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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UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

A07-2178

In the Matter of the Welfare of the Children of: L.C., Parent.

COLLINS, Judge
Appellant-mother challenges a district court's order terminating her parental rights to her five children. The district court concluded that (1) appellant substantially, continuously, and repeatedly refused or neglected to comply with parental duties; (2) appellant was palpably unfit to parent; (3) reasonable efforts failed to correct the conditions in the home; and (4) termination was consistent with the children's best interests. We affirm.
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A07-0966

Tanya Lynn Rambow, petitioner,
Respondent,

vs.

Paul Roland Rambow,
Appellant.

STONEBURNER, Judge
Appellant challenges a post-dissolution-decree order (1) granting respondent, his ex-wife, sole authority to sell real property awarded to appellant in the dissolution decree in order to satisfy respondent's property award; (2) awarding respondent a judgment for the value of a vehicle in respondent's possession; and (3) awarding respondent compensation for her time spent trying to obtain title to the vehicle in addition to granting her request for attorney fees. Respondent has moved for attorney fees on appeal. We reverse the referee's grant of sole authority to respondent to sell appellant's property, affirm the award of the value of the vehicle and attorney fees, deny respondent's motion for attorney fees on appeal, and remand.
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A07-0872

Christy Marie Owens,
Relator,

vs.

Commissioner of Human Services,
Respondent.

CONNOLLY, Judge
Relator appeals respondent's decision denying her request to set aside her disqualification from working in any position allowing direct contact with individuals receiving services from certain state-licensed facilities. Relator argues that respondent erred in denying her request because the respondent's decision (1) violated relator's right to procedural due-process, (2) was arbitrary and capricious, (3) was influenced by an error of law, and (4) was not supported by substantial evidence. We affirm.
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A07-0730

In the Matter of Xcel Energy's Petition for Affirmation that MISO Day 2 Costs are Recoverable Under the Fuel Clause Rules and Associated Variances

In the Matter of Minnesota Power's Petition for Approval of Revision to Rider for Fuel Adjustment to Recover Costs and Pass-Through Related to MISO Day 2

In the Matter of Otter Tail Power Company's Petition for Approval of Revision to Rider for Fuel Adjustment to Recover Costs and Pass-Through Related to MISO Day 2

In the Matter of Interstate Power and Light Company's Petition for Approval of Revision to Rider for Fuel Adjustment to Recover Costs and Pass-Through Related to MISO Day 2

STONEBURNER, Judge
Respondents Minnesota public electric utilities petitioned respondent Minnesota Public Utilities Commission (the PUC) for authorization to increase rates using Minn. Stat. 216B.16, subd. 7 (2006), (the fuel clause) to recover costs assessed against the utilities by the respondent regional transmission organization, which the utilities joined in 2002. The PUC, after requiring an investigation and report concerning the requests, granted the petitions. By writ of certiorari, relator, the Minnesota Office of the Attorney General (the OAG), challenges the PUC's order granting the petitions. Relator argues that the PUC erred as a matter of law by allowing recovery of the assessed charges under the fuel clause and that the decision was arbitrary and capricious. We affirm.
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A07-0721

Jessica A. Hibbard,
Relator,

vs.

Park Supply, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

KLAPHAKE, Judge
Relator Jessica A. Hibbard challenges the unemployment law judge's decision disqualifying her from receiving unemployment benefits because she quit without good reason caused by the employer. Because the unemployment law judge based his decision on credibility but failed to make findings, we reverse and remand.
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A07-0701

Mariese Marvin, et al.,
Appellants,

vs.

Illinois Farmers Insurance Company,
Respondent.

PORITSKY, Judge
Appellant appeals from the decision granting summary judgment in favor of respondent insurance company in a declaratory-judgment action, claiming that the district court erred by considering documents other than the evidence she proffered. The district court determined that the evidence proffered by appellant was irrelevant and the evidence supplied by the respondent was conclusive. We affirm.
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A07-0696

Alex D. Cassidy,
Appellant,

vs.

Joan Fabian, et al.,
Respondents,

Aaron Hayes,
Defendant

HUDSON, Judge
Appellant Alex Cassidy, a prison inmate, brought this action against respondents, all staff members of the Department of Corrections (DOC), alleging that they failed to protect him from assault and challenging their treatment of him. Because appellant violated Minn. Stat. 563.02, subd. 2(a) (2006), by bringing the action in forma pauperis before exhausting the administrative remedy available to him through the prison's grievance process, we affirm the summary judgment granted to respondents.
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A07-0692

Helga V. Gillie,
Respondent,

vs.

Gillie Grain, et al.,
Appellants.

KLAPHAKE, Judge
Respondent Helga V. Gillie brought this action to enforce payment on a December 2, 1999 promissory note and a February 2, 2000 agreement against appellants Gillie Grain, a partnership, Keith Gillie, and Theresia Gillie. The district court concluded that the transaction on which the promissory note was based was a gift, but that the agreement was an enforceable loan. Appellants argue that the district court erred by finding the loan agreement valid, despite lack of consideration, and by awarding interest, despite respondent's waiver of her claim for interest at trial. Respondent, by notice of review, asserts that the district court erred by finding the promissory note to be a gift rather than a loan, by refusing to award attorney fees under the terms of the promissory note, and by failing to order appellants to assign to respondent the rights to an insurance policy acquired to secure payment of the agreement.
Because the district court's findings are not clearly erroneous and because there was consideration for the agreement, we affirm the district court's judgment concluding that the promissory note represented a gift to appellants and that the agreement was an enforceable loan. But because the district court's order as to assignment of the life insurance policy is unclear, we reverse the district court's decision relating to the insurance policy and remand for further proceedings consistent with this opinion.
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A07-682

In re the Marriage of:
John D. Nelson, petitioner,
Appellant,

vs.

Linda M. Nelson, n/k/a Linda M. Voight,
Respondent.

CONNOLLY, Judge
Appellant challenges the district court's order denying his motion to reduce or eliminate his spousal-maintenance obligation to respondent and granting respondent's motion for attorney fees, arguing the district court clearly erred in finding that respondent's long-term cohabitation did not warrant a reduction or elimination in spousal maintenance. Because deference to the fact finder is appropriate under the circumstances of this case, we affirm.
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A07-0641

Jacquelyn S. Schultz,
Relator,

vs.

Darts, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

COLLINS, Judge
Relator challenges the decision by the unemployment-law judge that (a) she did not quit for good reason caused by her employer, and (b) she did not fit within the medically necessary exception, and that relator is thus disqualified from receiving unemployment benefits. We affirm.
= = = =
A07-0520

In re the Marriage of:

Peter A. Markoe, petitioner,
Appellant,

vs.

Susan K. Markoe,
Respondent.

KALITOWSKI, Judge
Appellant Peter A. Markoe argues that the district court abused its discretion in denying his motion to modify spousal maintenance, clearly erred by failing to find there was a substantial change in circumstances that made his maintenance obligation unreasonable and unfair, and should not have relied on unsupported allegations not in the record. We affirm.
= = = =
A07-0518

Randy J. Krongard,
Relator,

vs.

City of Minneapolis,
Respondent.

WILLIS, Judge
By writ of certiorari, relator challenges respondent city's decision to raze condemned buildings on his property, arguing that the city deprived him of due process by not giving him (1) notice, (2) an opportunity to be heard, or (3) an opportunity to repair the buildings after it ordered them to be razed and that the city erred by not applying the procedures of an amended version of the city's code of ordinances. Because the city's decision did not violate relator's due-process rights and because the city was not required to apply the amended ordinance, we affirm.
= = = =
A07-495

Ikechi Kallys Albert,
Appellant,

vs.

Sandy Larson, Program Director (Shadyview)
in her individual capacity and an employee of
Thomas Allen, Inc., et al.,
Respondents,

Minnesota Department of Employment and Economic Development,
Respondent.

WORKE, Judge
On appeal from the district court's dismissal of his claims against respondents, appellant's former employer and the Minnesota Department of Employment and Economic Development (DEED), for lack of proper service and the running of the statute of limitations, appellant argues that dismissal was neither the exclusive nor the appropriate remedy. We affirm the district court's dismissal of appellant's claims against his former employer. And although we vacate the district court's dismissal of appellant's claims against DEED for lack of jurisdiction, we note that appellant's failure to timely file a proper appeal of his denial of unemployment benefits precludes him from challenging that denial.
= = = =
A07-0426

Ross A. Lasky,
Relator,

vs.

Sandstrom's,
Respondent,

Department of Employment and Economic Development,
Respondent.

KLAPHAKE, Judge
Relator Ross A. Lasky was terminated from his sales representative position at Sandstrom's, a wholesale company, on October 6, 2006. After an unemployment law judge (ULJ) determined that relator was properly dismissed for misconduct and therefore not entitled to receive unemployment benefits, relator filed a request for reconsideration, seeking to introduce new evidence to rebut the testimony offered by Sandstrom's. The ULJ denied the request, and relator sought certiorari appeal to this court. Because the record provides substantial evidence to support the ULJ's determination of misconduct, we affirm. We also deny Sandstrom's motion to strike documents in relator's appendix.
= = = =
A07-0423

Mark Keogh,
Appellant,

vs.

John Henry Foster Minnesota, Inc.,
Respondent,

John D. Hawkins,
Respondent

WRIGHT, Judge
Appellant challenges the district court's entry of summary judgment on claims arising out of the termination of his employment with a closely held corporation. Appellant argues that there are genuine issues of material fact regarding whether (1) his employment contract was breached, (2) respondent-shareholder violated common-law fiduciary duties owed to him, (3) respondent-shareholder's conduct was "unfairly prejudicial" to appellant as a fellow shareholder, (4) his discharge was wrongful, and (5) respondent-shareholder tortiously interfered with his contractual employment relationship with respondent-corporation. We affirm.
= = = =
A07-420

City of Minneapolis,
Respondent,

vs.

Minneapolis Police Relief Association, et al.,
Appellants.

WILLIS, Judge
In this action for injunctive relief and a declaratory judgment, appellants challenge a district-court order denying their motion to dismiss, arguing that the district court lacks subject-matter jurisdiction and that they are entitled to immunity. We affirm.
= = = =
A07-296

Jeffrey L. Nielsen,
as Trustee for the Beneficiaries of the Universal Assets Trust,
Respondent,

vs.

Eller Media Company,
a Delaware corporation licensed to do business in Minnesota,
d/b/a Clear Channel Outdoor, Inc.,
defendant and third party plaintiff,
Appellant,

vs.

Outdoor Advertising Investments, LLC, et al.,
third party defendants,
Respondents.

WORKE, Judge
On appeal from summary judgment in this lease dispute, appellant argues that (1) summary judgment was improper because a fact issue exists regarding whether appellant was fraudulently induced to enter the settlement agreement that ended a prior lawsuit and is the basis of the current dispute, appellant was not allowed to complete discovery, a critical clause in the agreement is ambiguous and the parties' intent is unclear, and the district court granted relief not requested in respondents' summary-judgment motion; and (2) the district court misapplied Minn. Stat. 508.70 when it ruled that appellant's notice of adverse claim was not properly before the court. We affirm.
= = = =
A07-0257

In re the Estate of John L. Novotny, Deceased.

WRIGHT, Judge
Appellants challenge the district court's denial of their objection to the distribution of a bequest in their father's will to his former companion. Appellants argue that (1) the language of the bequest is ambiguous; (2) the district court's construction of the language is erroneous; and (3) the district court abused its discretion by concluding that the former companion's receipt of the will's bequest does not constitute unjust enrichment. We affirm.
= = = =
A07-0248
A07-0357

West Bend Mutual Insurance Company,
Respondent,

vs.

Allstate Insurance Company,
Respondent (A07-248),
Appellant (A07-357),

Thomas Oczak, et al.,
Appellants (A07-248),
Respondents (A07-357).

COLLINS, Judge
In these consolidated appeals, appellants Thomas and Connie Oczak and Allstate Insurance Company (Allstate) challenge the district court's grant of summary judgment in favor of respondent West Bend Mutual Insurance Company (West Bend) regarding underinsured-motorist (UIM) claims arising out of a motor-vehicle accident involving Thomas Oczak.
The Oczaks and Allstate argue that the West Bend policy provides both co-primary- and excess-UIM coverage to the Oczaks based on (1) the plain language of Minn. Stat. 65B.49, subd. 3a(5) (2006), of the No-Fault Act, (2) the "reasonable-expectations" doctrine, and (3) the terms of the garage-business policy issued by West Bend. Because the district court properly concluded that the supreme court's interpretation of the No-Fault Act in Becker v. State Farm Mut. Auto. Ins. Co., 611 N.W.2d 7 (Minn. 2000), precluded recovery under the West Bend policy, we affirm.
= = = =
A06-2293

In re the Marriage of: Christopher Glen Westfall, petitioner,
Appellant,

vs.

Nina Maria Westfall,
Respondent.
PETERSON, Judge
In this appeal from a marital-dissolution judgment, appellant-husband argues that (1) the district court erred in declining to grant him a continuance under the Servicemembers Civil Relief Act; (2) the findings of fact are not supported by the record; (3) the conclusions of law are contrary to law and are not supported by the findings of fact; and (4) the district court erred in denying his motion to vacate the judgment without holding an evidentiary hearing. Respondent-wife seeks an award of appellate attorney fees. We affirm in part, reverse and remand in part, and deny respondent's motion.
= = = =
A06-2284

Wayne J. Kratzer,
Appellant,

vs.

Welsh Companies, LLC,
Respondent.

PORITSKY, Judge
Appellant Wayne J. Kratzer challenges the district court order granting summary judgment in favor of respondent Welsh Companies, LLC (Welsh) and dismissing his whistleblower claim. Kratzer argues that: (1) his reports implicated a violation of a rule adopted pursuant to state law, (2) there was a causal connection between his reports and his termination, and (3) Welsh's reason for terminating him was pretextual. Welsh cross-appeals the district court order granting summary judgment in favor of Kratzer on its counterclaim of misappropriation of trade secrets. We reverse and remand on both claims.
 

 
 
 

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