This opinion will be unpublished and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

A15-1262

Patrick Exner,

Appellant,

vs.

Minneapolis Public Schools, Special School District No. 1,

Respondent.

Filed May 9, 2016

Affirmed in part, reversed in part, and remanded

Connolly, Judge

Hennepin County District Court

File No. 27-CV-14-6149

Andrew P. Muller, Muller & Muller, PLLC, Minneapolis, Minnesota; and

Thomas J. Conley, Law Office of Thomas J. Conley, LLC, Minneapolis, Minnesota (for 

appellant)

Clifford M. Greene, Janine W. Kimble, Greene Espel PLLP, Minneapolis, Minnesota (for 

respondent)

Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and Reilly, 

Judge. 
2

U N P U B L I S H E D O P I N I O N

CONNOLLY, Judge

Appellant challenges the Minn. R. Civ. P. 50.01 dismissal of his Minnesota 

Government Data Practices Act and defamation claims against his former employer, 

respondent school district. Appellant argues that he presented sufficient evidence of 

(1) disclosure of private personnel data and (2) actual malice, to survive respondent’s 

motion for judgment as a matter of law. We affirm in part, reverse in part, and remand.

FACTS

Appellant Patrick Exner was employed at Ubah Medical Academy (Ubah) as an 

assistant director from July 2011 to July 2013. Appellant resigned his position at Ubah on 

July 31, 2013 upon being hired by respondent, Minneapolis Public Schools, Special School 

District No. 1 (MPS), to be the principal of Washburn High School (Washburn). On 

August 5, 2013, school district officials, along with several other education officials around 

Minnesota, received an anonymous e-mail accusing appellant of student-testing 

improprieties while working for Ubah. As a result, on August 6, 2013, appellant was 

placed on involuntary, paid, administrative leave. Following a meeting with the parents of 

Washburn students, the MPS superintendent issued a letter on August 8, 2013 stating that 

appellant would no longer be Washburn’s principal. The relevant parts of the letter are as 

follows:

I believe that [Washburn] needs a leader who will 

accelerate the positive momentum that has been building over 

the past few years. Due to the recent issues regarding 

[appellant], I have decided that he will no longer serve as 

Washburn’s Principal.
3

. . . .

The issues surrounding [appellant’s] hiring have created 

an additional distraction that we cannot allow to continue. We 

are glad that the issue was brought to our attention, although 

we would have preferred to learn of any possible issues of 

concern during the hiring process and before the job offer was 

made. [MPS] conducted a thorough hiring process for the 

Washburn principal position, including references calls, and 

nothing surfaced as a potential problem.

Although appellant could have been reassigned to another principal position in the district 

he was not and appellant was finally terminated on September 10, 2013. 

The hiring, subsequent placement on leave, and eventual termination was 

thoroughly documented in the newspapers, particularly by Star Tribune reporter, S.B. In 

an article published on August 9, 2013, forming the basis for appellant’s defamation claim, 

S.B. wrote: “[MPS] also wants to terminate [appellant] from the district payroll, [S.A., 

spokesman for MPS] said, adding that [MPS] was negotiating with the union representing 

officials.” At trial, S.B. claimed he accurately paraphrased S.A., while S.A. denied ever 

making the statement. On May 4-7, 2015, a jury trial was held in which appellant alleged 

violations of the Minnesota Government Data Practices Act (MGDPA) and defamation. 

After hearing motions for a judgment as a matter of law (JMOL) from both parties, the 

district court judge granted respondent’s motion for JMOL on both the MGDPA and 

defamation claims and issued its opinion on June 4, 2015. 

In that thoughtful opinion, the district court concluded that there was no MGDPA 

violation because the letter from the superintendent to the parents “does not divulge 

information about the nature of the complaint made against [appellant]” and that a 

statement that appellant would no longer serve as Washburn’s principal does not constitute 
4

a violation of the MGDPA because the public has a right to know the principal’s name at 

a major metropolitan high school. Regarding the defamation claim, the district court held

that, because appellant was a public official, S.A.’s statement regarding MPS’ desire to 

terminate appellant needed to be made with actual malice. The district court found that the 

statement was not made with actual malice because there was no evidence that S.A. had 

feelings of ill will toward appellant.

D E C I S I O N

“Under Minn. R. Civ. P. 50.01, the court may grant judgment as a matter of law if 

a party has been fully heard on an issue and there is no legally sufficient evidentiary basis 

for a reasonable jury to find for that party on that issue.” Bahr v. Boise Cascade Corp., 

766 N.W.2d 910, 919 (Minn. 2009) (quotation omitted). A de novo standard of review 

applies to a Rule 50.01 motion for JMOL made during trial. Jerry’s Enters., Inc. v. Larkin, 

Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 816 (Minn. 2006) (quoting J.N. Sullivan 

& Assocs. v. F.D. Chapman Constr. Co., 304 Minn. 334, 336, 231 N.W.2d 87, 89 (1975). 

We review grants of JMOL motions under the standard that evidence must be viewed “in 

the light most favorable to the party against whom judgment was granted.” Fabio v. 

Bellomo, 504 N.W.2d 758, 761 (Minn. 1993); see Bahr, 766 N.W.2d at 919 n.11.

I. The district court did not err in granting JMOL on the MGDPA claim.

Appellant first challenges the district court’s grant of JMOL on appellant’s MGDPA 

claims. “Whether [a school district] disseminated personnel data in violation of the 

MGDPA involves our construction of the MGDPA, which is a question of law subject to 

de novo review.” Navarre v. South Washington Cnty. Schools, 652 N.W.2d 9, 22 (Minn. 
5

2002). The purpose of the MGDPA is to reconcile the right to protect personal information 

from disclosure with the public’s right to know what the government is doing. KSTP-TV 

v. Ramsey County, 806 N.W.2d 785, 788 (Minn. 2011). The MGDPA “regulates the 

collection, creation, storage . . . dissemination, and access to government data in 

government entities.” Minn. Stat. § 13.01 (2014). With respect to complaints or charges 

against a government employee: 

A government entity’s public comments before final 

disposition of any disciplinary action are limited to the possible 

existence of a complaint or complaints or charges against a 

government employee. Any disclosure by the government 

entity during the investigation that describes any quality or 

characteristic of the complaint, whether general or specific,

goes beyond the mere existence of the complaint, and therefore 

violates [Minn. Stat. § 13.43, subd. 2(a)(4)].

Navarre, 652 N.W.2d at 22-23. In Navarre, a school district commenced an investigation 

against a teacher after receiving a series of complaints from teachers, students, and parents 

about her performance. Id. at 16. The court found that: (1) the use of “medical” in 

conjunction with the word “leave” in a letter to parents did not violate the MGDPA; 

(2) disclosing that there were “numerous” complaints against Navarre did not violate the 

MGDPA; (3) the characterization of the complaints as “sometimes alarming” violated the 

MGDPA because Navarre was “readily identifiable” when the statement was read in 

context and went to the nature of the complaint; (4) disclosing that the school district had 

received “multiple calls” about Navarre did not violate the MGDPA because the number 

of complaints is public data; (5) the disclosure that Navarre had other problems, that 

children were not having the same problems in other classrooms, and that the district had 
6

been working with the teacher to help her learn better classroom management were 

violations of the MGDPA because they describe the nature and character of the complaints 

or charges during the investigation; (6) informing the public in a press release that Navarre 

was being suspended, that the children were having difficulty learning the curriculum and 

that concerns shifted from concern about student performance to concern about the 

teacher’s teaching methods violated the MGDPA because they described the nature, 

character, and status of the complaints; (7) a statement that children were not learning 

violated the MGDPA because it disclosed more than the existence and status of any 

complaints by commenting on the specific facts; and (8) a letter by the human resources 

manager that said that she had received complaints from parents and students did not 

violate the MGDPA but the part of the letter saying the complaints involved “Ms. Navarre’s 

classroom management and instructional methods” violated the MGDPA.” Id. at 23-29.

In this case, appellant alleges that when the superintendent sent a letter to the parents 

that stated that MPS was investigating charges against appellant, and revealed that because 

of his “recent issues” she had decided that he would no longer be principal of Washburn, 

she violated the MGDPA by revealing more than the existence of a complaint. We 

disagree. The superintendent’s letter referencing appellant’s “recent issues” is more akin 

to the school district in Navarre disclosing that there were “numerous” complaints. Id. at 

24. The letter in no way references the nature, character, or status of the complaint, not 

even hinting at the fact that he was under investigation for tampering with test results. The 

mere presence of complaints generated additional distractions and therefore all respondent 
7

did was disclose the existence of complaints and inform the parents that MPS had decided 

to hire a different principal.

We conclude that the district court did not err as a matter of law in finding that 

appellant failed to state a claim under the MGDPA.1

II. The district court erred in granting JMOL on the defamation claim.

To establish a defamation claim, a plaintiff must prove 

three elements: (1) the defamatory statement is “communicated 

to someone other than the plaintiff,” (2) the statement is false, 

and (3) the statement “tend[s] to harm the plaintiff’s reputation 

and to lower [the plaintiff] in the estimation of the 

community.” If the defamation “affect[s] the plaintiff in his 

business, trade, profession, office or calling,” it is defamation 

per se and “thus actionable without any proof of actual 

damages.” 

Bahr, 766 N.W.2d at 919-20 (quoting Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 

255 (Minn. 1980)).

The statement at issue appears in an article published by the Star Tribune reporter 

S.B. which states: “[MPS] also wants to terminate [appellant] from the district payroll, 

[S.A.] said, adding that [MPS] was negotiating with the union representing officials.” S.B.

stated that he accurately paraphrased S.A.’s statement when directly questioned about the 

article, but refused to comment further citing the newsperson’s privilege. See Minn. Stat. 

§ 595.022 (2014) (“In order to protect the public interest and the free flow of information, 

the news media should have the benefit of a substantial privilege not to reveal sources of 

 

1 Because we conclude that the district court did not err in dismissing the MGDPA claim, 

we do not reach appellant’s argument regarding whether respondent is entitled to JMOL 

because the claim was added on the eve of trial.
8

information or to disclose unpublished information. To this end, the freedom of press 

requires protection of the confidential relationship between the news gatherer and the 

source of information.”). S.A. denies making the statement. At trial, S.A. conceded that 

the district was not seeking appellant’s termination as of the date the statement was 

published and that he knew that the statement in the article was false at the time it was 

published. The district court assumed, for JMOL purposes, that the information came from 

S.A. But the court still found that there was no evidence or allegation that S.A. had feelings 

of ill-will toward appellant and therefore did not meet the actual malice required. In so 

finding the court stated:

Under the higher constitutional standard, there is no evidence 

regarding the context by which [S.A.] made the allegedly 

defamatory statement. Aside from the [S.B.] article, no other 

media report indicated that the District wanted to terminate 

[appellant] from its payroll. With respect to the emails 

exchanged prior to the [S.B.] article, [S.B.] sought 

confirmation that the District wanted to terminate [appellant] 

and was working through the principal forum. Although 

indicating that [S.B.] could mention the principal’s forum, 

neither [S.A.] nor [H.] would provide confirmation for the 

allegedly defamatory statement. Instead, [H.], citing [S.A.], 

specifically indicated that this information was not official; 

while [S.A.] responded that [appellant] was on administrative 

leave but would not return to Washburn. These facts do not 

indicate, with convincing clarity, that [S.A.] acted with a 

“reckless disregard” for the truth. For these reasons, 

[appellant] has not sustained his burden of establishing malice. 

Without evidence of malice, [S.A.] is protected by a qualified 

privilege; while [appellant], as a public official, cannot sustain 

a claim for defamation. Therefore, [appellant’s] claim for 

defamation fails. 

“The law recognizes essentially two definitions of malice in defamation cases: The 

‘actual malice’ definition as set forth in New York Times Co. v. Sullivan, 376 U.S. 254, 
9

279-80, 84 S. Ct. 710, 726 (1964), and the common-law definition.” Lewis v. Equitable 

Life Assur. Soc. of the U.S., 389 N.W.2d 876, 890-91 (Minn. 1986). “When the plaintiff is 

a public official and the statement relates to the individual’s official conduct, the plaintiff 

must prove not only that the statement was false, but also that the statement was made with 

actual malice.” Weinberger v. Maplewood Review, 668 N.W.2d 667, 673 (Minn. 2003) 

(citing Britton v. Koep, 470 N.W.2d 518, 520 (Minn. 1991)). In Minnesota, teachers 

asserting a claim of defamation are deemed to be public officials. Elstrom v. ISD No. 270, 

533 N.W.2d 51, 56 (Minn. App. 1995). It follows that principals are also considered public 

officials. 

In common law defamation, even though an untrue defamatory statement has been 

published, the originator of the statement will not be held liable if the statement is published 

under circumstances that make it conditionally privileged and if the privilege is not abused. 

Lewis, 389 N.W.2d at 890. 

[A] communication, to be privileged, must be made upon a 

proper occasion, from a proper motive, and must be based upon 

reasonable or probable cause. When so made in good faith, the 

law does not imply malice from the communication itself, as 

in the ordinary case of libel. Actual malice must be proved, 

before there can be a recovery, and in the absence of such proof 

the plaintiff cannot recover.

Stuempges, 297 N.W.2d at 256-57. If a party is entitled to a qualified privilege for its 

statements, that qualified privilege is lost if the plaintiff demonstrates that the defendant 

acted with actual malice. Id. It is undisputed that respondent is entitled to a qualified 

privilege in this case. Therefore, regardless of whether we are applying the New York

Times v. Sullivan standard or the Minnesota common law with a qualified privilege 
10

standard, if respondent made the statement with actual malice, the district court erred in 

granting JMOL.

Under the common law definition, used by the district court, actual malice requires 

a showing that the defamatory statements are “made from ill will and improper motives, or 

causelessly and wantonly for the purpose of injuring the plaintiff.” Bahr, 766 N.W.2d at 

920 (quotation omitted). Malice is not proved merely by the fact that the statement has 

been made or by the fact that the statement is later proven to be false. Id. But the Minnesota 

Supreme Court has distinguished between good and bad faith in making false statements. 

Id. at 922. “Making a false statement knowing that it is false constitutes bad faith, and if 

it appears that the publisher knows the statement he makes is false, we need go no further 

in examining the question of actual malice.” Id. (quotation omitted). New York Times v. 

Sullivan defines actual malice as making a statement with “knowledge that [the statement] 

was false or [was made] with reckless disregard of whether it was false or not.” New York 

Times v. Sullivan, 376 U.S. at 726. Therefore, if the statement was made with knowledge 

of its falsity, the statement was made with actual malice. 

In this case if we assume that S.A. made the statement, as we must looking at the 

evidence in the light most favorable to the party against whom JMOL was granted,

2

then 

if S.A. knew the information was false at the time the statement was allegedly made, it was 

made with actual malice. When S.A. was asked “You knew that in fact on August 9th the 

 

2 The district court also assumed that S.A. made the statement in its grant of JMOL, stating: 

“Given the email communications between the parties, however, together with [S.B.’s] 

testimony that the paraphrased information came from [S.A], the [c]ourt will assume, for 

the purposes of this motion, that [S.A] made the statement in question.”
11

District was not working to terminate [appellant’s] employment?” he responded “Yes, I 

did.” S.A. knew that the statement was not true as of the date the statement was released. 

Therefore, for purposes of a JMOL motion, appellant met his burden of showing actual 

malice. The district court erred in finding that, as a matter of law, there was no actual 

malice and the case must be remanded for a new trial in order to determine if S.A. made 

the statement in question, a clear question of fact for the jury.

Respondent’s argument that S.B. only testified by reading words reflected in the 

article is inaccurate. S.B. clearly testified that S.A. “was the source of the information in 

the article about the [MPS] working to terminate [appellant’s] employment.” This 

testimony from cross-examination at trialshows that S.B. testified to more than just reading 

what was written in the newspaper article.

We now address respondent’s additional claim that S.B.’s testimony should be 

stricken from the record because respondent was not able to conduct meaningful crossexamination of S.B. thus leaving no competent evidence that S.A. made the allegedly 

defamatory statement. The district court ruled against respondent’s motion in limine to 

exclude S.B.’s testimony on that basis. Because respondent did not file a related appeal of 

that decision, the issue of whether or not the district court properly admitted S.B.’s

testimony is not properly before this court. At oral argument, respondent contended the 

issue was preserved for appeal because it listed it in respondent’s statement of the case and 

as one of the issues in respondent’s brief. We disagree. An issue decided adversely to 

respondent is not properly before an appellate court if notice of review is not filed. City of 

Ramsey v. Holmberg, 548 N.W.2d 302, 305 (Minn. App. 1996), review denied (Minn. 
12

Aug. 6, 1996). Failure to file a notice of review limits issues on appeal to those properly 

raised by appellant. Nordling v. Northern States Power Co., 465 N.W.2d 81, 87 (Minn. 

App. 1991).3 

As a result, in order to find for respondent that there is no competent evidence that 

S.A. made the allegedly defamatory statement, we must find that S.B. provided no 

competent evidence in his testimony that S.A. actually made the statement. At trial, S.B.

was asked “Did you base your story or your article [containing the allegedly defamatory 

statement] on what [S.A.] told you?” and he responded “Part of the article is based on what 

[S.A.] told me. Part of it is based on a statement issued by [the superintendent]. Part of it 

is based on previous reporting involving District principal searches.” S.B. was then asked 

“was [S.A.] . . . the source of the information in the article about the Minneapolis Public 

Schools working to terminate [appellant’s] employment[?]” to which [S.B.] responded 

“Absolutely.” We conclude that this is sufficient, competent evidence that S.A. made a 

defamatory statement, and we conclude that the defamation claim should have gone to the 

 

3

It is true that in its statement of the case, respondent listed “[w]hether [appellant] 

presented sufficient evidence that [S.A.] made certain statements to a reporter, when [S.A.] 

denied making the statements, the reporter presented only hearsay testimony about what 

[S.A.] may have said, and the reporter invoked the reporter’s privilege, insulating himself 

from cross-examination” as an issue raised but not ruled on. However, as previously 

discussed, the district court did specifically rule on this issue when it denied respondent’s 

motion in limine. In its ruling, the district court denied the motion to exclude the testimony 

of S.B. and dismiss all claims based on the statement S.A. allegedly made to S.B. The 

district court stated that respondent’s argument was based on S.B.’s testimony constituting 

hearsay, paraphrasing S.A., and that S.B’s refusal to answer certain cross-examination 

questions deprived it of its due-process rights. If respondent wanted to raise these 

arguments again then it needed to appeal the district court’s decision. In reaching this 

conclusion, we find no fault with respondent’s counsel. Deciding what rulings to appeal 

and how to frame issues is more of an art than a science.
13

jury to determine if a defamatory statement was actually made. Consequently, we remand 

the case to the district court for a jury trial on appellant’s defamation claim.

Affirmed in part, reversed in part, and remanded.