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UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALSA07-166Amanda Svendson, individually and o/b/o M.S-S., petitioner, Respondent, vs. Joshua Allen Strange, Appellant. Affirmed. Judge Kevin G. Ross. Crow Wing County District Court, Hon. Frederick J. Casey. ROSS, Judge Joshua Strange appeals from a one-year order for protection (OFP) granted in favor of his daughter, M.S-S., and his daughter?s mother, Amanda Svendsen. Predicated on the district court?s finding that Strange domestically abused Svendsen, the OFP bars Strange from any contact with Svendsen or M.S-S. except for supervised parenting visits with M.S-S. Strange argues that because there is no record evidence of any acts of abuse against M.S-S., the district court should not have restricted his parenting time. And he contends that the district court?s factual finding that he abused Svendsen is clearly erroneous. Because the district court?s finding of abuse against Svendsen is not clearly erroneous, and because a finding of abuse against M.S-S. is not required to restrict parenting time, we affirm the district court?s order for protection. A07-411 Amit Y. Sela, Appellant, vs. The St Paul Travelers Companies, Inc., Respondent. Affirmed. Judge Gordon W. Shumaker. Hennepin County District Court, Hon. John L. Holahan. SHUMAKER, Judge After being defrauded of his money, appellant sought insurance benefits under a policy of crime insurance that covered robbery through ?obviously unlawful? acts. The district court ruled that the fraudulent conduct was not ?obviously unlawful,? and granted summary judgment to the insurer. Claiming that the court?s interpretation of the term ?obviously? was incorrect, appellant brought this appeal. On de novo review, the district court did not err in its interpretation of the insurance policy, and we affirm. A06-2118 DLJ Mortgage Capital, Inc., Relator, vs. St. Paul City Council, Respondent. Reversed and remanded. Judge Gordon W. Shumaker. City of St. Paul. SHUMAKER, Judge By writ of certiorari, relator DLJ Mortgage Capital, Inc. challenges the City of St. Paul?s resolution, adopted according to its nuisance-abatement ordinance, ordering the demolition or removal of DLJ?s property within 15 days. We conclude that the city failed to follow its own procedure, which deprived DLJ of its right to due process, and that the city?s decision is unsupported by the evidence and is, therefore, arbitrary and capricious. We reverse and remand. A07-169 Javier Perdomo, petitioner, Appellant, vs. Twila Comes Flying, Respondent, vs. Christopher Gran, intervenor, Respondent; Cecilia Gran, intervenor, Respondent. Affirmed. Judge Jill Flaskamp Halbrooks. Hennepin County District Court, Hon. Tanja K. Manrique. HALBROOKS, Judge Appellant Javier Perdomo challenges the order of the family division of the district court (family court) that enforces visitation rights with appellant?s daughter granted to intervenor-respondents Robert and Cecelia Gran by the juvenile division of the district court (juvenile court) and establishes a visitation schedule. Appellant argues that the family court erred in ruling that the amended juvenile court order that awarded the Grans visitation rights is final because it was not appealed. Appellant also argues that the family court erred in ruling that appellant is not entitled to relief under Minn. R. Civ. P. 60.02. We affirm. A07-344 Linda M. Anderson, Relator, vs. American Baptist Homes of the Midwest, Respondent; Department of Employment and Economic Development, Respondent. Affirmed. Judge David Minge. Department of Employment and Economic Development. MINGE, Judge Relator Linda Anderson challenges the decision of an unemployment law judge that she engaged in employment misconduct and is therefore disqualified from receiving unemployment benefits from the Department of Employment and Economic Development. We affirm. A07-1232, A07-1233, A07-1321 In the Matter of the Welfare of the Child of: D. D., Parent. In the Matter of the Welfare of the Child of: K. D. and D. F., Parents. Affirmed. Judge Heidi S. Schellhas. Becker County District Court, Hon. John E. Pearson. SCHELLHAS, Judge In these consolidated appeals, appellants challenge the termination of their parental rights. Appellants D.D. and K.D. contend that the county failed to provide adequate services for reunification, and K.D. contends that the county failed to grant her additional time to comply with the case plan. Appellant D.F. contends that the district court erroneously relied on conditions that no longer existed at the time of trial, failed to review each of the appellants independently when assessing whether termination is proper, and failed to consider other permanency disposition options at trial. Because the evidence presented at trial is sufficient to show that appellants received adequate reunification services, that the conditions at the time of trial supported parental termination for all appellants, and that parental termination is in the children?s best interests, we affirm. A07-369 Matthew J. Hoffman, Relator, vs. Collette Travel Service Inc., Respondent; Department of Employment and Economic Development, Respondent. Affirmed. Judge Francis J. Connolly. Department of Employment and Economic Development. CONNOLLY, Judge Relator challenges the decision of the unemployment law judge (ULJ) that he was discharged for misconduct. Because evidence supports the ULJ?s findings and we conclude that relator?s conduct violated the standard of behavior his employer had a right to reasonably expect, we affirm. A07-17 Jon T. Behrens, Relator, vs. Building Restoration Corp., Respondent; Department of Employment and Economic Development, Respondent. Affirmed. Judge Matthew E. Johnson. Department of Employment and Economic Development. JOHNSON, Judge Jon T. Behrens sought unemployment benefits while he was on a five-week leave of absence from his job because of a broken bone in his heel. The unemployment law judge (ULJ) determined that he was ineligible for benefits because, during the period of time for which he sought benefits, he was not actively attempting to obtain employment that would have accommodated his work restrictions. We affirm. A07-160 Marty L. Oldenburg, Relator, vs. BFI Waste Systems of North America Inc, Respondent; Department of Employment and Economic Development, Respondent. Affirmed. Judge Bertrand Poritsky.* Department of Employment and Economic Development. PORITSKY, Judge Relator Marty L. Oldenburg was fired for employment misconduct. He challenges the determination of an Unemployment Law Judge (ULJ) that he was disqualified from receiving unemployment benefits. We affirm. A07-1527 In the Matter of the Welfare of the Child of: A.M.R., Parent. SPECIAL RELEASE OPINION FILED FEBRUARY 15, 2008. Affirmed. Chief Judge Edward Toussaint, Jr. Mille Lacs County District Court, Hon. Steven P. Ruble. TOUSSAINT, Chief Judge Appellant A.M.R. challenges the district court?s termination of her parental rights to her child, M.R. Because the district court?s findings address the statutory criteria, are supported by substantial evidence, and are not clearly erroneous, we affirm. A06-2446 In re the Marriage of: Glenna Rae McDaniel n/k/a Glenna Rae Burg, petitioner, Respondent, vs. Dwayne Bobby McDaniel, Appellant. Reversed and remanded. Chief Judge Edward Toussaint, Jr. Lyon County District Court, Hon. Leland Bush. TOUSSAINT, Chief Judge Appellant Dwayne Bobby McDaniel challenges the denial of his motion for modification of his spousal maintenance obligation, arguing that the Karon waiver in the stipulated judgment dissolving his marriage to respondent Glenna Rae McDaniel, n/k/a Glenna Rae Burg, is invalid because the dissolution court did not make the findings required by Minn. Stat. ? 518.552, subd. 5 (2000). Because the district court erred in determining that the dissolution court had made the required findings, we reverse and remand. A07-129 George Bourcy, petitioner, Respondent, vs. Ravenna Township, Appellant. Reversed. Judge Thomas J. Kalitowski. Dakota County District Court, Hon. Thomas Poch. KALITOWSKI, Judge On appeal from the district court?s grant of respondent George Bourcy?s motion for summary judgment and an alternative writ of mandamus, appellant Ravenna Township argues that the district court erred as a matter of law in granting respondent mandamus relief because the Township (1) did not have a clear legal duty to grant respondent?s requested zoning variance; (2) was not equitably estopped from denying the variance; and (3) acted reasonably and was not arbitrary or capricious in denying the variance. We reverse. A07-35 Patricia A. Grindle-Benedict, Relator, vs. Emmer and Associates, P.A., Respondent; Department of Employment and Economic Development, Respondent. Affirmed. Judge Roger M. Klaphake. Department of Employment and Economic Development. KLAPHAKE, Judge Relator Patricia A. Grindle-Benedict, n/k/a Patricia Thomson McElroy, challenges the decision of the Department of Employment and Economic Development unemployment law judge (ULJ) disqualifying her from receiving unemployment benefits because she was discharged by her employer, respondent Emmer and Associates, P.A., for misconduct. Relator argues that the use of telephone hearings is a violation of Minn. Stat. ? 268.105 (2006), and of procedural due process and that the ULJ erred by refusing to accept her written response to the employer?s appeal letter and by receiving evidence of alleged misconduct that the employer was unaware of at the time of termination. Because we conclude that (1) the department has the discretion to determine the method by which evidentiary hearings are conducted; (2) the telephone hearings meet at least minimum due process standards; and (3) the ULJ did not err by refusing to accept relator?s written response or by considering evidence of alleged misconduct occurring after termination, we affirm. A07-24 Steven M. Lee, Relator, vs. Department of Employment and Economic Development, Respondent. Reversed and remanded. Judge Roger M. Klaphake. Department of Employment and Economic Development. KLAPHAKE, Judge In his pro se appeal, relator Steven M. Lee challenges the determination of the unemployment law judge (ULJ) for respondent Minnesota Department of Employment and Economic Development affirming his earlier decision that (1) Lee did not have good cause to fail to file bi-weekly requests for unemployment benefits for the period of October 2, 2005, through April 22, 2006, and (2) because Lee did not ?actively seek[] suitable employment,? he was ineligible for unemployment benefits for that period. Recent legislation renders the first issue?failure to file bi-weekly requests for benefits?moot. With respect to the remaining issue, because we conclude that the ULJ acted arbitrarily by failing to rule on Lee?s request for an additional evidentiary hearing, we reverse and remand. A06-2417 In re the Marriage of: Susanne C. Clay, f/k/a Susanne C. Dvorak, petitioner, Respondent, vs. Christopher A. Dvorak, Appellant. Affirmed. Judge Roger M. Klaphake. Hennepin County District Court, Hon. Regina M. Chu. KLAPHAKE, Judge Appellant Christopher A. Dvorak challenges the district court?s distribution of property in his dissolution from respondent Susanne C. Clay, f/k/a Susanne C. Dvorak, arguing that the district court abused its discretion by (1) adopting a date for valuation of marital property that was different from the date to which the parties stipulated; (2) determining that appellant had failed to adequately trace a nonmarital interest in the townhouse awarded to respondent; and (3) rejecting the financial neutral?s valuation of stock awarded to respondent, while accepting the valuation of the company?s board chairman. Because the district court explained its basis for selecting a new valuation date in order to make an equitable distribution and accepting the board chairman?s opinion over that of the financial neutral, in findings that are supported by the record, and because appellant failed to sustain his burden of tracing his nonmarital interest in the townhouse, we affirm. A07-64 Jessica J. Johnson, Relator, vs. Sky Ventures LLC, Respondent; Department of Employment and Economic Development, Respondent. Affirmed. Judge Randolph W. Peterson. Department of Employment and Economic Development. PETERSON, Judge In this appeal from a decision by an unemployment law judge (ULJ) that relator is disqualified from receiving unemployment benefits because she was discharged for employment misconduct, relator argues that the ULJ?s findings of fact are not supported by the record. Because the ULJ?s findings are supported by substantial evidence and support the determination that relator was discharged for misconduct, we affirm. A07-315 Sally M. Soberg, petitioner, Appellant, vs. State of Minnesota, Respondent. Affirmed. Judge Roger M. Klaphake. Clay County District Court, Hon. Steven J. Cahill. KLAPHAKE, Judge Appellant Sally M. Soberg appeals from a postconviction order denying her petition to withdraw her guilty plea to a second-degree controlled substance offense under Minn. Stat. ? 152.022, subd. 1(1) (2006). She claims that her guilty plea was not knowing and intelligent because her plea was induced by ?undue pressure and fear? and ignorance regarding ?other options for negotiations, including requests for downward departures.? She claims that her ?fear and mistaken beliefs were a direct result of conversations with her defense attorney,? who ?told her that if she went to trial, she would lose and go to prison for 86 months.? Finally, appellant claims that the postconviction court improperly weighed her nine-month delay in filing the postconviction petition because the petition was timely. Because the underlying record does not provide evidentiary support for appellant?s claims and the postconviction court did not err in considering her delay in seeking the plea withdrawal as a factor in denying her petition, we conclude that the postconviction court did not abuse its discretion in denying appellant?s petition, and affirm. |
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Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights
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