This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-1185

C2-96-1259

Nancy Marchetti,

Appellant,

vs.

Gregory Bechtold, et al.,

Respondents,

The Honorable Thomas P. Knapp,

Respondent.

Benton County District Court

File No. C7951155

Filed January 14, 1997

Affirmed

Amundson, Judge

Nancy Marchetti, 10734 West Lake Road, Rice, MN 56367 (pro se Appellant)

Dyan J. Ebert, Quinlivan Law Firm, 600 Norwest Center, P.O. Box 1008, St. Cloud, MN 56302 (for Respondents Gregory Bechtold, et al.)

Hubert H. Humphrey, III, Attorney General, Peter M. Ackerberg, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent the Honorable Thomas P. Knapp)

Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and

Toussaint, Chief Judge.

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

AMUNDSON, Judge

Appellant Nancy Marchetti challenges the district court's order dismissing her claims against respondent Judge Thomas Knapp and granting respondents summary judgment. We affirm.

FACTS

Nancy Marchetti owns property in Benton County. In September 1995, she attended a County Board of Adjustment hearing to request a variance allowing her to build a garage. The county tabled the request until more information could be obtained. Marchetti did not receive a variance or a land use permit that would allow her to build on the nonconforming property at the hearing or at any later time.

In October 1995, the county sent an environmental technician, Gregory Bechtold, to investigate whether Marchetti was building on her property without a variance or permit. Marchetti observed Bechtold taking pictures of her property. She informed him that he was trespassing and asked for the film in his camera. He stated that he was a county employee and left without surrendering the film. Marchetti called 911 and informed the operator that she was preparing to make a citizen's arrest and needed assistance in transporting the alleged criminal. The 911 operator told Marchetti to go to the sheriff's office, which is in the same building as the county offices.

Marchetti drove to the county offices looking for Bechtold. She explained the situation to the sheriff and asked for assistance in locating Bechtold. The sheriff refused. Marchetti then went upstairs to Judge Knapp's office and asked for assistance. The judge was unavailable and Marchetti left her name and number.

When Marchetti returned home she was served with a temporary restraining order (TRO) ordering her to cease construction on her property until a hearing. Marchetti then filed a complaint against Judge Knapp and Gregory Bechtold, et al., charging violation of her constitutional rights.

D E C I S I O N

I. Dismissal of Claims Against Judge Knapp

Marchetti argues that the district court erred in dismissing her suit against Judge Knapp for failure to state a claim on which relief can be granted.

In reviewing a case that was dismissed for failure to state a claim on which relief can be granted, the only question before this court is whether the complaint sets forth a legally sufficient claim for relief. See Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980).

Marchetti's claims against Judge Knapp are based on charges that he did not have jurisdiction to issue the TRO against her. She also claims that, by issuing an ex parte TRO, he conspired with others to deprive her of her constitutionally protected rights.

A district court judge may issue an ex parte TRO if there is impending irreparable harm and reasonable efforts have been made to notify the party or there are reasons why notice should not be required. Minn. R. Civ. P. 65.01.

In this case, the county claimed notice was not required because Marchetti was currently building on the property, which constituted irreparable harm. Judge Knapp issued the TRO to halt the construction until a hearing could held.

We conclude that the ex parte TRO was improperly issued. While it is true that Marchetti was building on the property, this did not constitute irreparable harm. If, after a hearing, it was determined that the garage was nonconforming, it could simply be torn down. Additionally, Marchetti had been in the county offices earlier that day and left her name and number with Judge Knapp, so that with reasonable efforts she could have been contacted.

However, despite our conclusion that Judge Knapp issued the TRO in error, Marchetti does not have a claim against him because he is entitled to judicial immunity. See Hoppe v. Klapperich, 224 Minn. 224, 235, 28 N.W.2d 780, 788 (1947) (A judge cannot be liable for action taken in his judicial capacity, "however erroneous or by whatever motives prompted").

Marchetti also asserts that Judge Knapp conspired against her by conducting a private meeting with county officials outside of her presence. Evidence in the record shows that the only meeting between county officials and Judge Knapp regarding Marchetti was the request for the TRO, which occurred after the county determined that Marchetti was unlawfully building on her property. Although the TRO was issued improperly, this meeting does not constitute a breach of proper judicial conduct because judges have authority to issue TROs without the presence of both parties. Although Judge Knapp improperly issued the ex parte TRO, Marchetti fails to state a legally sufficient claim for relief against him. Thus, the district court did not err in dismissing Marchetti's claims against Judge Knapp.

II. Summary Judgment to County Officials and Employees

Marchetti also claims that the district court erred in granting summary judgment to respondents Gregory Bechtold; Lynn Machula, a zoning administrator for the county; Robert Raupp, an assistant county attorney; the county; and the sheriff's office.

On appeal from summary judgment, this court must ask two questions: (1) whether there are any genuine issues of material fact, and (2) whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

Marchetti claims that the county failed to assist her in her citizen's arrest of Bechtold. A private citizen may arrest another if a felony has been committed and if the private citizen has reasonable cause to believe the person to be arrested committed it. Minn. Stat. § 629.37 (1994). Minnesota law also provides that the arresting citizen must inform the alleged criminal of the arrest and require that person to submit. Minn. Stat. § 629.38. The warning is not required if the criminal is arrested while committing the crime or while fleeing the crime scene. Id.

Marchetti stated that when she saw Bechtold she informed him he was trespassing and should leave. However, Marchetti did not inform him that she was arresting him, nor was he fleeing from her when he left. Marchetti did not follow the procedure outlined in chapter 629.

Counties have the authority to implement zoning ordinances. See Connor v. Chanhassen Township, 249 Minn. 205, 81 N.W.2d 789 (1952). Bechtold, a county employee, was merely investigating whether Marchetti was violating the ordinance. Even if Bechtold was guilty of trespassing, that is not a felony. See Minn. Stat. § 609.605. Because Bechtold was not committing a felony by taking pictures of Marchetti's property, and because Marchetti had not followed the procedure outlined in chapter 629, the sheriff was under no obligation to assist Marchetti in arresting Bechtold.

Marchetti also claims that the sheriff's office unlawfully served the TRO on her two friends who were assisting with the construction on the property. She claims that because the TRO was issued in her name only, it did not apply to her friends.

The TRO provided that Marchetti's "employees, agents, and persons acting under her direction and control" are restrained from erecting anything on the property. If Marchetti's friends were helping to build her garage, they were "acting under her direction and control." If they had continued to work on the garage, they could have been liable for ignoring the order. Thus, they, along with Marchetti, were properly served with the TRO.

As with Marchetti's claim against Judge Knapp, even if the TRO had been served in error, Bechtold, Machula, and Raupp cannot be held personally liable because they were acting in an official capacity. The Minnesota Supreme Court has stated:

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.

Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976).

Bechtold, Machula, and Knapp were clearly doing their job. There is no evidence that investigation into the zoning violation or the service of the TRO was a willful or malicious wrong. The district court did not err in granting summary judgment in favor of Bechtold, Machula, and Knapp.

III. Denial of Discovery

Marchetti claims that the district court abused its discretion by nullifying her attempts at discovery. The district court cancelled her scheduled depositions and quashed the subpoenas she served on the respondents.

A district court has wide discretion to issue discovery orders and, absent clear abuse of that discretion, its decision will not be disturbed. Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990).

In this case, the district court determined that even if all of Marchetti's factual allegations were true, summary judgment would still be appropriate. Once this was determined, holding depositions was unnecessary.

The district court did not abuse its discretion by denying discovery by Marchetti once summary judgment had already been granted.

IV. Bias of Judge Weyrens

Marchetti alleges that Judge Weyrens, the district court judge in this case, should have been removed for bias. She claims that he had a vested interest in the outcome of her case.

In her brief, Marchetti claims that Weyrens, in his order, refers to a hearing that never actually occurred. Marchetti claims this was fraudulent and illustrates his bias.

In the orders signed March 7, 1996 and April 12, 1996, Judge Weyrens stated that the matters "came before the court" on the hearing dates. The transcripts of the hearings are included in the record, and Marchetti attended the hearings. There is no support for her allegations that the hearings did not occur and that Judge Weyrens committed perjury by stating that they occured.

Marchetti further alleges that Judge Weyrens's failure to invalidate the TRO and to hold Judge Knapp liable for its issuance is evidence of his bias against Marchetti.

In a court memorandum, Judge Weyrens discussed the TRO issued by Judge Knapp and found that it was issued properly. Judge Weyrens also stated that even if the TRO had been issued improperly, Judge Knapp would be entitled to judicial immunity. Whether a hearing actually occurred prior to issuance of the TRO is immaterial. There is simply no evidence that Judge Weyrens's actions constituted bias against Marchetti.

Affirmed.