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

Saint Paul Lawyer
 
 mdouglas@injurylawstpaul.com

 

UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

A05-1672
A05-1780

Berne Area Alliance for Quality Living, et al.,
Relators,

vs.

Dodge County Board of Commissioners, et al.,
Respondents (A05-1672)

Minnesota Pollution Control Agency,
Respondent (A05-1780),

Mark Finstuen,
Respondent.

WRIGHT, Judge
In these consolidated appeals from respondent Dodge County's
grant of an amended conditional use permit (CUP) (A05-1672) and
respondent Minnesota Pollution Control Agency's (PCA) grant of a
Construction Short-Form Permit for a feedlot (feedlot permit)
(A05-1780), relators argue that (1) our decision in Berne Area Alliance
for Quality of Living v. Dodge County Board of Commissioners, 694 N.W.2d
577 (Minn. App. 2005), review denied (Minn. Jun. 28, 2005), ruled that a
CUP granted to respondent Mark Finstuen in 2003 was void and therefore
the county lacked the authority to amend that CUP; (2) Finstuen could
not simultaneously apply to amend the 2003 CUP and to obtain a new CUP
for the same feedlot project; (3) the physical capacity of Finstuen's
proposed feedlot exceeds 1,000 animal units (AUs); and (4) the PCA and
the county each acted arbitrarily when they granted the feedlot permit
and the amended CUP because they each failed to address environmental
concerns adequately. We affirm the county's grant of the CUP and the
PCA's grant of the feedlot permit, and deny the parties' various
motions.
= = = =
A05-1958

In re the Marriage of:

Dean Vincent Harris, petitioner,
Appellant,

vs.

Donna Louise Harris,
Respondent.

LANSING, Judge
In this appeal from judgment and the denial of an alternative
motion for amended findings and conclusions or a new trial in a
marital-dissolution proceeding, Dean Harris
challenges the district court's determinations on spousal maintenance,
marital-property division, and attorneys' fees. Because the district
court did not abuse its discretion in ordering maintenance or dividing
the property, we affirm those decisions. But the record lacks
sufficient information to determine the reasonableness of the attorneys'
fees. We therefore reverse and remand for further findings on this
issue.
= = = =
A05-1976

Milt Owens,
Relator,

vs.

Olu's Home, Inc.,
Respondent,
Department of Employment and Economic Development,
Respondent.

STONEBURNER, Judge

Relator challenges the determination of an unemployment-law
judge (ULJ) that his employment was terminated for misconduct thereby
disqualifying him from receiving unemployment benefits. Because the
record supports the ULJ's findings and the findings support the
conclusion that relator was discharged for misconduct as that term is
defined in the statute, we affirm.
= = = =
A05-2039

In re the Marriage of:
Joseph M. Kemp, petitioner,
Respondent,

vs.

Sara N. Kemp, n/k/a Sara N. Lipetzky Kemp,
Appellant.

STONEBURNER, Judge

Appellant challenges a child-support modification arguing that
the district court failed to give due consideration to the parties'
child-support stipulation contained in the dissolution judgment, erred
in its findings, failed to consider her ability to pay guideline
support, and miscalculated respondent's current net monthly income. We
affirm.
= = = =
A05-2062

Rebecca Klanderud-Overbaugh, as Trustee for the Heirs and Next of Kin of

Laura Klanderud, Deceased,
Appellant,

vs.

Unity Radiation Therapy Center, Inc., et al.,
Respondents.

LANSING, Judge
The district court directed a verdict against
medical-malpractice and negligent-nondisclosure claims asserted by
Rebecca Klanderud-Overbaugh as trustee for her deceased sister's heirs
and next of kin. Klanderud-Overbaugh appeals the district court's
determination, as a matter of law, that her sister had terminated her
physician-patient relationship and that Klanderud-Overbaugh failed to
establish a prima facie case of negligent nondisclosure. Because the
record and the applicable law fails to support a directed verdict on
either basis, we reverse and remand.
= = = =
A05-2098

Margaret A. Nutall,
Relator,

vs.

Associates in Women's Health, P.A.,
Respondent,

Department of Employment and Economic Development,
Respondent.

SHUMAKER, Judge
Relator challenges the conclusion of the senior unemployment
review judge (SURJ) that she was discharged for misconduct. Because
that conclusion is based on findings that are reasonably supported by
the evidence, we affirm.
= = = =
A05-2126

Steven A. Olson,
Appellant,

vs.

The Burlington Northern and
Santa Fe Railway Company,
Respondent.

WILLIS, Judge
This is an appeal from summary judgment granted to respondent railroad
on appellant's negligence claim under the Federal Employers' Liability
Act (FELA). Appellant argues that (a) the district court improperly
made findings of fact to determine that the railroad did not breach a
duty to appellant; and (b) the district court improperly weighed the
facts to determine that the railroad's alleged negligence was not the
cause of appellant's lung injury. Appellant also requests that this
case be remanded with directions that a different judge be assigned for
trial. Because we conclude that for FELA purposes, appellant produced
sufficient evidence to create a question of fact regarding the
railroad's breach of duty and the causation of appellant's lung injury,
we reverse. Because appellant did not file a notice to remove the trial
judge under Minn. R. Civ. P. 63.03 and has not demonstrated
disqualifying bias or prejudice, we deny appellant's request to direct
that a new judge be assigned to hear this case on remand.
= = = =
A05-2180

Jeffrey Coury,
Relator,

vs.

Dakota County Board of Commissioners,
Respondent.

STONEBURNER, Judge

Relator challenges respondent's denial of his application to
repurchase tax-forfeited property. Because respondent misapplied the
repurchasing statute, we reverse.
= = = =
A05-2280

Kathleen Nelson,
Respondent,

vs.

City of Minnetonka,
Appellant.

PETERSON, Judge
In this appeal from a summary judgment holding that appellant
city's denial of respondent's permit application violated respondent's
right to equal protection and that the city had to issue a building
permit to respondent, the city argues that the district court erred in
ruling that respondent's rights to equal protection were denied where
the district court failed to apply the similarity-in-character prong of
the equal-protection analysis and misapplied the similar-in-time prong
that it did apply. Respondent filed a notice of review challenging the
district court's ruling that the city had a rational basis for denying
respondent's application. We affirm the rational-basis ruling and
reverse the equal-protection ruling.
= = = =
A05-2317

Crosstown Holding Company, et al.,
Appellants,

vs.

Associated Banc-Corp., a Wisconsin corporation, et al.,
Respondents.

ROSS, Judge

This case arises from a disappointed bidder's legal challenge to the
sale of the Rochester branches of Marquette Bank. Appellants Crosstown
Holding Company and 21st Century Bank (collectively referred to as
"Crosstown") contest the district court's order granting judgment on the
pleadings to respondents First Federal Capital Bank, et al., based on
the doctrine of collateral estoppel. Because determinative issues
necessary to maintain each of Crosstown's claims against respondents
were fully and conclusively litigated in a prior action, and because
Crosstown had a full and fair opportunity to be heard on each issue, we
affirm.
= = = =
A05-2369

Brian William Daury, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

STONEBURNER, Judge

Appellant challenges the district court's order sustaining
revocation of his driver's license. We affirm.
= = = =
A05-2523

In re: Conservatorship of Walter W. Apple.

HALBROOKS, Judge
Appellant challenges the probate court's order awarding
respondent damages for breach of fiduciary duty, fraud, and negligent
misrepresentation, as well as an award of attorney fees for bad faith
and submitting false information to the court. Appellant asserts, among
other things, that the probate court did not have the authority to
review or modify the annual accountings, which had been previously
settled and approved. Because the probate court did not have the
authority to review the previous accountings, we reverse. As a result,
the award of attorney fees is also reversed.
= = = =
A05-2575

Felix M. Williams,
Relator,

vs.

Old Chicago of Colorado, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

KALITOWSKI, Judge
Relator challenges the determination of the unemployment law
judge that he was discharged for misconduct. Because his chronic
tardiness meets the statutory definition of misconduct, we affirm.
= = = =
A06-2

Karen Michelle Elbaghdadi,
Appellant,

vs.

1990 Mitsubishi Eclipse,
VIN #4A3CS44T7LE008703,
Respondent.

DIETZEN, Judge

Appellant challenges the district court order sustaining the
forfeiture of her vehicle under Minn. Stat. ? 169A.63 (2004), arguing
that clear and convincing evidence was presented that she did not have
constructive knowledge that her ex-husband would use the vehicle in a
manner contrary to law. Because the undisputed evidence supports the
district court's decision, we affirm.
= = = =
A06-133

In the Matter of the Welfare of the Child of:

K.A.W. and J.O.W.,
Parents.

DIETZEN, Judge

Appellant challenges the district court order terminating her
parental rights, arguing that respondent failed to make reasonable
efforts at rehabilitation and reunification, that she corrected the
conditions leading to the out-of-home placement, and that termination is
not in the child's best interests. Because the district court properly
applied the law and its decision is supported by clear and convincing
evidence, we affirm.
= = = =
A06-194

Jerome Clark,
Appellant,

vs.

Yellow Medicine County Board of Commissioners, et al.,
Respondents,
Michael Knutson,
Defendant.

STONEBURNER, Judge

Appellant challenges summary judgment granted to respondents
dismissing appellant's petition for a writ of mandamus to compel
respondent Yellow Medicine County to rescind permits issued to
respondent Michael Knutson for construction of a feedlot, which
appellant asserts violated the county's requirements for a setback from
a drainage ditch. Because the district court did not err in granting
summary judgment to respondents, we affirm.
= = = =
A06-456

In the Matter of the Civil Commitment of:
Mohammad-Tawfik Sader.

PETERSON, Judge
This appeal is from an order denying a petition to
indeterminately commit respondent Mohammad-Tawfik Sader as a person who
is mentally ill and dangerous to the public. Because the record as a
whole provides substantial support for the district court's findings and
the findings support the district court's conclusion that Sader does not
meet the statutory criteria for commitment as a person who is mentally
ill and dangerous to the public, we affirm.
 

 
 
 

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