This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Shirleen Brey Reinarts, et al.,





County of Brown, et al.,



State Bank and Trust Company,



Cheryl Mathiowetz, et al.,



Filed March 11, 2003

Klaphake, Judge


Brown County District Court

File No. C1-01-376


T. Oliver Skillings, Skillings & Associates, 100 Voyager Bank Building, 107 North Second Street, Mankato, MN  56001 (for appellants)


Michael J. Ford, Quinlivan & Hughes, P.A., 400 South First Street, 600 Wells Fargo Center, St. Cloud, MN  56302-1008 (for respondents County of Brown, et al.)


Lawrence J. Hayes Jr., Knutson, Flynn & Deans, P.A., Suite 10, 1155 Centre Pointe Drive, Mendota Heights, MN  55120 (for respondents Cheryl Mathiowetz, et al.)


            Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellants Shirleen Reinarts, on her own behalf and on behalf of her minor children, and Mark Reinarts, challenge the district court’s grant of summary judgment to respondents Brown County (the county) and the New Ulm School District (the school district).[1]  N.B., one of Shirleen Reinarts’s minor children, is paralyzed from the chest down and receives special education services from the school district.  Representatives of the school district notified county officials that they suspected N.B. was neglected.  County officials obtained consent to enter appellants’ residence, which is titled in N.B.’s name, from the conservator of N.B.’s estate, and documented the condition of the residence.  Evidence obtained from the entry was used in a later CHIPS proceeding.

            Appellants thereafter brought this action against the county under 42 U.S.C. § 1983 (2000) for violation of their civil rights based on the entry of their residence, and against the school district for defamation and intentional and negligent infliction of emotional distress.  In granting summary judgment to all respondents, the district court determined that dismissal was required because there were no genuine issues of material fact, because county officials had lawful consent to enter the residence, and because various forms of immunity applied to respondents.  Because the district court did not err in concluding that the county did not violate appellants’ constitutional rights when entry was by consent and because appellants failed to produce facts supporting basic elements of their tort claims, we affirm.


            On appeal from an order granting summary judgment, the reviewing court must determine whether the case raises genuine issues of material fact and whether the district court erred in its application of the law.  Offerdahl v. Univ. of Minn. Hosps. & Clinic, 426 N.W.2d 425, 427 (Minn. 1988).  No genuine issue of material fact exists where “reasonable minds can arrive at only one conclusion.”  Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn. 1995).  The party opposing summary judgment must do more than rest on mere averments; a genuine issue for trial must be established by substantial evidence.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69-71 (Minn. 1997).  This court views the evidence in the light most favorable to the party against whom summary judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

            1.         Constitutional Violations 

            Appellants’ § 1983 action is based on their claim that the county illegally and unconstitutionally entered their home.  To establish a claim under 42 U.S.C. § 1983 (2000), appellants must establish that the deputy, acting under color of state law, violated their rights under the federal constitution.  See Johnson v. Morris, 453 N.W.2d 31, 34-35 (Minn. 1990).  The district court dismissed this claim based on its determination that the record established no deprivation of constitutional rights because the conservator’s consent was lawfully obtained.  With consent, police may enter and search a home.  State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992).  Consent is voluntary if it is “the product of an essentially free and unconstrained choice by its maker,” rather than the product of duress or coercion, express or implied.  Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 2047 (1973).  Consent is involuntary, on the other hand, if it results from circumstances that overbear the consenting party’s will and impairs his or her capacity for self-determination.  Id.

            The record here supports the district court’s conclusion that the conservator voluntarily gave county officials permission to enter appellants’ residence.  Although the conservator initially declined to grant the requested permission, it was granted after the deputy said “for the safety and protection of [N.B.], I need to enter and inspect this home right now.”  This statement does not rise to the level of overbearing the conservator’s will or his capacity for self-determination, thereby making the consent involuntary.  Nor does any evidence suggest that the conservator believed he had no choice but to permit the deputy entry to the residence.  In addition, based on other evidence presented under seal to the district court, it is clear that the conservator was aware that the deputy did not consider the situation an emergency.  Thus, the district court properly concluded that no genuine issue of material fact existed as to whether county officials coerced the conservator’s consent to enter appellants’ residence.

            Appellants argue in the alternative that if the conservator’s consent to enter the residence was not coerced, it was unconstitutional because the conservator had no authority to give such consent.  A person with “common authority” or other sufficient relationship to the premises may consent to the search of a home.  State v. Pilot, 595 N.W.2d 511, 519 (Minn. 1999) (quotation omitted).  A trust instrument may convey the right of entry to trustees.  See Pietila v. Congdon, 362 N.W.2d 328, 331-32 (Minn. 1985) (finding that trust instrument gave trustees right to enter trust property). 

The record supports the conservator’s legal authority to consent to the entry.  In his affidavit, the conservator admits that the home is an asset of N.B.’s estate and that he gave the county officials permission to enter, apparently believing he had authority to consent to the entry under the terms of the conservatorship.  The record also contains evidence that N.B.’s father believed the conservator had the authority to consent to the entry.  Appellants failed to rebut this evidence with conclusive proof that they had exclusive control of the property.  Because the conservator had the authority to consent, there is no deprivation of appellants’ constitutional rights under the Fourth Amendment.  Because there is no violation of constitutional rights, the district court did not err in granting summary judgment on appellant’s § 1983 action against the county.

In the alternative, appellants also argue that if the county officials were not acting with lawful consent, they are not entitled to qualified and statutory immunity under the execution of a statute.  Because we conclude that the county officials had lawful consent to enter appellants’ residence, we need not reach this immunity issue.

            2.         Tort Claims

            Appellants challenge the grant of summary judgment on their defamation claim against the school district.[2]  The elements of a defamation claim are (1) a false statement; (2) communicated to a third party; (3) resulting in harm to the plaintiff’s reputation and standing in the community.  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).  Generally, the truth or falsity of a statement is inherently within the province of a jury.  Lewis v. Equitable Life Assur. Soc’y, 389 N.W.2d 876, 889 (Minn. 1986).  But if the underlying facts are not in dispute, the issue of whether the statements are substantially accurate is a question of law for the court.  Jadwin v. Minneapolis Star  & Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986).  To prove falsity, a plaintiff cannot merely show that the statement is “not literally true in every detail.”  Id.  Minor “inaccuracies of expression or detail” are not significant and are immaterial if the statement is “true in substance.”  Id.  True statements, however disparaging, are not actionable.  Stuempges, 297 N.W.2d at 255.  The truth must go not only to the accuracy of the statement, but its underlying implications as well.  Lewis, 389 N.W.2d at 889.

            Appellants argue that the school district submitted documentation that contained false entries to the county officials in support of their belief that N.B. was neglected.  But evidence submitted to the district court under seal and presented at the CHIPS proceeding by N.B.’s one-on-one school assistant, the school nurse, and his case manager amply supports the district court’s conclusion that the documentation contained no false statements.  With the exception of two technically incorrect dates on which N.B. was said to have exhibited signs of neglect, the remaining substance of the documentation was true.  These two technical errors do not render untrue or false the documented signs of neglect that N.B. exhibited, which appellants do not challenge.  Thus, the district court did not err in granting summary judgment on appellants’ defamation claim.


[1] Individual employees of the county and the school district were also named as parties.  The summary judgment order extends to these individuals as well.


[2] Appellants do not specifically challenge the district court’s grant of summary judgment on their claims of intentional and negligent infliction of emotional distress.  Generally, issues not briefed on appeal are waived.  Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).  In any event, we agree with the district court that appellants failed to meet their burden of production regarding the severity of their emotional distress.  See Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 907-08 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987).