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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UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

Annette Kleinschrodt,

Relator,

vs.

Independent School District No. 2886,

Glenville-Emmons, Minnesota,

Respondent.



KALITOWSKI, Judge

Relator Annette Kleinschrodt challenges the decision by respondent Independent School District No. 2886 to not renew her probationary contract. We affirm.



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A05-1608



Derek A. Hebrink,

Relator,

vs.

Crows Nest Programs, Inc.,

Respondent,

Department of Employment and Economic Development,

Respondent.



WILLIS, Judge

By writ of certiorari, relator challenges the decision of the senior unemployment-review judge (SURJ) that relator was discharged for employment misconduct and is therefore disqualified from receiving unemployment benefits. Because the record reasonably supports the SURJís findings and those findings support the conclusion that relator was discharged for employment misconduct, we affirm. On appeal, relator moves to strike the appendix to respondent employerís brief. Because the appendix contains evidence that was properly before the SURJ, we deny the motion.



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A05-1703



In re the Marriage of: Daniel Frank Ostrander, petitioner,

Respondent,

vs.

Shannon Marie Ostrander, n/k/a Shannon Marie Fragmin,

Appellant.



MINGE, Judge

Appellant-mother challenges the district courtís modification of joint physical custody to give respondent-father sole physical custody of the partiesí three children. Because the district court did not clearly err in finding that motherís out-of-state move constituted a change in circumstances, that modification was in the childrenís best interests, and that the children were integrated into fatherís home with motherís consent, we affirm.



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A05-1725



In re the Marriage of:

Patrick John Nickleson, petitioner,

Appellant,

vs.

Kelly Jane Nickleson,

Respondent.



PARKER, Judge

On appeal from an order modifying his child-support obligation, Patrick Nickleson argues that the district court erred by using a cash-flow method to calculate his income rather than the statutory method detailed in Minn. Stat. ß 518.551, subd. 5b(f) (2004), and further erred by overstating his income and failing to include allowable deductions when calculating his net income. Because the district court properly used a cash-flow method to determine Nicklesonís income and did not err in calculating his income, we affirm.



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A05-1771



Roger T. Collins, M.D., et al.,

Appellants,

vs.

Terrance Buus,

operating under the assumed name of C B Construction Co.,

Respondent.



PETERSON, Judge

In this appeal from summary judgment in a construction dispute, appellant homeowners argue that (1) a transcript of their oral report of damage to their home, which was received by the contractor that built the home, satisfies the written-notice requirement of Minn. Stat. ß 327A.03(a) (2004); and (2) actual notice should be sufficient to comply with the statutory notice requirement. Because, under the plain language of the statute, liability does not extend to damage that is not reported in writing and appellants did not report damage in writing, the district court did not err in concluding that appellants cannot maintain a statutory cause of action, and we affirm.



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A05-1821



In the Matter of the Application for PERA Local Government Correctional Service Plan Line of Duty Disability Benefits of Paul Martinez



MINGE, Judge

Relator Paul Martinez appeals denial by the board of the Public Employees Retirement Association (PERA) of his claim for duty-related disability benefits arguing that PERA misinterpreted Minn. Stat. ß 353E.06 (2004) and unreasonably denied him such benefits. We agree with relator and reverse.



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A05-1888



City of Waite Park, petitioner,

Respondent,

Richard G. Heid, et al., intervenors,

Respondents,

vs.

Minnesota Office of Administrative Hearings,

Appellant.



RANDALL, Judge

This is an appeal from the grant of respondent-cityís petition for mandamus to compel appellant Minnesota Office of Administrative Hearings (OAH) to allow annexation of certain land. OAH argues (a) that a mandamus action is not the appropriate mechanism to resolve the annexation dispute between it and respondent-city; (b) mandamus is inappropriate because OAH has no duty to order annexation based solely upon respondent-cityís petition for annexation; (c) the record does not support intervenorsí assertion that they suffered a public wrong; (d) respondent-city has an adequate non-mandamus remedy; (e) the record does not support respondent-cityís claim for a summary annexation. We affirm.



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A05-2031



Lyle D. Thomason,

Appellant,

vs.

Sappi-Cloquet, LLC,

Respondent.



TOUSSAINT, Chief Judge

In an appeal from a judgment and denial of posttrial motions, appellant Lyle D. Thomason challenges the district courtís evidentiary rulings regarding the admissibility of privileged documents and prior workersí compensation judgesí decisions in his trial for retaliatory discharge. He argues that the district court abused its discretion by excluding, on the grounds of attorney-client privilege and work product, privileged documents that were inadvertently disclosed and by excluding two prior workersí compensation judgesí decisions. Because the documents are privileged and work product and because the workersí compensation judgesí decisions are not relevant, we affirm.



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A05-2051



New Hope One LLC,

Respondent,

vs.

Nielsen's Equipment & Design, Inc., et al.,

Defendants,

ViroGen, Inc.,

Appellant.



MINGE, Judge

Appellant challenges the summary judgment ordering its eviction and denial of its motion for a continuance. Because the lease that governed appellantís subtenancy was terminated as a result of the mortgage foreclosure, the district court did not err in granting summary judgment on respondentís eviction petition. Similarly, because appellant did not have a valid lease, the district court did not err in dismissing appellantís counterclaims nor did it abuse its discretion by denying appellantís motion for a continuance.



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A05-2277



Ammanuel Ambaye,

Relator,

vs.

Department of Employment and Economic Development,

Respondent.



HUDSON, Judge

Relator challenges the decision affirming his obligation to repay the Department of Employment and Economic Development (department) the benefits he received as a result of his misrepresentations and the statutory penalty assessed on those benefits. Because the decision was not made on unlawful procedure or affected by an error of law, and because it is supported by substantial evidence, we affirm.

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A05-2298



E. S., a minor, by her parents and

natural guardians, S.S. and C. S.,

Appellant,

vs.

Independent School District No. 271,

Respondent.



HALBROOKS, Judge

Appellant challenges the district courtís findings in the Amended Order Approving Minor Settlement that the damages to be received in this case are not the result of a physical injury or sickness, and, therefore, the damages are not excludable from appellantís gross income under the Internal Revenue Code. Appellant contends that because there was no contested issue before the district court, its findings constitute an advisory opinion. Because we conclude that the district court lacked jurisdiction to decide issues for which there was no justiciable controversy, we reverse and remand.



= = = =



A05-2350



In re Referendum to Amend City of Grand Rapids,

Minnesota Municipal Elections Ordinance No. 04-08-11



TOUSSAINT, Chief Judge

The City of Grand Rapids seeks review of the district courtís order allowing a referendum on a city ordinance that rescinds the use of odd-year elections and establishes even-year elections for city-council members and the mayor. Because ordering appropriate relief was within the district courtís discretion under Minn. Stat. ß 204B.44 (2004) and because allowing respondent Juan Lazo an opportunity to cure the petition for a referendum was appropriate relief for the cityís omissions, we affirm.



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A05-2386



In the Matter of the Welfare of the Child

of S. B. and D. W., Parents.



SHUMAKER, Judge

Appellant guardian ad litem challenges the district courtís order transferring custody of a minor child to his grandmother. Because the evidence does not clearly and convincingly show that the transfer is in the childís best interests, we reverse and remand.



= = = =



A05-2432



In re the Marriage of:

Richard K. Burtness, petitioner,

Appellant,

vs.

Janine Burtness, f/k/a Janine Ginter,

f/k/a Janine Klow,

Respondent.



WORKE, Judge

In this dissolution matter, appellant argues that the record does not support the district courtís findings regarding the value of certain assets and appellantís income, and the award of attorney fees to respondent. Because the district court did not clearly err in its findings regarding the value of assets and appellantís income, and did not abuse its discretion in awarding attorney fees, we affirm.



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A05-2500



In re the Marriage of:

Virginia E. Westland, petitioner,

Appellant,

vs.

Stanley K. Westland,

Respondent.



HUDSON, Judge

Appellant-wife challenges the district courtís order reducing her spousal-maintenance award and its denial of need-based attorney fees. By notice of review, respondent-husband argues that the district court clearly erred in its finding of husbandís income. Husband also argues that the district court abused its discretion by denying his various motions challenging the 2005 order and in setting the effective date of the modification of spousal maintenance. With respect to wifeís claims, the district courtís findings and conclusion of law that there was no substantial change in circumstances are inconsistent with its simultaneous conclusion and order reducing spousal maintenance. Similarly, the district courtís findings that wife was entitled to need-based attorney fees lack sufficient specificity and are inconsistent with its order denying attorney fees. Accordingly, we reverse and remand for the district courtís reconsideration of these two issues. With respect to husbandís claims, because husband failed to provide the district court with information necessary for it to properly assess his income, we affirm on this issue. Because the district court properly applied the law and properly exercised its discretion, we likewise affirm the district courtís denial of husbandís motions challenging its 2005 order. Because we are remanding the spousal-maintenance issue, we do not reach the propriety of the effective date of the modification of spousal maintenance.



= = = =



A06-331



Luis Antonio Serna,

Appellant,

vs.

Kevin Goodno,

Commissioner of Human Services,

Respondent.



WORKE, Judge

On appeal from the denial of his request for discharge from commitment as a sexually dangerous person, appellant argues that the denial should be reversed because he showed that the discharge conditions provide a reasonable degree of protection to the public and will enable him to successfully adjust to the community. We affirm.



= = = =



A06-491



Dirk David Kemper,

Appellant,

vs.

Kevin Goodno,

Commissioner of Human Services,

Respondent.



WORKE, Judge

On appeal from the judicial appeal panelís decision to dismiss his petition for reconsideration of the commissionerís denial of his request for transfer to an open hospital, or for a provisional or full discharge from his civil commitment as mentally ill and dangerous, appellant argues that (1) the state should have the burden of proving that he is in need of commitment and it failed to meet that burden, and (2) he could be treated more effectively in a less-restrictive setting. Because the evidence as a whole supports the appeal panelís findings, we affirm.
 

 
 
 

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