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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UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

A07-1897

In the Matter of the
Welfare of the Child of: N.B., Parent.

CRIPPEN, Judge
Appellant N.B., a 24-year-old unmarried mother, challenges the termination of her parental rights to her fourth child, following terminations in 2005 and 2006 of her rights to her first three children. Appellant argues that (1) the record does not provide sufficient evidence to support the district court's findings justifying termination on statutory grounds and under a best interests analysis, and (2) the district court deprived her of a fair trial by relying on inadmissible evidence. Because there is sufficient evidence to support the findings and there is no merit to other assertions made by appellant, we affirm.
= = = =
A07-1149

Gulfstream Medical Arts, Inc., et al.,
Respondents,

vs.

Frank Heller, individually
and
Frank Heller d/b/a Oak Grove Chiropractic Clinic, P. A.,
Appellants.

STONEBURNER, Judge
Appellants challenge the district court's order striking their answer and counterclaims and entering default judgment against them on both liability and damages as a discovery sanction in respondents' action for conversion, fraud, embezzlement, unjust enrichment, and breach of a partnership/joint venture agreement. Because the district court did not consider whether and to what extent respondents were prejudiced by the discovery violation, and whether less restrictive sanctions would have prevented prejudice, we reverse and remand.
= = = =
A07-1122

Kathleen Smith, et al.,
Appellants,

vs.

Lindstrom Cleaning and Construction, Inc.,
defendant and third party plaintiff,
Respondent,

vs.

JFI Builders Insulation,
Third Party Defendant,

Kenco Construction,
third party defendant,
Respondent,

Topside, Inc.,
third party defendant,
Respondent.

KALITOWSKI, Judge
On appeal from a summary-judgment determination that their claims were time-barred in this improvement-to-real-property dispute, appellant-plaintiffs Kathleen Smith and Steven Hedstrom argue that material-fact questions exist regarding when they discovered the injury. We affirm.
= = = =
A07-1006

In the Matter of the Application of the City of Buffalo to
Extend its Assigned Service Area into the Area Presently Assigned to
Wright-Hennepin Cooperative Electric Association.

KALITOWSKI, Judge
On appeal in this utility-service-area dispute, relator City of Buffalo (city) challenges respondent Public Utilities Commission's (commission) refusal to grant the city's requests to (1) receive an offset for customer payments received by respondent Wright-Hennepin Cooperative Electric Association (cooperative) during the pendency of the compensation proceedings and (2) redefine the scope of "existing customers," for purposes of determining the cooperative's loss-of-revenue compensation award. The city also argues that the commission erred in assigning the city the burden of proof and by applying the manifest-injustice legal standard to evaluate the city's requests for modification. We affirm.
= = = =
A07-992

Trina Marie Taylor,
Relator,

vs.

Commissioner of Minnesota Department of Health,
Respondent.

WORKE, Judge
Relator challenges on certiorari review the Commissioner of the Minnesota Department of Health's decision affirming her disqualification from positions involving direct contact with persons receiving services through certain state-licensed agencies, arguing that she did not commit the second-degree assault on which the disqualification was based and that her criminal record was expunged. Because the information underlying the disqualification was accurate and the commissioner properly considered relator's arrest and investigative data, we affirm.
= = = =
A07-976, A07-977, A07-979

Robert M. Larson, et al.,
plaintiffs/judgment creditors,
Appellants (A07-976),

Martha Jacobson, et al.,
plaintiffs/judgment creditors,
Appellants (A07-977),

Daniel J. Sletten, et al.,
Plaintiffs/Judgment Creditors (A07-977),

Ralph E. Sletten, et al,
Plaintiffs/Judgment Creditors (A07-979),

Ronald J. Brzinski, et al.,
plaintiffs/judgment creditors,
Appellants (A07-979),

vs.

Composting Concepts, Inc.,
Defendant/Judgment Debtor,

and

Farm Bureau Mutual Insurance Company,
defendant/garnishee,
Respondent.

SHUMAKER, Judge
In these consolidated appeals from final judgment discharging garnishment proceedings, appellants challenge the district court decision that a pollution exclusion applied and that respondent insurer did not have a duty to defend or indemnify its insured, the underlying tortfeasor. Because the terms of the pollution exclusion are unambiguous and the plain meaning of "pollutants" includes the dispersal of living organisms from the composting site, and because the applicable exclusion does not contain an exception for an additional insured, we affirm.
= = = =
A07-0964

Bankers Media Group, Inc.,
Relator,

vs.

Flowrean O. Brown,
Respondent,

Department of Employment and Economic Development,
Respondent.

CONNOLLY, Judge
Relator challenges the unemployment-law judge's (ULJ) finding that respondent Flowrean Brown was an employee rather than an independent contractor. Because the ULJ's decision is supported by substantial evidence in the record, we affirm.
= = = =
A07-0929

Sergey Oganov,
Appellant,

vs.

American Family Insurance Group,
Respondent.

SCHELLHAS, Judge
Appellant challenges the district court's summary judgment dismissing his claim for uninsured motorist (UM) benefits as time-barred because he filed his complaint against his insurer more than six years after the accident occurred. Because we conclude that the statute-of-limitations period for UM claims begins to run on the date of the accident, we affirm.
= = = =
A07-0880

Christopher M. Haney,
petitioner,
Appellant,

vs.

Lynn Dingle,
Warden,
Respondent.

CRIPPEN, Judge
Appellant Christopher Haney challenges the district court's denial of his motion to proceed in forma pauperis and its dismissal of his claims with prejudice. Because the district court did not abuse its discretion, we affirm.
= = = =
A07-0856

Commercial Plumbing and Heating, Inc.,
Appellant,

vs.

Fisher Sheetmetal Company, Inc., et al.,
Defendants,

G R Mechanical Plumbing & Heating, Inc.,
Respondent,

Northern Air Corporation, et al.,
Respondents.

MINGE, Judge
Appellant Commercial Plumbing & Heating (CPH), a creditor of J.K. Inc., (JK), held a security interest in and assignment of JK's accounts payable. CPH challenges payments that were made to JK by respondents G.R. Mechanical Plumbing & Heating, Inc., Northern Air Corporation, and Fisher Sheetmetal Company (account payors). CPH claims that these payments violated the assignment by JK to CPH of its accounts payable. CPH contends that the district court erred in granting summary judgment based on findings (1) that CPH gave inadequate notice of its security interest/assignment of accounts to the respondents; (2) that even if such notice was adequate, it only operated to assign amounts payable at the time notice was given; and (3) that CPH had waived its security interest. Because we conclude that the district court did not err in determining that CPH waived its right to enforce its security interest, we affirm. We do not reach CPH's other arguments.
= = = =
A07-0844

1975 Robert Street Partners,
Respondent,

vs.

SR Shingle Creek LLLP,
d/b/a Coyote Grille, et al.,
Appellants,

Nicholas Grammas,
Defendant.

HUDSON, Judge
Appellants challenge the district court's summary judgment in this lease dispute, arguing that an agreement by which they assumed obligations under a preexisting lease was voidable for mutual mistake because respondent's purchase of the property by warranty deed without an express assignment of lessor's rights did not transfer the right to enforce lease covenants against appellants. Appellants also argue that the lease was terminated when an assignee-tenant rejected the lease in bankruptcy and that material factual issues existed relating to whether damages in the form of unpaid rent could have been avoided. Because we conclude that the rejection in bankruptcy operated as a breach, rather than a termination, of the lease, and that respondent was entitled to enforce the lease covenants against appellants, we affirm summary judgment on that issue. We also affirm summary judgment on proof of mitigation of damages because appellants failed to present sufficient evidence to show the existence of a genuine issue of material fact on that issue.
= = = =
A07-0833

Gary Gaddy,
Relator,

vs.

Lutheran Social Service of Minnesota,
Respondent,

Department of Employment and Economic Development,
Respondent.

LANSING, Judge
Gary Gaddy appeals, by writ of certiorari, an unemployment law judge's determination of employment misconduct for filling out medication-administration forms without confirming that the clients had received the medicine. Gaddy contends that the discharge was in retaliation for filing a workers' compensation claim and complaining about employer misconduct. Because substantial evidence supports the findings that Gaddy failed to follow procedures for administering medication and because the unemployment law judge followed the department's guidelines by declining to issue requested subpoenas, we affirm.
= = = =
A07-0827

Janet L. Leach,
Relator,

vs.

Craftmatic of Ten Thousand Lakes Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

WRIGHT, Judge
Relator challenges the decision of the unemployment law judge (ULJ) that she committed employment misconduct and, therefore, is disqualified from receiving unemployment benefits. Relator argues that the ULJ's finding that relator, a telemarketer, improperly removed telephone numbers from her employer's computer system is unsupported by the record. We affirm.
= = = =
A07-0789

In re the Marriage of: Darla Ann Schmidt, petitioner,
Appellant,

vs.

Mark Anthony Schmidt,
Respondent.

PETERSON, Judge
In this appeal from a marital-dissolution judgment, appellant wife argues that the district court abused its discretion in awarding maintenance and in denying appellant need-based attorney fees and erred in awarding respondent husband conduct-based attorney fees. We affirm the district court's decisions regarding attorney fees and reverse the maintenance award and remand for further proceedings.
= = = =
A07-779

Ruth A. Bender,
Relator,

vs.

Mission Farms Nursing Home Inc.,
Respondent,

Department of Employment
and Economic Development,
Respondent.

HUDSON, Judge
By writ of certiorari, pro se relator challenges the decision of the unemployment-law judge (ULJ) disqualifying relator from receiving unemployment benefits because she was terminated for employment misconduct. Because the ULJ's decision is supported by substantial evidence and is not arbitrary or capricious, we affirm.
= = = =
A07-0757

In re the Marriage of:
Anna M. Mailatyar, petitioner,
Respondent,

vs.

Najibullah Mailatyar,
Appellant.

CRIPPEN, Judge
Appellant Najibullah Mailatyar disputes the adequacy of evidence to permit the district court's award of nonmarital assets to respondent Anna Mailatyar. Because there is adequate evidence to permit the district court's finding on nonmarital assets and there is no merit to additional issues raised by appellant, other property-distribution topics and an award of fees, we affirm.
= = = =
A07-0743

Carol A. Peterson,
Relator,

vs.

Rolf Flaig Insurance Agency,
Respondent,

Department of Employment and Economic Development,
Respondent.

CRIPPEN, Judge
Relator challenges the unemployment law judge's decision that she quit her employment and is disqualified from receiving unemployment benefits. She also appeals the decision of the ULJ not to subpoena a requested witness. We affirm.
= = = =
A07-0725

Hussein Musse, a minor, et al.,
Appellants,

vs.

Timothy Engle, et al.,
Respondents,

Skyline Tower of St. Paul, Limited Partnership,
d/b/a Skyline Tower, et al.,
Respondents.

HUDSON, Judge
This is an appeal from summary judgment in appellants' personal injury action for vicarious liability based on respondeat superior, in which the district court ruled that the security company that employed the guard who shot appellant at an apartment building was an independent contractor. Appellants argue that the district court erred in granting summary judgment in favor of respondents building owner and its affiliates because (1) the district court improperly made findings of fact on a motion for summary judgment; (2) genuine issues of material fact exist regarding whether the security company was an agent of respondents; and (3) genuine issues of material fact exist regarding whether respondents are subject to the "retained control" exception to the general rule on vicarious liability. Because the district court did not make findings of fact, and because there are no genuine issues of material fact, we affirm.
= = = =
A07-0699

Lisa M. Sipe,
Respondent,

vs.

Fleigles Transportation & Services, Inc.,
Appellant.

MINGE, Judge
Appellant challenges the denial of its motion for a new trial, arguing that it should have been granted because (1) appellant was prejudiced by the admission of evidence that should have been excluded based on pretrial orders; (2) evidence of a medical procedure known as radiofrequency neurotomy should have been excluded; and (3) the question of future medical expenses should not have been submitted to the jury. We affirm.
= = = =
A07-0578

Alyssa K. Stepan, on behalf of herself and
all others similarly situated,
Appellant,

vs.

Edina Realty Title, Inc.,
Respondent.

SCHELLHAS, Judge
Appellant challenges the district court's holding that the filed-rate doctrine deprived it of subject-matter jurisdiction over her claims that her insurer charged her the wrong rate. Although we disagree that the district court lacked subject-matter jurisdiction, because we agree that the filed-rate doctrine precludes appellant's claims, we affirm.
= = = =
A07-0510

Aultin P. Byars,
Relator,

vs.

Administaff Companies II LP,
Respondent,

Department of Employment and Economic Development,
Respondent.

ROSS, Judge
In this certiorari appeal, Aultin P. Byars challenges an unemployment law judge's determination that he was discharged for employment misconduct. After multiple attendance failures and warnings, Byars was discharged when he failed to arrive at work due to his arrest for disorderly conduct. Byars appeals, arguing that the true reason for his discharge was retaliation for his involvement in organizing a union. He also argues that his hearing was procedurally defective and unfair because he was rushed and because he did not receive certain documents until the day of the hearing. Because the evidence supports the finding that Byars was discharged for misconduct and because Byars received a fair hearing, we affirm.
= = = =
A07-0507

Trina L. Quest,
Relator,

vs.

R S R Enterprises Ltd.,
Respondent,

Department of Employment and Economic Development,
Respondent.

PETERSON, Judge
This certiorari appeal is from a decision that relator is disqualified from receiving unemployment benefits because she was discharged for employment misconduct. Because relator has not identified any alleged error and no prejudicial error is obvious on mere inspection of the record, we affirm.
= = = =
A07-0469
A07-0614

Donna L. Anderson,
Respondent,

vs.

Alfred P. DeWitt, Jr.,
Appellant,

CUNA Mutual Mortgage Corporation,
a United States corporation, et al.,
Defendants.

HALBROOKS, Judge
Appellant and respondent never married but lived together for a period of time in a home owned by appellant. When their relationship ended, respondent brought an action seeking to establish that she had a financial interest in the homestead based on her financial expenditures during the cohabitation. The district court ruled that Minnesota's anti-palimony statutes did not preclude respondent's claim and awarded her a judgment of 2,500. Appellant challenges both the district court's determination that respondent's claim is not precluded as a matter of law and the amount of the judgment. Because we conclude that the district court did not err in permitting respondent's claim to proceed, we affirm in part. But because we conclude that the amount of the judgment awarded respondent is not supported by the evidence, we reverse in part and remand.
= = = =
A07-0273

Lazaro Despaigne Borrero,
Appellant,

vs.

Heather Gustafson, et al.,
Respondents.

SCHELLHAS, Judge
Appellant challenges the district court's grant of summary judgment to respondents in this civil action, arguing that the district court abused its discretion by allowing respondents leave to amend their answer while denying appellant leave to amend his complaint and that the district court erred in granting summary judgment because genuine issues of material fact exist. Because we hold that the district court did not abuse its discretion and that there are no genuine issues of material fact, we affirm.

 

 
 
 

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