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UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALSA07-0847In re the Marriage of: Julie Marie Fuchs, petitioner, Respondent, vs. Douglas James Fuchs, Appellant. JOHNSON, Judge After taking a new job with a lower level of compensation, Douglas James Fuchs filed a motion in the district court to modify his child-support obligation, but the district court denied the motion. On appeal, he argues that the district court's findings of fact were insufficient and that the district court erred by concluding that there was no change in circumstances to warrant a modification of his child-support obligation. We conclude that the district court's findings do not reflect the statutorily required consideration of factors relevant to a modification motion and, therefore, reverse and remand. A07-1179 In re the Marriage of: Kathleen Mary Norblom, petitioner, Respondent, vs. Paul Bryan Norblom, co-petitioner, Appellant, and County of Dakota, Intervenor. WRIGHT, Judge Appellant-father argues that the district court erroneously refused to use father's subsequent child as a basis to deviate downward from father's guideline child-support obligation, mischaracterized certain expenses of his subsequent child, and made findings of fact that are not supported by the record. Father also argues that the district court erred by increasing his support obligation retroactively and by denying his motion for amended findings or a new trial. Respondent-mother challenges the district court's denial of her motion for conduct-based attorney fees. We affirm in part, reverse in part, and remand. A07-1275 CJMA Financial Corporation, Respondent, vs. 1100 Nicollet Mall L.L.P., defendant and third party plaintiff, Appellant, vs. David Polacek, third party defendant, Respondent. SCHELLHAS, Judge Appellant-landlord challenges the portion of a district court's order granting respondent-tenant's motion to enforce the parties' on-the-record settlement agreement. Appellant argues that the district court improperly altered the terms of the agreement by determining that appellant had waived its claim to custodial charges and by adopting respondent's measurement of its leased premises. Because a provision in the parties' lease agreement precludes waiver in the absence of a writing and is contrary to the district court's determination on the issue of custodial charges, we reverse in part. But because nothing in the record contradicts respondent's measurement method or its adoption by the district court, we affirm in part. A07-1278 Joseph E. Zweber, Relator, vs. Commonbond Housing Corp., Respondent, Department of Employment and Economic Development, Respondent. PETERSON, Judge In this certiorari appeal from the decision of an unemployment law judge (ULJ) that relator is disqualified from receiving unemployment benefits because he was discharged for misconduct, relator argues that (1) the findings of fact are erroneous, (2) the record was not adequately developed, and (3) his actions did not constitute misconduct. We affirm. A07-1353 LeRoy Bahr, Respondent, vs. Boise Cascade Corporation a/k/a Boise Paper Cascade Corporation, et al., Appellants. SCHELLHAS, Judge Appellants challenge the district court's refusal to find that respondent's defamation claims against appellants were not actionable as a matter of law. Because we conclude that a qualified privilege applied to the allegedly defamatory statements and that insufficient evidence of malice existed for the jury to consider whether this qualified privilege had been overcome, we reverse and remand to the district court for consideration of appellants' costs and disbursements. A07-1375 Adam Steele, Appellant, vs. Louise Mengelkoch, Defendent, Bemidji State University, Respondent, William Batchelder, Defendent, Google, Inc., a Delaware corporation doing interstate business, and business in Minnesota, Respondent, and other unnamed Persons and entities, Defendants. KLAPHAKE, Judge In October 2006, appellant Adam Steele initiated a pro se, in forma pauperis action against respondents Bemidji State University (BSU) and Google, Inc. (Google), a well-known Internet search engine provider, among others. Google had posted an article entitled "All the News That's Not Fit to Print" that was published in an on-line magazine, Minnesota Law and Politics. Louise Mengelkoch, a BSU professor, authored the article. Appellant's complaint alleges that William Batchelder, a BSU alumnus, attended a lecture given by Mengelkoch and made defamatory statements about him after the lecture. Appellant's complaint also alleges libel against Google, claiming billion in damages, and slander, conspiracy to commit slander, and other torts against BSU.1 BSU and Google each moved to dismiss. Appellant challenges the district court's judgment dismissing these claims as to BSU and Google and requiring appellant to pay their attorney fees and expenses, which totaled ,637.58. Because appellant failed to set forth legally sufficient claims for relief against respondents, we affirm the district court's dismissal of the claims against respondents for failure to state a claim; but because the court was not authorized to award monetary sanctions under the facts presented, we reverse the sanctions award. A07-1421 Tanya J. Ryks, Relator, vs. Department of Employment and Economic Development, Respondent. ROSS, Judge This certiorari appeal arises from an unemployment law judge's finding that Tanya Ryks, a former accountant, failed to actively seek and be available for suitable employment, as required to obtain unemployment benefits under Minnesota Statutes, section 268.069 (2006). Ryks appeals, contending that the judge did not apply a reasonable definition of "suitable employment," and that he erroneously concluded that she was not actively seeking and available for suitable employment. Because we hold that substantial evidence supports the unemployment law judge's findings that Ryks was not actively seeking suitable employment and did not make herself available for suitable employment, we affirm. A07-1569 Dennis Schneider, Sr., et al., petitioners, Appellants, vs. State of Minnesota, Hennepin County Human Services and Public Health Department, Respondent, Dennis Schneider, Jr., Respondent, Barbara Schneider, Respondent. MINGE, Judge Appellants challenge the dismissal (without an evidentiary hearing) of their petition for visitation with their grandchildren pursuant to Minn. Stat. § 257C.08, subd. 4 (2006). Because appellants failed to allege or present prima facie evidence that their visitation would not interfere with the custodial relationship between the children and their adoptive parents, we affirm. A07-1642 State of Minnesota ex rel., Stev Stegner, Relator, vs. Terance Smith, et al., Respondents, Office of Administrative Hearings, Respondent. MINGE, Judge Relator challenges the decision of an administrative law judge (ALJ) dismissing his complaint against respondents for failure to state prima facie violations of Minn. Stat. § 211B.06 (2006) (providing penalty for dissemination of false campaign material) or of § 211B.07 (2006) (prohibiting undue influence on voters). Because we conclude that relator's complaint does not state a prima facie violation of either provision, we affirm. A07-1702 Wendy Chambers, Relator, vs. Family and Cosmetic Gentle Dentistry Ltd., Respondent, Department of Employment and Economic Development, Respondent. WORKE, Judge Relator challenges the decision by the unemployment-law judge (ULJ) that she was discharged for misconduct and disqualified from receiving unemployment benefits for continuing violations of her employer's policies, arguing that the ULJ's findings are incorrect and that the ULJ failed to explain credibility determinations. We affirm. A07-1752 A07-2008 M. W. Johnson Construction, Inc., Respondent (A07-1752), Appellant (A07-2008), vs. Progress Land Company, Inc., Appellant (A07-1752), Respondent (A07-2008). MUEHLBERG, Judge On the second appeal in this development dispute, seller argues that the district court (1) misconstrued two ambiguous purchase agreements for land undergoing development, and (2) erred in awarding damages to buyer for lost profits resulting from seller's breach of the second purchase agreement. Buyer argues that the district court erred (1) in not awarding lost-benefit-of-the-bargain damages in addition to damages for lost profits, and (2) by increasing the price of lots subject to the first purchase agreement based on evidence presented by seller after trial. We affirm. A07-1778 In re the Marriage of: Elizabeth Ann Boland, petitioner, Respondent, vs. Thomas Francis Murtha, IV, Appellant. MUEHLBERG, Judge Appellant challenges the district court's determination that modification of his child-support obligation was warranted only for a three-and-one-half-month period of transition, arguing that (1) he is not voluntarily underemployed and (2) even if he is voluntarily underemployed, the district court erroneously calculated his imputed income. We affirm the temporary reduction. But as more fully explained below, we remand for an extension of this transitional period to a more reasonable length and reverse the determination that appellant is voluntarily underemployed. A07-1789 James Klapmeier, et al., Appellants, vs. Peoples National Bank of Mora, Respondent. HUDSON, Judge On appeal in this mortgage dispute, appellants-mortgagors argue that the district court erred in denying a motion for amended findings or a new trial because respondent-bank's deduction of ,000 from the proceeds of the sale of appellants-mortgagors' real property, and use of those proceeds to apply against a new debt to satisfy a mortgage debt that had previously been paid, constituted conversion of those funds. Respondent-bank filed a notice of review claiming that the district court abused its discretion in denying its motion for attorney's fees. We reverse and remand. A07-1851 In re the Marriage of: Horace D. Allen, petitioner, Appellant, vs. Nikki D. Thompson, f/k/a Nikki D. Allen, Respondent. SCHELLHAS, Judge Appellant challenges the district court's denial of his motion to have his name added to his minor child's school billing account; admission of certain testimony; and order that the parties mediate future disputes. Appellant also alleges that the district court was hostile towards him and prevented him from communicating with counsel. We affirm. A07-2231 Charlene Theresa Eve Roach, petitioner, Respondent, vs. Ann Teresa Turner, Appellant. HUDSON, Judge In this third-party custody dispute, appellant/mother argues that the district court (1) abused its discretion by granting custody to respondent, the child's paternal aunt, because its findings were unsupported by the evidence; (2) abused its discretion by admitting into evidence the report and testimony of the guardian ad litem (GAL); (3) abused its discretion by allowing respondent to determine the extent and location of appellant's parenting time; and (4) failed to make findings in denying mother's request for compensatory parenting time and abused its discretion by failing to order compensatory parenting time. We affirm the district court's decision to award custody to respondent and to accept the evidence from the GAL. But we conclude that the district court abused its discretion by allowing respondent to determine the location and extent of appellant's parenting time, erred by failing to make findings on compensatory parenting time, and abused its discretion by failing to order compensatory parenting time in a neutral, supervised location. We therefore reverse and remand on those issues. A07-2291 In re the Marriage of: Theodore A. Pavlovich, petitioner, Appellant, vs. Dawn E. Pavlovich, Respondent. HUDSON, Judge On appeal in this parenting-time dispute, appellant father argues that the July 2004 parenting-time schedule should be enforced because (a) there has been no finding of endangerment; and (b) the child's wishes not to have parenting time with his father are the result of systematic parental alienation by respondent-mother. Because the district court did not abuse its discretion in denying appellant's motion to enforce the parenting-time schedule, we affirm. A08-0102 In re the Marriage of: Wanda Ann LeBlanc-Fricke f/k/a Wanda Ann LeBlanc-Gasner, petitioner, Respondent, vs. David Edward LeBlanc-Gasner, Appellant. WILLIS, Judge Appellant challenges the district court's denial of his motion to modify child custody. Because we conclude that the district court abused its discretion by denying the motion without an evidentiary hearing, we reverse and remand. A08-0251 In the Matter of the Civil Commitment of: Philip Samuel Goldhammer HALBROOKS, Judge Appellant challenges the district court's order committing him as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP). He argues that the district court lacked sufficient evidence to support its findings that he is (1) utterly incapable of controlling his sexual impulses and therefore does not qualify as an SPP and (2) unable to adequately control his sexual impulses and therefore does not qualify as an SDP. Because we conclude that clear and convincing evidence supports the district court's determinations, we affirm. A08-0267 In the Matter of the Civil Commitment of: Renee P. Sharp. PETERSON, Judge Pro se appellant challenges district court orders that recommit her as a mentally ill person and authorize the administration of neuroleptic medications for the duration of the recommitment. We affirm A08-0394 In the Matter of the Civil Commitment of: Peter Gerard Lonergan CONNOLLY, Judge Appellant challenges an order for his civil commitment as a sexually dangerous person (SDP) as defined in Minn. Stat. § 253B.02, subd. 18c(a) (2006). Specifically, appellant contends that the district court erred in several evidentiary decisions and in failing to dismiss the petition. We affirm. |
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Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights
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