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

 Saint Paul Lawyer
 
 mdouglas@injurylawtwincities.com

 

UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

A07-1540

In re the Marriage of: Sheila Lorraine Janiksela,
n/k/a Sheila Lorraine Steffen, petitioner,
Respondent,

vs.

Corey Lee Janiksela,
Appellant.

PETERSON, Judge
This appeal is from an order that denies a motion for an
evidentiary hearing regarding a modification of legal and physical
custody. We affirm.
= = = =
A07-1329

In the Matter of the Welfare of the Child of: C.M.K., Parent

PETERSON, Judge
This appeal is from an order that dismissed
appellant-grandmother's permanent-placement petition for lack of
personal jurisdiction over respondent-mother. We affirm.
= = = =
A07-1324

In the Matter of the Welfare of the Children of:
B.H.C., R.L.G., T.R.K. and J.E.T.,
Parents.

ROSS, Judge
This appeal requires us to decide whether the district court had
sufficient grounds to terminate J.E.T.'s parental rights to her four
children. We have carefully assessed the record and considered the
district court's well-reasoned, clearly analyzed, and thorough order.
Because the record provides clear and convincing evidence to support the
district court's finding that J.E.T. is palpably unfit to parent her
children and that termination is in the children's best interests, we
affirm the judgment terminating J.E.T.'s parental rights.
= = = =
A07-1215

In the Matter of the Welfare of the Child of C. M., Parent

STONEBURNER, Judge
Appellant challenges termination of her parental rights, arguing that
the district court improperly applied the presumption that she is
palpably unfit to parent, misapplied the presumption that reasonable
efforts have failed to correct conditions leading to out-of-home
placement, erred by finding that the county made reasonable efforts to
reunify, and erroneously terminated her rights based on her
incarceration. Because the district court did not err in concluding
that there is clear and convincing evidence to support termination of
appellant's parental rights and that termination is in the child's best
interests, we affirm.
= = = =
A07-1103

In re the Matter of:

Gregory J. Waltz, petitioner,
Appellant,

vs.

Jaci Jo Marie Soupir,
Respondent.

RANDALL, Judge
On appeal from the district court's award of sole legal and
physical custody to respondent-mother, appellant-father argues (a) he
should have been awarded sole legal custody claiming mother does not
provide adequate medical, educational, or religious care for the child;
(b) the record does not support the district court's findings of fact on
the physical-custody factors; and (c) the district court abused its
discretion by admitting as evidence a recording of a phone call where
the probative value of the recording was outweighed by the prejudice it
caused, there was inadequate foundation for the admission, and the
content of the recording was not trustworthy. We affirm.
= = = =
A07-0685

In re the Marriage of:
Debra Christine Brunette,
n/k/a Debra Christine Klein, petitioner,
Respondent,

vs.

Scott David Brunette,
Appellant.

KLAPHAKE, Judge
In this marital dissolution appeal, appellant Scott Brunette
argues that (1) the district court abused its discretion by declining to
approve the parties' proposed dissolution stipulation and in declining
to vacate the parties' dissolution settlement agreement; (2) the
district court erred by failing to address some of his other requests
for relief; and (3) the district court abused its discretion by awarding
sanctions and attorney fees against him. We conclude that the district
court did not abuse its discretion in either declining to approve the
stipulation or declining to vacate the settlement agreement, did not err
in failing to address some of his requests for relief, and did not abuse
its discretion by awarding attorney fees, but the court did abuse its
discretion by awarding sanctions. We therefore affirm in part, but
reverse the award of ,000 in sanctions.
= = = =
A07-0484

Leon E. Beam,
Appellant,

vs.

Michael Stamer individually and d/b/a Michael Stamer Farms,
Respondent.

MUEHLBERG, Judge
This action arises out of a claim for unpaid mileage reimbursement and
interest owed in a loan arrangement between employer and employee.
Appellant challenges the district court order that granted partial
recovery and barred other claims under a two-year statute of limitations
for wage claims. Appellant also challenges the district court's denial
of his motion for attorney fees. Because appellant brought his motion
for attorney fees under an inapplicable statute, the district court did
not abuse its discretion in denying the motion. Because appellant's
claim arose out of a loan agreement, not a wage agreement, his claim is
subject to the six-year statute of limitations under Minn. Stat.
? 541.05, subd. 1(1) (2006). We therefore affirm in part, reverse in
part, and remand.
= = = =
A07-0421

John H. Witzke,
Respondent,

vs.

Mesabi Rehabilitation Services Inc.,
Appellant.

ROSS, Judge
Mesabi Rehabilitation Services, Inc., appeals from the district court's
summary judgment decision in favor of a former employee upon the court's
holding that restrictive covenants in the parties' employment contract
are void for lack of consideration. John Witzke worked for Mesabi for
several months before Mesabi asked him to sign an employment contract
containing the restrictive covenants, including a noncompetition
agreement and a nonsolicitation agreement. Witzke then received
support, training, and promotions at Mesabi. But seventeen years after
he signed the contract, Witzke left Mesabi to start his own
rehabilitation services company. Because the postagreement professional
enhancements Mesabi afforded Witzke constitute sufficient consideration,
we reverse the district court's summary judgment decision and remand for
further proceedings.
= = = =
A07-0413

Tenant Construction, Inc.,
Respondent,

vs.

Scott H. Mason,
Appellant,

Mosborg Ventures LLC, et al.,
Defendants.


CRIPPEN, Judge
Appellant Scott Mason questions whether the district court's
order and judgment prohibiting him from violating a noncompete agreement
is supported by the record. We affirm.
= = = =
A07-0381

Minnewawa Sportsman's Club,
Relator,

vs.

County of Aitkin, et al.,
Respondents.

ROSS, Judge
This appeal arises from Minnewawa Sportsman's Club's request for a
conditional use permit to expand its operation by adding an archery
range and a new road to its firearms-range operation in Aitkin County.
The club operates under a 1997 conditional use permit, which the
county's planning commission issued with no expressly stated conditions.
The county granted the club's application for an amendment to the
conditional use permit, but it added 17 conditions that related mostly
to the firearms use rather than exclusively to the archery range and
road uses. Because we agree with Minnewawa that its limited
conditional-use-permit application does not open the door for the county
to add conditions to the club's existing permit for use as a firearms
range, we reverse in part. But because the permit imposed several
reasonable conditions related to the addition of an archery range and a
new road, we affirm in part.
= = = =
A07-203
A07-606

John J. O'Donnell,
Appellant,

vs.

City of Buffalo, et al.,
Respondents (A07-203),

Todd Rathbun, et al.,
Respondents (A07-606).

DIETZEN, Judge
In these consolidated appeals, appellant challenges the district
court order granting summary judgment and dismissing his defamation
claim against respondents City of Buffalo and Buffalo Fire Chief Robin
J. Barfknecht, arguing that the district court erred in concluding that
(1) appellant is a public official and that actual malice must be
proven; (2) his claim was barred by absolute and qualified privilege;
and (3) there are no genuine issues of material fact that preclude
summary judgment. Appellant also challenges the district court order
dismissing his defamation claim against the six respondent firefighters
(six firefighters), arguing that the district court erred in dismissing
appellant's claim as a matter of law. We affirm in part, reverse in
part, and remand.
= = = =
A07-63

Joseph Leitner,
Appellant,

vs.

Gartner Studios, Inc.,
Respondent.

HUDSON, Judge
On appeal from summary judgment in favor of respondent, appellant argues
that (1) genuine issues of material fact exist regarding whether
appellant is disabled within the meaning of the Minnesota Human Rights
Act, whether he is qualified to perform the essential functions of the
job with or without reasonable accommodation, and whether respondent
failed to provide him with a reasonable accommodation; and (2)
respondent's reason for firing appellant was pretextual and therefore
precluded summary judgment. Because we conclude that appellant was not
disabled within the meaning of the Minnesota Human Rights Act, we
affirm.
= = = =
A06-2479

Donald H. Sealock, O.D., F.A.A.O.,
Respondent,

vs.

Jay B. Petersen, O.D., individually, and
Jay B. Petersen, as sole owner, director and officer
of Lost Lake Optical Company, and of Lost Lake
Opticians, LLC, and of Lost Lake Optometry, PLLC, et al.,
Appellants.

WILLIS, Judge
Appellant challenges the district court's judgment awarding damages to
respondent for breach of a noncompete agreement and enjoining appellant
from advertising his optometry practice in certain newspapers. We
affirm.
= = = =
A06-2357

Fathi Chalbi,
Relator,

vs.

Department of Employment and
Economic Development,
Respondent.

HUDSON, Judge
Relator challenges the unemployment law judge's decision that he is
disqualified from receiving unemployment benefits because he knowingly
failed to report earnings and engaged in fraud. Relator argues that he
could not read the department's handbook because English is his second
language, and therefore he did not knowingly fail to report earnings
from a second job. Relator acknowledges that he was overpaid, but he
asserts it was not because of any fraudulent activity on his part. And
finally, relator contests the amount he owes. Because the unemployment
law judge's decision is supported by substantial evidence and is not
arbitrary or capricious, we affirm.
= = = =
A06-2266

D. N. N., individually and on behalf
of her minor son, H. A. N.,
Appellant,

vs.

Dr. Steven Joseph Berestka,
Defendant,

Unity Hospital, et al.,
Respondents.

HALBROOKS, Judge
Appellant D.N.N., on behalf of her minor son H.A.N., brought a
medical-malpractice claim against respondents Unity Hospital and Allina
Health System. Appellant's claim is the result of a circumcision
procedure performed on H.A.N. by Steven Joseph Berestka, M.D. at Unity
Hospital. Before trial, respondents moved for summary judgment, and
appellant moved for partial summary judgment and to amend the complaint
to add a punitive-damages claim. The district court denied appellant's
motions and granted summary judgment to respondents.
Appellant argues that the district court erred in granting
summary judgment to respondents. Appellant asserts that the district
court erred because (1) under a traditional negligence claim,
respondents had a legal duty to protect H.A.N. from the harm caused by
Dr. Berestka; (2) respondents' violation of federal Medicare law
establishes a prima facie case of negligence per se; and (3) appellant's
complaint should be amended to include punitive damages. We affirm.
= = = =
A06-2224

Anthony Joseph Byrne, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

HUSPENI, Judge
Appellant challenges the decision sustaining the cancellation
and denial of his driver's license for having violated a restriction
that he totally abstain from the use of alcohol. Because the record
contains substantial evidence to support the determination that
appellant consumed alcohol in violation of the total-abstinence
restriction on his driver's license, we affirm.
= = = =
A06-1937

Rose Aboud, formerly known as Rose L. Osbourne,
individually and as shareholder of RM Michaels Construction, Inc.,
and as shareholder of Midwest Development, Inc.,
Appellant,

vs.

Zack Dyab, et al.,
Respondents,

Eastbank, et al.,
Intervenors.


MINGE, Judge
Appellant claims that the district court erred by granting
respondents a new trial, imposing an attorney fee sanction against her
and her attorney in the amount of ,000, and conditioning receipt of a
new trial on payment of that ,000 to respondents. Appellant also
claims that the district court erred or abused its discretion when it
(1) did not grant her posttrial motions; (2) entered a directed verdict
dismissing American Choice Lending, Inc., as a codefendant and
dismissing claims regarding a property in Blaine;
(3) denied her motion to amend her complaint to include punitive
damages; and (4) ruled in limine that she could not testify at trial
regarding an alleged romantic relationship with respondent Dyab. We
affirm the orders granting a new trial, dismissing American Choice
Lending, dismissing claims regarding the Blaine property, and
suppressing testimony regarding the alleged romantic relationship.
However, because the district court abused its discretion when it
awarded the attorney fee sanction in this case, we reverse the sanction
award and remand for retrial. The remaining issues are remanded for
consideration with the new trial.
 

 
 
 

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