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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UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

A07-0322


In re the Marriage of:

Lisa Michelle Johnson, n/k/a Lisa Michelle Bayer, petitioner,
Respondent,

vs.

Kyle David Johnson,
Appellant.

LANSING, Judge
In this appeal from judgment in a marital-dissolution action, Kyle Johnson and Lisa Bayer dispute the division of a partnership interest, the valuation of the partnership interest, the calculation of spousal maintenance, and the order for conduct-based attorneys' fees. Because we defer to the district court's credibility determinations, the findings are reasonably supported by the record, and the district court did not abuse its discretion when it made the challenged determinations, we affirm.

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A06-1374
A06-1850
A07-1231

In re: The Conditional Use Permit and Preliminary Planned Unit
Development Applications of Living Word Bible Camp (A06-1374):
C. Robert Baker and Holly Newton, petitioners,
Appellants (A06-1850, A07-1231),

vs.

County of Itasca,
State of Minnesota,
Respondent (A06-1850, A07-1231),
Living Word Bible Camp,
Respondent (A06-1850, A07-1231)

STONEBURNER, Judge
In these consolidated appeals,1 two citizens of respondent Itasca County challenge the county's issuance of, and the district court's approval of, conditional-use and planned-unit-development permits that will allow the construction of a facility for use as a children's bible camp and year-round adult-retreat center on Deer Lake in Itasca County. By notice of review, respondent Living Word Bible Camp, a Minnesota nonprofit corporation, challenges the district court's ruling that an environmental assessment worksheet (EAW) was required for the project and the district court's dismissal of the camp's malicious-prosecution and abuse-of-process claims against appellants.
With regard to the writ of certiorari (A06-1374) asking this court to reverse the county planning commission's issuance of the permits, we affirm the planning commission's use of the 1998 ordinance to consider the permit applications, but hold that the remaining challenges are premature in light of the need for the planning commission to reconsider its approvals after completion of the EAW. We therefore dismiss the remaining issues raised in the writ of certiorari without prejudice.
Because in file A07-1231 the district court correctly determined that an EAW was necessary for this project and did not err in dismissing the camp's claims against appellants, we affirm the district court in part. Because the county must consider the EAW before it approves the permits, we reverse the district court's approval of the permits and remand for a redetermination of those permits after completion of the EAW.

= = = =

A07-0479

In re the Marriage of:
Ann Christine Falldin, petitioner,
Respondent,

vs.

John Eric Falldin,
Appellant.

PETERSON, Judge
In this appeal from a marital-dissolution judgment, appellant-husband argues that the district court erred when it (1) treated certain compensation as income when determining husband's ability to pay maintenance and also awarded respondent-wife one-half of the compensation in her property award, and (2) failed to award husband his nonmarital interests in certain investment accounts and in the marital homestead. We affirm in part and reverse in part.

= = = =

A07-691

In re the Marriage of:
Susan Ann Yager, f/k/a
Susan Ann Fox, petitioner,

Appellant,

vs.

John Patrick Fox,

Respondent.

WORKE, Judge
In this parenting-time dispute, appellant challenges several aspects of the district court's appointment and grant of authority to a parenting consultant. Because we conclude that the appointment of the parenting consultant and the authority granted to the consultant are consistent with the stipulated parenting-consultant provisions of the parties' dissolution judgment and lawful, we affirm.

= = = =

A07-0700

Parkos Construction Company, Inc.,
Appellant,

vs.

Anchor Distributing, Inc., d/b/a Anchor Fasteners,
Respondent.

JOHNSON, Judge
Parkos Construction Company, Inc., was hired to install cedar shingles on the roof of the White Bear Yacht Club. Parkos Construction consulted with Anchor Distributing, Inc., about whether staples could be used in place of nails to fasten the shingles, and Parkos Construction eventually purchased staples from Anchor. The staples failed, which required the building to be re-roofed. Parkos Construction later made a payment to the general contractor to settle an arbitration claim.
Parkos Construction then brought this action against Anchor, alleging fraudulent misrepresentation, contribution, and indemnification. The district court granted summary judgment in favor of Anchor on all claims. We conclude, however, that genuine issues of material fact exist as to whether Parkos Construction relied on representations made by Anchor and whether Parkos Construction and Anchor had common liability toward the general contractor. Therefore, we reverse.

= = = =














A07-763

In re the Marriage of:
Jacci Kay Lynch, petitioner,
Respondent,

vs.

David Lowell Peter Lynch,
Appellant,

County of Mower,
Intervenor.

JOHNSON, Judge
Jacci Kay Lynch and David Lowell Peter Lynch were divorced in 2000. Jacci Lynch was awarded custody of their only child, and David Lynch was ordered to pay child support. After David Lynch remarried and moved to Alaska to take a higher-paying job, Mower County moved to increase his child-support obligation. In recalculating David Lynch's income, the child support magistrate (CSM) included an unusual "territorial cost-of-living allowance" that David Lynch, an employee of the federal government, received because he lives in a remote area with a relatively high cost of living. On appeal, David Lynch argues that the territorial cost-of-living allowance should not be considered in determining his child-support obligation. We agree and, therefore, reverse and remand.

= = = =

A07-897

Ramsey County,
Appellant,

Hodan M. Askar,
Respondent,

vs.

Abdi-Habib M. Sharif,
Respondent.

WILLIS, Judge
Appellant challenges the district court's affirmance of a child-support magistrate's decision to reinstate respondent's driver's license. We affirm.

= = = =

A07-0920

In the Matter of the Claim for Benefits by Dean A. Nelson

CONNOLLY, Judge
Appellant challenges the Minnesota Public Safety Officers Benefit Eligibility Panel's decision to deny his request for continued-health-insurance coverage, arguing that his injury occurred during his scope of duties as a police officer. Because it is undisputed that appellant's injury did not lead to his retirement or separation from service, we affirm.

= = = =

A07-0936

Michael Eskierka,
Relator,

vs.

Graco Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

WILLIS, Judge
By writ of certiorari, pro se relator challenges the decision of an unemployment-law judge (ULJ) that relator was discharged for employment misconduct and is, therefore, disqualified from receiving unemployment benefits. Because the ULJ's decision is supported by substantial evidence, we affirm.

= = = =

A07-1055

Horace Mann Insurance Company,
Respondent,

vs.

Karen Ferguson,
Respondent,

Epic Development X, LLC,
Appellant,

Richard Ragatz, et al.,
Defendants.

KALITOWSKI, Judge
On appeal in this multi-party real-estate-transfer and insurance dispute, appellant-buyer Epic Development X, LLC, argues that the district court erred in determining that (1) an assignment of the payments under the purchase agreement to respondent-seller Karen Ferguson's insurer, respondent Horace Mann Insurance Company, was valid and was not an improper "Mary Carter" agreement; (2) Ferguson and appellant did not have a settlement; (3) appellant's failure to tender the entire purchase price was not justified; (4) the doctrine of collateral estoppel did not preclude the district court from addressing Ferguson's second motion for summary judgment; and (5) Ferguson is the prevailing party in this dispute, and thus entitled to attorney fees. We affirm.

= = = =

A07-1061

Anthony P. Jacobson,
Respondent,

vs.

City of Bloomington, et al.,
Appellants.

JOHNSON, Judge
While responding to an emergency in her squad car, Bloomington Police Officer Kay Berthiaume collided with a car driven by Anthony P. Jacobson at the intersection of Portland Avenue and 90th Street. Jacobson sued the city and Officer Berthiaume, who moved for summary judgment on the grounds of official immunity and statutory immunity. The district court denied the motion. On interlocutory appeal, we conclude that there are no genuine issues of material fact and that the city and Officer Berthiaume are entitled to summary judgment. Therefore, we reverse.

= = = =

A07-1220

Rosemary Shepherd,
Respondent,

vs.

Melinda Stade, f/k/a Melinda Zander,
Appellant.

CONNOLLY, Judge
Appellant challenges the district court's denial of her motion to dismiss respondent's complaint on the ground that it is barred by the doctrine of sovereign immunity. Appellant asserts that the Shakopee Mdewakanton Sioux Community (the tribe) is an indispensable party to the suit and that, because the tribe cannot be joined, the suit must be dismissed. We conclude that the tribe is neither a necessary nor an indispensable party and therefore affirm the district court's decision.

= = = =

A07-1211

Mark E. Meysembourg,
Appellant,
vs.

Claire H. Press, f/k/a Claire H. Meysembourg,
Respondent.

STONEBURNER, Judge
Appellant challenges the district court's enforcement of a stipulated dissolution decree, arguing that the district court misinterpreted the decree, failed to account for his nonmarital interest in rental property sold after the decree was entered, and failed to give him credit for funds respondent received from the post-decree sale of other property awarded to husband in the decree. Because the district court did not err in its interpretation of the decree, and because appellant failed to establish his nonmarital claim in proceeds from the sale of the rental property or the existence of an agreement that the funds respondent received from the sale of appellant's other property would be deducted from her interest in the rental property, we affirm.

= = = =

A07-1254

Major Linear, a/k/a Elijah Neumann,
Appellant,

vs.

Joan Fabian, individually and in her official
capacity as the Commissioner of the
Minnesota Department of Corrections, et al.,
Respondents.

CONNOLLY, Judge
Appellant challenges the district court's grant of summary judgment arguing that it erred by holding that (1) rigorous physical activity is an essential component of the Challenge Incarceration Program and (2) any accommodation that would have allowed appellant to stay in CIP would not have been reasonable. Because appellant failed to establish that he was a "qualified individual with a disability" within the meaning of the Americans with Disabilities Act, 42 U.S.C. 12131(2) (2006), we affirm.

= = = =

A07-1341

In the Matter of the Welfare of: H. A. D., Child

SHUMAKER, Judge
Appellant, a juvenile, challenges the court's order extending the term of her probation and requiring her to pay restitution for amounts requested after her probation expired. Because we find that certain restitution requests were timely filed and that the court properly ordered such restitution, we affirm that part of the order. But because we find that the court erred in extending probation and in ordering restitution upon untimely requests, we reverse as to those matters, and we remand.

= = = =

A07-1342

In re the Estate of:
Doris M. Hron, Deceased

ROSS, Judge
Thomas Hron appeals from an adverse judgment in his challenge to the validity of his deceased mother's will. He disputes the district court's factual findings, arguing that the will was a product of fraud, undue influence, and a lack of testamentary capacity. He also argues that he was denied due process and asserts that the district court judge should have recused herself from the case. Because the district court's essential findings are supported by the record, because Thomas Hron has not shown he was denied due process, and because the district court judge's recusal was not required, we affirm.

= = = =

A07-1377

Joseph J. Palumbo,
Respondent,

vs.

Nicholas Gary Anderson,
Appellant,

Joshua Foster,
Defendant.

WORKE, Judge
Appellant challenges the district court's denial of his motion to vacate a default judgment based on excusable neglect, arguing that the district court erred by finding that (1) his difficult circumstances and depression did not constitute a reasonable excuse for his failure to respond to the complaint, and (2) his defense on the merits was not sufficiently compelling to support vacation of the judgment. We affirm.
= = = =

A07-1821

Gloria Santizo,
as Trustee for the Heirs and Next of Kin of
Margarita Mazariegos,
Appellant,

vs.

Elmer Garcia Bravo,
as Personal Representative of the Estate of
Amado Garcia Santizo, et al.,
Respondents.

STONEBURNER, Judge
Appellant, trustee for the heirs and next of kin of a passenger who was killed in a one-vehicle accident, challenges the district court's denial of a motion for judgment as a matter of law on the issue of liability and for a new trial on damages. Appellant argues that (1) the district court abused its discretion by instructing the jury on the emergency rule; (2) the district court erred by failing to grant judgment as a matter of law based on prima facie evidence of the driver's negligence; (3) the damages award was so inadequate as to indicate prejudice; and (4) the district court abused its discretion by denying appellant's request to continue the trial. We affirm.

= = = =

A07-2197

In the Matter of the Welfare of the Child of: S.L.S. and P.E.J., Parents.

PETERSON, Judge
This appeal is from an order terminating appellant-father's parental rights. We affirm.

= = = =

A08-0037

In the Matter of the Welfare of the Child of T.T.B., Parent.
STONEBURNER, Judge
Appellant, a juvenile, challenges the juvenile-protection court's discharge of his child-protection case as contrary to his best interests and the mandates of child-protection laws. Because the record does not support the juvenile-protection court's finding that closing the case is in appellant's best interests, we reverse and remand.
 

 
 
 

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