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UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALSThe following are the civil opinions issued today by the Minnesota Courtof Appeals and designated by it as "unpublished and [not to] be cited except as provided by Minn.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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Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights
Reserved. Minnesota Lawyer representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims. Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance. |
