This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-2080
Joan Nichols,
Respondent,
v.
State of Minnesota, Office of the Secretary of State, et al.,
Appellants.
Filed August 22, 2016
Reversed
Rodenberg, Judge
Ramsey County District Court
File No. 62-CV-12-7326
Robert M. McClay, McClay and Alton, PLLP, St. Paul, Minnesota (for respondent)
Lori Swanson, Attorney General, Michael Goodwin, Assistant Attorney General,
Kathryn A. Fodness, Assistant Attorney General, St. Paul, Minnesota (for appellants)
Considered and decided by Rodenberg, Presiding Judge; Peterson, Judge; and
Bjorkman, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellants Office of the Minnesota Secretary of State (OSS), Mark Ritchie, and
Beth Fraser challenge the district court’s denial of their motion for summary adjudication
of dismissal of respondent Joan Nichols’s fraudulent-inducement claim on official-
immunity grounds. We reverse.
FACTS
This case arises from Nichols’s brief employment by OSS in 2012 as
communications director. The basic facts underlying the dispute are set forth in our
opinion in an earlier appeal. Nichols v. State, Office of Secretary of State, 842 N.W.2d
20, 28 (Minn. App. 2014), aff’d, 858 N.W.2d 773 (Minn. 2015).
Nichols’s amended complaint alleged five counts including: (I) false inducement
of employment, under Minn. Stat. §§ 181.64, .65 (2014); (II) common-law fraudulent
inducement; (III) common-law fraudulent concealment; and (IV) promissory estoppel.1
Nichols alleges that her duties after she was hired by OSS were inconsistent with the
pre-hire representations made to her. Nichols contends that she would not have left other
employment in Ohio to accept the position of communications director had she known
the representations made to her were false.
Appellants moved to dismiss all of Nichols’s claims for failure to state a claim
upon which relief could be granted. Appellants argued that Minn. Stat. § 181.64 does not
expressly or unmistakably apply to the state and that Nichols’s common-law claims are
therefore barred by sovereign immunity. The district court granted the motion in part, but
denied summary judgment on the statutory cause of action for false inducement of
employment, and the common law claims of fraudulent inducement and fraudulent
concealment. Appellants appealed, and we reversed, holding that the state is immune
from suit on a statutory claim of false inducement of employment. Nichols, 842 N.W.2d
1
Nichols initially asserted other causes of action. We address only the claims advanced
in the amended complaint.
2
at 28. The Minnesota Supreme Court granted review, and affirmed. Nichols v. State,
Office of Secretary of State, 858 N.W.2d 773, 779 (Minn. 2015).
When the case returned to the district court on the remaining common-law counts,
appellants moved for summary judgment on immunity grounds. The district court
summarily dismissed Nichols’s common-law fraudulent-concealment and
promissory-estoppel claims. It denied the motion to summarily dismiss the common-law
fraudulent-inducement claim, determining that genuine issues of material fact existed
concerning misrepresentations about the nature of the communications director’s
relationship with the media. The district court noted that the job description had stated
that the communications director would “provide news media with information and
answers to relevant questions” and that many of the interview questions asked of Nichols
had specifically focused on her experience “dealing directly with the media.” The district
court concluded that these representations and questions asked of Nichols arguably
conflicted with job duties that had previously been assigned to Pat Turgeon, the assistant
communications director. The district court determined that a jury could reasonably find
that Nichols’s “actual duties were limited to internal communications policies rather than
the external communications allegedly represented to her as part of her job. Indeed, one
of the reasons for Nichols’s non-certification was her attempt to engage in external media
communications against the direction of Fraser.” And the district court determined that
this evidence is sufficient to overcome the motion to summarily dismiss Nichols’s claims
based on appellants’ immunity defense.
3
The district court also reasoned that genuine issues of material fact existed
concerning representations made in the job description and during the interview process
about the communication director’s responsibilities for organizing press conferences.
Nichols claims that a large part of her second interview was dedicated to the
press-conference issue, but that she later learned that Ritchie held press conferences only
rarely. Turgeon’s job description also provided that she would “coordinate and arrange
for press conferences,” and the record contains evidence that Turgeon arranged the only
two press conferences that occurred during Nichols’s employment.
Appellants appeal from the denial of their motion for summary judgment
concerning the common-law fraudulent-inducement claims. No appeal is taken from the
district court’s summary dismissal of Nichols’s other claims.
DECISION
An order denying summary judgment is immediately appealable under the
collateral-order doctrine when the motion is based on a claim of official immunity.
Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 218 (Minn. 1998). A
court reviewing a denial of summary judgment determines de novo whether genuine
issues of material fact exist. Mumm v. Mornson, 708 N.W.2d 475, 481 (Minn. 2006). A
genuine issue of fact exists when the evidence permits “reasonable persons to draw
different conclusions.” Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn.
2008) (quotation omitted). The evidence is viewed in the light most favorable to the
nonmoving parties, and all reasonable inferences are drawn in their favor. Id.
4
Appellants argue that the district court erred by concluding that genuine issues of
material fact preclude summary judgment on Nichols’s common-law
fraudulent-inducement claim. Appellants contend that, as a matter of law, common-law
official immunity applies and bars such a claim on this record.
The doctrine of common-law official immunity prevents public officials charged
by law with duties which call for the exercise of “judgment or discretion from being held
personally liable to an individual for damages.” Schroeder v. St. Louis Cty., 708 N.W.2d
497, 505 (Minn. 2006) (quotation omitted). The purpose of the doctrine is to enable
public officials “to perform their duties effectively, without fear of personal liability that
might inhibit the exercise of their independent judgment.” Mumm, 708 N.W.2d at 490.
The application of immunity is a question of law reviewed de novo, Gleason, 582
N.W.2d at 219, and “[t]he party asserting immunity has the burden of showing particular
facts demonstrating an entitlement to immunity,” Meier v. City of Columbia Heights, 686
N.W.2d 858, 863 (Minn. App. 2004), review denied (Minn. Dec. 14, 2004).
“Before we analyze the application of official immunity, we must first identify the
precise governmental conduct at issue.” Mumm, 708 N.W.2d at 490. The district court
identified six areas in which Nichols’s amended complaint identified that “her actual
position deviated from the represented position”: (1) Nichols’s role in working with
social media at OSS; (2) her role with the Minnesota Business Lien System; (3) her role
in providing strategic advice to Ritchie; (4) her preparation of Ritchie and others for
legislative testimony; (5) the description of the communication director’s relationship
with the media; and (6) her role in organizing press conferences.
5
Common-law official immunity does not protect officials from liability related to
the exercise of ministerial duties, but extends only to officials performing discretionary
functions. Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655
(Minn. 2004). Conduct is discretionary if it requires “individual professional judgment
that necessarily reflects the professional goal and factors of a situation.” Mumm, 708
N.W.2d at 490-91 (quotation omitted). Official immunity extends to discretionary
functions, except in the case of malicious or willful actions. Rico v. State, 472 N.W.2d
100, 106-07 (Minn. 1991).
The parties agree that all of the complained-of representations concerning the
position were discretionary functions. Therefore, whether official immunity applies
depends on whether there is a genuine issue of material fact concerning the existence of
willful or malicious conduct by appellants.
Malice has been defined as “the intentional doing of a wrongful act without legal
justification or excuse, or . . . the willful violation of a known right.” Id. (quotation
omitted). In the context of official immunity, an official acts with malice by intentionally
committing an act that he or she has reason to believe is legally prohibited. Id.
Generally, the existence of malice is a question of fact decided by the jury. Kelly v. City
of Minneapolis, 598 N.W.2d 657, 664 n.5 (Minn. 1999). But when there is no genuine
issue of material fact, malice may be decided as a matter of law. See Vassallo ex rel.
Brown v. Majeski, 842 N.W.2d 456, 465 (Minn. 2014) (deciding existence of malice as a
matter of law because undisputed facts established defendant did not maliciously violate
a known right of plaintiff). The Minnesota Supreme Court has
6
established a high standard for a finding of a willful or
malicious wrong in the context of common law official
immunity, by requiring the defendant to have reason to know
that the challenged conduct is prohibited . . . . The exception
anticipates liability only when an official intentionally
commits an act that he or she then has reason to believe is
prohibited.
Anderson, 678 N.W.2d at 662 (quotation omitted).
The district court found that a fair inference exists that the description of the
communications director’s relationship with the media and role in organizing press
conferences amounted to fraudulent misrepresentations by appellants. It concluded that
the remaining four identified actions of appellants were, as a matter of law, not malicious
or willful, a conclusion with which Nichols takes no issue on appeal. Appellants, citing
Kelly, argue that the district court failed to identify a “clearly established law or
regulation” prohibiting their conduct. 598 N.W.2d at 663; see also Rico, 472 N.W.2d at
107.
Fraudulent inducement is an intentional tort. See Stowman v. Carlson Cos., 430
N.W.2d 490, 492 (Minn. App. 1988) (“To establish fraudulent inducement, [a plaintiff]
must establish that [a defendant] falsely represented or omitted a material fact that was
susceptible of knowledge with the intent of inducing him to act . . . [and plaintiff] must
have justifiably relied on the representation or omission and suffered damages as a
proximate result of that reliance.”) (emphasis added). The district court relied on
LeBaron v. Minnesota Board of Public Defense to support its determination that
summary judgment based on appellants’ official immunity claim was inappropriate
because, generally, the “willful and intentional nature” of the tort of fraudulent
7
inducement establishes malice if the elements of the tort are proved. 499 N.W.2d 39, 41
(Minn. App. 1993), review denied (Minn. June 9, 1993); cf. Kelly, 598 N.W.2d at 663.
Because the district court concluded that there remained genuine and material issues of
fact on the issue of whether appellants committed the tort of fraudulent inducement, it
also concluded that official immunity did not, as a matter of law, bar Nichols’s claims.
Appellants argue that Nichols has failed to allege sufficient facts supporting her
fraudulent-inducement claim to overcome appellants’ official immunity. We examine
each of Nichols’s factual claims in turn.
Communication with the media
Nichols alleges that appellants misrepresented the communications director’s
responsibility for communication with the media. At oral argument, Nichols’s counsel
pointed to the language in the job description, which states that one of the
communications director’s “primary duties” is “providing news media with information
and answers to relevant questions.” Nichols testified in deposition that she had never
heard of a communications director who was not the “primary contact” for media
relations. She also points to questions asked of her during her second interview
suggesting that she would be the “primary contact.” Nichols alleges that she would not
have accepted the position had she known that Turgeon was and would remain the
primary media contact.
Nothing in the job description for the communications-director position identifies
that the director was to have primary responsibility for contacting the media, or that the
director would directly provide “news media with information and answers.” Moreover,
8
appellants point to undisputed evidence in the record that Nichols actually provided
advice, information, and answers to media inquiries through Turgeon during her six
weeks of employment with the OSS. The interview question posed to Nichols during the
interview, and on which Nichols relies, was: “One of the key tasks for the
communications director is advising the Secretary and the staff on whether and how to
respond to a story in the media. . . . What has been your experience dealing directly with
the media and advising others in their responses?” (Emphasis added.) The interview
question, when read in full, is preceded by the statement that the director would be
“advising the Secretary and the staff” concerning media responses. Assuming without
deciding that an interview question can amount to a representation for purposes of a
common-law fraudulent-inducement claim, nothing in this particular question represents
that the communications director was to have the responsibility to directly address media
questions. Our careful de novo review of the record reveals no evidence of a
representation to Nichols that she would have direct contact with the media. Because the
record reflects no genuine issues of material fact concerning the communication
director’s responsibility for communicating with the media, the record supports neither a
fact question concerning fraudulent inducement nor a fact question concerning any
willful or malicious conduct by appellants regarding communication with the media.
Press conferences
Nichols also argues that appellants misrepresented her role in organizing press
conferences. Nichols claims that she was not told until she started her position either that
9
Ritchie did not often hold press conferences or that Turgeon would be primarily
responsible for coordinating and arranging for press conferences.
Here again, nothing in the record supports the claim that appellants promised
Nichols that she would be solely, or even primarily, responsible for organizing press
conferences, or that appellants made any representations about the frequency with which
OSS would conduct press conferences. The job description provided only that the
position involved “organizing press conferences.” The undisputed evidence in the record
shows that Nichols did assist Turgeon in organizing the press conferences. Because the
record reflects no genuine issue of material fact concerning the communication director’s
responsibility for organizing press conferences, the district court erred in denying
summary judgment on this basis. There being no fact issue concerning any
misrepresentation of the position, there likewise can be none concerning willful or
malicious conduct by appellants. The claim is therefore barred by official immunity.
Vicarious official immunity
“Vicarious official immunity protects a governmental entity from liability based
on the acts of an employee who is entitled to official immunity.” Dokman v. Cty. of
Hennepin, 637 N.W.2d 286, 297 (Minn. App. 2001), review denied (Minn. Feb. 28,
2002). Appellants’ conduct is, as a matter of law, protected by common-law official
immunity. Therefore, appellants are entitled to vicarious official immunity.
Reversed.
10