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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UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

Southwood Motors,
Relator,

vs.

Department of Employment and Economic Development,
Respondent.

TOUSSAINT, Chief Judge
Relator Southwood Motors, a business that purchases used
vehicles at auctions in the Twin Cities area and resells them in the St.
Cloud area, challenges the decision of the unemployment law judge (ULJ)
that the individuals who drive the vehicles from the auction lots to
relator's lot are employees rather than independent contractors.
Because we conclude from the undisputed facts that no employment
relationship exists between the individuals and relator, we reverse.

= = = =


A05-2063


Andrew Wurtzberger,
Respondent,

vs.

Roger Heidelberger,
Appellant,

and

Roger Heidelberger,
Plaintiff,

vs.

Andrew Wurtzberger,
Defendant.


USSAINT, Chief Judge
On appeal from a judgment and an order denying posttrial
motions, Roger Heidelberger challenges the district court's decision
that he breached provisions of a purchase agreement and owed respondent
Andrew Wurtzberger damages. Because the district court did not err when
it determined that appellant breached the agreement and respondent had
not waived its enforcement, did not clearly err in its findings of fact,
and properly considered an issue tried by consent, we affirm.
= = = =

A05-1634


Thomas Hines, et al.,
Respondents,

vs.

Aandahl Construction Co., LLC,
Defendant,

Metropolitan Painting Associates,
Appellant.

TOUSSAINT, Chief Judge
Respondents Thomas C. and Mary Lou Hines brought this action against
appellant Metropolitan Painting Associates for the negligent hiring of a
painter whose accomplices robbed and assaulted the Hineses in their
home. Metropolitan challenges the judgment and the denial of its
posttrial motions. Because we conclude that Metropolitan owed a duty as
a matter of law to the Hineses, because the damage award was not
manifestly contrary to the evidence, and because we see no abuse of
discretion in the admission of testimony from the Hinses' expert
witness, we affirm.
= = = =

A06-308


In the Matter of the Welfare
of the Children of:
M.A.C., T.M.M., and S.C., Parents.

KLAPHAKE, Judge
Appellants M.C. and S.C. challenge the district court's
termination of their parental rights to their one-year-old daughter.
Appellant M.C. also challenges the termination of her parental rights to
her five- and seven-year-old daughters from her previous marriage.
Appellants argue that the district court improperly required them to
proceed without counsel, failed to follow the requirements of the Indian
Child Welfare Act, and terminated their parental rights without
sufficient evidence. Because substantial evidence supports the
termination of M.C.'s parental rights and because appellants presented
only vague allegations regarding S.C.'s Indian ancestry, we affirm in
part. But because we conclude that the district court abused its
discretion in failing to arrange for counsel when S.C. indicated his
inability to employ counsel or to proceed to trial without counsel, we
reverse the decision to terminate S.C.'s parental rights and remand.
= = = =

A05-2321

In re the Marriage of:
Michael Nicolai Ohnstad, petitioner,
Appellant,

vs.

Leilani L. Ohnstad,
Respondent,

and

County of Rice, intervenor,
Respondent

KLAPHAKE, Judge
Michael Ohnstad appeals pro se from a decision issued by a
child support magistrate suspending his driver's license for nonpayment
of child support arrears under Minn. Stat. ? 518.551, subd. 13 (2004).
He argues that he has no ongoing child support obligation because his
children are emancipated and that intervenor County of Rice has failed
to fully credit him for payments he made since his child support was set
in 1999. Appellant further argues that due to his medical problems, he
is unable to work and lacks the ability to pay child support.
Appellant's ex-wife, respondent Leilani Ohnstad, has not filed a brief
in this matter.
Because the magistrate failed to consider whether the
payment agreement proposed by the county was reasonable and tailored to
appellant's individual financial circumstances, as required by Minn.
Stat. ? 518.553 (2004), we reverse and remand for further proceedings
consistent with this opinion.
= = = =

A05-2082

Kimberly Kay Dipprey,
petitioner,
Appellant,

vs.

Andrew Douglas Lotter,
Respondent.

KLAPHAKE, Judge
Appellant Kimberly Kay Dipprey claims that the district
court erred in determining the custody of her child, B.E.L., and abused
its discretion in finding that she consented to B.E.L.'s continued
primary residence with his father, respondent Andrew Douglas Lotter.
Because the district court's custody determination is supported by the
findings and the record evidence supports those findings, we affirm.
= = = =

A05-2047


Terrence Hanson,
Relator,

vs.

County of Carver
Board of Commissioners,
Respondent.

KLAPHAKE, Judge
Relator Terrance Hanson challenges a decision by respondent
County of Carver Board of Commissioners (the board) denying his
application for a conditional use permit (CUP) to permit him to expand
his existing gravel mine operations. Relator argues that the board
acted arbitrarily in denying his CUP because it met county zoning
standards. An amicus curiae brief in support of the county's decision
to deny the CUP has been filed by San Francisco Township.
Because the record supports four of the five findings issued
by the board to deny the CUP, we affirm.
= = = =

A05-2114

Aitkin County Health and Human Services,
Respondent,

Cindy Kaye James,
Respondent,

vs.

Guy Chilton Smith,
Appellant.

SHUMAKER, Judge
Appellant challenges the district court's order affirming a
child-support magistrate's determination of appellant's past and current
support obligation, arguing that the magistrate improperly considered
capital gains in setting the support amount and improperly calculated
his monthly income. We reverse and remand.
= == = =

A05-2512

Stanley Ralph Herman, petitioner,
Respondent,

vs.

Sharon Diane Herman, n/k/a Sharon Diane Haneman,
Appellant.

BROOKS, Judge
Appellant challenges the district court's order affirming
the family court referee's denial of her motion to modify spousal
maintenance. Appellant argues that the maintenance award is
unreasonable and unfair under Minn. Stat. ? 518.64 (2004) because both
respondent's income and her needs have substantially increased, and,
therefore, the district court abused its discretion by denying her
motion. Because we conclude that the district court did not abuse its
discretion, we affirm.
= = = =

A05-2388

In re the Marriage of:
Larry J. Hoffer, petitioner,
Appellant,

vs.

Joni L. Moyer, f/k/a Hoffer,
Respondent.

HALBROOKS, Judge
On appeal from the district court's denial of appellant's
motion to increase his parenting time, appellant argues that the
district court failed to consider the children's best interests, that he
was denied due process and equal protection of the law, that the
district court should have appointed a guardian ad litem, and that the
district court erred by failing to order mediation of the parties'
disputes. We affirm.
= = = =

A05-2477

Stanley Thomas Olson,
as Personal Representative of the Estate of Violet Pilgrim,
Appellant,

vs.

Irving Bird,
individually and as Personal Representative of the Estate of Richard
Bird, et al.,
Respondents.


STONEBURNER, Judge

Appellant challenges the district court's judgment for
respondents on appellant's decedent's unjust-enrichment claim against
the estate and siblings of respondents' decedent. Because appellant
failed to prove unjust enrichment, we affirm.
= = = ==


A05-2262

In re: Estate of Willard P. Johnson
a/k/a Paul Willard Johnson, Deceased.


STONEBURNER, Judge

Appellants challenge admission of decedent's 2004 will to
probate, arguing that the district court's finding that decedent
possessed testamentary capacity when the will was executed was clearly
erroneous. Because the record supports the district court's finding of
testamentary capacity, we affirm.

= = = =

A05-2042

Linda S. S. de Beer, d/b/a/ de Beer & Associates, P.A.,
Respondent,

vs.

Christine Callahan,
Appellant.

STONEBURNER, Judge

Appellant challenges the district court's judgment for
attorney fees, arguing that respondent's withdrawal from representation
violated Minn. R. Prof. Conduct 1.4, relieving appellant of the
obligation to pay attorney fees that were outstanding at the time
respondent withdrew from representation. Appellant also argues that the
award of collection costs and attorney fees was excessive. We affirm.
== = = =

A05-1956

The Estate of: Theodore B. Nistler, Decedent

MINGE, Judge
Appellant challenges the district court's order and judgment
allowing the respondent-county's claim for medical assistance against
his father's estate. Because this court previously determined that
appellant did not timely appeal the district court's order allowing the
county's claim, that issue has already been resolved adversely to
appellant and is not properly before us. Because appellant similarly
did not timely appeal the district court's unjust-enrichment ruling,
this court lacks jurisdiction to reach that issue. Because the
administration of the estate is incomplete, because no claims (other
than the county's medical assistance claim) have been made and some may
not be made until the administration of the estate progresses, and
because the district court has not properly ruled on such matters, we do
not decide issues regarding expenses of administration and claims by or
against the estate (except to conclude that such claims are not
time-barred until they can be made) and we remand. We deny the county's
motion to strike portions of appellant's brief.
= = = =

A05-2311


Angela M. Wigfield,
Relator,

vs.

US Federal Employees,
Respondent,

Department of Employment
and Economic Development,
Respondent.

HUDSON, Judge
Relator Angela Wigfield challenges the decision by the unemployment-law
judge (ULJ) affirming his decision that relator was disqualified from
receiving unemployment benefits because she had been discharged for
misconduct. Relator argues that she provided medical documentation of
her illness, that she was physically unable to work on the days she
missed, and that she was subject to discrimination. Because the
evidence reasonably tends to sustain the ULJ's decision, we affirm.
= = = ==

A05-2303

Neil J. Cotton,
Relator,

vs.

Laundry World MN, LLC,
Respondent,

Department of Employment
and Economic Development,
Respondent.
HUDSON, Judge
Relator challenges the decision by the unemployment-law judge (ULJ) that
he committed misconduct, contending that (a) the employer's evidence was
mostly hearsay, there was a "surprise" witness, and the ULJ improperly
refused to reopen the hearing to receive rebuttal evidence that
corroborated relator's credibility; (b) the ULJ's credibility
determinations are not supported by the evidence; and (c) the decision
is not supported by substantial evidence and the record showed at most
unsatisfactory conduct or poor performance. Because the ULJ conducted
the hearing properly and provided ample reasoning for and otherwise
supported his/her credibility determinations, and because relator's
repeatedly rude conduct toward customers constituted employment
misconduct, we affirm.
= = = =

A05-2263

In re the Marriage of:

Keum Ja Kim, petitioner,
Appellant,

vs.

Youn H. Kim,
Respondent.

HUDSON, Judge
On appeal from the district court's ruling in post-judgment dissolution
proceedings, appellant argues that the district court improperly
modified a provision of the parties' stipulated property distribution
regarding sale of the house and the disposition of the proceeds of the
sale of the house. Because we conclude that the provision is ambiguous
and that the district court properly interpreted the provision, we
affirm.
= = = =

A05-2128
A05-2379

Aircraft Mechanics Fraternal Association Members,
Relators (A05-2128),
Respondents (A05-2379),

vs.

Northwest Airlines, Inc.,
Respondent (A05-2128),
Relator (A05-2379),

Department of Employment
and Economic Development,
Respondent.


HUDSON, Judge
In these consolidated appeals, striking member technicians and
inspectors challenge the decision by the unemployment-law judge (ULJ)
affirming his earlier decision that they were disqualified from
receiving unemployment benefits. The ULJ determined that a 25% pay
reduction was insufficient to constitute a constructive lockout, under
which the technicians and inspectors would have qualified for benefits.
The employer, Northwest Airlines, Inc. challenges the decision by the
ULJ affirming his earlier decision that the striking Aircraft Mechanics
Fraternal Association cleaners and custodians were qualified to receive
unemployment benefits, determining that a 25% pay reduction constituted
a lockout as to the cleaners and custodians. Because we conclude that,
under Sunstar Foods, Inc. v. Uhlendorf,310 N.W.2d 80 (Minn. 1981), the
25% pay cuts imposed on both the technicians and inspectors, as well as
the cleaners and custodians, constituted a constructive lockout so as to
entitle both groups to unemployment benefits, we affirm the ULJ's
decision with regard to the cleaners and custodians, but we reverse the
ULJ's decision with regard to the technicians and inspectors.
= = = =

A05-2472

Russell Trenholme,
Respondent,

vs.

QRS Diagnostic, LLC, et al.,
Appellants.


T, Judge

In this appeal after a bench trial, appellants challenge the district
court's determination that they committed fraudulent or intentional
misrepresentation by omission, arguing that (1) they did not have a duty
to disclose certain financial information to respondent; (2) the record
does not support the finding that respondent reasonably relied on
appellants' failure to disclose certain financial obligations; and (3)
respondent is not entitled to damages for omission of the financial
information. We affirm.
= = = =

A05-2534

Rose Pelzel,
Relator,

vs.

St. Paul Office of License, Inspections
and Environmental Protection,
Respondent.

PARKER, Judge

Relator Rose Pelzel is the owner of a Labrador retriever named Rory that
was labeled a potentially dangerous animal under Saint Paul, Minn.,
Legislative Code ? 200.11(a)(1), after he bit two children while running
at large.[1] Shortly after that attack, Rory bit Rosalia Portillo,
again while he was running at large. The respondent City of Saint Paul
Office of License, Inspection and Environmental Protection determined
that Rory was a dangerous animal[2] under Saint Paul, Minn., Legislative
Code ? 200.11(a)(1). Pelzel brought this appeal by writ of certiorari,
contending that (a) the evidence fails to support the dangerous dog
designation under Saint Paul, Minn., Legislative Code ? 200.12; and (b)
the determination that the dog was running at large was erroneous. We
affirm.
= = =

A05-2437


Steven Iverson,
Appellant,

vs.

Hubbard Broadcasting, Inc.,
d/b/a KSTP-TV,
Respondent.

FORSBERG, Judge
On appeal in this defamation action, appellant argues that
because genuine issues of material fact exist, the district court erred
by entering summary judgment. Because appellant cannot prove that
respondent published a false statement, and a false statement is an
essential element of a defamation claim, we affirm.
= = = =

A05-2194

In re the Marriage of:
Kelli Marie Anderson, petitioner,
Respondent,

vs.

Jeffrey Lynn Anderson,
Appellant.

STONEBURNER, Judge

In this dissolution matter, appellant challenges the
district court's determination that the increase in his investment
account was marital rather than non-marital property and the
determination that appellant depleted funds from a joint savings
account. Because the record supports the district court's determination
that the increase in the investment account was marital, we affirm in
part. Because the record does not support the district court's
conclusion that appellant depleted funds from the savings account, we
reverse in part.

 

 
 
 

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