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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UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

A07-668

Bernice M. Bishop,
Relator,

vs.

Department of Employment
and Economic Development,
Respondent.

HUDSON, Judge
Relator challenges the unemployment-law judge's decision that because certain funds that she received after being laid off were separation payments and not supplemental unemployment benefits (SUB) payments, which are exempted from the definition of wages under Minn. Stat. 268.035, subd. 29 (2006), she was not eligible to receive unemployment benefits. Because the payments received by relator were not supplemental unemployment benefits, we affirm.
= = = =

A07-703

Melissa Charles, R.N., petitioner,
Appellant,

vs.

State of Minnesota Department of Health,
Respondent.

WILLIS, Judge
Appellant challenges the district-court order affirming the determination of the commissioner of the department of health that the department proved by a preponderance of the evidence that appellant neglected a vulnerable adult, arguing that the decision is unsupported by substantial evidence and is arbitrary or capricious. We affirm.

= = = =

A07-0756

Ronald N. Zebeck,
Respondent,

vs.

Metris Companies, Inc.,
a Delaware corporation, n/k/a MTX LLC,
Appellant.

HARTEN, Judge
A jury found that respondent Ronald Zebeck, former CEO of appellant Metris Companies, Inc. (Metris), was entitled to a severance award; the district court found that he was entitled to the attorney fees he incurred in collecting it. Metris moved for judgment as a matter of law (JMOL) or a new trial on the basis of the jury's finding that Metris breached the parties' Change of Control Severance Agreement (COC); for JMOL on the basis that Zebeck forfeited his right to severance pay by breaching his fiduciary duties; and for remittitur or a new trial on the ground that the jury's award was excessive. The district court denied the motion. Because the jury's verdict is not perverse or palpably contrary to the evidence and because the district court did not abuse its discretion in denying JMOL on the basis of forfeiture, in denying remittitur, or in granting Zebeck's motion for attorney fees, we affirm.

= = = =

A07-0821


In re the Marriage of:
Ellen Elizabeth Stanley, petitioner,
Appellant,

vs.

Jack Allen Stanley,
Respondent.

HALBROOKS, Judge
Appellant challenges the district court's dissolution judgment on the grounds that the findings are insufficient to support the district court's conclusion that she waived her right to any future modification of the duration or amount of spousal maintenance and that the district court made several other errors in memorializing the parties' oral agreement. Because the district court did not err in applying Minn. Stat. 518.552 (2006), we affirm in part. But because the district court's order includes an unstipulated-to factual finding referencing respondent's subsequent child, we reverse in part and remand for issuance of an amended judgment.

= = = =

A07-870

James Terrell, as trustee for the heirs
and next-of-kin of Talena Terrell, deceased,
Appellant,

vs.

Brek Andrew Larson, individually and in his
capacity as an Anoka County Sheriff's Deputy,
Respondent.

JOHNSON, Judge
Talena Terrell died as the result of a collision at the intersection of Highway 65 and County Road 18 in Anoka County when the car she was driving was struck by a pickup truck driven at high speeds by a deputy sheriff in response to a report of a potentially violent domestic dispute. Five years later, Terrell's husband, James Terrell, commenced this lawsuit against Deputy Sheriff Brek Andrew Larson, the driver of the pickup truck. The district court denied Deputy Larson's motion for judgment on the pleadings based on the statute of limitations, but the district court later granted Deputy Larson's motion for summary judgment based on official immunity.
We conclude that Terrell's claim is not time-barred because the applicable statute of limitations was tolled by a federal statute. We further conclude that summary judgment was proper because neither a state statute nor Anoka County policies required Deputy Larson to refrain from responding to the domestic disturbance report or to drive through the intersection at slower speeds. Therefore, we affirm the entry of summary judgment in favor of Deputy Larson.

= = = =

A07-0895


Richard P. Gamble, et al.,
Respondents,

vs.

Susan Schurke, et al.,
Appellants.

TOUSSAINT, Chief Judge
Appellants Paul and Susan Schurke challenge the district court's order denying their motion to vacate or modify an arbitration award, arguing that the district court erred in concluding that respondents Richard P. Gamble and the Ely Surf Shop, Inc. had submitted to the arbitrator a promissory estoppel claim that was arbitrable under the governing arbitration clause. Because we determine that the district court did not err in confirming the arbitration award, we affirm.

= = = =

A07-0945


Alaa I. Abdi,
Relator,

vs.

Department of Employment and Economic Development,
Respondent.

An applicant for extended trade readjustment allowances (TRA) benefits need not be engaged in full-time remedial training in order to be eligible for extended TRA benefits.

= = = =

A07-0990

Tonia Nicole Williams,
Relator,

vs.

Commissioner of Minnesota Department of Health,
Respondent.

PORITSKY, Judge
Relator Tonia Williams appeals from an order of respondent Commissioner of the Minnesota Department of Health (MDH) disqualifying her from working in a position allowing direct contact with, or direct access to, persons receiving services from facilities licensed by MDH or the Minnesota Department of Human Services (DHS). Because the commissioner correctly applied the current statute, we affirm.

= = = =

A07-1021

In re the Marriage of:
Nathan Adam Schirmer, petitioner,
Appellant,

vs.

Gina Guidarelli,
f/k/a Gina M. Schirmer,
Respondent.

WORKE, Judge
On appeal in this child-support dispute, appellant argues that the district court (1) should have retroactively modified his child-support obligation to 2004 rather than just 2006; (2) failed to obtain the required information from respondent-mother; and (3) because of appellant's medical condition, should have allowed the individual who held his power-of-attorney to speak for him. Because the district court did not abuse its discretion in determining the extent of the retroactive support modification, because appellant failed to show that the district court erred in considering respondent's submitted information, and because appellant was not entitled to the assistance of a non-attorney in court, we affirm.

= = = =

A07-1024

Corey Statham,
Relator,

vs.

Capitol Beverage Sales,
Respondent,

Department of Employment and Economic Development,
Respondent.

WORKE, Judge
Relator challenges the decision by the unemployment-law judge (ULJ) that he was discharged for misconduct and disqualified from receiving unemployment benefits after he failed to report to work, arguing that (1) he was not a full-time employee and the employer's absentee policy applied only to full-time employees, (2) his conduct was reasonable under the circumstances and only involved a single incident, and (3) the ULJ failed to acknowledge facts set forth in his request for reconsideration. We affirm.

= = = =

A07-1037

Steven Smith, et al.,
Appellants,

vs.

The Mobility Group, Inc., d/b/a Complete Mobility Systems,
Respondent,

Ford Motor Company, a Delaware corporation
licensed to transact business in the State of Minnesota,
Defendant,

The Braun Corporation, an Indiana corporation,
Respondent.


WILLIS, Judge
Appellants challenge the grant of partial summary judgment to respondents, arguing that the district court erred by concluding that (1) there is no independent cause of action under the Magnuson-Moss Warranty Act, 15 U.S.C. 2301-2312 (2000), for a claim of breach of a limited warranty and (2) privity of contract is required of a claim for the remedy of revocation of acceptance. We affirm in part and reverse in part.

= = = =

A07-1049

Margaret J. Hanson,
Appellant,

vs.

Rochelle Gilliland, et al.,
Respondents.

PETERSON, Judge
In this appeal from a summary judgment dismissing appellant's suit as barred by res judicata, appellant argues that the district court did not address whether material fact issues exist and erred in applying res judicata because appellant was not afforded an adequate opportunity to litigate her claims in the prior proceeding. We affirm.

= = = =

A07-1161

Loren Smeester,
Appellant,

vs.

St. Croix Development Group, LLC, et al.,
Respondents.

MUEHLBERG, Judge
On appeal from a judgment involving a breached real estate purchase agreement, appellant argues that the district court should have pierced the corporate veil and held the director of respondent limited liability company personally liable for damages resulting from the breach. Because this issue is not properly before this court, and because appellant's argument relies upon inapplicable statutory provisions and does not address the relevant veil-piercing factors, we affirm.

= = = =

A07-1249

In re the Estate of:
Nievedia Crystal Ross, Deceased.

SHUMAKER, Judge
Appellant challenges the district court's order for summary judgment in favor of the estate. On appeal, she argues that her claim against the estate is valid as a charitable subscription, enforceable under the theory of promissory estoppel, and also a valid unilateral contract. She further contends that the district court erroneously denied her claim for sales tax on two vehicles gifted to her. Because we find that the district court did not err in its disposition, we affirm.
= = = =

A07-1512
A07-1513
A07-1514

In re a Petition for Instructions
to Construe Basic Resolution 876
of the Port Authority of the City of St. Paul.

HARTEN, Judge
Respondent the Port Authority of the City of St. Paul, lacking sufficient funds to pay the interest and principal owed to its bondholders, petitioned the district court for an instruction approving its plan to liquidate the repayment fund and discharge a percentage of its debt to all bondholders. Appellants, holders of bonds with early expiration dates, moved the district court to dismiss respondent's petition for an instruction on the ground of lack of subject matter jurisdiction and to appoint a receiver; they also moved to vacate district court orders issued in response to respondent's petitions for instructions in 2002 and 2004. Appellants now challenge the denial of their motions. Because the district court had authority to issue instructions in response to respondent's current petition and in response to the 2002 and 2004 petitions and because the district court's denial of appellants' motion for the appointment of a receiver was not an abuse of discretion, we affirm.

= = = =

A07-1956


Thomas Grant Osborn, Sr., petitioner,
Appellant,

vs.

Sheree Bayne Faulk,
Respondent.

TOUSSAINT, Chief Judge
Appellant-father Thomas Grant Osborn, Sr. seeks review of a district court order granting the motion of respondent-mother Sheree Bayne Faulk to remove the parties' minor child to Montana and denying appellant's motion for a change of custody. Because the district court did not abuse its discretion by denying appellant's custody-modification motion without an evidentiary hearing, making findings under the removal statute and not accepting appellant's factual allegations regarding removal as true, we affirm.
 

 
 
 

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        offer.

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        a Police Report

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