author: HALBROOKS, Judge

text:
    COMMISSIONER OF NATURAL RESOURCES, Respondent, v. NICOLLET COUNTY PUBLIC WATER/WETLANDS HEARINGS UNIT, Respondent, and Gerhard Mertesdorf and William Bode, Objectors. Judy V. Bode and Linda I. Bode, Appellants, v. Minnesota Department of Natural Resources, et al., Respondents.
    No. C9-01-321.
    Court of Appeals of Minnesota.
    Aug. 21, 2001.

      Mike Hatch, Attorney General, Craig L. Engwall, Gregory J. Schaefer, Assistant Attorneys General, St. Paul, MN, (for respondent).
    Richard Brian Bates, St. Paul, MN, (for appellant).
    Considered and decided by HALBROOKS, Presiding Judge, WILLIS, and HANSON, Judges.
   OPINION

HALBROOKS, Judge

Appellants in this matter are the daughters of William Bode, the original landowner. A portion of appellants’ land was determined to be a protected wetland by a 1986 district court judgment reversing a prior administrative decision. Appellants’ earlier challenge to that judgment, based on lack of subject-matter jurisdiction, was unsuccessful.

Appellants subsequently moved to vacate the 1986 judgment of the district court based on lack of personal jurisdiction over their father, alleging that the notice of hearing on the appeal to the district court violated due-process requirements. The district court denied the motion, finding that the court had jurisdiction over appellants’ father through his participation in the administrative proceedings and that appellants waived the issue of personal jurisdiction through their subsequent participation in ongoing administrative proceedings regarding the wetland. Because we conclude that the notice of hearing did not violate Bode’s due-process rights and moreover, even if it had, appellants have waived the issue of personal jurisdiction, we affirm.

FACTS

In 1976 and again in 1979, the Minnesota Legislature directed the Commissioner of the Department of Natural Resources (DNR) to inventory the state’s public waters and to designate public waters and wetlands. The DNR inventoried the appellants’ farm and determined that a portion of the land met the definition of “wetlands.” (“Unnamed Wetland No. 52-26”). The effect of the wetland designation is to restrict the landowner’s right to drain or fill.

In August 1980, William Bode (Bode) and the adjoining land owner, John Mertesdorf, timely appealed the DNR’s classification to the Nicollet County Hearings Unit. Bode and Mertesdorf were represented by the same attorney. A hearing was held on August 18, 1980, and Bode, accompanied by counsel, testified in opposition to the classification. The hearings unit agreed and issued an order September 10, 1980, concluding that the DNR had improperly classified part of the Bode farm as a wetland.

The DNR appealed the hearings-unit order, but filed the appeal one day late. The notice of appeal was properly served on Bode’s counsel of record. Bode did not make any objection on the grounds that the district court lacked subject-matter or personal jurisdiction. The following year, in 1981, despite being warned not to drain the land during the appeals process, Bode installed a tile drainage system in the area designated as a wetland.

In the spring of 1986, after the appeal to the district court had been pending for several years, the DNR sent Bode a notice of hearing on its appeal together with DNR’s supporting memorandum. The notice was addressed to Bode and Mertes-dorf, but it did not list either individual as a party to the action. The notice stated that “petitioner [DNR] will seek reversal of the Nicollet County Hearings Unit’s Order concerning Zwinggi Lake (52-12) and Unnamed Wetland No. 52-26W.” In the interim, Bode had discharged his attorney.

Bode did not attend the June 2, 1986 hearing, but Mertesdorf did. The district court reversed the hearings unit and entered judgment on December 17, 1986. Bode appealed this determination, but his appeal was dismissed as untimely. Following the 1986 judgment, years of legal proceedings ensued between the Bodes and the DNR regarding the DNR’s efforts to restore the wetland located on the Bode farm.

In 1989, the DNR ordered Bode to restore the wetland by removing the tile drainage system. Bode did not challenge or obey the order, and in November 1991, the court authorized the DNR to enter the land and perform restoration. Appellants Judy and Linda Bode filed suit against the DNR, but the action was dismissed because the court held that as remaindermen, they had no possessory rights until the termination of their parents’ life estate. This court affirmed the district court. Bode v. Minnesota Dep’t of Natural Resources, No. C4-92-2038, 1993 WL 121266 (Minn.App. Apr.13,1993).

In March 1996, appellants brought a subsequent action in district court for damages resulting from the DNR’s destruction of part of their tile drainage system. The DNR moved for summary judgment and the court granted the motion by an order dated September 18,1997.

In 1998, in conjunction with the 1996 action, appellants made a motion under Minn. R. Civ. P. 60.02(d), arguing that the district court’s 1986 judgment was void because the DNR’s 1980 appeal had been untimely and, therefore, the court had lacked subject-matter jurisdiction to hear the appeal. The district court granted appellants’ motion to vacate, but this court reversed. Bode v. Minnesota Dep’t of Natural Resources, 594 N.W.2d 257 (Minn.App.1999). The Minnesota Supreme Court affirmed this court’s decision, holding that the district court erred in granting the motion to vacate because a collateral attack on the judgment was procedurally improper. Bode v. Minnesota Dep’t of Natural Resources, 612 N.W.2d 862, 866 (Minn.2000) (Bode I). The court went on to analyze the motion as a direct attack on the merits. The court deviated from the “traditional rule” that allowed for motions to vacate under rule 60.02(d) for lack of subject-matter jurisdiction to be filed at any time and mandated that such a motion be made within a “reasonable time.” The court recognized that

[i]t would be inequitable and contrary to the general desirability that judgments be final to vacate this judgment after such reliance over such a lengthy period of time. Therefore, we conclude that consideration of all attendant circumstances mandates our holding that the Bodes’ 1998 Rule 60.02(d) motion attacking the 1986 judgment or any subsequent motion directly attacking the 1986 judgment does not fall within the reasonable time limits of the Rule.

Id. at 870 (quotation omitted).

In October 2000, appellants filed another motion to vacate the 1986 judgment as void under Minn. R. Civ. P. 60.02(d). This time, appellants argued that the court lacked personal jurisdiction over Bode because the DNR’s notice of appeal was constitutionally inadequate. After a hearing, the district court denied the motion. The court did not address appellants’ due-process argument, but instead held that the court had acquired personal jurisdiction over Bode through his participation in the hearings-unit decision and that appellants waived the defense of lack of personal jurisdiction by “participating in proceedings regarding the wetland and by unreasonably delaying their motion.” This appeal follows.

ISSUES

1. Did the 1986 notice to Bode violate due process?

2. Did appellants waive the issue of personal jurisdiction by participating in other proceedings in this case?

ANALYSIS

I.

Appellants argue that the notice received for the 1986 hearing was constitutionally inadequate because it violated Bode’s due-process right to notice. “This court reviews de novo the procedural due process afforded a party.” Zellman ex rel. M.Z. v. Independent Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn.App.1999) (citation omitted), review denied (Minn. July 28,1999).

Due process requires that deprivation of property be preceded by notice and an opportunity to be heard. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985) (citation omitted). The concept of right to notice is that the right to be heard “has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). The degree of notice required does not follow one specific, technical definition but rather varies “with the circumstances and conditions of each case.” In re Christenson, 417 N.W.2d 607, 611 (Minn.1987) (citation omitted). For example, the supreme court has held that notice of public hearings must state that a property owner has the right to appeal and must indicate the time in which the appeal must be taken. Klapmeier v. Town of Center of Crow Wing County, 346 N.W.2d 133, 136 (Minn.1984). In another case, the supreme court found that published notice of the system mapping the state’s wetlands — the same type of notice Bode received in 1980 — was constitutional. Christenson, 417 N.W.2d at 613; see also In re Kindt, 642 N.W.2d 391, 394-96 (Minn.App.1996) (finding notice of termination of medical-assistance benefits adequate where notification acknowledged that the proposed benefit reduction was total, specified benefit-termination date, and cited reason for termination).

Based on Christenson, the notice Bode received for the 1980 wetland classification and designation was constitutionally adequate. Appellants do not dispute this. They also concede that the notice was properly served and timely. But appellants argue that the 1986 notice was inadequate to grant the court personal jurisdiction because it did not specifically inform Bode that a reversal of the hearings-unit decision would result in the removal of his drainage system. Appellants argue that the failure to expressly warn him of the threat to his property interest is unconstitutional.

Appellants rely on Schulte v. Transportation Unltd., Inc., 354 N.W.2d 830, 832, 835 (Minn.1984), that questioned whether a discharged employee was denied due process when a notice of appeal of his unemployment benefits failed to notify him that, if reversed, he would be liable for repayment of the benefits previously paid to him. In Schulte, the court recognized that “unless [a] person knows the consequences of the reversal of an initial decision,” there is little motivation for a person to attend a hearing that the person believes is moot. Id. at 834. The court held that “to be constitutionally sufficient, the notice must communicate the interest at stake * * * ” and concluded that “the notice in question is affirmatively misleading and results in a denial of due process.” Id. at 834, 835.

We find appellants’ reliance on Schulte misplaced because there are critical distinctions between this case and Schulte. A review of the record demonstrates that, unlike the appellant in Schulte, Bode knew of the potential consequences of a reversal of the hearings-unit decision. In Schulte, the appellant did not participate in any proceedings regarding his unemployment compensation, and the court expressly noted that Schulte, who had since found another job and was no longer receiving benefits, could not possibly have appreciated that he could be liable for benefits already received. Id. at 834. Conversely, here, Bode appeared with counsel and contested the wetland designation in 1980. Moreover, Bode had been warned not to alter the land during the pendency of the appeal. In 1980, his attorney was informed that Bode

would be taking a risk if [he] were to drain during the appeal and that the [DNR] would strongly consider taking appropriate criminal or civil action if 52-26 were drained without a DNR permit.

On May 20, 1981, Bode was advised that he “could not drain the wetland pending the outcome of the appeal.”

Appellants also argue that because Bode lacked “experience and sophistication in legal and administrative matters” and was not listed as a party, he may have thought the notice was misdirected and simply ignored it. But the notice was sent to both Bode and the adjoining landowner, Mertesdorf. Therefore, even if Bode did not remember that his land had been designated as “Unnamed Wetland No. 52-26W,” the appearance of Mertesdorfs name on the notice should have alerted Bode to the subject matter of the notice and its potential significance. Moreover, Bode retained counsel and petitioned for the original hearing on the wetland designation, based solely on a published notice, indicating that he appreciated the importance of the DNR classification. In addition, he participated in the 1980 hearing, was subsequently warned about the consequences of the wetland designation, and was involved in disputes with the DNR regarding the designation of the land between 1980 and 1986. To argue now that he lacked the “sophistication” to understand the importance of this notice is unconvincing. See State v. Pilla, 380 N.W.2d 207, 209 n. 1 (Minn.App.1986) (noting that pro se litigants are generally held to the same standards as attorneys).

Appellants suggest that to be constitutionally adequate, the notice must specifically state: “If MDNR is successful in its appeal the wetland cannot be drained and any drainage system will have to be removed.” In effect, appellants argue that, to be constitutionally valid, a notice document must list every possible outcome of an appeal. This is both unrealistic and unnecessary under the law. Because Bode knew or should have known the consequences of a reversal of the hearings-unit decision and the interests at stake, the notice did not violate his due-process right.

II.

Even if the notice was unconstitutional, we agree with the district court that appellants waived the issue so they can no longer assert the defense of lack of personal jurisdiction.

The decision to grant a motion to vacate is within the discretion of the district court, but a motion brought under Minn. R. Civ. P. 60.02(d) to vacate a judgment on grounds that it is void for lack of personal jurisdiction does not involve the exercise of discretion. Hengel v. Hyatt, 312 Minn. 317, 318, 252 N.W.2d 105, 106 (1977) (“If the judgment is void for lack of jurisdiction, it must be set aside without regard to such factors as the existence of a meritorious defense.”) The existence of personal jurisdiction is a question of law subject to de novo review. Hughs ex rel. Praul v. Cole, 572 N.W.2d 747, 749 (Minn. App.1997).

Appellants argue that the district court erred in finding that they waived the defense of lack of personal jurisdiction through their participation in the litigation. See generally D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92-S.Ct. 775, 31 L.Ed.2d 124 (1972) (indicating that in a civil suit defendant has a constitutional right to notice and an opportunity to defend, but that right can be waived).

The defense of personal jurisdiction is deemed waived if not raised as a defense, made by motion, or included in a responsive pleading. Minn. R. Civ. P. 12.08(a); see also Majestic, Inc. v. Berry, 593 N.W.2d 251, 258 (Minn.App.1999). In addition, rule 12.08 does not “preclude waiver by implication.” Patterson v. Wu Family Corp., 608 N.W.2d 863, 868 (Minn. 2000) (holding that a defendant waives the defense of insufficient service of process, despite asserting the defense by answer, by affirmatively invoking the jurisdiction of the district court to obtain partial summary judgment without earlier or simultaneously moving to dismiss the complaint for insufficient service of process) (citation omitted). It has long been the rule that

a party may, by consent, give jurisdiction over his person, and it follows as a consequence that, where there is any defect of jurisdiction, or it has ceased, he may waive the objection, and does so when he takes or consents to any step in the cause which assumes that jurisdiction exists or continues.

Quaker Creamery Co. v. Carlson, 124 Minn. 147, 150, 144 N.W. 449, 449 (1913).

A party who takes or consents to any step in a proceeding which assumes that jurisdiction exists or continues has made a general appearance which subjects him to the jurisdiction of the court.

Slayton Gun Club v. Town of Shetek, 286 Minn. 461, 467, 176 N.W.2d 644, 548 (1970) (citation omitted).

The issue before us is whether appellants have taken any action that would bring them within the jurisdiction of the court under the holding in Slayton. Appellants argue that the district court erred in finding that they “waived the issue of personal jurisdiction * * * by participating in proceedings regarding the wetlands and by unreasonably delaying their motion” because they did not personally participate in the 1986 litigation.

In Midway Nat’l Bank v. Estate of Bollmeier, 504 N.W.2d 59, 64 (Minn.App.1993), a personal representative of the named defendant’s estate consented to an attorney’s representation, allowed the attorney to proceed through trial, and made no objection until almost three years after trial. Id. We held then that the personal representative had submitted to the trial court’s jurisdiction and waived any right to assert a lack-of-personal-jurisdiction defense based on ineffective service. Id. Appellants argue that this case is distinguishable because in Bollmeier, the district court’s jurisdiction attached in the same legal action, whereas here, they are challenging the jurisdiction of the court in the 1986 appeal by the DNR. But the focus of the analysis in Bollmeier was the party’s consent to jurisdiction through participation in the proceedings. Id.

The failure to provide the court with an opportunity to rule on personal jurisdiction before invoking the court’s jurisdiction on the merits of the claim is determinative of whether a party waived a jurisdictional defense. Patterson, 608 N.W.2d at 868; see also Mississippi Valley Dev. Corp. v. Colonial Enters., Inc., 300 Minn. 66, 73, 217 N.W.2d 760, 764 (1974) (defendant who subjected himself to court’s jurisdiction and delayed about 16 months after allegedly defective service of process before raising jurisdictional defense waived any right to assert lack-of-jurisdiction defense); Federal-Hoffman, Inc. v. Fackler, 549 N.W.2d 93, 95-96 (Minn.App.1996) (finding the defense of lack of personal jurisdiction can be waived when a party waits for more than three months between his answer and the filing of his motion to dismiss), review denied (Minn. Aug. 20, 1996); Wachsmuth v. Johnson, 352 N.W.2d 132, 133 (MinmApp. 1984) (in making motion to reduce child-support obligation, appellant assumed personal jurisdiction existed, thereby subjecting himself to the court’s jurisdiction).

Appellants have been involved in litigating this issue for years without challenging personal jurisdiction for the 1986 hearing. In suits brought in 1992 against the DNR and the motion in 1998 to set aside the 1986 order, appellants never asserted a lack of personal jurisdiction. Appellants filed this motion in October 2000, 14 years after the 1986 notice of appeal was sent to their father. This is the first time the court has been asked to rule on the issue of personal jurisdiction. Moreover, as the supreme court noted in Bode I, since the 1986 judgment, the parties have taken “substantial action in reliance in the judgment.” 612 N.W.2d at 865. We conclude that, by proceeding through multiple appeals in the issue of wetland designation and then delaying 14 years before filing motions to vacate, appellants have waived any right to assert a lack of personal jurisdiction.

III.

Respondent argues that appellants’ motion to vacate pursuant to Minn. R. Civ. P. 60.02(d) fails because it falls outside of the “reasonable time” limit of the rule established by the supreme court in Bode I. Conversely, appellants argue that the Bode I decision is limited to motions to vacate based on subject-matter jurisdiction.

Because we conclude that the notice Bode received in 1986 was constitutionally valid and that appellants have waived the defense of lack of personal jurisdiction, we need not reach this issue. See Tereault v. Palmer, 413 N.W.2d 283, 286 (MinmApp. 1987) (stating “the task of extending existing law falls to the supreme court or the legislature but it does not fall to this court”), revieiu denied (Minn. Dec. 18, 1987).

DECISION

The notice received was constitutionally adequate. Further, appellants submitted to the district court’s jurisdiction by participating in proceedings and did not preserve their right to later challenge the court’s jurisdiction over them. Therefore, the court properly denied the motion to vacate.

Affirmed.

      . The hearings unit was created by statute to resolve landowner disputes arising from the DNR’s wetlands inventory. See Minn.Stat. § 105.391, subd. 1 (Supp.1979).

      . William Bode was the father and a predecessor in title to appellants Judy and Linda Bode. In 1986, Judy and Linda Bode received title to the Bode farm subject to a life estate in their parents, William and Rose Bode. William Bode died on September 1, 1993.


source: Caselaw Access Project

author: HALBROOKS, Judge.

license: Public Domain

text:
    J.R.B., Petitioner, Appellant, v. DEPARTMENT OF HUMAN SERVICES, et al., Respondents.
    No. C3-01-346.
    Court of Appeals of Minnesota.
    Aug. 21, 2001.
    Review Denied Oct. 24, 2001.

      Kathleen K. Rauenhorst, Daniel K. Rau-enhorst, Rauenhorst & Associates, P.A., Roseville, for appellant.
    Mike Hatch, Attorney General, Helen G. Rubenstein, Assistant Attorney General, St. Paul, for respondents. ■
    Considered and decided by HALBROOKS, Presiding Judge, WILLIS, Judge, and HANSON, Judge.
   OPINION

HALBROOKS, Judge.

Appellant challenged a determination by the commissioner of health that appellant’s failures to (1) recognize a significant change in the patient’s condition; (2) take action, other than to move the patient to the lobby, (3) contact the patient’s physician, and (4) recognize the patient’s right to self-determination constituted neglect under Minn.Stat. § 626.5572, subd. 17 (1996). After a hearing, the district court affirmed. Alleging that he acted in good faith and that he should be allowed to assert a single-mistake or therapeutic-conduct defense, appellant contends that the district court erred. Because the record supports the commissioner’s decision, we affirm.

FACTS

Appellant J.R.B. graduated from nursing school in February 1996. He began working at Hillcrest Care Center (“Hill-crest”) as a registered nurse on May 20, 1996. Pursuant to Hillcrest policy, nurses were to contact a resident’s physician if there was a significant change in a resident’s physical or mental condition.

On June 19,1996, 89-year-old M.M. was brought to Hillcrest for rehabilitation following hip surgery. She planned to return to her home, where she lived independently, after rehabilitation. At the time she arrived, M.M. was diagnosed with hypertension, mild congestive heart failure, and was taking medication for a seizure disorder and to thin her blood. M.M. signed her own admission forms and answered all questions upon admission herself.

Two days later, appellant was summoned to M.M.’s room after she began complaining of nausea during the evening of June 21, 1996. M.M. told appellant that she was experiencing a pain in her right arm, and he observed that her left arm and leg were making jerking motions. Although appellant took M.M.’s other vital signs, appellant stated that the spastic movements of her left arm prevented appellant from taking M.M.’s blood pressure. Appellant did not review M.M.’s chart, which noted her low blood pressure since her arrival. M.M. asked not to be left alone, but appellant left to find a licensed practical nurse to consult with. When appellant returned with another nurse, M.M. said that she thought she was dying and asked appellant to contact her physician or one of her relatives.

Appellant did not call M.M.’s physician because he did not believe that there had been a significant change in her physical condition. Rather, he believed that M.M.’s symptoms were behavioral as a result of moving into a nursing home. Appellant moved M.M. to the lobby because he concluded that she was afraid of being alone and needed to be around other people. M.M. became increasingly agitated and continued to demand that 911 or the police be contacted. She eventually became exhausted and quiet and was put to bed by the next shift at 12:80 a.m. At some later point, another nurse contacted the on-duty physician, not M.M.’s personal physician, and reported M.M.’s agitation. Not knowing that M.M.’s blood pressure was low, the physician only prescribed anti-anxiety medication. Appellant saw M.M. during his shift on June 22 and decided that she was responding well to anti-anxiety medication.

At 1:00 a.m. on June 23, 1996, M.M. was taken to the emergency room. Four hours later, she died. Her cause of death was “congestive heart failure” occurring six hours before her death. The death certificate also lists myocardial infarction occurring 48-72 hours before M.M.’s death as an underlying cause and a stroke as a significant condition contributing to her death.

Sharon Long, R.N., an investigator with the Minnesota Department of Health (DOH), began an investigation into M.M.’s death. Her investigation included a review of personnel and medical records and staff interviews. In her report, Long stated that three Hillcrest employees, including appellant, “were responsible for the neglect of health care.” Long concluded that appellant failed to recognize a significant change in M.M.’s condition, to accurately assess her condition and monitor it, and to seek appropriate medical attention based on the observations he had made.

Based on these findings, the DOH determined that J.R.B. was guilty of maltreatment based on neglect of a vulnerable adult. J.R.B. requested a hearing before an appeals referee. Colleen Cooper, M.D., a medical advisor for the DOH, and Long testified on behalf of the state, and appellant testified on his own behalf. Cooper testified that appellant should have realized that M.M.’s mental and physical condition had changed, based on her hysterical behavior, complaints of nausea, and spastic motions.

The referee affirmed the DOH decision and appellant sought review by the DOH commissioner. The DOH deputy commissioner issued a final order, affirming the agency’s decision and findings, and appellant petitioned for district court review. The district court affirmed, holding that there was sufficient evidence in the record to find that M.M.’s condition had significantly changed and, therefore, appellant neglected M.M. by not taking appropriate action. This appeal follows.

ISSUES

1. Did the agency err by finding that appellant failed to establish an affirmative defense of therapeutic conduct?

2. Did the agency err by finding that appellant committed at least two mistakes and is thus not entitled to the single-mistake defense?

ANALYSIS

I.

Notwithstanding the district court’s review of this matter, this court independently reviews the agency’s decision. Hazelton v. Commissioner of Dep’t of Human Servs., 612 N.W.2d 468, 470 (Minn.App.2000). Under the Administrative Procedure Act, Minn.Stat. §§ 14.63-14.69 (2000), we must uphold the decision of an administrative agency unless

the substantial rights of the petitioner have been prejudiced because, among other defects, the decision is not supported by substantial evidence in view of the entire record as submitted.

Hazelton, 612 N.W.2d at 470-71 (quotations omitted). Substantial evidence is defined as:

1. Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion;
2. More than a scintilla of evidence;
3. More than some evidence;
4. More than any evidence; and
5. Evidence considered in its entirety-

Cable Communications Bd. v. Nor-West Communications P’ship, 356 N.W.2d 658, 668 (Minn.1984) (citations omitted).

As an 89-year-old patient, M.M. was protected by the Vulnerable Adult Act. Minn.Stat. § 626.5572, subd. 21(1) (2000). A caregiver neglects a vulnerable adult if he or she fails to or omits

to supply a vulnerable adult with care or services, including but not limited to, food, clothing, shelter, health care, or supervision which is:
(1) reasonable and necessary to obtain or maintain the vulnerable adult’s physical or mental health or safety, consider^-ing the physical and mental capacity or dysfunction of the vulnerable adult; and
(2) which is not the result of an accident or therapeutic conduct.

Minn.Stat. § 626.5572, subd. 17(a) (2000). “Therapeutic conduct” is defined as “the provision of program services, health care, or other personal care services done in good faith in the interests of the vulnerable adult.” Minn.Stat. § 626.5572, subd. 20 (2000).

Here, the record contains substantial evidence supporting the agency’s decision that appellant failed to provide the care that was reasonable and necessary to maintain M.M.’s condition. Appellant acknowledged that he did not obtain a blood pressure reading. He stated that the jerking of M.M.’s left arm initially prevented him from taking her blood pressure, but there is no evidence that' he made any later attempt. Both Long and Cooper testified that the change in M.M.’s condition was significant enough to warrant medical attention. Because appellant failed to provide the care necessary for M.M.’s physical health by checking her blood pressure and alerting her doctor to the change in her condition, he neglected M.M.

Appellant argues that even if he neglected M.M., the agency should have found that he was performing therapeutic conduct. He contends that his actions — attempting to take M.M.’s blood pressure, consulting with another nurse, and moving her into the lobby — were done in good faith and in M.M.’s interest and, therefore, he did not neglect her. The state counters that appellant’s actions were not done in M.M.’s interest and, therefore, cannot be considered therapeutic.

On this record, we hold that the DOH properly determined that appellant’s response to M.M. did not constitute therapeutic conduct so as to shield him from the charge of neglect. The DOH has medical and scientific expertise in matters involving the health care of vulnerable adults. See In re Excess Surplus Status of Blue Cross and Blue Shield of Minnesota, 624 N.W.2d 264, 278 (Minn.2001) (“administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education, and experience” (citation omitted)). Additionally, the legislature has given the DOH a central role in investigating and responding to maltreatment claims. Minn.Stat. § 626.557, subd. 9e (2000). The DOH is one of three agencies entrusted with educating “lead agency investigators in the appropriate techniques for investigation of complaints of maltreatment.” Id. Given this legislative trust, the DOH may properly consider such evidence as a nursing home’s rules and medical standards of care when determining whether a caregiver’s conduct constitutes maltreatment.

The DOH does not dispute that appellant was acting in good faith when he moved M.M. from her room into the lobby because he thought she was suffering from anxiety and fear. But moving M.M. without taking any additional steps was not in her interest. If appellant had taken M.M.’s blood pressure and looked at her chart, he would have discovered that her physical condition had changed and that her physician should have been notified. Failing to check a patient’s vital signs cannot be considered therapeutic, and appellant is not entitled to this defense. Based on this record and the DOH’s interpretation of “therapeutic conduct,” we conclude that the DOH did not, err.

II.

Appellant also argues that he should be able to avail himself of the single-mistake exception to the statute. At the time of appellant’s hearing, the Vulnerable Adult Act provided a defense to a charge of neglect if

an individual makes a single mistake in the provision of therapeutic conduct to a vulnerable adult which:
(i) does not result in injury or harm which reasonably requires the care of a physician or mental health professional, whether or not the care was sought;
(ii) is immediately reported internally by the employee or person providing services in the facility; and
(iii) is sufficiently documented for review and evaluation by the facility and any applicable licensing and certification agency.

Minn.Stat. § 626.5572, subd. 17(c)(4) (1996).

Appellant’s argument fails because he cannot satisfy two of the elements necessary for the single-mistake defense. First, the record supports the agency’s determination that appellant committed more than one error: (1) appellant failed to take M.M.’s blood pressure, giving up because of her spastic motions; and (2) appellant failed to contact M.M.’s physician. Appellant contends that this would have been useless because, had he called M.M.’s physician, “he would have had to tell the physician that there was no change in the vital signs.” This argument only makes sense if one accepts appellant’s assertion that he could not get a blood-pressure measurement. But if appellant had tried more than once to take it, he would have realized that M.M.’s blood pressure was abnormal. Appellant then could have reported to M.M.’s physician the change in blood pressure, M.M.’s complaints of nausea, the spastic jerking of her left arm, her near-hysteria, and the cool, moist quality of her skin.

Appellant readily acknowledges that he cannot satisfy the second element for the single-mistake defense. He states that this element is a “Catch 22” because “[i]t is impossible to report something of which you have no knowledge,” and he suggests this is why the single-mistake provision has since been amended. But the current provision also states that errors must be “immediately reported and recorded internally” to qualify for the defense. Minn. Stat. § 626.5572, subd. 17(c)(4)(h) (2000)., While we acknowledge that appellant may be correct in pointing out the difficulties in reporting, the language of the statute plainly states that mistakes must be reported immediately, and appellant did not do so.

Finally, appellant argues that he should be entitled to a defense of mistake because of his professional inexperience. We note that the primary purpose of the act is to protect vulnerable adults. See Cannon v. Habilitative Servs., Inc., 544 N.W.2d 790, 794 (Minn.App.1996); Minn.Stat. § 626.557, subd. 1 (2000) (declaring it is public policy of state to protect vulnerable adults). Because this is a remedial statute designed to protect a specific class of individuals, we will interpret the statute in favor of that class. See Smith v. Employers’ Overload Co., 314 N.W.2d 220, 221-22 (Minn.1981) (holding that because the unemployment compensation statute is remedial in nature it must, therefore, be liberally construed to effectuate the public policy); see also Baker v. American Family Mut. Ins., 460 N.W.2d 86, 90 (Minn. App.1990) (stating that “[t]his court has a duty to interpret * * * statutes to effect their manifest policies and intents” (citing Minn.Stat. §§ 645.16-17 (1986))). Appellant’s reading of the single-mistake defense is not in harmony with the statute’s purpose. We, therefore, conclude that appellant is not entitled to this defense.

DECISION

The agency did not err in finding that appellant neglected M.M. or in its determination that appellant is not entitled to assert the defenses of therapeutic conduct or a single mistake.

Affirmed.

      . Appellant relies on C.J.K. v. Minnesota Dep't of Health, No. C9-00-583, 2000 WL 1617815, at *3 (Minn.App. Oct.31, 2000), in support of his arguments. As an unpublished case, C.J.K. has persuasive, but not precedential value. Further, the facts of C.J.K. are significantly different from the circumstances in M.M.'s case. In contrast to M.M., C.J.K. was a long time nursing home resident with multiple physical and mental problems well-known to the staff, including chronic constipation, incontinence, dementia, schizophrenia, and an inability to speak. Although the nurse in C.J.K. failed to notify a physician of a change in her condition, this court concluded that the nurse engaged in "therapeutic conduct because it consisted of appropriate health care for a documented and objectively determined condition" and was done in good faith. Id. at *5.

      . The equivalent provision in the current Vulnerable Adult Act states a vulnerable adult is not neglected for the sole reason that
      an individual makes an error in the provision of therapeutic conduct to a vulnerable adult which:
      (i)does not result in injury or harm which reasonably requires medical or mental health care or, if it reasonably requires care, the care is sought and provided in a timely fashion as dictated by the condition of the vulnerablé adult; and the injury or harm that required care does not result in substantial acute, or chronic injury or illness, or permanent disability above and beyond the vulnerable adult's preexisting condition;
      (ii) is immediately reported and recorded internally by the employee or person providing services in the facility in order to evaluate and identify corrective action;
      (iii) is sufficiently documented for review and evaluation by the facility and any applicable licensing, certification, and ombudsman agency; and
      (iv) is not part of a pattern of errors by the individual.
      Minn.Stat. § 626.5572, subd. 17(c)(4) (2000).


author: STONEBURNER, Judge.

text:
    Katharine NAVARRE, Respondent, v. SOUTH WASHINGTON COUNTY SCHOOLS, Appellant. Northwest Publications d/b/a Pioneer Press, et al., Defendants.
    No. C4-00-2242.
    Court of Appeals of Minnesota.
    Sept. 4, 2001.

      Stephen W. Cooper, Kathryn J. Cima, The Cooper Law Firm, Ch., Minneapolis, MN, (for respondent).
    Lawrence J. Hayes, Jr., Jennifer K. Anderson, Knutson, Flynn & Deans, P.A., Mendota Heights, MN, (for appellant).
    Mark R. Anfinson, Minneapolis, MN, (for amicus curiae Minnesota Newspaper Association).
    Considered and decided by SHUMAKER, Presiding Judge, AMUNDSON, Judge, and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

Katharine Navarre, a former teacher in the South Washington County School District, sued the school district, her supervisors, and Northwest Publications d/b/a Pioneer Press for defamation and for intentional and negligent infliction of emotional distress. Navarre also asserted a claim against the school district for violating the Minnesota Government Data Practices Act (MGDPA) by releasing private personnel data. Only Navarre’s MGDPA claim against the school district survived pretrial motions.

At trial, the district court instructed the jury that the school district had violated the MGDPA by releasing private personnel data on six different occasions. The jury returned a verdict for damages in the amount of $520,000 and recommended that the school district be required to apologize to Navarre in writing.

On appeal from the denial of posttrial motions, the school district argues the district court erred in concluding that the school district violated the MGDPA. Additionally, the school district argues the district court abused its discretion in (1) submitting Navarre’s claim for damages to the jury, (2) prohibiting the district from introducing information about Navarre’s reputation and emotional state prior to the release of data, (3) instructing the jury on constructive discharge, (4) finding that neither counsel nor the jury had committed misconduct, and (5) denying the school district’s motion for remittitur. Because we conclude that the district court erred in determining the number and substance of the school district’s MGDPA violations and that the court’s evidentiary rulings substantially prejudiced the school district, we reverse and remand.

FACTS

Katharine Navarre has taught in the school district since January 1988. In 1996, Navarre was assigned to teach sixth-grade communications at Hillside Elementary School for one year. As the school year progressed, the school district began to receive complaints from teachers, students, and parents regarding Navarre’s performance. Teachers complained that Navarre’s students were often unsupervised and that Navarre failed to appropriately maintain behavior charts shared by the sixth-grade teachers. Students complained that they were not being challenged and that Navarre had threatened them if they complained. Parents echoed their children’s concerns and complained about their own interactions with Navarre.

After informally monitoring Navarre, discussing the complaints with her, and offering assistance, Principal Timothy Bess gave Navarre written notice of the complaints and asked Navarre to provide samples of assignments she had given the students. Based on Navarre’s submissions, school officials concluded that Navarre had met the minimum standards of the school district’s prescribed curriculum.

The school district also reviewed Navarre’s grading and student-performance records and noted some problems. During the review process, the school district continued to receive complaints. On May 15, 1997, the school district placed Navarre on a paid leave of absence. On May 19, the principal sent a letter to sixth-grade parents advising them that Navarre had been placed “on medical leave for the remainder of this school year.”

On May 28, Assistant Superintendent Stanley Hooper sent parents a letter stating he recognized that:

[Pjarents have a legitimate concern about knowing whether their children have been successful in the Communications curriculum, and that the stories from children are numerous and sometimes alarming regarding the characteristics of the instructional program they received.

The purpose of Hooper’s letter was to notify parents that the school district would administer the communications portion of the Iowa Test of Basic Skills to evaluate what students had learned and to ask parents to explain the seriousness of the test to their children. A Hillside parent sent Hooper’s May 28 letter to Pioneer Press reporter Theresa Monsour. On May 29, Monsour interviewed Hooper, who spoke about the school district’s response to parents’ and students’ concerns. Mons-our’s notes of the interview attribute the following statements to Hooper:

parents have called hillside, teachers have sat kids down and talked in detail, some said did do some things, we aren’t comfortable that some of what they are talking about isn’t valid, so doing standardized to see what learned.
said parents were calling principal and said getting strong stories about what was going on. one day principal did sub. he asked children more information based on what parents were talking about, he had been aware of some of those issues for while, frequency of calls, some parents were concerned about their children but weren’t attributing it to lack of instruction, others said towards spring of year, problems.
some children described it as social hour, teacher had difficulty in classroom management, from kids point of view, out of hand, principal, he indicated that may have been the case, he was not seeing that in other classrooms, kids move from room to room, were not having difficulty in other rooms.
⅜ ‡ * ⅜
had not had other problems that I know of. nothing where anything formal had been done.
# # * *
it’s unusual in terms of number of parents calling dr. bess and myself.
I’ve had four calls and other pending, playing telephone tag. bess has had more than that.
said district had been working with the teacher, the teacher had been responding to what teacher was, helping her learn better classroom management, earliest calls from parents were concerns about not learning in classroom, principal worked with teacher to get documentation that teacher had been working with the students, examples of student work. She was providing some information in response to that.
said he didn’t get calls until this spring, first was two weeks ago. doesn’t know how long bess has.
⅝ ⅜: sfc ⅛
said year started out okay, classroom management okay, fell apart with spring.
she was asked for grades, she gave out grades, she did give some homework out during the year.

On May 30, the Pioneer Press published an article under the headline “100 kids who learn ‘nothing’ face summer school.” The article reported on the concerns expressed by parents and students and on the school’s response and included several quotations attributed to Hooper.

In response to the article, the school district issued a May 30 press release from Superintendent Dan Hoke:

The allegations are serious enough and substantiated enough that we took the action of suspending the teacher and testing the students.
⅝ ⅝ ⅜ ⅝
We first heard concerns about the situation last fall, when parents called to report that their children were having difficulty learning the communications curriculum. We immediately followed up by investigating these concerns.
This spring the concerns shifted from concern about student performance to concern about the teacher’s teaching methods. The principal investigated these concerns at the time and the investigation continues.

On the same day, Channel 11 news videotaped an interview with Hoke, during which he stated:

[the principal] would visit with the teacher, he would observe the teacher and then eventually he started into the. classroom to teach for himself. So as he got more and more evidence, he was also concerned. By us admitting there was something wrong by suspending the teacher* * *.

On June 11, the Pioneer Press published a follow-up article under the headline “Students learned something after all,” with the sub-headline “Despite learning ‘nothing,’ students pass reading test.” On July 3, the school district’s human-resources manager, Perry Palin, responded to a request for information from Monsour in a letter that stated: “the school district received complaints from parents and students alleging concerns involving Ms. Navarre’s classroom management and instructional methods.”

Navarre brought this action in July 1997. Navarre alleged that she suffered emotional damage, humiliation and embarrassment, and loss of reputation as a result of the MGDPA violations. But she did not claim wage loss or constructive discharge.

In August 1997, the school district sent Navarre a formal notice of assignment to Woodbury Elementary School, where she had previously worked well with the principal, and a plan of assistance designed to correct problems the school district believed existed based on its investigation of the previous year’s complaints. Navarre requested a medical leave of absence through September 1997. Instead of.returning to work when the leave expired, Navarre filed a grievance regarding the notice of assignment and the plan of assistance. Navarre did not pursue arbitration when the grievance was denied. In March 1998, the district court granted Navarre’s motion to supplement her complaint with allegations related to events that occurred after the original complaint was served. The causes of action asserted in the original complaint were not changed.

In April 1999, the district court granted summary judgment to the Pioneer Press and the school district on Navarre’s claims of defamation and negligent and intentional infliction of emotional distress, and dismissed the claims against school-district officials in their individual capacities. The district court granted Navarre partial summary judgment against the school district on her MGDPA claim holding that, as a matter of law, Bess’s May 19 letter and Palin’s July 3 letter violated the MGDPA. The court concluded that Hooper’s May 28 letter, several direct quotations attributed to Hooper in the April 30 Pioneer Press article, and the disclosure that Navarre had been placed on paid leave, did not violate the MGDPA. The district court concluded that a fact question existed about whether Hooper violated the act in the April 29 interview with Monsour by disclosing that the district had been working with Navarre on her classroom-management skills.

Before trial, the district court granted Navarre’s motions to exclude (1) evidence of her medical history, which included ongoing treatment for emotional issues, and (2) evidence that Navarre’s teaching performance had been unsatisfactory. At the same time, the court denied the school district’s motion to exclude writings and statements that the court had determined did not violate the MGDPA.

At the conclusion of the presentation of evidence, the court, on Navarre’s motion, reversed its pretrial determination and concluded that the school district violated the MGDPA by releasing private personnel data on six occasions. The school district moved for dismissal, arguing that Navarre had not established any compensable damages resulting from the MGDPA violations. The school district also objected to a requested instruction on constructive discharge and renewed its request for an instruction on the nature and disposition of all counts against the Pioneer Press. The district court implicitly denied the school district’s motion and objections.

At the conclusion of closing arguments, the school district moved for a mistrial based on Navarre’s counsel’s misconduct during closing argument. The court denied the school district’s motion, instructed the jury, and submitted the case to the jury only on the issue of damages. The jury awarded Navarre $200,000 for loss of reputation, $250,000 for emotional distress, and $70,000 for loss of income and/or earning capacity. The jury also requested that the court require the school district and district officials to issue Navarre a written apology.

The school district moved for judgment notwithstanding the verdict or, alternatively, for a new trial or remittitur. Navarre moved for attorney fees and costs. The court denied the school district’s posttrial motions and awarded Navarre $35,560.07 in attorney fees and $5,880.19 in costs. This appeal followed.

ISSUES

I. Did the district court err in determining that the school district violated the MGDPA?
II. Did the district court abuse its discretion by precluding the school district from presenting evidence of Navarre’s pre-existing emotional problems and reputation and/or by denying the school district’s motion for a directed verdict on Navarre’s claim for damage to reputation?
III. Did the district court err by denying the school district’s motion for JNOV on Navarre’s constructive-discharge and wage-loss claims?
IV. Did the district court abuse its discretion in denying the school district’s motion for a new trial based on Navarre’s counsel’s alleged misconduct during closing argument and/or the jury’s alleged misconduct?

ANALYSIS

Judgment notwithstanding the verdict (JNOV) is proper when the verdict is contrary to the law or manifestly inconsistent with the evidence viewed in the light most favorable to the verdict. Dies-en v. Hessburg, 455 N.W.2d 446, 452 (Minn.1990). The denial of a motion for JNOV is subject to de novo review and must be affirmed if the record contains “any competent evidence reasonably tending to sustain the verdict.” Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998) (quotation omitted).

Ordinarily, the decision to grant or deny a new trial lies within the sound discretion of the district court and will not be reversed absent a clear abuse of that discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn.1990). But when the decision to grant or deny a new trial is based on an error of law, the standard of review is de novo. Id. This court must affirm the denial of a new-trial motion unless the verdict is “ ‘manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict.’ ” Raze v. Mueller, 587 N.W.2d 645, 648 (Minn.1999) (quoting Roemer v. Martin, 440 N.W.2d 122, 124 (Minn.1989)). We must also reconcile the jury’s answers to the special verdict in a “ ‘reasonable manner consistent with the evidence and its fair inferences.’” Id. (quoting Reese v. Henke, 277 Minn. 151, 155, 152 N.W.2d 63, 66 (1967)). Special verdicts should stand if the jury’s answers can be reconciled with the evidence on any theory. Id.

I

The school district first argues it is entitled to a new trial because the district court erred in determining that the school district released private personnel data in violation of the MGDPA. Whether the school district violated the MGDPA is a question of law subject to de novo review. Washington v. Independent Sch. Dist. No. 625, 610 N.W.2d 347, 349 (Minn.App.2000).

The MGDPA regulates the collection and dissemination of all government data maintained by state agencies and political subdivisions. See Minn.Stat. § 13.01-99 (1996). In the two decades since its enactment, the MGDPA has become long and complicated, but the act has generated surprisingly little case law. This action emphasizes the complexity of balancing the public’s legitimate interest in educational issues against the legitimate and protected privacy interest of public employees in personnel matters.

Although the MGDPA establishes a presumption that all government data are public unless federal law, a state statute, or a temporary classification provides otherwise, the act presumes that personnel data are private unless classified as public. See Minn.Stat. §§ 13.01, subd. 3, 13.43. The MGDPA classifies as public “the existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in a disciplinary action.” Id. § 13.43, subd. 2(a)(4) (emphasis added). But details about an existing complaint or charge are nonpublic unless there has been a “final disposition of any disciplinary action.” Id., subd. 2(a)(5). A “final disposition” occurs when a state agency “makes its final decision about the disciplinary action, regardless of the possibility of any later proceedings or court proceedings.” Id., subd. 2(b). In cases involving public employees covered by a collective-bargaining agreement providing for grievance arbitration, a final disposition does not occur until the conclusion of the arbitration proceedings. Unke v. Independent Sch. Dis. No. 147, 510 N.W.2d 271, 273 (Minn.App.1994), review denied (Minn. Mar. 15, 1994). Because in this case there was never a “final disposition” as defined by the act, details contained in government data about specific complaints against Navarre remained private at all relevant times.

In response to Navarre’s motion for summary judgment, the district court determined before trial that the school district violated the act on two occasions and that there was a fact question about a third violation. After all of the evidence was presented at trial, however, the district court changed its ruling on the liability issue. The district court’s jury instructions identified specific statements made on six separate occasions as MGDPA violations. After carefully reviewing the data released in light of the applicable law, we conclude that not all of the statements submitted to the jury constituted MGDPA violations. We address the alleged violations in chronological order.

A. Principal Bess’s May 19 letter stating that “Ms. Navarre will be out on a medical leave for the remainder of this school year.”

The district court reasoned that information concerning the nature of Navarre’s leave was private personnel data. But the MGDPA classifies as public:

data that are only used to account for employee’s work time for payroll purposes, except to the extent that the release of time sheet data would reveal the employee’s reasons for the use of sick or other medical leave * * *.

Minn.Stat. § 13.43, subd. 2(a)(8). And the Commissioner of Administration has opined that while information concerning the specific reasons for an employee’s use of medical leave is private data, information that an employee is on administrative leave for medical reasons is public data under Minn.Stat. § 13.43, subd. 2. Op. Minnesota Dep’t Admin. No. 99-019 (July 7, 1999) (concluding that disclosure to a city council that a complaint or charge had been made against an employee and that employee was on administrative leave for medical reasons was permissible); see also Minn.Stat. § 13.072 (providing that commissioner of department of administration is charged with authority to issue advisory opinions, which are not binding on state agency whose data are subject of opinion but must be given deference by a court in proceedings involving the data). The use of the word “medical” in conjunction with the word “leave” does not violate the act. The district court erred by instructing the jury that Bess’s May 19 letter to parents violated the MGDPA.

B. Assistant Superintendent Hooper’s May 28 letter to parents stating that “the stories from children are numerous and sometimes alarming regarding the characteristics of the instructional program they received.”

The district court concluded that Hooper’s letter violated the MGDPA because the letter disclosed more than the existence and status of a complaint against a public employee, in violation of Minn. Stat. § 13.43, subd. 2(a)(4). In arriving at that conclusion, the court assumed that Hooper’s letter disclosed personnel data within the meaning of the MGDPA. But Hooper’s letter does not disclose “personnel data” as that term is defined in the MGDPA.

“Personnel data” means “data on individuals collected because the individual is or was an employee of * * * a state agency * * Id., subd. 1. “Data on individuals” means

all government data in which any individual is or can be identified as the subject of that data, unless the appearance of the name or other identifying data can be clearly demonstrated to be only incidental to the data * * *.

Id. § 13.02, subd. 5. Navarre was not the subject of and was not identified in Hooper’s letter. Hooper’s letter was about the steps the school district intended to take to ensure that the children learned what they needed to learn before moving on to seventh grade. Read in context, the letter was a communication to parents recognizing the concerns generated by “numerous and sometimes alarming” stories about the instruction their children received in their communications class, and describing the school district’s response to those stories. The characterization “numerous and sometimes alarming” refers to the children’s stories, not to complaints that would fall within the MGDPA.

Because the letter did not identify Navarre and any implicit reference to her was incidental to the subject of the letter, the information in the letter does not constitute “personnel data.” See Edina Educ. Ass’n v. Board of Educ. of Indep. Sch. Dist. No. 278, 562 N.W.2d 306, 311 (Minn. App.1997) (summary of school district’s interactions with student and student’s parent was not “data on individuals” as applied to psychologist who prepared the summary because she was not the subject of the data and, to degree that data identified her, it was incidental to factual focus of data), review denied (Minn. Jun. 11, 1997). The district court erred by concluding that Hooper’s May 28 letter violated the MGDPA.

C. Assistant Superintendent Hooper’s April 29 statements to Pioneer Press reporter Monsour.

The district court concluded that ten of Hooper’s statements to Monsour violated the MGDPA, reasoning that the statements concerned complaints against Navarre and went beyond simply describing the existence and status of the complaints. But the court erred in concluding that four of the statements were “government data” disclosed in violation of the act.

To constitute “government data,” data must be recorded in some physical form. Deli v. Hasselmo, 542 N.W.2d 649, 653-54 (Minn.App.1996), review denied (Minn. Apr: 16, 1996). Unrecorded mental impressions of government employees are not “government data.” Keezer v. Spickard, 493 N.W.2d 614, 617-18 (Minn. App.1992), review denied (Minn. Feb. 12, 1993). While the majority of Hooper’s statements are either recorded in or derived from Bess’s April 18 letter to Navarre and Hooper’s May 28 letter to parents, the following statements were not recorded in physical form or derived from recorded information and are not government data: (1) “[Navarre] had not had other problems that I know of, nothing where anything formal had been filed”; (2) “it’s unusual in terms of number of parents calling [D]r. [B]ess and myself’; (3) “[Bess] was not seeing that in other classrooms. Kids move from room to room. Were not having difficulty in other rooms”; and (4) “district had been working with the teacher * * * helping her learn better classroom management.” The district court erred by submitting those statements to the jury as violations of the MGDPA.

D. Superintendent Hoke’s May 30 press release stating that “[t]he allegations are serious enough and substantiated enough that we took the action of suspending the teacher and testing the students” and that the school district’s concerns had shifted from “con-cernís] about student performance to concern[s] about the teacher’s teaching methods.”

The district court correctly concluded that the quoted language from the May 30 press release violated the MGDPA. The information released was private personnel data within the meaning of the MGDPA, went beyond merely identifying the existence and status of a complaint against a public employee, and was disclosed before final disposition of a disciplinary action. See Minn.Stat. § 13.43, subd. 2(a)(4); Unke, 510 N.W.2d at 273 (statements made before final disposition of disciplinary action identifying specific nature of complaint made against school counselor and alleging that two students had corroborated allegations made against counselor and that counselor had violated school district’s sexual-harassment policy constituted private data and disclosure violated MGDPA); see also Op. Minnesota Dep’t Admin. No. 01-037 (Apr. 6, 2001) (concluding that school district violated MGDPA by releasing letter to parents stating that complaint against school district employee had been “substantiated” before final disposition of disciplinary action had occurred).

E. Superintendent Hoke’s statements to TV Channel 11: “The allegations I’ve heard were that kids weren’t learning. [Which means she wasn’t teaching?] Correct.” “[The principal] would visit with the teacher, he would observe the teacher and then eventually he started into the classroom to teach for himself. So as he got more and more evidence he was also concerned. By us admitting there was something wrong by suspending the teacher

⅜⅜ ⅝ ⅜ 99

Hoke’s initial statement concerning the substance of the allegations he had heard, his statement that the allegations suggested Navarre was not teaching, and his statement that by suspending Navarre the district had admitted that something was wrong, derive from either Bess’s April 18 letter or Hoke’s May 30 press release and, accordingly, constitute government data. Because the statements go beyond the existence and status of the complaints against Navarre and were released before final disposition of a disciplinary action, their release violated the MGDPA. See Minn.Stat. § 13.43, subd. 2(a)(4). But Hoke’s statement about visits to Navarre’s classroom and the resulting increased concerns was not physically recorded or derived from a physically recorded document. As such, that portion of the statement does not constitute government data and its release did not violate the MGDPA. Accordingly, that portion of the statement should not have been submitted to the jury as a violation of the MGDPA.

F. Human Resources Manager Pa-lin’s letter to Theresa Monsour stating that the “school district had received complaints from parents and students alleging concerns about Ms. Navarre’s classroom management and instructional methods.”

The district court correctly concluded that the statement quoted above, contained in Palin’s July 3 letter to Mons-our, violated the MGDPA. The statement concerned more than the existence and status of the complaints against Navarre and was released before final disposition of a disciplinary action. See Id.

The school district argues that any release of private personnel data was justified to promote health and safety and to dispel widespread rumor. See Id. § 13.39, subd. 2 (allowing agencies to disclose confidential data if the agency determines that access to the data “will aid the law enforcement process, promote public health or safety or dispel widespread rumor or unrest”). We disagree. For section 13.39 to transcend the substantial privacy protection accorded to personnel data, the “transcendence must be clearly justified.” Deli, 542 N.W.2d at 655, (holding that need to dispel rumors about university coach accused of releasing to students videotape of her and her husband having sexual relations did not excuse release of private personnel data). Rumors are “part of everyday life.” Id. at 656. Section 13.39 contemplates only “rumors that threaten the community repose.” Id. There is no evidence that the rumors about problems in Navarre’s classroom threatened the community repose.

Because the jury based its damage award on erroneous instructions concerning the school district’s liability, the school district is entitled to a new trial. The district court abused its discretion in denying the school district’s motion for a new trial.

II

The school district next argues it is entitled to JNOV because Navarre failed to prove that she sustained damage or that any damage she sustained was caused by the school district’s release of private personnel data. Aternatively, the school district argues that the jury’s damage award is excessive, is prohibited by Minn.Stat. § 466.04, subd. 1(1) (1996), and warrants a new trial or remittitur. The school district also argues that the district court abused its discretion by prohibiting the school district from presenting evidence of Navarre’s medical history of emotional distress and evidence of Navarre’s performance and reputation before the MGDPA violations occurred.

A person who suffers damage as a result of a MGDPA violation may bring an action against a state agency or responsible authority to cover “any damages sustained, plus costs and reasonable attorney fees.” Minn.Stat. § 13.08, subd. 1 (emphasis added). To prevail on her claim for damages, Navarre must show that she sustained damage and that the damage she sustained was a direct result of the school district’s alleged violations of the MGDPA. The school district challenges the jury’s award of $250,000 for emotional distress and $200,000 for loss of reputation.

A. Emotional-Distress Damages Award

The school district argues that the jury’s award of damages for emotional distress is not supported by competent evidence of genuine injury and must, therefore, be reversed. Alternatively, the school district argues it is entitled to a new trial on damages because the district court abused its discretion by not allowing the school district to conduct an independent medical examination or to impeach Navarre’s evidence of emotional harm with her medical records.

Navarre testified that the media attention generated by the school district’s disclosures was “devastating” to her career and to her personal life. She stated she had been “sad, depressed, lonely, and isolated” after the publication of the Pioneer Press article. She stated that compared to the previous summer, the summer of 1997 had been “a big black cloud” and that she had been unable to enjoy things she had enjoyed in previous summers. Navarre’s father testified that his daughter had “always had great years until about the winter of [1997].” He indicated that the initial impact of the Pioneer Press article on his daughter was “shock.” He also stated he had never seen his daughter as upset as. she appeared to be during 1997, that she stayed with her parents at their invitation because of their concern for her, and that on one occasion his daughter had come into her parents’ bedroom in the middle of the morning crying:

The school district asserts that Navarre did not show the level of emotional distress necessary to support a damage award. The school district’s argument is predicated, in part, on the assumption that the degree of proof necessary to support a damage claim is the same as the degree of proof necessary to maintain an independent cause of action for infliction of emotional distress. But this court has previously ruled that the level of proof necessary to recover damages for violation of a statutory right is different from that required to establish a separate tort claim for infliction of emotional distress. Bradley v. Hubbard Broadcasting, Inc., 471 N.W.2d 670, 677 (Minn.App.1991), review denied (Minn. Aug. 2, 1991).

In cases involving violation of a statutory right, emotional-distress damages are recoverable absent evidence of verifiable physical injury or severe emotional distress. Williams v. Trans World Airlines, Inc., 660 F.2d 1267, 1272 (8th Cir.1981). An award of emotional-distress damages, nonetheless, must be supported by “competent evidence of ‘genuine injury.’ ” Forshee v. Waterloo Indus., Inc., 178 F.3d 527, 531 (8th Cir.1999) (quoting Carey v. Piphus, 435 U.S. 247, 264 n. 20, 98 S.Ct. 1042, 1052 n. 20, 55 L.Ed.2d 252, (1978)). Although medical testimony or specific proof of out-of-pocket losses are unnecessary, Williams, 660 F.2d at 1272, a plaintiff must offer evidence of the nature and extent of emotional harm caused by an alleged violation. Bailey v. Runyon, 220 F.3d 879, 880-81 (8th Cir.2000). Conclusory statements that plaintiff suffered emotional distress are inadequate because they “give the finder of fact no adequate basis from which to gauge the ‘nature and circumstances of the wrong and its effect on the plaintiff.’” Id. (quotation omitted). While a person’s pain and suffering does not have to be severe for that person to recover damages, Gillson v. State Dep’t of Natural Resources, 492 N.W.2d 835, 842 (Minn.App.1992), review denied (Minn. Jan. 28, 1993), mere “hurt feelings, anger and frustration are part of life [and are] not the types of harm that could support a mental anguish award.” Brady v. Fort Bend County, 145 F.3d 691, 718 (5th Cir. 1998), cert. denied, 525 U.S. 1105, 119 S.Ct. 873, 142 L.Ed.2d 774 (1999), (quotation omitted). Damages may be awarded solely on the basis of a plaintiffs subjective testimony. Gillson, 492 N.W.2d at 842.

We conclude that Navarre introduced sufficient evidence to justify submission of her emotional-damage claim to the jury. The school district has cited cases that bring into question whether-the quantity and quality of Navarre’s evidence on this issue supports the amount of the jury award. But we decline to reach the issue of remittitur because we conclude that the school district is entitled to a new trial due to the district court’s abuse of discretion in not allowing the school district to impeach Navarre’s evidence of emotional harm with her medical records. Navarre’s medical records show that she had been treated for anxiety and mild depression and “had not had enjoyment in her usual activities” pri- or to any of the school district’s disclosures of private personnel data. Navarre’s preexisting emotional problems are relevant to whether Navarre’s symptoms during the summer of 1997 were caused by the school district’s release of information. While it was within the district court’s discretion to deny an independent medical examination, we note that the denial of the independent examination was based, in part, on Navarre’s assertion that her existing medical records adequately documented her emotional condition. Exclusion of evidence of Navarre’s pre-existing emotional problems substantially prejudiced the school district and warrants a new trial.

B. Loss-of-Reputation Damages Award

The school district argues that the district court abused its discretion by submitting Navarre’s damage claim for loss of reputation to the jury or, alternatively, by not allowing the school district to present evidence of Navarre’s reputation prior to the MGDPA violations. We agree that the district court abused its discretion by allowing Navarre to submit her loss-of-reputation claim, supported only by hearsay, and also abused its discretion by prohibiting the school district from presenting evidence of Navarre’s reputation prior to the MGDPA violations.

The court allowed Navarre to present evidence that before the disclosures she had performed well as a teacher and was well regarded. Navarre described 13 activities she had participated in since joining the district to assist students and the school district. Navarre testified that after the Pioneer Press article and television coverage she heard from “family members, relatives, teachers from the district” and that over 50 people indicated to her that they were aware of the articles and television coverage. Navarre did not testify to the content of the contacts, but implied that the calls reflected a loss of Navarre’s reputation. Navarre’s father was allowed to respond to the question: “Is it in fact true that virtually everybody that [Navarre] knew mentioned the article?” He answered: “Yes.” He also testified that he advised Navarre never to go back to elementary education because her “job availability or attractiveness as a candidate would effectively have been destroyed anywhere in,the Midwest.” This testimony appears to be the only testimony in the record offered to support Navarre’s claim of loss of reputation.

The perception of loss of reputation is not evidence of loss of reputation, and we conclude that the district court abused its discretion by denying the school district’s motion to dismiss Navarre’s claim for damages based on loss of reputation. See Kohn v. City of Minneapolis Fire Dep’t., 583 N.W.2d 7, 15 (Minn.App.1998) (reversing award for loss of reputation because plaintiffs testimony that he knew some coworkers were aware he was not promoted and “maybe thought less of [him] as a firefighter as a result” was too speculative to support finding of damage to reputation), review denied (Minn. Oct. 20, 1998).

Even if the evidence outlined had been sufficient to permit the claim to be submitted to the jury, the district court abused its discretion by precluding the school district from impeaching Navarre’s testimony with evidence concerning Navarre’s performance and reputation prior to the disclosures.

Navarre’s prior reputation, which includes her performance as a teacher, is the benchmark from which the jury should have valued her alleged loss of reputation. Without evidence of Navarre’s reputation as it stood before the school district’s disclosures, any damage award for loss of reputation is speculative. Id.; Gillespie v. Khun, 406 N.W.2d 547, 558 (Minn.App. 1987) (upholding damage award for reputation loss based on testimony that prior to defendant’s actions, plaintiff ran a successful business, had never been sued, and enjoyed a good reputation), review denied (Minn. July 9, 1987).

The district court’s evidentiary ruling resulted in the jury hearing only Navarre’s evidence • about her prior reputation and substantially prejudiced the school district. See Kelly v. Iowa State Educ. Ass’n, 372 N.W.2d 288, 300 (Iowa Ct.App.1985) (stating that in libel cases jury must be presented with “evidence upon which the consequences of the libel can be judged, evidence such as the nature of the plaintiffs reputation before the libel was published * * *.”).

HI

The school district next argues that the jury’s award for lost wages and loss of earning capacity must be reversed because Navarre was not discharged and suffered no wage loss attributable to MGDPA violations. Navarre admits she was not actually discharged, but claims she was constructively discharged because the extensive publicity surrounding the school district’s release of information made it impossible for her to return to a position with the school district.

At trial, the school district argued that a claim of constructive discharge was not available to Navarre because she did not plead this claim and because, as a tenured teacher subject to a collective-bargaining agreement, her sole remedy for alleged violations of her employment terms was through the grievance process, which she failed to pursue to conclusion. The school district also argues that matters related to a teacher’s employment, including suspensions, termination, and any other employment issues, are properly reviewed only by a writ of certiorari and that the district court erred by submitting these issues to the jury. See Dokmo v. Independent Sch. Dist. No. 11, 459 N.W.2d 671, 673, 678 (Minn.1990).

The district court denied the school district’s motions and instructed the jury that [e]ven though Katharine Navarre voluntarily resigned from her position, her resignation may constitute a constructive discharge if she resigned to escape intolerable working conditions caused by the illegal conduct of the employer.

Because Navarre does not seek to recover lost wages under her employment contract but rather under a separate statutory cause of action for violation of the MGDPA, we conclude that her claim for lost wages is not barred by her failure to pursue arbitration to exhaust her administrative remedies or by her failure to proceed by writ of certiorari. Cf. Schuyler v. Metropolitan Transit Comm’n, 374 N.W.2d 453, 455 (Minn.App.1985).

We hold, nonetheless, that the district court erred as a matter of law by submitting Navarre’s wage-loss claim to the jury. Constructive discharge is a companion tort frequently used in the context of discrimination claims arising under the Minnesota Human Rights Act. See, e.g., Huyen v. Driscoll, 479 N.W.2d 76, 81 (Minn.App.1991), review denied (Minn. Feb. 10, 1992). An employer constructively discharges an employee only if, with the intention of forcing the employee to resign or with knowledge that resignation was a reasonably foreseeable consequence of its actions, the employer creates an objectively intolerable work environment that forces the employee to resign. Pribil v. Archdiocese of St. Paul & Minneapolis, 533 N.W.2d 410, 412 (Minn.App.1995); Huyen, 479 N.W.2d at 81. Whether employment conditions are in fact intolerable is a question of fact judged by a reasonable-person standard. Pribil, 533 N.W.2d at 412. The employee bears the burden of proving constructive discharge. Jurgens v. Equal Employment Opportunity Comm’n, 903 F.2d 386, 390 (5th Cir.1990).

Navarre did not plead constructive discharge. Minn. R. Civ. P. 8.01 requires that pleadings contain a concise claim showing that the pleader is entitled to relief. A claim is sufficiently stated if it gives [the adverse party] fair notice of the theory on which the claim for relief is based. Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997). Notice of the claim and the grounds upon which it rests must be pleaded with enough particularity to permit application of the res judicata doctrine. Royal Realty Co. v. Levin, 244 Minn. 288, 292, 69 N.W.2d 667, 670 (1955). Claims may be pleaded by allegations of evidentiary fact, broader conclusions of fact, or conclusions of law. First Nat’l Bank v. Olson, 246 Minn. 28, 37-38, 74 N.W.2d 123, 129 (1955). Navarre’s complaint contains no evidentiary facts, broader conclusions of fact, or conclusions of law sufficient to notify the school district of her constructive-discharge claim and its basis.

Even if Navarre had properly pleaded constructive discharge, the school district’s violations of the MGDPA are inadequate, as a matter of law, to establish constructive discharge. The record contains no evidence that the school district acted intentionally to force Navarre to resign or that it acted with knowledge that its actions would create intolerable working conditions that would force Navarre to resign. In fact, the evidence establishes the opposite. The evidence shows that the school district offered Navarre a teaching position for the 1997-98 academic year at a school where Navarre would be working with a principal who had worked successfully with Navarre in the past and was willing to ease Navarre’s return to work.

The evidence is also insufficient to support a finding that Navarre’s working conditions were intolerable. Cf. Thompson v. Campbell, 845 F.Supp. 665, 673-74 (D.Minn.1994) (holding that work environment not intolerable even though men talked about female anatomy at work and made sexual advances toward female employees). Although Navarre experienced the embarrassment that resulted from criticism of her performance as a teacher, criticism alone is insufficient, as a matter of law, to establish intolerable working conditions. Huyen, 479 N.W.2d at 81. The district court erred in denying the school district’s JNOV motion with respect to Navarre’s lost-wages and loss-of-earning-capacity damage claim.

IV

Because we have already concluded that the school district is entitled to a new trial, we do not address the school district’s claims of attorney misconduct and jury misconduct. Many of the offensive remarks and the alleged punitive attitude of the jury came about because of evidentiary rulings that we have addressed and are unlikely to reoccur on retrial.

Likewise, we need not address in detail the school district’s claim that it is entitled to a new trial based on the district court’s failure to exclude statements and articles that did not violate the MGDPA and failure to instruct the jury that several claims against the school district and other named defendants had been dismissed.

Evidentiary rulings are normally left to the sound discretion of the district court. Verhel v. Independent Sch. Dist. No. 709, 359 N.W.2d 579, 591 (Minn. 1984). In this case, the district court expressed some concern that the school district might be held accountable for non-actionable events, but, after first agreeing to give the school district’s requested instruction on dismissed claims, it ultimately declined to give such an instruction or to exclude articles, letters, and statements that did not violate the MGDPA. Because the court properly instructed the jury on causation, the school district was not prejudiced by the court’s discretionary decision not to instruct the jury on dismissed claims. See e.g., Fortney v. Al Hajj, 188 W.Va. 588, 425 S.E.2d 264, 269 (1992). On retrial, careful consideration must be given once again to instructing the jury on causation so that any award is based solely on damage that Navarre establishes was directly caused by the release of information in violation of the MGDPA, rather than on non-actionable release of information by the district or the press.

V

Because we are reversing and remanding, we do not consider the school district’s claim that the district court abused its discretion in denying its motion regarding attorney fees and costs.

DECISION

The district court erred as a matter of law in determining the number and substance of the school district’s MGDPA violations. The district court abused its discretion by prohibiting the school district from presenting evidence of Navarre’s preexisting mental condition and prior reputation, by submitting Navarre’s loss-of-reputation claim to the jury, and by submitting Navarre’s wage-loss claim to the jury. The school district is entitled to a new trial.

Reversed and remanded.

      . The record reflects that the district court "noted” but did not rule on the motion and objections.

      . Minn.Stat. § 466.04, subd. 1(1) (1996), contained a cap of $200,000 for a municipality's liability for any claim within the scope of the statute. We agree with Navarre that this limitation on a municipality’s tort liability does not apply to this action for a statutory violation.

      . That Bradley arose under the Minnesota Human Rights Act, which expressly authorizes "damages for mental anguish or suffering," is not significant because the MGDPA authorizes “any damages.” Cf. Minn.Stat. §§ 363.071, subd. 2 (2000), 13.08, subd. 1 (emphasis added). The term "any damages” certainly includes mental-anguish damage.