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Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551
   

Saint Paul Lawyer
 
 mdouglas@injurylawstpaul.com

 

UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

The following are the civil opinions issued today by the Minnesota Court
of Appeals and designated by it as "unpublished and [not to] be cited
except as provided by Minn. Stat. ? 480A.08, subd. 3 (1996)."

If you see a decision that you want to read in full, you can get the
full text of just that decision two ways. You can obtain the decisions
in HTML directly from the Court by going to
http://www.courts.state.mn.us/page/default.aspx?pageID=146 ; or you can
get copy in Word by going to http://www2.mnbar.org/ctops, and clicking
on the link with the corresponding file number.

A05-796

In the Matter of Permit Application
No. 2004-1082 of Frank Spartz.

WILLIS, Judge
Relator Frank Spartz applied to the Department of Natural
Resources (DNR) for an after-the-fact permit to put riprap on his
lake-front property. An administrative law judge (ALJ) recommended
denying the application; the DNR commissioner adopted the ALJ's report
and denied Spartz's application. On appeal from that denial, Spartz
argues that (a) the record shows the existence of sufficient erosion to
allow him to install riprap; (b) the record does not show that the
riprap is detrimental to significant fish and wildlife habitat; (c) the
riprap was not placed on plants protected by law; (d) the commissioner's
order is based on an improper delegation by the DNR to Cass County of
the DNR's authority to regulate shorelines below the ordinary high water
line (OHWL); and (e) the commissioner should have granted Spartz's
request for reconsideration. The record contains substantial evidence
supporting the commissioner's decision and does not show that the
commissioner misapplied the law; therefore, we affirm.

= = = =

A05-1040
A05-1063

In re the Marriage of:
Renee L. Jenson, petitioner,
Respondent (A05-1040),
Appellant (A05-1063),
vs.
Leslie M. Jenson,
Appellant (A05-1040),
Respondent (A05-1063).


WILLIS, Judge
In these consolidated appeals following the vacation of an amended
dissolution judgment because of fraud, wife argues that (1) the district
court clearly erred by finding that wife committed fraud and (2) the
district court abused its discretion by awarding husband conduct-based
attorney fees. Because the record supports the district court's finding
of fraud and the district court did not abuse its discretion by awarding
attorney fees, we affirm the vacation of the judgment and the
attorney-fees award. Husband argues in his appeal that the preceding
judgment, which was revived as a result of the order of vacation, must
be amended because its conclusion of law regarding the marital-property
division contains numerous errors. We agree, and reverse and remand.

= = = =

A05-1217

Ellen Barlow,
Relator,
vs.
Women of Nations (Inc.),
Respondent,
Department of Employment and Economic Development,
Respondent.

TOUSSAINT, Chief Judge
In this appeal from the determination by the senior unemployment
review judge (SURJ) that relator Ellen Barlow is disqualified from
receiving unemployment benefits, Barlow argues she did not knowingly
misrepresent her criminal record on her employment application; the
unemployment law judge (ULJ) erred in allowing exhibits into the record
and in denying her motion to continue the hearing; and respondent Women
of Nations (Inc.) violated her constitutional right to privacy. Because
the evidence reasonably supports the determinations that Barlow
committed disqualifying misconduct and that the ULJ properly conducted
the hearing and because Barlow did not adequately brief her
constitutional claim, we affirm.

= = = =

A05-1345

Eureka Township, a Minnesota urban town,
Appellant,
vs.
Jeffrey Krapu and Andrea Krapu,
Respondents.

ROSS, Judge
Appellant Eureka Township challenges the district court's summary
judgment order, in which the district court required the township to
grant respondents Jeffrey and Andrea Krapu a conditional use permit to
operate a dog kennel on their property within the township. The
township argues that there is a rational basis for its denial of the
permit. Because the township's conclusory and unsupported bases for its
denial of the permit do not justify denial under the standards in the
township's zoning ordinance, we affirm the district court's order
directing the township to grant the permit.

= = = =

A05-1362

Groth Lumber Company, LLC,
Respondent,
vs.
Robert Dahl,
Appellant,
Mary Roe, et al.,
Defendants.

HUDSON, Judge
This is an appeal from a decision in a contract dispute regarding the
cost of building materials for a house, in which the court entered
judgment in favor of respondent and authorized a constitutional lien.
Appellant contends that the court erred in concluding that the account
balance for construction materials purchased on his behalf to build his
own residence constituted an "open-ended credit plan" under Minn. Stat.
? 334.16 (2004) and was, therefore, not subject to the usual usury
limits. We affirm.

= = = =

A05-1366

In re the Marriage of:

Marissa Ethel Rosenblum, petitioner,
Respondent,
vs.
Kenneth Samuel Rosenblum,
Appellant.

SHUMAKER, Judge
Appellant challenges the district court's determination that certain
income-tax overpayments were refunds, to which respondent was entitled
to half, rather than payments toward future estimated tax liabilities.
Because the evidence in the record does not support the court's
conclusion, we reverse.

= = = =

A05-1413

Kay Marie Caccia,
f/k/a Kay Marie Petersen,
Respondent,
vs.
Randall Gene Petersen,
by Leroy E. Petersen,
his guardian ad litem,
Appellant.

KLAPHAKE, Judge
Appellant Randall Gene Petersen challenges the district court's
grant of summary judgment to respondent Kay Marie Caccia, permitting
partition by sale of the parties' former marital homestead, which the
parties held as tenants in common pursuant to the dissolution judgment.
Appellant argues that the district court abused its discretion by
refusing to consider equitable principles that would bar respondent from
relief.
Because appellant's challenge is a collateral attack on the
dissolution judgment, the district court did not abuse its discretion by
granting summary judgment. We therefore affirm.

= = = =

A05-1465

In re the Marriage of:

Mary K. Clifford, petitioner,
Respondent,
vs.
Wayne Howard Clifford,
Appellant.

HUDSON, Judge
In this spousal-support modification dispute, appellant-husband Wayne
Clifford argues the district court (a) misapplied the Uniform Interstate
Family Support Act by ruling that the Minnesota district court either
lacked jurisdiction to modify spousal support, or would defer to the
jurisdiction of other states to do so; and (b) abused its discretion by
awarding respondent-wife Mary Clifford attorney fees. Because husband's
spousal-support obligation created in the parties' Minnesota dissolution
judgment was not modified by the order of another state, we reverse the
district court's determination that Minnesota lacked continuing,
exclusive jurisdiction to hear husband's motion to modify spousal
support and remand for the district court to address husband's motion on
the merits. Because the attorney-fee award of which husband complains
was functionally vacated, we affirm in part.

= = = =

A05-1483

Lumbermens Mutual Casualty Company, et al.,
Respondents,
vs.
Minnesota Special Compensation Fund, et al.,
Appellants.

PETERSON, Judge
Respondent insurers brought this action seeking a refund of
assessments paid to the Minnesota Special Compensation Fund, and the
district court granted respondents' motion for summary judgment. In
this appeal from the summary judgment, appellants Minnesota Special
Compensation Fund and the Commissioner of the Minnesota Department of
Labor and Industry argue that the district court incorrectly interpreted
Minn. Stat. ? 176.129 (2004) and erred in determining that respondents
were denied due process of law when they were required to pay
assessments without first being granted a hearing to determine whether
appellants were correctly administering Minn. Stat. ? 176.129. We
conclude that the district court erred in interpreting Minn. Stat. ?
176.129, subd. 2a (2004), and in determining that respondents were
denied due process of law. But because we also conclude that the
district court had authority under Minn. Stat. ? 176.129, subd. 7
(2004), to grant equitable relief and that the district court did not
abuse its discretion in granting equitable relief, we affirm.

= = = =

A05-1569


Itasca County Health and Human Services,
Respondent,
Lynn Florian n/k/a Lynn Castro,
Respondent,
vs.
Robert W. Cadotte,
Appellant.

LANSING, Judge
In this child-support enforcement action, Robert Cadotte appeals
from a district court order determining the validity of an
administrative order withholding income for child-support arrears.
Cadotte argues that the district court erred by validating the
administrative enforcement because the county did not comply with the
Uniform Interstate Family Support Act by registering the out-of-state
order in Minnesota. Because the county did not register the order after
Cadotte contested its enforcement, we reverse.

= = = =

A05-1606
A05-2429

In re the Marriage of:
Joseph James Flaherty,
petitioner,
Respondent,
vs.
Barbara Jean Flaherty,
Appellant.

KLAPHAKE, Judge
Appellant Barbara Jean Flaherty challenges the district court's
order on remand from this court (1) reversing the district court's prior
award of permanent maintenance of ,600 per month and reinstating the
temporary maintenance award of ,500 per month nunc pro tunc to May
2002; (2) terminating temporary maintenance as of June 1, 2005; (3)
denying appellant's motion for permanent maintenance and imputing income
to her; and (4) requiring appellant to reimburse respondent Joseph James
Flaherty in the amount of ,500, the difference between the prior
permanent maintenance award and the order on remand for temporary
maintenance nunc pro tunc to May 2002. See Flaherty v. Flaherty, No.
A03-1101 (Minn. App. Mar. 16, 2006).
We affirm the district court's order imputing income to
appellant based on her failure to use reasonable efforts to rehabilitate
and become employed. But because the district court's findings
regarding appellant's imputed investment income, her ability to be
self-sufficient, and her reasonable needs are clearly erroneous, we
reverse and remand, with instructions to the district court to determine
the amount of investment income appellant can reasonably expect from her
marital assets and to order permanent maintenance to cover the gap
between appellant's imputed income and investment income, and her
reasonable needs. We further reverse the district court's order for
reimbursement, because our remand order was intended to be prospective,
rather than retroactive.

= = = =

A05-1645

Patricia Ann Holliday, individually and
as personal representative and sole heir of the
Estate of George Frances Holliday, Jr.,
Appellant,
vs.
Independent School District
No. 709, Duluth,
Respondent.

HUDSON, Judge
Appellant Patricia Holliday, on her own behalf and on behalf of the
estate of George Holliday, Jr., brought an action against respondent
Independent School District No. 709 after she was denied access to the
school district's retirement-insurance plan and to the "fund balance"
that remained on her husband's account after he died. On appeal from
summary judgment in favor of the school district, Holliday argues that
(1) the inferences to be drawn from the facts support a prima facie case
of discrimination based on disparate treatment and disparate impact
under the Age Discrimination in Employment Act; (2) the inferences to be
drawn from the facts support a prima facie case of disparate-treatment
discrimination under the Minnesota Human Rights Act; (3) genuine issues
of material fact remain as to whether the Hollidays were fraudulently
induced to believe that they could withdraw and re-enroll in the school
district's retirement-insurance plan; (4) the school district made
fraudulent or negligent misrepresentations on which the Hollidays relied
to their detriment; and (5) the school district converted the "fund
balance." We affirm.

= = = =

A05-1648

McNulty Construction Company,
Appellant,
vs.
The City of Deephaven,
Respondent.

SHUMAKER, Judge
Appellant McNulty Construction Company challenges the City of
Deephaven's denial of a permit to subdivide land that McNulty owns. The
district court granted summary judgment to the city, and we affirm.

= = = =

A05-1689

Emad Y. Abed, et al.,
Appellants,
vs.
Fafinski & Wallrich, P.A.,
d/b/a Fafinski, Wallrich & Roos, et al.,
Respondents.

SHUMAKER, Judge
Appellant Emad Abed challenges the district court's summary judgment
dismissing his fraud and negligent-representation claims and the
district court's denial of his motion to amend his complaint to allege a
breach of fiduciary duty. Because there was no genuine issue of
material fact as to damages in the fraud and negligent-misrepresentation
claims, we affirm. But because the court abused its discretion in
denying the motion to amend the complaint, we reverse and remand.

= = = =

A05-1699

County of Blue Earth, petitioner,
Respondent,
vs.
Francis E. Wingen,
Appellant,
Mary J. Wingen,
Appellant.

TOUSSAINT, Chief Judge
Appellants Francis E. and Mary J. Wingen, landowners, moved for costs
and attorney fees from respondent County of Blue Earth because
respondent moved to dismiss its petition to acquire some of appellants'
land by eminent domain. They challenge the denial of their motion.
Because there is no statutory requirement that appellants recover their
costs and attorney fees and because the district court did not abuse its
discretion in denying appellants' motion for costs and attorney fees, we
affirm.

= = = =

A05-1723

Marjory McPartlin,
Appellant,
vs.
Thomas McPartlin,
Respondent.

HALBROOKS, Judge
Appellant challenges the district court's grant of respondent's
motion for summary judgment. Appellant asserts that there are genuine
issues of material fact regarding whether appellant gave respondent a
trust interest in 1993, following their mother's death. Appellant
argues that the district court erroneously applied the law when
determining that respondent did not act fraudulently in order to obtain
the quitclaim of appellant's rights to the trust. Finally, appellant
claims that the district court improperly engaged in fact-finding at the
summary-judgment stage of the proceedings. Because there are no genuine
issues of material fact, the district court did not err in applying the
law, and the district court did not improperly make factual findings, we
affirm.

= = = =

A05-1754

Craig J. Lysdahl,
Relator,
vs.
Classic Touch, Inc.,
Respondent,
Department of Employment and
Economic Development,
Respondent.

KLAPHAKE, Judge
Pro se relator Craig J. Lysdahl brings this certiorari appeal to
challenge a decision issued by a senior unemployment review judge
(review judge), who determined that relator was disqualified from
receiving unemployment benefits because he was discharged by his
employer, respondent Classic Touch, Inc., for employment misconduct.
Because the evidence reasonably supports the findings that relator
departed from the employer's practice of making twice-daily bank
deposits without obtaining the employer's approval for making such a
change and that the deposits that were made showed unexplained cash
irregularities, we affirm the review judge's determination that relator
committed disqualifying employment misconduct.



= = = =

A05-1783

Shelley Hanson,
Appellant,

v.

Friends of Minnesota Sinfonia
d/b/a Minnesota Sinfonia, et al.,
Respondents.

ROSS, Judge
Appellant Shelley Hanson challenges the district court's dismissal of
her negligence suit against respondents Friends of Minnesota Sinfonia
and Jay Fishman. Because the district court correctly concluded that
Hanson's claim is barred under the doctrine of res judicata, we affirm.

= = = =

A05-1811

Lake Minnetonka
Conservation District,
Respondent,
vs.
Miles B. Canning, et al.,
Appellants.

KLAPHAKE, Judge
Appellants Miles and Pamela Canning challenge the district
court's grant of summary judgment to respondent Lake Minnetonka
Conservation District (LMCD). The LMCD brought this enforcement action
seeking an injunction to require appellants to remove their dock, which
does not meet LMCD regulations.
Appellants argue: (1) the LMCD lacks authority to regulate the
location or configuration of their private, noncommercial dock; (2) they
have riparian rights to access the lake via their dock that cannot be
eliminated without payment of just compensation; (3) their dock is a
legal non-conforming use that cannot be removed by the LMCD absent use
of eminent domain and the payment of fair compensation; and (4) the LMCD
ordinances are an unconstitutional delegation of power because they
allow neighboring landowners to withdraw consent to private docks.
Because appellants have riparian rights to access navigable waters of
the lake and because the position taken by the LMCD may interfere with
those rights, we reverse and remand for further proceedings.

= = = =


A05-2085

Headwaters Rural Utility Association, Inc., et al.,
Relators,
vs.
City of Corcoran City Council,
Respondent

WORKE, Judge
In this certiorari appeal, relators argue that respondent city council's
decision that certain septic systems were "failing" must be reversed
because (1) a city ordinance conflicts with Minn. Stat. ? 115.55, subd.
5a(g) (2004); (2) respondent failed to accept relators' expert reports,
and (3) respondent's findings of fact and conclusions of law are an
unconstitutional bill of attainder. Relators also argue that Minn.
Stat. ?115.55 (2004) is unconstitutional. We affirm.

= = = =

A05-2164

Regina Tandan,
Relator,
vs.
Summit Services,
Respondent,
Department of Employment and
Economic Development,
Respondent.

KLAPHAKE, Judge
Relator Regina Tanden challenges the decision of the senior
unemployment review judge (review judge) that relator was discharged for
misconduct and is therefore not entitled to benefits. Because evidence
sustains the factual findings on which that decision was based, we
affirm.

= = = =

A05-2173

In re the Marriage of:
Mary Margaret Colburn,
n/k/a Mary Margaret Juneau,
petitioner,
Respondent,
vs.
Richard Harlan Colburn,
Appellant.

HARTEN, Judge
Appellant Richard Harlan Colburn challenges the district court's
order denying his motion to reduce or terminate his permanent
maintenance obligation to respondent Mary Margaret Juneau. The motion
was based on a substantial change in circumstances occasioned by
appellant's early retirement. Appellant also contests the award of
attorney fees to respondent. Because the district court's finding
that appellant retired in bad faith is inadequately supported by the
record, we conclude that the district court abused its discretion by
denying appellant's motion. And because the record does not contain
sufficient information to determine appropriate maintenance based on
appellant's changed circumstances, we remand to the district court with
instructions to reopen the record, but continue appellant's spousal
maintenance obligation undiminished until the district court can
determine the appropriate amount of maintenance based on changed
circumstances. We affirm the district court's award of attorney fees to
respondent.

= = = =

A05-2349

In re the Marriage of:

Marcus LeRoy Siewert, petitioner,
Appellant,
vs.
Janet Marie Holst,
f/k/a Janet Marie Siewert,
Respondent.

KALITOWSKI, Judge
On appeal in this property-division dispute, appellant Marcus LeRoy
Siewert challenges an order issued by the district court following this
court's remand. Appellant argues that the district court erred by (1)
denying his request to present additional evidence on remand; (2)
classifying his retirement assets and farm equipment as marital
property; and (3) crediting appellant with the receipt of certain
dissipated funds. We affirm.

= = = =

A05-2366
A06-292

In re the Marriage of:
Kathryn M. Goodyear-PeKarna,
petitioner,
Appellant,
vs.
Matthew DeWitt PeKarna,
Respondent.

HARTEN, Judge
Appellant Kathryn M. Goodyear-PeKarna challenges the district
court's rulings on child custody and division of property in this
marital dissolution appeal. She claims that the district court abused
its discretion in modifying its initial temporary custody determination,
in making its ultimate custody decision, and in failing to order a
post-judgment evidentiary hearing on claimed endangerment of the
children. She also claims that the district court abused its discretion
in dividing property by awarding her a lien on the homestead payable
when the youngest child graduates from high school, in failing to credit
her for extraordinary expenses she paid for the children, and in
dividing proceeds from an account that held funds derived from the
second mortgage on the homestead. Because we conclude that the district
court's custody and property division determinations were a proper
exercise of its discretion, we affirm.

= = = =

A06-266

In the Matter of the Civil Commitment of:
Robert Leroy Rustman.

STONEBURNER, Judge
Appellant challenges his commitment as a sexually dangerous person and
as a sexual-psychopathic personality. Because there is clear and
convincing evidence in the record that appellant is highly likely to
engage in harmful sexual acts in the future and that he has an utter
lack of power to control his sexual impulses, we affirm.
 

 
 
 

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