Helen R. Krahn v. Barbara E. Meyer-Spidell

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 21, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1838 Cir. Ct. No. 2020CV122

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

HELEN R. KRAHN, SPECIAL ADMINISTRATOR FOR THE ESTATE OF JAMES J.
KRAHN, KEVIN KRAHN, CATHERINE SKELDING AND JOHN KRAHN,

PLAINTIFFS-APPELLANTS,

V.

BARBARA E. MEYER-SPIDELL,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Waukesha County:
RALPH M. RAMIREZ, Judge. Affirmed.

Before Neubauer, Grogan and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP1838

¶1 PER CURIAM. Helen R. Krahn, Special Administrator for the
Estate of James J. Krahn, Kevin Krahn, Catherine Skelding and John Krahn
(collectively, “the Krahns”) appeal an order granting summary judgment to
Barbara E. Meyer-Spidell in this libel action. We conclude the allegedly libelous
statements were made in connection with investigatory proceedings, and they are
therefore absolutely privileged. We affirm.

BACKGROUND

¶2 The Krahns allege that during his life, James Krahn made gifts of
real and personal property to Meyer-Spidell that were obtained as a result of her
undue influence and fraud. In 2018, James Krahn, who died during the pendency
of this action, filed a civil lawsuit against Meyer-Spidell. The New Berlin Police
Department also commenced a criminal investigation of Meyer-Spidell led by
Sergeant Ryan Park. On August 7, 2019, police executed a search warrant at
Meyer-Spidell’s home, seized her personal property, and arrested her on suspicion
of fraud and elder abuse.

¶3 On September 3, 2019, Meyer-Spidell hand-delivered to
Sergeant Park a one-page letter with a lengthy series of attachments. We need not
recite the full content of the letter here. For purposes of this libel action, it is
sufficient to note that the letter leads with Meyer-Spidell’s intention to “establish
that I never took advantage of anyone.” Meyer-Spidell asserted that her receipt of
property was “related to business relations” and that she had “exculpatory
evidence” proving that she was innocent and that she “never had any power and
influence as compared to [Krahn].”

¶4 Of particular interest to the Krahns for purposes of this litigation was
the following paragraph:

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I will be seeking punitive damages against all those
involved in this conspiracy. What Krahn has done to me is
tantamount to labor-trafficking, sex trafficking, solicitation,
extortion, fraud, and is illegal. He has virtually run my
good name into the ground, and caused everyone much
ado, in order to detract from the truth whatever he could.
He has used lies and confusion as a tool, to escape the
music, and seemingly cover his tracks. Please do not
believe the Krahn’s [sic].

¶5 In 2020, the Krahns filed the present libel action against
Meyer-Spidell, alleging that the contents of the letter to Park were false and
damaging. Following discovery, Meyer-Spidell moved for summary judgment,
which the circuit court granted following a hearing.1 Among other things, the
court concluded that Meyer-Spidell’s statements to law enforcement were “made
in an attempt to defend herself from the plaintiffs’ allegations. They are privileged
in that respect.” The Krahns now appeal.

DISCUSSION

¶6 We review a grant of summary judgment de novo using a
well-established methodology.2 Chapman v. B.C. Ziegler and Co., 2013 WI App
127, ¶2, 351 Wis. 2d 123, 839 N.W.2d 425. Summary judgment should be

1
The Krahns assert that there is a genuine issue of material fact created as a result of
Meyer-Spidell’s invocation of her Fifth Amendment right to silence during her deposition. As
stated below, we need not reach this issue because we conclude Meyer-Spidell’s statements in the
letter to Park were absolutely privileged.
2
Meyer-Spidell argues for a “clearly erroneous” standard of review. That standard of
review applies to a circuit court’s factual findings, of which there were none here.
Meyer-Spidell’s argument on this point is self defeating: had the circuit court made any findings
regarding disputed facts, summary judgment would have been improper. See State Bank of
La Crosse v. Elsen, 128 Wis. 2d 508, 515-16, 383 N.W.2d 916 (Ct. App. 1986).

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granted if there is no genuine issue as to any material fact and a party is entitled to
judgment as a matter of law. WIS. STAT. § 802.08(2) (2021-22).3

¶7 To prevail on their libel claim, the Krahns would have to prove the
following elements: (1) a false statement; (2) communicated by speech, conduct,
or in writing to a person other than the person defamed; and (3) that the
communication is unprivileged and is defamatory—i.e., it tends to harm one’s
reputation so as to lower him or her in the estimation of the community or to deter
third persons from associating with or dealing with the person. See Mach v.
Allison, 2003 WI App 11, ¶12, 259 Wis. 2d 686, 656 N.W.2d 766.

¶8 This appeal turns on whether Meyer-Spidell’s letter was privileged.
Our supreme court has identified several categories of absolutely or conditionally
privileged statements that do not give rise to a claim for libel. See generally
Bergman v. Hupy, 64 Wis. 2d 747, 221 N.W.2d 898 (1974).

¶9 One such category is statements made to law enforcement officers.
The rule is that such statements are conditionally privileged provided that the
allegedly damaging statements are made in good faith without malice. Id. at 751.
The purpose of the conversation is key to this privilege: the privilege is afforded
to those who make a statement for the purposes of apprehension and conviction of
one who has committed a crime. Id.

¶10 Another privileged category is for statements made during an
investigatory proceeding. Such statements are afforded an absolute privilege,

3
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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regardless of whether they were made with malice. This category includes
statements made to a grand jury or to a district attorney in seeking the issuance of
a criminal complaint as such proceedings “are an integral part of the regular
course of justice.” Id. at 753-54. However, this category can also include “the
furnishing of preliminary information to officers charged with the duty of
enforcing the law against offenders[.]” Schultz v. Strauss, 127 Wis. 325, 331, 106
N.W. 1066 (1906), quoted with approval in Bergman, 64 Wis. 2d at 753.

¶11 While the case law does not provide for a clear delineation between
these categories—indeed, there appears to be some overlap—we are satisfied that
the circumstances of this case fall within the scope of the latter rule.4 At the time
Meyer-Spidell sent her letter, she was undoubtedly aware that she was the target of
a criminal investigation. Approximately one month prior to sending the letter, her
home had been searched, and some of her personal property had been seized
pursuant to a judicially authorized warrant. She had been arrested during the
execution of the warrant on suspicion of elder abuse and fraud.5

¶12 The content of the letter, too, undisputedly established the letter was
an attempt to extricate herself from the criminal investigation. The letter was
directed to the law enforcement officer leading the investigation. It specifically

4
Though some cases can be read as intimating that the absolute privilege for statements
made during investigatory proceedings might be limited to statements made during formal
hearings, see Converters Equip. Corp. v. Condes Corp., 80 Wis. 2d 257, 266-67, 258 N.W.2d
712 (1977), neither Schultz v. Strauss, 127 Wis. 325, 106 N.W. 1066 (1906), nor Bergman v.
Hupy, 64 Wis. 2d 747, 221 N.W.2d 898 (1974), has been overruled, and both stated otherwise.
In particular, the latter case involved statements to an assistant district attorney outside of any
formal proceeding. Bergman, 64 Wis. 2d at 748.
5
According to Meyer-Spidell, she was subsequently charged with those offenses. That
prosecution was apparently dismissed for lack of probable cause.

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states that the same information would be provided to the district attorney in an
effort to forestall criminal charges. And, the allegedly defamatory statements in
her letter relate to the subject matter of the investigation as they include an
alternative portrayal of her relationship with Krahn and an attempt to paint herself
as an innocent party who was herself wronged.

¶13 Having concluded that Meyer-Spidell’s letter was absolutely
privileged, we need not decide the other issues the parties raise, including whether
the statements would otherwise be conditionally privileged. See City of
Waukesha v. Town Bd. of Town of Waukesha, 198 Wis. 2d 592, 608, 543
N.W.2d 515 (Ct. App. 1995) (observing that this court need not decide other
issues raised when one issue is dispositive of the appeal).

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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