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

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 mdouglas@injurylawtwincities.com

 

UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

A07-0085

Spencer Blaw,
Appellant,

vs.

State Farm Insurance Company, et al.,
Respondents.


LANSING, Judge
In this appeal from summary judgment, Spencer Blaw disputes the
denial of no-fault insurance coverage for gunshot injuries he sustained
while vacuuming his minivan. Because there is an insufficient causal
relationship between the maintenance of the vehicle and the injuries
Blaw sustained, we affirm.

= = = =

A06-1446


Ricky Lee McDeid,
Appellant,

vs.

Minnesota Department of Human Services, et al.,
Respondents.

LANSING, Judge
The district court dismissed Ricky McDeid's claims for
recovery under the Minnesota Government Data Practices Act and an
administrative rule governing record keeping at the Minnesota Sex
Offender Program. Because McDeid's allegations do not state a legally
sufficient claim for relief under either the data practices act or the
administrative rule governing sex-offender record keeping, we affirm.

= = = =

A06-1446


Ricky Lee McDeid,
Appellant,

vs.

Minnesota Department of Human Services, et al.,
Respondents.

LANSING, Judge
The district court dismissed Ricky McDeid's claims for
recovery under the Minnesota Government Data Practices Act and an
administrative rule governing record keeping at the Minnesota Sex
Offender Program. Because McDeid's allegations do not state a legally
sufficient claim for relief under either the data practices act or the
administrative rule governing sex-offender record keeping, we affirm.

= = = =

A06-2181

Cheryl Eben, f/k/a Cheryl Brouillette,
Respondent,

vs.

Michael James Brouillette,
Appellant.

RANDALL, Judge
Appellant-father seeks review of the district court's decision to
uphold a Child Support Magistrate's (CSM) denial of modification of the
amount of child support arrears owed to respondent-mother. Appellant
argues the district court abused its discretion (1) in upholding the
refusal to discharge all of his remaining arrears; (2) in refusing to
examine his new evidence; and (3) by refusing to apply the equitable
doctrine of laches to preclude further collection of arrears by
respondent. We affirm.
= = = =

A06-1956

Mark S. Muellner,
Respondent,

vs.

Cherne Industries, Inc.,
Relator,

Department of Employment and Economic Development,
Respondent.

RANDALL, Judge
Relator employer challenges the decision by the unemployment
law judge (ULJ) that respondent employee was not disqualified from
unemployment benefits because he had been discharged for poor
performance and not for employment misconduct. Relator argues that the
ULJ (a) ignored evidence of the employee's repeated refusal to complete
his job duties and follow his supervisor's instructions, and (b) ignored
settled law that once an employer makes a reasonable request, the
employee's failure to follow it constitutes employment misconduct. The
evidence and testimony supports the ULJ's conclusion that the employee
was discharged for reasons other than employment misconduct. We affirm.


= = = =

A06-1916

In the Matter of the Grocery and Tobacco Dealer License Held by
Uncle Bill's Market, Inc., d/b/a Uncle Bill's Market

RANDALL, Judge
On appeal from revocation of relator's tobacco and grocery
licenses, relator argues that the city acted arbitrarily and
capriciously by imposing a penalty that substantially deviated from the
recommendations of the ALJ and the department of licensing. Relator
also contends that comments by city council members demonstrate that the
revocation of the license was "an exercise of will over judgment."
Finally, relator argues that certain mitigating factors required the
city to impose a penalty short of revocation. We affirm.

= = = =

A07-0501

T.H.E. Insurance Company,
Respondent,

vs.

BJM, Inc.
d/b/a Voyagaire Lodge and Houseboats, et al.,
Defendants,

Duoa Yang, et al.,
Appellants.

\ KLAPHAKE, Judge
Ten people sustained brain damage from carbon monoxide
poisoning while on a houseboat that they rented from Voyagaire Lodge and
Houseboats (Voyagaire). The injured parties initiated a negligence
action against BJM, Inc., an umbrella corporation that included
Voyagaire and other entities and individuals associated with Voyagaire;
Voyagaire's insurer, respondent T.H.E. Insurance Company, intervened.
Respondent filed a declaratory judgment action seeking a determination
of policy coverage limits asserting that a million limit applied. On
cross motions for summary judgment, the district court granted summary
judgment for respondent. Because million was the limit of insurance
coverage under the plain language of the applicable provisions of the
policy, we affirm.

= = = =

A07-183
Lon J. Hoy,
Relator,

vs.

Heartthrob Exhaust Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

PETERSON, Judge
This appeal is from a decision of an unemployment law judge (ULJ)
that relator is disqualified from receiving unemployment benefits
because he was discharged from his employment for misconduct. We
affirm.

= = = =

A06-2253

Herbert James Bruber, et al.,
Appellants,

vs.

Harvey Homes, Inc.,
Respondent,

Marvin Windows, Inc. d/b/a Marvin Windows and Doors,
Respondent,

ABC Corporation, et al.,
Defendants,

and

Harvey Homes, Inc.,
Defendants and Third Party Plaintiff,

vs.

Randy Gabrelcik d/b/a Gabrelcik Masonry and Gabrelcik Enterprises, Inc.,
third party defendant,
Respondent,

Timothy E. Buffham d/b/a Chasid Construction Company, et al.,
Third Party Defendants.

PETERSON Judge
This appeal is from a summary judgment dismissing as time-barred
appellants' statutory-warranty and common-law negligence claims for
damage to their home. We affirm the dismissal of the negligence claim,
but because the district court applied the statute governing common-law
claims to both the common-law and statutory claims, we reverse the
dismissal of the warranty claim and remand.

= = = =

A06-2065

Alisha M. Simmons,
Relator,

vs.

Esthesia Oral Surgery Care, P.A.,
Respondent,

Department of Employment and Economic Development,
Respondent.

PETERSON, Judge
In this certiorari appeal from a decision of an unemployment law
judge (ULJ) that relator Alisha Simmons is disqualified from receiving
unemployment benefits because she was discharged for misconduct, relator
argues that (a) her conduct was a good-faith error in judgment, rather
than misconduct; (b) her conduct had no adverse impact on the employer;
and (c) the ULJ's findings of fact and credibility determinations are
not supported by the record. We affirm.
= = = =

A07-452

In re the Paternity and Custody of:
Baby Boy A., d/o/b December 17, 2005,
P.G.M., petitioner,
Respondent,

vs.

J.M.A.,
Appellant.

WILLIS, Judge
Appellant, who served as the gestational surrogate for
respondent's child, challenges the district court's determination of
parentage and custody in favor of respondent, arguing that the district
court (1) erred by enforcing the parties' gestational-surrogacy
agreement; (2) erred by applying Illinois law as provided by the
choice-of-law provision in the parties' agreement and then incorrectly
applied Illinois law; and (3) abused its discretion by granting
respondent's request to change the child's name. Because the record
supports the district court's findings and it did not err in its
application of the law, we affirm.

= = = =

A06-1628

Chicago Title Insurance Company,
a Missouri corporation,
Respondent,
vs.

Old Dominion Title Services, Inc., et al.,
Defendants,

Molly L. Heise, et al.,
Appellants,

and

EastBank, intervenor,
Respondent,

Provident Funding Associates, L. P., intervenor,
Respondent,

Principal Residential Mortgage, Inc., n/k/a
CitiMortgage, Inc., intervenor,
Respondent,

and

Lighthouse Management Group, LLC

SHUMAKER, Judge
Appellants Molly Heise, Richard T. Heise, and Matthew R.
Heise challenge summary judgments in favor of respondents Chicago Title
Insurance Co., Provident Funding Associates L.P., and Principal
Residential Mortgage, Inc. on claims of intentional and negligent
misrepresentation, alter-ego liability, unjust enrichment, and
conversion, and they contest the district court's appointment of a
receiver, order for attachment, and imposition of a constructive trust
over their assets, resulting in liquidation of the assets and
distribution of funds. They also challenge the district court's refusal
to permit Richard and Matthew Heise to use funds from their liquidated
assets to satisfy the judgments against them rather than the judgments
against Molly Heise and Profile Title. Because (a) there are genuine
issues of material fact precluding summary judgment and (b) the district
court erred as a matter of law in granting the motion to amend the
complaint under Minn. R. Civ. P. 15.02, we reverse and remand. We hold
that the challenges to the appointment of a receiver, order for
attachment, and constructive trust are moot. Finally, we remand the
issue raised by Richard and Matthew Heise regarding the use of their
liquidated assets for the district court to reassess after resolution of
the other issues, if necessary.

= = = =

A06-2399
Acuity Insurance Company,
Respondent,

vs.

R & H Painting, Inc.,
Appellant.

HALBROOKS, Judge
Appellant challenges the district court's grant of summary
judgment to respondent on the grounds that the district court erred in
(1) its conclusion that the language of the insurance policy is
unambiguous and (2) its determination that the reasonable-expectation
doctrine is not applicable. We affirm.

= = = =

A06-2133

Jason George,
Appellant,

vs.

Daniel Evenson, et al.,
Defendants,

Auto-Owners Insurance Company,
Respondent,

Progressive Insurance Company,
Respondent.

HALBROOKS, Judge
On appeal from dismissal of his claims against two different
insurers, appellant argues the district court erred in (1) dismissing
his claim against respondent Progressive Insurance Company for failure
to state a claim upon which relief can be granted, (2) granting summary
judgment to respondent Auto-Owners Insurance Company, and (3) denying
his motion to confirm his arbitration award. Because we conclude that
the district court correctly dismissed appellant's claim against
Progressive for failure to state a claim upon which relief can be
granted, we affirm in part. But because we conclude the district court
erred in granting Auto-Owners's motion for summary judgment and in
denying appellant's motion to confirm the arbitration award, we reverse
in part and remand.

= = = =

A06-1787
Tony L. Everette,
Relator,

vs.

C-Aire Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

HALBROOKS, Judge
In this certiorari appeal, relator challenges the decision
of an unemployment-law judge (ULJ) that he is disqualified from
receiving unemployment benefits. We affirm.

= = = =

A07-0021

Maynard A. Howe,
Appellant,

vs.

Fredrikson & Byron, P.A.,
Respondent,
Fredrikson & Byron, P.A.,
Third Party Plaintiff,

vs.

Roger Howe,
Third Party Defendant.

STONEBURNER, Judge
In this legal-malpractice action, appellant challenges the grant
of summary judgment to respondent based on the district court's
conclusion that the action is barred by the statute of limitations.
Respondent seeks review of the district court's determination that
questions of fact precluded summary judgment for failure to establish
causation. Because the district court did not err in holding that the
action is barred by the statute of limitations, we affirm without
reaching the issue of causation.


= = = =

A06-2343

Jaime Jaramillo, et al.,
Appellants,

vs.

Lawrence C. Weaver, et al.,
Respondents.

MINGE, Judge
Appellants challenge the dismissal of their complaint under
Minn. R. Civ. P. 12.02(e) for failure to state a claim on which relief
may be granted. Because we conclude that appellants' complaint was
legally insufficient to support their claims, we affirm.

= = = =

A07-1290

In the Matter of the Civil Commitment of:
Donald Dean Christiansen, Appellant

HUDSON, Judge
On appeal from an order for indeterminate commitment as a
sexually dangerous person and as a sexual psychopathic personality,
appellant argues that (1) there was not clear and convincing evidence
that he met the statutory definitions of a sexually dangerous person or
sexual psychopathic personality; and (2) his indeterminate commitment
violated the double jeopardy and ex post facto clauses. Because there
was clear and convincing evidence that appellant met the definitions of
a sexually dangerous person and a sexual psychopathic personality, and
his commitment does not violate his constitutional rights, we affirm.

= = = =

A06-2252

Kerry French,
Appellant,

vs.

Brookdale Motor Sales, Inc.
d/b/a Luther Brookdale Buick Pontiac GMC,
Respondent.

DSON, Judge
Appellant Kerry French argues that the district court erred by
granting summary judgment in favor of respondent Brookdale Motor Sales,
Inc. and dismissing his whistleblower claim because (1) his report
implicated a violation of law and was made in good faith, and (2) he
established the elements of a prima facie whistleblower claim. Because
we conclude that appellant did not engage in protected conduct under
Minnesota's whistleblower statute, we affirm.

= = = =


A07-1181


In the Matter of the Civil Commitment of
Ronald Lee Harrison

WRIGHT, Judge
In this appeal challenging his indeterminate commitment as a
sexually dangerous person (SDP) and a sexual psychopathic personality
(SPP), appellant argues that (1) the evidence is insufficient to support
the district court's findings that he is an SDP and an SPP, and (2) the
indeterminate commitment statutes violate the constitutional right to
due process. We affirm.

= = = =

A07-0561


H.T.S.,
Appellant,

vs.

R.B.L.,
Respondent.

WRIGHT, Judge
In this appeal from the district court's order awarding custody
to respondent-father, appellant-mother argues that (1) the district
court abused its discretion by denying her motion to reopen the record
under Minn. Stat. ? 518.145, subd. 2 (2006); (2) the denial of the
motion violated the right to procedural due process; and (3) the
district court abused its discretion when performing the best-interests
analysis. We affirm.

= = = =

A07-1449

In the Matter of the Civil Commitment of:
Jerry James Thompson,
Appellant.

WORKE, Judge
On appeal from initial and indeterminate commitment orders,
appellant argues that (1) the evidence was insufficient to support his
commitment as a sexually dangerous person, (2) he established a less
restrictive alternative in an outpatient sex-offender program, (3) civil
commitment violates double jeopardy, and (4) this court should recognize
a constitutional right to a jury trial with a reasonable-doubt standard
in commitment cases. We affirm.

= = = =

A07-373

James P. Carey, as Trustee for Heirs & Next-of-Kin of
Erik Richard Marwick, deceased, et al.,
Appellants,

vs.

Joshua Daniel Lofquist, et al.,
Defendants,

Starkovich Distributing, Inc.,
Respondent,

Silver Creek Liquor Co., Inc.,
d/b/a Silver Creek Liquor,
Respondent,

J & H Distributing, Inc.,
d/b/a University Liquors,
Respondent,

Coborn's Inc., d/b/a Cash Wise Liquor,
Respondent,

Red Carpet Bottle House, Inc.,
d/b/a Shanty Bottle Shop,
Respondent.

WORKE, Judge
On appeal from summary judgment in a dram-shop action against
retail liquor vendors, appellants argue that the district court erred as
a matter of law in concluding that Restatement (Second) of Torts ? 433B
(1965) does not apply and that respondents did not have a duty to prove
that they did not sell the illegally purchased beer. Respondent Shanty
Bottle Shop also argues that the action against it should have been
dismissed because it was not given notice within 240 days after the
formation of an attorney-client relationship, as required by the
Minnesota Civil Damages Act. Because section 433B has not been adopted
by Minnesota courts, it does not apply. We further conclude that
respondent Shanty Bottle Shop received notice within the required 240
days, and we affirm.

= = = =

A07-270

WesternBank, N. A.,
f/k/a Western National Bank,
Respondent,

vs.

Ameriquest Mortgage Company,
a Delaware corporation, et al.,
Appellants,

Mark E. Hamilton,
Respondent,

Rose L. Hamilton,
Respondent.

WORKE, Judge
On appeal from summary judgment in a declaratory-judgment
action determining a lien dispute between appellant mortgagee and
respondent personal-property lienor, appellant argues that (1) the
district court erred in ruling that respondent had an equitable interest
in the house separate from a lien on the land; (2) the record fails to
establish who owns the house, ownership of which must be identified to
establish an equitable lien; (3) any existing lien held by respondent on
the house would have been subordinated to appellant's purchase-money
mortgage; and (4) whatever interest or lien respondent may have had, it
should not have secured attorney fees in the replevin action that
preceded this lawsuit. Respondent has filed a notice of review
challenging the district court's denial of attorney fees in this action.
We affirm the district court's determination of an equitable interest,
properly termed an equitable lien, covering the house, and conclude that
appellant's mortgage may not, in equity, take priority as a
purchase-money mortgage over that lien. We also affirm the denial of
attorney fees in this action, but reverse the district court's award of
attorney fees in the replevin action.

= = = =

A06-1839

Robert Follis,
Appellant,

vs.

State of Minnesota,
Respondent.

LANSING, Judge
The district court denied Robert Follis's petition to enjoin the
termination of his contract for deed. Follis appeals, arguing that the
district court erred by concluding that it lacked statutory authority to
grant relief under Minn. Stat. ? 559.211 (2006) based on an alleged
right to payment for a medical-assistance claim that did not arise under
or in relation to the contract for deed. Because Follis's potential
claim was insufficiently related to the contract for deed, the district
court did not err when it found that the statute did not apply, and we
affirm.


 

 
 
 

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