Nygard v. City of Orono

Background

Kendall Nygard brought a one-count state-law malicious-prosecution claim against the City of Orono. The claim concerned criminal charges filed against Kendall under Orono City Code section 86-66(b), which requires a zoning permit before certain land-alteration or hardcover work is performed. The provision states that the permit must be obtained by the individual performing the work. A separate provision requires the property owner or occupant to obtain an after-the-fact permit when work has been done in violation of the building code or zoning requirements.

In October 2019, Jay Nygard began concrete driveway work at property that he and Kendall owned in Orono. City Building Official Roger Peitso told Jay that he needed an after-the-fact permit. Jay submitted an application but did not pay the required fee and did not accept all of the conditions listed by the City. In December 2019, Community Development Director Jeremy Barnhart referred both Jay and Kendall to the City Attorney for prosecution. Barnhart testified that he included Kendall because she was a property owner, although he did not know who performed the work. City Attorney Steve Tallen later filed separate criminal complaints against Kendall and Jay.

A state court judge found probable cause for the charge against Kendall. During the August 2020 trial, the judge dismissed Kendall’s charge because section 86-66 applied to the person performing the work and the City could not prove Kendall’s personal involvement. Jay was acquitted. The state judge stated that the City and the Nygards had acted in good faith.

Claim and Summary-Judgment Standard

The City moved for summary judgment on Kendall’s malicious-prosecution claim. Summary judgment is appropriate when the record shows no genuine dispute over a fact that could affect the result and the moving party is entitled to judgment under the law.

Under Minnesota law, Kendall had to prove four elements: the City prosecuted her; it lacked probable cause or a reasonable belief that it would prevail; it acted with malicious intent; and the prosecution ended in her favor. The court focused on malice, which requires evidence that the City knowingly and willfully instituted a groundless prosecution. Malice is separate from probable cause, so a lack of probable cause does not automatically establish malice.

Court’s Analysis

The court rejected Kendall’s argument that the alleged lack of probable cause showed malice. The state judge’s probable-cause finding created an initial showing that probable cause existed, and Kendall identified no evidence that City Attorney Tallen relied on intentionally false statements. The court also noted that the record did not support a finding for Kendall on probable cause, although it did not need to resolve that issue because of its ruling on malice.

The court also rejected Kendall’s argument that Barnhart maliciously grouped her with Jay in the prosecution referral. Barnhart testified that he referred both property owners because he believed they were responsible for obtaining the required permits. Kendall did not identify evidence contradicting that testimony or showing that Barnhart knew she was entirely uninvolved in the work or later communications.

The court found no evidence connecting former mayors or a former city council member to Kendall’s prosecution. It also found that Kendall’s speculation about hostility by City officials did not create a genuine factual dispute. The court rejected the argument that the permit dispute itself showed malice, explaining that a good-faith disagreement is not malicious intent.

Finally, the court observed that Kendall did not argue or present evidence that Tallen acted with malicious intent. Tallen stated that he independently reviewed the materials and exercised his professional judgment rather than filing charges automatically after a City referral. His testimony that he believed the evidence supported charges against both property owners was undisputed.

Disposition

The court held that no reasonable factfinder could conclude from the record that the City knowingly and willfully instituted a groundless prosecution. It therefore granted the City of Orono’s motion for summary judgment and dismissed the action. Because that ruling resolved the case, the court did not address the City’s immunity arguments or Kendall’s arguments concerning official immunity.