing that included testimony of two ICWA experts, the district court denied respondent Band’s petition to invalidate and terminated appellant’s parental rights on May 23, 2006.

ISSUES

1. Did the district court err by finding beyond a reasonable doubt that appellant was palpably unfit to parent her children?

2. Did the district court err by finding that active and reasonable efforts were made to reunify the family?

3. Did the district court err by admitting expert testimony from an unqualified witness and giving that testimony too much weight?

4. Did the district court err by denying a petition to invalidate the TPR proceedings on the ground that ICWA was not followed during the CHIPS proceedings?

5. Did the district court err by rejecting respondent guardian ad litem’s arguments that ICWA did not apply in this case?

ANALYSIS

On appeal from a decision terminating parental rights, “appellate courts are limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous.” In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn.1997). “Considerable deference is due to the district court’s decision because a district court is in a superior position to assess the credibility of witnesses.” In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn.1996).

District courts may order termination of parental rights on the basis of one or more of the nine criteria listed in Minn.Stat. § 260C.301, subd. 1(b) (2004). But because a child’s best interests are a paramount consideration in TPR proceedings, the district court must also find that termination of parental rights is in the child’s best interests. Minn.Stat. § 260C.301, subd. 7. In addition, here, the district court must find that “reasonable” and “active” efforts failed to reunite the family. 25 U.S.C. § 1912(d) (2004); Minn. Stat. § 260C.301, subd. 1(b)(5)(iv). The district court’s findings must conform to the statutory requirements. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn.1980).

I.

Appellant asserts that the district court erred by finding that she is palpably unfit to parent her children because it relied on speculative expectations in making its determination. We disagree.

Minnesota law supports the district court’s decision.

A parent’s rights may be terminated upon a showing that he or she is “palpably unfit” in that he or she demonstrates “a consistent pattern of specific conduct before the child or ... specific conditions directly relating to the parent and child relationship” of a duration or nature rendering the parent unfit to parent for the foreseeable future.

In re Welfare of A.V., 593 N.W.2d 720, 721 (Minn.App.1999) (citing and quoting Minn.Stat. § 260.221, subd. 1(b)(4), review denied (Minn. Aug. 25, 1999)); see also In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn.1996).

Here, the district court considered testimony from several social services and health-care providers who expressed serious doubt as to appellant’s future ability to parent her children. Appellant herself stated that she would need parenting instructions for more than 10 years, or until the children reached adulthood. The district court found, beyond a reasonable doubt and based on evidence including testimony of qualified expert witnesses, that the continued custody of the children by appellant would likely result in serious emotional damage to the children. See 25 U.S.C. § 1912(f).

Because the district court found that appellant’s capability to care for her children is unlikely to improve in the foreseeable future, the court appropriately decided to terminate appellant’s parental rights. In re Welfare of A.V., 593 N.W.2d at 722 (upholding termination of parental rights where parents’ mental illnesses and disabilities precluded them from improving their parenting skills); In re Welfare of T.M.D., 374 N.W.2d 206, 212 (Minn.App.1985) (affirming termination of parental rights where there was ample evidence of appellant’s long history of extreme psychological and behavioral problems and strong expert testimony that her improper behavior would continue into the future), review denied (Minn. Nov. 25, 1985).

We conclude that the district court did not err in finding appellant palpably unfit to parent T.W. and G.W.

II.

Appellant argues that respondent County’s efforts to reunify the family were not reasonable, as required by Minn.Stat. § 260C.301, subd. 1(b)(5)(iv). In determining whether reasonable efforts were made, a district court should consider whether they were:

(1) relevant to the safety and protection of the child;
(2) adequate to meet the needs of the child and family;
(3) culturally appropriate;
(4) available and accessible;
(5) consistent and timely; and
(6) realistic under the circumstances.

Minn.Stat. § 260.012(h) (2006). “Reasonable efforts” at rehabilitation are services that “go beyond mere matters of form so as to include real, genuine assistance.” In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn.App.1990), review denied (Minn. July 6, 1990). The quality and quantity of efforts to rehabilitate and reunify the family impact the reasonableness of those efforts. In re Welfare of A.H., 402 N.W.2d 598, 604 (Minn.App.1987) (finding provision of homemaker visits, parenting skill instruction, day-care for children, special attention to children’s developmental needs, and transportation to therapy sessions sufficient to establish reasonable efforts).

Appellant also argues that respondent County’s efforts were not active as required by ICWA. 25 U.S.C. § 1912(d) (2004). Although ICWA does not define active efforts, the Minnesota Tribal/State Indian Child Welfare Agreement does:

“Active [ejjforts” means active, thorough, careful, and culturally appropriate efforts by the LSSA to fulfill its obligations under [Indian Child Welfare Act], [Minnesota Indian Family Protection Act], and the [Department of Human Services] Social Services Manual to prevent placement of an Indian child and at the earliest possible time to return the child to the child’s family once placement has occurred.

Minn. Tribal/State Indian Child Welfare Agreement at 5, Minn. Dep’t of Human Servs. Bulletin # 99-68-11 (Aug. 25, 1999) (hereinafter Tribal/State Agreement).

Here, the record supports the district court’s findings that respondent County provided counseling for T.W., DBT therapy, supervised and unsupervised visitations with the children, psychological and parental capacities evaluations, sessions with an individual therapist and psychologist, parenting technique instructions, and foster support counseling for the children. Moreover, the district court extended the time required for permanency determinations due to appellant’s participation in her case plans, and appellant’s visitation schedule was increased to three visits a week for two hours each, half of which were unsupervised. And pending the termination procedure, respondent County continued to provide services.

The record indicates that respondent County provided frequent and varied services over a period of several years. Despite these services, several social services and healthcare providers concluded that appellant would not be able to care for her children in the foreseeable future. We conclude that the district court did not err by finding that active and reasonable efforts failed to reunite the family.

III.

Appellant argues that the district court erred both by accepting Lillian Reese as an expert witness under ICWA and by giving her testimony too much weight. Because appellant did not make these objections to Reese’s testimony to the district court, they are not properly before us. Sauter v. Wasemiller, 389 N.W.2d 200, 202 (Minn.1986). But even if we address these arguments, they fail.

“Generally, whether a witness qualifies as an expert is an issue within the discretion of the district court.” In re Welfare of Children of J.B., 698 N.W.2d 160, 166 (Minn.App.2005), review dismissed (Minn. May 3, 2005). But in ICWA cases, designation as an expert is controlled in large part by the Minnesota Tribal/State Agreement on Indian Child Welfare. Id.; see also Tribal/State Agreement at 9. According to the agreement, an expert is someone who is:

a. a member of the Indian child’s tribe, who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and child rearing practices;
b. a lay expert witness who has substantial experience in the delivery of child and family services to Indians and extensive knowledge of prevailing social and cultural standards; or
c. a professional person who has substantial education and experience in the area of his/her specialty and substantial knowledge of prevailing social and cultural standards and child rearing practices within the Indian community.

Tribal/State Agreement at 9.

Although the challenged expert, Ms. Reese, is not a member of T.W.’s tribe, she is a member of the larger tribal consortium that includes T.W.’s tribe. And the record indicates that Ms. Reese has more than 20 years experience in providing social services, with 14 of those as social services director for the Leech Lake Reservation, supervising mental health, family services, and chemical dependency programs. She also has experience in an Indian Child Welfare Program and has child-rearing practice and was involved in the adoption of the Minnesota Tribal/State Agreement on Indian Child Welfare. We conclude that because Ms. Reese could qualify as an expert witness under either section b or c of the definition, the district court did not err by finding that Ms. Reese is an ICWA-qualified expert.

We reject appellant’s argument that the district court gave too much weight to Ms. Reese’s testimony. The district court was in the best position to judge witness credibility. Minn. R. Civ. P. 52.01 (“[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”). “The weight to be given any testimony, including expert testimony, is ultimately the province of the fact-finder.” In re Welfare of Children of J.B., 698 N.W.2d at 167. Other than stating that Ms. Reese is not as qualified as the ICWA-qualified expert who represented respondent Band, appellant presents no argument.. Because we defer to the credibility determinations of the district court, we conclude that the district court did not err in determining the weight to be given the testimony.

IV.

Appellant claims that respondent County and the district court violated ICWA when it: (1) placed appellant’s children in foster care when appellant was hospitalized without a recorded consent form or notice to the Band; (2) did not immediately return .appellant’s children to her care upon her release from the hospital; (3) failed to give proper notice for the August 17, 2005 admit/deny hearing; and (4) failed to present expert testimony at the August 22, 2005 dispositional hearing. Based on these alleged ICWA violations that occurred during the CHIPS proceedings, appellant asks that the TPR proceedings be invalidated.

ICWA applies to certain child custody proceedings involving Indian children, including foster care placement, termination of parental rights, preadoptive placement, and adoptive placement. 25 U.S.C. § 1911 (2004). State court proceedings subject to ICWA have more requirements than non-ICWA-covered proceedings: the petitioning County must give notice to the child’s tribe, the district court must generally make findings by either clear and convincing evidence (foster placement) or evidence beyond a reasonable doubt (termination of parental rights), and, for involuntary proceedings, ICWA-qualified experts must testify at the hearing. 25 U.S.C. § 1912(a), (e)-(f).

In addition, there is a provision whereby an ICWA-covered state-court proceeding can be invalidated:

Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.

25 U.S.C. § 1914 (2004).

In March 2006, respondent Band filed a petition to invalidate the placement and TPR proceedings pursuant to section 1914 of ICWA. The district court deferred its decision on the petition until evidence was received at the TPR hearing. Appellant argues that refusal to invalidate the TPR proceeding is error.

While no Minnesota case has addressed invalidation of a termination based on earlier ICWA violations, in In the Interest of J.W., the Iowa Court of Appeals considered a similar issue. In the Interest of J.W., 528 N.W.2d 657 (Iowa Ct.App.1995). There, a parent requested invalidation of termination proceedings because the district court allegedly violated section 1912(e) of ICWA by placing the children in foster care and continuing the placement without testimony of qualified expert witnesses. Id. at 661. The Iowa court held that “[sjection 1914 ... ‘does not provide for invalidation of a valid separate action because of an invalid prior one.’ ” Id. (quoting In re M.E.M., 209 Mont. 192, 679 P.2d 1241, 1243 (1984) and citing D.E.D. v. State, 704 P.2d 774, 782 (Alaska 1985)). It therefore declined to invalidate the termination proceedings. Id. The court noted that although the district court took judicial notice of the earlier proceedings, it

did not rely exclusively on its earlier findings to reach its conclusion to terminate [mother’s] parental rights. It made specific findings based on testimony of three qualified ICWA experts at the termination hearing. These witnesses each concluded the children were likely to suffer serious physical or emotional harm if returned to their parent’s custody.

Id.

The facts here are similar. Based on four alleged ICWA violations that occurred during the CHIPS proceedings, appellant requests invalidation of the later TPR proceedings, which were conducted in accordance with ICWA. The record here indicates that two ICWA-qualified experts testified at the TPR proceedings and the district court determined, based on this and the testimony of other social services providers at the TPR hearing, that termination of appellant’s parental rights was in the best interest of the children.

We agree with the reasoning of the Iowa Court of Appeals and we decline to extend the language of section 1914 to provide the remedy appellant seeks. On this record, the alleged ICWA violations that occurred during the temporary foster care placements do not, as a matter of law, require that the district court invalidate the subsequent termination of parental rights proceedings. Thus, we conclude that the district court did not err by denying appellant’s petition to invalidate the TPR proceedings.

V.

In its appellate brief, respondent guardian ad litem argues that ICWA should not be applied in this case because: (1) T.W. is not being removed from an existing Indian family and (2) application of ICWA would violate equal protection principles, due process principles, and the Tenth Amendment. The district court concluded that these arguments were without merit. Because respondent failed to file a notice of review challenging the district court’s decision on these issues, they are not properly before us and we decline to address them. See Sauter, 389 N.W.2d at 202.

DECISION

We conclude that on this record the district court did not err by (1) finding beyond a reasonable doubt that appellant is palpably unfit to parent her children; (2)finding that active and reasonable efforts failed to reunify the family; (3) finding that Ms. Reese is an ICWA-qualified expert and crediting her testimony as it did; or (4) denying a petition to invalidate termination of parental rights proceedings based solely on alleged Indian Child Welfare Act violations that occurred during earlier temporary foster placement proceedings.

Affirmed.


author: HUDSON, Judge.

text:
    Patrick LONGBEHN, Appellant, v. Robin SCHOENROCK, Respondent.
    No. A06-1021.
    Court of Appeals of Minnesota.
    Feb. 6, 2007.

      Thomas M. Skare, Cloquet, MN, for appellant.
    James W. Balmer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge; SHUMAKER, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

A jury found that respondent Robin Schoenrock defamed appellant Patrick Longbehn, but the district court entered judgment as a matter of law in favor of respondent. Appellant argues that the district court erred by concluding that (1) respondent’s statement referring to appellant as “Pat the Pedophile” was not defamatory per se; (2) the evidence was insufficient to establish a causal link between respondent’s statement and any special and general damages; (3) the evidence was legally insufficient to sustain the jury’s punitive-damage award; and (4) the evidence was insufficient to sustain the amount that the jury awarded for general damages. Because we conclude that (1) referring to an individual as a “pedophile” is defamatory per se; (2) the district court did not err by entering judgment in favor of respondent on the issues of special and punitive damages; (3) the district court erred by concluding that appellant was required to establish a causal link between respondent’s defamatory publication and general damages; and (4) the evidence does not support the amount that the jury awarded for general damages, we affirm in part, reverse in part, and remand.

FACTS

Appellant started working for the City of Moose Lake as a police officer in May of 2000, when he was 34 years old. Shortly thereafter, appellant started a romantic relationship with an 18-year-old woman.

Two of appellant’s acquaintances, Brian Collins and Charles Wilson, attended a party in Duluth on the evening of December 31, 2000. Collins brought to the party two teenaged girls, one of whom was respondent’s stepdaughter. Wilson testified that as he was driving home from the party with respondent’s stepdaughter, respondent and Wilson became engaged in a cell-phone conversation during which respondent warned Wilson that he intended to contact various law-enforcement agencies and/or officers if Wilson did not bring his daughter home. According to Wilson, respondent stated that one of the law-enforcement officers he intended to contact was “Pat the Pedophile.” Wilson testified that this was the first time he had ever heard anyone refer to appellant by that name. Collins later told appellant that Wilson had referred to appellant as “Pat the Pedophile.” Respondent denies that he made the statement.

In January 2001, the City of Moose Lake chose not to retain appellant as a police officer after his probationary period expired. The Moose Lake police chief testified that appellant was terminated because people in the community thought he was overzealous and overbearing. The chief noted that some members of the community referred to appellant as “Pat the Pedophile” because of his relationship with the 18-year-old woman — although no one actually believed he was a pedophile. The chief admitted that the fact that appellant was known by this offensive nickname was one of the factors that influenced the city’s decision to terminate appellant. The chief testified that the name reflected that the community had lost confidence in appellant, and that “his credibility was no longer there as far as the public image was concerned, right or wrong on his part.” The chief testified that the first time he heard the name was from the principal or guidance counselor at the area high school and that many of the kids in the community referred to appellant by that name. But the police chief never heard respondent call appellant a pedophile or use the name “Pat the Pedophile.” Similarly, appellant never personally heard respondent refer to him as “Pat the Pedophile.”

After appellant was terminated, he exerted little effort trying to find another job as a police officer. Appellant did find employment with the Minnesota Department of Corrections, but he was discharged for assaulting his girlfriend, a co-employee, before completing his training. After this incident, appellant’s girlfriend obtained an order for protection against him, and he checked himself into a psychiatric facility.

Appellant initially commenced this case against a number of defendants, including the chief of police and respondent. He alleged various tort and employment claims. The district court dismissed the action with prejudice. This court reversed the judgment of dismissal as to appellant’s defamation claim against respondent, and remanded for further proceedings. Longbehn v. City of Moose Lake, No. A04-1214, 2005 WL 1153625 (Minn.App. May 17, 2005).

After trial following the remand, the jury found that (1) respondent called appellant “Pat the Pedophile” but did not accuse appellant of actually being a pedophile; (2) respondent’s defamatory publication was made under circumstances that made it negligent; (3) respondent’s publication caused appellant emotional distress so severe that no reasonable person could be expected to endure it; and (4) clear and convincing evidence established that respondent acted in deliberate disregard for appellant’s rights and safety. The jury awarded appellant $230,000 for past and future harm to reputation, mental distress, humiliation, and embarrassment, as well as $3,000 for future health-care expenses. In addition, the jury awarded appellant $90,000 for past and future wage loss and $250,000 for punitive damages.

Respondent moved for judgment as a matter of law (JMOL). The district court granted respondent’s motion and directed entry of judgment in favor of respondent. In its order, the district court concluded that (1) respondent’s statement was not defamatory per se; ■ (2) there was no evi-dentiary basis for the jury to find a causal link between respondent’s statement and any special or general damages; (3) the evidence was insufficient to sustain the jury’s punitive-damage award; and (4) the evidence was insufficient to sustain the amount the jury awarded for general damages. This appeal follows.

ISSUES

I. Did the district court err by concluding that the challenged statement was not defamatory per se?

II. Did the district court 'err by granting judgment as a matter of law on the issues of special, general, and punitive damages?

III. Did the district court err by concluding that the evidence did not support the amount the jury awarded for general damages?

ANALYSIS

I

Appellant argues that the district court erred by concluding that respondent’s statement was not defamatory per se. The application of law to established facts is a question of law, which this court reviews de novo. Morton Bldgs., Inc., v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn.1992); see also Restatement (Second) of Torts § 615(1) (1977) (stating that it is for the court to decide whether words are actionable per se).

“[D]efamatory per se defines a rule of damages, not of defamatory meaning.” Schlieman v. Gannett Minn. Broad., Inc., 637 N.W.2d 297, 307 (Minn. App.2001). Statements are defamatory per se if they falsely accuse a person of a crime, of having a loathsome disease, or of unchastity, or if they refer to improper or incompetent conduct involving a person’s business, trade, or profession. Anderson v. Kammeier, 262 N.W.2d 366, 372 (Minn.1977); Restatement (Second) of Torts § 570 (1977). With regard to false accusations of a crime, “the words need not carry upon their face a direct imputation of crime.” Larson v. R.B. Wrigley Co., 183 Minn. 28, 29, 235 N.W. 393, 394 (1931). “It is sufficient if the words spoken, in their ordinary acceptance, would naturally and presumably be understood, in the connection and under the circumstances in which they are used, to impute a charge of crime.” Id. In accordance with this principle, courts have held that statements that impute serious sexual misconduct are defamatory per se. Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 25 n. 3 (Minn.1996) (citing Baufield v. Safelite Glass Corp., 831 F.Supp. 713, 717 (D.Minn.1993)); Restatement (Second) of Torts § 574 cmt. d (1977) (stating that statements that are actionable because they impute serious sexual misconduct may also be actionable under the rule that statements that impute a crime are defamatory per se).

Here, the jury found that respondent called appellant “Pat the Pedophile,” but that he did not accuse appellant of being a pedophile. Because there was no accusation, the district court concluded that the statement was not defamatory per se. But the test is not whether the speaker intended to make an accusation, but whether a reasonable person under similar circumstances would understand the statement as making an accusation or imputing criminal or serious sexual misconduct to another. See Anderson, 262 N.W.2d at 372 (“[T]he test [is] whether a reasonable person would believe the statement to be defamatory.”).

With this rule in mind, we hold that in almost every circumstance a reasonable listener would believe that calling a person a pedophile imputes serious sexual misconduct or criminal activity to that person. It is, therefore, defamatory per se. This is especially true where, as in this case, the listener had no prior knowledge that the offensive name was a nickname that the community commonly used to signify its displeasure with appellant — a local police officer dating a much younger woman. Furthermore, respondent has cited no case, and our research has revealed none, holding that calling a person a pedophile could be understood by a reasonable person to be anything but defamatory per se.

II

Appellant argues that the district court erred by granting judgment as a matter of law on the issues of special, general, and punitive damages. The district court’s grant of JMOL is a question of law subject to de novo review. Huyen v. Driscoll, 479 N.W.2d 76, 78 (Minn.App.1991), review denied (Minn. Feb. 10, 1992).

JMOL is appropriate when a jury verdict has no reasonable support in fact or is contrary to law. Diesen v. Hessburg, 455 N.W.2d 446, 452 (Minn.1990). Courts “must view the evidence in the light most favorable to the nonmoving party and determine whether the verdict is manifestly against the entire evidence or whether despite the jury’s findings of fact the moving party is entitled to judgment as a matter of law.” Navarre v. S. Washington County Schs., 652 N.W.2d 9, 21 (Minn.2002). The jury’s verdict will not be set aside “if it can be sustained on any reasonable theory of the evidence.” Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn.1998).

To establish a claim for defamation, the plaintiff must prove “that a statement was false, that it was communicated to someone besides the plaintiff, and that it tended to harm the plaintiffs reputation and to lower him in the estimation of the community.” Richie, 544 N.W.2d at 25 (quotation omitted). The purpose of a defamation action is to compensate a private citizen for wrongful injury to his or her reputation. Id. at 28; see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 348-49, 94 S.Ct. 2997, 3011, 41 L.Ed.2d 789 (1974) (stating that states have a strong and legitimate interest in compensating private individuals for harm to reputation). When a statement is defamatory per se, as is the case here, the statement is “actionable without proof of special damage.” Anderson, 262 N.W.2d at 372; Restatement (Second) of Torts § 574 (1977) (“One who publishes a slander that imputes serious sexual misconduct to another is subject to liability to the other without proof of special harm.”). In addition, general damages are presumed, and thus a plaintiff may recover without any proof that the defamatory publication caused him or her actual harm. Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn.1987). Finally, when a statement is defamatory per se “punitive damages are recoverable without proof of actual damages.” Anderson, 262 N.W.2d at 372 (citing Loftsgaarden v. Reiling, 267 Minn. 181, 126 N.W.2d 154 (1964)).

“Special harm ... is the loss of something having economic or pecuniary value.” Restatement (Second) of Torts § 575 cmt. b (1977). It may be “a loss of [a] presently existing advantage, as a discharge from employment,” or “a failure to realize a reasonable expectation of gain, as a denial of employment.” Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 258-59 (Minn.1980) (quotation omitted). General damages are recoverable for injury to the plaintiffs “reputation, his wounded feelings and humiliation, ... as well as estimated future damages of the same kind.” Richie, 544 N.W.2d at 27 (quotation omitted). Punitive damages are “inflicted wholly with a view to punish, and make an example of the defendant ].” Loftsgaarden, 267 Minn. at 182-83, 126 N.W.2d at 155 n. 2 (quotation omitted).

Special Damages

Here the jury awarded appellant special damages in the aggregate amount of $90,000 for past and future wage loss. But the district court concluded that the evidence was legally insufficient to prove that respondent’s statement was the legal cause of any actual and special pecuniary loss. Even after reviewing the evidence in the light most favorable to appellant, we agree with the district court.

A plaintiff may recover special damages if he or she proves that the defamatory publication is the legal cause of any actual and special pecuniary loss. Stuempges, 297 N.W.2d at 258-59; Restatement (Second) of Torts § 622 (1977) (“One who is liable for ... a slander actionable per se ... is also liable for any special harm legally caused by the defamatory publication.”). A defamatory publication actionable per se is the legal cause of special harm if “it is a substantial factor in bringing about the harm.” Restatement (Second) of Torts § 622A(a) (1977).

Here, the record shows that respondent used the offensive nickname on one isolated occasion. There is no evidence that respondent originated the name or participated in its dissemination so as to justify imposing liability on him for any subsequent publication by others. In fact, the record shows that at the time of the incident, appellant was commonly known in the Moose Lake community by this derogatory nickname.

Next, the record indicates that the city’s decision to terminate appellant was based on his conduct and that respondent’s publication was not a substantial factor in bringing about appellant’s termination. The chief of police never heard respondent make the defamatory publication. The chief testified that although the name was a reflection of appellant’s loss of credibility in the community, the name was not the reason for the city’s action. According to the chief, the factor playing the most significant role in the decision to terminate appellant as a police officer was the community’s perception that appellant was overzealous and overbearing.

Finally, there is no evidence that respondent’s publication caused appellant any loss of prospective employment. Appellant testified that after the city terminated his employment he did not actively seek employment as a police officer. But appellant presented no evidence at trial establishing that respondent’s publication inhibited him from fulfilling his duty to mitigate damages or prevented him from realizing an expected gain. Furthermore, in light of appellant’s termination from the department of corrections for assaulting his girlfriend and the related OFP, respondent’s defamatory publication cannot reasonably be viewed as the legal cause of any future difficulty appellant may encounter in trying to obtain employment as a police officer. Based on the evidence submitted at trial, the district court did not err in concluding that respondent’s publication was not the legal cause of any special harm appellant claims to have sustained.

General Damages

The jury awarded appellant $230,000 for past and future harm to reputation, mental distress, humiliation, and embarrassment, as well as $3,000 for future health-care expenses. The district court concluded that the evidence was legally insufficient to establish a causal connection between respondent’s statement and these general damages. But because respondent’s statement is defamatory per se, general damages are presumed and appellant may recover without any proof of actual harm; accordingly, the district court erred with regard to this issue. Becker, 401 N.W.2d at 661.

Punitive Damages

The jury awarded appellant $250,000 for punitive damages. The district court concluded that the evidence was legally insufficient to find that respondent acted in deliberate disregard for appellant’s rights and safety. The district court also determined that the concept of punitive damages was not applicable to this case. Even after viewing the evidence in the light most favorable to appellant, we agree.

In defamation cases, the policy behind punitive damages is to “deter false, malicious, and provocative attacks on a person’s reputation.” Loftsgaarden, 267 Minn. at 182-83, 126 N.W.2d at 154-55. In Minnesota, punitive damages “shall be allowed in civil actions only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others.” Minn.Stat. § 549.20, subd. 1(a) (2004).

A defendant has acted with deliberate disregard for the rights or safety of others if the defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the rights or safety of others and: (1) deliberately proceeds to act in conscious or intentional disregard of the high degree of probability of injury ...; or (2) deliberately proceeds to act with indifference to the high probability of injury to the rights or safety of others.

Minn.Stat. § 549.20, subd. 1(b)(1), (2) (2004).

While this court’s conclusion that respondent’s statement was defamatory per se results in general damages being presumed, it does not necessarily follow that every defamation per se claim also warrants punitive damages. The propriety of punitive damages must be determined on a case-by-case basis. To support an award of punitive damages, there must be clear and convincing evidence establishing that respondent acted in conscious or intentional disregard for the high probability that his statement would cause appellant harm. In this case, that evidence is lacking.

The record shows that respondent made the defamatory publication while identifying a particular law-enforcement officer he would call for assistance in securing his stepdaughter’s safe return home. It appears that respondent used the term because he believed that appellant was commonly known by that name among the area’s youth. Based on the record, this belief was reasonable. Analyzing the statement in its proper context, the evidence does not support a finding that respondent was trying to malign appellant. The jury’s findings that respondent did not accuse appellant of being a pedophile and that he acted under circumstances that made his publication negligent comport with this assessment of the record. Based on the above reasoning, we conclude that the district court did not err in setting aside the award of punitive damages.

Ill

Appellant argues that the district court erred by concluding that the evidence did not support the amount the jury awarded for general damages. A reviewing court should not set aside a jury verdict on damages “unless it is manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict.” Raze v. Mueller, 587 N.W.2d 645, 648 (Minn.1999) (quotation omitted). But the district court “has broad discretion in determining whether to set aside a verdict as being excessive and should not hesitate to do so where it feels the evidence does not justify the amount.” Mrozka v. Archdiocese of St. Paul & Minneapolis, 482 N.W.2d 806, 813 (Minn.App.1992), review denied (Minn. May 24, 1992). The district court’s determination will not be disturbed absent a clear abuse of discretion. Dallum v. Farmers Union Cent. Exch. Inc., 462 N.W.2d 608, 614 (Minn.App.1990), review denied (Minn. Jan. 14, 1991).

The presumption of general damages in cases of defamation per se affords little control by the court over the jury’s assessment of the appropriate amount of damages. Stuempges, 297 N.W.2d at 259; Restatement (Second) of Torts § 621 cmt. a (1977). But in the absence of proof, general damages are limited to harm that “would normally be assumed to flow from a defamatory publication of the nature involved.” Restatement (Second) of Torts § 621 cmt. a (1977).

In Gertz, the Supreme Court stated:

The common law of defamation is an oddity of tort law, for it allows recovery of ... damages without evidence of actual loss.... Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms.... [T]he States have no substantial interest in securing for plaintiffs ... gratuitous awards of money damages far in excess of any actual injury.

418 U.S. at 349, 94 S.Ct. at 3011-12.

Although the Minnesota Supreme Court has held that Gertz’s constitutional protections do not apply to a private plaintiff suing a private defendant on an issue not of public concern, Richie, 544 N.W.2d at 28, we find Gertz’s proposition that states have no interest in securing gratuitous awards far exceeding actual injury to be persuasive. Based on the record in this case, including the context in which respondent made the defamatory statement, we conclude that $233,000 in general damages far exceeds the amount of past and future harm to appellant’s reputation, mental distress, humiliation, and embarrassment that would normally flow from a publication of this kind. Accordingly, we remand for a new trial on general damages.

DECISION

Because we conclude that (1) respondent’s statement was defamatory per se; (2) the district court did not err by granting judgment as a matter of law in favor of respondent on the issues of special and punitive damages; (3) the district court erred by concluding that the evidence was insufficient to establish a causal relationship between respondent’s defamatory publication and general damages; and (4) the district court did not err by concluding that the evidence does not support the amount the jury awarded for general damages, we affirm in part, reverse in part, and remand.

Affirmed in part, reversed in part, and remanded.

      . The parties characterized the motion as one for JNOV. The 2006 amendments to the Minnesota Rules of Civil Procedure changed the characterization of the motion from JNOV to judgment as a matter of law (JMOL). This change did not alter the substantive practice relating to these motions. See Minn. R. Civ. P. 50.02 (2006) advisory comm. cmt.


author: KLAPHAKE, Judge.

text:
    In the Matter of Jody ELMASRY, petitioner, Appellant, v. Adam VERDIN, Respondent.
    No. A06-655.
    Court of Appeals of Minnesota.
    Feb. 6, 2007.

      Jody Elmasry, St. Paul, MN, pro se appellant.
    Adam Verdin, St Paul, MN, pro se respondent.
    Considered and decided by KLAPHAKE, Presiding Judge, WILLIS, Judge, and SHUMAKER, Judge.
   OPINION

KLAPHAKE, Judge.

Pro se appellant Jody Elmasry challenges the district court’s dismissal of her petition for a domestic abuse order for protection, which she sought against respondent Adam Verdin, who shared her home as a tenant and with whom she had no marital, familial, sexual, or romantic relationship. Because the district court erred in concluding that the matter was a landlord-tenant dispute falling outside the Domestic Abuse Act, Minn.Stat. § 518B.01 (2006), we reverse and remand the district court’s order dismissing the petition.

FACTS

In October 2005, respondent moved into the lower level of a duplex that was owned by appellant’s parents. Appellant lived in the unit and took respondent in “as a month to month sub-lessee.” Appellant described her relationship with respondent as “housemate,” and made it clear that the two were roommates and were not romantically involved.

Appellant claimed that respondent “quickly overstepped all boundaries he had agreed to upon moving in” and that he brought “people, material and pets in to the duplex when he had agreed not to do so.” She further claimed that “[a]s these events continued and [she] had to continually tell him his behavior was not acceptable, his actions and behavior became increasingly aggressive and verbally abusive.”

In early January 2006, appellant told respondent that he had to move out. Appellant claims that respondent refused and that “his behavior became very threatening.” In particular, appellant claims that respondent “would come into my personal space, less than 6 inches from my face, verbally abuse me, follow me from room to room, raise his fist to me and make physical threats like ‘You’re gonna get what you deserve!’ ” Appellant called the police one night after respondent left for work and claims that she informed them that she “was physically afraid,” that respondent’s actions “were becoming more aggressive,” and that she “feared physical violence was next.” The police told her to obtain an order for protection (OFP).

On January 31, 2006, appellant applied for an OFP. In her petition, appellant claimed that “[t]his situation in my home is becoming] extremely aggressive and I [fear] for my safety.”

A hearing was held before the district court on February 10, 2006, and both parties appeared. The district court judge indicated that he reviewed appellant’s affidavit. The following exchange then took place:

[THE COURT:] Ms. Elmasry, do I understand that Mr. Verdin is a tenant of yours?
MS. ELMASRY: He’s a roommate, yes.
THE COURT: Well, now, is he a tenant?
MS. ELMASRY: Yes.
THE COURT: Does he pay rent?
MS. ELMASRY: Yes. He does.
THE COURT: Is that correct, Mr. Ver-din?
MR. VERDIN: That is correct, Your Honor. Thank you.
THE COURT: The Court is going to take a position that this is not a Domestic Abuse matter. This is a matter of landlord and tenant. Under those circumstances, it is not properly before the Court in a domestic abuse setting. The matter is dismissed. The Court has no jurisdiction. Do you understand what I’m saying to you, Ms. Elmasry?
MS. ELMASRY: I understand. I don’t understand why it’s not a domestic abuse situation, though.
THE COURT: Because the law says, Domestic Abuse can occur between parties who are in a significant living-together circumstance. If he is, in fact, a tenant, that takes you out of the category of living together. There is no relationship between the two of you according to the law.
MS. ELMASRY: Your Honor, he is living in my apartment.
THE COURT: Ma’am, it doesn’t make any difference. What I see here is, and you answered the statement that he is, in fact, a renter. If he’s a renter, it falls under the category of landlord/tenant. It has no business being in the Domestic Abuse Court.

The district court issued an order dismissing appellant’s petition, finding that “[r]e-spondent is a tenant on premises of [appellant]; this is landlord/tenant relationship, not properly in Domestic Abuse Court.”

ISSUE

Did the district court abuse its discretion in dismissing appellant’s petition for an order for protection?

ANALYSIS

The decision whether to issue an order for protection (OFP) under the Domestic Abuse Act is discretionary with the district court. See Hall v. Hall, 408 N.W.2d 626, 629 (Minn.App.1987), review denied (Minn. Aug. 19, 1987). The act provides that domestic abuse can only occur between “family or household members,” who are defined as including

(1) spouses and former spouses;

(2) parents and children;

(3) persons related by blood;

(k) persons who are presently residing together or who have resided together in the past;

(5) persons who have a child in common regardless of whether they have been married or have lived together at any time;

(6) a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time; and

(7) persons involved in a significant romantic or sexual relationship.

Minn.Stat. § 518B.01, subd. 2(b) (2006) (emphasis added).

The district court assumed that domestic abuse can occur between two people only if they are romantically or sexually involved, or have what the court termed some “significant living-together” relationship. Under the plain language of the statute, however, appellant and respondent meet the definition of “household members” because they were “residing together.” Minn.Stat. § 518B.01, subd. 2(b)(4); see State v. Asfeld, 662 N.W.2d 534, 541 (Minn.2003) (court interpreting statute is bound to give effect to clear language of statute). The protections of the act extend to persons who are “residing together,” whether they are involved in a sexual relationship or whether they are just co-residents. Cf. State v. Glowacki, 630 N.W.2d 392, 402-03 n. 5 (Minn.2001) (assuming that co-residents were “household members” under domestic abuse act). Given the sanctity of one’s home and the vulnerability that people can experience when they feel threatened or unsafe in their own home, to conclude otherwise would be unreasonable. See Minn.Stat. § 645.17(1) (2006) (stating that when construing statute, courts presume that legislature does not intend unreasonable result).

We acknowledge that persons may not “reside” together when one person is a guest or is merely staying at another’s home for a limited period of time. See Black’s Law Dictionary 1310 (7th ed.1999) (defining “residence” as the “fact of living in a given place for some time” or the “place where one actually lives”). Thus, there may be cases in which a dispute might arise over whether two people are “residing together.”

Here, however, respondent moved into the lower level of a duplex occupied by appellant, paid rent to her, and had some claim of right to the premises on a month-to-month basis. Appellant specifically states that “[tjhere are no locked or ‘secure’ rooms in this living area” and that she and respondent “lived in the first floor of [the] duplex.” Had appellant lived in a separate, self-contained unit of the building, and had respondent rented a separate, self-contained unit from appellant, the district court might have been correct in concluding that respondent was merely appellant’s tenant and that the two did not reside together. But because the parties shared common living areas of the duplex, they were “residing together” and therefore meet the definition of “household members.”

DECISION

The district court erred in concluding that the parties’ relationship did not fall under the definition of “household members” for purposes of the domestic abuse act. We therefore reverse the district court’s order dismissing appellant’s petition for an order for protection and remand the matter for further proceedings consistent with this opinion.

Reversed and remanded.