This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).


Becky Lou Sather, f/k/a Becky Lou Enstad,


Yellow Medicine County, et al.,
Defendants and Third-party Plaintiffs,


Jerel Lee Enstad,
Third-party Defendant,

Filed August 27, 1996
Peterson, Judge

Yellow Medicine County District Court
File No. C99525

Harry D. Hohman, Wojtalewicz, Hohman, & Schoep, Chartered, 139 North Miles Street, Post Office Box 123, Appleton, MN 56208 (for Appellant)

Arvid Wendland, Wendland and Alm, 825 East Second Street, Blue Earth, MN 56013 (for Respondents Yellow Medicine County, et al.)

Stephen Torvik, Nelson, Oyen, Torvik, 221 North First Street, Post Office Box 656, Montevideo, MN 56265 (for Respondent Jerel Enstad)

Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.


In this negligence and legal malpractice action, Becky Sather argues the district court erred in granting summary judgment on immunity and res judicata grounds for the county, the county attorney, and the county child support enforcement officer. Sather also argues the district court erred in dismissing sua sponte her complaint against the county attorney in his individual capacity for failure to state a claim. We affirm.

The 1977 decree dissolving the marriage of appellant Becky Sather and respondent Jerel Enstad ordered him to pay support for their two children. Respondent Thomas Kramer, acting as a private attorney, represented Sather in the dissolution. Kramer was also the Yellow Medicine County Attorney. After the dissolution, Sather received Aid to Families with Dependent Children and child support enforcement services through Yellow Medicine County. Respondent Lennis Markgraf was the county child support officer assigned to Sather's case.
Sometime after May 1985, Sather learned that the decree dissolving Enstad's second marriage ordered him to pay more support for the child of that marriage than for his two children with her. Sather asked the county to seek modification of Enstad's support obligation for their two children. In November 1988, Markgraf asked Enstad to submit financial statements to the county. Markgraf scheduled a modification hearing, but when Markgraf and Kramer, acting as the county attorney, reviewed the financial information provided by Enstad, they determined it did not support a modification and cancelled the hearing. Sather later retained a new private attorney and, in 1993, obtained a substantial increase in Enstad's support obligation.
Sather then sued Yellow Medicine County, Kramer, and Markgraf for negligence and malpractice. Sather argued that if Kramer and Markgraf had investigated Enstad's financial condition in 1988, they would have discovered that the financial statements he submitted did not include crop insurance and disaster relief payments that he received in late 1988. Sather argued that this additional income would have supported a modification of Enstad's support obligation and that she lost at least $17,000 in increased support due to the failure to investigate.
Yellow Medicine County, Markgraf, and Kramer in his official capacity filed a third-party complaint against Enstad seeking indemnity and contribution. Yellow Medicine County, Markgraf, and Kramer in his official capacity then sought summary judgment on immunity grounds on Sather's claims. Enstad joined the summary judgment motion and also argued that res judicata barred Sather's claims because her entitlement to increased support and his misrepresentation of his finances in 1988 had been tried and decided against Sather in the 1993 modification action. In response to the summary judgment motion, Sather specified that she was suing Kramer in both his official and individual capacities.
The district court granted summary judgment for respondents. The court held that official immunity protected Markgraf and Kramer in his official capacity from Sather's claims and that vicarious official immunity protected the county. The court also held that res judicata barred Sather's claims. Finally, the court sua sponte dismissed Sather's complaint against Kramer in his individual capacity for failure to state a claim.

1. Respondents argue this court has no jurisdiction to hear Sather's appeal of the dismissal of her complaint against Kramer in his individual capacity because she never served him in his individual capacity with a notice of appeal. We agree.
Where an appellant fails "to serve respondent with notice of his appeal within the 90-day limit" for appeal from a judgment, "this court has no jurisdiction to consider the matter."

Wise v. Bix, 434 N.W.2d 502, 503-04 (Minn. App. 1989) (quoting Petersen v. Petersen, 352 N.W.2d 797, 797 (Minn. App. 1984)).
The record here fails to show that Sather served her notice of appeal personally on Kramer in his individual capacity. Service of the notice of appeal on a member of the law firm that represented the county, Markgraf, and Kramer in his official capacity was not effective service on Kramer in his individual capacity because that law firm did not represent Kramer in his individual capacity. Because Sather failed to serve Kramer in his individual capacity with notice of her appeal within the 90-day period for appeal from the judgment, we have no jurisdiction to consider whether the dismissal of the complaint against Kramer in his individual capacity was improper.
2. On appeal from a summary judgment, a reviewing court must examine the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). We must view the evidence in the light most favorable to the nonmoving party. Id. But we are not bound by a district court's decision on a question of law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).
A county is liable for its torts and the torts of its employees acting within the scope of their employment. Minn. Stat. § 466.02 (1994). The official immunity doctrine, however,
provides that "a public official charged by law with duties which call for the exercise of his judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong."

Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988) (quoting Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976)). Official immunity
protects public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties.

Id. at 678.
Official immunity does not protect employees from liability arising out of the performance of a ministerial duty. S.L.D. v. Kranz, 498 N.W.2d 47, 50 (Minn. App. 1993). To determine if an act is a protected discretionary duty or an unprotected ministerial duty, the nature, quality, and complexity of the decision-making process must be considered. Id. A duty is ministerial when it is certain and absolute, involving mere execution of a specific duty arising from fixed facts. Id.
Sather admits that official immunity protects the decision regarding whether to bring a support modification motion. But Sather argues that after the decision to bring a modification motion has been made, the proper handling of that motion, including the compilation and investigation of the obligor's financial information, is a ministerial duty unprotected by official immunity. We disagree.
The county attorney and Markgraf said it was standard practice to rely on the financial information provided by an obligor to determine whether to seek modification of a support obligation and that the county did not have the resources to conduct additional investigation into the obligor's financial condition unless obvious inconsistencies were noted in the provided information. The county attorney and Markgraf said they examined Enstad's financial data, determined there were no obvious discrepancies in that information, and decided not to investigate further. The decision not to investigate Enstad's financial condition involved the exercise of judgment and discretion and, therefore, was protected by official immunity. See Hyland v. State, 509 N.W.2d 561, 565 (Minn. App. 1993) (official immunity protected decisions regarding how to conduct investigation into violation of motor carrier laws), review denied (Minn. Feb. 24, 1994); S.L.D., 498 N.W.2d at 52-53 (decision whether to investigate report of child abuse was discretionary and protected by official immunity).
A government vicariously will enjoy an employee's official immunity when the threat of liability against the government would unduly influence the employee from exercising independent judgment in decision-making. S.L.D., 498 N.W.2d at 51. Here, the threat that the county could be held liable for its employees' decisions to rely on financial information provided by a support obligor and to refrain from further investigation of the obligor's finances would unduly influence the employees making those decisions to refrain from exercising their independent judgment. Accordingly, the county is vicariously immune from liability for Sather's claims.
Given our decision that official and vicarious official immunity apply in this case, we need not consider whether Sather's claims also were barred by res judicata.