This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Jeffrey Kuberka,





Anoka Mediation, Inc., et al.,



Filed January 2, 2007


Ross, Judge


Anoka County District Court

File No. C2-04-11963



Terri A. Melcher, Larson & Melcher, 6401 University Avenue Northeast, Suite 201, Fridley, MN 55432 (for respondent)


Timothy R. Murphy, Melissa A. Herink, O’Neill & Murphy, LLP, 1050 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for appellants)



            Considered and decided by Klaphake, Presiding Judge; Worke, Judge; and Ross, Judge.


U N P U B L I S H E D   O P I N I O N


ROSS, Judge


On appeal from an order denying summary judgment on grounds of quasi-judicial immunity, Kathleen Brandvold and Anoka Mediation, Inc., argue that the district court erred by holding that immunity does not preclude civil liability for Brandvold’s conduct as a custody evaluator.  Because Jeffrey Kuberka alleged misconduct by Brandvold that occurred before she became the custody evaluator, and because genuine issues of material fact exist concerning whether she fraudulentlysecured the position and whether she acted outside the scope of any proper court appointment, we affirm.



This appeal arises out of alleged misconduct by Kathleen Brandvold while acting as a parenting-time expeditor and custody evaluator for Jeffrey and Julie Kuberka.  Brandvold is the owner and an employee of Anoka Mediation, Inc.  In March 2002, the Kuberkas retained Brandvold as their mediator during marital-dissolution proceedings.  The Kuberkas resolved most issues related to the dissolution through mediation, but were unable to resolve which parent would have custody of their four minor children.  The Kuberkas ended their contractual relationship with Brandvold as a mediator in November 2002.

            In a temporary order issued in April 2003, the district court gave the parties joint legal custody of the children and granted Jeffrey Kuberka sole physical custody. The court ordered the parties to Anoka County Court Services for a custody evaluation, and further directed them to select a parenting-time expeditor. The Kuberkas stipulated that Brandvold would be their parenting-time expeditor.  In a May 2003 order, however, the district court appointed Brandvold as both the expeditor and the custody evaluator.  Jeffrey Kuberka objected to Brandvold serving as custody evaluator.  Because Brandvold told the court that she was nearly done with her evaluation, the court allowed her to remain as custody evaluator, but the court also directed Anoka County to conduct a separate custody evaluation.

            Brandvold submitted her parenting-time evaluation to the court in June 2003 and her custody recommendations in November 2003.  Brandvold recommended that joint legal custody continue and that the court grant Julie Kuberka sole physical custody of the children.  Anoka County recommended that the parties have joint legal custody and that the court grant Jeffrey Kuberka sole physical custody.  The Kuberkas later agreed that giving Jeffrey Kuberka sole physical custody was in the best interests of the children and the court entered a stipulated judgment in November 2004.

In December 2004 Jeffrey Kuberka filed a complaint in district court against Brandvold and Anoka Mediation, alleging that Brandvold misrepresented her qualifications to the Kuberkas and to the court and that she should not have accepted the court’s appointment as a custody evaluator.  Jeffrey Kuberka also alleged incidents of misconduct in Brandvold’s performance as a parenting-time expeditor and custody evaluator.  He claimed that, as a result of her misrepresentations and performance, he incurred financial loss from the cost of her services.  Brandvold denied the allegations and asserted a breach-of-contract counterclaim for unpaid fees.

Brandvold and Anoka Mediation moved for summary judgment on all claims and her counterclaim.  They asserted that statutory immunity protected Brandvold from liability for her acts as a parenting-time expeditor, and that quasi-judicial immunity and vicarious quasi-judicial immunity precluded liability for her acts as a custody evaluator.  The district court agreed that statutory immunity protected Brandvold’s actions as a parenting-time expeditor, but denied summary judgment on grounds of quasi-judicial immunity for her acts as a custody evaluator.  The court also denied summary judgment on Brandvold’s counterclaim.  Brandvold and Anoka Mediation appeal, challenging the district court’s conclusion that quasi-judicial immunity does not apply to Brandvold.  The denial of summary judgment on Brandvold’s counterclaim is not at issue in this appeal.



On appeal from summary judgment, we review the evidence in the light most favorable to the nonmoving party and determine whether any genuine issues of material fact exist and whether the district court erred in its application of the law.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997); State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

Judicial immunity protects judges from civil liability for judicial acts, regardless of whether the judge’s decisions were erroneous or the result of improper motives.  Stewart v. Case, 53 Minn. 62, 66, 54 N.W. 938, 938 (1893).  The rationale underlying judicial immunity is that imposingcivil liability for a judge’s official acts “would deprive the judges of the protection which is regarded as essential to judicial independence.”  Linder v. Foster, 209 Minn. 43, 47, 295 N.W. 299, 301 (1940).  Immunity extends to all classes of courts and to judicial officers.  Id. at 46-47, 295 N.W. at 300-01.  Quasi-judicial immunity protects a judicial officer from liability in a civil action that challenges the officer’s exercise of clearly conferred judicial authority.  Id. at 47-48, 295 N.W. at 301.  The rationale for this type of immunity mirrors that of judicial immunity: quasi-judicial immunity enables judicial officers to act without fear of personal consequences when discharging official duties.  Id. at 45-47, 295 N.W. at 300-01.

Courts have applied quasi-judicial immunity to persons who are an integral part of the judicial process.  See Myers v. Price, 463 N.W.2d 773, 775 (Minn. App. 1990) (recognizing that because judicial immunity protects judicial process, immunity “extends to persons who are integral parts of that process”), review denied (Minn. Feb. 4, 1991).  Quasi-judicial immunity has been applied to court-appointed commissioners, psychiatrists, medical doctors, assessors, social workers, and therapists.  See Linder, 209 Minn. at 47-48, 295 N.W. at 301 (discussing application of doctrine in Minnesota and other jurisdictions and finding it applied to court-appointed physicians and surgeons); Stewart, 53 Minn. at 66, 54 N.W. at 938 (applying immunity to court-appointed assessor); Myers, 463 N.W.2d at 775-76 (applying immunity to social worker and therapist appointed by court to evaluate counseling needs of parties’ children).  Quasi-judicial immunity, however, is not absolute and an officer is protected only when acting within the scope of a court appointment.  Myers, 463 N.W.2d at 776.

Although this court has declined to extend immunity to a custody evaluator who was not court-appointed, we agree that the rationales underlying immunity would extend to a court-appointed custody evaluator.  See Zagaros v. Erickson, 558 N.W.2d 516, 523 (Minn. App. 1997) (holding that immunity did not apply to non-court-appointed evaluator and noting that “the doctrine of judicial immunity protects those who are appointed by the court to perform judicial or quasi-judicial functions”), review denied (Minn. Apr. 17, 1997). The district court has the discretion to order a custody evaluation.  Minn. Stat. § 518.167, subd. 1 (2004).  A custody evaluator acting under a court order should be able to conduct the evaluation without fear of personal liability when performing official duties.  A custody evaluator is in an assistive position akin to other officials who have been held to have quasi-judicial immunity, such as a court-appointed psychiatrist, physician, or therapist.  The evaluator is asked to provide the court with an opinion about a requested subject central to the court’s judicial function and must undertake certain evaluative and reporting actions to produce that opinion.

Because of the nature of Jeffrey Kuberka’s allegations and the alleged misconduct concerning Brandvold, however, the conclusion that a court-appointed custody evaluator has quasi-judicial immunity does not resolve the issues raised in his action.  Kuberka asserts misconduct by Brandvold not only in her role as custody evaluator, but also in securing the judicial appointment through misrepresentation.  The proper focus regarding securing the appointment is not on Brandvold’s individual acts as the evaluator, but on the actions she undertook to become the evaluator, before immunity would attach.  If Brandvold affirmatively misrepresented her ability to perform a custody evaluation, the subsequent damages Jeffrey Kuberka incurred stem from reliance on this initial misrepresentation.  On the undeveloped record before us, we express no opinion on the merits of Kuberka’s claim, but viewing the facts in the light most favorable to him, we agree that the district court properly denied summary judgment.  Material factual disputes exist, first, on the issue of whether Brandvold was qualified to conduct a custody evaluation, and second, on whether Brandvold misrepresented her qualifications to the court and the Kuberkas.  Further, as the district court noted, Jeffrey Kuberka challenges conduct that he claims exceeded Brandvold’s duties arising from her appointment as a custody evaluator and would therefore be unprotected by immunity.  Resolution of these material fact disputes is not appropriate on summary judgment.

The district court properly denied summary judgment on grounds of quasi-judicial immunity.  Because a determination of whether Brandvold is entitled to immunity is necessary to resolve whether Anoka Mediation is also protected by immunity, the district court properly denied summary judgment in response to Anoka Mediation’s effort to avoid liability through vicarious quasi-judicial immunity.