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P.O. Box 251551
Woodbury, Minnesota 55125-6551
   

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UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

A 06-1127
A06-1189



Tuan J. Pham,

Respondent,



Mai Vu, et al.,

Plaintiffs (A06-1127),

Respondents (A06-1189),



vs.



Thang Dinh Le,

Appellant (A06-1127),

Defendant (A06-1189),



Tram Bui,

Appellant (A06-1127),

Defendant (A06-1189),



Thanh Van Tran,

Appellant (A06-1127),

Defendant (A06-1189)



Dean Do, et al.,

Appellants (A06-1189),

Defendants (A06-1127).



DIETZEN, Judge



In this consolidated appeal, the represented appellants challenge the denial of their post-trial motions and resulting judgment awarding respondents damages on their defamation and tortious interference with prospective advantage claims, arguing that (1) their statement that respondent is a Communist is protected free speech, and there was no evidence of actual malice; and (2) respondents failed to plead tortious interference with prospective advantage, and that the claim failed as a matter of law. The pro se appellants also challenge the award of damages on respondentsí tortious interference with prospective advantage claim, arguing that the award was not supported by the evidence, and that the jury verdict was based on passion or prejudice. We affirm in part and reverse in part.

= = = =

A06-1320



Minnesota Office Plaza , LLC,

Appellant,



vs.



Target Stores, Inc., et al.,

Respondents.



KALITOWSKI, Judge

Appellant Minnesota Office Plaza , LLC challenges the district courtís grant of summary judgment in favor of respondents Rose Building Corp. and Target Stores, Inc. on its action seeking a declaratory judgment, temporary restraining order, temporary injunction, and permanent injunction, arguing that it raised genuine issues of material fact sufficient to withstand summary judgment. We affirm.

= = = =
A06-1334



Dona Roitenberg,

Appellant,



vs.



Halleyís Custom Homes, Inc.,

Respondent.



ROSS, Judge



On appeal from a directed verdict and denial of a new trial, Dona Roitenberg argues that the district court erroneously held that a builder breaches the statutory new-home warranty provided by Minnesota Statutes, section 327A.02, subdivision 1(c), when it refuses or is unable to repair the home. She argues alternatively that, even if the court applied the correct legal standard, she established this element. Because the district court correctly interpreted the statute and Roitenberg did not present evidence that her builder refused or was unable to repair the alleged damage, we affirm.

= = = =
A06-1415



Jerry L. Johnson, petitioner,
Respondent,

vs.

Rhonda E. Johnson,
Appellant.



WRIGHT, Judge



In this dispute between the deceased husbandís former wife and the deceasedís estate regarding who is entitled to the balance of husbandís 403(b) accounts, former wife argues that (1) the district court erred in awarding her ,633 from the accounts, based on its determination that the dissolution judgment and decree was unambiguous and that the qualified domestic relations order was inconsistent with it; (2) husband waived his right to object to the order; (3) the district court erred in determining that husbandís beneficiary designations were statutorily revoked when the dissolution of the marriage occurred; and (4) in the alternative, wife is entitled to one-half of the value of the accounts. We affirm.

= = = =

A06-1477



Beverly Clark, et al.,

Appellants,



vs.



Nations Trust Mortgage, LLC, et al.,

Respondents,



AND



In re the Matter of the Petition of Nations Trust Mortgage, LLC,

for Certain Relief in Connection with Certificate of Title

No. 235058.0 and for a New Certificate after

Mortgage Foreclosure Sale



RANDALL, Judge

On appeal from summary judgment in this breach-of-fiduciary-duty dispute, appellants argue (a) the district court should not have addressed the merits of respondent-defendantís motion for summary judgment because respondentís motion was not adequately supported until five days before the hearing; (b) the grant of summary judgment was improper because appellantsí affidavits raised factual questions and because respondentsí affidavits did not set forth admissible evidence and did not adequately address the elements of appellantsí claims; and (c) the district court should not have ruled on respondentís title claims in a proceeding subsequent without giving adequate notice of the hearing. We affirm.

= = = =

A06-1579



In re the Marriage of:



Gwenne Melisa Olsen, petitioner,

Respondent,



vs.



Chad Eric Olsen,

Appellant.



SHUMAKER, Judge

Appellant challenges the district courtís dissolution judgment and decree, arguing that the district court abused its discretion by (1) overvaluing and improperly dividing his 401(k) account; (2) undervaluing his nonmarital interest in the partiesí home; (3) overvaluing his interest in two vehicles and mischaracterizing the partiesí trailer as marital property; (4) not rejecting all of respondentís testimony after being impeached; and (5) ordering compliance with discovery requests after the discovery deadline. We affirm the district courtís judgment but modify the value of appellantís interest in the two vehicles.

= = = =
A06-1623



Zoe Strand, et al.,
Plaintiffs,

vs.

Allied Insulation Supply Co., et al.,
Defendants,

and

General Pipe Covering, Inc.,
Defendant and Third Party Plaintiff,
Appellant,

vs.

Quality Insulation, Inc.,
Third Party Defendant,
Respondent,



Econ Insulation, Inc.,

Third Party Defendant,

Respondent.



MINGE, Judge

Appellant challenges the district courtís dismissal of its third-party complaint for contribution from respondents, arguing that the district court erred in dismissing the third-party complaints. Because we conclude that the district court did not err in dismissing the complaints, we affirm.

= = = =
A06-1637



Brenda Lee Johnson,

f/k/a Brenda Lee Lesewski, petitioner,
Respondent,

vs.

Jeffrey Thomas Lesewski,
Appellant.



WRIGHT, Judge

Appellant-husband challenges the district courtís decision to modify respondent‑wifeís spousal-maintenance award, arguing that wife failed to establish a substantial change in circumstances rendering the existing maintenance award unreasonable and unfair. We reverse.

= = = =

A06-1751



In re the Marriage of:

Loren Helen Faibisch, petitioner,

Appellant,



vs.



Manuel Esguerra,

Respondent.



RANDALL, Judge

Appellant-mother Loren Faibisch argues that the district court should have awarded her attorney fees, held an evidentiary hearing on her motion to modify maintenance, and increased and made permanent her maintenance award. She also moves for attorney fees on appeal. Respondent-father Manuel Esguerra moves this court to strike parts of motherís brief. We affirm the district court and deny both partiesí motions.

= = = =

A06-1870





Teresa Johnson,

Appellant,



vs.



Home Depot U.S.A. , Inc.,

a Delaware corporation,

Respondent.



PARKER, Judge

This appeal is from summary judgment granted to respondent on appellantís negligence action for injuries resulting from a slip-and-fall accident, in which the district court ruled that respondent did not owe appellant a duty of care because the condition of the curb where appellant fell was open and obvious. We affirm.

= = = =

A06-1878



Margaret Stewart,

Appellant,



vs.



Lori Anderson,

Respondent.



KALITOWSKI, Judge

Appellant Margaret Stewart challenges the district courtís reversal of the housing courtís decision granting a writ of recovery to appellant subject to respondent Lori Andersonís right to redeem, arguing that the district court erred by reversing the housing courtís judgment, relying on evidence that was not part of the record, and reversing the housing courtís evidentiary rulings. We affirm.

= = = =

A06-2157



In re the Estate of

Robert Buchanen Cameron,

a/k/a Robert B. Cameron.



HALBROOKS, Judge

Appellant challenges the district courtís denial of his motions for amended findings or amended judgment, new trial, and attorney fees arguing that the district court (1) abused its discretion when it denied his claim for 8,749 in attorney fees; (2) erred when it determined that his fatherís May 3, 2005 will was not the product of undue influence; and (3) abused its discretion when it denied his motions without addressing his motion to compel discovery. We affirm.

= = = =

A07-98



In the Matter of the Welfare of the

Child of M. C., Parent.



HALBROOKS, Judge

Appellant M.C. challenges the district courtís decision to terminate her parental rights, arguing that (1) the district court denied her right to procedural due process by adopting verbatim respondentís proposed findings of fact and (2) the district court erred in determining that clear-and-convincing evidence supports both the statutory grounds for termination and the conclusion that termination is in the childís best interests. We affirm.

= = = =

A07-242



In re the Matter of:



Christine Louise Bolander,

n/k/a Christine Bolander-Moreland, petitioner,

Appellant,



vs.



Joel Blake DeForrest,

Respondent.



PARKER, Judge

Appellant-mother Christine Bolander-Moreland challenges the district courtís denial of her motion to modify custody without an evidentiary hearing, arguing that the district courtís finding that she did not show a change in circumstances is clearly erroneous and that she presented a prima facie case requiring an evidentiary hearing. Because the district courtís finding is not clearly erroneous and it was not an abuse of discretion to deny motherís motion without an evidentiary hearing, we affirm.

= = = =
A07-297



In the Matter of the Welfare of the Child of:

R.A.S. and E.T., Parents.



WORKE, Judge

In this termination-of-parental-rights matter, appellant-mother argues that (1) her voluntary termination was conditioned on an adoption plan that was not realized; (2) the record lacks ďgood causeĒ justifying voluntary termination; and (3) termination violated her due-process rights, does not serve the childís best interests, and is contrary to public policy. We affirm.

= = = =

A07-494



In the Matter of the Welfare of the Children of:

A. G. and D. R., Parents.



KALITOWSKI, Judge

Appellant D.R. challenges the district courtís order terminating his parental rights to his twin sons, arguing that the district court clearly erred by finding that respondent had provided reasonable services to rehabilitate him and reunify the family, and abused its discretion by concluding that (1) appellant refused to abide by the duties of the parent-child relationship; (2) appellant failed to correct the conditions leading to the childrenís placement in foster care; (3) the children are neglected and in foster care; and (4) termination of appellantís parental rights are in the best interests of the children. We affirm.

= = = =
A07-521



In the Matter of the Civil Commitment of:

Chaleunsouk Keomany.



WILLIS, Judge

Appellant challenges his indeterminate commitment as mentally ill and dangerous, arguing that (1) he did not meet the ďovert actĒ requirement when he assaulted his mother with a wooden dowel because the wound inflicted was not serious and he showed extreme remorse; (2) the likelihood of future serious physical harm to another was not shown; and (3) indeterminate commitment was not warranted because his condition improved substantially since the initial-commitment hearing. Because clear and convincing evidence supports the conclusion that the statutory standards for initial and indeterminate commitment were met, we affirm.

= = = =

A07-593



In the Matter of the Civil Commitment of:

Michael Dean Brown.



SHUMAKER, Judge

Following a trial in 2006, the district court ordered appellant Michael Brownís commitment as a sexually dangerous person (SDP) under Minn. Stat ß 253B.02, subd. 18 (2004). Brown appealed, arguing that the district court erred in concluding that he failed to establish that a less-restrictive treatment program was available. Because two experts whom the court found credible recommended commitment to the Minnesota Sex Offender Program (MSOP) at Moose Lake , and because Brown provided no evidence that a less-restrictive treatment program is currently available and has accepted him, we affirm.

= = = =

A07-624
A07-660



In the Matter of the Welfare of

the Children of:

S.M. and D.D.B., Parents.



KLAPHAKE, Judge

In this consolidated case, appellants S.M. and D.D.B. challenge a district court order terminating their parental rights to their children, J.B. (born May 5, 2005) and L.L.B. (born January 1, 2007), under Minn. Stat. ß 260C.301, subd. 1(b)(2), (4), and (5) (2006). The court concluded that S.M. is palpably unfit to parent despite respondentís reasonable efforts to reunite her with the children. The courtís conclusion was based on appellantís unstable living and employment situation, her chemical abuse, mental health issues, and low functioning intellect. The court further concluded that D.D.B. is palpably unfit to parent because of his unstable living conditions, lack of employment or education, chemical abuse issues, and propensity for violence, which include domestic abuse allegations against S.M., and a criminal history that includes charges of terroristic threats, assault, and interfering with a 911 call. S.M. charges that the district court erred by finding that respondent had made reasonable efforts to rehabilitate her and by concluding that she is palpably unfit to parent. D.D.B. claims the court erred in finding that respondent had made reasonable efforts to reunite him with the children and by declining to place the children with a great aunt, either as a foster or permanent placement.

Because the record includes clear and convincing evidence supporting termination for palpable unfitness to parent and because termination is in the childrenís best interests, we affirm. Because the district court had insufficient notice of the availability of the great aunt to either adopt or foster parent the children, we also affirm the courtís placement decision.

= = = =

A07-680





In the Matter of the Civil Commitment of:

James Ronald Christenson.



LANSING, Judge

In this appeal from an order for indeterminate civil commitment as a sexually dangerous person, appellant James Christenson argues that the district court erred by concluding that the state clearly and convincingly proved that he met the statutory criteria for commitment. Christenson also argues that the court erred by issuing a hold order requiring that he be held at the Minnesota Security Hospital after his release from prison, pending a decision on the merits of the commitment petition. We affirm.
 

 
 
 

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