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UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALSA05-1672A05-1780 Berne Area Alliance for Quality Living, et al., Relators, vs. Dodge County Board of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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Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights
Reserved. Minnesota Lawyer representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims. Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance. |
