Generations Law Office, Ltd., Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0729

Generations Law Office, Ltd.,
Appellant,

vs.

Lonny D. Thomas,
Respondent,

Mark A. Severson, et al.,
Respondents,

and

Thomas Law, P.A., et al.,
Respondents,

vs.

Generations Law Office,
Appellant,

Brian T. Carlson,
Defendant.

Filed January 7, 2019
Affirmed
Hooten, Judge

Crow Wing County District Court
File No. 18-CV-15-2008

Brian T. Carlson, Generations Law Office, Ltd., Pequot Lakes, Minnesota (for appellant)

Mark A. Severson, Kurt W. Porter, Severson Porter Law, Crosslake, MN (for respondents
Thomas Law, P.A. and Thomas & Severson, P.A. and Mark Severson)

2

Patrick M. Krueger, Borden, Steinbauer, Krueger & Knudson, P.A., Brainerd, Minnesota
(for respondents Lonny Thomas and TAPA, LLC)

Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and
Stauber, Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
This appeal involves a dispute over a contract. Following arbitration and summary
judgment, appellants 1 challenge the district court’s application of the statute of frauds,
selection of the arbitrator, grant of summary judgment, and denial of a motion to a mend
the complaint. We affirm.
FACTS
On June 21, 2013, Generations Law Office, Ltd. and its owner, Brian T. Carlson ,
entered into a contract with respondents Thomas Law, P.A., Lonny D. Thomas, and Mark
A. Severson for the sale of Carlson’s estate-planning practice to respondents. The contract
anticipated that Carlson would continue to work as an attorney with the practice and would

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

1 The pleadings in the district court and the notice on appeal filed in this court identified
Generations Law Office, Ltd., as the sole plaintiff and appellant, and the caption on appeal
reflects that. See Minn. R. Civ. App. P. 143.01 (specifying that the caption “not be changed
in consequence of the appeal”). The parties have briefed this matter as if both Generations
Law Office and Brian T. Carlson appealed, and our analysis addresses all arguments
accordingly. We will refer to appellants as “Carlson” and generally refer to the respondents
collectively as “respondents” unless clarification is required.

3
provide training and consulting to respondents over a period of several years. The parties
included a paragraph in the contract addressing termination of the contract:
Either party may terminate this agreement for any
reason prior to November 1, 2013. If not terminated, it shall
thereafter be binding upon all parties. A termination must be
in writing signed by the terminating party and delivered to the
other party before November 1, 2013.
The parties also contemplated possible conflicts, agreeing that “[a]ny dispute under this
agreement shall be submitted to arbitration and shall not be litigated.”
Performance under the contract proceeded without incident until October of 2013.
Carlson claims that at this point respondents demanded that the contract be renegotiated
and made an anticipatory breach of the contract by telling him that they would no longer
perform under the contract. Respondents assert that “the parties orally and mutually agreed
to terminate and/or rescind” the contract over the course of October 4 to October 21, 2013.
A year and one-half later, on May 22, 2015, Carlson filed a summons and complaint
in district court alleging , inter alia, causes of action for breach of contract and abuse of
process. On June 8, 2015, respondents filed an answer and filed their own summons and
complaint against Carlson.2 On July 23, 2015, the two cases were consolidated. Carlson
filed a motion to compel arbitration , which was granted on September 8, 2015. Attorney
Steven R. Schwegman of Quinlivan & Hugh es was appointed arbitrator. The arbitration
occurred in August 2016. The arbitrator concluded that “the parties, through their written

2 It appears that respondents initially served Carlson with the summons and complaint on
July 22, 2014, but did not file it in district court until June 8, 2015.

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and verbal communications as well as their conduct, waived any requirement that the
termination be in writing” and that there was an oral termination of the contract.
In May 2017, respondents moved for summary judgment, an d Carlson filed a
motion to amend his complaint and for other relief. The district court granted respondents’
motion for summary judgment but denied Carlson’s motions. This appeal follows.
D E C I S I O N
Carlson raises several issues on appeal. First, he argues that the district court erred
in its application of the statute of frauds to the contract. Second, he asserts that the district
court erred in its selection of the arbitrator. Third, he contends that the district court erred
in granting summary judgment in favor of respondents on three of his claims. And finally,
he claims that the district court erred by denying his motion to amend his complaint and in
not declaring that some of respondents’ statements were libel per se.
I. Statute of Frauds
Carlson first argues that the district court erred in its application of the statute of
frauds. On September 8, 2015, in granting Carlson’s motion to compel arbitration, the
district court addressed respondents’ argument that they were not subject to the contract’s
arbitration clause because the contract had been terminated. There was nothing in writing
from respondents terminating the contract, as required by the terms of the contract, but
respondents argued that there had been a subsequent oral modification to the contract that
permitted oral termination of the contract . They also argued that the contract was
terminated by mutual rescission. In rejecting respondents’ oral-termination argument, the
district court ruled that the contract fell und er the statute of frauds because it required

5
performance exceeding one year, so it could not be orally modified t o allow for oral
termination.
In a later order granting Carlson’s subsequent motion to appoint an arbitrator, the
district court addressed r espondents’ mutual -rescission argument by clarifying its
September 8 order. It explained, “While the Court was able to summarily determine that
the Agreement could not have been modified by a subsequent oral modification, it remains
to be determined if th e Agreement was terminated by mutual rescission.” 3 The district
court then tasked the arbitrator with “wad[ing] into the facts to determine if the Agreement
was terminated by mutual rescission.”
On appeal, Carlson argues that the district court erred in submitting the issue of
mutual rescission to arbitration. Under Minn. Stat. § 572B.07(a) (2018), when there is a
motion to compel arbitration, the district court must summarily decide whether there is an
enforceable agreement to arbitrate. But under Minn. Stat. § 572B.06(c) (2018), it is up to
the arbitrator to “decide whether a condition precedent to arbitrability has been fulfilled
and whether a contract containing a valid agreement to arbitrate is enforceable.” The
district court treated the question of oral modification as a threshold issue as to whether the
controversy should go to arbitration , concluding that it should. And the district court
treated the question of mutual rescission as an issue that was so tied to the facts that it
should be decided by the arbitrator.

3 We note that in this case the statute of frauds does not apply to mutual rescission. See
Kineto Mach. Co. v. Ugland, 177 N.W. 1018, 1018 (Minn. 1920).

6
After a two-day arbitration, the arbitrator determined that the parties had mutually
rescinded the contract. “A court will not set aside an arbitration award because it thinks
that the arbitrators erred as to the law or the facts.” David A. Brooks Enters., Inc. v. First
Sys. Agencies, 370 N.W.2d 434, 436 (Minn. App. 1985). “Arbitrator’s awards will only
be impeached if their conclusions were so at variance from conclusions which might
legitimately be drawn from the evidence before them as to imply bad faith or failure to
exercise an honest judgment.” Id. In his conclusions of law, the arbitrator found that “the
parties, through their written and verbal communications as well as their conduct, waived
any requirement that the termin ation be in writing.” The arbitrator also noted that in a
memorandum prepared on November 7, 2013, Carlson told Thomas, “Since October 1,
2013 we have not had an agreement.” We hold that there is nothing in the record to suggest
that the arbitrator’s findings and conclusions imply bad faith or a failure to exercise an
honest judgment.
II. Arbitrator
Carlson frames the second issue as being about whether the district court erred “in
permitting Respondents to select the arbitrator.” At the outset , we note that respondents
did not, in a literal sense, select the arbitrator. The district court appointed Schwegman
after Carlson filed a motion asking the district c ourt to appoint an arbitrator and provided
the court with a list of three potential arbitrators, the third being Schwegman.
The argument in Carlson’s brief can be broken down into two parts. The first
portion deals with the process of selecting an arbitrator. He cites to the selection procedures
recommended by the American Bar Association, the American Arbitration Association,

7
and the rules of JAMS, a private arbitration service , and he cites to cases that discuss the
importance of a fair selection process. Carlson concludes that he was “deprived of a fair
process in the selection of an arbitrator.” But Carlson fails to explain why the fact that the
arbitration procedures laid out by ABA, AAA, and JAMS were not followed means that he
is entitled to any relief. Rather than articulating a legal argument, Carlson settles on
expressing his displeasure with how respondents conducted themselves through the
selection process.4 The first part of Carlson’s argument has no merit.
Second, Carlson argues that the arbitrator’s award should b e vacated because of
evident partiality. Under Minn. Stat. § 572B.23(a)(2)(A) (2018), a district court must
vacate an arbitration award if there was “evident partiality by an arbit rator appointed as a
neutral.” And Minn. Stat. § 572B.12(a) (2018) defines the disclosures related to
impartiality that an arbitrator must make, including “an existing or past relationship with
any of the parties to the agreement . . . , their counsel or representatives, witnesses, or other
arbitrators.” The district court deni ed Carlson’s motion to vacate the arbitrator’s award.
“Whether the conduct challenged constitutes ‘evident partiality’ is reviewed de novo.”
Pirsig v. Pleasant Mound Mut. Fire Ins. Co., 512 N.W.2d 342, 343 (Minn. App. 1994).
The district court addressed Carlson’s evident-partiality argument. It explained:
The arbitrator in this matter stated, in his Order dated
November 9, 2016, that he had disclosed all information to Mr.
Carlson with regard to his relationship with [respondents’
attorney] before bei ng appointed the arbitrator. The only
exception is that [the arbitrator] did not tell Mr. Carlson that

4 Carlson also briefly seems to argue that respondents “violate[d] their duty as officers of
the court.” But he cites no statutes or caselaw indicating how respondents violated this
duty or what the remedy would be.

8
Quinlivan and Hughes had represented [respondents’ attorney]
in the past.
Under Minn. Stat. § 572B.23(b) (201 8), a motion to vacate “predicated upon the
ground that the award was procured by corruption, fraud, or other undue means” must be
filed within 90 days of learning of the ground. The district court ruled that Carlson’s
motion was untimely because he had learned about the arbitrator’s relationship with
respondents’ attorney prior to the arbitration, over one year before he filed the motion to
vacate. The district court address ed the information that Carlson had learned more
recently, and was thus not untimely —that the arbitrator’s law firm had represented
respondents’ attorney. The district court found that the nondisclosure of this event did not
rise to the level of undue means or evident partiality because it had occurred 32 years before
the arbitration.
Carlson argues that the 90 -day period of section 572B.23(b) did not begin to run
until the disclosure of the prior rep resentation. But he presents no evidence to contradict
the assertion that he was informed by the arbitrator about the prior contacts before the
arbitration. Even if the claim had been timely made, the relationship between respondents’
attorney and the arbitrator was innocuous. Carlson asserts that respondents’ attorney and
the arbitrator had known each other for a number of years, that respondents’ attorney had
been invited to social functions held by the arbitrator’s law firm, and that respondents’
attorney had been requested to be an arbitrator for cases where the arbitrator’s law firm
was a party. None of this suggests partiality. It reflects the simple reality that lawyers—

9
especially those who have worked for a number of years in the same community —tend to
know one another.
We are similarly not persuaded w ith regard to the prior representation of
respondents’ attorney by the arbitrator’s firm. In Safeco Ins. Co. of Am. v. Stariha, 346
N.W.2d 663, 666 (Minn. App. 1984), we held that “[a] remote and unrelated attorney-client
relationship between the neutral arbitrator and counsel for one of the parties is not a basis
to vacate an arbitration award for undue means or evident partiality.” Here the
representation occurred 32 years before the arbitration and respondents’ attorney was
represented by the firm, not specifically by the arbitrator. We hold that the district court
did not err by concluding that the relationship was too remote and unrelated to be a basis
to vacate the arbitration award.
III. Summary Judgment
Carlson next argues that the district court erred in granting summary judgment to
respondents on three of his claims. A grant of summary judgment is r eviewed de novo to
determine if there are genuine issues of material fact and to see if the district court erred in
its application of the law. Montemayor v. Sebright Prods ., Inc., 898 N.W.2d 623, 628
(Minn. 2017); see also Minn. R. Civ. P. 56.03. “A fac t is ‘material’ for purposes of
summary judgment if its resolution will affect the outcome of the case.” Sayer v. Minn.
Dep’t of Transp., 790 N.W.2d 151 , 162 (Minn. 2010). And evidence is to be viewed “in
the light most favorable to the party against whom summary judgment was granted. ”
Senogles v. Carlson, 902 N.W.2d 38, 42 (Minn. 2017).

10
The district court granted respondents’ motion for summary judgment on August
30, 2017. It granted summary judgment on Carlson’s claims of (1) interference with
prospective economic advantage, (2) interference with contractual relations, and (3) abuse
of process.
With regard to the interference claims, the district court determined that there was
“no factual dispute as to whether [respondents] were aware of [ Carlson’s] expectation of
economic advantage, contractual relations, or economic relations. [Respondents] had no
knowledge of a separate contract involving [ Carlson].”5 Tortious interference with
prospective economic advantage requires that the defendant knew of the plaintiff’s
reasonable expectation of economic advantage, Gieseke ex rel. Diversified Water
Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 210, 219 (Minn. 2014), and tortious interference
with contractual relations requires that the defendant knew of the contract, R.A., Inc. v.
Anheuser-Busch, Inc., 556 N.W.2d 567, 570 (Minn. App. 1996), review denied (Minn. Jan.
29, 1997).
Carlson asserts on appeal that there was a genuine issue of material fact as to
whether respondents had knowledge of a potential sale of his firm to a diffe rent buyer.
Carlson states this in a conclusory way. He cites to no evidence in the record indicating
that respondents had knowledge of the potential sale. Carlson does cite to respondents’
affidavits, but those affidavits explicitly deny any knowledge of the sale. Because Carlson

5 The parties do not make this clear on appeal, but it appears that Carlson’s interference
claims are based on the idea that he had found an alternative buyer for his law firm in 2014
and that respondents served him with the s ummons and complaint on July 22, 2014
(although not filed in district court until June 8, 2015) for the purpose of blocking the sale.

11
does not cite to any evidence that creates a genuine issue of material fact on the knowledge
requirements of the interference claims, we hold that the district court did not err.
Carlson also argues that the district court erred by requiring only proof of actual
knowledge of the potential sale rather than “knowledge of facts which, if followed by
reasonable inquiry, would have led to a complete disclosure of the contractual relations
and rights of the parties.” Twitchell v. Nelson, 155 N.W. 621, 623 (Minn. 1915); see also
Kjesbo v. Ricks , 517 N.W.2d 585, 588 n.3 (Minn. 1994) (applying the same knowledge
requirement in dicta). Carlson is correct that the district court did not contemplate this
expansive definition of the knowledge requirement. But Carlson cites to nothing in the
record that would suggest that respondents had knowledge of facts which, if reasonably
inquired into, would have led to them learning about the contract. He briefly a rgues that
respondents knew that he was nearing retirement age and wanted to sell his practice. But
even if respondents were aware of this information, Carlson does not explain why that
would mean that respondents knew or should have known that he had another buyer in
place. We hold that there is no genuine issue of material fact on this point either.
With regard to the abuse-of-process claim, Carlson argues that there was a genuine
issue of material fact as to whether respondents had an ulterior motive in filing their lawsuit
against him. “The essential elements for a cause of action for abuse of process are the
existence of an ulterior purpose and the act of using the process to accomplish a result not
within the scope of the proceedings in which it wa s issued, whether such result might
otherwise be lawfully obtained or not.” Dunham v. Roer , 708 N.W.2d 552, 571 (Minn.
App. 2006) (quotation omitted), review denied (Minn. Mar. 28, 2006).

12
Carlson insists that respondents filed the lawsuit with the “int ent of blocking any
sale by Appellant.” Carlson bases much of his argument on: (1) his belief that respondents
had prior knowledge of a potential sale and (2) respondents’ frequent use of epithets to
describe him. As we stated above, Carlson cites to nothing in the record that suggests that
respondents had prior knowledge of the potential sale. But even if respondents had known
about a potential sale, Carlson fails to point to any evidence that suggests that respondents
acted with an ulterior motive in s erving him with the summons and complaint. He also
fails to demonstrate how the use of epithets is proof that respondents were filing the lawsuit
with an ulterior motive rather than proof that they disliked him. We hold that there is no
genuine issue of material fact with respect to ulterior motive.
Carlson also asks us “to rule that legally there is no difference between refusing to
drop a lawsuit when you gain knowledge of a contract or potential contract and
commencing a lawsuit knowing about a contract or potential contract.” Carlson cites to no
caselaw in support of this argument; he is presumably asking us to create new caselaw. We
decline to do so. Even if we were to hold, for the purposes of an abuse -of-process claim,
that maintaining a lawsuit after learning of a contract is akin to commencing a lawsuit with
knowledge of the contract, Carlson’s argument would fail because he does not point to
anything in the record suggesting an ulterior motive for maintaining the lawsuit.
IV. Motion to Amend Complaint and Libel Per Se
Carlson argues that the district court erred in denying his motion to amend his
complaint and in concluding that respondents’ statements were not libel per se. We review
the denial of a motion to amend a complaint for an abuse of discretion. Johnson v.

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Paynesville Farmers Union , 817 N.W.2d 693, 714 (Minn. 2012). A party should be
allowed to amend their complaint unless the adverse party would be prejudiced by the
amendment. Id. But it is not an abuse of discretion to deny such a motion where the
proposed claim would not survive summary judgment. Id. And whether a statement is
defamatory per se is a question of law that requires the application of law to established
facts and that we review de novo. Longbehn v. Schoenrock, 727 N.W.2d 153, 158 (Minn.
App. 2007).
During discovery, Carlson obtained emails that were primarily between respondents
Thomas and Severson, which he claimed were defamatory. In a motion to amend his
complaint, Carlson sought to clarify claims of aid ing and abetting libel, slander, and
defamation based upon these emails. In a defamation action, a plaintiff must prove: (1) that
a false and defamatory statement was made about him; (2) that the statement was made in
an unprivileged publication to a thir d party; and (3) that his reputation in the community
was harmed by it. Range Dev. Co. of Chisholm v. Star Tribune , 885 N.W.2d 500, 510
(Minn. App. 2016). The district court found that Carlson had not identified any evidence
of slanderous statements made by responden ts and therefore found that the aiding -and-
abetting-slander claim would not survive summary judgment. The district court then
analyzed eight written statements that could potentially be defamatory. It determined that
three of the statements were mere hyperbolic opinion, two were too vague to be libel, and
three were protected by attorney-client privilege. It concluded that Carlson’s proposed
amended claims would not survive summary judgment and denied his motion.

14
Carlson argues that the dist rict court erred with respect to the three statements that
it labeled as hyperbolic opinions. “[O]pinion amounting to ‘mere vituperation and abuse’
or ‘rhetorical hyperbole’ . . . cannot be the basis for a defamation action.” McKee v.
Laurion, 825 N.W.2d 725, 733 (Minn. 2013) . “Expressions of opinion, rhetoric, and
figurative language are generally not actionable if, in context, the audience would
understand the statement is not a representation of fact.” Jadwin v. Minneapolis Star &
Tribune Co., 390 N.W.2d 437, 440 –41 (Minn. App. 1986). The statements in question
were: (1) in a draft of an email that Thomas was going to send to Carlson, which Thomas
sent to Severson and Thomas’s wife Diane, Thomas stated, “Actually, in the nearly nine
months since you moved into my office and started leaching off me, you have demonstrated
that you are one of the most prolific deadbeats I have ever met .”; (2) in an email from
Thomas to Severson, Thomas stated, “I am going to tell him in no uncertain terms what a
complete lying deceptive sack of sh-t I think he is.”; and (3) in an email from Severson to
Thomas, Severson referred to appellant as a “wretched, reprobate, lying, incorrigible,
treacherous, bamboozling s ack of s h-t onc e known as trustworthy Brian.” All three
statements were hyperbolic opinions, and “in context, the audience would understand” the
statements were not representations of fact. Id.
Carlson argues that the district court erred in determining that three of the statements
were protected by attorney -client privilege. The statements were: (A) in the proposed
email to Carlson that Thomas sent to Severson and Diane Thomas, Thomas stated, “Suffice
it to say that I welcome the opportunity to present my evidence demonstrating what a
complete crook you are and pursuing my damage claim .”; (B) in another draft email to

15
Carlson, this time sent by Severson to Thomas, Severson stated, “I would have never signed
an agreement had I known that you secretly deleted the provision providing compensation
for legal assistant time.”; and (C) in an email from Severson to Thomas and Diane Thomas,
Severson stated, “Studying the agreement it seems that [Carlson] took advantage of our
focus on the calculation formula to determine the purchase price as several clauses address
that issue.”
It is unnecessary for us to determine whether the three statements are protected by
attorney-client privilege because they are protected by absolute privilege. Typically,
absolute privilege may protect defamatory statements if they are “(1) ma de by a judge,
judicial officer, attorney or witness; (2) made at a judicial or quasi-judicial proceeding; and
(3) the statement at issue is relevant to the subject matter of the litigation.” Mahoney &
Hagberg v. Newgard , 729 N.W.2d 302, 306 (Minn. 2007). But absolute privilege also
“extends to statements published prior to the judicial proceeding” so long as the statements
“have some relation to the judicial proceeding.” Id. This relevance to a judicial proceeding
“is defined broadly, not limiting the privilege to statements that are legally relevant but
permitting all statements that have reference, relation or connection to the case.” Id. at 308
(quotation omitted). “The relevance of a statement to litigation is a question of law, and
any doubts as to relevance of a statement must be resolved in favor of finding the statements
pertinent.” Id. at 306–07 (quotation omitted). But the application of absolute privilege is
limited “to situations in which the public service or the administration of justice require s
complete immunity from being called to account for language used.” Matthis v. Kennedy,
67 N.W.2d 413, 417 (Minn. 1954); see also Mahoney & Hagberg, 729 N.W.2d at 306.

16
The three statements that the distric t court determined were protected by attorney -
client privilege were made by two attorneys involved in a contract dispute about the
circumstances surrounding that dispute. And the contract dispute eventually resulted in
this litigation. We determine, as a matter of law, that these three allegedly defamatory
statements made by Severson and Thomas to each other and to Thomas’s wife (who was
also acting as their firm’s accountant), were relevant to the judicial proceedings that took
place in this case. We al so determine that, considering the public service and the
administration of justice, it is appropriate to apply absolute privilege here. To do otherwise
would lead to the absurd conclusion that attorneys involved in a contract dispute and facing
potential litigation cannot privately express frustration about the opposing party to one
another and their spouses without incurring liability for defamation. Accordingly, we
conclude that absolute privilege protected statements (A), (B), and (C). 6
But even if t he statements were not protected by absolute privilege, Carlson’s
argument would still fail. Statement (A) —that Carlson is a “complete crook” —is an
example of “rhetorical hyperbole” that constitutes the kind of opinion statements protected
by the first am endment. McKee, 825 N.W.2d at 733. This is especially so because the
context in which the statements were made matters; and here, the context was two attorneys
and the wife of one of the attorneys discussing potential litigation amongst themselves. See
Jadwin, 390 N.W.2d at 443; see also Rochester City Lines, Co. v. City of Rochester , 846

6 We note that absolute privilege would also likely protect the three statements that were
labeled hyperbolic opinions by the district court, but it is unnecessary for us to reach that
conclusion in light of our holding that the district court was correct in its assessment of
those statements.

17
N.W.2d 444, 466 (Minn. App. 2014) (holding that the use of the words “hostage,”
“ransom,” “extortion,” “robbery,” and “stole” was opinion and hyperbole—not a verifiable
factual criminal accusation —because of the informal context in which the words were
used), aff’d in part, rev’d in part on other grounds, 868 N.W.2d 655 (Minn. 2015).
Statement (B)—that Carlson had secretly deleted a provision from the contract —
would likely be protected by attorney-client privilege. “[A]dvice given [to] a client by an
attorney in the course of his professional duty . . . is protected by the attorney -client
privilege.” Woody v. Krueger , 374 N.W.2d 822, 824 (Minn. App. 1985). A
communication protected by attorney -client privilege does not constitute defamation
because it does not meet the publication requirement of defamation. Id. And i t is
undisputed from the record that respondents Thomas and Severson are both attorneys and
drafted these emails shortly after the relationship with Carlson deteriorated. These emails
pertain to the contract that respondents had with Carlson and were written with the
possibility of a looming legal action.
And statement (C) —that Carlson took advantage of respondents’ focus —is an
unverifiable statement of opinion that is not actionable. See Bebo v. Delander, 632 N.W.2d
732, 740 (Minn. App. 2001) (listing verifiability a s one of four factors to consider when
determining whether a statement is one of opinion or fact) , review denied (Minn. Oct. 16,
2001).
Carlson also argues that the statements made by respondents are defamatory per se.
Statements are defamatory per se “if they refer to improper or incompetent conduct
involving a person’s business, trade, or profession.” Longbehn, 727 N.W.2d at 158. But

18
the words “must be peculiarly harmful to the person in his business. General
disparagement is insufficient.” Anderson v. Kammeier , 262 N.W.2d 366, 372 (Minn.
1977). Since we determined that the statements were either rhetorical hyperbole or
protected by absolute privilege, this argument is irrelevant. We nonetheless note that while
respondents’ statements were negative, we cannot say that the y were “peculiarly harmful
to [Carlson] in his business” so as to amount to libel per se.
We hold that the district court did not abuse its discretion in denying Carlson’s
motion to amend his complaint because his defamation claims would not survive summary
judgment, and we hold that the statements do not constitute libel per se.
Affirmed.