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UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALSMichael A. Petelin,Relator, vs. United Parcel Service, Inc., Respondent, Department of Employment and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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Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights
Reserved. Minnesota Lawyer representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims. Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance. |
