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Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551
   

Saint Paul Lawyer
 
 mdouglas@injurylawstpaul.com

 

UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

In re the Marriage of:
Blanca Margarita Zaldivar, petitioner,
Respondent,

vs.

Luis Roberto Rodriguez Zaldivar,
Appellant.

LANSING, Judge
Luis Zaldivar appeals the district court's denial of his
motions to modify child custody and to reopen his dissolution judgment.
We affirm the denial of the modification motion without a hearing
because the affidavits and supplemental material do not establish prima
facie evidence of a change in circumstances that endangers the child's
physical or emotional health. We do not reach Zaldivar's challenge to
the dissolution judgment because he failed to address it in the text of
his appellate brief and, on the face of the record, we perceive no error
in the district court's determination.

= = = =

A06-343


Lance Edward Link,
Respondent,

vs.

Christina Clark,
Appellant.

LANSING, Judge
The district court denied Christina Clark's
custody-modification motion without holding an evidentiary hearing. On
appeal, we affirm the denial because the affidavits and supplemental
material submitted with the motion did not provide prima facie evidence
of a change in circumstances that endangered the child's physical or
emotional health. We deny Lance Link's motion to strike portions of
Clark's appellate brief.

= = = =

A06-122

The Loan Store,
Appellant,

vs.

Latanya McConnell,
Respondent.

RANDALL, Judge
This appeal results from a judgment based on the district court's
finding that the parties agreed to an oral modification of a contract.
On appeal, appellant argues that the district court failed to take into
consideration the statute-of-frauds writing requirement for credit
agreements stated in Minn. Stat. ? 513.33, subd 2 (2000). We affirm on
all issues.

= = = =

A06-577

In re the Matter of:
Craig H. Hansen, petitioner,
Appellant,

vs.

James Wennblom,
Respondent.


PETERSON, Judge
This appeal is from a judgment dismissing appellant's case
because appellant failed to comply with a discovery order and failed to
prosecute. We affirm.

= = = =

A06-386

Terra Firma Estates, Inc.,
Relator,

v.

Department of Employment and Economic Development,
Respondent.


PETERSON, Judge
In this appeal from a decision of an unemployment-law judge
(ULJ) that services performed for relator by two individuals were
performed in employment rather than as independent contractors, relator
argues that the ULJ erred in concluding that (a) roofing materials are a
main expense related to the roofing work that the two individuals
performed for relator; and (b) the evidence does not support the ULJ's
determination that the individuals do not meet all nine statutory
conditions required to show that they are independent contractors. We
affirm.

= = = =

A05-2531

In re the Marriage of:
Lisa Kay Liveringhouse, petitioner,
Respondent,

vs.

Mark Lyle Liveringhouse,
Appellant.

WILLIS, Judge
Pro se appellant argues that the district court (1) miscalculated
his income for child-support purposes by understating his allowable
deductions and clearly erred in calculating his share of childcare
costs; (2) abused its discretion by awarding permanent spousal
maintenance to respondent because it based its finding of his expenses
on the wrong exhibit and failed to account for his support obligation
from another relationship; (3) exceeded its authority by requiring him
to secure his obligations with life insurance and failed to make
findings supporting the insurance requirement; (4) erred by determining
that certain payments from his mother were gifts to the parties; and (5)
abused its discretion by awarding need-based attorney fees to respondent
without evidence of need and with insufficient findings to support the
award. Because the record does not establish that the district court
abused its discretion in the determination of the child-support,
maintenance, life-insurance, and gift issues, or by awarding attorney
fees; and because the finding of appellant's income based on the wrong
exhibit did not prejudice appellant; we affirm. We modify the judgment,
however, to reflect a corrected calculation of childcare-cost
apportionment.

= = = =

A06-300


In re the Marriage of:
Mary Melissa Martin, petitioner,
Respondent,

vs.

Kurt Wayne Martin,
Appellant.

HALBROOKS, Judge
Appellant, a self-employed business owner, moved to decrease
his child-support obligation. A child support magistrate (CSM) denied
appellant's motion, finding that it was not possible to determine
appellant's income and that, therefore, appellant did not meet his
burden of producing sufficient information to warrant a modification.
Appellant sought district court review of the CSM's ruling, and the
district court affirmed the CSM. Appellant now argues that (1) the
district court is legislating from the bench by requiring verifiable
proof of income from tax returns rather than statements of gross
receipts and expenses, (2) the district court did not make adequate
findings of fact, and the findings that were made were insufficient or
contradicted by the evidence, (3) the conclusions and order are not
supported by adequate findings, (4) the district court made an unfounded
challenge of an alleged business expense and depreciation deduction
after the close of the record, and (5) Crow Wing County has de facto
established appellant's proffered evidence of income as credible by
citing to it in its memorandum of law after the district court failed to
acknowledge and recognize the evidence. Appellant also appeals the
district court's order granting Crow Wing County's motion to impose
stayed contempt sanctions against him. We affirm.

= = = =

A05-2549


Nina G. Gorokhova,
Appellant,

Vladimir A. Barkhudarov,
Appellant,

vs.

Frank Irwin Kirshbaum, M.D., et al.,
Respondents.

HALBROOKS, Judge
On appeal from the district court's judgment dismissing
their claims without prejudice, appellants allege that (1) the district
court failed to comply with rules of court in scheduling respondents'
motions, (2) the district court made incorrect findings of fact, (3) the
district court incorrectly characterized the nature of appellants'
claims as medical malpractice, (4) the district court erred in
dismissing appellants' medical-malpractice claims for failure to comply
with Minn. Stat. ? 145.682, subd. 2(1) (2004), and (5) appellants'
claims have merit. We affirm as modified.

= = = =

A05-2397

Sarah Anne Kennedy, petitioner,
Respondent,

vs.

Steven Wayne Kennedy,
Appellant.

HALBROOKS, Judge
On appeal from the district court's order determining
custody, parenting time, and sanctions, appellant argues that (1) the
district court erroneously determined that he withdrew his motion for
modification of custody, (2) the parenting-time schedule is not in the
best interests of the children, (3) appellant should receive
compensatory time and sanctions against respondent, (4) the district
court unduly limited appellant's contact with his children by electronic
and long-distance communication, (5) appellant should not be required to
release confidential counseling records from 2001 or to provide random
urinalysis, (6) the district court failed to consider appellant's
child-support obligations for his child from a previous marriage, (7)
the district court failed to address appellant's motion for an
evidentiary hearing regarding respondent's fraud, (8) the district court
should not have sanctioned appellant with an award of attorney fees to
respondent, and (9) the district court abused its discretion by imposing
court review of appellant's future motions before scheduling a hearing.
We affirm.

= = = =

A06-445

Wendell Daluge,
Respondent,

vs.

Fortis Insurance Company,
Respondent,
Schiller Insurance Agency, et al.,
Appellants.

STONEBURNER, Judge

Appellants, an insurance agent and agency, challenge summary
judgment enforcing an indemnity agreement between appellants and
respondent insurer for the amount of a settlement paid by respondent on
an insured's claims against the agent, agency, and insurer. Appellants
argue that (a) the settlement and release between the insured and
insurer resolved all issues; (b) the district court misapplied
controlling law; (c) the settlement was collusive; (d) the insurer
failed to properly defend the case; (e) the indemnity agreement between
appellants and respondent was a one-sided contract of adhesion; (f)
appellants were free of wrong doing and were entitled to attorney fees;
(g) the comparative fault of the insured and insurer raises material
fact issues to be resolved at trial, and (h) the insurer breached the
insurance contract and should be estopped from denying coverage. We
affirm.

= = = =

A06-269

SkyTech, Inc., et al.,
Appellants,

vs.

Scientific Learning Corporation,
Respondent.

STONEBURNER, Judge
On this appeal from a judgment of dismissal, appellants challenge
the district court's rulings granting respondent's motion to compel
arbitration in California, dismissing appellants' claims, and ordering
appellants to pay the district court filing fee. Appellants also
challenge the district court's implication that counsel's conduct in
filing a complaint as well as cross-claims between plaintiffs was
unethical. Because we clarify that the dismissal of SkyTech's claims
was without prejudice, but otherwise observe no error in the district
court's rulings, we affirm as modified.

= = = =

A05-2141

Spiros Zorbalas,
d/b/a S1322, Inc.,
Relator,

vs.

City of Minneapolis,
Respondent.

STONEBURNER, Judge

Relator challenges respondent city's revocation of a rental
dwelling license as based on errors of law. Relator asserts that the
city erred by failing to follow notice and service provisions contained
in its ordinance and by basing the revocation decision on allegations
not formally charged without giving relator the opportunity to be heard.
Because we conclude that notice was sufficient under the circumstances
of this case, relator was not denied the opportunity to be heard, and
the record demonstrates that revocation was based on issues of which
relator had notice, we affirm.

= = = =

A06-182

In re the Marriage of: Renita LaNette Ray, petitioner,
Respondent,

vs.

David Gerald Ray,
Appellant.

MINGE, Judge
Appellant claims that the district court abused its
discretion in refusing to retroactively suspend his spousal maintenance
payment. We affirm.

= = = =

A06-1013
A06-1020

In the Matter of the Welfare of the Child of:
H.E.P. and M.L.S., Parents.

HUDSON, Judge
In these consolidated appeals from a termination of the parental
rights of father but not mother, the county challenges the district
court's refusal to terminate mother's parental rights (A06-1013), and
father challenges the termination of his parental rights (A06-1020).
The findings supporting the refusal to terminate mother's parental
rights are not clearly erroneous, and we affirm that decision. But
because no statutory basis for terminating father's parental rights was
identified, we remand for the district court to readdress whether to
terminate his parental rights.

= = = =

A06-249

American Business Forms, Inc.,
d/b/a American Solutions for Business,
Respondent,

vs.

Rass Trading Corp., et al.,
Appellants.

DIETZEN, Judge

Appellants challenge the district court's default judgment
against them and a subsequent order vacating the default judgment on the
condition that appellants post a bond, arguing that the district court
(1) erred by not requiring respondent to post a bond to obtain a default
judgment as required by Minn. R. Civ. P. 55.01(d), and (2) abused its
discretion in its second order by requiring appellants to post a bond as
a condition of vacating the default judgment. We affirm in part,
reverse in part, and remand to the district court to make additional
findings regarding the amount of bond required to vacate the default
judgment.

= = = =

A06-142

In re the Marriage of:
Kevin Brian Donovan, petitioner,
Respondent,

vs.

Anne Donovan, n/k/a Anne Marie,
Appellant.

DIETZEN, Judge

In this post-dissolution proceeding, appellant challenges
the district court order granting respondent's motion to reopen the
judgment for the purpose of making further findings. Because the
district court failed to address the requirements of Minn. Stat. ?
518.145, subd. 2 (2004), we reverse and remand. Respondent's motion for
attorney fees is denied.

= = = =

A05-1841

In re the Marriage of:

Marsha Carol Sewell,
f/k/a Marsha Carol Danielson Borth, petitioner,
Respondent,

vs.

Verdell Fredrick Borth,
Appellant.

DIETZEN, Judge

In this post-dissolution proceeding, appellant challenges
the district court orders (1) denying his motion to reopen the judgment
to consider new evidence; (2) denying his motion to modify spousal
maintenance; and (3) awarding conduct-based attorney fees to respondent.
Because the district court properly applied the law and did not abuse
its discretion, we affirm.

= = = =

A06-700

In the Matter of the Welfare of the Children of:
B.K., M.C., J.N., and D.S.

STONEBURNER, Judge

Appellant-mother challenges the termination of her parental
rights, arguing that (a) the record does not support the district
court's finding that reasonable services failed to correct conditions
that led to a determination of the children's need for protection or
services; (b) the record does not support the district court's finding
that she is palpably unfit to be a party to the parent and child
relationship; and (c) that the district court failed to address whether
termination of parental rights is in the best interests of the children.
Because appellant challenges only two of the four statutory grounds for
termination of parental rights found by the district court, the district
court did not err in concluding that clear and convincing evidence
supports grounds for termination of parental rights under Minn. Stat. ?
260C.301, subd. 1(b) (2004). But because neither the record nor the
district court's findings address the paramount consideration of whether
termination of parental rights is in the best interests of each child,
we remand for further findings on the children's best interests.
 

 
 
 

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