This opinion will be unpublished and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

C4-98-70

C3-98-139

SJ & F Enterprises, Inc.,

Respondent,

vs.

City of Winsted, et al.,

Appellants (C4-98-70),

Defendants (C3-98-139),

Francis J. Eggert,

Respondent (C4-98-70),

Appellant (C3-98-139).

Filed June 30, 1998

Reversed

Amundson, Judge

McLeod County District Court

File No. 43-C3-96-688

James K. Sander, Mark O. Anderson, Wagner, Falconer & Judd, Ltd., 2650 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 ( for SJ & F Enterprises, Inc.)

Paula A. Callies, George C. Hoff, Hoff, Barry & Kuderer, P.A., 7901 Flying Cloud Drive, Suite 260, Eden Prairie, MN 55344 (for City of Winsted and Betty Zachmann)

David D. Alsop, Anne M. Tofteland, Anne T. Johnson, Gislason, Dosland, Hunter & Malecki, P.L.L.P., P.O. Box 5297, Minnetonka, MN 55343 (for Francis J. Eggert)

Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.

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

AMUNDSON, Judge

Appellants city, city clerk, and city attorney appeal the district court's denial of summary judgment in a lawsuit brought by respondent. City clerk and city attorney argue that official immunity protects them from liability. Because respondent offers no evidence to demonstrate that a genuine issue of material fact exists regarding whether the city clerk and city attorney's duties were ministerial, we reverse.

FACTS

Respondent SJ&F Enterprises, Inc. (SJ&F) sells new and used material-handling equipment. In 1984, SJ&F bought property on Baker Avenue (the Baker property), which was believed to be within the City of Winsted (city). In 1991, SJ&F bought an additional parcel, known as Roos I, south of the Baker property and not within city limits. Because SJ&F planned on building on an area that included both the Baker and Roos I properties, the Roos I property had to be annexed into the city. In March 4, 1992, the city annexed the Roos I property. On September 29, 1993, SJ&F purchased an additional parcel known as the Niro property, located northwest of the Baker property.

On October 19, 1993, the city council adopted Ordinance 93-05, which regulates commercial and industrial outdoor storage. The enforcement of the ordinance would make it very difficult for SJ&F to use the Baker and Niro properties as it had intended. On July 15, 1994, SJ&F requested a variance/conditional use permit regarding Ordinance 93-05 for the Baker and Niro properties. More restrictive variances were granted by the Planning Commission. On January 3, 1995, SJ&F appealed the variances. SJ&F planned to move its inventory to a new property not yet purchased, Roos II; the city agreed to grant the variance contingent on SJ&F's production of a purchase agreement within 30 days.

In January 1995, SJ&F became aware of some confusion regarding the city's boundaries. According to a Minnesota Department of Transportation (MNDoT) map, it appeared that the Baker property was never annexed by the city. This map had been received by Betty Zachman, a clerk for the city, in the summer of 1993 and Francis Eggert, the city attorney, was made aware of the potential conflict. Zachman researched the issue of the city limits and concluded that the MNDoT maps were in error. This information was conveyed to SJ&F on March 6, 1995.

SJ&F brought suit against the city, Eggert, Zachman, as well as the city's mayor, Don Guggemos, and city council members Bonnie Quast, Milo Kubash, Gary Lenz, and Tom Wiemiller. SJ&F alleged fraud and intentional misrepresentation (asserting, among other claims, that defendants knew that the Baker property was outside the city limits yet still enforced Ordinance 93-05), negligent misrepresentation, negligent enforcement of Ordinance 93-05, and tortious interference with prospective contractual relations regarding the Roos II property. The district court granted summary judgment in favor of the council members and the mayor on all claims and in favor of all defendants on the tortious interference claim. Eggert, Zachman, and the city now appeal the district court's denial of their motion for summary judgment on their claims of immunity.

D E C I S I O N

Appellants challenge the district court's denial of summary judgment. A motion for summary judgment should be granted when the evidence on file demonstrates that there is no genuine issue of material fact and that one party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). This court reviews the applicability of an immunity defense de novo. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989).

Official Immunity

Both Eggert and Zachman argue that they are protected from liability by official immunity. Official immunity is a common law doctrine that is intended to enable public officials to conduct public business in an independent manner without fear of personal liability. Elwood v. County of Rice, 423 N.W.2d 671, 678 (Minn. 1988). Official immunity usually extends to duties performed by individual officials that are discretionary in nature, unless the actions are willful or malicious. Id. at 677.

The main question before this court is whether Eggert's and Zachman's actions were discretionary, as opposed to ministerial, a distinction that is often difficult to make. See S.L.D. v. Kranz, 498 N.W.2d 47, 50 (Minn. App. 1993). This distinction serves the policy that supports official immunity: public officials should not be deterred from exercising their judgment when making decisions required of them, but at the same time, the policy must encourage public officials to exercise care in "performing duties that require little or no independent judgment." Id. Ministerial duties are those that are "absolute, certain, and imperative" and merely involve the execution of a specific duty. Elwood, 423 N.W.2d at 677. Duties that have been held to be ministerial include: state employees' removal of an abandoned house with a tractor[1] and a county employee's conclusion that old phone books were "waste"2. Discretion has a broader meaning in the context of official immunity than it has in statutory immunity. Janklow v. Minnesota Bd. of Examiners, 552 N.W.2d 711, 716 (Minn. 1996). In the context of official immunity, discretion can be understood as individual, professional judgment. Id. Examples of discretionary duties include: a commissioner and prison warden's supervision of the prison industries program[3]; deputy sheriffs entering a home in response to reports of a possibly armed man threatening his ex-wife[4]; and a bus driver's decision whether to assist a passenger in an unusual wheelchair[5].

Zachman

SJ&F asserts that Zachman, the city clerk, erred in performing her ministerial duties by failing to report that some of her research indicated that the Baker property was outside the city. As a city clerk, Zachman records city proceedings and ordinances. Zachman informed SJ&F in 1991 that the Baker property was located within the city limits. In May 1992, she learned that a 50-foot strip of the Baker property had never been annexed into the city, but she did not report this information to SJ&F until December 1994. In the summer of 1993, Zachman received a MNDot map that indicated that the entire Baker property was not within the city, but did not report this information to SJ&F. In January 1994, Eggert began communicating with SJ&F regarding its compliance on the Baker property with the new city ordinance. SJ&F argues that that compliance cost it great expense and inconvenience and that Zachman erred in performing her ministerial duties by not reporting the possibility that the Baker property was not subject to the city ordinance. SJ&F asserts that Zachman's alleged misrepresentations to them (that the Baker property was within the city) make her subject to liability.

While many of Zachman's duties are ministerial, such as record-keeping at city council meetings, the duties at issue in SJ&F's lawsuit were discretionary in nature. Her task of ascertaining the city boundaries and weighing sometimes-conflicting evidence regarding whether the Baker property was within or without city limits used her individual professional judgment. The determination of whether the Baker property was located in the city was, as she described, a "murky area" that required her research.

Eggert

SJ&F offers similar reasoning regarding Eggert's liability. Since May 1994, Eggert knew, through Zachman, of the possibility that the Baker property was not located in the city. Despite this knowledge, Eggert continued to represent to SJ&F that the Baker property must comply with city ordinances, including Ordinance 93-05. SJ&F asserts that such actions were not discretionary professional duties. We disagree. Clearly, a city attorney's determination of whether an ordinance applies to a given fact situation and whether it should be enforced requires his independent professional judgment. The argument that this is a ministerial duty is without merit.

Reversed.

[1] Williamson v. Cain, 310 Minn. 59, 61, 245 N.W.2d 242, 244 (1976).

2 Waste Recovery Co-op v. County of Hennepin, 517 N.W.2d 329, 333 (Minn. 1994).

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

[4] Elwood, 423 N.W.2d at 678-79.

[5] Gleason v. Metropolitan Council Transit Operations, 563 N.W.2d 309, 309 (Minn. App. 1997), review granted (Minn. Aug. 5, 1997).