                         This opinion will be unpublished and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                        UNPUBLISHED OPINION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
