This opinion will be unpublished and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
C6-98-166

John Gerads,
Appellant,

vs.

County of Stearns,
Respondent.

Filed August 4, 1998
Affirmed; motion to strike affidavits denied;
motion to strike letter granted
Shumaker, Judge

Stearns County District Court
File No. C9-95-3763

Roger J. Nierengarten, 1111 First Street North, P.O. Box 339, St. Cloud, MN 56302 (for appellant)

Daniel J. Trudeau, King & Hatch, P.A., 1500 Landmark Tower, 345 St. Peter Street, St. Paul, MN 55102 (for respondent)

Considered and decided by Peterson, Presiding Judge, Shumaker, Judge, and Schultz, Judge.*

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant challenges the district court's grant of respondent's motion for summary judgment in his false imprisonment suit. He argues that respondent's employees' behavior creates a genuine issue of material fact. We affirm. Respondent brought two motions. We deny the motion to strike references to certain affidavits and grant the motion to strike appellant's "letter brief."

FACTS

In September 1994, appellant John Gerads was arrested for fifth-degree domestic assault. He pleaded guilty to the charge and was sentenced to probation on the condition that he maintain contact with his probation officer and attend domestic abuse counseling. As of May of 1995, the probation officer had had no contact with appellant despite her attempts to reach him through the mail. In addition, appellant had not attended counseling.

The probation officer reported these violations, and the district court issued a warrant for appellant's arrest. Within a few days, a deputy sheriff went to appellant's home and informed him of the warrant, but did not arrest him. Appellant met with his probation officer the next day and made a further appointment to see her. On May 26, 1995, the Friday before the three-day Memorial Day weekend, the district court reviewed the situation and recalled appellant's warrant. The district court's order appears to have been entered in the court computer at 4:13 p.m., but evidently it did not reach the sheriff's office until Monday. Because the district court's order recalling the warrant was not received by the sheriff's office, appellant was arrested the next day at his home and brought to the jail. On Monday, after two and one-half days in jail, the recall order was discovered, and he was released.

Appellant brought a suit against respondent for $50,000 in damages he claimed to have suffered as a result of his detention. The district court granted the county summary judgment. This appeal followed.

D E C I S I O N

I. Summary Judgment

In reviewing summary judgment, this court must ask two questions: "(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This court views the evidence in the light most favorable to the nonmoving party. State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994).

Appellant argues that respondent's behavior creates a fact issue that defeats summary judgment. He argues that the respondent did not properly administer the warrant recall in accordance with respondent's policy and therefore it was ministerially negligent. This "policy" is not a formal, written statement, but one that has grown out of respondent's custom and practice. The policy for the handling of warrant recalls is that the orders are to be placed in the outbasket of the district court clerk at the end of the afternoon court calendar. A bailiff is to empty the outbasket every day at 4:30 p.m. or at the end of the court's calendar.

Appellant does not take issue with the respondent's policy, but argues that, here, it was negligently ignored. He asserts that the district court's order recalling his warrant was received by the case-intake supervisor at 4:13 p.m. on Friday and placed in the outbasket, but was not delivered to the sheriff's office by 4:30. His assertion that the order was not delivered at the time dictated by the policy lacks support in the record. Appellant cites a Trial Court Information System (TCIS) computer entry noting the recall order at 4:13 p.m.

This evidence does not create a genuine issue of material fact. It does not support an inference that the order was placed in the outbasket by 4:30 p.m. It gives no information as to when the court's calendar was completed on that day. The suggestion that placement of the order in the outbasket followed promptly after the TCIS entry is speculation and does not create a fact issue for trial. See DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997) (a nonmoving party must "do more than rest on mere averments" to avoid summary judgment).

There is no evidence to suggest that the county's policy was not followed. There is also no evidence to suggest that employees of the sheriff's office had any reason to suspect that appellant's arrest warrant was invalid. As the supreme court stated in a 1942 false imprisonment case:

[A] jailer has a defense in such an action if he acted in reliance upon a commitment fair and valid on its face and issued by a court having general jurisdiction to sentence the party therein named.

Peterson v. Lutz, 212 Minn. 307, 308, 3 N.W.2d 489, 490 (1942). It seems that if law enforcement is acting on what appears to be sound information, they have a defense (besides official immunity) to false imprisonment claims based on the inaccuracy of their information. In a similar case, the supreme court held that summary judgment for dismissal of false arrest or false imprisonment claims was proper where the defendant police officers appeared to have "no more than a passive role in the procurement of arrest and search warrants by others" and where officers acted "only in the execution of warrants which were valid on their face." Morgan v. McLaughlin, 290 Minn. 389, 389, 188 N.W.2d 829, 830 (1971). Appellant presents no genuine issue of material fact to defeat the district court's grant of summary judgment to the county.

II. Motions to Strike

Respondent brought two motions to strike. The first requests removal of references to the affidavits of Mary Akervik and Donna Weisz, arguing that these affidavits were outside the record on appeal. We do not find these references germane to our decision and, therefore, we deny this motion.

The second motion requests that the court strike a document, referred to by appellant as a "letter brief," included in appellant's appendix. It is an unsent letter from appellant's attorney to the judges of the court of appeals that discusses the case. The letter violates both Minn. R. Civ. App. P. 125.02, which requires that copies of all papers filed by any party be served by that party, at or before the time of filing, on all other parties to the appeal, and Minn. R. Civ. App. P. 110.01, which states that the record on appeal is made up of the papers filed before the trial court, and any exhibits and transcripts of the proceeding. We therefore strike the letter from the record. It appears that the letter was sent inadvertently and not in an attempt to evade the rules or improperly influence the court. Thus we decline to impose sanctions.

Affirmed; motion to strike affidavits is denied; motion to strike letter is granted.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.