may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Commissioner Michael Jordan, et al.,
City of Newport,
Filed April 7, 1998
Washington County District Court
File No. C3964196
Stephen W. Cooper, Stacey R. Everson, The Cooper Law Firm, Chartered, 4747 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for appellant)
Hubert H. Humphrey III, Attorney General, P. Kenneth Kohnstamm, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128 (for respondent Commissioner)
Pierre N. Regnier, Joseph E. Flynn, Jardine, Logan & O'Brien, P.L.L.P., 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101-2160 (for respondent City of Newport)
Considered and decided by Schumacher, Presiding Judge, Shumaker, Judge, and Mansur, Judge.
Appellant brought various tort claims against the City of Newport and the State of Minnesota. The state was granted summary judgment on the grounds of official and statutory immunity and of appellant's failure to make a prima facie case for her tort claims; the claims against Newport were dismissed as lacking evidentiary support. Because we see no error of law, we affirm.
In March 1991, appellant Michelle Warner purchased a set of personalized license plates reading "EVIL 54" for her vehicle, a 1978 white Chevy Blazer. The Blazer, with the plates, was stolen in February 1992; it has never been found.
Appellant replaced it with a 1976 white GMC Jimmy, for which she purchased a second set of "EVIL 54" license plates in March 1992. The two vehicles were very similar, except that one said Chevy Blazer and the other said GMC; the license plates were identical, except that the tabs were for different years.
As appellant was driving one night, Paul Gorski, a state trooper, noticed the window tint and bumper height of her vehicle. When Gorski checked "EVIL 54" on his computer, he learned these license plates had been issued to a stolen 1978 Blazer and to a 1976 Jimmy. In the dark, Gorski could not tell whether appellant's vehicle with "EVIL 54" license plates was a Jimmy or a Blazer. Assuming it was the stolen Blazer, he sent out a call for backup.
Other state troopers, among them Kenneth Drevnick, responded, as did some local police officers. One of the local police cars flashed its red lights behind appellant, who responded by pulling onto the shoulder and stopping. This car and two troopers' cars pulled up behind her. Gorski and Drevnick then followed the procedure they had been trained to use when stopping and apprehending dangerous felons. They opened their car doors and drew their guns. Gorski used a loudspeaker to tell appellant to roll down her window, throw her keys out of the car, and open her car door from the outside. Once out of the car, she was told to turn her back to the officers, not look at them, and walk backwards toward them, then to get down on her knees, and finally to lie face down on the street with her arms above her head. Appellant complied fully with these directions.
Some state troopers with guns drawn then approached appellant. One of them knelt with one knee on her back, pulled her hands behind her back, and handcuffed her. Appellant's head came up during this procedure; the officer said "I told you not to look at me" and pushed her head down, knocking her glasses off and causing a half-inch abrasion on her eyebrow. Two troopers then picked appellant up, searched her, and put her in the back seat of the patrol car. One of the troopers then told appellant that her vehicle appeared as a stolen car. Appellant explained that her previous car, bearing the same license plates, had indeed been stolen a year earlier. Her driver's license indicated that she was the owner of the vehicle she was driving. However, when the troopers looked for the vehicle identification number (VIN) on her car in the usual place on the dashboard, it was missing. After looking for about 15 minutes, they found two VINs: one on the doorpost, which matched the registration on appellant's car, and another on the engine, which did not match. Because the stolen vehicle specialist was unavailable, the officers decided to impound appellant's car. Gorski then drove appellant to her home, about five minutes away. About 36 minutes elapsed between the time appellant was stopped and the time she returned home. She retrieved her car from the impound lot the next day.
Appellant brought this action against the State of Minnesota, specifically the public safety and transportation departments, their commissioners, and unnamed highway patrol officers (Minnesota respondents or state), and the City of Newport, David Anderson and unnamed Newport officers (Newport respondents or Newport). She alleged negligence, intentional and negligent infliction of emotional distress, false imprisonment, assault and battery, and defamation.
More than four years after the incident, appellant's attorney deposed Fred Leimbek, the Newport police officer who had responded to the call for backup and who was the only Newport officer on duty that night. Leimbek testified that he drove to the scene, that he arrived after appellant's vehicle had been stopped, that he got out of his car but did not draw his gun, that he had no interaction with appellant or her vehicle, that he left after 20 minutes, and that he did not remember all the officers who were present and what they did. Newport respondents moved for dismissal on the ground that there had been no Newport involvement in the acts of which appellant complained; Minnesota respondents moved for summary judgment on the grounds that their actions were protected by official and statutory immunity and that appellant failed to make a prima facie case for any of the five torts. Appellant challenges the summary judgment granted the Minnesota respondents and the dismissal of her claims against the Newport respondents. Newport requests attorney fees on appeal.
Appellant argues that respondents were not entitled to summary judgment on the grounds of official immunity and that fact issues precluded summary judgment on the tort claims.
A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.
Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
a. Official immunity
"[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. Rice County, 423 N.W.2d 671, 677 (Minn. 1988) (quoting Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976)).
As a threshold matter, appellant argues that official immunity cannot apply vicariously to the State of Minnesota and the City of Newport. The supreme court addressed the question in Pletan v. Gaines, 494 N.W.2d 38 (Minn. 1992).
In the final analysis, whether to extend official immunity to the governmental employer is a policy question. Here, the need to protect the public must be balanced against the concern that the public not be put unduly at risk. * * * We hold, therefore, that with respect to high-speed police pursuits, the police officer's official immunity extends to the officer's public employer.
Id. at 42-43. A felony stop is sufficiently similar to a high-speed chase for the same reasoning to apply. We therefore hold that any official immunity of the officers would extend to their employers.
Appellant argues, however, that the officers were not protected by official immunity because their acts were only ministerial.
Official immunity involves the kind of discretion which is exercised on an operational rather than a policymaking level, and it requires something more than the performance of "ministerial" duties.
Pletan, 494 N.W.2d at 40. Appellant claims that the officers simply followed the procedures for making a felony stop without having a sufficient basis to make a felony stop. Appellant is actually challenging not the officers' failure to follow the felony stop procedure correctly but rather their decision to use the felony stop procedure at all. However, this decision was "discretion * * * exercised on an operational rather than a policymaking level," id., and is therefore entitled to official immunity. See also Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994) (decision to stop and detain a motorist suspected of armed robbery); Pletan (pursuing a fleeing criminal suspect in a police car); Johnson v. Morris, 453 N.W.2d 31 (Minn. 1990) (decision to apply handcuffs); Elwood, 423 N.W.2d at 673 (warrantless entry into home and restraint of participants in domestic dispute); Leonzal v. Grogan, 516 N.W.2d 210 (Minn. App. 1994) (handcuffing and bruising plaintiff in course of responding to 911 call), review denied (Minn. July 27, 1994); Reuter v. City of New Hope, 449 N.W.2d 745 (Minn. App. 1990) (decision to detain mother of two children because she was believed to be mentally ill), review denied (Minn. Feb. 28, 1990). The decision to execute a felony stop on appellant was not ministerial.
Appellant then argues that even if respondents were entitled to official immunity, that immunity is defeated because the officers' acts were illegal, malicious, and involved the excessive use of force. We disagree: none of these exceptions applies. Appellant cites State v. Hickman, 491 N.W.2d 673 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992), to argue that detaining her and impounding her vehicle violated her legal rights. Hickman is distinguishable: the officer who was denied immunity stopped a car for expired license tabs but saw and read a 21-day permit in the rear window as he approached the car. Although he had no further grounds for suspicion about the legality of the car's registration, he nevertheless asked to see the driver's license and charged the driver with driving after revocation. Id. at 674. Here, the officers' suspicion about appellant's vehicle began with learning that a vehicle similar to the one she was driving and bearing identical "EVIL 54" license plates had been stolen; this suspicion was not dispelled when they found no VIN on the dashboard and two different VINs in the vehicle. Appellant's reliance on Hickman is misplaced. The officers did not act illegally, and are therefore not deprived of immunity.
Appellant relies on Soucek v. Banham, 503 N.W.2d 153 (Minn. App. 1993), to argue that the officers' acts were malicious and unreasonable. Soucek denied official immunity to officers who shot the plaintiff's German shepherd and claimed they thought the dog was a wolf. That claim was contradicted by the testimony of eyewitnesses who said it was clear from the officers' demeanor that they knew the animal was a dog, not a wolf, that they had shot it maliciously, and that the shooting was something of a joke or amusement to them. Id. at 157. Here, there is no evidence that the officers knew appellant's car was not a stolen vehicle. Soucek is distinguishable. Malice does not preclude official immunity.
Appellant's final challenge to the finding of official immunity is that the officers used excessive force. "[A] police officer using unreasonable force violates the Fourth Amendment's protection against unreasonable search and seizure." Baker v. Chaplin, 517 N.W.2d 911, 914 (Minn. 1994) (citing Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865 (1989)). Appellant claims that because she was "a forty year old, unarmed, five foot tall woman, who was docile, fearful, and cooperative," the officers' acts in placing a knee on her back to handcuff her and then escorting her to the squad car were an application of excessive force. Her argument that the officers knew immediately after the stop that she posed no threat to them is unpersuasive: until the officers searched her, they did not know she was unarmed.
Appellant relies on Baker to argue that there is a fact issue as to the excessiveness of the force used, but in Baker, unlike here, there were "several key areas of disagreement between the parties regarding [what happened during] this incident." Id. at 913. These fact issues precluded summary judgment. Id. at 912. Appellant cites no genuine issues of material fact concerning what happened here. Moreover, Baker clearly states that the issue is whether the force was excessive "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396, 109 S. Ct. at 1872, quoted in Baker, 517 N.W.2d at 916. Appellant's reliance on Baker is unpersuasive. From the perspective of a reasonable officer who had no way of knowing if or to what extent appellant was armed, the force used was not excessive.
b. The tort claims
Appellant argues that genuine issues of material fact preclude summary judgment on her claims of negligence, false imprisonment, assault and battery, and intentional infliction of emotional distress. However, appellant did not allege a prima facie case for any of the claims.
Appellant argues that the state was negligent in failing to maintain accurate records because it did not delete from its records the stolen vehicle that carried her first set of "EVIL 54" license plates. A claim for negligence requires a duty, a breach of that duty, damage to the plaintiff, and that the breach be the proximate cause of that damage. Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996). Appellant has not shown that the state had a duty to delete references to stolen vehicles or breached its duty to maintain accurate records. In fact, as the district court noted, the state maintained and provided to the officers completely accurate information that two vehicles, one of them stolen, bore "EVIL 54" plates. Appellant's claim for negligence fails.
Appellant argues that her detention met the false imprisonment criteria of words or acts intended to confine, actual confinement, and awareness of the victim that confinement has occurred. Blaz v. Molin Concrete Products Co., 309 Minn. 382, 385, 244 N.W.2d 277, 279 (1976). We agree that appellant was confined. However, in the context of an arrest by legal authorities, the essential elements of a claim for false imprisonment are the arrest and the unlawfulness of the arrest. Lundeen v. Renteria, 302 Minn. 142, 146, 224 N.W.2d 132, 135 (1974). Appellant's arrest was not unlawful, so that element is not met.
Nor was appellant detained for an unreasonable amount of time. See Anderson v. Averbeck, 189 Minn. 224, 248 N.W. 719 (1933) (holding that detaining a lawfully arrested person for an unreasonable amount of time constitutes false imprisonment). Appellant was confined for about a half hour, from the time the officers stopped her vehicle until they agreed to drive her home. In light of the time spent searching for VIN numbers in an effort to determine whether all or part of appellant's vehicle had been stolen, this amount of time was not unreasonable.
Appellant also argues that there is a factual issue as to when the officers knew that her vehicle was not the stolen Blazer bearing "EVIL 54" license plates. There is no dispute that the officers realized that the vehicle appellant was driving was not the Blazer after they inspected it. However, the officers never concluded that her vehicle was not stolen or composed of some stolen parts; they therefore impounded it. The officers released appellant shortly after learning that she was the registered owner of the vehicle she was driving. While appellant was briefly confined, she was not falsely imprisoned.
Assault and Battery
Appellant cites Minn. Stat. § 609.06, subd. 1 (1996), to argue that she was subjected to excessive force and restraint. The statute provides that public officers may use reasonable force against the person of another when effecting a lawful arrest. Appellant argues that the arrest force used on her was not reasonable, particularly when an officer placed his knee on her back while handcuffing her and when officers escorted her to the car. These acts complied with the procedures officers had been taught to follow when effecting a felony arrest.
Appellant relies on Paradise v. City of Minneapolis, 297 N.W.2d 152 (Minn. 1980), and Altman v. Knox Lumber Co., 381 N.W.2d 858 (Minn. App. 1986), review denied (Minn. Apr. 11, 1986), both finding that an officer's use of force had been excessive. Both cases are distinguishable. In Paradise, the wrist of an admittedly obstreperous victim was found to be broken after he had been handcuffed. 297 N.W.2d at 154. The court held that there were unresolved fact issues on whether the officer's acts caused the victim's injury. Id. at 155-56.
In Altman, the victim was detained by in-store security personnel. The court upheld the jury verdict that the act of a 28-year-old weightlifter in pinning a 73-year-old customer to his chair was unreasonable force, noting that the jury apparently believed the victim's testimony that his arms were twisted and lifted so he screamed in pain. 381 N.W.2d at 864. Both cases are distinguishable in that appellant was not damaged beyond a small bruise. Her claim for assault and battery fails.
Intentional Infliction of Emotional Distress
Appellant argues that material fact issues preclude summary judgment on her claim for intentional infliction of emotional distress. She does not identify these issues, but relies on Leaon v. County of Washington, 397 N.W.2d 867 (Minn. 1986). Leaon concerned a deputy police officer who, while at a stag party arranged and attended by other deputies, was forced to have contact with a nude female dancer. Id. at 869. The court agreed that, based on these facts, the officer could have a claim for intentional infliction of emotional distress. Id. at 873. However, the activities of the officers who stopped appellant were not comparable to the activities in Leaon.
Claims for emotional distress are limited to those with "particularly egregious facts" and conduct "so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community." Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 439 (Minn. 1983) (citation omitted). The officers' conduct in arresting and briefly detaining appellant and impounding her vehicle was not so atrocious as to pass the boundaries of decency nor was it utterly intolerable to the civilized community. Appellant did not meet the extremely high standard needed for claims of intentional infliction of emotional distress.
2. Dismissal of the claims against Newport
Fred Leimbek, the only Newport police officer on duty the night of the incident, testified during his deposition that he drove to the scene in response to a dispatcher's message that the state patrol was seeking assistance or "backup," that he pulled up after appellant's car had been stopped, got out of his car but did not draw his gun, had no interaction with appellant, her vehicle, or the state patrol officers, and left the scene after 20 minutes. Newport moved for dismissal, arguing that its officer was merely present and took no part in the alleged mistreatment of appellant. The district court dismissed the claims against Newport, finding that there was no evidence of any wrongdoing on its part. We agree.
Appellant's claim against Newport is based on the fact that appellant was pulled over by a local police car, not a state patrol car, and no other local police were identified as being from localities other than Newport. Appellant relies on the deposition testimony of state patrol officer Kenneth Drevnick and officer Leimbek, but a review of their testimony indicates that appellant's reliance is misplaced.
Appellant asserts that Drevnick testified to his belief that the local officer who stopped appellant's car was from Newport. Drevnick actually testified that he did not know for sure where that officer was from; only when asked where he believed the officer might be from did Drevnick say "Newport." At a subsequent deposition, Drevnick testified that there were a number of local officers at the scene, that the local officer who stopped appellant could have been from any of eight localities, and that it would be speculation for Drevnick to say where the officer was from.
Appellant claims that Leimbek said only state officers were present. Leimbek, however, identified two officers whose names appeared on his incident report as St. Paul Park officers, and said he believed and recollected that they were on the scene. Appellant's argument that the officer who stopped appellant must have been from Newport because no other local officers were present is not supported by the record. The claims against Newport were properly dismissed.
3. Attorney fees on appeal
In its brief, respondent City of Newport seeks attorney fees on appeal pursuant to Minn. R. Civ. P. 11 and Minn. Stat. § 549.21 (1996). However, Minn. Stat. § 549.21 was repealed by Minn. Stat. § 549.211 (Supp. 1997), effective August 1, 1997. Newport did not move for attorney fees in the district court until November 6, 1997, after appellant had filed her notice of appeal; in this court, Newport never moved for fees but simply argued for them in its brief, filed on December 19, 1997. Therefore, the statute in effect at the time Newport sought attorney fees both here and in the district court was Minn. Stat. § 549.211.
Arguing for fees on appeal in a brief without submitting a motion does not comply with Minn. Stat. § 549.211, subd. 4(a).
A motion for sanctions under this section must be made separately from other motions or requests * * *. It must be served as provided under the Rules of Civil Procedure, but may not be filed with or presented to the court unless, within 21 days after service of the motion, or another period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.
Newport's failure to comply with the statutory procedures precludes our addressing its request for attorney fees.
We affirm the summary judgment granted to the state because the claims against it are precluded by official immunity and because appellant failed to make a prima facie case for them; we affirm the dismissal of the claims against Newport because they are not supported by the evidence; and we do not address Newport's request for attorney fees.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 The defamation claim is not part of this appeal.
 Appellant cites Leaf v. Freeman, 499 N.W.2d 54 (Minn. App. 1993), review denied (Minn. June 28, 1993), but Leaf is distinguishable: it applies not to tort claims but to actions brought under 42 U.S.C. § 1983. Id. at 57-58.
 This court extended the Pletan holding to stops in Pearse v. City of Roseville, No. C6-93-648 (Minn. App. Nov. 2, 1993) (holding that official immunity protected the employer of officers who injured a driver in the course of a stop), review denied (Minn. Jan. 14, 1994). While we recognize that Pearse, as an unpublished opinion of this court, has no precedential value, we regard its reasoning as persuasive.
 Appellant's reliance on Abo El Ela v. State, 468 N.W.2d 580 (Minn. App. 1991), to argue that executing a stop is a ministerial act, is misplaced for two reasons. First, the challenged act in Abo El Ela was not the officer's decision to stop the vehicle, but his use of hand signals, as opposed to another method. Id. at 582. Second, Abo El Ela deals not with official but with statutory immunity.
 Appellant also argues that, a few weeks after the incident, she was again stopped and an officer acted maliciously in "taunting" her about the incident. However, in the transcript reference she cites as evidence for this, the officer testified only that he stopped appellant to warn her about the illegal height of her bumper, measured the bumper and found it was illegal, and issued a citation. There is no reference to the prior incident, and neither the officer's testimony nor his act support an inference of malice.
 Our determination that respondents are entitled to official immunity renders moot the issue of statutory immunity. We therefore do not address it.
 On appeal, she also argues that the state was negligent in failing to inform her when she acquired the second set of plates that she would have "a reduced expectation of privacy," but there is no indication that this point was ever raised to the district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
 Officer Drevnick testified that he saw an empty space under the dashboard cutout where the VIN should have appeared, that he got up into the engine to find a VIN, that this VIN differed from the one that should have been on the dashboard, that this discrepancy needed to be resolved by finding the "Confidential VIN," that he thought the car appellant was driving had been "pieced together from different vehicles, one of them being her old vehicle that was stolen," and that he thought the engine and part of the cab were not hers.
 The record therefore includes no decision on Newport's motion for fees in the district court.