Katie Aase, Respondent,

This opinion will be unpublished and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
A20-0239

Katie Aase,
Respondent,

vs.

Megan Hamilton,
Appellant.

Filed November 23, 2020
Affirmed in part, reversed in part, and remanded
Larkin, Judge

Hennepin County District Court
File No. 27-CV-19-13123

Katherine S. Barrett Wiik, Brian J. Linnerooth, Best & Flanagan LLP, Minneapolis,
Minnesota (for respondent)

Marshall H. Tanick, Teresa J. Ayling, Meyer Njus Tanick, PA, Minneapolis, Minnesota
(for appellant)

Considered and decided by Jesson, Presiding Judge; Larkin, Judge; and Reilly,
Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges the district court’s grant of summary judgment for respondent
on respondent’s claim seeking possession of a cat and on appellant’s counterclaims for
defamation. We affirm in part, reverse in part, and remand.
FACTS
This case arises from a dispute regarding ownership of a cat named Oliver. The
undisputed facts of record are as follows.
In August 2018, respondent Katie Aase paid for and adopted two cats, Oliver and
Belle, from Fur-Ever Home Rescue (Fur-Ever), a nonprofit run by Tania Richter. The cats
were a bonded pair of littermates. After the adoption, Oliver became ill, and Aase brought
him to VCA Cedar Animal Hospital in November 2018. The veterinarian determined that
Oliver might have diabetes.
Aase did not know how to care for a diabetic cat and did not know if she would have
enough money to give Oliver the treatment he needed. She contacted Richter for help and
asked if Fur-Ever would take Oliver back and continue the level of inpatient care that he
needed. She expressed fear that if Fur-Ever did not take him back, he would deteriorate to
the point that euthanasia would be the most humane option.
Richter referred Aase to appellant Megan Hamilton. Hamilton is the founder of
Basil’s Cradle, a sanctuary for special -needs cats . S he is associated with Main Street
Veterinary Service, a clinic owned by Dr. Ronald Gaskin. Hamilton had fostered Fur -
Ever’s diabetic cats in the past.

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On November 17, 2018, Hamilton met with Aase at VCA Cedar Animal Hospital
and took possession of Oliver. Approximately ten days later, Hamilton brought Oliver in
for a checkup with Dr. Gaskin. Hamilton texted Aase, “[D]r. Gaskin needs to get
permission from you to have me as the agent so how soon could he call you to get that?”
Aase gave her permission and paid the resulting veterinary bill.
Over the next four months, Oliver remained in Hamilton’s care. Aase and Hamilton
communicated by text regarding Oliver. The initial communications primarily regarded
Oliver’s condition. Aase also expressed her desire to visit the cat. Later communications
addressed whether and when Hamilton intended to return Oliver to Aase. In one text, Aase
asked, “The goal is still for [Oliver] to come home with Belle and I, yes?” Hamilton
responded, “Yes it is.”
On January 29, 2019, the parties had a contentious phone conversation .1 Aase
accused Hamilton of putting off her efforts to see Oliver for two months . Aase asked
Hamilton, “[Y]our intention is still to give me my cat back, correct?” Hamilton responded,
“Yes! I’m giving you your cat back!” Hamilton made additional statements implying that
she would return the cat to Aase.
However, the following exchange regarding Aase’s attempts to visit Oliver suggests
that Aase had agreed to “surrender” the cat to Hamilton:
AASE: You told me long notice doesn’t work, now you tell
me short notice doesn’t work, I just, I . . . I’m also upset and
anxious, so . . . that’s . . .

1 The record includes transcriptions of two phone calls between the parties, one on
January 29, 2019, and one on March 27, 2019.

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HAMILTON: Well there’s no reason for you to be! Because
guess what, he hasn’t had insulin for two days.
AASE: Well that’s wonderful, I’m really glad to hear that. But
I did also give verbal permission or like . . . verbally surrender
him, so I know I don’t have a lot of ground to stand on here.

The conflict came to a head in March 2019. Aase texted Hamilton: “I think we
need to consider a deadline for when [Oliver] should come home, even if he’s not in
remission and I can continue his care here.” Aase delivered a letter to Hamilton’s home
asserting her ownership rights and threatening legal action. Hamilton called Aase and
refused to return the cat. The following exchange occurred:
HAMILTON: I don’t know why you think you own Oliver.
You don’t. It was very clear, and I spoke to you at length
before you and I even met, that in order for me to help you that
he would have to be surrendered to my rescue. That was the
plan and that is what happened.
AASE: With the intent of him coming home to his sister.
HAMILTON: Well, what I told you[. . .]
AASE: I had surrendered him formally . . .
HAMILTON: What I told you . . . was IF I could get him into
remission I would consider letting you have him back if you
were capable, but the fact of the matter is #1 you surrendered
him to me and you did it in front of witnesses, and you also . . .
AASE: Mmm huh[.]
HAMILTON: . . . reiterated on the phone in a conversation we
had in January that you had surrendered him to me. When you
surrender him, you surrender all rights to ownership and then
what happens next is up to me.
. . . .
AASE: So and all your uh statements that you intended to
return my cat to me were false[?]
HAMILTON: I said IF he went into remission that I would
consider it. I told you from the get go that there were no
guarantees of anything. . . .
. . . .
AASE: Yes. [Y]ep, that was my . . . that’s, that is what
happened. Um, but again, that being said, there was always the

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understanding that hopefully he would go into remission but
that he would come home.
HAMILTON: No . . .
. . . .
HAMILTON: [E]verything was predicated on him going into
remission. I was clear about that.

Aase contacted the police and reported that Hamilton had stolen her cat . She also
posted a statement online regarding her experience with Hamilton and Main Street
Veterinary Service. And, she filed a conciliation-court claim seeking the return of Oliver.
The conciliation court granted judgment in favor of Aase and ordered Hamilton to return
the cat to Aase.
Hamilton removed the case to district court and raised defamation counterclaims.
She claimed that Aase had “surrendered” Oliver to her and that Aase had posted defamatory
statements on social media and Yelp such as Hamilton has “stolen my cat,” Hamilton
“cannot be trusted,” and Hamilton “does not at all conduct herself in a professional
manner.” Aase admitted that she posted the statements, but she asserted affirmative
defenses to the defamation counterclaims.
Aase moved for summary judgment. She a rgued that Hamilton provided
insufficient evidence to raise a genuine issue of material fact regarding Oliver’s ownership.
She asserted that Hamilton’s defamation claims failed because the statements were true,
nonactionable opinions, and also privileged. Hamilton argued that a genuine issue of
material fact remaine d regarding whether Aase surrendered ownership of Oliver to
Hamilton. She submitted her affidavit stating that she had told Aase that Aase had to

6
surrender Oliver in order for Hamilton to care for the cat and that she “explained to [Aase]
very clearly that surrendering Oliver meant relinquishing her ownership.”
The district court granted summary judgment for Aase on all claims, and Hamilton
returned Oliver to Aase. This appeal followed.
D E C I S I O N
“A motion for summary judgment shall be granted when the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue of material fact and that either party is entitled to a judgment
as a matter of law.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). There is no
genuine issue of material fact when “the nonmoving party presents evidence . . . which is
not sufficiently probative with respect to an essential element of the nonmoving party’s
case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566
N.W.2d 60, 71 (Minn. 1997). Conversely, summary judgment is inappropriate when
reasonable people can draw different conclusions from the evidence presented. Id. at 69.
We review a distri ct court’s grant of summary judgment de novo. Dukowitz v.
Hannon Sec. Servs. , 841 N.W.2d 147, 150 (Minn. 2014). In doing so, we “view the
evidence in the light most favorable to the party against whom summary judgment was
granted to determine whether there are any genuine issues of material fact and whether the
district court cor rectly applied the law.” Id. We need not adopt the district court’s
reasoning and “may affirm a grant of summary judgment if it can be sustained on any
grounds.” Doe 76C v. Archdiocese of St. Paul, 817 N.W.2d 150, 163 (Minn. 2012).

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I.
We begin our review with the district court’s grant of summary judgment on Aase’s
claim against Hamilton. In Minnesota, companion pets like Oliver are deemed personal
property. See Sawh v. City of Lino Lakes , 823 N.W.2d 627, 632 (Minn. 2012) . Aase
contends that she did not relinquish ownership of Oliver to Hamilton. Aase argues that the
parties agreed that Hamilton would have temporary custody of Oliver for the purpose of
attending to his medical needs. Hamilton counters that Aase agreed to “surrender”
ownership of Ol iver to Hamilton and that Oliver’s return to Aase was solely within
Hamilton’s discretion. Hamilton asserts that the district court erred by granting summary
judgment because a genuine issue of material fact exists regarding who owns Oliver.
The parties did not memorialize their agreement regarding Oliver’s placement in
Hamilton’s care. Thus, the parties address the dispute regarding Oliver’s ownership in the
context of oral -contract formation. Formation of a contract requires: an offer that is
communicated to the offeree , acceptance of the offer by the offeree, and consideration.
Thomas B. Olson & Assocs., P.A. v. Leffert, Jay & Polglaze, P.A. , 756 N.W.2d 907, 918
(Minn. App. 2008), review denied (Minn. Jan. 20, 2009). The parties must assent to the
terms of the contract. SCI Minn. Funeral Servs., Inc. v. Washburn -McReavy Funeral
Corp., 795 N.W.2d 855, 864 (Minn. 2011). “Mutual assent entails a meeting of the minds
concerning a contract’s essential elements. ” Id. (quotation omitted). Minnesota courts
apply an objective standard of contract formation. Riley Bros. Constr., Inc. v. Shuck , 704
N.W.2d 197, 202 (Minn. App. 2005) (“Minnesota follows the objective theory of contract
formation, under which the parties’ outward manifestations are determinative, rather than

8
either party’s subjective intent.”). “Both the existence and terms of an oral contract are
issues of fact, generally to be decided by the fact -finder.” Rios v. Jennie-O Turkey Store,
Inc., 793 N.W.2d 309, 315 (Minn. App. 2011), review denied (Minn. Mar. 29, 2011).
Viewed in a light most favorable to Hamilton, there is sufficient evidence to create
a genuine issue of material fact regarding whether Aase transferred ownership of Oliver to
Hamilton via an oral contract. See id. It is undisputed that Aase expressed an inability to
care for Oliver’s medical needs on her own, attempted to return the cat to Fur -Ever, and
reached out to Hamilton for help . It is also undisputed that Hamilton expended time and
significant funds caring for the cat . Hamilton’s a ffidavit opposing summary judg ment
states that she explained to Aase that she would take Oliver only if Aase surrendered her
ownership rights. And Aase made statements during a phone call indicating that s he had
formally surrendered Oliver to Hamilton . On this record, a reasonable person could
conclude that Aase transferred ownership of Oliver to Hamilton , for the purpose of
obtaining necessary medical care that Aase could not provide.
Aase argues that no rational trier of fact cou ld find for Hamilton. She asserts that
Oliver’s “microchip registration” is under her name , her adoption agreement restricted a
transfer of ownership without Fur-Ever’s approval, and she did not complete a “surrender
form,” which is “standard in the animal rescue community.” Although such arguments
may be relevant to the issue of ownership, they are not dispositive. Aase fails to offer any
legal authority or persuasive argument foreclosing the possibility of a transfer of ownership
from Aase to Hamilton under the circumstances Hamilton has described . Aase points to
Hamilton’s statement that she would give Oliver back to Aase and Hamilton’s request that

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Aase list her as an “agent” to facilitate a veterinary visit. While this evidence is persuasive,
it is not, as Aase suggests, conclusive. Reasonable jurors could reach different conclusions
regarding whether Aase transferred ownership of Oliver to Hamilton.
Summary judgment is a “blunt instrument,” and “should be employed only where it
is perfectly clear that no issue of fact is involved.” Donnay v. Boulware, 144 N.W.2d 711,
716 (Minn. 1966). A court is not allowed to weigh the evidence or assess credibility when
determining whether summary judgment is appropriate. See Hoyt Props., Inc. v. Prod. Res.
Grp., L.L.C., 736 N.W.2d 313, 320 (Minn. 2007) (“Weighing the evidence and assessing
credibility on summary judgment is error.”). Given the record before us, we fail to see how
the dispute regarding ownership of Oliver can be resolved without assessing the relative
credibility of the parties’ positions. When we view the evidence in the light most favorable
to Hamilton, as we are required to do, there is sufficient evidence to create a genuine issue
of material fact regarding whether Aase surrendered her ownership rights to Hamilton via
an oral contract. We therefore reverse the grant of summary judgment on Aase’s claim
against Hamilton.
II.
We now turn to the district court’s grant of summary judgment on Hamilton’s
defamation claims. “Under the common law, a plaintiff pursuing a defamation claim must
prove that the defendant made: (a) a false and defamatory statement about the plaintiff;
(b) in an unprivileged publication to a third party; (c) that harmed the plaintiff’s reputation
in the community.” Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 873 (Minn. 2019)
(quotation omitted). “The question of whether a statement’s language reasonably conveys

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a defamatory meaning is one of law.” McKee v. Laurion , 825 N.W.2d 725, 731 (Minn.
2013). The truth or falseness of a statement is a fact question. Lewis v. Equitable Life
Assurance Soc’y of the U.S., 389 N.W.2d 876, 889 (Minn. 1986) (“[T]he truth or falsity of
a statement is inherently within the province of the jury.”).
If the defamatory statement constitutes a false accusation that the plaintiff
committed a crime, or a false statement about the plaintiff’s business, trade, or professional
conduct, it is defa mation per se, and general damages are presumed. Becker v. Alloy
Hardfacing & Eng’g Co. , 401 N.W.2d 655, 661 (Minn. 1987). “Courts allow presumed
damages because statements that are defamatory per se are virtually certain to cause serious
injury to reputation, and . . . this kind of injury is extremely difficult to prove.” Maethner,
929 N.W.2d at 875 (quotation omitted).
Hamilton asserts that Aase’s statement that Hamilton stole her cat ascribes
criminality and is defamation per se. Aase counters that the statement is sufficiently true
and therefore cannot provide grounds for a defamation claim. Truth is a complete defense
to defamation. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).
We have decided that there is a genuine issue of material fact regarding whether
Aase transferred ownership of Oliver to Hamilton. T hus, there is a genuine issue of
material fact regarding the truth or falsity of Aase’s statement that Hamilton stole her cat.
Summary judgment is therefore not appropriate on Hamilton’s defamation claim based on
the stolen-cat statement.
We next consider Aase’s statement that Hamilton cannot be trusted. “[S]tatements
charging another with . . . dishonesty are defamatory regardless of the terms in which they

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are couched.” Church of Scientology of Minn. v. Minn. State Med. Ass’n Found. , 264
N.W.2d 152, 156 (Minn. 1978). Aase contends that the statement is protected opinion.
“The First Amendment protects opinion from defamation liability.” Larson v.
Gannett Co., 940 N.W.2d 120, 147 (Minn. 2020). In determining whether a statement is
one of fact or opin ion, courts consider: “(1) a statement’s precision and specificity; (2) a
statement’s verifiability; (3) the social and literary context in which the statement was
made; and (4) a statement’s public context.” Fine v. Bernstein , 726 N.W.2d 137, 144
(Minn. App. 2007) , review denied (Minn. Apr. 17, 2007). If a statement expresses “a
subjective view, an interpretation, a theory, conjecture, or surmise . . . , the statement is not
actionable.” Schlieman v. Gannett Minn. Broad., Inc., 637 N.W.2d 297, 308 (Minn. App.
2001) (quotation omitted), review denied (Minn. Mar. 19, 2002). If, in context, an audience
would understand that an “[e]xpression[] of opinion, rhetoric, [or] figurative language” was
“not a representation of fact,” it is not actionable. Fine, 726 N.W.2d at 144 (quotation
omitted). Likewise, statements that reflect “mere vituperation and abuse” or “rhetorical
hyperbole” are not actionable because they show no real intent to defame and are
understood by listeners not to be defamatory. McKee, 825 N.W.2d at 733 (quotation s
omitted).
A statement may be actionable if it implies the existence of facts that can be proven
true or false. Schlieman, 637 N.W.2d at 308. Defamation by implication occurs when a
defendant “juxtaposes a series of facts to imply a defamatory connection between them .”
Metge v. Cent. Neighborhood Improvement Ass’n , 649 N.W.2d 488, 4 98 (Minn. App.
2002). Aase’s statement that Hamilton cannot be trusted implies that Hamilton is dishonest

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because she stole Aase’s cat, which is a verifiable fact. Given the context in which the
statement was made, Aase’s statement that Hamilton cannot be trusted implies the
existence of a verifiable fact and is therefore not a protected opinion.
We next consider Aase’s statement that Hamilton “does not at all conduct herself in
a professional manner. ” That statement is a subjective viewpoint rooted in Aase’s
interpretation of professional cond uct. Likewise, Aase’s statement, “[D]o not let
[Dr. Gaskin] refer you to [Hamilton]” is a subjective v iewpoint regarding how others
should respond to a potential referral. Both statements are protected opinions.
Lastly, we consider Aase’s statement, “If you have a cat in [Hamilton’s] care right
now, try getting it back immediately.” Again, this is a protected opinion because it is a
subjective recommendation and makes no spec ific or verifiable allegations. Hamilton
argues that the statement implies that she stole the cat . Unlike Aase’s statement that
Hamilton cannot be trusted, in this instance, the connection to the stolen -cat statement is
too attenuated.
Aase asserts that her statements were privileged. There are two types of privileges
that defend against a defamation claim: (1) absolute privilege and (2) qualified privilege.
Minke v. City of Minneapolis, 845 N.W.2d 179, 182 (Minn. 2014). The privileges exist
because “statements made in particular contexts or on certain occasions should be
encouraged despite the risk that the statements might be defamatory.” Id. (quotation
omitted). Aase relies on qualified privilege, which protects against liability “only if the
defamatory statements are publicized in good faith and without malice.” Id. (quotation
omitted). “Malice under the common law means that the defendant made the statement

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from ill will and improper motives, or causelessly and wantonly for the purpose of injuring
the plaintiff.” Maethner, 929 N.W.2d at 873 (quotation omitted).
Aase asserted the defense of qualified privilege in district court, but it was not
necessary for the district court to address it given its summary-judgment ruling. Although
we may affirm a grant of summary judgment “if it can be sustained on any grounds,” Doe
76C, 817 N.W.2d at 163, we generally address only those issues that were presented to and
considered by the district court, Thiele v. Stich , 42 5 N.W.2d 580, 582 (Minn. 1988).
Moreover, Aase acknowledges that there “does not appear to be any binding precedent
from the state of Minnesota” regarding whether qualified privilege protects statements
made in online reviews. Given the lack of clear precedent regarding whether qualified
privilege protects the online statements at issue here, the possibility of overcoming th at
defense at the summary-judgment stage if there is a genuine issue of material fact regarding
malice, and our decision to reverse the grant of summary judgment regarding two of Aase’s
allegedly defamatory statements, we do not decide the qualified-privilege issue for the first
time in this appeal.
In conclusion, w e reverse and remand for further proceedings on Aase’s claim
against Hamilton and Hamilton’s defamation claims that are based on Aase’s statements
that Hamilton stole the cat and cannot be trusted . We affirm the grant of summary
judgment on the remaining defamation claims.
Affirmed in part, reversed in part, and remanded.