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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UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

A06-1252r

In re the Marriage of:
Carol Bernice Baker, petitioner,
Appellant,

vs.

Daniel Remember Baker,
Respondent.

HARTEN, Judge
On remand from the supreme court, this court has been directed to address whether the investment return on appellant's nonmarital interests in certain retirement accounts is marital because appellant did not (a) trace nonmarital interests in the appreciation of his interests in the retirement accounts or (b) distinguish the nonmarital appreciation of his interests from the marital income generated by those interests. We affirm in part, reverse in part, and remand.

= = = =

A07-1779

Marie Borglum,
Relator,

vs.

Waseca County Board of Commissioners,
Respondent.

CONNOLLY, Judge
Relator challenges respondent's decision to deny her application for a conditional-use permit pertaining to the operation of an armored vehicle recreational facility and shooting range on her property. Because respondent's decision to deny relator's request for the permit was not arbitrary and capricious, we affirm.

= = = =

A07-1873

RedStar Capital, LLC,
Respondent,

vs.

James F. Rex,
Appellant,

John Doe and Jane Roe,
individuals whose true names are unknown to Plaintiff,
residing at 8521 Palomino Drive,
Apple Valley, Minnesota 55124,
Defendants.

ROSS, Judge
This appeal concerns James Rex's eviction from his home. Rex appeals the district court's entry of summary judgment against him in an eviction proceeding initiated by RedStar Capital, LLC. The district court granted summary judgment because it held that RedStar had established a prima facie case of its right to possess the property and because the defenses Rex asserted may not be brought in an eviction proceeding if they can be raised in a separate action. Because the district court correctly determined that Rex's defenses could have been brought only in a separate action, we conclude that it did not err by granting summary judgment, and we affirm.

= = = =

A07-1932
A07-2006

In the Matter of the Denial of Certification of the Variance Granted to
Robert W. Hubbard by the City of Lakeland.

STAUBER, Judge
On a certiorari appeal from a decision by the Minnesota Commissioner of Natural Resources refusing to "certify" a local government decision to grant a variance on property located within the Lower St. Croix National Scenic Riverway, relators argue that (1) the Commissioner of Natural Resources lacks legislative authority under the Lower St. Croix Wild and Scenic River Act to overturn local government variance decisions; (2) the Municipal Planning Act, Minn. Stat. 462.351-.365 (2006), entitled Mr. Hubbard to replace his nonconforming property without obtaining a variance; (3) the record supports the city council's finding of a hardship entitlement to the variance to which the commissioner failed to give proper deference; and (4) notwithstanding the other errors, Mr. Hubbard and the City of Lakeland argue that Mr. Hubbard's variance request must be approved by operation of law because the commissioner failed to meet the 60-day deadline established in Minn. Stat. 15.99, subd. 2(a) (2006). Because we find that Minn. Stat. 15.99 operated to approve the variance request, we reverse.

= = = =

A07-1955

Chase Huisman, a minor child, by his parent
and natural guardian Jodi Schroeder,
Appellant,

vs.

Charles E. Chambers, M. D.,
Defendant,

Owatonna Clinic-Mayo Health System,
Defendant,

Allina Health System
d/b/a Owatonna Hospital, et al.,
Respondents,

Owatonna Anesthesia Services, P. A., et al.,
Respondents.

HUDSON, Judge
In this medical-malpractice action, appellant contends that the district court erred by concluding that the expert-disclosure affidavits did not satisfy the requirements of Minn. Stat. 145.682 (2006) and by dismissing the medical-malpractice action against respondents, two labor and delivery nurses, a certified nurse anesthetist, and their respective employers. Because the district court did not abuse its discretion, we affirm.

= = = =

A07-2046

Tyler Holdings, Inc., et al.,
Appellants,

vs.

JJT, LLC, et al.,
Respondents,

Michael R. Roess, et al.,
Respondents.

JOHNSON, Judge
Appellants signed agreements to purchase two renovated condominium units in a 78-year-old building before the renovation of those units was underway. The city later withheld approval of the renovation plans and would not allow the units to be built as originally designed. Appellants sued the owners, developers, contractors, and brokers involved in the project, alleging 18 different theories of relief. The district court granted summary judgment to respondents on all counts. We conclude that the district court did not err in granting summary judgment and, therefore, affirm.

= = = =

A07-2059

Jenny L. Rhoades,
Relator,

vs.

Armor Security Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

STAUBER, Judge
Relator challenges the decision of the unemployment law judge (ULJ) that she was discharged for misconduct, arguing that (1) the factual findings were not supported by substantial evidence; (2) her poor performance was not misconduct but attributable to inadequate training; (3) the ULJ did not provide sufficient reason for credibility determinations; and (4) she had inadequate time to prepare for the hearing. Because substantial evidence supports the ULJ's findings, the ULJ provided sufficient support for his credibility determination, and relator's conduct violated the standard of behavior that her employer had a right to reasonably expect, we affirm.

= = = =

A07-2139
A08-0014
A08-0044

Esera Tuaolo,
Respondent (A07-2139, A08-14),
Appellant (A08-44),

vs.

Want Some Weather, Inc.,
Defendant (A07-2139),
Respondent (A08-14, A08-44),

Weather Eye, Inc., et al.,
Appellants (A07-2139, A08-14),
Respondents (A08-44).

KALITOWSKI, Judge
These consolidated appeals are taken from judgments entered in a case arising from a failed investment in private equity. In May 2000, respondent Esera Tuaolo invested 0,000 in a fledgling Internet weather business, Want Some Weather, Inc. (WSW). Nearly six years later, after learning that the business venture had not been successful, Tuaolo brought suit against appellants WSW, its CEO Steve Wohlenhaus, and a related company Weather Eye, Inc. (WE). Tuaolo claimed that his investment was fraudulently induced by Wohlenhaus, and also challenged appellants' conduct following the investment. Tuaolo's claims were tried to a jury that returned a special verdict in Tuaolo's favor. Based on the special verdict and its own equitable determinations, the district court entered judgments against appellants, holding them jointly and severally liable for 0,000 in damages and 1,950.51 in attorney fees.
Wohlenhaus, WE, and Tuaolo appeal, challenging multiple orders issued by the district court before, during, and after trial. We reverse the verdict against Wohlenhaus on Tuaolo's breach-of-contract claim, but affirm the jury's verdicts on Tuaolo's fraud and conversion claims and the resulting damages judgment against Wohlenhaus and WSW. Because there is no evidentiary basis for WE's direct liability, and the district court erred in piercing the corporate veil to hold WE liable, we reverse the judgments entered against WE. In addition because there is no statutory basis for an award of attorney fees on Tuaolo's fraud and conversion claims, we reverse the attorney fees judgment. And, finally, we conclude that the district court did not err in issuing an injunction in aid of garnishment proceedings.

= = = =

A07-2221

In re the Marriage of:

Jeffrey D. McCallum, petitioner,
Appellant,

vs.

Barbara J. McCallum,
Respondent.

SHUMAKER, Judge
Jeffrey D. McCallum appeals from a district court decision modifying his spousal maintenance-obligation. He contends that the court overestimated his ability to pay maintenance and underestimated his ex-wife's ability to support herself. Because we conclude that the district court abused its discretion in its determination of the maintenance modification, we reverse and remand.

= = = =

A07-2250


Wendy Page Rieken, et al.,
Appellants,

vs.

Achim IV, Inc., d/b/a Alley Gators Lounge,
a/k/a Alleygators Nightclub & Restaurant, et al.,
Respondents.

HALBROOKS, Judge
Appellants challenge the district court's grant of summary judgment to respondents, dismissing their negligence, res ipsa loquitur, and loss-of-consortium claims arising out of injuries suffered when a mirror tile on a restaurant wall fell and struck appellant Wendy Page Rieken. We affirm the district court's grant of summary judgment to respondent Kadur, Inc. because its involvement was too attenuated for a legal duty to be imputed to it. But because issues of material fact exist as to whether respondent Achim IV, Inc. breached its duty to appellants, we reverse summary judgment as to respondent Achim IV, Inc. and remand for trial.

= = = =

A07-2257
A07-2258

Edward A. Martin,
Appellant (A07-2257),

Fletcher W. Hinds,
Appellant (A07-2258),

vs.

Lafarge Group d/b/a Lafarge North America, Inc.,
defendant and third party plaintiff,
Respondent,

vs.

City of Duluth,
Third Party Defendant.


HUSPENI, Judge
Appellants challenge the district court's grant of summary judgment to respondent, arguing that (1) appellants need not meet a heightened burden of demonstrating the presence of a material fact issue to avoid summary judgment; (2) the district court erred by improperly determining the admissibility of evidence; and (3) there is a genuine issue of material fact regarding ownership of the railroad track crossing on which appellants suffered injuries. Because the district court required the appellants to satisfy the ordinary burden of demonstrating the existence of a material fact issue, and the district court did not err in determining admissibility of the evidence, and there is no material fact issue in this case, we affirm.

= = = =

A07-2376

Sherry Demuth,
Appellant,

vs.

Maryknoll, LLC,
and all other persons unknown claiming any right, title,
estate or lien in the real estate described in the Complaint herein,
Respondent.

ROSS, Judge
This appeal involves an ownership dispute between Maryknoll, LLC, and Sherry Demuth occasioned by Maryknoll's foreclosure purchase of a condominium unit that Demuth owned before the property fell into foreclosure. After Maryknoll purchased the unit and the statutory redemption period lapsed, Demuth sued, claiming that she was still the rightful owner because the foreclosure sale occurred one day before statutorily allowed and because the unit was sold for a grossly inadequate price. The district court dismissed Demuth's suit. Because the foreclosure sale occurred six weeks after the initial notice was published, its timing satisfies Minnesota Statutes section 580.03. And the district court properly applied the general rule that a foreclosure sale will not be set aside for an inadequate price alone. We therefore affirm.

= = = =

A07-2424


Ahmed Mohamud Abdi, et al.
Appellants,

vs.

State Farm Insurance Company,
Respondent.

CRIPPEN, Judge
Second cousins Mohamud Jama (Jama) and appellant Ahmed Abdi (Abdi) immigrated to the United States separately and rented space in the same Minneapolis apartment. Although the two shared certain expenses and household chores, both were independently employed. When Jama moved to Nebraska for work, he purchased a car and an automobile insurance policy from respondent State Farm Insurance Company (State Farm). Jama later returned to Minneapolis and moved back into the same apartment. Shortly after Jama's return, Abdi was injured in an automobile accident and sought no-fault benefits as a resident relative of Jama. After State Farm denied Jama's insurance claim, Abdi commenced this action to obtain benefits. The district court granted summary judgment to State Farm. Because Abdi was not a resident of Jama's household, we affirm.

= = = =

A08-0049

Raymond G. Hartmann,
Appellant,

vs.

Circuit City Stores, Inc.,
Respondent.

STAUBER, Judge
On appeal from summary judgment in this negligence action, appellant argues that the district court erred in concluding that the injuries sustained by appellant when a shoplifter stole his car were not proximately caused by respondent store's employees' pursuit of the shoplifter. Appellant also contends that the district court erred in concluding that (1) there were two superseding intervening causes and (2) appellant assumed the risk of his injuries by confronting the shoplifter. Finally, appellant argues that as a matter of public policy, respondent store should be liable for appellant's injuries. Because respondent store's employees' pursuit of the shoplifter was not the proximate cause of appellant's injuries, we affirm.

= = = =

A08-0123

In re the Marriage of:
Karen Sue Hunley,
petitioner,
Appellant,

vs.

Donald Gaylord Hunley,
Respondent.


CRIPPEN, Judge
Appellant Karen Hunley (now Williams) challenges the district court's order requiring her to continue her 0,000 life insurance policy even though she is the custodial parent. She also disputes the findings supporting the downward deviation on respondent Donald Hunley's child support obligation and the imposition of attorney fees. Because maintaining the life insurance policy is in the children's best interests and supported by the district court's findings, and because we find no merit in the other claims, we affirm.

= = = =

A08-0139


Amasia Acoustics, LLC,
Appellant,

vs.

GN Hearing Care Corporation,
Respondent.

BJORKMAN, Judge
Appellant Amasia Acoustics, LLC challenges the rule 12 dismissal of its joint-venture and breach-of-covenant claims and the summary judgment dismissing its breach-of-contract and promissory-estoppel claims. We affirm.

= = = =

A08-0150

In re the Marriage of:

Thomas W. Ilstrup, petitioner,
Appellant,

vs.

Kathleen McGuire Ilstrup,
Respondent,

and

Carver County, intervenor,
Respondent.

SHUMAKER, Judge
Appellant-father challenges the district court's order affirming a child support magistrate's (CSM) determination of his motion to modify his support obligation, arguing that he has shown a substantial change in his income. Because the CSM's calculation of appellant's income is not supported by the evidence and is based on conjecture, it is clearly erroneous. The district court abused its discretion in affirming the CSM's order. We, therefore, reverse and remand.
= = = =

A08-172

Julie L. Bruggeman, petitioner,
Respondent,

vs.

Sherry Walz,
Appellant.

WORKE, Judge
Appellant challenges the district court's grant of a harassment restraining order (HRO), arguing that the record does not support the district court's findings of fact or the grant of the HRO. We affirm.

= = = =

A08-0243

Bennie James Gilyard, Jr., as Trustee of the Gilyard Family Trust, petitioner,
Appellant,

vs.

Craig Stephen Lichtsinn,
Respondent,
Jay Eileen Lichtsinn,
Respondent.

STONEBURNER, Judge
Appellant, trustee of a family trust, challenges the ruling of the district court upholding a trust provision granting respondents an option to purchase trust property at a fixed price. We affirm.

= = = =

A08-0820

In the Matter of
the Welfare of the Child of:
A. K. H. and J. D. C., Parents


KLAPHAKE, Judge
Appellant A.H. is the mother of D.H., born October 25, 2001. Appellant challenges the district court's April 8, 2008 ruling that D.H. is a child in need of protection or services (CHIPS) because she was a victim of sexual abuse or would reside with a perpetrator of sexual abuse, Minn. Stat. 260C.007, subd. 6(2) (2006), and is without proper parental care because of A.H.'s emotional or mental disability, or immaturity, Minn. Stat. 260C.007, subd. 6(8) (2006). We affirm because we conclude that the district court did not err in determining that there was clear and convincing evidence to support a CHIPS adjudication on either statutory ground. We also observe no error in the district court's admission of J.V.'s testimony, a witness to whom D.H. made corroborative statements that she was sexually abused.
 

 
 
 

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