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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UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

Michael A. Petelin,
Relator,

vs.

United Parcel Service, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.
LANSING, Judge
By writ of certiorari, Michael Petelin challenges the
decision of the unemployment law judge that Petelin was discharged for
employment misconduct. Because, on this record, Petelin's limited and
reciprocal horseplay with a coworker demonstrates unsatisfactory conduct
but not employment misconduct within the meaning of Minn. Stat. ?
268.095, subd. 6(a) (2004), we reverse.

= = = =

A05-2064


Meranda M. Garcia,
Relator,

vs.

Farmers Insurance Group,
Respondent,

Department of Employment and Economic Development,
Respondent.


LANSING, Judge
By writ of certiorari, Meranda Garcia argues that
substantial evidence does not support an unemployment law judge's (ULJ)
determination that she was discharged for employment misconduct and is
therefore disqualified from receiving unemployment benefits. Because
substantial evidence supports the ULJ's determination that Garcia's
employer discharged her for failing to follow an established and
reasonable procedure of providing notice for employee absences, we
affirm.

= = = =

A05-1805



James LaBorde, et al.,
Appellants,

vs.

Frank Castleman,
Respondent,

Jacqueline Castleman,
Respondent,

Bruce Bundgaard d/b/a/ Bundgaard Law Office,
Respondent.

LANSING, Judge
James and Kathryn LaBorde appeal from dismissal of their
legal-malpractice claim, arguing that the district court erred by
dismissing the action based on their failure to file an expert-review
affidavit under Minn. Stat. ? 544.42 (2004). Because their claim
required expert testimony, because they failed to file the required
expert-review affidavit, and because the district court did not abuse
its discretion by declining to extend the deadline for filing the
affidavit, we affirm.

= = = =

COURT OF APPEALS
A05-1709


Wendy Francis, petitioner,
Respondent,

vs.

Cindy Lawson, et al.,
Appellants.

LANSING, Judge
In this appeal from a harassment restraining order issued
against Cindy and Richard Lawson and their minor children, the Lawsons
argue that the order lacks a factual and legal basis. Because the
district court's findings do not establish repeated incidents of
harassing behavior by any member of the Lawson family, we reverse.

= = = =

A05-2439

Calvin Abers,
Appellant,

vs.

George H. Elliott Veterans of Foreign Wars Post 7902,
Respondent.

KALITOWSKI, Judge
On appeal from summary judgment, appellant Calvin Abers argues that the
district court (1) erred in finding that no fact issues remained
regarding his unjust-enrichment claim; and (2) abused its discretion by
concluding that appellant was barred from seeking equitable relief under
the doctrines of in pari delicto and unclean hands. We affirm.

= = = =

A05-2196

Richard F. Jelinek,
Relator,

vs.

Federal Express Corporation,
Respondent,

Department of Employment and Economic Development,
Respondent.


KALITOWSKI, Judge
Relator challenges the determination that he was discharged
for misconduct. Because relator's act in leaving pornographic materials
on company property in sight of another employee was misconduct, we
affirm.

= = = =

A05-1479

In the Matter of the Risk Level Determination of E.M.N.

PETERSON, Judge
In this appeal from an administrative law judge's (ALJ)
determination upholding the End of Confinement Review Committee's
assignment to petitioner of a risk level III, petitioner argues that (1)
he did not qualify for registration as a predatory offender because the
criminal-sexual-conduct and kidnapping charges against him were
dismissed under the plea agreement and he was charged only with
deprivation of parental rights, without any admission of sexual conduct;
(2) he was denied due process of law when he was designated as a sex
offender and labeled a high-risk sex offender without having committed a
sexual offense; and (3) there was insufficient evidence to justify an
assignment of a risk level III to him. We affirm.

= = = =

A05-2424
A05-2425

John A. Woodhall, Jr., et al., petitioners,
Appellants (A05-2424),

vs.

State of Minnesota,
Respondent,

and

State of Minnesota, by its Commissioner of Transportation, petitioner,
Respondent,

vs.

Grove City Grain and Feed Company,
Respondent Below, (A05-2425),

Timothy R. Pieh, et al.,
Appellants (A05-2425).

SHUMAKER, Judge
These consolidated appeals arise from eminent-domain proceedings in
which the district court dismissed appellants' appeals from the
commissioners' awards for lack of subject-matter jurisdiction. Because
appellants failed to perfect their appeals, we affirm.

= = = =

A05-1824

Sandra J. Hanson,
Relator,

vs.

Clay County, et al.,
Respondents.

SCHUMAKER, Judge
Relator challenges respondents' termination of her employment as a
chemical-dependency counselor. Because substantial evidence supports
respondents' conclusion that relator violated a clear county policy, we
affirm.

= = = =

A05-2143
A05-2174

Anessa Dawley,
Appellant (A05-2143),

Jeff St. Mane, et al.,
Appellants (A05-2174),

vs.

John Tuchek,
Defendant,

City of Lanesboro,
Respondent.

HUDSON, Judge
Appellants brought this consolidated action for personal injuries and
economic damage incurred after the police chief of the City of Lanesboro
set a fire, which destroyed several downtown buildings. Appellants
challenge the district court's summary judgments dismissing their claims
regarding the city's vicarious liability for the police chief's
intentional torts, including assault, negligence and negligent
infliction of emotional distress (NIED), as well as the city's direct
liability for negligent hiring, supervision and retention. Appellants
argue that the district court erred by (1) concluding that, because its
employee's alleged misconduct was unforeseeable, the city was not
vicariously liable for his actions; (2) dismissing appellants' direct
negligent-retention and supervision claims because the city was
protected by statutory and vicarious official immunity; (3) dismissing
appellants' direct negligent-hiring claim because the act of setting the
fire was not foreseeable; and (4) dismissing the NIED claims of two
appellants because they failed to introduce evidence of physical
manifestations of distress. By notice of review, respondent challenges
the district court's determination that immunity defenses did not bar
the negligent-hiring claim.
We affirm the district court's grant of summary judgment on the
negligent-retention and supervision claims, as well as the NIED claims.
But because we conclude that genuine issues of material fact on the
foreseeability of the employee's action preclude summary judgment on the
vicarious liability and negligent hiring issues, we reverse summary
judgment on these issues and remand them for trial.

= = = =

A05-1815

Daniel S. Ojala,
Relator,

vs.

Gull Lake Subway, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.


WRIGHT, Judge

Relator challenges the decision by the unemployment law judge that
relator is disqualified from receiving unemployment benefits because he
was discharged for employment misconduct. We affirm.

= = = =

A05-1788

Physicians Neck & Back Clinics, P.A.,
Appellant,

vs.

Allied Insurance Company,
Respondent.

WRIGHT, Judge

Appellant, a medical-services provider, challenges the district court's
decision granting summary judgment in favor of respondent-insurer.
Appellant argues that (1) the insurer's nonassignment provision does not
proscribe assignment of a patient's right to no-fault insurance
benefits, and (2) the written agreement signed by the patient
authorizing the payment of the insurance benefits directly to appellant
was a valid assignment. In response to supplemental authority filed by
appellant pursuant to Minn. R. Civ. App. P. 128.05, respondent moved to
strike the submission and assess attorney fees. We affirm and deny the
motion.

= = = =

A05-2218

Wade Smith, et al.,
Appellants,

vs.

William Higgins, et al.,
Respondents.

WORKE, Judge
On appeal in this boundary dispute, appellants argue that the district
court (1) made findings that are not supported by the record; (2) erred
in ruling that the boundary was not established by practical location;
and (3) erred in ruling that appellants failed to establish ownership by
adverse possession. We affirm.

= = = =

A05-1644

Bradley W. Malinowski,
Relator,

vs.

Slumberland, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

PARKER, Judge
Relator challenges the senior unemployment review judge's (SURJ)
decision that he was disqualified from receiving unemployment benefits
because he had been discharged for employment misconduct after failing
to complete employer-mandated chemical-dependency treatment in a timely
fashion. We affirm.
 

 
 
 

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        offer.

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